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For Want of a Better Protest

August 31, 2017 Leave a comment

Seven years ago, I wondered here whether America might be in need of a more meaningful, perhaps even physical, flavor of civic engagement. Stretching a bit, perhaps, I wrote:

The peak of this time of civic unrest, the late 1960s, has become an archetypical reference point for much of the subsequent civic and political action. The question now is whether this model has been stretched too thin, overused, and, in a certain way, too peaceful, in the age of the internet. Is web-based “social networking” the sort of engagement and participation that would impress TocquevilleKennedyKingPutnam, or Armstrong? Are 140 characters enough for a meaningful treatise? Can a Facebook.com group change the world? Or should we just grab a groupon and plan our revolutions face-to-face at the newest eatery (that checks out on Yelp, of course)? In short, global electronic connectivity has fostered the rise of a sort of wide-sweeping, possibly disparate civic engagement, but is it of significant consequence? Have we walked too far away from the days of settling our differences and sorting things out on the battlefield?

Since then, the reelection of President Barack Obama and the subsequent election of President Donald Trump have preceded and likely fueled an increased attention to and participation in civic engagement and public discourse, at least of a certain variety. It remains to be seen whether this allegedly newfound brand of political participation is politically effective or merely serves to enhance the (digital and corporeal) egos of the participants.

Yesterday, the New York Times published an interview with Ed Cunningham, a person whose name probably is known to few, but whose voice may be more recognizable, memorializing a sort of retirement signing statement from the now-former ABC and ESPN college football broadcaster who apparently resigned this spring but did not disclose the real reason for his resignation, he says, until now: he believes football is a dangerous sport.

In its current state, there are some real dangers: broken limbs, wear and tear. But the real crux of this is that I just don’t think the game is safe for the brain. To me, it’s unacceptable.

Cunningham feels his job placed him in “alignment with the sport. I can just no longer be in that cheerleader’s spot.”

First, the timing of Cunningham’s explanation is curious not because it is coordinated with the beginning of the current college football season in order, one assumes, to deliver maximum media impact, but because it did not come years ago. The sport’s governing bodies at the scholastic and professional levels may, like tobacco companies before them, continue to distance themselves from reports and research on the relationship between football and brain damage, but whatever popular science concepts informed Cunningham’s decision are not new.

Second, to the extent Cunningham is fashioning his resignation as a protest designed to effect change in the sport, his approach seems shortsighted. In surrendering his national media platform, Cunningham has traded the opportunity to discuss the issues he claims are so important to him with a relevant audience on a regular basis for the chance to fire a single bullet– yesterday’s article– before disappearing from public sight. If his goal was to make football safer, surrendering an important resource does not seem like the best way to accomplish that goal. Even if he was worried that his superiors would not permit him to make the sort of (pedestrian, frankly) comments he provided to the Times during game broadcasts, it would have made for a more broadly significant departure from his position had a network (i.e., a league “broadcast partner”) terminated him for making those or similar statements. As it stands, someone else simply will replace him, and everyone will move on. The article quotes Al Michaels, a much more prominent football broadcaster:

I don’t feel that my being part of covering the National Football League is perpetuating danger. If it’s not me, somebody else is going to do this. There are too many good things about football, too many things I enjoy about it. I can understand maybe somebody feeling that way, but I’d be hard-pressed to find somebody else in my business who would make that decision.

In an effort to be fair to Cunningham, it is not completely clear from his actual statements quoted in the article whether he made his decision for the purpose of making football safer or for the personal purpose merely of extracting himself from an endeavor he now believes is too dangerous for his participants. Knowing the probable effect of telling his story the way he did, the distinction may be of no significance. If he wanted to be a source of meaningful change, though, Cunningham should have made like his contemporary version of Alexander Hamilton and stayed on his microphone as long as possible. Instead, he’s done just enough to satisfy his own guilt through effortless moral posturing. In that, he is not a unique player in today’s civic arena, but worthy causes deserve more.

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Book Review: Based on a True Story: A Memoir

December 31, 2016 Leave a comment

img_20161231_0908568I have long been a fan of comedian Norm Macdonald, but it was not until a few years ago that I knew he could write. A product of the Canadian education system, he was literate, of course, but his public persona suggested to me that he might not have much use for or facility with the written word. Norm disabused me of that false notion nearly four years ago, however, when his first article appeared on Bill Simmons’ late website, Grantland. Macdonald’s tenure with that site was, by funded internet website standards, brief, consisting roughly of the first four weeks of 2013. In that time, he wrote six articles: two on golf, one on hockey, and three volumes in an aborted series entitled “Norm Macdonald’s Keeping Resolutions.” My favorite of the lot was the hockey article. When it was published, right after the latest NHL lockout ended, I wrote:

Norm Macdonald’s latest article is a short story in two parts– two short stories, really– with some light humor, of course, but more compellingly, real, emotional, suspenseful, rising action conveyed in absolutely compelling fashion with two lovely turns of phrase, one for each part.

