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Excellent story from the New York Times about the huge price tags of publicly funded stadiums, and the huge debt load they impose on the public purse. Here is an excerpt:

It’s the gift that keeps on taking. The old Giants Stadium, demolished to make way for New Meadowlands Stadium, still carries about $110 million in debt, or nearly $13 for every New Jersey resident, even though it is now a parking lot.

The financial hole was dug over decades by politicians who passed along the cost of building and fixing the stadium, and it is getting deeper. With the razing of the old stadium and the Giantsand the Jets moving into their splashy new home next door, a big source of revenue to pay down the debt has shriveled.

New Jerseyans are hardly alone in paying for stadiums that no longer exist. Residents of Seattle’s King County owe more than $80 million for the Kingdome, which was razed in 2000. The story has been similar in Indianapolis and Philadelphia. In Houston, Kansas City, Mo., Memphis and Pittsburgh, residents are paying for stadiums and arenas that were abandoned by the teams they were built for.

Pathetic.

This piece profiles Eugene Volokh, Doug Berman, Paul Caron, and some of the other top Praw Blawgers.

This article, titled The Countermajoritarian Classics (and an Upside Down Theory of Judicial Review), says no, and other famous precedents that are pereceived to be countermajoritarian were in fact in sync with the majority sentiments of the time. Here is the abstract:

Brown v. Board of Education. Engel v. Vitale. Miranda v. Arizona. Furman v. Georgia. Roe v. Wade. Within the academy, these countermajoritarian classics stand as a testament to the Supreme Court’s willingness to thwart the will of a national majority in the name of minority rights. Yet a historical examination of these cases reveals a dramatically different narrative, illustrating just how majoritarian even ostensibly countermajoritarian cases can be. Indeed, in several of these cases, the Court’s ruling was so majoritarian, so consistent with national public opinion, that it only looked countermajoritarian because the seemingly majoritarian stance of the democratically elected branches wasn’t. Considered in full historical context, the Court’s position was actually a better reflection of prevailing sentiment than that of the legislative and executive branches. The implications are striking. While most theories of judicial review see the Court’s countermajoritarian capacity as its unique institutional attribute, the classics show that sometimes just the opposite is true. Sometimes it is the democratically elected branches that are out of sync with majority will, and the Supreme Court that bridges the gap, turning the traditional understanding of the Court’s role on its head. The result is a distinctly majoritarian, upside-down theory of judicial review, one that recognizes the Court’s ability to be more majoritarian than the majoritarian branches, rather than less. Democracy never looked so undemocratic – nor, one could argue, has it ever worked so well.

From the article:

Indeed, several of the cases allow for an even stronger claim. In Brown and Roe (and arguably others as well),15 the Supreme Court’s ruling had so much majoritarian support that it only looked countermajoritarian because the presumably majoritarian results of the legislative and executive branches weren’t. In these cases, the Court rejected the results of the democratic process, but there is little reason to think that the democratic process was getting democracy right. When viewed in full historical context, the Court’s position was actually a better reflection of prevailing sentiment than that of the democratically elected, representative branches.

And what conclusion does the author draw from this observation:

For constitutional theory, this suggests the need to reconsider the current conceptualization

of the countermajoritarian difficulty. And for constitutional doctrine, it presents a significant challenge to the Supreme Court’s reliance on legislation as “the clearest and most reliable objective evidence of contemporary values.”17 Legislation is not necessarily the most reliable evidence of contemporary values. Sometimes it is not reliable at all. For constitutional theory,this suggests the need to reconsider the current conceptualization of the countermajoritarian difficulty. And for constitutionaldoctrine, it presents a significant challenge to the Supreme Court’sreliance on legislation as “the clearest and most reliable objectiveevidence of contemporary values.”17 Legislation is not necessarilythe most reliable evidence of contemporary values. Sometimes itis not reliable at all.

…
Instead of a countermajoritarian Court checking the majoritarian branches, cases like Brown and Roe showcase a majoritarian Court checking not-so-majoritarian branches, enforcing prevailing norms when the representative branches don’t. Democracy never looked so undemocratic—nor, one could argue, has it worked so well.

This is a very Barry Friedman-esque “Will of the People” style article (and no surprise that Barry Friedman is thanked in the acknowledgement section).

