Malaise and Third Year of Law School

According to a new study by Indiana University at Bloomington's Center for Postsecondary Research, third-year law students come to class less prepared, are less likely to discuss legal issues outside the classroom, and work less hard generally than their first-and second-year counterparts (Paula Wasley, "Law Students Slack off in their Third Year," Chronicle of Higher Education, Jan. 4, 2006--subscription only). The authors complied feedback from 28,000 law students about their law-school experiences; their participation in co-curricular activities, like pro-bono service or work on a law journal; their professional goals; and their levels of satisfaction with their programs of study. The actual study is available here.

So why is third year of law school an apathetic period for many law students? Are they simply burnt out? Do they find law school to be a year too long? Do they no longer care because they have jobs? Do they no longer care because they are consumed with getting a job? Do they no longer feel that they can significantly alter their GPA? Are they worried about looming debt payments? Are they dissatisfied with course offerings, and wish there were more courses that pertained to their interests?

Personally, I think wide-spread apathy is a sign that fault should lie more with the schools than the students. One possible change might be to place greater value on student course interests. Just take sports law, a course that I suspect many law students very much want to take, and one that I was fortunate to have taken (twice, actually, once with Paul Weiler and the other time with Donald Dell). Many law schools do not offer sports law or offer it only infrequently. I'm sure there are other would-be popular course offerings that seldom exist, like "film and the law" or "media and the law" or "age and the law" (I would at least find those to be interesting courses).

Why do you think third-year law students become so indifferent toward law school, and what can be done about it?

Update 6:00 PM: Would a fourth-year of a law school cure the third-year malaise? Professor Gregory Bowman thinks so.

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Sacrificial Gyro? Pete Carroll's Big Fat Greek Recruiting Methods

University of Southern California compliance officials are investigating allegations that its football team--losers of last night's Rose Bowl--have surreptitiously used the Papadakis Tavern in San Pedro, California as a recruiting tool under the guise of a school-informational forum. (Gary Klein, "USC Starts Recruit Inquiry," Los Angeles Times, 1/1/2006). The Greek restaurant is owned by John Papadakis, a former USC linebacker who is active in alumni and athletic affairs.

So what happens when USC recruits show up at the Papadakis Tavern? Allegedly, they are entertained by belly dancers, music, food (obviously), and, of course, the traditional breaking of the plates. Mr. Papadakis is also said to deliver "passionate" speeches about the USC football program, although in his defense, he claims that he entertains recruits of several Pac-10 schools, and he denies endorsing any of the schools. As a former USC player, Papadakis is considered a "representative of athletic interests" on behalf of USC, which, among other things, precludes him from recommending the school to its recruits.

Even assuming the "worst" of Papadakis, are we really to believe that former players of college football teams do not routinely champion their schools, or at least provide favorable advice? Just think: if you were a superstar high school football player deciding between top college programs, whom might you turn to for more information about those programs? I wonder . . . might you turn to former players on those teams? Oh the horror. I only wish the NCAA could prevent every high school senior admitted into college from speaking with graduates of that college, or every law school admittee from speaking with graduates of their accepted law schools. Heck, maybe we can prevent every former person of every organization from speaking with anyone who might enter their former organization. That would accomplish so much.

Really, is Mr. Papadakis such a bad guy? A former college football player who speaks favorably about his college team just doesn't strike me as someone out-of-the-ordinary. If he were buying Corvettes for recruits that would be another story, but provided USC pays for the meals and entertainment (and assuming those meals/entertainment adhere to other NCAA rules), I just don't see the outrage. I also don't see how the "representative of athletic interests" rule is enforceable in most settings--I know the government can wiretap phones, but I don't think the NCAA can.

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Legal Aftermath of New NBA Age Limit

Travis Sawchik of the Myrtle Beach Sun News has an extensive piece on the effects of the new 1-year out-of-high-school age limit on premiere high school basketball players. (Sawchik, "The Waiting Game," Myrtle Beach Sun News, 12/29/2005). If eligible for the 2006 NBA Draft, it is widely-presumed that Greg Oden (pictured to left) would be the first pick, and Thaddeus Young would likely be a top 10 pick as well. Absent a legal challenge, of course, these players will not be eligible, as the NBA and NBPA collectively-bargained away that possibility (and neither these players nor their families had a seat at the bargaining table).

