Nike Brings Back Michael Vick

Interesting news from Liz Mullen of Street and Smith's Sports Business Journal, as excerpted here:

Michael Vick has signed an endorsement deal with Nike, according to Mike Principe, managing director for BEST, the agency that represents Vick.

Principe would reveal no other details, but referred other questions to Vick’s personal agent, Joel Segal . . . “Mike has had a great relationship with Nike and is excited to be part of the Nike team again,” said Segal . . .

Vick will wear Nike shoes, gear and apparel. “He has always been a fan of the brand and looks forward to the relationship,” Segal said.

Vick had been a Nike endorser before, but the company dropped him in August 2007, after Vick was indicted on federal dogfighting charges.

For the rest, click here. For previous coverage of Vick and Nike on Sports Law Blog, click here.

Review of Karen Armstrong’s The Case For God

Armstrong’s latest book offers a defence of religious belief against recent attacks by those she terms “the new atheists” – Richard Dawkins, Sam Harris, Daniel Dennett, et al. These critics, she maintains, have fundamentally misunderstood what religion is, and what “God” means.

“God”, says Armstrong, is “a symbol of indescribable transcendence”, “pointing beyond itself to an ineffable reality” (307). This reality should not be thought of as a thing or person. We must not anthropomorphize God or make of him and idol, in the way the religious fundamentalists and literalists do. They too have misunderstood the meaning of the term.

Rather, says Armstrong, “God” is a symbol pointing us in the direction of something essentially unknowable, and certainly unknowable in a rational, intellectual way. Armstrong is an apophaticist, insisting that “the ultimate cannot be adequately expressed in any theoretical system, however august, because it lies beyond the reach of words and concepts”. This, Armstrong maintains, is something that “all faith systems have been at pains to show” (307)

If that is what “God” symbolizes, then what is religion? It is, says, Armstrong,

“a practical discipline, and its insights are not derived from abstract speculation but from spiritual exercises and a dedicated lifestyle.”

By engaging in certain religious practices and forms of life, we can, maintains, Armstrong, achieve “a state of unknowing that is not frustrating but a source of astonishment, awe and contentment” (306). Religious practice has traditionally helped people to “build within them a haven of peace that enabled them to live creatively with the sorrow of life.” (246). By engaging in dedicated religious practice, people can come to live “on a higher, divine or godlike plane and thus wake up their true selves.”

In treating belief in God as a scientific hypothesis that might be confirmed or refuted, the new atheists are attacking a straw man. Indeed, it seems that, on Armstrong’s view the “new atheists” are, in a sense, doubly ignorant.

First, unlike earlier critics such as “Feuerbach, Marx and Freud, the new atheists are not theologically literate.” (293) In particular, they are ignorant of the apophatic religious tradition that sophisticated - and, according to Armstrong, entirely orthodox - theologians down through the ages have embraced. (311).

Secondly, the truth of religious doctrines is a truth that we cannot even grasp without dedicated religious practice. The truths and insights of religion thus lie beyond even the comprehension of its critics. 305.

Immunizing religion against rational criticism

This characterization of God and religion might seem to render both utterly invulnerable to any kind of rational criticism or attack.

Think you have an argument against the existence of God? You crude, unsophisticated twit - you are treating belief in God as if it were a hypothesis that might be rationally assessed!

Think religion can be rejected on rational grounds? But religion, too, is not a set of hypotheses that might be subjected to rational criticsm. Indeed, by treating religion is if it were, you betray your own crude misunderstanding!

However, on closer examination, chinks in the apophatic armour begin to appear.

Noteworthy features of religious practice

As Armstrong acknowledges, religious practice takes many forms. For example, People congregate together to sing hymns, to pray and meditate. They engage in rituals, sometimes of an elaborate nature. Some flagellate themselves. Occasionally they isolate themselves, shutting out the world. Others immerse themselves in the lives of others, by, for example, trying to alleviate suffering.

An interesting feature of many of these activities is that they are activities we know can induce interesting – sometimes rather beneficial - psychological states, even outside of a religious setting. Indeed, religions seem particularly keen on activities that can induce such altered states.

Take meditation for example. It has proven effects on both our psychology and physiology, reducing stress, inducing feelings of calm and contentment. Even atheists will meditate in order to gain these psychological and physiological benefits.

Praying is often a form of meditation, of course. Sometimes prayer and other devotional activity is accompanied by repetitive swaying or rocking motions. Such movements are known to induce a sense of well-being – the so-called “joggers high” - probably by releasing chemicals into the bloodstream (animals in zoos can also sometimes be seen responding to the stress of captivity by self-medicating in this way).

Isolation can obviously have a powerful psychological effect on people, for example by making them psychological vulnerable, easily-manipulated (it is a favourite tool of interrogators, of course).

Coming together in a large group to sing can also be a very powerful intoxicating experience, as anyone who has sat on a football terrace can testify.

If you have ever entered a large cave by torchlight, you will know that it can also be a very powerful, emotional experience - the echoing sounds, the glimpses of magnificent structures, the darkness making one apprehensive and yet excited all at the same time. The echoing grandeur of many places of worship is obviously designed to have a similar psychological effect.

Helping others in face-to-face situation can obviously be an immensely powerful psychological experience - often a deeply gratifying and positive experience.

Engaging in ritualistic activity often has a calming and beneficial effect, whether or not performed within a religious setting. For example, sportsmen and women often engage in rituals before competing (and can become very disturbed if for some reason the ritual cannot be performed because e.g. their lucky pants have been lost).

Religious practice typically involves at least some of, and usually, many of, these activities. Activities that we know can have a powerful psychological effect even outside of any religious setting.

If people collectively engage in such activities repeatedly, with dedication and great intensity of purpose, over long periods of time, we should, then, probably expect that to have a psychological effect – to produce some interesting, and quite possibly beneficial, psychological states. The regime is certainly likely to produce a heady and intoxicating psychological brew.

If, in addition, we tell the people engaging in these activities that what they are experiencing or becoming psychological attuned to is some sort of divine transcendence, then, given the extraordinary power of suggestion, there’s no doubt that this is what many of them will believe is happening. Indeed, for some there may well be no doubt in their mind that this is what is going on.

The experiences and insights that, as a result, would then coalesce around the label “God” will no doubt be complex and difficult to articulate.

There probably is a sense in which, for someone who has never been through such a regime, they can never understand what it is like for the subject, “from the inside” as it were. Those who have had such experiences will no doubt struggle to communicate their character in much same way that someone who has been through, say, a war or childbirth may also struggle – perhaps having to resort to poetry, or music in order to convey its unique intensity.

Armstrong says

“It is clear that the meditation, yoga and rituals that work aesthetically on a congregation have, when practised assiduously over a lifetime, a marked effect on the personality – an effect that is another form of natural theology. There is no ‘born again’ conversion, but a slow, incremental and imperceptible transformation… The effect of these practices cannot give us concrete information about God; it is certainly not a scientific ‘proof’. But something indefinable happens to people who involve themselves in these disciplines with commitment and talent. The ‘something’ remains opaque, however, to those who do not undergo these disciplines…” (314)

Armstrong claims that what these people gradually become attuned to is the ineffable transcendence, the ultimate reality, she calls “God”.

I guess that is possible. But how likely is it, in fact?

Given what we know about human psychology, isn’t it fairly likely that people put through such an intense regime over an extended period of time are quite likely to think they have become attuned to such a reality anyway, whether or not any such reality exists, and whether or not they have had any sort of genuine insight into it?

I don’t wish to poo-poo the value of engaging in such an exercise. It may well be that those who engage in such practices may gain some valuable insights into themselves and the human condition as a result.

And certainly there may be some positive psychological effects – a lasting sense of peace and contentment - from determinedly engaging in such activities over a long period of time, effects that will undoubtedly by magnified by the accompanying thought that what one is becoming attuned to is “God”.

