Quantity Debates and Media Neutrality on the Campaign Trail ’012
To date, the candidates in the Republican presidential primary have participated in at least seventeen televised debates. For comparison, by this time in the 2008 campaign, the GOP had held nineteen (of an eventual twenty-one) debates and the Democrats had held twenty (of an eventual twenty-six). Whether it is the revolving-door nature of the top of the Republican field or the shrinking number of viable candidates (at most, four right now), though, this exercise is beginning to feel tired to many.
The reason this feeling persists at this stage may be that, in the aggregate, the debates do not seem to be progressing. We are not really learning anything new about the candidates in this context, and repetition or representation for the sake of catering to the still-undecided or underinformed holds less weight in the age of CSPAN and YouTube. To put it mildly, these are not the Lincoln-Douglas Debates in terms of either substance or practicality.
Given these circumstances, it is not terribly surprising that things mostly have devolved to name-calling. To a certain extent, what else is left for Mitt Romney to do but call Newt Gingrich a “lobbyist”? As between the remaining Republicans, all of the issues and policy positions have been hashed out, the candidates have to say something when it is their turn in the debate, and Ron Paul and Rick Santorum aren’t exactly surging ahead by staying on message.
What is surprising, or maybe just disappointing, though, is the vanishing political media during the campaign. It is true that we look to the media for basic reporting (who, what, where, and when) first and criticism second, but here, they’re outsourcing even their primary obligations, and the reports essentially are hearsay. The basic story of the past few days goes like this: “Mitt Romney says Newt Gingrich is a lobbyist. Gingrich says Romney is dishonest.” In every report I have heard or read on this issue, the media has failed to investigate or elaborate on the ground-level issue of how Gingrich spent his time after leaving Congress. Was he working as a lobbyist? The media answers: “Mitt Romney says he was.”
That cannot be the answer, though. From a factual standpoint, it may or may not be the answer; indeed, the answer may be factually complicated. From a vocational standpoint, however, the answer must constitute something more than mere readers’ theater. I don’t think all journalists and media outlets need to make like The Washington Post’s Fact Checker– one of the services the media provides is taking the time to sift through and distil the details so the rest of us don’t have to– but some modicum of investigation would seem to be necessary.
I am not sure why so much of the media becomes static and passive when covering campaigns. While some operations, like MSNBC and FOX, may go overboard in their investigatory engagement with political stories, are others going overboard in their attempt to present an image of neutrality? In a short, dense post last week, Eric Freeman wrote that the political media’s coverage of campaigns and politics mirrors sports media’s coverage of athletes and athletic contests. Freeman doesn’t directly answer the why question posed here, however, but he may shine some light on a possible answer.
Critics of news media often say that political coverage is unsatisfying because the networks and other outlets focus too much on entertainment. Television, radio, and print media must raise money to operate; advertising is a good fundraising technique; advertising is worth more if the audience is larger; a good way to increase audience is to present stories and other material that is entertaining, sensational, and otherwise attention-grabbing, even if it ultimately proves light on substance. While there seems to be some truth in the general capitalist tale that consumers are catered to based upon their interests but also are told what their interests should be, Freeman’s analogy suggests a simpler story that doesn’t involve news corporations duping their audiences: we look at and understand politics the way we look at and understand entertainment, and our news media therefore covers politics like others cover entertainment. CNN’s coverage of the primary debates sounds like The Soup‘s coverage of The Real Housewives of Atlanta. The most cutting commentary on campaigns comes from the comedians at Saturday Night Live. Comedians can be excellent, substantive social critics, see supra, here (penultimate paragraph), but SNL gets mileage out of playing up the candidates gaffes, not internal inconsistencies in policy proposals. “Undecided” GOP voters who say they need more debates to make up their minds really are asking for the networks to pick up Episode 18 of this season of The Real Candidates of the Republican Party. At this point, the set of options is defined, closed, and known; for the truly undecided, all the answers must come from within.
