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.
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:
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.
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:
I launched ALDLAND, a new blog about sports and culture, this morning. My hope is that it will develop into a multi-author site that’s both more frequently current and less frequently serious than the material that usually appears here. I fully intend to continue writing here as usual, and, as this site surges past 8,000 overall page views today, I am grateful for your continued readership.
An introduction to the new site, and the first day’s posts are available at http://aldland.wordpress.com.
Yesterday, voters inducted two former players, Roberto Alomar and Bert Blyleven, into the Baseball Hall of Fame. While the primary subtext to the story about the 2011 class has been the low number of votes players tied to steroids– including Mark McGwire and Rafael Palmeiro– received and the implication that players associated with performance-enhancing substances might never make it into the Hall of Fame, ESPN’s Rob Nayer is looking ahead to 2012:
Given the history, there’s a pretty good chance that the Veterans Committee process won’t elect anyone [in 2012]. Which leaves only the BBWAA [the Baseball Writers Association of America, the main voting body for Hall of Fame induction] ballot, and there is an excellent chance that the BBWAA will, in all its collective wisdom, fail to elect anyone.
Yes, “fail” is a loaded word and not necessarily the appropriate word.
In this case, though, it’s highly appropriate. Because even after electing Alomar and Blyleven, and even considering that Bernie Williams will be the best new candidate on the ballot next year, there will still be a long list of highly qualified players on the ballot. And it’s quite possible that none of them will be elected.
A memberless 2012 class would be a failure in Nayer’s eyes because it would be “a bad year for the Hall of Fame.” This may sound like a tautology, but he meant something more specific: “For one thing, the Hall of Fame (and the Village of Cooperstown) relies on visitors, and visitors are attracted by new Hall of Famers; the Hall’s biggest weekend (by far) every summer is Induction Weekend. For another thing, it hurts the credibility of the election process — and ultimately the Hall itself — when the process so obviously fails.” For Nayer, this failure has two aspects. First, a memberless class would be a failure on its face because it would mean that no eligible players that year were worthy of induction, an outcome Nayer rejects because, in his view, there are plenty of eligible players worthy of induction. Second, it would be a failure because it would adversely affect the economic interests of the Hall of Fame and its host city, Cooperstown, NY.
Considering these in reverse order, the economic argument seems like a non-sequitur. Exciting new inductees may boost the Hall’s revenue in a given year, but over time, the Hall’s ability to draw visitors would seem to be based on its ability to maintain its integrity as a hall of fame. Even if pandering to popular whims is the best way to fund the Hall under its current business model, a commitment to mission and integrity (something apparently at the root of many BBWAA voters’ positions on players like McGwire and Palmeiro, for example) might suggest the need for more independent funding sources. The obligation to Cooperstown’s economy is even more remote to the Hall’s purported mission.
Second, it is not obvious that a result in which the voters elect no players to the Hall in a given year plainly is a failure. It may be the case that, despite Nayer’s opinion, no eligible player will be worthy of induction in 2012. Nayer views the election in 2012 of Barry Larkin, “the top non-electee” in 2011, as the best and most likely way to avoid the “Doomsday Scenario” or “Epic Failure” that would be a year in which the voters induct no one. If it is true, as Nayer writes, that there are deserving players on the 2012 ballot and the voters don’t induct them for nefarious or otherwise inappropriate reasons, then that result does look like a failure, something that impairs the Hall’s integrity and credibility. Neyer is but one among hundreds of voters, however, and it may be the case that the result he describes as an “Epic Failure” is the very result that would best uphold the Hall’s integrity. If none of the eligible players deserve induction in 2012 in the eyes of the voters writ large, then to induct one would be a dereliction of the voters’ duty.
When entities are created for the performance of a particular task– Congress, to legislate; prosecutors, to prosecute accused criminals; the BBWAA, to elect Hall of Famers– the entity’s exercise of discretion not to perform that task in a particular instance often is viewed as a failure, probably because it appears to conflict with the natural proclivity of the entity’s job description, which is thought of in positive, volitional terms. Are there times, though, when such an entity’s decision not to act in a manner in which it is empowered to act is the proper decision, and is Neyer’s 2012 “Doomsday Scenario” one of these times?
Tiger Woods has all but disappeared from the news in recent weeks, displaced by stories about health care legislation, late night comedy, and the earthquake in Haiti. Before the golfer dropped out of the headlines, however, Fox News’ Brit Hume went on television to offer Tiger some advice:
Tiger Woods will recover as a golfer. Whether he can recover as a person, I think is a very open question, and it’s a tragic situation with him. He’s lost his family, it’s not clear to me whether he’ll be able to have a relationship with his children, but the Tiger Woods that emerges once the news value dies out of this scandal, the extent to which he can recover, it seems to me, depends on his faith. He’s said to be a Buddhist, I don’t think that faith offers the kind of forgiveness and redemption that is offered by the Christian faith, so my message to Tiger would be “Tiger, turn to the Christian faith, and you can make a total recovery and be a great example to the world.
Imagine if a Jewish commentator had taken to national television to say that a popular Christian adulterer should really consider converting, because “the Christian faith’s emphasis on forgiveness provides an ethical get-out-of-jail-free card that contributes to these sorts of transgressions.” Or if a Muslim suggested that a Protestant cheater should consider a conversion to a “rules-based religion. Christianity, sadly, erred when it focused on man’s relationship with God rather than God’s laws for man.”
In either case, said commentator would resign within a day or two. But Hume will certainly survive this controversy. Remember that next time someone complains that we’ve lost our identity as a Christian nation. Frankly, we haven’t lost nearly enough of it.
Taking Klein’s invitation to imagine, I don’t think any of these statements, including Hume’s, are offensive. There may be some sense in which these statements would be inappropriate because they came from a news journalist, but Klein more appropriately asks us to consider the statements as being those of “commentator[s].” Commentators engage in editorializing– there is little doubt that this is what happens on cable news networks– especially those individuals not in traditional newscaster roles.
As long as these statements (Hume’s and those Klein proposed) are genuine, meaning that the speaker is honest, meaningful, and desirous of the outcome behind the means prescribed, we should not find them objectionable. We should not be surprised that Hume, (presumably) a Christian, thinks that the tenets of his religion offer a positive, redemptive path for Tiger. If Hume is genuine in offering these observations, why should we reject him? His critique of Buddhism may ring uninformed, but in general, one ought to be able to speak frankly about other religions, and to the point here, Hume’s critics have seized on the core of his statement, not his remarks about Buddhism. This same line of thinking applies with equal force to Klein’s imagined commentators. In the public forum, honesty should guide our discourse, whether we’re talking about policy, religion, or sports.