But that there is such a “God” and that this is what one is becoming enlightened about by such practices is surely very dubious indeed.

Sometimes people who have had “near death” experiences claim to have experienced an indescribably wonderful light at the end of a tunnel. Often they are absolutely convinced that this light is God. However, euphoria and tunnel-vision are both a well-known result of hypoxia – lack of oxygen to the brain, hypoxia being exactly what such patients are likely to be suffering from when near death. Is it possible they are experiencing God? Yes, it is possible. But it is overwhelming more likely that they are actually suffering from hypoxia, and that they have mistakenly interpreted this experience as an awareness of some external, ineffably wonderful, reality.

The mere fact that they are convinced otherwise is hardly good evidence that we are mistaken about this. Nor will it do for them to say - "But you have not had the experience, and cannot know what it was like for me - so you cannot know!" Actually, we can still be rightly confident that, whatever our subject might happen to think, their ineffably glorious experience was a product of hypoxia, not God.

Surely, given what we know about human psychology (and I think we could add a lot more here that would lend further credibility to this explanation), by far the best explanation of what people experience (or whatever word you prefer – the “transcendental insight” they achieve, or whatever) after having engaged in religious practices with dedication over long periods of time is not that they have become attuned to some external transcendent reality, but that they have succeeded in altering their own psychology by fairly well-understood mechanisms common to both the religious and non-religious spheres, and that they have then mistakenly interpreted this alteration in themselves as their becoming attuned to such a reality.

Certainly, Armstrong has given us no good reason to suppose that this isn’t what’s going on.

Harris County to fund public defender's office

Harris County commissioners voted 5-0 to create a hybrid public defender's office in Harris County. Of course the devil of such a proposal is in the details and there is no consensus on how the office would operate and whether the county's various courts would have to participate in a public defender system.

Currently in Harris County indigent defendants are represented by private attorneys. Some courts used a rotating list of eligible attorneys while others employ contract attorneys. Harris County's indigent defense system has been criticized in the past for the number of felony cases assigned to particular attorneys. (See "Crowded House.")

• 11 of the 22 state district courts would use a public defender office for appellate work;
• 5 of the 22 state district courts would use the office for adult felony cases;
• 2 of the 3 juvenile courts want to use both public defenders and private attorneys; and
• all 15 county courts want to use public defenders for defendants who are disabled or who have mental problems.

Commissioner Steve Radack said he was supporting the office in order to take care of overcrowding in the Harris County Jail. Hmmm. Let's think about that for a second. In Harris County (with rare exception) the only defendants who are eligible for appointed counsel are those who are unable to bond themselves out of jail. Offers on Class B misdemeanors range (typically) from time served to 30 days. I fail to see how a public defender's office would alleviate jail overcrowding given that scenario.

And this isn't even factoring in the ridiculous offers of 30 days on DWI cases or the escalating sentences in prostitution cases. The way to reduce overcrowding in the Harris County Jail isn't to create a new bureaucracy -- the answer is to rethink how we handle those accused of committing minor offenses. The police can issue more personal bonds on minor drug possession cases (so-called "catch and release"). Magistrates could take into consideration a defendant's ability to post bond when setting bond by the county's bail schedule.

Instead the county wants to create a new office funded and beholden to those in office to defend those who can't afford to retain their own counsel. Just wait until budgets and staffing are cut in the name of budget constraint and political pressure.

The $500,000 Diet Seems to Work: Glen "Big Baby" Davis shows up to camp in shape

Last month, I blogged about Celtics forward Glen "Big Baby" Davis' new two-year, $5 million contract with the Celtics and the contract's inclusion of an annual bonus of $500,000 if Davis can avoid getting too heavy, which in the past has been a major problem for him.

Davis showed up to Celtics' training camp yesterday and it appears that he's in very good shape. Here's Rich Levine of Comcast Sportsnet:

We all have a good time making fun of Big Baby’s weight, but the truth is that it was a serious problem. Sure, he might be one of those naturally big-boned kind of guys, but he also loves to eat, and while the Celtics never voiced this publicly, the potential of Davis eventually eating himself out of the league was something that most definitely crossed their mind.

With this new deal, Davis will earn an additional $500K a year if he meets certain weight clauses, and from the looks of him Monday, Baby’s well on his way to scoring an extra half mil in the bank account.

I know this is hard to believe, but he looks cut. Yeah, there’s still a little of that Big Baby fat lingering around, but the weight loss is significant, and easily apparent.

“I’ve been working hard, man,” Davis said. “I picked up mixed martial arts; jujitsu, wrestling, boxing…. And it’s not only working out. I changed my diet a lot."

It appears that financial incentives--at least very, very lucrative ones--really can encourage people to eat better and exercise etc.

Interestingly, Davis isn't the only Celtic with weight issues, as Jeff Clark of Celtics Blog reports that the team signed former New York Knick and Chicago Bull forward Mike Sweetney to a non-guaranteed contract. Sweetney, who was a phenomenal player at Georgetown University and the ninth overall pick in the 2003 NBA Draft, has been out of the game for the last couple of years due to weight problems.

Sports Law Blog Bowl II: Toledo 41, FIU 31

I am happy to report that the University of Toledo (my school) defeated Florida International University (Howard's school) this weekend, 41-31. This avenges last year's loss.

Tech coach bans Twitter

So Mike Leach, the head football coach at Texas Tech, is prohibiting his players from using Twitter or Facebook after catching a little bit of heat over the past couple of weeks. While he is well within his rights at coach to lay down the rules, I find it more than a bit ironic that he is banning the flow of information at an institute of higher learning.

According to the Lubbock Avalanche-Journal, linebacker Marlon Williams asked on his Twitter account why he was still in a meeting room when "the head coach can't even be on time." That tweet has been deleted and his page no longer exists.

Is his concern that social media sites like Twitter and Facebook are taking up too much of the players' time or that unfiltered information is being released to the public? Is Leach worried that his players' aren't hitting the books or that he doesn't have editorial control over the information the kids are posting on these sites?

Leach said players' Facebook pages will be monitored. He does not want his players sharing information about the football team on them.

Well, Coach, I've got news for you. No matter how hard you try, you can't stop the free flow of information. The Soviet Union tried to and they failed. Governments in Eastern Europe tried to and they failed. China is fighting a rearguard action and they, too, will eventually fail.

It doesn't matter whether you build walls, string up barbed wire or jam satellite and phone signals -- the flow of information is an abstract being that cannot be stopped.

Priorities

I had a bit of a scheduling conflict this morning. On the one hand I had a seventeen-year-old kid in custody in Galveston County with an appearance in felony court. On the other hand I had a trial setting for a traffic ticket case in Houston Municipal Court.

When it became apparent we weren't going to work out a deal on the felony case I approached Judge Timberlake in Houston Municipal Court about a continuance on the traffic case. She angrily told me that her trial setting took precedence over an inmate's felony appearance in Galveston and denied my request and threatened to report me to the State Bar if I didn't appear in her court at 8:00 am this morning.

Now let's get real, which case is more important? Furthermore, for anyone who hasn't practiced in the municipal courthouse, each court tries (at most) one case a day and there was little danger of my little speeder going to trial this afternoon.

For the record, I appeared in felony court in Galveston this morning. I'd much rather have a judge complaining about my not appearing in a ticket case than have a client in custody complaining that I didn't appear on his case.

Life is short

I am having a work meltdown what with beginning of term and impending book deadline. There will be more of the book up for comment shortly.

In the meantime here is a short video that I think should be shown to every teenager in the land (without the XBox plugs). As a matter of fact, the ad was banned. I am not sure why.

Incidentally, I cannot think of a worse ad for computer games. Life's short, so I should go and sod about on a computer console for a few hours?

