Sunday, December 31, 2017
Happy New Year, friends of the blog! Our wish for you next year (to quote the wise words of Steve Clowney) is that "all of your half-baked ideas turn into masterpieces, all of your committee work gets postponed, and all of your students write above average exams." Thanks for a great year and see you in 2018!
Saturday, December 23, 2017
All right, let me get this out of the way first thing: I’m a Patriots fan. Have been since 1993, when the era of “Patsies” ineptitude was a more salient association with the team than the current Brady/Belichick “Evil Empire” narrative.
That said, I am going to make the case that whatever my personal biases may be, as an objective matter the officials made the right call to reverse Pittsburgh tight end Jesse James’ (non-)catch in last Sunday’s game between the Pats and the Steelers, and even that the highly controversial “survive the ground” rule is good and should remain.
Begin with a very simple analogy to property law: Not all physical control over a thing evidences legal ownership. There are lots of easy examples: If you toss your keys to a valet, she doesn’t own your vehicle as soon as she catches them. (Also, why are you tossing your keys to a valet? Are you pretending to be in a Mentos commercial?) And if you let your friend stay in your house when you’re on vacation, he doesn’t take title as soon as he sets foot inside. They may say “possession is nine-tenths of the law,” but they also say things like “Alabamians will always prefer a child molester to a Democrat.” They happen to be wrong a lot of the time.
So to return to the topic at hand (thankfully), the point is that not every instance of physical control of the football results in a player’s possession of it. If a wideout makes a brilliant sideline catch but has one foot on the sideline, he doesn’t get possession. And for our purposes, if a tight end catches the ball briefly while falling to the ground, and then bobbles the ball on the way to the ground only to have the turf knock it loose entirely, that is not possession and it never was.
The NFL rule is clear on this:
“A player is considered to be going to the ground if he does not remain upright long enough to demonstrate that he is clearly a runner. If a player goes to the ground in the act of catching a pass (with or without contact by an opponent), he must maintain control of the ball until after his initial contact with the ground, whether in the field of play or the end zone. If he loses control of the ball, and the ball touches the ground before he regains control, the pass is incomplete. If he regains control prior to the ball touching the ground, the pass is complete.”
And for what it’s worth, this is also something that most NFL fans understand instinctively. I’ve very often seen players on my team and the opposing team snare the ball mid-air, but then lose it upon colliding with the ground, and my immediate reaction is that it’s not a catch. So the “survive the ground” rule is not some obscure technicality, it’s one I (and, I think, most observers of the game) uncontroversially understand to be true in most instances.
So why was invalidating James’ catch even controversial? Well, partly because it was called a catch and then reversed; this always makes it seem like the refs are vacillating and that the outcome is debatable, though it really shouldn’t. Calls are hard to make in an instant, and refs don’t have a perfect perspective. Video gives them a chance to get calls right, and that is way better than the previous world in which we were all stuck with terrible calls that were shown on video to be clearly wrong.
What seems to have most people confused, though, is that while he was going to ground, James broke the plane of the goal line with the ball. And it is true that in most cases, breaking the plane of the goal line means you’ve scored a touchdown, regardless of what happens after. So in this case many people’s instinctive reaction was that the play should have been dead the moment James thrust the pigskin over the goal line. This is a reasonable reaction.
Reasonable, but wrong. Breaking the plane of the goal line with the ball means you score a TD and the play is over only if you had legal possession of the ball at the time you broke the plane. Otherwise, it’s meaningless. So in James’ case, it’s actually a very easy application of the NFL rule: he bobbled the ball and lost it upon impact with the ground, so he did not complete the catch, so he never had legal possession, so his crossing the plane with the ball was irrelevant. Like the horseman Post in the famous fox hunt case, merely establishing some early sign of control does not mean squat if you don’t fulfill all the applicable criteria for legal ownership.
And the analogy to Pierson v. Post helps for another reason. In that case, it was pretty hard to argue that Post had, by merely chasing the fox, come even close to the kind of manucaption (physical deprivation of liberty) that centuries of courts and commentators agreed was necessary to reduce a wild animal to private ownership. But there was a dissenter: Livingstone, J., argued that whatever outcome the law actually dictated said, everyone knew that was bullshit.
No, seriously: Livingstone made a half-hearted argument to contest the majority’s mountain of actual legal authority with some citations of his own, but the real driver of his opinion seemed to be that Post should win because, well, “every votary of Diana” (i.e., anyone who knows squat about hunting) knew Pierson was being major uncool by interfering with an ongoing fox hunt and should lose.