I was interviewed for this story regarding a potential legal challenge. Though the new provision was collectively-bargained, that does not accord it absolute immunity from legal scrutiny (especially if a prospective challenge is heard in a different federal appellate court of appeals than the U.S. Court of Appeals for the Second Circuit, which heard Clarett v. NFL). Also, a prospective lawsuit by a high school player or group of high school players should be considered materially different from Maurice Clarett's lawsuit, since we've already seen high school players jump to the NBA, and they average more points, rebounds, and assists than the average NBA player or the average player of any age group. I also express a philosophical opposition to legally treating monopsonistic leagues and exceedingly-wealthy players the same as competitive companies and working class union members. We're not even comparing apples and oranges; it's more like caviar and fruits.

"Clarett had to argue a hypothetical," McCann said. "Basketball players wouldn't have that issue; basketball has had 10 years of data. Basketball players can say we're not arguing a hypothetical. We have gone to the NBA and have had success."

According to a research paper written by McCann and published in the Virginia Sports and Entertainment Journal, an NBA player who jumps from high school can make up to $100 million more during his career than if he earned a college degree first.

McCann also questions the legitimacy of pro sports unions bargaining away future players rights.

"There is incentive for existing players to watch out for their own interests," McCann said. "It's one thing if you have a union of factory workers ... but sports leagues are monopolies [monopsonies, more precisely], you can't play anywhere else for similar compensation."

So should the law treat Ford Motor Company, one of many automakers, the same as the NBA, which has no rival? And should millionaire NBA players, whose average career lasts just four years, be treated the same as Ford assembly-line workers, who might work for 45 years and never earn what some NBA players earn in one year?

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Can Player Statistics Be "Owned"?

Over the weekend, the LA Times featured an article outlining the debate between fantasy baseball leagues and Major League Baseball. In essence, MLB is claiming a right to the intellectual property of player statistics and is demanding that fantasy leagues obtain a license to use these stats. One fantasy league has responded by suing MLB, seeking a declaratory judgment that baseball has no right to the statistics. The issue, of course is money -- specifically the hundreds of millions of dollars spent on fantasy sports each year.

Sixteen million Americans played these games during 2004, spending about $200 million on league registration fees, according to the Fantasy Sports Trade Assn. Some leagues now offer a $100,000 grand prize.

CBC argues that it has a right to use statistics without obtaining a license.

"What we're dealing with is historical data," said attorney Rudy Telscher, who represents CBC. "The minute a game is over, these are historical facts. And, to my way of thinking, the public ought to be able to use historical facts without having to compensate players or the league."

The 1st Amendment protects the right of media companies and others to use game statistics to tell the story of a game from the first pitch to the last out, or from tipoff to final buzzer.

Baseball, in court filings, maintains that intellectual property law makes it illegal for the fantasy league operator to "commercially exploit the identities and statistical profiles" of big league players.

(Johnson, "Suing over Statistics," LA Times, 01/02/06). MLB does not appear to have a strong argument in this case. While the recordings of the games themselves are protected, statistics are just one way of reporting what happened in the game, only using numbers instead of words. And what of the many statistical formulas that were invented by Bill James of Stats, Inc., and Pete Palmer of Total Baseball? Can MLB claim ownership of these stats?

MLB's case appears to be another attempt to abuse intellectual property law for monetary reasons. Intellectual property is not "real" property -- it is not owned. It should be a license granted by the law to reward inventors and creators and give them a temporary right to capitalize on their creation and thus, encourage more creation. MLB has not created anything in this case, so why should the law allow the league to profit?

UPDATE: As Alan Schwarz points out in the comments and in his excellent article in Legal Affairs ("$tats," Nov/Dec 2005), the issue is whether the players' names can be associated with the statistics for commercial gain. This legal question, termed the 'right of publicity,' allows celebrities to prevent their names and likenesses being used without permission for commercial gain.

One example is the Yogi Berra v. TBS lawsuit from last year (2/2/05) (the suit dealt with other issues as well). Another is the suit between Tiger Woods and an artist that depicted him in a painting of historical golf moments, discussed in a 4/1/05 post.

This leads me to another question: what if the fantasy leagues did not use a player's name or a likeness? For instance, what if my fantasy NBA team had LAL #8 and CLE #23, along with the associated stats? Would this violate the right of publicity? There are certainly celebrities associated with those numbers, but is this enough? And if so, where is the line drawn between the right of publicity and the right to gain from public information?

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Is NASCAR Killing Hunting?

In the current issue of Washington Monthly, Christina Larson examines why hunting has diminished in popularity over the last decade. (Larson, "The End of Hunting?," Washington Monthly, January/February 2006). In some states, like Iowa, the number of hunters has declined by as much as 25 percent. Nationally, over the past two decades, the percentage of American "sportsmen"--men and women who hunt or fish--has tumbled from 26 percent to 18 percent; the absolute number of sportsmen has fallen from 50 million to 38 million.