POSTSCRIPT. Here is why it was banned. Actually I am not sure it should have been banned. I am not sure the reasons given are good reasons, or even the real reasons people complained. My guess is, this very short film manages to present a rather horrific aspect of the human condition in a way that many people would prefer not to have to think about. I am not sure they have a right to be protected from having to think about it.

Amicus Briefs filed in American Needle v. NFL

Friday was the deadline for the filing of amicus curiae briefs supporting the petitioner, American Needle, in American Needle v. NFL. According to the Supreme Court's docket, only two amicus briefs were filed:

• A joint brief filed by the U.S. Department of Justice and the Federal Trade Commission, available here.

• A brief by a group of economists including Rodney Fort, Brad Humphreys, Roger Noll, James Quirk, Stefan Szymanski, and Andrew Zimbalist, available here.

Interestingly, unless the Court's docket has not yet processed all amicus briefs filed on Friday, one notable omission from the list is the player's unions from the four major sports. It was previously reported by ESPN.com's Lester Munson that the unions were preparing to file amicus briefs in the case. If the unions are in fact waiting to file their amicus briefs, then they will apparently be filing briefs in favor of the respondent, the NFL. In that case, one would assume the unions will advocate single entity status for the leagues in at least some league functions, but not for purposes of labor disputes.

Update (Tues. Sept. 29, 8:45 am): It turns out that the Supreme Court's docket was just slow in processing all of the amicus briefs filed in support of American Needle. The ABA's website now has the following additional amicus briefs available for download:

• A brief by the players' unions in the four major sports (i.e., the NFLPA, MLBPA, NBAPA, and NHLPA), available here.

• A brief by the American Antitrust Institute and the Consumer Federation of America, available here.

• A brief by the National Football League Coaches Association, available here.

• A brief by the Merchant Trade Association, available here.

Defining sport: An illustration

From Kris Lines, who heads the Sports Law Program at Staffordshire University in the UK, comes this animated video on the issue of defining sport. It pointed out one additional reason for defining something as sport: At least in the UK, financial considerations (lower taxes and subsidies) turn on whether an activity is sport or merely exercise or a pasttime. And we already know the definition may determine things such as tort liability and Title IX compliance. In other words, this may be more than a parlor game--genuine consequences may attach to the answer to "what is sport".

Two quibbles: First, the video suggests that a definitional problem is created because some activities can be done either as sport or as a mere pasttime. For example, if a person rides his bike as fast as he can in a race it's a sport; if he rides leisurely going to school or work, it's not. Fair point, as far as it goes. But I think the key is whether the overall activity would be a sport (however defined) if played in a competitive environment, not whether the activity could be a sport in some environments and not others. Basketball clearly is a sport, even if I am just shooting the ball at home.

Second, the video looks to the IOC definition, which famously (and despite litigation in Canada) excludes women's ski jumping, although men's ski jumping is in the Olympics. But the IOC is not purporting to define sport in the abstract, only those sports that are staged at the Olympics. And determinations are not made based on criteria aimed at the "essence" of sport, but of pragmatic considerations of how to stage a good competition. Ski jumping is a sport, no matter who is participating. The IOC just concluded there is not enough interest in it from the women's side to stage a successful (and well-watched) competition.

Anyway, enjoy.

The Debate Over Commercial Use of College Players' Identities Continues

Nathan Crabbe and Kevin Brockway of The Gainesville Sun wrote some interesting stuff yesterday regarding the profts made by the University of Florida from the commercial use of its players' identities.

Crabbe wrote about how the university aggressively works to stop businesses from profiting off Tim Tebow, except when its own products are involved. (See Profiting Off the Gators: A Fine Line Between What's OK and Not)

Brockway interviewed a handful of Gators' football players as to how they felt about the commercial use of their identities (See Tebow Happy to Let UF Use His Image). According to Brockway, Tebow and his family gave Florida permission to sell the No. 15 jerseys last season. And regarding the money that Florida makes from jersey sales, Tebow said that, if he had a choice, he would "choose to give it to maybe a Boys and Girls Club or something where you could help underprivileged kids."

The 80/20 Rule

It's a good bet that in any organization, 80% of the output is produced by 20% of the people. I think it's a safe assumption that 80% of the problems in a neighborhood, school or society are caused by 20% of the population. It wouldn't surprise me if 20% of my cases (or your cases) eat up about 80% of my time.

Would I be going out on a limb if I suggested that about 20% of the jurors drive about 80% of jury deliberations? That's one juror in a misdemeanor trial and two or three in a felony trial. Identifying those jurors is crucial in walking your client out of that courtroom.

Now comes the hard part -- who are those key jurors?

Why PETA Shouldn't Blame Roger Goodell for Michael Vick's Return

This Sunday marks Michael Vick’s official return to the National Football League—an event that has been widely criticized by People for the Ethical Treatment of Animals (“PETA”), as well as some sports writers and doggie bloggers.

What those who criticize NFL Commissioner Roger Goodell for reinstating Vick fail to understand, however, is that the NFL may have ultimately lacked any real choice. Had the NFL not reinstated Vick, Vick could have potentially filed an antitrust lawsuit against the 32 NFL clubs for concertedly refusing to deal with him. Even though such a lawsuit would have likely failed in the Second and Seventh Circuits (due to the holdings respectively in the Clarett and American Needle cases), a lawsuit against the NFL clubs would have likely gotten to a jury in the Third, Sixth, Eighth and D.C. Circuits—all places where professional athletes have previously won large antitrust settlements.

As a quick background in antitrust law, Section 1 of the Sherman Act, in pertinent part, states that “[e]very contract, combination … or conspiracy in the restraint of trade or commerce … is declared to be illegal.” Although most Section 1 claims involve restraints of trade related to product markets, the Sherman Act likewise prohibits restraints in labor markets, as long as these restraints occur outside of the proper workings of a collective bargaining agreement (“non-statutory labor exemption”).

Courts in general determine whether a particular restraint violates Section 1 of the Sherman Act in three steps. First, courts will determine whether a particular restraint emerges from a “contract, combination or … conspiracy” among two or more parties. Next, they will determine whether the restraint yields a net anticompetitive effect to consumers. Finally, they will assess whether any antitrust exemption would negate the finding of liability.

With respect to finding a “contract, combination or … conspiracy,” most courts outside of the Seventh Circuit have found that any decision made by a league commissioner is tantamount to an agreement made among each of the individual club-owners, given that club-owners elect the commissioner to act on their behalf. Thus, outside of the Seventh Circuit, Goodell’s original decision to suspend Michael Vick would be viewed no differently under antitrust law than if the 32 NFL owners sat in a room and all agreed to suspend him. (Of course, this could change depending on the Supreme Court’s pending ruling in the case American Needle v. Nat’l Football League).

As to the net effects of indefinitely suspending a player, a court would likely find these effects to weigh heavily in the direction of being anticompetitive because suspending a player from a premier sports league reduces consumers’ ability to attend games that would feature the boycotted player, presuming a team would otherwise choose to play him. Although the 1961 Southern District of New York case Molinas v. Nat’l Basketball Association had upheld the NBA’s indefinite suspension of a player under antitrust law, that case involved a peculiar set of facts (a player gambling on games in which he played) and has since been called into doubt by the Supreme Court’s decision in U.S. v. National Society of Professional Engineers, which explained that defendants may not use a rationale based solely on public policy to offset liability for anticompetitive conduct.

Finally, with respect to potential affirmative defenses, courts in the Third, Sixth, Eighth, and D.C. Circuits would probably not find any of these defenses applicable. While it is true that most terms of good-faith collective bargaining agreements are exempt from antitrust scrutiny under the non-statutory labor exemption, the NFL Personal Conduct Policy (unlike the NFL drug policy and anti-gambling policy) does not appear explicitly in the NFL Collective Bargaining Agreement, thus likely making it fall outside the exemption in these circuits. In addition, even though a group of NFL players purportedly approved the NFL Personal Conduct Policy in 2007, their approval is likely irrelevant because the NFL Collective Bargaining Agreement requires any changes or modifications to be signed in writing. There is no public record of such writing.