This is, as I tell my students when I teach it, one of the easiest to make and least convincing claims in the entire firmament of argument: the ol’ “it’s just common sense” assertion. And in the case of the Steeler Jesse James, “common sense” is the thin reed on which countless commentators have staked their claim that the NFL got it wrong. Consider this inanity from Mark Maske of the Chicago Tribune:
“One day, the NFL will have a common-sense approach to what's a catch and what isn't. If it looks like a catch, it will be a catch. If it doesn't look like a catch, it won't be a catch.”
Ohhh, now I see. If only the NFL used the ol’ common-sense rule then everything would be clear. The rule would be “if it looks like a catch, it’s a catch.” Sounds like someone is channeling the ghost of Potter Stewart, the Supreme Court Justice who famously defined pornography by saying “I know it when I see it.”
The problem with ‘common sense’ as a standard is that while it’s a great-sounding way to make believe that our gut instincts are the only guide we need to make sense of disputes in the world, in reality it’s like Santa Claus who (sorry kids) does not exist. What’s common sense to you may not be common sense to me may not be common sense to that guy, and so on.
What ‘common sense’ really means is ‘I feel a certain way.’ And ‘my feelings say so’ is a terrible standard for resolving hard questions, because it provides no objective metric for resolution and expands rather than limits ground for disagreement. Not to mention that “common sense” has been trotted out as a defense for some of the worst, most indefensible laws and policies in American history—segregation, slavery, limiting the vote to the wealthy and propertied, etc. It’s an argument you make when you don’t really have an argument to make.
Which is why, at the end of the day, the NFL catch rule is a good, or at least good-enough, one. It sets a clear standard that refs can use to say some catches count and others don’t. It has a nice bright-line structure—yes, the much-maligned standard that a catch must “survive the ground”. And it avoids some arbitrary alternative standard like insisting that a receiver must control the ball for X number of seconds, or an incoherent alternative standard like the bizarre notion of a “football move.”
The catch rule is not perfect, of course. At times it may produce results that do not quite match up with our feelings that a catch was a catch, but then again that’s the whole point. If we moved to a “common sense” rule that prioritized our feelings above an objective standard, we wouldn’t have a rule at all, but just the conflicting intuitions of refs, players, officials, and fans. So just like in Pierson v. Post, you may not like the outcome in this case, but the rule serves purposes that easily justify putting up with occasional anomalous applications.
As Walter Sobchak admonished Smokey in The Big Lebowski, “This is not ‘Nam—there are rules.” Rules save us from the undifferentiated chaos that we’d face if we had to resolve a hundred different feelings about what “common sense” means. And whether we’re talking about possession of a feral fox or a flying football, the marginal costs of rules are well worth the advantages they bring in terms of stability and predictability. Also, go Pats.
Hoyos: The Outlaw’s Possession, or, How in a Just World Jesse James Scored a Touchdown and Sent the Pats to Ignominious Defeat
When I first saw James’ reception in replay, I thought that by rule it was clearly not a catch. A player falling down while making a catch must maintain control of the football after making contact with the ground. Following the game, NFL officials referred to it as “surviving the ground” when explaining the decision to overturn the call on the field. So, no catch, no touchdown, and yet another disappointing loss to the Pats.But the question of whether it was a catch (and hence touchdown) according to the existing rule is different from whether the rule is the correct one. So, after further, um, review, I want to suggest that law, policy, equity, and custom all favor a rule that would recognize James’ catch as a catch.
First possession requires both an intent to possess and actual, corporeal possession. This question is somewhat complicated in the football context. With wild animals or baseballs, the property belongs to no one. But in football, the offense is deemed to have “possession” of the football. When the quarterback (usually) throws the ball to a receiver, the intent is not to abandon possession of the football but to transfer possession from the quarterback to the receiver. Nonetheless, whatever the quarterback’s intent, the defensive players have as much right to possession of a thrown football as the offensive players. An interception is akin to adverse possession of the football. We might call the pass, then, constructive abandonment, or partial constructive abandonment.
Since there is no intent to abandon possession in constructive abandonment, the rules regarding possession should favor the offensive team. In James’ case, James clearly had an intent to possess, as he reached his hands out to catch the pass thrown from the quarterback. James also physically possessed the football, making a conscious decision after securing the football to reach the ball out across the goal line. The NFL even has a rule that once the football crosses the goal line, the play is over. Since James had an intent to possess, and physically possessed the ball long enough to make a decision as to what to do with it, he clearly had possession.
The question of course is what to do with the fact that James was falling to the ground as he made the catch. This is where policy comes in. Wholly apart from winning or losing, scoring should be a high priority for almost any sport. Scores are exciting for both players and fans, and the rules should encourage scoring plays whenever possible.
Since the NFL has already determined that a play is dead as soon as the ball crosses the goal line, the question should be whether the offensive receiver had possession at the decisive moment when the ball crosses the goal line, not whether the receiver “survived the ground.” Surviving the ground can make sense if the receiver catches the ball within the field of play where there is no decisive moment, and the first down marker is less defined than the goal line. Since the player is still within the field of play, completing the catch after surviving the ground respects both the offensive team’s possession and the constructive abandonment of the pass.