The “Resolutions” series was a first-person, semi-autobiographical story about sports gambling and a trip through the Nevada desert with Norm’s real-life friend, Adam Eget, “sober now for over a year but nonetheless still somewhat interesting.”

Constituting the largest body of his published writing until now, Macdonald’s Grantland articles, presented with little fanfare at the time and seemingly little remembered now, provide more than a little foreshadowing (and, for the author, source material) for some of the subjects and devices in his 2016 comedic novel, Based on a True Story: A Memoir. Anyone who read Norm’s 2013 articles had no reason to be surprised that he could and would produce such an excellent and wide-ranging piece of literature.

A note on genre classification: Based on a True Story is identified, right there on the cover, as “A Memoir.” Anyone who reads it will recognize it not as a memoir but as a comedic novel written very loosely in the style of a memoir. Most book sellers these days do not read the books they sell before displaying them in their stores, meaning that Macdonald’s book typically appears in the nonfiction section. This misclassification, flowing from a fundamental misunderstanding of the book, seemed to genuinely upset the author, who made it a central subject of his comments in media appearances in support of the book’s release and in his own online comments.

Surprise is an element of comedy, but there is plenty of new ground in Based on a True Story, such that it will truly entertain even the biggest Norm fans. I think it always has been difficult, and, I suspect this is true in today’s media age more than ever, to write a book that will make its readers feel real emotion. Sadness. Laughter especially. Yet Macdonald, with this book, concocts emotional moments alongside real, laugh-out-loud moments, woven through metacontent, 1970s country music, and a sports-gambling-driven journey through the Nevada desert with Adam Eget. This is one of the very few books I ever have wanted to read a second time.

In the foreword, Louis C.K. writes that “a lot of comics over the years have been compared to Mark Twain, but I think Norm is the only one who actually matches the guy in terms of his voice and ability.” With Based on a True Story, Macdonald has provided the comedic novel for a generation.

Categories: Books, Sports

These Colors Don’t Run

August 31, 2016 2 comments

This week, according to sludgebait website Awful Announcing, “Everyone Is Losing Their [sic] Minds Over Colin Kaepernick.” During a preseason NFL game, television cameras caught the San Francisco 49ers backup quarterback sitting during the traditional pregame playing of the national anthem. Kaepernick addressed the subject in a postgame interview:

kaep

His team promptly issued the following statement:

The national anthem is and always will be a special part of the pre-game ceremony. It is an opportunity to honor our country and reflect on the great liberties we are afforded as its citizens. In respecting such American principles as freedom of religion and freedom of expression, we recognize the right of an individual to choose and participate, or not, in our celebration of the national anthem.

Kaepernick’s former teammate, Alex Boone, also was quick to react, and his critical comments reflected those of many who were displeased with Kaepernick’s display:

You should have some f—ing respect for people who served, especially people that lost their life to protect our freedom. We’re out here playing a game, making millions of dollars. People are losing their life, and you don’t have the common courtesy to do that. That just drove me nuts. . . . There’s a time and a place. Show some respect.

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I haven’t been alive every year America, or its flag, has, but I have the following senses: 1) the American flag long has been a symbol of great reverence for the nation’s military, for obvious reasons; 2) the flag was not always the exclusive symbolic property of any particular political or social faction, however; 3) as it had during prior times of national crisis, the flag’s symbolic energy increased during the aftermath of the September 11, 2001 attacks; and 4) during that time, and as the nation’s response to those attacks eventually became a matter of partisan and public controversy, the flag, as a symbol, traveled with that response and its proponents such that, in the following years, many wore or displayed the flag as a symbolic endorsement of the growing War on Terror and the political and military leaders of that war, to the exclusion of other people and groups, including those who questioned or opposed those actions.

The American flag belongs to all Americans, however, including those who want to fly it in support of a particular political regime; those who want to fly it in opposition to a particular political regime, as a reminder of values for which it stands that they feel that regime is disregarding; those who want to reject it; those who want to burn it; those who want to ignore it; and anyone else.

Kaepernick’s protest raises serious and immediate practical concerns. The discourse his protest initiated also highlighted the reality that many view the flag and other national symbols as the exclusive property of some, but not all. That is worrisome, but it also provides an opportunity to examine and reverse the trajectory of the flag as a captured, proprietary national symbol.

Wave that flag
Wave it wide and high
Summertime done
Come and gone
My oh my

Categories: Current, Discourse, Politics, Sports

Behind the Curtain: Class Actions and the NBA Lockout

November 21, 2011 1 comment

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.

Categories: Current, Information, Law, Legal, Sports

Hail “Hitler,” the Most Powerful Word in the English Language

October 5, 2011 1 comment

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.

On Tuesday, he added:

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:

Blogging about Blogging (at ALDLAND)

August 1, 2011 Leave a comment

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.

Is Cooperstown Y2K12 Compatible?

January 6, 2011 5 comments

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?

Is this man the only hope to save Cooperstown, NY from certain destruction in the year 2012?

Categories: Current, Poll, Sports