Thursday, May 31, 2007

Do Baseball Statistics Measure Fairness?

Over on PrawfsBlawg, Matt Bodie has a thoughtful post on the oddity of Major League Baseball teams and many of their fans being so openly obsessed with nuanced, sometimes esoteric, statistical measurements of players while being tolerant or at least less vocal towards glaring inequities between teams (thanks to Octagon associate general counsel Ryan Rodenberg for the link). Here is an excerpt from Bodie's post:
Sports are supposed to be played on an even playing field. For example, every team should have an equal chance of making it to the playoffs. But there is one league that defies this logic. In this league, 20 teams have a 20% chance of winning their division, 4 teams have a 25% chance, and 6 teams have a 16.7% chance. In addition, 14 teams have a 7% chance of winning a wild card entry to the playoffs, while 16 teams have only a 6.25% chance of winning it. What league is this? Major League Baseball.
* * *

Why would any team or any sport allow for this unfairness? I'm sure there was some discussion of it at the time of realignment, and there are occasional posts about it on the Internet. But in a league newly obsessed with the smallest statistical advantages, you would think that these glaring differences would get more attention.

* * *

So is the current breakdown unfair? Statistically, it is undoubtedly unfair. But perhaps the relative silence on this issue means that the reality is somewhat grayer.

To read the rest of the post, click here.

MLB Still Fighting Slingbox

Last June, I discussed a dispute between MLB Advanced Media (MLBAM) and Sling Media Inc., manufacturer of the popular Slingbox device. Slingbox lets consumers rebroadcast the cable and satellite signals they receive on their home television to any computer, cell phone or second television located far away. Last year, MLBAM approached Sling Media about paying licensing fees for the distribution of televised baseball games and the company rebuffed. Apparently, that issue is not dead. Eriq Gardner of The Hollywood Reporter, Esq. addressed the status of that dispute in an excellent article about sports leagues' ability and efforts to legally control distribution of content in a high-tech era that entails the use of such devices as the internet, Slingbox and YouTube ("Sports Leagues' Slingbox Opposition Highlights New Game of Content Control").


I used to be a stockpicker. I gave it up after reading A Random Walk Down Wall Street. I am utterly convinced that there is no skill in stockpicking whatsoever.

My investing advice is simple. Hold a diversified portfolio of stocks and bonds at the lowest possible cost which means investing in index funds through Vanguard or TIAA-CREF. The solution is simple, but the ideas behind the advice is profound.

Superinvestor Warren Buffett will tell you that it is OK to put all your eggs into one basket. You just have to watch that basket. This is ridiculous advice. A casual glance at Buffett's Berkshire Hathaway will show you the many baskets the man has his money in.

No one has a flawless crystal ball. In my life, there is one thing I can reliably predict. The future is mostly unpredictable. Risk is common and unending. This is why they tell you not to put your eggs in one basket.

The wisdom behind this advice comes from the risk reducing properties of negative covariance. This is opposed to positive covariance which is when everything moves together. Negative covariance is when things do not move together like in the graph above.

An example of positive covariance is when you find a forgotten twenty dollar bill beside the bed after having mindblowing sex with a gorgeous blonde. An example of negative covariance would be buying a winning lottery ticket on the day your house burns down. Positive covariance would be having the lottery ticket inside the house when it burned down.

None of this probably makes sense to you, so I'll break it down like this. Risk is simply volatility. A guy like Warren Buffett would disagree. He would say that risk is the likelihood of losing money. But losing money is a certainty of life. Warren Buffett has lost lots of money. He's losing money now on NetJets. If NetJets was a private company instead of a Berkshire subsidiary, it would be done. But Warren has other streams of income, so he is content to ride it out. In short, he is diversified.

Basically, this is how it all works. If you want to increase reward, you must concentrate your holdings. The downside is that you will increase risk. For instance, the lottery generates huge rewards for the winner, but I am willing to bet my entire net worth that you won't win the lottery in your lifetime. Ever. The risk is tremendous. That's why we work jobs. Less reward but less risk. But spending a dollar a week on the lottery is no big deal. You get to stay out of the poorhouse and also open yourself to that once in a million years jackpot.

It is impossible to have absolute return with zero risk. It also impossible to live without risk. The optimal portfolio of investments will achieve a balance between risk and return given the investor's tolerance. This means investing in a mix of stocks and bonds or going further into the various asset classes that can be sliced and diced. But I am digressing at this point. . .

Diversification is the key not only to investing but in all aspects of life. I call it the gospel of covariance. It is a good strategy. I'll apply it to certain aspects of life to show you how it works.


When I was in college, computer science was a hot major. It has noticeably cooled since then. Where folks were making $60K to start in this area, they now count themselves lucky to be employed. I've seen this same thing with mechanical engineering, geology, chemical engineering, etc. In all of these fields, the rewards can be very lucrative depending upon economic factors. For instance, a mechanical engineer could name his price during the defense buildup of the '80's. He was out of work when the Berlin Wall fell. (Watch Falling Down with Michael Douglas to get a taste of this.)

The result of this is that more and more people are pursuing advanced degrees. This is a mistake. The reason people with a hot major make a lot of money is because they are in high demand. But it is in the nature of markets to fill demand. The result of this specialization is that you can make a ton of cash--if you're lucky. Nowadays, a decent welder from a votech program makes more cash than a computer science grad. Why? Supply and demand.

I think people are seeing the limits of specialization. In order to make big money, you have to be lucky enough to specialize in something that is in tremendous demand. But unless this something is hard to acquire (like a medical degree), you will probably end up spending a lot of money on something with a dismal future.

I think the answer to all of this is a return to the Renaissance Ideal. In other words, it helps to know something about everything. You won't make as much as a nuclear physicist, but you'll always have a job. When the market changes, you can change with it. Have a foot in both the blue collar and the white collar worlds. Be a double major in engineering and accounting while learning a skill at the local trade school. Or learn to be a welder, a machinist, and a truck driver while pursuing your love of painting and music in your spare time. Hey, Elvis used to drive a truck. It paid the bills.

It is impossible to become great at something unless you focus on it. Pete Sampras was the greatest tennis player to play the game. He was also a high school dropout and incredibly boring. This is no accident. He focused like a laser on his sport, made some cash, and he will probably be forgotten. A bad accountant could send him to the grill at McDonald's.

By being a jack of all trades, you will be the master of none. But you will be more employable (and more interesting.)


I did a personal study of players to discover their secrets. How are they able to be with so many different women? The answer was readily apparent. These cats don't have any special magic or charm over women. They are simply cocky enough to throw themselves at any and every woman they encounter. They are successful less than 10% of the time. But we only count their successes. In short, they diversify their efforts. A loser chases after one woman at a time concentrating his effort leading to sexual frustration and an evening with Penthouse. The player has his phone ringing off the hook.

I learned all of this because I wanted to know the answer to a nagging question. Why do jerks and slackers end up with the girls? Well, that's easy. Jerks have no shame, and slackers have nothing but time. The result is a lot of hook ups. If I told you that pressing a button ten times will give you a dollar bill, you'd probably quit your job to be a professional button pusher. It is no different with women. Ask out ten chicks and see what happens.


I have a lot of friends. That's because I network. Networking has gotten a bad rap because it seems self-serving and impersonal. But it isn't. Networking is where you go through the trouble to write down the addresses, email addresses, and phone numbers of people you know and make an effort to stay in touch with them. I never get rid of a friend. It's a lot of work trying to keep in touch with all those people, but it pays off. Never burn a bridge. Those bridges may be the ones to get you over the next troubled water you encounter.

As you can see from these examples, diversification and covariance can be applied to a lot of different areas. You will also see where others are already applying it such as with spam. Spam is annoying as hell to us but very lucrative for those sending it. It's no different than the button pusher analogy. Advertising, marketing, etc. employ the same strategy.

For me, the biggest change I made in my life was to be a bit more omnivorous in my tastes, my projects, etc. My examples in this were Aristotle and Leonardo da Vinci. Both men were geniuses, and their influence is still felt to this day. They were polymaths which means they did it all. Aristotle made important contributions in philosophy, science, politics, and literature. Leonardo did the same with painting, sculpture, anatomy, inventions, etc. Without a doubt, their reaches exceeded their grasps. You literally cannot know everything or do everything. But you can do a lot more than you think, and it is worth it. Leonardo and Aristotle diversified. We have forgotten their failures and remember only their successes.