“Angel” from Grand Rapids
I have written before about compassion, see, e.g., here and here, and while a simple example sometimes can serve as a basic way of illuminating a concept that requires little additional commentary, a second-level example almost always will. Such an example was buried in USA Today’s coverage this week of a story that started when someone went to a Kmart store in Grand Rapids for the purpose of anonymously paying off shoppers’ layaway accounts and others around the country began to follow suit. The following part of the story appeared in the final paragraph of the print edition’s version of the article and is tucked in the middle of the online version:
Lori Stearnes thought it was a joke when a Kmart in Omaha called to tell her that someone had paid the $58 balance on her account, which included toys for her youngest grandchildren. “It was a shock, of course, and then it just made me feel warm and fuzzy,” she says. Stearnes went back to Kmart and used the money she had set aside for the gifts to pay off two other layaway accounts.
Judy Keen, “Mystery donors paying off layaway accounts for needy,” USA Today (Dec. 21, 2011). Compassion in action requires little elaboration; repetition is welcome, however, and it doesn’t take an angel to do so.
Year in Review, Take Two
One yearTwo years ago today, I started this site with the following statement: “An attorney should always put a statement of the questions presented at the very beginning of any brief unless the rules forbid it.” In that opening post, I tried to map an approach that would guide content then unwritten:
… Setting aside the notion of persuasion, the judicial posture is a useful one for approaching the world.
On the national level of the American governmental apparatus, judges usually are considered passive entities. A court cannot reach out and take or create a case that is not properly before it, nor can it concoct a set of hypothetical facts and issue a decision based on those facts. Most of the time, courts cannot even rule on arguments or contentions the parties do not raise. This detached position encourages patience and allows one to receive an orderly presentation of considerations before making a decision. And judges must make some kind of decision. Judges are passive in posture, though not in nature. At the very least, they must issue a judgment– a verdict, decision, or ruling. By convention or rule, they need to be prepared to defend their decisions verbally or in writing. This requirement of eventual and substantial action reinforces and enhances the passive phase and its attendant values. Knowledge that one must later decide focuses the passive mind and encourages patience to allow for a full understanding of the matters at hand. There is mutually reinforcing energy between listening and deciding such that nothing is mere talk, and chatter has little purpose. As usual, time is a foundational consideration: listen, then decide, then defend, and then listen again.
Resource limitations are a part of our condition. When we choose to utilize our limited resources, we want to do so effectively. This applies to mental resources as much as it does to fuel and finances. Regardless of a resource’s renewability, other limitations will constrain its expenditure or utilization. Efficacy and efficiency are the best responses to this fact of limitation, here represented by the phrase “in the real world.” Many scholars are feeding their families today because of their ability to operate (in varying degrees) detached from the real world. Ideas are important. Theory is important. That’s the point of what you are reading and will read here. The seemingly unavoidable limitations on resources demand that we root ourselves in reality, while allowing ourselves to discuss, critique, and reevaluate that reality. This is a chance to find out what happens when keeping it real goes right.
What about the questions presented? Wasn’t that where this was supposed to begin? It was, and it is. Justice Scalia and Brian Garner emphasize the primacy of questions presented because those questions shape everything that follows. I’m not exactly sure what will follow, but I have some ideas and I know you do too. It’s time to start asking questions that matter.
My goal has been to try to ask real questions, not leading or rhetorical ones, in an attempt to reveal something about what underlies our assumptions, ideas, and viewpoints. I’ve tried to at least imply a question in every post, and where I did not, my approach was to put forth a position that invited responsive comments, of which the site received many. With nearly 3,500over 9,700 views in the first yeartwo years, I think we’re off to a good start.
Thank you for your readership and feedback.
