Archive for the ‘Random stuff’ Category

Unwritten rules

Friday, April 25th, 2014

The baseball season isn’t even a month old as of this writing, but we’ve still had our first two instances of “unwritten rules” violations.  What are “unwritten rules”?  Well, they’re the customs that everyone agrees to follow, except when they don’t agree on them or don’t agree to follow them.  Get it?  Baseball has a mess of them, and they often seem peculiar, arcane, or just plain silly to an outsider.  Anyway, here are the first two instances from this season (or at least, the ones I know of).

 First came the Houston Astros’ manager Bo Porter having not-so-nice words with Jed Lowrie, shortstop for the Oakland Athletics.  The A’s were cruising as early as the first inning against the Astros, putting up seven runs to the Astros’ zero.  With Lowrie coming up to bat, the Astros played the shift, meaning they positioned all the fielders to the right, resulting in the third-baseman playing about 20 feet off the third-base line.  With his team already up 7-0, Lowrie tried to lay down a bunt along the third-base line, which would have made a near-impossible play at first for the Astros’ fielders.  On his next at-bat, Lowrie found himself the target of several retaliatory brush-back pitches.  He flied out to end that inning but had a few choice words he shared with Astros’ second baseman Jose Altuve.  And that was when Porter got involved, leaving the dugout to read Lowrie the riot act.

 A manager chewing out an opposing player is an unusual sort of thing.  It’s kind of like an invited guest yelling at the help.  It’s just not done.  But that’s not the unwritten rule I’m talking about here.  Porter was incensed because he seemed to feel Lowrie violated the unwritten rule of “thou shall not take extraordinary measures to pile on to an already beaten opponent.”  This may apply doubly when the opponent has the Astros’ anemic offense.  Whether or not Porter really had any right to get upset is a matter for debate.  If your team is capable of being beaten before the end of the first inning, it doesn’t make much difference what the other team does, and because it was only the first inning, more than arguably, Lowrie was just doing his job.  But the fact that Porter felt justified in being incensed shows how seriously some take the unwritten rule.

 In another instance, just in the last week, Yankees’ pitcher Michael Pineda got ejected from his club’s game against the Boston Red Sox and landed a 10-game suspension, to boot.  Formally, the ejection and suspension were punishment for doctoring the surface of the baseball with pine tar to allow himself a better grip.  Baseball has a long history of pitchers scuffing the ball with nail files, emery boards, or sandpaper; smearing the ball with Vaseline, to make it slip off the fingers; and the liberal use of pine tar by both hitters and pitchers.  (Don’t get me started on corked bats and PEDs.)  It’s an express violation of the written rules, but the conventional wisdom is that “everybody does it.”  It’s the nasty little habit everyone has:  like picking your nose, scratching inappropriate places, or sniffing your armpits.  As long you don’t advertise it, everyone is willing to act like it doesn’t happen.

 But, Pineda’s sin was doing it to the same opponent twice in a row and being so obvious that the Red Sox couldn’t help but catch him at it.  (The smear of pine tar on his neck was readily visible in game photos.)  Red Sox manager John Farrell brought it to the attention of the umpire and said after the game, “when it’s that obvious, something has to be said.”  Again, the unwritten rule:  “Cheat discreetly.”  Pineda’s violation was so great that Yankees’ GM Brian Cashman felt the need to express his embarrassment about it.  (Of course, a person more cynical than I might suggest that it’s rather nice the Yankees are still capable of feeling shame about something.)

It got me thinking about the unwritten rules that govern my own profession and my own little corner of it.  In litigation, generally, but especially in the appellate arena, we’re all expected to play nicely together and avoid disagreement for its own sake.  So when a fellow appellate lawyer—a smart, experienced, and honorable practitioner of my acquaintance—mentioned on Facebook this week that he had received pushback from his opposing counsel on getting an extension of time to file a brief (and this, when he had only just entered an appearance in the case), the opprobrium was palpable.  Every appellate practitioner has been in that situation of having looming deadlines and too much to do to meet them all.  Our unwritten rule is that you don’t oppose someone when he asks politely for your position on his extension.  You agree to hold your tongue, regardless of how you feel about it and explain it to your client as a strategic decision.

 So, in some ways, the attitude of legal practitioners mirrors that of baseball players.  Even if the rules don’t require civility in certain areas, custom certainly does, and the lawyer who flouts the unwritten rule risks becoming a pariah.  No one wants to be on the business end of that brushback pitch.

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Scary times…..

Monday, March 24th, 2014

I don’t claim to be a student of world history or politics, but I do remember my high-school studies in world history, and that’s why Vladimir Putin scares the hell out of me. Because Putin is the shiny new face on, not just the old Soviet Union, but the ethnic philosophies that Hitler espoused after he rose to power with the Third Reich. Yes, I’m aware of Godwin’s Law, but hear me out.

Putin is ex-KGB. Everyone knew it when he rose to power, but he seemed to be a benevolent version of it. He was invited to join in with G7 and NATO discussions, and the belief was that he represented the face of a kinder, gentler Russia. But the arguments Putin is putting forth these days smack of the same stuff that was used to annex portions of Czechoslovakia in the years leading up to World War Two. Back then, Hitler argued that the Sudetenland—the western-most portion of Czechoslovakia—was heavily populated with ethnic Germans and should be annexed as a part of Germany. This is, of course, the exact same argument Putin has used for annexing the Crimea. Hitler argued the same thing with regard to Austria before annexing the entire country. It remains to be seen if Putin will do the same with the rest of Ukraine, but it doesn’t look promising for anyone who holds peace as a priority.

Dealing with the devil carries a cost. Putin became a part of the international community and received legitimacy from U. S. administrations. It seems that no one knew he would become this. These are scary times we live in.