This meme has infected all areas of my life. I accept that I will fail more often than I succeed, but diversifying my efforts saves me from being at the mercy of fate. This is the same secret behind the insurance industry. I am very enthusiastic about this strategy which may explain the eclectic nature of my blog. I just throw stuff at the wall to see what sticks.

Wednesday, May 30, 2007

Proposed UFL and Antitrust

From my FIU colleague and occasional guest blogger Andre Smith (who is the real sports law guru on our faculty):

Dallas Mavericks owner Mark Cuban is involved in creating another challenger to the NFL, dubbed for now the UFL. I’m not sure what the “U” stands for, but I am guessing United, with Universal being a slighter possibility.

According to, “Each owner will put up $30 million, giving him an initial half-interest in the team; the league will own the other half. Eventually each team is going to sell shares to the public... Then the owner, the league and the fans will each own a third of every franchise.”

This ownership structure is novel in professional sports and begs a question relating to anti-trust: Which section of the Sherman Anti-Trust Act applies to a league constituted this way?

The major professional sports leagues and organizations in the United States (NFL, MLB, NBA, NHL, NASCAR) consist of individual team owners who establish league rules through a non-profit entity, i.e., the League Office. These teams can be sued under section 1 of the Sherman Act for combining or conspiring to restrain trade.

Teams in Major League Soccer, on the other hand, are owned by the league. They are managed by franchise operators, rather than team owners. Being a single entity, then, there can be no “combination” or “conspiracy” to restrain trade. Still, MLS can be sued under section 2 of the Sherman Act, which prohibits attempts to monopolize.

So the question becomes, can the UFL be sued under section 1, if the league owns 51% of all the franchises, 50% of all of them, 33% of them, or 51% of more than half of the teams and minority stakes in the rest? Often in federal taxation, a subsidiary is owned and controlled by its parent when the parent owns at least 80%; should there be a similar supermajority standard?

NFLPA Sends Stern Message to NFL Commish

In yesterday's edition of The Tennessean, Jim Wyatt reported that the NFLPA sent a letter to NFL Commissioner Roger Goodell requesting the season-long suspension of Pacman Jones be reduced. ["Players union rallies to Pacman"]. According to Wyatt, the four-page letter raised questions about punishing a player retroactively and the severity of the suspension, but did not list concerns with the NFL's new personal conduct policy. As part of Jones' appeal to the NFL, his attorneys listed more than 280 other NFL players arrested or charged since January 2000 without being suspended for a season, including several with multiple incidents. Pacman's attorneys also hinted at suing the NFL if they're not satisfied with the commissioner's ruling.

Wyatt pulled some quotes from the letter to Goodell written by NFLPA staff counsel, Thomas DePaso, who was present at Jones' appeal hearing in front of the commissioner:
The union's letter to Goodell, dated May 23, states "your suspension of Jones without pay for the 2007 season is clearly excessive and much greater than discipline imposed upon players for the same or similar incidents.'' It says Jones has been treated differently than any other player has been treated under the old personal conduct policy. "To impose discipline for pending charges also violates clearly established principles of employment and labor law,'' the letter states before going into detail on each example. In comparison to other cases, DePaso wrote that Jones should have received fines, not extra games as part of his suspension. "For all of the foregoing reasons, the NFLPA hereby requests that you reconsider the one-year suspension you imposed … as it is excessive and inconsistent with the treatment of other similarly situated players,'' the letter reads. "We will defer to Jones' counsel for appropriate discipline, if any, to be suggested.''
This is a great strategic move by the NFLPA. And the timing of it couldn't be better as Goodell is currently contemplating Pacman's appeal as well as the disciplinary sanction to impose upon Bears' lineman Tank Johnson who met with the commissioner two weeks ago. David Haugh of the Chicago Tribune recently wrote an excellent piece explaining in legal terms (with my assistance) why Tank, or any other player for that matter, has virtually no chance whatsoever of having his suspension reduced by any judge in a court of law ("Tank released - with a catch"). Haugh interviewed Dan Jiggetts, a former Bear well-versed in labor issues from his time as NFLPA vice president, who couldn't have said it any better when he applauded Goodell's intentions but cautioned that a clearer line should exist between improving the game and impinging on players' rights: "It's one thing that he's trying to clean up the league and everybody understands that, but he can't be making unilateral decisions."

At the Sports Lawyers Association annual conference in Boston two weeks ago, NFL counsel Jeff Pash made an interesting comment during a panel composed of general counsel for the four leagues. I wasn't taking notes from the audience so I don't have a direct quote, but the gist of his statement was that the players go to meet with Goodell and the players' attorneys explain to Pash, in so many legal terms, why the commissioner's suspension is excessive or should be reduced. Pash tells them, look, don't talk "legal" with the commissioner because he's not a lawyer and that's not going to get you anywhere with him.

Well, the NFLPA is now talking "legal" with the NFL, and Goodell and Pash should probably take notice. The NFLPA is essentially saying, "yes, we know that we agreed in the CBA that the commissioner is the sole arbitrator of appeals...and yes, we went along with your new personal conduct policy because we all have an interest in preserving the image of the sport, but we did so with an implied understanding between us that you would exercise your authority consistent with the manner in which former commissioner Tagliabue exercised his authority." In other words, it has always been implied that the commissioner would essentially utilize a "just cause" standard of review, which, in accordance with employment and labor law, means that the league must follow progressive discipline in response to player misconduct, imposing gradually increasing penalties for repeated offenses in an effort to rehabilitate the player and deter future misconduct by the player (which I discussed in my post last month).

It will be interesting to see how Goodell reacts going forward. Any predictions?

Tuesday, May 29, 2007

Hancock v. Mike Shannon's Steaks and Seafood

The title is the caption to a lawsuit filed last week in Missouri state court by Dean Hancock, the father of St. Louis Cardinals reliever Josh Hancock and the executor of Josh's estate. Josh was killed in a car accident April 29 when the rented SUV he was driving slammed into the back of a stopped tow truck in the left lane of a multi-lane highway in St. Louis. Hancock had left one bar (Mike Shannon's) and was on his way to a second bar to meet his girlfriend. Reports indicate Hancock had a blood-alcohol level of 0.157, was traveling above the posted speed limit, and talking to his girlfriend on his cell phone when the crash occurred. Stories on the accident and the lawsuit here, here, and here. A copy of the complaint can be downloaded about halfway down in this story.

There are three basic claims in the lawsuit. The first, against Mike Shannon's restaurant/bar and Patricia Shannon Van Matre, the manager of the bar, seeks damages under Missouri's dram shop law. The claim is that Hancock, a regular at the bar, spent approximately 3 1/2 hours drinking there on the night in question and became visibly intoxicated, but the restaurant continued to serve him drinks anyway. The second claim alleges negligence against the tow truck company and the tow-truck operator, claiming that the driver was negligent in stopping in the left lane of the highway and keeping the truck (and stalled car) there for a lengthy period of time, without providing adequate warning to motorists, such as flashing lights or flares. The third claim alleges negligence of against Justin Tolar, the driver of the stalled car that the tow truck had stopped to help. Tolar's car had struck the median, spun out, and stalled in the left lane of the highway.

The dram shop claim is the focal point of the suit, the one that has received the most attention, the most unique claim, and likely the most difficult to prove. Missouri's law, amended in 2002, permits liability when it is "proven by clear and convincing evidence that the seller . . . knowingly served intoxicating liquor to a visibly intoxicated person." Mo. Rev. Stat. § 537.053(2). "Visibly intoxicated" means "inebriated to such an extent that the impairment is shown by significantly uncoordinated physical action or significant physical dysfunction." § 537.053(3). A high BAC is evidence of voluntarily intoxication, but cannot alone establish the fact. Moreover, the law expressly prohibits recovery for injuries resulting from one's own voluntary intoxication. § 537.053(4). This presumably means the law permits third-party liability against a bar (A is injured by B's drunk driving, sues the bar at which B got drunk), but not first-party liability (A is injured as a result of his own drunk driving, sues the bar at which he voluntarily drank and got drunk). A good discussion of the history of dram-shop liability and of Missouri's new law is here.