Thus, even if NFL Commissioner Roger Goodell had not reinstated Michael Vick into the league, Vick may still have gone to court and litigated his way back. By simply reinstating Vick, the NFL avoided the headache of legal action, minimized the risk of having to pay damages to Vick, and resolved this matter without drawing added attention to Michael Vick’s past misconduct.

Can PETA really blame the NFL for that?

***

(Article originally posted on 9/25 at 10:05 A.M. on Above the Law; for more details on the legality of commissioner suspensions, see my article in the 2009 Catholic University Law Review: Are Commissioner Suspensions Really any Different from Illegal Group Boycotts).

More on the junk science of scent identification

The Innocence Project of Texas has released its report on the junk science behind scent identification. The report castigates Fort Bend County Sheriff's Deputy Keith Pikett and his claims about his dogs' ability to identify suspects by scent.

The report notes that Fort Bend County defense attorney Derek Smith has put together a yet-to-be published paper for Texas defense attorneys to use to attack scent identification.

In a report issued earlier this year, the National Research Council stated that:

There are two very important questions that should underlie the law's admission of and reliance upon forensic evidence in criminal trials: (1) the extent to which a particular forensic discipline is founded on a reliable scientific methodology that gives it the capacity to accurately analyze evidence and report findings and (2) the extent to which practitioners in a particular forensic discipline rely on human interpretation that could be tainted by error, the threat of bias, or the absence of sound operational procedures and robust performance standards... [I]t matters a great deal whether an expert is qualified to testify about forensic evidence and whether the evidence is sufficiently reliable to merit a fact-finder's reliance on the truth that it purports to support. -- "Strengthening Forensic Science in the United States: A Path Forward"

In one trial, Mr. Piket claimed to have a B.S. in Chemistry from Syracuse University and a Master's degree in Chemistry from the University of Houston. In another case he claimed he had a Master's degree in Chemistry from the University of South Alabama. All these claims were false.

Mr. Pikett has testified that he did not think it important to obtain formal training, that he doesn't follow scientific protocols when conducting scent lineups and that he discounts scientific studies in the field.

There is no telling how many lives Mr. Pikett has ruined with his pseudo-scientific bullshit.

The marketing of fear

According to this piece in the Houston Chronicle, gun dealers and ammunition makers have been doing lights-out business marketing to the right wing's fear that the Obama administration will make it harder for citizens to exercise their second amendment rights.

The fear-mongers only serve to make all gun owners look like clowns and wingnuts.

Jason Gregory, who manages Gretna Gun Works just outside of New Orleans, has been building his personal supply of ammunition for months. His goal is to have at least 1,000 rounds for each of his 25 weapons.

“I call it the Obama effect,” said Gregory, 37, of Terrytown, La. “It always happens when the Democrats get in office. It happened with Clinton and Obama is even stronger for gun control. Ammunition will be the first step, so I’m stocking up while I can.”

The real clash isn't between the right and the left on this issue. What we're really witnessing is a clash between two ways of life -- rural and urban. Traditionally gun ownership has been highest in the rural parts of the country; after all, it's hard to hunt deer inside the Loop. As these rural areas become suburbanized, and as the younger folks move to more urban areas, the impetus to own guns diminishes.

This cultural gap also manifests itself in the longing for "the good ol' days." The same "good ol' days" that brought us "separate, but not equal," Jim Crow and glass ceilings.

Use of College Players' Identities in the Sale of Jerseys

For anybody who questions whether a jersey number constitutes a sufficient indicia of identity for establishing a right of publicity cause of action, check out this snippet from the L.A. Times.

Take Justice Sotomayor Out

Justice Sotomayor will throw out the first pitch at Yankee Stadium this Saturday, prior to the Red Sox-Yankees game. This fits in with a bunch of themes of the moment: She grew up in the Bronx (presumably as a Yankee fan, although I don't know), she famously "saved baseball" with her decision while on the Southern District of New York, and, as the first Hispanic Justice, is being honored as part of Hispanic Heritage Month.

(H/T: My ever-alert colleague Tom Baker)

More on American Needle

For those of you who just can't get enough of the NFL and antitrust law, I have posted on SSRN a draft of my forthcoming piece in the Wisconsin Law Review, titled,
The Puzzling Persistence of the Single Entity Argument for Sports Leagues: American Needle and the Supreme Court's Opportunity to Reject a Flawed Defense.

Here's the abstract:

Later this term, the Supreme Court will hear American Needle v. National Football League, a case that might fundamentally change professional sports and rewrite sports antitrust law. In American Needle, the Seventh Circuit held that the National Football League (NFL) acts as a single entity when licensing its intellectual property and thus is immune from scrutiny under Section 1 of the Sherman Act. Although the Seventh Circuit is the first circuit court to hold that a sports league is a single entity, the argument that leagues act as single entities has persisted for decades. Leagues view the single entity defense as the antitrust “holy grail,” because it shields them from Section 1 attack and costly antitrust litigation. Section 1 explicitly requires an agreement, and an agreement requires more than one entity. Thus, as a matter of law, a single entity cannot violate Section 1.

This Article argues that a single entity classification for sports leagues divorces antitrust immunity from the fundamental purpose of the antitrust laws and is theoretically unsupportable. Antitrust law is designed to act as a gatekeeper, filtering out net anticompetitive conduct. The Seventh Circuit’s single entity approach ignores the competitive effects of league conduct and distorts the basic rationale for distinguishing between single and multiple entity conduct. In doing so, it vests sports leagues with virtually free rein to engage in anticompetitive behavior. This Article also brings to light evidence of actual economic competition between NFL teams that proves that the Seventh Circuit’s single entity analysis in American Needle is factually unsupportable. This Article thus concludes that the Supreme Court should definitively put an end to the single entity defense for professional sports leagues. The Article also proposes a model for streamlining the rule of reason analysis and reducing the litigation burden on sports leagues.

Celebrate freedom, read a banned book

The 27th annual Banned Books Week kicks off on Saturday. Sponsored by the American Library Association, Banned Books Week celebrates freedom of expression and democracy.

Intellectual freedom can exist only where two essential conditions are met: first, that all individuals have the right to hold any belief on any subject and to convey their ideas in any form they deem appropriate; and second, that society makes an equal commitment to the right of unrestricted access to information and ideas regardless of the communication medium used, the content of the work, and the viewpoints of both the author and receiver of information. Freedom to express oneself through a chosen mode of communication, including the Internet, becomes virtually meaningless if access to that information is not protected. Intellectual freedom implies a circle, and that circle is broken if either freedom of expression or access to ideas is stifled. - American Library Association "Intellectual Freedom Manual"

Most of the featured books were the targets of attempted bannings, but still remain on the shelves.