Behind the Curtain: Class Actions and the NBA Lockout
I have written before about class actions, the most popularly familiar form of aggregate dispute resolution. See here; see also here. They are one of the most interesting areas of legal procedure because they are relatively new and, as a result, still developing in meaningful ways. Class actions are a creation of Federal Rule of Civil Procedure 23 (and subsequent state analogues), enacted in 1966, nearly thirty years after the enactment of the general, modern Federal Rules of Civil Procedure, and three interacting planes of activity guide their development. There is a constitutional level: the Constitution’s due process guarantees constrain the dispute-resolution process. There is a rule-based level: the class action, so different from traditional, one-on-one litigation, is a creation of Rule 23. (I also would put other legislation, like CAFA, on this level.) And there is a “business” level: the motivations of the litigants, which often are or act like businesses, sets up, drives, and shapes (through developing litigation strategies) the judicial interpretations of the Constitution, Rule 23, and other legislation, and even triggering new legislation. There are any number of reasons why this area might be called “complex litigation,” and the ever-shifting, interactive push of these three levels of activity certainly creates complexity.
Class actions have been in the news lately, first with the lawsuits filed against law schools by former students, and, more recently, the antitrust complaint professional basketball players filed against the NBA. David Boies, the high-profile litigator who previously represented the NFL against the class of football players that sued it this summer and Jamie McCort in her divorce from Los Angeles Dodgers owner Frank McCort, is serving as class counsel in the players’ class action against the NBA.
In an interesting publicity move, Boise and Billy Hunter, leader of the now-disbanded players’ union, held a small press conference with twelve members of the media last Tuesday to discuss the players’ case against the NBA. Boies apparently walked through the complaint with those present and offered his commentary and legal strategy explanations. While he certainly was posturing with the public (no doubt Hunter’s aim in calling the meeting), Boies’ remarks hit on a number of class action legal issues. Jonathan Abrams, on Grantland‘s Triangle blog, has helpfully presented Boies’ comments in context with relevant portions of the complaint itself. It’s a bit lengthy, so rather than reprint it here, I encourage you to read it in full: “NBA Lockout Talking Points From The Players’ Attorney.”
One of the first things Boies mentioned was the issue of forum selection. To have the authority to hear a case, a court must have jurisdiction. Often, however, there will be more than one court that could properly exercise jurisdiction over a case, and that secondary distinction is termed one of venue. Plaintiffs often have a choice of venue, or forum, and the decision operates on multiple levels. There is strategy involved: even though the case is in federal court, the federal court may be required to apply certain aspects of state law, so geographic location becomes important. Similarly, if the trial is to be before a jury, plaintiffs may find they prefer juries in certain states over those in others. Plaintiffs also may be angling toward certain judges if they are known to be expert (or not expert) in a certain variety of procedural or substantive law. The cosmetics also matter: where outside perception is relevant, where a plaintiff sues can affect appearances in the mind of the public. Any number of other factors may influence the decision of where to sue, and Boies’ statement on forum selection hit on a few of them:
There were a number of people who wanted to be in California. Billy [Hunter] has a great fondness for Oakland. He lives out there. One of the key representatives, Mr. Powe, is a resident out there in Richmond, California, which is in the Oakland division of the Northern District of California. I also think that we think that district has a practice in moving cases along very quickly. They’ve got a lot of expertise in antitrust cases and we think it will be a good forum for us to proceed with this lawsuit.
A major issue in class action litigation is defining the represented class. Because class actions almost always settle once the court certifies the class, the certification stage is the real battle. The defendant’s aim, therefore, is to show that the group of plaintiffs lacks the cohesion required for certification under Rule 23 by emphasizing the differences in the situations of the would-be class members. Conversely, the plaintiffs will try to emphasize commonality and similarity across the proposed class. When there are undeniable differences, plaintiffs have other techniques, including the creation of subclasses. In the NBA suit, the complaint names the plaintiffs as “Carmelo Anthony, Chauncey Billups, Kevin Durant, Kawhi Leonard, Leon Powe and all those similarly situated,” and Boies explained:
I think it was people who believed they wanted to participate as plaintiffs and there were people whose lawyers believed would fairly represent the interests of the class. For example, although it’s not actually a legal requirement necessarily, in general when you’ve got a class action, you want to have a mix of people. For example, one of the subclasses in the complaint are players under contract because players under contract have particular claims that are based on the fact that the owners got together and all agreed that they would breach those contracts. So they have a certain set of claims. You then have NBA players who are not under contract and they have many of the same claims, but some different ones. And then you have the so-called rookie subclass of people coming into the league.