The fact that the law seems to disallow first-party dram-shop liability probably defeats this claim at the start. The prior version of Missouri's dram shop law was held to allow first-party claims, although that statute required only that the "intoxicating liquor is the proximate cause of the personal injury or death sustained by such person." The explicit prohibition on claims involving voluntary intoxication should command a different result in the typical first-party claim such as this--someone willingly goes to a bar, drinks, gets drunk, and is injured.

The complaint tries to get around the voluntary intoxication language by alleging that Hancock's intoxication was involuntary, thus not within the statutory exception. But I am not sure how this can be the case. In general, one can be said to be involuntarily intoxicated only when a person did not knowingly consume the intoxicating substance (i.e., someone slipped him a Mickey). No one suggests that is what happened here. My speculation is that the plaintiff rests on some notion that the bartenders at Shannon's continued to give Hancock drinks beyond the point that he was (or could be) aware that he was drinking and getting drunker; so even if he went to the bar voluntarily and even if he initially voluntarily consumed alcohol, at some point he was drinking and getting drunk not of his own volition. I doubt this works as a matter of law. Moreover, even if Hancock clears that hurdle, he must put together a lot of evidence (more than the ordinary civil standard of more-likely-than-not) that Josh exhibited signs, visible and obvious to Shannon's bartenders and staff, of physical dysfunction caused by alcohol consumption. The spiked BAC will not be enough.

The negligence claims against the tow-truck company and driver and against the stalled motorist sound like something from a torts exam. Still, neither claim seems beyond the pale. If the motorist was negligent in hitting the median and stalling his car out, then he may (and should) be responsible for resulting injuries to any other driver on the road. Imagine that Tolar, driving negligently, had bounced off the median and struck Hancock's car as it came immediately behind him; no one would question that Tolar might be liable. The only difference here is that Hancock did not come upon Tolar's car until 20 minutes later. But the principle--Tolar drove negligently and contributed to the injuries to another driver--remains the same. Similarly, the tow truck driver/company were obligated to conduct themselves in a careful manner--specifically by either moving the car out of the traffic lane or providing warnings to motorists.

What sets this situation apart--and what has some commentators screaming about frivolous lawsuits, the out-of-control tort system, and loss of personal responsibility (you have to page down a bit)--is everything that Josh did that contributed to the accident: He was hammered, he was speeding, and he was talking on his cell phone to his girlfriend at 12:30 in the morning. I especially liked Overlawyered's suggestions for other people Hancock should have sued, including the cell-phone manufacturer and the girlfriend.

But the tort system long ago moved to a regime of comparative negligence--a plaintiff's own negligence may reduce the amount he can recover from responsible defendants, but it does not necessarily eliminate all recovery (unless the plaintiff is more responsible for the accident than the defendants). This contrasts with the old Common Law rule of contributory negligence, where any small amount of plaintiff negligence (just 1 %) precluded all recovery. So even if Hancock contributed to the accident by driving under the influence, so, too, perhaps, did Tolar's and the truck driver's behavior. The question now becomes how much each is responsible--and that is a question for the jury.

Moreover, comparative negligence is an affirmative defense--it is on the defendant(s) to introduce the issue, plead it, and to prove it. An affirmative defense is the defendant saying, in essence, "yes, what the defendant says happened did happen, but here is something that limits or eliminates my liability"(here, the plaintiff's own negligence). Right now, all we have is Hancock's Complaint--which (as I tell my civ pro students ad nauseum) is simply the plaintiff's best-foot-forward version of what happened that, for the moment, we take as true. We need to wait for more facts and evidence to come out. News stories indicate factual disputes as to why Tolar's car crashed (he may have been cut-off by another driver), how long the tow truck had been there when Hancock reached the scene (less time may mean the tow-truck operator had not had a chance to move the stalled car yet), and whether the truck's lights were flashing to warn drivers. We are an "adversary" judicial system. Hancock has put forward his initial version of events; it now is (and should be) on the defendants to put forward their best legal and factual versions. Then we ultimately can figure out what happened and who was responsible.

My guess is that Hancock loses. The dram shop claim does not work as a matter of law, given the language of the amended statute precluding claims based on one's own voluntary intoxication. The negligence claims likely fail, since Hancock's own negligence seems to outweigh that of the motorist and the tow truck (although that one probably goes to a jury). But I disagree that it is so obvious, ab initio, that all of these claims are so laughably weak. Let the system play itself out.

Updates: Wednesday, May 30:

Some additions, explanations, and elaborations in response to e-mails and comments:

First and most important for the negligence claims: Missouri follows a "pure" comparative fault regime--an injured plaintiff can recover something from a negligent defendant, reduced by the amount of the plaintiff's own culpability. Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983). Even if the plaintiff was 99 % liable and the defendant was only 1 % liable, the plaintiff still could recover 1 % of the harm he suffered. This contrasts with a "modified" comparative negligence system, in which the plaintiff is precluded from recovery (and his claim defeated) if his negligence reaches some point (either 50 % or 51 %, depending on the jurisdiction). In practical terms, that means Hancock's negligence claims simply will not simply be defeated (as I initially stated) because of Hancock's arguably greater responsibility. It also means the claims likely go to trial for jury determination. We must determine the facts as to what Tolar and the tow-truck driver did or did not do, because even a small amount of negligence would require one or both to pay a small amount of damages to the plaintiff (an amount reduced by Josh's own negligence). Unless all the evidence shows that, as a matter of law, neither Tolar nor the truck driver was negligent, a jury must measure out what portion of responsibility either bears.

Second, Professor Sheila Scheuerman, co-editor of Torts Prof Blog (who was kind enough to link to this post), had a good explanation for the visceral negative reaction many people have to this lawsuit: The problem is that the reductio summary of the suit--"father of dead drunk driver sues restaurant and others involved in crash"--runs counter to intuitive ideas about "justice." I think this is correct as an explanation for much of the public (and blogosphere) response. And it illustrates why we try so hard to get our students to step back from that initial, intuitive, empassioned reaction and to think through the entire issue with care and reason.

Charlie's Political Platform

I have a lot of opinions on various political issues, and I thought it would be a good idea to concentrate these positions into a single statement. My outlook is basically libertarian with a belief that people should be allowed to enjoy the maximum amount of freedom possible as long as it does not infringe on the rights of others which are the rights to life, liberty, and property.

This platform is not complete and will be revised in the future as either my mind changes or new issues emerge. No arguments are presented for these positions here but can be found in my other writings.


Income taxes and property taxes on all levels should be abolished and replaced with a sales tax.


The Fed needs to be abolished. America should return to a gold standard and currency should be open to competition in the free market. Banking should be deregulated, and government insurance programs of bank accounts should be abolished.


Social Security and Medicare should be abolished. There should be no welfare.


The government should be entirely out of the education business. The Department of Education should be abolished. Public schools should be closed, and the property sold off. No public funds should go to universities or other institutions of higher learning. The government should not give loans or grants to students or issue vouchers as proposed by school choice advocates.


The Federal Communications Commission should be abolished.


The Food and Drug Administration should be abolished.


The minimum wage should be abolished and left to the marketplace.


The Occupational Safety and Health Administration should be abolished. Workplace safety should be left to the courts.


The Environmental Protection Agency should be abolished. Environmental protection should be a matter of property rights and left to the courts.


Abortion should remain legal. It should never be publicly funded.


There should be no public funding for scientific endeavors.

12. NASA

The National Aeronautics and Space Administration should be abolished, and its defense functions turned over to the Department of Defense.


The Department of Homeland Security should be abolished.


All illicit drugs currently illegal should be made legal. The Drug Enforcement Administration should be abolished. Prisoners of the current drug policy should be granted unconditional amnesty for their "crimes."


The Department of Defense should be maintained.


The right of the people to keep and bear arms should never be infringed.


Religion has no place in the public arena. The government should not restrict or promote religious institutions or viewpoints. Infringements of liberty for religious reasons should not be tolerated.


Farm subsidies should cease. The United States Department of Agriculture should be abolished.