So the courts, and not the elected branches, may be the most “the clearest and most reliable objective evidence of contemporary values” in some cases? I need to ponder that one for a bit but it sounds like somewhat of a blank check for the Courts to do whatever they want.

While Friedman’s work seems to be a descriptive account of what the Courts do, this article seems to justify the Court’s actions to rule in what some may view as a countermajoritarian manner based on what the court, and not society, sees as in fact the majority sentiments of the country. I wonder which entity, the elected branches or the unelected branches, are in the best position to make this determination.

Update: After some further reflection, I ponder how much credence we can give to the Courts to sense what the majority sentiments are in light of their dismal failure at discerning a “national consensus” in the 8th amendment context (see here, here, and here).

Ilya Shapiro and I discuss the fallacy of the “national consensus”in Pandora’s Box, pp. 57-62 beyond the context of the 8th Amendment.

The fallacy of recognizing national consensuses is highlighted by the aftermath of Kennedy v. Louisiana. If the Supreme Court could not properly analyze the extent of the consensus among state laws governing the sentencing of child rapists, an area that any first-year law student could understand with the proper Lexis search, how can we expect judges to understand consensuses on nebulous and polarizing social issues—on which public opinion ebbs and flows—such as the right to health care, the right to education, or reproductive rights?

Balkin himself acknowledges that “[i]n 1973, when Roe was decided, the right to abortion was not a privilege or immunity of national citizenship” because only four states had adopted the rules Roe laid down. He counters, however, that “most of the public now regards a basic abortion right as among the guarantees of citizenship” and, in the long run, “it should eventually be protected under the declaratory model of the Privileges or Immunities Clause.” But how is the Court to determine society’s views to a point that gives them constitutional authority?—particularly in light of the complications in as comparatively simple a task as surveying state laws regarding capital punishment for child rapists. Kennedy v. Louisiana thus belies Balkin’s attempt to portray the right to abortion as a privilege or immunity of national citizenship by virtue of a national consensus.

Moreover, what constitutes a national consensus? Half the population? Two thirds? Ninety percent? To paraphrase Justice Brennan’s quip, why not whatever five duly confirmed justices think? Should the Court commission its own Gallup Poll? What standard should the consensus be based on? How long should it exist? These are inherently subjective determinations, not reducible to judicially or legislatively manageable standards.

Finally, and perhaps most significantly from a constitutional perspective, for a court to determine that simply because “most of the public” considers some right to be among the privileges or immunities of citizenship—not that the public thinks in terms of “privileges or immunities” or any other constitutional terms of art—ignores the rights of minorities. That is, the Constitution is countermajoritarian in many ways—as would be expected from a charter that establishes a republic, not a pure democracy. The Constitution provides for the indirect election of the president through an electoral college and, before the Seventeenth Amendment, for state legislatures to select senators. Impeachment requires super-majorities, as does the constitutional amendment process—which is why Balkin, Ackerman, and others propose constructive amendment theories. All these provisions reflect a fear of oppressive majority rule and aim to prevent factions from seeking economic advantage and overwhelming our system of liberty.

Finally, why limit this analysis to consensus among states? Why not consider consensuses among nations? For example, Justice Kennedy has looked to foreign and international law to establish norms with respect to executing minors—and thus confirm his understanding of the Eighth Amendment. Why then not look to European conventions and treaties to recognize consensuses on rights among modern, progressive peoples to confirm our understanding of the Fourteenth Amendment? These are such divisive and controversial issues that, ultimately, a consensus model would “just [be] giving effect to the [Court’s] own preferences.”

As the world turns…

HT Gizmodo

I have blogged in the past about metaphyiscal umpiring in the context of Armando Galaraga’s almost-perfect game. As you may recall Detroit Pitcher Armando Galarraga was throwing a perfect game through 26 batters. 26 up, 26 down. Batter number 27 hit a ball to second base, Gallaraga covered first. It looked like the throw to first was in time but the umpire, Jim Joyce, called the runner safe. Joyce totally blew the call. At the time I wondered whether the fact that this was the 27th batter should have made a difference, and whether the Umpire should have “let ‘em play” and called it an out.