Several of the top 100 novels of the 20th century have been the target of the book banners, including:

• The Great Gatsby by F. Scott Fitzgerald
• The Catcher in the Rye by J.D. Salinger
• The Grapes of Wrath by John Steinbeck
• To Kill a Mockingbird by Harper Lee
• The Color Purple by Alice Walker
• Ulysses by James Joyce
• Beloved by Toni Morrison
• The Lord of the Flies by William Golding
• 1984 by George Orwell
• Lolita by Vladmir Nabokov
• Of Mice and Men by John Steinbeck
• Catch-22 by Joseph Heller
• Brave New World by Aldous Huxley
• The Sun Also Rises by Ernest Hemingway
• As I Lay Dying by William Faulkner
• A Farewell to Arms by Ernest Hemingway
• Heart of Darkness by Joseph Conrad
• Their Eyes Were Watching God by Zora Neale Hurston
• Invisible Man by Ralph Ellison
• Song of Solomon by Toni Morrison
• Gone With the Wind by Margaret Mitchell
• Native Son by Richard Wright
• One Flew Over the Cuckoo's Nest by Ken Kesey
• Slaughterhouse Five by Kurt Vonnegut
• For Whom the Bell Tolls by Ernest Hemingway
• The Call of the Wild by Jack London
• Go Tell it on the Mountain by James Baldwin
• All the King's Men by Robert Penn Warren
• The Lord of the Rings by J.R.R. Tolkien
• The Jungle by Upton Sinclair
• Lady Chatterley's Lover by D.H. Lawrence
• A Clockwork Orange by Anthony Burgess
• In Cold Blood by Truman Capote
• Satanic Verses by Salman Rushdie
• Sons and Lovers by D.H. Lawrence
• Cat's Cradle by Kurt Vonnegut
• A Separate Peace by John Knowles
• Naked Lunch by William Burroughs
• Women in Love by D.H. Lawrence
• The Naked and the Dead by Norman Mailer
• Tropic of Cancer by Henry Miller
• An American Tragedy by Theodore Dreiser
• Rabbit, Run by John Updike

Celebrate the First Amendment and freedom of thought by reading one of these classics during Banned Books Week.

Debate with Alister McGrath

SPES/CFIUK PRESENT

DEBATE: DOES THE NATURAL WORLD POINT TO GOD?

Speakers:

Alister McGrath, author of The Dawkins Delusion, Dawkins’ God, and A Fine-Tuned Universe: The Quest For God In Science And Theology.

Stephen Law, CFI UK Provost. Philosopher, author of The Philosophy Gym, editor of THINK.

Thursday October 29th. 7pm.

Venue: Conway Hall, 25 Red Lion Square, Holborn, London WC1R 4RL – Main Hall.

£5 on the door. Free to Friends of CFI UK, PLUS GLHA, SPES, BHA, NEW HUMANIST SUBSCRIBERS.

To book go to www.cfiuk.org and hit button "support cfiuk" and follow instructions. Credit and debit cards welcome. Alternatively send a cheque payable to ‘Center for Inquiry London” to: Executive Director Suresh Lalvani, Center for Inquiry London, PO Box 49097 Centre for Inquiry London N11 9AX, and include names of those coming, phone number, return address, etc.

Fill 'er up, please

I always wondered what they fed horses in downtown Houston.

Petitioner's Brief in American Needle Now Available

As Marc noted last week, American Needle's opening brief to the United States Supreme Court in American Needle v. NFL was filed on Friday. The brief is now available to be downloaded from the ABA's website. Based on the Supreme Court's docket, it does not appear that any amicus briefs were filed last week. However, under Supreme Court Rule 37, amicus briefs supporting the petitioner, American Needle, are not due until 7 days after the petitioner's brief is filed.

A popular anti-humanist argument

[bit of upcomoing OUP Humanism book - for comment]

Religious people sometimes present humanists with a challenge. Religion, they say, provides answers to some profound questions about the nature of morality and how knowledge of moral truths is possible. Where did morality come from? From God! How can we know what’s morally right and wrong? By turning to religion! Indeed, many religious people offer these answers as certainties.

But what, then, is the humanist’s answer to these questions? If no answer is forthcoming, many religionists conclude that this is an excellent reason for preferring their own religious position over humanism.

But this is poor reasoning. True, there are several thorny philosophical puzzles about both the nature of morality and how moral knowledge is possible.

However, on closer examination, appeals to God and religion do not provide satisfactory answers to these questions. Indeed, the religious solutions on offer typically provide little more than a convenient carpet under which such puzzles can be swept.

Many humanists, by contrast, honestly admit they don’t have all the answers. But of course, the admission that the humanist does not have all the answers is hardly a reason to favour a religious answer if the religious answers on offer are clearly inadequate.

Those who argue against humanism in this way are committing a version of the fallacy known as argument from ignorance: “You can’t answer this question? Then you should accept mine!” For example: “You can’t explain these exquisite crop circles? Then you should accept my answer that they were made by aliens!”

The Tax Consequences of the Chicago Cubs Sale

The Tax Prof Blog posts insight from GWU Law Professor Sarah Lawsky on the tax ramifications of the sale of the Chicago Cubs.

NBA Locks Out Referees

Following up on a post from last week, the NBA formally declared today that it would lock out its referees, after renewed talks collapsed on Thursday. According to the New York Times, there are three major sticking points preventing the parties from reaching an agreement. First, the NBA wants to reduce and/or eliminate the severance payments it has traditionally made to referees who retire at age 55 or older. Second, the NBA is seeking to use WNBA and NBA Development League referees in a limited number of NBA regular season games, for training purposes. The Referees' Association had reportedly previously agreed to allow up to 75 such assignments, only to later reject the proposal. Finally, the league wants to switch the referees from a defined-benefit pension plan to a 401(k) system used by other NBA employees.

Unless the two sides are able to resolve these differences shortly, the NBA will use replacement referees when preseason games begin on October 1st.

Scent identification - the new "poo-poo" science?

The Innocence Project is set to release a report next week that labels scent identification as junk science. Fort Bend County Sheriff's Deputy Keith Pikett is the lightning rod who claims his dogs have picked more than 2,000 suspects out of "scent line-ups."

Deputy Pikett is on the receiving end of two federal lawsuits filed by individuals who Pikett implicated in criminal acts. Charges against the two men have been dropped.

According to this article in the Victoria Advocate, Deputy Pikett's credibility has been challenged as he claims his dogs rarely, if ever, make mistakes.

In 1998, Keith Pikett turned his hobby into a career with the Fort Bend County Sheriff's Office.

Since then, police, prosecutors and the media have praised the deputy and his dogs' work in more than 1,000 investigations.

But Pikett's credibility is being tested in both civil and criminal court. Two federal lawsuits, filed little more than a year apart, claim Pikett's scent lineups are designed to implicate suspects - not to gather objective evidence.

Meanwhile, judges have twice excluded him from testifying as an expert because of questions about the science supporting his work or his honesty.

In 2007, Pikett testified that three of his dogs, Jag, James Bond and Clue, never erred in scent identifications, despite having sniffed hundreds of lineups. A fourth hound, 12-year-old Quincy, performed 1,483 scent lineups and made only two mistakes early in her career, Pikett said.

Last month, Grits for Breakfast posted this article in which he compares Deputy Pikett's dog-and-pony show to the exploits of a horse trainer who was able to influence the "answers" his horses gave to math problems.

Have the courts thrown in the towel on their duty as gatekeepers of scientific evidence?

The grunt work makes it possible

Tomorrow night the University of Texas will seek revenge on Texas Tech for a last-second loss in Lubbock last season that cost the 'Horns a shot at the national title. I expect both teams to be slinging the ball up and down the field and I hope the scoreboard operator at Memorial Stadium bought some extra bulbs.

Last Saturday the University of Houston picked up their biggest win in 25 years

when they marched into Stillwater and knocked off Oklahoma State. I think the footballs in that game were racking up frequent flyer points.

Thirty years ago the Longhorns and the Cougars lived on the ground. The 'Horns ran the wishbone and the Coogs did their damage with Bill Yeoman's Veer. Now they both run variations of the Spread Option and live and die through the air.

But even though the offensive philosophies and schemes are different now, both the ground attacks of the 60's and 70's and the air assaults of today depend on the same thing -- a solid offensive line. It doesn't matter how you intend to move the ball around, if your line can't block and protect the quarterback, you're not going anywhere.

An analogy can be made to the practice of criminal law. It doesn't matter how glib or flashy an attorney is at trial if he isn't prepared. Regardless of one's style in the courtroom, if you don't know your case inside and out, backwards and forwards, you're in trouble. All the technology and glitz in the world won't matter if you haven't put in the prep time.