The remainder of the remarks from Boies and Hunter and excerpts from the complaint deal with the substantive law and factual history of the dispute. It’s a neat way to catch up on what’s been happening with the NBA labor dispute and get a sense of where it may go from here, at least as far as the litigation is concerned. Even if you don’t like watching the NBA, I recommend the NBA lockout– it’s much more interesting and entertaining.
Herman Cain and the Right-Libertarian Conundrum
I caught Piers Morgan’s interview of Republican presidential candidate Herman Cain last month. It was the first time I had heard Cain speak, and I was surprised at the strength of the libertarian strain in his views. He neither labeled nor cleanly presented his positions as such, but Cain made clear that he does not think the government has a role in private-sphere, individual decisions like abortion. Cain personally thinks things like abortion and same-sex marriage are wrong, but he doesn’t think the (federal– he’s running for president) government should be making such decisions for people.
Theoretically speaking, there are two types of libertarians– Left and Right libertarians. The former believe that economic equality is required for people to be free; in other words, they must have (approximate) equality of condition and freedom from basic want to be able to pursue the good life on their own terms. The latter, by contrast, believe that equality of opportunity is what is important, and that legal and economic independence (rather than equality) is required for freedom. Right libertarians tend to hold socially conservative preferences as a personal matter but do not seek to impose those views on others.
The trouble for libertarians comes when their personal views conflict with their political views. Abortion is a prime example. Social conservatives think abortion is wrong because it is tantamount to– or is– murder. As libertarians, however, they say that the government ought not infringe on a woman’s right to chose whether to have an abortion. This brings the key tenet of libertarianism— the right of each individual to pursue, free from government intervention, his or her own definition of the good life– into conflict with the equally important limitation on that key tenet– one’s actions in pursuit of one’s self-defined good life cannot infringe on another’s pursuit of the good life. Killing would qualify as such an infringement. If aborting a fetus is the same thing as killing any other human being, it is impermissible under the tenets of prevailing libertarian theory.
Yet most libertarians, Right and Left, oppose government restriction of abortion rights. For Left Libertarians, this isn’t too problematic. The policy view matches their underlying personal view that a woman’s right to choose prevails. For Right Libertarians, though, the problem is as described above.
This mismatched situation appears to be due to Right Libertarians’ utilization of both “definitions” of the abortion issue. While “right to choose” and “right to life” commonly are seen as two ways to describe opposing views on abortion in positive terms, Right Libertarians employ both descriptions: their political, policy view is that abortion is about a woman’s right to choose, but their underlying, personal view is that abortion is about an unborn human’s right to life. When confronted with this apparent inconsistency, can Right Libertarians really square it by replying that it’s appropriate to apply one view of the issue at the public policy level and the other at the personal level, given the seeming fundamentality of the rationale for their personal, anti-abortion view? Criminal law generally allows for different degrees of homicide, but categorically, killing is killing, and if abortion is killing, a political theory that allows people to treat as not a killing an act simultaneously believed to be a killing may not be as robust as it initially appears.
LST Speaks Out On Recent Law School Class Actions
Plaintiff classes of recent graduates have brought suit against more than a dozen law schools across the country, including Thomas Jefferson School of Law in San Diego, New York Law School in Manhattan, and Thomas Cooley Law School in Michigan (Miami, FL campus coming soon!). The directors of Law School Transparency published a column in yesterday’s New York Post commenting on the suits and the larger state of legal education:
These problems affect more than just the legal profession. This year, ABA-approved law schools will get at least $4 billion in taxpayer support, thanks to the government’s decision in 2010 to directly lend to students. But when graduates can’t find jobs that allow full loan repayment, they either default or sign up for hardship programs. The taxpayers are on the hook for the lost interest income and unpaid loan principal.