The decisive moment rule facilitates scoring in a way that is consistent with current NFL rules. As mentioned, the NFL already deems the play dead when the ball crosses the goal line. Moreover, the NFL has also determined that the ground cannot cause a fumble. Putting one and one together equals a touchdown for James.
The decisive moment rule could also be applied to side lines and end lines at the back of end zones. This would also reward the toe-tapping skill that only the best professional receivers have mastered. (Steelers wideout Antonio Brown, by the way, does not need such an accommodation.) Side lines and end lines, like goal lines, are also clearly marked on the field.
Equity also lies in favor of James’. Dan LeBetard made this case on his sport show “The Dan LeBetard Show with Stugotz.” In essence, players are brutalizing their bodies in the “forceful acquisition of real estate,” and thus should be rewarded in any close call. The reward should be the most exciting outcome. In this context, the reward would be the touchdown. But in other situations the reward could be, for example, the turnover. In James’ case, no Patriots player caused the loss of control of the football; it was only the ground. Without any countervailing equity concerns, the scales of fairness lie in James’ favor.
Finally, custom also lies in James’s favor. Time and again, watching the sports commentary following the game, voice was given to the idea that “this has always been a catch.” James himself confessed that despite playing football most of his life, he now doubted his ability to understand what a touchdown is and isn’t. And once again, calls were issued to change a rule that nobody understands, or even if they understand it, disagree with it. If the common perception recognizes James’ catch as a touchdown, then refusing to recognize it jeopardizes the legitimacy of the NFL’s rules and product.
So while the call may have been correct according to the NFL’s rules as they currently exist, the rules do not adequately capture or reflect basic ideas about first possession.
Thursday, December 14, 2017
2018 Affordable Housing & Community Development Law
Law Student Legal Writing Competition
This writing competition (“Competition”) is sponsored by the Forum on Affordable Housing and Community Development Law (“Forum”) of the American Bar Association (“ABA”), 321 N. Clark Street, Chicago, IL 60654 (the “Sponsor”).
The goal of the competition is to encourage law students to become involved in the Forum. It is also intended to attract students to the affordable housing, community development or pro bono practice fields, and to encourage scholarship in these fields. Each entrant must follow the rules of the competition detailed herein.
Open to all law students who are at the time of entry, (a) enrolled in a law school that is at the time of entry, ABA Accredited, (b) members of the ABA and the Forum, (c) at least 21 years old, and (d) U.S. citizens or legal permanent residents. Employees of the ABA, its respective affiliates, and immediate family or household members of such employees are not eligible for the Competition.
Entries should address any legal issue regarding affordable housing and/or community development law.
(a) Entries must be original, unpublished work. Any relevant article or essay may be submitted for the competition, including writing submitted for academic credit. Submissions must not have been previously published in any media. Only one essay, per competition theme, may be submitted by each entrant. Failure to submit an original essay will result in disqualification and selection of a new winner. Entries should be between 25-50 double-spaced pages, with 1-inch margins, in Times New Roman, 12 pt. size Font. Articles should include footnotes in Bluebook format (single spaced in Times New Roman, 10 pt. size font and which shall count towards the word limit).
(b) There is no entry form of any kind. Entries should be submitted in Word format. All author-identifying information should be removed from the entry.
(c) A separate title page should be attached and must contain the entry’s title, the student's name, law school and expected graduation year, and the student's contact information including mailing address, phone number(s), and email addre
(d) Entries must be submitted by e-mail to the Editor-in-Chief of the Journal of Affordable Housing and Community Development Law (the “Journal”), Michael T. Iglesias, firstname.lastname@example.org no later than 11:59 PM Central Time, on March 3, 2018. The Sponsor is not responsible for errors or for lost, late, or misdirected email, or telecommunication or hardware or software failures, including by reason of any bug or computer virus or other failur
Selection and Notification of Winners:
The entries will be judged anonymously by a five (5) person committee comprised of members of the Forum. Decision of the Sponsor (including the committee judging the entries are final) . Entries will be judged based on the following criteria: clarity of the topic, significance of the topic, manner in which the topic is treated, organization, quality of analysis, quality of research, authority, and citations, and quality of grammar, syntax, and form. The winning entry will be notified by email by April 20, 2018, 11:59 pm Central Time. The winner must acknowledge and confirm agreement to the terms and conditions of winning the competition no later than May 1, 2018, after which he/she forfeits the prizes and another winner may be selected.