Are We Worse than Thieves? What Rents are Law Professors and Law Schools Seeking?

In his classic 1967 article on rent-seeking (which does not actually use the term because it had not been coined at that time) Gordon Tullock explained that the cost of theft was not that one person's property was taken by another. In fact, that transaction in isolation may increase welfare. The social costs were the reactions of those attempting to avoid theft and those refining their skills. Richard Posner extended the analysis when he wrote about the costs of monopoly. Again, it was not that some became richer at the expense of others but that enormous sums were invested in bringing about the redistribution. In neither case do the rent seeking, social-cost-producing efforts create new wealth.

Still, in the case of Tullock and Posner the social costs were at least about something. There was a "there" there in the form of a chunk of wealth to bicker over. But now we come to law professors and law schools.

Law professor efforts to self-promote have exploded. Included are repeated visits to the Dean asking for one thing or another, resume padding, massive mailings of reprints, posting SSRN download rankings, or, even better, emailing 200 friends asking them to download a recently posted article, churning out small symposia articles because deans often want to see lines on resumes as opposed to substance, playing the law review placement game, and just plain old smoozing ranging from name dropping to butt kissing. Very little of this seems designed to produce new wealth. If fact, think of the actual welfare-producing activities that could be undertaken with the same levels of energy -- smaller classes, more sections of needed courses, possibly even research into areas that are risky in terms of self promotion but could pay off big if something new or insightful were discovered or said. But this is the part that puzzles me. Whether the thief in Tullock's case or monopolist in Posner's, the prize is clear. What is the prize for law professors? Are these social costs expended to acquire rents that really do not exist or are only imagined? What are the rents law professors seek?

Law schools make the professors look like small potatoes when it comes to social costs. Aside from hiring their own graduates to up the employment level, they all employ squads of people whose jobs are to create social costs (of course, most lawyers do the same thing), produce huge glossy magazines that go straight to the trash, weasel around with who is a first year student as opposed to a transfer student or a part time student, select students with an eye to increasing one rating or another, and obsess over which stone is yet unturned in an effort to move up a notch. I don't need to go through the whole list but the point is that there is no production -- nothing socially beneficial happens. That's fine. The same is true of Tullock's thief and Posner's monopolist. But again, and here is the rub. What is the rent the law schools seek? Where is the pie that they are less interested in making bigger than in just assuring they get the biggest slice possible? What is it made of?

At least thieves and monopolists fight over something that exists. And they often internalize the cost of that effort. Law professors and law schools, on the other hand, may be worse. They do not know what the prize actually is; they just know they should want more; and the costs are internalized by others.

Huh?

This is more properly a comment but since Moneylaw is close to dormant I decided to upgrade to an actual post. I read with interest the most recent posts about tax faculty rankings. I did this even though I have complained about drawing any inferences from the rankings other than SSRN may be pretty good at counting.

Beyond my usual concerns about the emails we all get that we have made the top 10 in one of SSRN's zillions of categories and its use of our works to sell advertising, I am also concerned about what those who post the lists believe they are communicating. I do not mean to pick just on the most recent tax listings because I have seen this with other listings.

I see two problems but maybe I am misunderstanding. As I understand it, a tax professor with, say, 10,000 downloads may have written a couple of tax articles that were moderately downloaded and then have 8000 downloads in other areas. In effect, the number of downloads, if it means anything, does not mean how widely downloaded (much less read or relied on) that author was as a tax professor. If you doubt this take a look at the downloads for the top two tax professors and see how many of the articles are actually tax articles. It would be possible to write one article on tax that was downloaded once and be ranking as at the top and, in fact, pull the entire tax department with you. I seems to me that any school wishing to move up could just ask its most downloaded scholar in any field to allow him or herself to be listed as a tax professor and added as a coauthor to one article. Am I wrong on this? By the way this is the charitable interpretation because I cannot tell whether to be considered one has to be a self-professed tax professor and have uploaded a tax article in the past year or just pass one of these tests. If it is the latter, any inferences to be drawn are even more sketchy.

The second problem is with the totals for schools. Isn't this somehow influenced by the size of the school and the number of people there who teach tax? Why not take the downloads of actual tax articles and divide by the number of tax faculty. And, of course, even this leaves out other types of works.

My sense is that if these SSRN rankings were subject to some kind of truth in advertising standards they would be found to be misleading because they seem to have so little to do with the actual tax productivity of a tax faculty or even the interest others have in that faculty's output. And, if the thought that goes into these postings were found in a scholarly article I doubt it would be publishable. In fact, the only place I have seen a similar willingness to stray from what would be acceptable care as a scholar is when academics perform as expert witnesses.

More Cowbell . . . .

A few summer observations and other commentary:

First, over the summer, I was fortunate to visit for several weeks in Los Angeles and San Diego where I spent my formidable years growing up. I was struck repeatedly by something I had never noticed before. I spent nearly every day of my time in California at the beaches of my youth in San Diego and L.A., primarily Ocean Beach, Pacific Beach, Moonlight Beach (Cardiff-by-the-Sea), Carlsbad, Redondo Beach, Huntington Beach and Manhattan Beach, and I was shocked at the number of female surfers that now populate the beaches and ocean breaks. Growing up surfing (in the 1980s and 1990s) it was often an anomaly to find a female surfer amongst the boys and men. I remember thinking as a kid that it was bold and brave of the few females that I saw out surfing with us to join in the fray that often exists when grappling for waves. This summer, in 2009, it appeared to me that between 1/3rd and 1/2 of all surfers catching waves and hanging on the beaches were women and girls. I find this remarkable.

This got me to wondering, whether Title IX and the insurgence of female athletic opportunities in the past three decades or so has made it possible/acceptable/cool for young females to take up surfing and to join the boys and men that have dominated the sport (and the sets) for so long. A tremendous step forward I think, and one of the positive influences of Title IX and female athletic acceptability and opportunity. I was also reminded with the passing of Senator Ted Kennedy recently, that he was a staunch advocate of Title IX and the incredible opportunities that this legislation has provided to female athletes across the United States.

Second, while anticipating (and later relishing) the Ohio State vs. USC college football game last week, I watched several Big 10 commercials touting the league and the football programs within. I was struck by the commercial that highlights all eleven of the head football coaches in the Big 10 faux recruiting (see commercial here). I was reminded while watching the commercial, just how disheartening it is that not a single football coach in the Big 10 is a head coach of color. All of the coaches are white. While the Big 10 is purportedly one of the power conferences in the BCS line-up, and while at least 50% of the athletes in that conference are African American, there is not one African American head coach to speak of in the Big 10. As i have written many times in this blog space, it is simply inexcusable for University administrations and athletic directors to continue to recruit African American players in droves to their programs, to reap the significant financial reward on the backs of these players and to continue to refuse to hire African American head coaches to lead these athletes. I found this commercial to be emblematic of the continuing race discrimination in collegiate football coaching.

Third, as highlighted briefly by Professor McCann here, the National Football League, in addressing former race discrimination in its league, pursued an aggressive policy of equality by extending its successful Rooney Rule to all upper level management hires in the NFL. As discussed often on this blog, the Rooney Rule, which requires all NFL owners to meaningfully interview at least one minority candidate for each head football coach opening, has made a significant difference in the league and has provided a welcomed equal opportunity policy for coaches of color that had previously been shut out of head coaching interviews and opportunities. During the summer, Commissioner Roger Goodell extended the Rooney Rule to all front office hiring decisions, requiring NFL owners to meaningfully interview at least one minority candidate for front office hires (General Manager, etc.) going forward. While lightly noticed during a summer of discontent and discord in the NFL (i.e., Vick, labor issues, Stallworth, etc.), this move will ensure a more level playing field for a professional sports league that continues to lead out on this front.