There should be no infringement on free trade with all nations. Managed trade is not free trade. Economic sanctions should never be used as an instrument of foreign policy. There should be absolutely no aid to foreign governments or international organizations. The United States should never interfere in the internal affairs of foreign countries. The United States should not engage in war unless attacked by a foreign entity or in danger of an imminent attack by a foreign entity.


Laws and regulations against discrimination and promoting affirmative action in the private sector are violations of property rights and should be repealed. These laws should remain in force on the government. Laws against hate crimes are redundant and punish freedom of thought and should never be enacted.


The only people who should be barred from entering the United States are criminals and terrorists. Immigration and naturalization should be liberalized letting as many people come to the USA as possible either temporarily or permanently. Foreigners who commit crimes should be deported after paying for their crimes.


The tort system should require that the loser pay for the legal costs of the victor.


The death penalty is fair and just in principle. Murderers should die. In practice, the death penalty is problematic as innocent people have found their way to death row, and it is a virtual certainty that innocents have perished while murderers have gone free. Innocent people should not die. Therefore, the death penalty should be abolished.


The internet should remain free of all government regulation.


The nation's roads, highways, and bridges should be sold to private firms.

New Sports Law Scholarship

Recently published scholarship includes:

Suzanne E. Eckes, Title IX and high school opportunities: issues of equity on and in the Court, 21 WISCONSIN WOMEN'S LAW JOURNAL 175 (2006)

Greg Egan, Student article, Sustained yield: how the dynamics of subsistence and sport hunting have affected enforcement and disposition of game violations and wounded Alaskan culture, 28 HAMLINE JOURNAL OF PUBLIC LAW & POLICY 609 (2007)

Haley K. Olsen-Acre, Student article, The use of drug testing to police sex and gender in the Olympic Games, 13 MICHIGAN JOURNAL OF GENDER & LAW 207 (2007)

Josephine R. Potuto, Academic misconduct, athletics academic support services, and the NCAA, 95 KENTUCKY LAW JOURNAL 447 (2006-2007)

A Good Lacrosse Weekend

A good weekend in our household for, of all sports, lacrosse--a sport that looks fun and interesting but that I do not quite understand (beyond the obvious objective).

On Sunday, Northwestern, my beloved alma mater, won its third straight NCAA Women's Lacrosse Championship. I now am on the hunt for a purple "Hat Trick" t-shirt to fit my 17-month-old daughter (whose first legal phrase will be "Title IX").

On Monday, Johns Hopkins, which was kind enough to pay for my wife's alma mater (my father-in-law is a faculty member at Hopkins), won the Men's Lacrosse Championship. Of course, Hopkins will most be remembered for depriving Duke of the storybook finish to its return from the depths of a canceled season in 2006.

Monday, May 28, 2007

States of Fear

One day, there was this guy going to work. He felt good because he was early. He was in no rush. He rode the elevator to the floor where his desk was. He prepared himself for the day ahead. Then, he heard a sudden boom and the building shake. Flames shot out everywhere, and he was facing the choice of burning alive in jet fuel or jumping out the window to smack into the concrete below.

This is the stuff of life. For most of us, life will not be as stark as it was for the victims of 9/11. We may buy it in a car accident or get taken out slowly by cancer. In the meantime, we may come home to see our S.O. having sex with a stranger. We can go to work and get fired. Shit happens, and the randomness of that shit is what will drive you nuts.

I think this is the basis of post-traumatic stress disorder. When you spend that much time expecting to be attacked at any moment from any position, it is hard to return to normal. That is too much stark reality to process which is why it takes time for these guys to adjust. Some never make the adjustment at all.

Life can be a chronic state of fear if you let it (or listen to people like Al Gore.) I often wonder why faith in both religion and government is so ubiquitous, but it doesn't take much to figure it out. Both religion and government reinforce a fantasy that God and our elected officials will take care of everything. And when both fail, people will bury their heads still further up their own asses rather than face the reality. If you don't believe this, look at how the disappointed victims of Hurricane Katrina still line up for their government assistance. Things will not change.

People are scared, and religionists and politicians are all too eager to exploit that fear. They offer comfort and security though both are purely psychological constructs against terrors that are phantom in nature. There is no Hell except the one in the line at the DMV or the Post Office.

Politics and religion aside, life is still fraught with risk and peril. You can make all the plans you want, but they are subject to the whims of fate. This fact alone makes the human enterprise uncertain. It can be frustrating. How can you be happy when it can end at any moment? Even if you do achieve your goals, they can be swept away at any time. Why bother?

It is very easy to allow yourself to be brought down by chronic fear and worry. It can get so bad that you can't even enjoy life, and that's where things really suck. The whole point and purpose of life is to be happy, and paranoia is the opposite of happiness.

You can't change anything by worrying. I wish it were possible, but you can't. All you can do is prepare. You save your money. You wear your seatbelt. You eat right and exercise. And in the end, you will still die. It is a black hole on the horizon for each of us that will suck us into its vortex, and we will be no more.

I rely on philosophy to make it through my life. That is because my life sucks more than what you will find on average. My bad luck runs a pretty wide streak. This leads to reflection which leads to reading a lot of the ancient Greeks who spend a lot of time thinking about the same shit.

I am an atheist, but I still enjoy the Bible as literature. The Book of Job is the finest thing in there because that book really deals with doubt. Job was a guy who had his whole world turned upside down through no fault of his own. Yet, Job's comforters ended up telling him it was his fault anyway. As someone who has been through some shit, I can attest that this happens almost all the time after something happens:

-"He got cancer? Was he a smoker? Did he eat right?"

-"He got in a car accident? Was he drunk?"

-"He's getting a divorce? Was he cheating on her?"

We want to blame the victim. We want to say that it was their own fault because it still implies control over an uncertain world. This is where superstition comes into play which merely evolves into religion. When people ask me why stuff happened to me, I tell them I forgot to rub my lucky rabbit's foot. They give me a puzzled look, but that is because they are stupid.

I don't know how many times I am told not to talk about certain things because I might "jinx" something or "hex" something. What utter stupidity. None of this is scientific in any way. But it does highlight how people give over to such foolishness. Even science can be twisted in this way as people have irrational fears about genetically modified foods, using radiation as a sanitizer, or what have you. People think that anything "natural" is good while anything "artificial" is bad. Yet, sugar is natural which contributes to weight gain and tooth decay while aspartame is artificial and passes harmlessly through your gut. But I digress. . .

As I said, I like to read the Greeks especially the Stoics during times like these. I disagree with the Stoic worldview especially their fatalism, but they prove that you can achieve a certain measure of psychological comfort in this world. Buddhism reached much of the same conclusions which helped to inform the later work of a guy like Albert Ellis who started the rational/emotive therapy school of psychology. Basically, your emotions are a product of your thoughts. If you change the way you think, you will change the way you feel about life.

Faith is a powerful thing. Religion is not true, but this does not change the fact that religious people report higher levels of satisfaction and happiness as opposed to those who are not religious. Like it or not, believing in such nonsense will help you make it through life. The downside is that you end up taking risks or ignoring information because it does not fit into this religious worldview. This is how you get snakehandlers or Christian Scientists who refuse medical care for themselves and their children.

It takes fortitude to face reality as it honestly is. Even then, a tragedy like 9/11 still shocks us, and we describe it as "unreal." It doesn't fit our view of reality which indicates that we all fool ourselves for the moment. Then, the rug gets pulled out from under us.

The reality is that the rug can be pulled out from under us at any time. The key is to remain moving forward in spite of what happens to us. That is the only positive advantage of religion. It keeps people moving in a forward direction. They go on believing and planning for the future. Victory and defeat are probabilities, but defeat is a certainty once you choose to surrender.

For the atheist, he must choose not to surrender. There may come a time when surrender is the only logical option. If I were going to be captured by al-Qaeda, I would eat my cyanide capsule. If I were diagnosed with Alzheimer's disease, I would put my affairs in order, engage in some risky behaviors that I had been too chickenshit to do like skydiving, then I would eat a bullet. Dementia is not a fate I care to endure.