Professor Mitchell Berman has a fascinating article titled ‘Let ‘em Play’: A Study in Sports and Law (HT Legal Theory Blog). Here is the abstract:

Serena Williams was eliminated in the semifinals of last year’s U.S. Open when, having lost the first set and down 5-6 in the second, she was called for a second-serve foot fault that made it match point for Belgium’s Kim Clijsters. Williams’s explosive and profanity-laced protest of the call incurred a mandatory one-point penalty that gave Clijsters the match. Although nobody defended Williams’s outburst, professional commentators and ordinary fans did debate whether a foot fault should have been called, with many maintaining that the sport’s rules should be enforced less strictly given the critical juncture in the match, and others objecting that such a practice would violate what might fairly be described as basic rule of law principles.

Although the ending to the Williams-Clijsters match was unusually dramatic, the question it raises arises frequently in the world of sports. Many fans of basketball, football and hockey, for example, routinely urge the officials to “let ‘em play” or to “swallow the whistles” in crunch time, while other observers wonder how such a practice could possibly be justified.

This essay explores whether it can be. In doing so, it draws on a wealth of popular, legal, and philosophical materials – the common sayings “no harm, no foul” and “it cost us the game”; the material breach doctrine from contract law and tort law’s “lost chance” doctrine; the mystery of objective singular probabilities and the Hartian distinction between duty-imposing and power-conferring rules; and much more. Its ambition is not merely to resolve this single – surprisingly deep and rich puzzle – but to birth a new field of sustained jurisprudential and legal-comparative study: the field of sports and law.

Should the umpire have just given Galaraga the perfect game, even if he thought the runner was safe, or alternatively, thought that it was a close call? If only umpires were more like judges

I love sports and I love law review articles. When they intersect, I am happy. Definitely worth a read.

Justice John Marshall Harlan on being in the dissent:

“Of course I am wrong, because only the Chief Justice, and myself held those views, and as the majority decided the other way, we must believe that we were wrong.”

Justice Sonia Sotomayor on being in the dissent:

“I do think I was right,. I think the (majority) were wrong.”

Denver Post, H/T BLT.

Update: Thanks to Instapundit for the link! I have received several requests for more information about the Harlan quote.

“Of course I am wrong, because only the Chief Justice, and myself held those views, and as the majority decided the other way, we must believe that we were wrong.”

He made a similar remark on 3/19/89 when talking about his dissent in Elk v. Wilkins:

“I had the misfortune to differ from the court upon that question, and of course I was wrong.”

On 4/16/1898 he made this comment about his dissenting opinion in Hurtado v. California:

“My own view was that it was not competent for a state, since the adoption of the fourteenth amendment, to proceed against any man for his life except by indictment of a grand jury. Now presumably I am wrong, because I stood alone, and the law must be held otherwise.”

In light of the comments in the thread, I think it is fairly obvious Harlan was joking. Harlan was always gracious and respectful to the Court. I think the comment was made with humor rather than sarcasm, and exemplified his collegiality towards his colleagues, even if they disagreed with him.

From the UK Telegraph (H/T Josh M.)

Nearly 3,000 years after Odysseus returned from his journey, the team from the University of Ioannina said they found the remains of an extensive three-storey building, with steps carved out of rock and fragments of pottery. The complex also features and a well from the 8th century BC, roughly the period in which Odysseus is believed to have been king of Ithaca.

The location “fits like a glove” with Homer’s description of the view from the fabled palace, the archaeologists claim.

The layout of the complex, where Professor Thanassis Papadopoulos and his team have been digging for 16 years, is very similar to palaces discovered at Mycenae, Pylos and other ancient sites.

Could this possibly be real?

The claim will be greeted with scepticism by the many scholars who believe that Odysseus, along with other key characters from the Homer’s epic such as Hector and Achilles, were purely fictional.

“Whether this find has a connection with Ulysses or not is interesting up to a certain point, but more important is the discovery of the royal palace,” said Adriano La Regina, an Italian archaeologist.

Further complicating the identification of the site is the doubt over whether the ancient kingdom of Ithaca was located on its modern day namesake, Ithaki

Cool anyway.