Larson identifies land access, or lack there-of, as the primary reason for the decline: a combination of suburban sprawl and heightened suspicion of gun owners have made it more difficult for hunters to find land to hunt on, and that has animated a number of them to hang up their guns. In passing, she also mentions the growth of NASCAR, and observes that it has grown precipitously at the same time hunting has declined. I should be clear: Larson does not posit the growth of NASCAR as a reason for the decline of hunting. Just the opposite, actually, she characterizes NASCAR's surging popularity as a possible reason why hunting won't become extinct (with the presumption, I guess, that hunters and NASCAR fans are often the same or have much in common).

But I wonder if the contemporaneous decline of hunting and rise of NASCAR are somehow connected? Do persons who would have previously gone hunting now find watching NASCAR to be the more enjoyable leisure activity, or are these two sports sufficently unrelated? And are NASCAR fans really the same guys (and gals) who go hunting, or is that a classic case of Northern bias?

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Johnny Pesky on Life Without a MLB Draft

Last week, Alan Milstein proposed that the NFL Draft be eliminated. He examined its anti-competitive effects and noted how troubling most of us would find it if we couldn't pick our employer or even location of employment. A number of commentators argued against this position, claiming that big-market teams would dominate the signing of amateur players. Earlier today, I happened to be reading an interview with former Red Sox great Johhny Pesky, for whom Fenway Park's "Pesky Pole" is named. His response to a question by David Laurila of Red Sox Nation reminded me of last week's debate:

David Laurila: Tell us about signing with the Red Sox [in 1940]?

Johnny Pesky: Back then, you could sign with anybody -- there was no draft yet. There were a number of teams interested in me, and some offered more money than Boston. My mother and father wanted me to sign with the Red Sox, though, because their scout brought her flowers when he came to the house -- and bourbon for my father. They were immigrants, and even though it was the Depression, that was more important than the extra money. I'm glad it worked out the way it did.

An anecdote for a time long ago? Sure. But perhaps the elimination of drafts wouldn't be the end of pro competition. Perhaps amateur players, like all of us, would think seriously about non-monetary factors in where they would play. And in the case of Pesky, those non-monetary factors happened to include flowers and bourbon for his parents.

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Where have you gone, Johnny U

Now that the regular season is over, the Colts seem poised to run through the NFL playoffs and win their first crown since . . .

How do I finish that? Is it their first crown ever? Or is it their first since 1971 when Jim O'Brien kicked that overtime field goal for my beloved Baltimore Colts, thirteen years, three months and twelve days before owner Robert Irsay broke Baltimore’s heart and stole the Colt’s away in the middle of the night.

If you’ve seen the movie Diner, you know Baltimore’s love of the Colts ran deep, approaching almost a religious devotion at a time when football took a second seat to baseball as the national pastime. Not in Baltimore. Even when the Orioles were the best team in the land, despite divine intervention in1969 on behalf of the Mets, baseball just filled time in Baltimore until Johnny U and the Colts took Memorial Stadium back in the fall.

When the Colts moved to Indianapolis, the fans were rightfully bitter. My father wouldn’t watch any football for decades. Even when Superbowl Sunday became a National Holiday, he would choose that week to vacation in the Caribbean outside the NFL’s orbit. The Baltimore Colts Marching continued to practice and show up at Baltimore events, playing the familiar “Let’s go, you Baltimore Colts, and put that ball across the line,” the tune Steve Gutenberg’s character in Diner insisted be played when he and his bride walked down the aisle. And Johnny Unitas, a Baltimore deity, announced he would not allow Indianapolis to retire his jersey (they did anyway) or claim his records (the 27 game streak with a touchdown pass still stands and will never be broken).

What did Irsay say to the fans who had given the team their devotion all those years: “It’s not your ball team. It’s my family’s. It’s mine.” What did the NFL do to prevent such injustice? Nothing. In fact, there was little it could do. When Al Davis pulled the same stunt, announcing he was moving the Raiders south to L.A., the NFL tried to stop him. He and the L.A. Coliseum filed an antitrust claim against the league and won because, the Court ruled, the league was not a single entity but a collection of separate entities that could not unlawfully combine. See L.A. Memorial Coliseum v. NFL, 726 F.2d 1381 (9th Cir. 1984). Amazingly, the league tried this same defense in the Clarett case, but that’s the one defense that failed.

So what is an old Colt fan to do? Is it time to bury the hatchet and embrace this fine team with its great coach and classy quarterback? After all, they are the Colts. They wear the same uniforms with the horseshow on the helmet.

Nah.

GO SEAHAWKS.

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