To make it through life, you have to keep moving. Relentless Forward Motion or RFM is what I call it. It doesn't guarantee anything, but it puts the odds more in your favor. It also has the added benefit of keeping you busy which is where happiness springs from. This is why religion emphasizes ritual so damn much. If you can't make them happy, at least keep them busy.

This is another one of those rambling posts, but the main purpose of this blog is as a psychological outlet for me. I deal with things by writing about them. It makes me feel better to put it all in words even it doesn't necessarily feel great to read those words. In the way of a conclusion, things are bad but not nearly as bad as some will tell you. You have some control over your life but not total control. And you shouldn't feel bad when shit happens because shit happens to us all. As they say, no one here gets out alive.

The Attendance Value of The First Overall Pick in the NBA Draft

Over on his CNBC blog, Sports Biz, Darren Rovell has very good news for the Portland Trailblazers: over the last 11 years, the team that obtained the first overall pick in the NBA Draft enjoyed, on average, an 11.5% increase in attendance the following season. If that percentage holds true for the Trailblazers next season, the team should receive an additional $6.3 million in attendance revenue (Rovell's calculation takes into consideration incidental revenue, such as parking and concessions).

Rovell acknowledges the limitations of his methodology. The Washington Wizards, for instance, saw their attendance increase by 24% after drafting Kwame Brown with the first overall pick 2001 (they also picked up some guy named Michael Jordan--and Rovell dropped that year when calculating the 11.5% average). Moreover, the 11.5% figure is skewed favorably by three first overall picks--Lebron James, Tim Duncan, and Allen Iverson--while some of the other first overall picks--Kenyon Martin, Elton Brand, and Michael Olowokandi--didn't seem to have much of an impact on either wins or attendance.

But considering the hype and expected performance of Greg Oden, in addition to the Trailblazers' already impressive talent, it would seem that Paul Allen's franchise is primed for a successful and lucrative season ahead (and one that will only add to Allen's net worth of $18 billion).

Friday, May 25, 2007

The Downward Spiral

I only have one great enemy in my life, and that is nihilism. For those not in the know, nihilism is a worldview that basically life is not worth living, that human beings are essentially evil, that truth cannot be known, and that happiness is impossible. If you want to get a flavor of this, listen to any Nine Inch Nails album or watch Fight Club.

It was Ayn Rand who pointed out that this bullshit began with Plato and worked its way through Kant to the present day. Personally, I think Schopenhauer deserves the most credit with his caustic pessimism. Nietzsche is often thrown into this camp, but he was actually fighting against nihilism. Finally, there isn't a nihilist who exists that wouldn't disagree with these statements.

My definition of nihilism is depression as a philosophy and a lifestyle. But it is a philosophy and lifestyle that I reject. I think a lot of people are with me on this which is why many people embrace religion. They are desperate not to give in to that soul sucking darkness. But they exchange arsenic for cyanide in the process.

Any ideology leads to nihilism because all ideologies posit a perfect world which the present real world can never be. People in the Aristotelian tradition as opposed to the Platonic tradition accept the world as it is. Reality is all there is. If you want to see the contrast, experience the flavor of the arts and humanities side of a modern college campus then go over to the engineering and sciences departments. There is a reason why the Virginia Tech gunman was an English major.

But even a scientific worldview doesn't change certain elemental truths. The universe is indifferent. Nature is red in tooth and claw. We are subject to random occurrences beyond our control. And human beings are capable of great cruelty to one another.

I am neither an optimist nor a pessimist. Things can go either way. The same indifferent nature that gave us the ebola virus also gave human beings a large cerebrum and an opposable thumb. The pessimist will look at life and see only the inevitability of death. I look at life and wonder that we exist at all.

The same thing exists with humanity. When reading about the Spanish Inquisition, the Holocaust, the torture methods of al-Qaeda, or watching a movie like Hostel, the barbarity of human beings sickens me. But the fact that such atrocities shock us gives me some hope for the human race. Slavery was abolished along with Jim Crow and apartheid. Germany is probably the safest place for a Jew living in the world today. Human beings are a far cry from the Reavers in Firefly.

I'm going through some tough times right now, and I can feel the downward spiral of nihilism trying to suck me down. I just keep going back to my touchstone of perseverance--LIFE IS A JOKE SO LAUGH AT IT. That is the essence of balanced thinking. I laugh at and mock the absurdities of existence.

It's hard to find humor in cancer or murder unless you're a sadist. It is said that Osama bin Laden laughed after 9/11 because most of the hijackers on those planes had no clue they were flying to their own deaths. I can laugh at bin Laden because he shows what an utter piece of shit he is. Yet, his beguiled followers think he is a great and holy man.

I laugh at stupid people. That is where the humor comes from. I can laugh at the 9/11 hijackers who martyred themselves to be in paradise with 72 virgins because it was the best chance that any of them had of getting laid.

In my own life, I have to laugh at the absurdity of my own troubles. If there is one theme I have encountered in my life, it would be this. I am loved but mistreated. I worry less about my enemies than I do about my friends and family. My enemies respect me and leave me alone. Most of my wounds have come from the back where I thought I was protected.

This isn't to say that all my friends and family members have done me wrong. I'd probably be nowhere without those people. The reality is that these are the only people in a position to do me wrong. Caesar fought countless battles, but he died on a friend's dagger. Loyalty must always come before betrayal.

In my present troubles, what I find surprising is that people care about me at all. Anyone who knows me will tell you that I hate myself in a way that most people could not endure. I am mystified that people I am nice to would hate me, but I am equally mystified by the people who care about me.

These people are the ones who keep me from losing myself in the downward spiral. I don't know where I would be without them. The result is a mixed blessing. By having people in my life, I run the risk of betrayal. By not having people in my life, I face the certainty of nihilistic doom. Therefore, I remain social and loyal to these people. I have been called an idiot for trusting people, but what is the alternative? Be a hermit? Suicide?

This post has been a bit of a ramble, and I apologize. There is no real thesis here except that I have a strange life. Good things and bad things happen to me all at once. This is merely a reflection of the random nature of existence. Fortune comes to us all. At the blackjack table of life, I am low on chips right now, but no one leaves the game a winner. You just have to keep playing.

Thursday, May 24, 2007

A new Liath video and a cute pic of Amy and Maxi



The immigration issue has gotten a lot of attention recently as a compromise bill is being debated and tweaked in the Senate. As with any compromise, there are things to love and hate about the bill.

My position on immigration is clear. I am in favor of it. I would support an amnesty bill for the 12 million illegals already here except that I would scrap the $5000 fine and back taxes obligations. I oppose building a fence on the southern border or an increased military presence there.

The opponents of my unpopular position marshall two arguments against me. They are the economic argument and the social argument. I'll demolish the economic argument first.

People claim that Mexcian immigrants hurt our economy. Ironically, they never say this about Canadian, English, Australian, Austrian, or German immigrants. But I'm getting ahead of myself here. The fact is that these immigrants do not hurt our economy at all but actually help it. By providing cheap labor, farms and businesses are able to produce goods and provide services at a lower cost. This helps bring down the prices for these goods and services which we buy. In addition, these people require goods and services which we can then provide to them. Mexicans take jobs, but they also help to create jobs as well.

Opponents are deluded by their own economic illiteracy that sees the economy as a pie that gets no bigger. It is merely sliced with each person getting a smaller and smaller slice as more people partake of the pie. This simply isn't the case. Granted, if you are an American fruit picker making the minimum wage, you will probably lose your job to these Mexican fruit pickers working off the books. My advice is to upgrade your skills or lower the price of your labor. This may seem harsh, but you make the same choice when you tell Wal-Mart, Sony, Microsoft, or whatnot to lower their prices or improve the quality of the shit you buy from them. This is where economic growth comes from.

The other side of the economic argument is the fact that many immigrants take advantage of taxpayer funded social services better known as the Welfare State. This isn't a problem of immigration but a problem of welfare. If you want immigrants to stop getting welfare, stop signing the checks instead of putting up a damn fence on the border. This will be cheaper and will strengthen our society as well as eliminate a lure for lazy Mexicans to come here.

This leads us to the social argument that immigrants are bad for our society because they are a bunch of lazy dirty criminals. I find this ironic considering how hard they work and the threat that they pose for the American workforce. Someone said I worked like a Mexican, and I took it as a compliment. The reality is that I don't work nearly as hard as they do.