A single winning entry, as judged by the selection committee, will be eligible to receive a prize of (a) a $1,000 cash prize and (b) up to $1,000 reimbursement for hotel (Mandarin Oriental Hotel) and transportation expenses (not to exceed $500) to attend the Forum's Annual Conference occurring May 23-25, 2018, in Washington, D.C.* The Sponsor may substitute a prize of equal or greater value in its sole discretion. Prizes are non- transferable and cannot be substituted by the winner. Cash equivalent for prizes is not available. Winners will be solely responsible for reporting and payment of all taxes (federal, state, local or other) on prizes, which will include the value of any accommodations and airfare. Winners will be required to complete a W-9, affidavit of eligibility, tax acknowledgment and liability release for tax purposes. All forms must be completed and returned via email to Dawn R. Holiday at email@example.com within 15 business days of receipt, or prizes will be considered forfeited and another winner may be named. The decision of the Sponsor, including the judging committee is final.
At the sole discretion of the Sponsor, the winning essay may be selected for publication in the Journal. If selected for publication, winner will be required to sign a standard publication agreement giving the ABA the right of first publication. Please note: The Forum on Affordable Housing and Community Development Law must have the first right of publication of the selected essay.
License/Grant of Rights:
By entering, the winning entrant consents to the publication of her/his entry by the ABA, understands that such publication is not guaranteed, and grants the ABA the following rights: (1) the exclusive worldwide right of first publication of their entry in any and all ABA media or form of communication; (2) the non-exclusive worldwide right, in ABA’s sole discretion, to use, transcribe, publish reproduce, distribute, sell (as part of an ABA publication) or display the entry, alone or in conjunction with other materials; (3) the right to edit the essay to conform to the publication’s standards of style, technological requirements, language, grammar and punctuation, provided the meaning of the essay is not materially altered; and (4) the non-exclusive worldwide right to use the winner’s name and likeness in connection with the essay or this Competition, in each case, without further compensation. Additionally, the winning entrant must execute a separate publication agreement giving the ABA the publication rights enumerated above and the right to use the article for any other purpose related to the ABA mission. If the winner fails to sign the agreement within 30 calendar days of receipt, the prize will be considered forfeited and another winner named
All entries must be emailed by March 3, 2018, 11:59 pm Central.
Odds of Winning:
Chances of winning may vary depending on the number of entries. However, Sponsor reserves the right not to award any prize if the judges determine that no entries are of sufficient quality to merit selection that year.
Laws and Regulations:
This Competition is governed by U.S. law and all relevant federal, state, and local laws and regulations apply. By entering, all participants agree that the competition shall be governed by the laws of the State of Illinois, that the courts of Illinois shall have exclusive jurisdiction, and that Cook County, Illinois shall be the venue for any dispute or litigation relating to or arising from the competition. Void where prohibited by law.
Conditions of Participation:
By participating, each entrant agrees to these Official Rules and the decisions of the Sponsor and releases and discharges the Sponsor, including but not limited to the ABA, subsidiary and affiliated entities, and each of their respective officers, directors, members, employees, independent contractors, agents, representatives, successors and assigns (collectively “Released Parties”) from any and all liability whatsoever in connection with this Competition, including without limitation legal claims, costs, injuries, losses or damages, demands or actions of any kind (including without limitation personal injuries, death, damage to, loss or destruction of property, rights of publicity or privacy, defamation, or portrayal in a false light) (collectively “Claims”). Except where prohibited, acceptance of a prize constitutes a release by any winner of the Released Parties of any and all Claims in connection with the administration of this promotion and the use, misuse or possession of any prize. All entries submitted to the ABA become the property of the ABA and will not be returned; however, entrants who do not win first- place may submit their entries for publication elsewhere. Entrants must not submit their articles for publication elsewhere prior to December 11, 2017. All expenses involved in preparing and submitting an entry are the sole responsibility of the entrant.
Sponsor is not responsible for errors or for lost, late, or misdirected mail or email, or telecommunication or hardware or software failures, including by reason of any bug or computer virus or other failure. Sponsor may cancel, modify or terminate the promotion if it is not capable of completion as planned, including by reason of infection by computer virus, tampering, unauthorized intervention, force majeure or technical difficulties of any kind.
Announcement of Winners: For a list of prize winners, send a self-addressed stamped envelope by May 31, 2018 to the Forum on Affordable Housing and Community Development Law of the American Bar Association, 321 N. Clark Street, Chicago, IL 60654.
Any individual may elect to opt out of receiving future contest or competition mailings from the ABA by calling the ABA Service Center at 800-285-2221.
Information provided by entrants in connection with this Competition is subject to the
The Forum on Affordable Housing and Community Development Law of the American
Bar Association, 321 N. Clark Street, Chicago, IL 60654.
Please contact Dawn R. Holiday at firstname.lastname@example.org, if you have any questions.
*Coach airfare, 21-day advance purchase and lodging at the conference hotel for 2 nights.