New Tax Faculty Rankings

• Graduate Tax Faculty Rankings (Michigan is #1)
• Tax Professor Rankings (Louis Kaplow & Reuven Avi-Yonah are #1)
• Tax Faculty Rankings (Michigan is #1)
• Tax Faculty Metropolitan Area Rankings (Los Angeles is #1)

News That Myles Brand Has Passed Away

I just received received an email alert from the Sports Business Daily that NCAA President Myles Brand died from pancreatic cancer at age 67.

The apophatic theologian - again

REVISED VERSION - in lght of your helpful comments, thanks.

Some theists will be unmoved by the kinds of argument discussed in this and the previous chapter. They may say something like this:

“The god that you don’t believe in, I don’t believe in either! You are working with an outdated and unsophisticated conception of God. My understanding of God is different. When you say, “There is no such thing as God” I agree with you! For God is not a thing or entity that can be said to exist or not exist. Nor can God be categorized as belonging to this kind of thing or that kind of thing. I define God as something wholly other, something ineffable, unknowable, beyond our understanding. I cannot say what God is, only what he is not.”

The view that God is unknowable is sometimes termed apophaticism. The apophatic view has its attractions, perhaps the most obvious being that, if you never actually make any positive claim about God, you can never be contradicted or proved wrong. Indeed, at first sight, apophaticism appears to make atheism impossible – if no positive God claims are ever made, there can be none to deny.

The theologian Denys Turner is a leading exponent of this type of view. In his inaugural lecture as Professor of Divinity at Cambridge University (entitled "How to be an Atheist"), Turner says to the atheist:

It is no use supposing that you disagree with me if you say “There is no such thing as God’. For I got there well before you. What I say is merely: the world is created out of nothing, that’s how to understand God. Deny that, and you are indeed some sort of decent atheist. But note what the issue is between us: it is about the legitimacy of a certain very odd kind of intellectual curiosity, about the right to ask a certain kind of question.” P19.

Note Turner’s parting suggestion, here, that the issue between atheists and theists like himself is whether a deep curiosity about such questions as, “Why is there something rather than nothing?” is even legitimate. Turner goes on to characterize the atheist is someone who pooh-poohs such questions, as someone who remains steadfastly unamazed by the fact that there is anything at all.

But if that’s what an atheist is, then I am not an atheist, and neither are most philosophers (which will come as a surprise to many of them).

Of course, most apophaticists aren’t just expressing wonder and advocating philosophical reflection. Turner himself says above that the world was created from nothing, rather than just appeared from nothing. But as the thought that something is created tends naturally to lead one on to the thought that it has a creator, so it looks suspiciously as if Turner is here gesturing towards something at least analogous to a transcendent agent. In which case, he is gesturing towards something atheists can get their teeth into.

Of course, most apophaticists also deem this mysterious, transcendent whatever-it-is worthy of our worship and gratitude, which raises the question of how, if it’s unknowable, they could possibly be in a position to know that worship and gratitude are appropriate attitudes for us to have towards it.

Indeed, if Turner is right and the world is created, doesn’t the appalling amount of suffering it contains give us excellent grounds for adding two more characteristics to the list of characteristics Turner says his God is not – his God is not worthy of either our worship or our gratitude.

Opening Brief in American Needle v. NFL Set for Friday

For those who have been following the Supreme Court case American Needle v. NFL, this Friday clothing manufacturer American Needle Inc. will file its opening brief, arguing that the Seventh Circuit Court of Appeals was wrong to define the NFL as a single-entity under Section 1 of the Sherman Act.

As many of you know, I have long agreed with American Needle's view that the NFL should be treated as a collection of 32 separate clubs, and not as a single entity. To me, this issue was best resolved by the Second Circuit back in the 1982 case North American Soccer League v. Nat'l Football League, in which it held "the sound and more just procedure is to judge the legality of [sports league] restraints according to well-recognized standards of our antitrust laws rather than permit their exemption."

Michael McCann seems to share my view as well, based on the contents of his forthcoming law review article.

Currently, the Second Circuit's view remains in the overwhelming majority, as seven previous courts have upheld this view and rejected the NFL clubs' single-entity argument. The Seventh Circuit meanwhile remains alone in its iconoclastic position that single-entity status should be determined one league at a time, one function at a time.

The apophatic theologian

[Bit of draft book for comment.]

Some theists will be unmoved by the kinds of argument discussed in this and the previous chapter. They may say something like this:

“The god that you don’t believe in, I don’t believe in either! You are working with a very outdated and unsophisticated conception of god. My understanding of God is very different. When you say, “There is no such thing as God” I agree! God is not a thing or entity that can be said to exist. Nor can God be categorized as belonging to this kind of thing or that kind of thing. I define God as something wholly other, something necessarily unknowable, beyond our understanding. I cannot say what God is, only what he is not.”

The view that God is necessarily unknowable is sometimes termed apophaticism. The apophatic view has its attractions, perhaps the most obvious being that, if you never actually make any positive claim about God, you can never be contradicted or proved wrong. Indeed, at first sight, apophaticism appears to make atheism impossible – if no positive God claims are ever made, there can be none to deny.

The theologian Denys Turner is a leading exponent of this type of view. In his inaugural lecture as Professor of Divinity at Cambridge University (entitled "How to be an Atheist"), Turner says to the atheist:

It is no use supposing that you disagree with me if you say “There is no such thing as God’. For I got there well before you. What I say is merely: the world is created out of nothing, that’s how to understand God. Deny that, and you are indeed some sort of decent atheist. But note what the issue is between us: it is about the legitimacy of a certain very odd kind of intellectual curiosity, about the right to ask a certain kind of question.” P19.

Note Turner’s parting suggestion that the issue between atheists and theists like himself is whether a deep curiosity about such questions as, “Why is there something rather than nothing?” is even legitimate. Turner goes on to characterize the atheist is someone who pooh-poohs such questions, who remains steadfastly unamazed by the fact that there is anything at all.

But if that’s what an atheist is, then I am not an atheist, and neither are most philosophers (which will come as a surprise to many of them).

Of course, most apophaticists aren’t just expressing wonder and advocating philosophical reflection. Turner himself says above that the world was created from nothing, rather than just appeared from nothing, which strongly suggests the involvement of a creator - something at least analogous to an agent. So it seems Turner does possesses some inklings about what his God is like. And of course, most apophaticists also deem this mysterious, transcendent not-a-thing worthy of our worship and gratitude, which raises the question of why worship and gratitude are appropriate attitudes for us to have towards a transcendent not-a-thing that not only pointlessly tortures children but has unleashed unimaginable quantities of suffering on sentient creatures over hundreds of millions of years.

Coaches teaching civ pro

I still am trying to get more legally oriented reports and documents, but it appears that the breach-of-contract dispute between the University of Kentucky and former men's basketball coach Billy Gillespie is going to turn into another object lesson in civ pro.

In July, Gillespie sued the University of Kentucky Athletics Association in federal court in Texas (where, presumably, Gillespie moved after he was fired). The Association has moved to dismiss for lack of personal jurisdiction, as well as (I would guess) improper venue or to transfer venue to the District of Kentucky.

Meanwhile, the University then sued Gillespie in state court in Kentucky and Gillespie has removed the case to federal district court in Kentucky, apparently on diversity grounds. This sets us up for a replay of the jurisdictional dispute between West Virginia University and its former football coach, Rich Rodriguez. WVU sued in state court to collect on a liquidated damages clause and Rodriguez removed; WVU moved to remand, arguing that as a state university, it was an arm of the State of West Virginia and not a citizen of the State for purposes of diversity jurisdiction in federal district court. The federal court agreed and remanded.

This same sequence could be repeated here. The outcome will depend on whether the University or the UK Athletics Association (an adjunct to the University established by the state to govern the university's intercollegiate athletics) is the plaintiff and whether either or both are deemed arms of the state.