Stats show that the immigrant population has a lower crime rate than our own population. Granted, Mexican drug dealers are a problem, but this is largely a result of our idiotic War on Drugs. Legalize the drugs, and this problem will disappear. But even with the current idiocy, Mexicans are still less criminally inclined than the rest of the US population.

The fundamental reason people are against these Mexican immigrants are because they are brown and don't speak English. They run into these people in the grocery store or Wal-Mart and hear them speaking their gibberish and dressed and acting differently. Paranoia overwhelms them leading to xenophobia and racial bigotry and delusions of a Mexican takeover. In short, they hate these dirty brown wetbacks and want to send them back south of the border. I don't go along with this hatred.

I'm not asking these bigots to love these Mexicans. What I am asking of them is to respect the life, liberty, and property of these people. Most of these people want to come here and work and make a better life for themselves and their families. They're not stealing from anyone when they do this. They are working. This is what America is supposed to be about.

Before the Mexicans, it was the Italians. Before the Italians, it was the Irish. They were all dirty, smelled bad, were criminals, etc. But history shows that America benefitted greatly from these immigrants. They got the fair shake here that they didn't get in their countries of origin, and they prospered. They were just different.

The majority of the American public is against me on this, but I think history will show the ugliness of this irrational xenophobia. I support making immigration to the USA as easy as possible. Our borders should be as open as they can possibly be. The result will be mutual benefit, and these people you hate will become as beloved as a Kennedy, a Giuliani, a Dimaggio, or even, *gulp*, Bill O'Reilly.

America is not defined by race. It is defined by shared values of liberty, respect for human rights, and a belief in hard work. Anyone who shares these values should be welcome in our country.

Wednesday, May 23, 2007

Vindication or Unfairness in Last Night's NBA Draft Lottery?

Last night's NBA lottery was an abject disaster for the Memphis Grizzlies and Boston Celtics. The two teams with the worst NBA records last season had the best odds of landing one of the top two picks, which will be used on Greg Oden and Kevin Durant. But the "best odds" aren't the same thing as certainty, as the Grizzlies and Celtics only had a 48% chance and 37% chance, respectively, of landing one of those two picks.

And as you probably know, the Grizzlies won't be picking one and the Celtics won't be picking two. They will be picking fourth and fifth, respectively. And thus they will lose out on the two players who project as "franchise players," and instead draft among the left-overs. The Portland Trailblazers, which only had a 5% of landing the first pick, got really lucky (read all about it on True Hoop), as did the Seattle Supersonics, which will be picking second.

There are at least ways to view what happened last night.

One way is to say that there is a certain degree of justice in the lottery's outcome. The Grizzlies, Celtics, and Milwaukee Bucks were all accused of tanking games in their quest to get the most number of ping-pong balls. And yet they had the worst results last night, falling down in the draft as far as they possibly could under the lottery rules. Sure, there is probably 0% chance that Commissioner Stern or anyone at the NBA had anything to do with that, as an independent lottery firm performs the actual drawing of the balls. But those who were upset with the tanking may feel like there was some sort of vindication last night, even if the vindication resulted entirely from chance.

But Jerry West, President of the Memphis Grizzlies, has a different take on what happened last night. He sees profound injustice rather than coincidental vindication:
It's like pitching pennies. It's grossly unfair to the team, but I've said it before, I don't think the lottery is fair. I never liked it.

It's not sour grapes. I just think it's a terrible system and it needs to be addressed. Every other league in the other professional leagues, they all draft according to how they finish the season.

There have been a lot of picks in the lottery that have (failed). There are two in the lottery this year that are not going to fail. There are two superstars in the draft. I think for the teams fortunate enough to get them, the fortunes of their franchises have changed forever.

West has a point. If the purpose of the NBA Draft is to redistribute talent in the most equitable manner, shouldn't the worst team get the best pick? Major League Baseball and the National Football League take that very approach, with the idea that the league product is enhanced when, at some point, every team has a genuine opportunity to become great through obtaining the best amateur talent. That idea hasn't worked in baseball because of the absence of a salary cap and because it's extremely hard to project the professional potential of amateur baseball players, but it seems to have worked pretty well in the NFL.

On the other hand, the NBA is likely worried that eliminating the lottery would give teams an even greater motivation to tank. But is that fear worth keeping teams like the Grizzlies and Celtics down for many years to come? Is the league product really better off with a weighted lottery, when Greg Oden and Kevin Durant don't go to the franchises most in need of their help? Should the sheer fortuity of how ping-pong balls come out of a machine really determine the fate of franchises for the next decade?

Tuesday, May 22, 2007


It is said that there are no atheists in foxholes, but anyone who has seen Touching the Void knows this isn't true.

Void is the true story of Joe Simpson and the hell he endured on Siula Grande which is a 20,813 foot peak in the Peruvian Andes. An accident left Simpson with a broken leg. His climbing partner Simon Yates attempted to bring Simpson down but a slip left Simpson hanging over the edge. Simon Yates was left with the agonizing choice to cut the rope or die with Simpson. Yates cut the rope.

Simpson should have died from the fall but a stroke of good fortune spared him. But his partner thinking Simpson was dead descended to base camp and prepared for the sad journey home. Simpson was in a crevasse, and no one was going to save him but himself. Would Simspon cry out to God? Simpson's response:

I was brought up as a devout Catholic. I'd long since stopped believing in God. I always wondered if things really hit the fan whether I would, under pressure, turn 'round and say a few Hail Marys and say, "get me out of here." It never once occurred to me. It meant that I really don't believe and I really do think that when you die you die, that's it. There's no afterlife, there's nothing.

In the end, there is nothing. Simpson made a decision to live, and he crawled six miles back to base camp through ice, boulders, and the camp's latrine without food or water to sustain him. It is an epic tale of survival.

But this is not merely a DVD review. This is about enduring adversity, and it comes to all of us. There is no such thing as a problem-free existence. Shit happens, and you must deal with it. And you must choose to live or die.

The biggest hurdle in adversity isn't the adversity itself but your mental approach to these things. I'm not going to launch into a Tony Robbins infomercial here. That idiot doesn't know a thing about adversity.

When it comes to hard times, you must believe in your ability to handle the shit life slings at you. You must believe in yourself. Praying won't change a thing. You are your own savior.

The second thing you have to do is believe in patience and persistence. This is how Joe Simpson saved himself. He crawled one foot at a time. He dragged himself out of that hell. Lesser mortals would have given up, but Simpson did not. He persisted.

Finally, the answer to most problems usually boils down to hard work. Nothing is really impossible. It is simply difficult, and the difficulty is that you must exert sustained labor towards the accomplishment of the goal. I'm a big believer in work. Everywhere I go in my life, I see roads, bridges, buildings, etc. and realize they were all built one piece at a time.

I just accept that I have to always work in my life. I have no plans to ever retire. This is a waste of life. I would rather burn out than fade out. And if you don't have a job, your job is to find a job. Anyone who doesn't have work isn't looking hard enough.

Adversity is no big deal. In fact, we seek it out. The reason Joe Simpson was on Siula Grande in the first place was because he wanted to be challenged. Similarly, we seek the same thing in very movie we watch or videogame we play. The basis of all entertainment is conflict. This is why we pit athletes against each other or watch an action hero in an epic film battle the bad guys. If given paradise, we would find the exit. Eden is boredom. None of us wants a trouble-free existence.

Overcoming adversity is easy. It is overcoming yourself that is hard.

Monday, May 21, 2007

SORAYAMA, unknown

Tonight's NBA Draft Lottery: Will The Tanking Matter?

At 8:30 p.m. tonight, (Eastern Standard Time, ESPN), the NBA will conduct its draft lottery. It will determine the draft order of the 14 NBA teams that did not make this season's playoffs, as those teams will be assigned a pick between 1 and 14 in the 2007 NBA Draft, which will be held on June 28. We have examined this topic in great detail over the last couple of months, particularly in relation to NBA teams tanking, or purposefully losing games for more lottery balls.