…
In all of this mess, one thing is for sure: Continued pressure from lawsuits, Congress and other reform advocates will push law schools to honestly evaluate the American legal-education model. And reimagining a broken model will take a lot more than simply getting people their day in court.
Kyle McEntee & Patrick J. Lynch, “Do law schools defraud students?,” New York Post (Oct. 11, 2011). Read the full column here. More on LST here. More on legal education here.
Hail “Hitler,” the Most Powerful Word in the English Language
Just hours before this week’s meeting between the Indianapolis Colts and Tampa Bay Buccaneers on Monday Night Football, Hank Williams, Jr., the face of the program for twenty-two years– more than half its existence– was a guest on the Fox News program Fox & Friends, talking politics with the show’s hosts. Early in the interview, Williams referenced President Barack Obama, Vice President Joe Biden, House Speaker John Boehner, and Ohio Governor John Kasich’s golf outing this summer, calling it “one of the biggest political mistakes ever.” Why? “It turned a lot of people off. . . . That’d be like Hitler playing golf with Netanyahu.” Williams went on to clarify that Obama and Biden are “the enemy” and endorse Republican presidential candidate Herman Cain. At the end of the segment, Williams confirmed that he used “the name of one of the most hated people in all of the world to describe the President.” The discussion apparently transitioned to sports after that. The first portion of the segment:
Williams later apologized, saying his comment was “misunderstood”:
My analogy was extreme – but it was to make a point. I was simply trying to explain how stupid it seemed to me – how ludicrous that pairing was. . . . Working class people are hurting – and it doesn’t seem like anybody cares. When both sides are high-fiving it on the ninth hole when everybody else is without a job – it makes a whole lot of us angry. Something has to change. The policies have to change.
I have always been very passionate about Politics and Sports and this time it got the Best or Worst of me. The thought of the Leaders of both Parties Jukin and High Fiven on a Golf course, while so many Families are Struggling to get by simply made me Boil over and make a Dumb statement and I am very Sorry if it Offended anyone. I would like to Thank all my supporters. This was Not written by some Publicist.
(HT: @jwg31)
After Williams made the analogy on the program, a lot of his rowdy friends (but not all of them) started to back away from him. ESPN, the network that currently airs Monday Night Football, announced that it would not run his opening segment before that night’s game. It is not clear when or whether broadcast of the segments will resume.
Adolf Hitler, the German leader who rose to power in the mid-1900s, presided over the Holocaust and directed Germany’s efforts in World War II is, for many, the human embodiment of evil, and his last name is perhaps the most common, universally understood shorthand reference to evil. A comparative study in vileness probably is unhelpful, at least here, and Hitler undoubtedly ranks near the worst of humanity’s worst, although there unfortunately are a number of options. It seems clear, though, that he is the most infamous terrible person of the terrible lot.
This may be due to our temporal proximity to his life– there are living veterans of WWII and living Holocaust survivors– but I don’t think so, and not just because we have seen evil leaders since Hitler’s death who failed to garner the same cache for evilness. Most all historical figures eventually become caricatures because it is too difficult to compress lives, often long and complicated, for later, disembodied understanding. What’s happened with Hitler seems to be different and rarer though, additionally notable because of the short time in which it has occurred. More (less?) than a label for a caricature, his name has become a word unto itself, or nearly so. “Hitler” has become a synonym for “evil,” not merely synonymous with it. Upon hearing the word, one does not think of the man or retrieve a mental image of his face; rather, one only thinks of the concept of evil, as if one had heard the word “evil.” Overuse has not cheapened or diminished the awfulness of the historical Hitler, as Jon Stewart argued. As the reaction to Williams’ analogy demonstrates, the strength of the reference persists, and the ease with which people can use “Hitler” illustrates the linguistic distance between the word and the man.