Professor Marcantel posted an interesting article to SSRN titled The Corporation as a ‘Real’ Constitutional Person (H/T Legal Theory Blog).  The article explores how the status of the corporation was understood in early America. Here is the abstract:

For two centuries, jurists and corporate scholars have struggled with creating a singular, global definition explaining the essence of corporate existence and its relationship to the law. This challenge has been particularly difficult within the constitutional realm, where small movements in doctrinal theory have the potential for wide impact. Earlier this year, the United States Supreme Court reignited that discussion when it delivered the opinion in Citizens’ United v. FEC. Although the opinion facially decided the constitutionality of a nuanced provision of campaign finance reform, the Court held that corporations are protected by the First Amendment, and in the process, reinvigorated the perennial, trifurcated break in corporate doctrinal discussion between concessionary theorists, aggregate theorists, and real entity theorists. More specifically, the majority, invoking the “original understanding” of the Constitution, appears to have adopted a real entity theory of the corporation. Nevertheless, the majority provided little contemporaneous documentary evidence to support its position — a gap that exists in the academic literature as well.

This Article fills a portion of that gap by analyzing documents contemporaneous to the drafting and ratification of the Constitution. Specifically, this Article defines the contemporaneous meaning of the words “people,” “person,” and “citizen” — the entities the Constitution explicitly attempts to protect — by examining the manner the drafters and ratifiers used those words during the Constitutional Convention, the ratification debates, the debates surrounding the Bill of Rights, and the debates surrounding the Fourteenth Amendment. Using those documents as the foundation for the analysis, this Article then argues that the manner the drafters and ratifiers used those terms during the debates is inconsistent with the concept of corporations as real constitutional entities.

Perhaps most interesting for my work on Original Citizenship is that the article explores the original understanding of the term “citizen.” I look forward to reading this article.

Professor Anders Walker posts to SSRN an interesting article titled Shotguns, Weddings, and Lunch Counters: Why Cultural Frames Matter to Constitutional Law. Here is the abstract:

Drawing from social movement theory, this article shows that both the constitutional challenge to gun bans in Illinois and the constitutional challenge to California’s same-sex marriage ban have had to deal with issues of frame alignment similar to those confronted by the civil rights movement in the 1960s. Yet, it is the Second Amendment litigation, ironically, that has most closely followed the movement’s attention to aligning legal claims with cultural trends. Out of this analysis emerges a larger claim that the analytics of frame alignment, and social movement theory generally, deserves more attention by constitutional scholars, both as a uniform analytic for comparing divergent reform agendas, and for better understanding the central role of cultural frames in determining the parameters of constitutional rights.

From the article:

To illustrate, this article borrows from social movementtheory to articulate explicitly that which is implicit in most of thebest studies of constitutional change, but also to stress the practicalvalue of thinking about the relationship between constitutional lawand culture in systematic, cross-disciplinary terms, reconciling thefields of law, sociology, and political science. Even lawyers mightbenefit from such an approach, for it is they who suffer mostwithout an appropriate theoretical understanding of when litigationshould be initiated, how it should be framed and ultimately howconstitutional law and social movements intersect.

The topic of popular constitutionalism has been of some interest to me, especially in light of the current challenge against the individual mandate (see here and here). Only a matter of time before I write something on this topic

The Pittsburgh Pirates, who have had 18 consecutive consecutive losing seasons actually manage to make a profit. How?

The Pirates made nearly $29.4 million in 2007 and 2008, according to team financial documents, years that were part of a streak of futility that has now reached 18 straight losing seasons. The team’s ownership also paid its partners $20.4 million in 2008.

The documents offer a rare peek inside a team that made money by getting slightly less than half its income (about $70 million) from MLB sources — including revenue sharing, network TV, major league merchandise sales and MLB’s website. The team also held down costs, keeping player salaries near the bottom of the National League, shedding pricier talent and hoping that untested prospects would blossom.

I’m reminded of the Mel Brooks classic movie, The Producers. Two crooked producers, Max Bialystock and Leo Boom set out to produce the biggest failure on Broadway, knowing that they would not have to repay investors, and they could keep any money they earn. So they put on a music called “Springtime for Hitler.” Unlike the Pittsburgh Pirates, “Springtime for Hitler” was a great success.

The Pittsburgh Pirates must have been received some inspiration here.