However, as the Boston Globe photo from 1997 on the left reveals, sometimes tanking doesn't work out as planned: the photo is of a Boston Celtics fan, taken in April 1997, when the team purposefully lost games (as admitted by its former GM and head coach, M.L. Carr) in order to secure the worst record and thus the best chance to obtain the presumptive first pick, Tim Duncan. (thanks to Celtics Blog, the most popular blog devoted to any NBA team, and C's fan Daniel Babbit, for the photo). Just for good measure, check out The Sporting News cover from earlier this month on the right.

Here are our writings:

SORAYAMA, unknown

Sunday, May 20, 2007

Charlie's Philosophy of Business

There is a right way and a wrong way to run a business, and this is not a matter of opinion or debate. That is because if you run a business the wrong way it ceases to exist. There are certain fundamentals to running a sound business whether large or small, and these fundamentals comprise my philosophy of business.

1. The purpose of a business is to make money.

This may seem elemental, but in an era of corporate mission statements, corporate social responsibility, "giving back," and other such leftist horseshit, the profit motive has been forgotten.

Businesses exist to make money, and there is nothing immoral about this. Businesses make money by giving people what they want. For instance, a grocer exploits my need for food while I exploit his need for money. We make a mutually beneficial exchange, and there you have it. Where is the crime?

Sadly, I hear a lot of people in business say things like "money isn't everything." It boggles the mind. Money is everything, folks. We can talk all day about "self-actualization" and "fulfillment." But the bottom line is the bottom line. It is very hard to feel fulfilled when you're out of a job or your bankrupt.

Profit is king, and those in business benefit everyone most when they focus on making a buck and not diluting their efforts with this other rubbish. Buddhism and Bolsehvism are bullshit and have no place in business.

2. The customer is always right.

This statement is misunderstood by a lot of people. Clearly, if a customer orders a pizza topped with arsenic, you will have to turn him away. But at that point, you encounter the corollary--when the customer is wrong, he is no longer a customer.

When we say the customer is always right, it is the same as saying that beauty is in the eye of the beholder. A business only creates value to the extent that customers are willing to pay for it. But sometimes, businesses become arrogant and try to dictate to the customers what they should like instead of giving them what they want. This is a mistake.

I don't waste my time trying to figure out why people will pay three bucks for a cup of java at Starbucks or why Titanic was the highest grossing film of all time. There is no accounting for taste. People pay for what they want, and it is the job of a business to give them what they want. This is how money is made.

3. The only thing a business owes its workers is a safe work environment and payment for services rendered.

In the USA, you can quit a job for any reason. You don't have to explain why you quit or anything else. Yet, businesses take considerable risks in firing workers for any reason. The threat of discrimination or wrongful termination suits makes it difficult to fire workers which then makes it difficult to hire workers. No one wants to hire a dirtbag they can't get rid of.

In Germany and France, people see a job as an entitlement. Needless to say, you can't get fired in either country. You can't get hired either which is why the Krauts and the Frogs have high unemployment.

A business is not a welfare state. Workers and unions like to think this is the case, but this is how you end up with Detroit automakers on the verge of bankruptcy. With lavish pay and bloated pensions for assembly line workers, Detroit can't compete with the likes of Toyota and Honda. And if you try to change this, the union will strike on you resorting to force to get their way. The result is that both the company and the employees suffer.

Businesses should fire for whatever reason they like. This may seem arbitrary, and there are businesses that would do this. But getting fired isn't so bad if you can get hired again tomorrow. Basically, stupid businesses would render trained personnel to other businesses who would reap the rewards. It would be no different than McDonald's delivering burgers and fries to Burger King free of charge. Dumb.

Ulimately, the price of labor is determined by the market. This is what the unions don't get. This is why I laugh when a coworker tells me what a "fair wage" is. There is no such thing. There is the wage that the market sets. If you feel you are underpaid, you are free to market your services elsewhere.

Most businesses get around the unions and lawsuits by the use of the "hatchet man." The job of the hatchet man is to go around and document infractions of company policies to use as cover. This may seem underhanded but so is suing someone for terminating you. In fairness, if people didn't sue, the hatchet man would be out of a job. But he has a job, and if you think certain company policies make no sense, that is because they aren't supposed to make sense. They exist to help the hatchet man do his job. Stupid rules are routinely ignored which can be documented as infractions when the need arises.

You work at the pleasure of the business owner. This may seem unjust, but it isn't. The business owes the worker nothing but what was agreed upon. Additional terms can be agreed upon and put into a contract. But as the NFL shows, contracts are flimsy, and their spirits violated by both sides.

The bottom line is that workers are either assets or liabilities. The ones who are assets get away with a lot more because they are important for profitability. The ones who are liabilities will be terminated no matter how much they keep their noses clean. Produce or die. This is the way it is, and the way it should be.

In conclusion, these three basic tenets comprise the core of my philosophy of business. But as I said, these are elemental. They cannot be disputed. Yet, the reason they are revolutionary is because a lot of people wish to defy these principles. They do so at their peril. It is the job of a business to make money. This will never change.

Saturday, May 19, 2007

MENGIN, Sappho

Random Thoughts on Various Subjects


The French wise up and vote in someone with a capitalist bent. This can only be good for them, but you can bet on some big time frog whining over the next five years. I can't wait for the abolition of the 35-hour work week.


I feel 75% certain Dale will be racing for Richard Childress next season. But there is consolidation going on in the sport with teams combining to pool resources. It's a different world in racing these days.


Rudy tried to put the smackdown on Ron Paul, but I think it helped Ron Paul's campaign more than Rudy's. A lot of Republicans might have been with Rudy, but the American people are with Ron Paul on this issue. Interventionism leads to blowback which leads to further interventionism and blowback. It is time to end this cycle. BTW, Giuliani needs to try reading the 9/11 Commission Report.


Landis is fighting it in court, but I fully expect him to lose his TDF title. Meanwhile, the sport of cycling is dead as a result of the doping scandals. I just wish they could get Lance Armstrong.


I won't waste my time watching these dopers either. Fuck Barry Bonds.


. . .will get her scrawny ass beat down in jail. She's a trophy for someone's mantelpiece.


Rush Limbaugh is making a big deal of this, but it can't pass until a Democrat is elected President which is a virtual certainty thanks to Iraq. Basically, the Fairness Doctrine will return AM radio to the wasteland it was when stations were required to give equal time to opposing viewpoints. Essentially, it is an assault on talk radio because it is too much trouble to deal with all the dissenters. Limbaugh and others would be out of business. Needless to say, I am against it. I wish someone would abolish the FCC.


Dolphins sleep with one eye closed. They only sleep with one half of their brains while the other half stays awake. Read all about it.


This fool:

10. DIRTY JOKE (Courtesy of Clint Monts)

Upon hearing that her elderly grandfather had just passed away, Katie went
straight to her grandparent's house to visit her 95- year-old grandmother
and comfort her. When she asked how her grandfather had died, her
grandmother replied, "He had a heart attack while we were making love on
Sunday morning. "

Horrified, Katie told her grandmother that 2 people nearly 100 years old
having sex would surely be asking for trouble.

"Oh no, my dear," replied granny. "Many years ago, realizing our advanced
age, we figured the best time to do it was when the church bells would start
to ring. It was just the right rhythm. Nice and slow and even. Nothing too strenuous, simply in on the Ding and out on the Dong."

She paused to wipe away a tear, and continued, "He'd still be alive if the
ice cream truck hadn't come along."

Friday, May 18, 2007

Yankee Stadium, God Bless America, and the First Amendment

Now that I am done grading 150 exams, I can get back to writing about important things: Answering the question of whether the New York Yankees can compel fans to remain in the seating area during God Bless America during the Seventh Inning Stretch. I first discussed this issue here and there are some good comments to that post; the original story from The New York Times (Times Select registration now required) is here; and Michael Dorf (who was quoted in The Times article) has thoughts (and some reader comments) here and here.

In the interest of shameless self-promotion: I have written about fan speech at publicly owned or publicly funded sports stadiums. In that article, I touched briefly on the vast amount of patriotic symbolism at sporting events, primarily to illustrate the import of speech occurring at sporting events. I said the following (footnotes omitted):

Fans in a public forum cannot be compelled to participate in the rituals
that attend these patriotic symbols. Rather, fans remain free to challenge the symbols by engaging in what I label “symbolic counter-speech,” counter-speech that responds to and dissents from the message expressed by a symbol or symbolic ritual using that symbol as the vehicle or medium for counter-speech and dissent. Symbolic counter-speech may take many forms. Fans may refuse to stand for “God Bless America” or may turn their backs to the flag during the anthem. Fans even may jeer one nation’s anthem as it is being played as protest against that nation or its policies.