This separation is notable for its rarity (though not its exclusivity, cf. Ponzi), and for its extremity. With the probable exception of one other word, uttering “Hitler” is more likely to get you into hot water than anything else, particularly when used in a descriptive way, as discussed above.
The purpose of this post is not to humanize Hitler or justify uses of “Hitler” but to observe that his name has become a word, and indeed one of the most negative words in the English language. (Even writing publicly on the topic I am filled with the feeling that I need to include a sort of disclaimer like the preceding sentence.) Nor is the purpose to defend Williams– he just happens to be a recent, visible example– although his defenders, including the hosts of The View, certainly have viable arguments. See supra. All that’s left, then, is to invite you to share your thoughts, particularly on the word-usage issue, in the comment section below and look back at the genesis of the now-troubled marriage between Bocephus and Monday Night Football:
First Monday, 2011
As we are reminded today, “The Supreme Court shall hold at the seat of government a term of court commencing on the first Monday in October of each year and may hold such adjourned or special terms as may be necessary.” 28 U.S.C. § 2.
October Term 2011 begins today at 10:00 am. Notes on cases expected to find their way onto the Supreme Court’s docket are available here. Professor Jonathan Adler’s explanation of why this could be the most important Supreme Court term in decades is here. Mike Sacks, now of the Huffington Post, has more coverage here.
Guest Post: How Much Doubt?
My newest co-writer over at ALDLAND, commodawg, shared his feelings on last night’s execution of Troy Davis, who was convicted of the 1989 murder of a Savannah, GA police officer:
How Much Doubt?
Stuck working late in the office last night, I found myself compulsively reloading the Atlanta Journal-Constitution page chronicling the minute-by-minute developments in the Troy Davis proceedings.
For those of you not familiar, Troy Davis was found guilty of murdering an off-duty police officer in Savannah and sentenced to death. Since then, a majority of witnesses have recanted their testimony, including one who testified that Davis had confessed to him. Multiple problems with the police investigation, including police coercion and a lack of physical evidence, as well as Davis’ defense, have been uncovered. At least one juror has said he would have voted against conviction. Even former Texas judge and FBI Chief under Reagan, Bush, and Clinton, William Sessions, called for a stay of Davis’ execution.
Despite these developments, Davis was not given any reprieve, as the Georgia court hearing his case required not that he demonstrate that there was reasonable doubt in the State’s original case, but rather that he clearly establish his own innocence. The court found the recantations and other exculpatory evidence unequal to this task, and the various appellate courts eventually upheld that determination.
Last night, as Davis’ lawyers tried unsuccessfully to avoid Davis’ 4th scheduled execution, I had a sinking feeling, and it was one that only deepened with the inevitable news that Davis had been executed after the U.S. Supreme Court denied his last minute plea.
Without much time to dwell on it last night, two pieces this morning brought a little more clarity to my feelings of angst. First was a little rant on the legal blog Above the Law. By far the more polemic of the two, it calls attention to the fact that people are getting lost in the question of Davis’ guilt or innocence, and not in the fact that execution is simply a form of state- and society-condoned murder. It certainly jived with my own stance on the death penalty (and who doesn’t love positive-reinforcement?). The second, a piece on Slate, took a more academic approach, asking to what extent we’re willing to sacrifice the certainty of knowing we’ve reached the correct verdict (in this case, convicting the right individual) for the goal of providing finality to the judgment and closure to the victim(s). How much doubt is too much? How much error — and there is no denying that errors occur — is acceptable?
Regardless of your stance on the acceptability of capital punishment in theory, are cases like Davis’ (or Cameron Todd Willingham’s) ever enough to dissuade you in practice?
More from commodawg here.
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