A League City war story

Tried an assault case down in League City this afternoon (perhaps y'all remember my last experience down there). Three people testified - the alleged victim, my client and my client's mother. All three stories were different. The only thing they all agreed on was that my client and the alleged victim had an argument.

The end result was a (somewhat) typical she said-she said swearing match. The judge found my client not guilty but then proceeded to berate her, saying she thought my client did assault the alleged victim but that because she had one little doubt, she couldn't find her guilty.

While I think the judge's final decision was the correct one, I do take offense at her comments to my client afterward. The comments weren't necessary, in fact, they were mean-spirited and the judge seemed to be aggravated that anyone would dare demand their day in court.

Native Americans File for Cert in Their Challenge to the Washington Redskins Trademark

ESPN.com is reporting that the group of Native Americans which challenged the Washington Redskins trademark have filed a petition for a writ of certiorari at the United States Supreme Court, seeking a review of the D.C. Circuit's opinion in May rejecting the challenge on laches grounds. Geoff has previously covered the case here, here, and here. The Redskins will now have 30 days to file a brief opposing the petition with the Court.

Having not yet seen a copy of the Native American group's cert petition, it is difficult to gauge the strength of their position, but in general this doesn't seem like the type of case the Supreme Court will elect to hear.

New DWI program sounds more and more like deferred adjudication

So you still think Harris County's new DIVERT program for first-time DWI defendants is really a pretrial diversion and not deferred adjudication by another name? See this document released internally to Harris County prosecutors.

"After a DIVERT interview has occurred, if it is determined that a defendant is both eligible and an appropriate candidate for the program, an agreement will be tailored to the defendant with customized conditions of the program. If the defendant accepts the terms of the agreement, the defendant will be required to enter a plea of guilty to the offense of Driving While Intoxicated and agree to the punishment to be received in the event of a violation of the conditions of the program. As part of the agreement, the Defendant will waive the right to a jury trial, right to appeal from a finding of guilt and right to appeal from assessment of sentence."

Article 42.12, Sec. 5(a) of the Texas Code of Criminal Procedure states that a judge may accept a plea of guilty or no contest from a defendant and, if the judge feels it is in the best interest of both society and the defendant, the judge may defer a finding of guilt until the defendant has completed his probationary sentence. Sec. 5(c) states that if the defendant has not violated the terms of his probation and if the judge has not proceeded to adjudicate the defendant's guilt, the judge shall dismiss the the case against the defendant. This is the statutory definition of deferred adjudication.

Art. 42.12, Sec. 5(d) states that a judge may not grant deferred adjudication for the offense of driving while intoxicated.

Article 55.01(a)(2)(B) of the Texas Code of Criminal Procedure states that an expunction is not available to a person who was granted deferred adjudication under Article 42.12.

My reading of the DIVERT program procedures and the Code of Criminal Procedure leads me to believe that a person who completes the program will not be eligible for a expunction because that person entered a plea of guilty to DWI. Unfortunately we will not know until the first person files for an expunction at least three (3) years from now.

And if that isn't enough to make you wonder just what the hell is going on, there's this little gem from Page 2:

"If the defendant, after evaluation, chooses not to enter into the DIVERT program, the District Attorney agrees that any information directly or indirectly derived from the interviews or testing of the defendant during the DIVERT evaluation will not be used as evidence against the defendant in any criminal proceeding except for the purposes of impeachment, rebuttal, or cross-examination should the defendant testify or provide the court with information contrary to that provided in the evaluation process; or information learned from a source independent of the evaluation."

So there. DIVERT ain't about designing a treatment program for a person accused of DWI, it's about building a case against that person should they decide not to enter the program. If the purpose really were to treat people, the evaluations would be conducted by a provider not affiliated with Harris County so that thelimited physician-patient privilege afforded under Texas Rule of Evidence 509(b) would apply.

Cops packing needles

Police in Arizona and Idaho are now carrying needles along with their sidearms in an attempt to limit further the rights of those arrested for suspicion of driving while intoxicated. It's not enough that states strengthened penalties for those citizens who exercised their right not to incriminate themselves by refusing to submit to a breath test, now they want motorists to submit to blood draws by police officers in the field.

In Idaho, about 20% of the motorists arrested for suspicion of drunk driving exercise their right to refuse to submit a sample of their breath (the national average is 22%). Prosecutors say breath test refusals are the reason they still have to try as many DWI cases as they do. On the flip side, maybe the cops are a bit overzealous in arresting motorists for drunk driving. Of course, couldn't happen, right? All that state and federal grant money doesn't have any effect on the number of motorists arrested for DWI, does it?

According to the Associated Press, NHTSA is in contact with the Houston Police Department to institute phlebotemy training for DWI task force officers here in the Bayou City.

So now we have the Harris County District Attorney upset because people who plead guilty to driving while intoxicated are choosing to pay a fine and deal with a license suspension rather than opting for 12-18 months of probation (and headaches). We have prosecutors in Idaho upset that motorists are electing to take their DWI cases to trial. What we don't have is any acknowledgement from law enforcement that sometimes, believe it or not, they don't get it right - that sometimes they arrest innocent people.

According to the Bill of Rights, we are innocent unless proven guilty -- perhaps someone should examine the curriculum at the police academy and baby prosecutor school.

What should I do if I'm pulled over for DWI?

I'm often asked what someone should do if they're pulled over on a DWI. Now the first thing to remember is that unless you are in an area with bars and restaurants, a DWI stop rarely starts out as a DWI stop.

Typically a driver is stopped because of a traffic or equipment violation. Depending on the location and time of day, the officer may or may not start off with the assumption the driver has been drinking.

The first thing you want to do is get your driver's license and insurance card out before the officer approaches your window. If you show the slightest difficulty in getting them out after he asks for them, he will note that you fumbled for your license when he writes his report.

You always want to be polite. Always remember that it is the officer who is going to decide whether or not to make this a DWI stop. If you are rude and combative, believe me, that will make it into the officer's report as a sign of intoxication.

Generally if the officer asks you to get out of your car you are going to be arrested whether you perform any of his coordination exercises or not. Do not lean against your car after getting out. If you do, the officer will indicate this as another sign of intoxication.

Listen carefully to the officer's questions and, if you choose to answer them, only answer what is asked. If you've been drinking, your breath will have the odor of an alcoholic beverage; remember this if the officer asks if you've been drinking.

Before you agree to perform the officer's coordination exercises you need to realize that every question the officer asks you and every task he asks you to perform are designed to gather evidence that will be used against you.

If you were stopped for speeding or for an equipment violation you need to be aware that neither of these is an indicator of impairment. Even if the officer notes you had the odor of an alcoholic beverage on your breath, slurred speech and bloodshot eyes, without any signs of impairment, the officer cannot establish probable cause to arrest you (though you will be arrested).

If you are familiar with the coordination exercises the officer will ask you to perform and you know what "clues" he's looking for then you may decide to perform them -- although I would counsel against it. Just remember, even though there are 93 components to the walk-and-turn test, for instance, the officer (and prosecutor) will claim you are intoxicated if you exhibit 2 or more "clues."

If you were not involved in an accident and you don't have a child in your car and the local police are not running a "No Refusal" weekend, do not blow into the breath test machine. I repeat - do not blow into the breath test machine. If you blow over .08, you've got problems, if you blow under .08 the officer will find some reason to explain the score -- maybe you "elmininated" the alcohol from your system or maybe you were also doing either prescription or illegal drugs that "synergized" with the alcohol and caused impairment.

If you are subject to a mandatory blood draw if you refuse the breath test you sit on the horns of a dilemma. If you think you have an alcohol concentration of less than .08 then you probably should blow into the machine. Otherwise you will be looking at a blood test. While a jury is trained to think of blood tests as infallible, there are a number of evidentiary issues that can keep a blood test out of evidence, or at least cast serious doubt on its accuracy.