At the time, I did not know about the Yankees' policy, thus I did not take on those particular details. But I think the above language gives a strong hint as to where my analysis would gp. Let me now get into this in more detail.

There are two separate constitutional issues. The first is whether the Yankees, by virtue of controlling a publicly owned stadium, are somehow state actors in dictating what fans can and cannot do in the stadium. This is important because, as Mike is quoted in The Times, the First Amendment only limits government, not private entities; the Yankees, as an ostensibly private organization, can exercise total control over what fans can say. Perhaps recognizing this, a lawyer for the New York Civil Liberties Union was quoted in The Times as saying that the organization would not do anything unless someone was arrested (in other words, where there was an obvious use of state authority). The second issue is whether what the Yankees are doing runs afoul of the free speech principles in the First Amendment.

State Action or Action Under Color of Law

Are the Yankees subject to the duties and limitations of the First Amendment because they are state actors in operating and controlling the stadium? The doctrine is a complex mess as to when a private entity is so closely tied to the government in some activity that the entity can be said to act "as" the government. It also requires a case-specific and fact-intensive analysis.

The strongest argument for state action is Burton v. Wilmington Parking Authority (1961). The Court there held that a private segregated restaurant leasing space in a public parking garage could be liable for violating the Equal Protection Clause in refusing to serve Black patrons. The key was the "symbiotic relationship" between government and private actor, characterized by a mutual exchange and receipt of benefits from the deal. (Totally unrelated note: I clerked in Wilmington, DE and made sure to visit that garage).

The parallel between a private business renting space to operate a restaurant in a public building and a private ballclub renting a public stadium is obvious. In fact, Burton was the basis for a district court holding in Ludtke v. Kuhn (S.D.N.Y. 1978) that the Yankees were a state actor in enforcing a rule barring women from the Stadium clubhouses during the 1977 World Series. The open question is whether Burton continues to have much meaning; Michael suggests it has been effectively gutted and not likely to have much force. It certainly represents the zenith of the Warren Court's willingness to hold private actors to constitutional limits by finding them to be state actors.

A second argument is based on the more-recent decision in Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass'n (2001), under which a private entity may become a state actor when its operations are sufficiently "entwined" with the government. For our purposes, this test might look at features such as who owns the ballpark, the terms on which the team is using the ballpark, and who is making and enforcing the relevant rules. For example, it may be relevant that Yankee Stadium is owned by the City of New York but used and controlled exclusively by the team. It also might be important that the Yankees contract with the City to use off-duty police officers as security guards, who help in blocking off the exits. The open issue with Brentwood may be how long the opinion survives--the Supreme Court this term heard oral argument for the second time in that litigation and one of the issues before the Court is whether to reverse its earlier decision on state action.

First Amendment Principles

The next question is whether preventing fans from exiting the seating area during the song violates the First Amendment. One form of symbolic counter-speech is nonparticipation in a ritual or ceremony that honors and affirms a symbol. By leaving the seating area, a fan declines to participate in the ceremony or ritual (the singing of the GBA), thereby expressing his dissent from that symbol. The Yankees policy of keeping fans in place thus eliminates one form of symbolic counter-speech.

The key to the free speech argument is that forcing fans to stay put arguably coerces their participation in the ritual, in violation of the First Amendment protection against compelled expression recognized in Barnette v. W. Va. Bd. of Educ. (1943). The argument that the Yankees acted within First Amendment confines (as Mike explains it) is that "the Yankees do not in fact require that fans sing along, only that they do not disrupt others who wish to sing or listen." The do-not-leave policy is content-neutral and likely valid as a restriction on the time, place, and manner of speech. The Yankees are not trying to keep fans in place out of disagreement with or dislike for the message fans send by leaving their seats; they only are trying to keep non-particiating fans from disrupting those who do want to participate in the ritual.

Two thoughts on this. First, there are many ways to decline to participate in a ceremony or ritual that should be protected beyond simply not singing while remaining in place. Not singing sends one message; leaving sends a somewhat different (or more overt) message of dissent; turning my back to the flag my send a different (and even more overt) message of dissent. All of them should be protected under Barnette unless the government/Yankees can show that one form affects its interests differently.

This brings me to the second point (an elaboration on a point I made in comments to Mike's post): The Yankees argument would then be that leaving (as opposed to simply not singing) is especially disruptive--a neutral reason for at least keeping everyone in the seating area, even if everyone is not compelled to sing. And disruption should be the line under Barnette. This goes off the rails, however, because I do not think the disruption argument works.

In general, it is hard to see how one (or even a few individuals) walking out "disrupts" a stadium of 55,000 people who want to stand at attention and sing. More importantly, look at the photograph that ran with the original Times story: The chains are up in the main corridor, by the exit tunnel, and some fans can be seen standing in the corridor waiting for the song to end. This means that I can get up from my seat, walk out of my row (climbing across my neighbors, if I have to), and walk up the aisle, presumably while talking with my companion--all pretty disruptive, I would guess. I can do everything but walk out the tunnel to the kosher hot dog stand, away from (and out of the line of sight of) those who remain in their seats. Of course, walking completely away from the seating area ought to be least disruptive to those remaining by their seats and singing. So the argument that "fans who want to sing have rights, too" strikes me as a straw man; my leaving does not interfere with the ability of anyone else to sing and otherwise participate in this patriotic ritual.

The point is that the Yankees are not really trying to prevent disruption of others fans caused by my moving around during the song, because such disruption is, realistically, non-existent. The Yankees are trying to prevent disruption caused by the message I send by leaving during the song. The policy now is no longer content-neutral, because it is tied to dislike for the message a fan wants to send by his nonparticipation.

This conclusion is furthered by the fact that (according to Mike, who was at a game at Yankee Stadium last week), the rule is not enforced in the upper decks. So moving around during GBA only is disruptive in the more expensive seats?

I will close on this point. In a comment to my earlier post on this subject, Peter states that "'Forced' patriotism is a contradiction in terms. If it has to be forced it isn't patriotism." Agreed. And I would go one step further: One's decision to participate or not with a cloying and poorly written song (or even a poetic and tuneful one, for that matter) at a baseball game (or anywhere else) says absolutely nothing about one's patriotism.

But if forcing a fan to participate in this ritual does not create or instill patriotism and does not really reflect patriotism, what possible reason could the Yankees have for treating its fans as a "captive audience" and forcing them to partake in this ceremony?

Thursday, May 17, 2007

This Is What a Piece of Shit Looks Like

I hope this fucker gets his ass reamed nightly by a bull queer, and they knock his teeth out so their slimy dicks can slide easily in his mouth. Have fun biting the pillow, you sorry fucker. I hope it is a long stay where you're going.

The Legal Process and Michael Vick

A few weeks ago, I blogged about Michael Vick's possible involvement in an illegal pit bull fighting ring at a home he owns in Smithfield, Virginia, and how the NFL might react. Over on East Coast Bias, attorney Jason Reddish has a thoughtful post that defends the unwillingness of Surry County (VA) Commonwealth Attorney Gerald Poindexter to charge Vick, despite pressure from the media and from Kathy Strouse, the animal control coordinator for Chesapeake, Virginia, to do so. Here is an excerpt from Jason's piece:
Ms. Strouse, apparently, has learned nothing about the judicial process from the missteps in Durham and other places. Rather than allowing Mr. Poindexter to properly develop the case and serve the interests of the people of Surry County and the Commonwealth of Virginia, she wants a public spectacle and a premature indictment. I applaud Mr. Poindexter for the poise and diligence which he has displayed in this investigation.

There's a reason attorneys handle prosecutions rather than dog catchers. I hope the national media respects Mr. Poindexter's investigation rather than latching on to Ms. Strouse's inflammatory comments.
For the rest of the article, click here.

SORAYAMA, unknown

A Coded Message for the Stunt Penis

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