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A work in progress

Wednesday, April 3rd, 2013

I apologize in advance for the shamelessly “homerish” tone of what follows, but I felt the need to write this.  I’ve been in Houston for many, many years now, and I see things happening that I am proud to see.  I think we are doing well.

A few days ago, I had need to visit the Clerk’s office of the Fourteenth Court of Appeals.  The Clerk’s office is in the same building as the Court, itself, the recently restored 1910 Harris County courthouse, which has now become home to the Fourteenth and also to the First Court of Appeals.  I parked on Preston Street, in the area known as Market Square, and headed southeast toward the courthouse.

As I walked by the corner of Preston and Travis Street, I saw the beginnings of a mural that was being drawn and painted on a two-story wall.  The painting was in its infancy, but the outlines of the mural were already drawn.  It was a drawing of Houston’s downtown skyline with the word “Houston” prominently displayed in the middle of it all.  Colors were being filled in, bit by bit, though the end product was far from complete.  Nevertheless, it was obvious, even at this early stage, that the end product would be full of vibrant color and energy.

And I thought to myself:  “This wouldn’t have happened ten or twelve years ago.”

Because, strangely, I think I find myself in a city that is experiencing a renaissance.  Houston has, for many years, had a civic inferiority complex.  There have been scams and scandals here, but nothing that would draw anyone in; nothing—besides money —that would make them want to be here.  But, it seems that may be coming to an end.  What I see recently is a new sense of pride.  It’s been tried before, but this time it seems like it’s sticking.

Suddenly, Houston is cool.  Houston is a destination.  Even in neighborhoods off the beaten path (and I include my own humble home which has become known as “the GOOF,” where new restaurants and one of the best craft beer bars in the country now reside), there seems to be a sense of possibility and maybe a feeling that there is actually something unique here and worth exploring.  Maybe it’s a transient thing.  Maybe it’s just the fact that Houston survived the recent economic turmoil with less fallout than most cities.  Maybe having a job constitutes being hip, these days.

The truth is that the Bayou City (yes, that’s what we call it) has always been a strange amalgam of go-for-broke business (see, the Allen brothers), artistry, and immigration.  Houston is now the most ethnically diverse city in the entire country, and it’s a leading indicator of where the country is going, ethnically, politically, and demographically.  It’s increasingly progressive.  And now, it’s being discovered.  It‘s kind of nice.  Because there’s always been a lot here.  We’re still building, but it’s not done yet.  We’re still making it better, because it needs to be and because we can.  And if we weren’t, we’d be abandoning the very foundation of Houston’s success.  If there’s one thing I’ve learned from being here, it’s that Houston doesn’t stand still.  That’s just not the way we do things here.

UPDATE:   And the Daily Beast confirms it.

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Baseball and the public trust

Wednesday, November 14th, 2012

A winning sports franchise can be a point of civic pride.  Economists and others much smarter than I frequently seem to argue about the value of professional sports to a city’s bottom line, but there can be little doubt that such things contribute to a city’s image and can influence how its own residents perceive it.  There’s an air to the classic teams—the “Showtime” Lakers, the “Bronx Bomber” Yankees, and the blue-collar “Steel Curtain” defense of the Steelers—that reflects the cities they call home.  Never mind that much of it is just image; it’s an image the public loves to see and make its own.

So it helps to explain (though, perhaps, not to justify) when public money goes into building stadiums and arenas for these millionaires’ games.  As long as a team owner is working to put a winning team on the field and seems like a nice enough sort, he can generally be confident of support from much of the public, though there will always be a vocal minority in opposition.  And then there’s Jeffrey Loria (look down the page; amazingly, he’s only number 9).

Loria is the owner of the Miami (née Florida) Marlins of the National League.  Loria isn’t just disliked; he’s despised.  This is despite the fact that the Marlins have won two World Series in the last 15 or so years, in 1997 and 2003.  So why all the Loria hate?  Because of stuff like this.  Yesterday, the Marlins came to an agreement in principle to ship away in the neighborhood of $160 million in future salary commitments to players, several of whom—like All-Star shortstop Jose Reyes—were signed only last offseason.  (ESPN Radio reports that many of the players traded had back-loaded contracts, suggesting that this move was likely planned all along.)  This followed the shipping of several other stars—Hanley Ramirez, Heath Bell—to other clubs during and immediately following the 2012 season.

Now, fire sales are nothing new.  Rebuilding franchises do it all the time.  There comes a time when a club simply has to cut bait and build for the future.  But the Marlins are old pros at this, having had fire sales immediately following both their World Series wins (interestingly, the only two times that the club has made the playoffs in its 20 year existence).  And this latest one comes shortly after Miami taxpayers footed 80% of the bill for a new Marlins stadium, even as Loria pleaded poverty.  (The financing was a concern all along and even drew the attention of the SEC.)  A resourceful hacker got a hold of the Marlins’ financial statements and furnished them to Deadspin.  They showed that the club was anything but in the red, months after it asked the public to finance a stadium it claimed to be unable to finance itself.  And that’s the real rub.  The taxpayers helped Loria line his pockets, and now he is punting on his end of the deal.

Granted, nothing requires Loria to put a championship team on the field.  Loria can soak the local populace and pocket the funds that come from it.  But, as I mentioned before, sports teams are a source of local pride.  Even so, a national organization—in this case, Major League Baseball—oversees them.  And this has got to be MLB’s worst case scenario.  Essentially, one of its owners has defrauded local government.  That’s bad for the business of government, it’s bad for the business of baseball, and it means that the local fans aren’t just taken for granted, they’re taken for a bunch of suckers. I rather suspect that Loria’s actions may prompt some sort of legal action from the city.  The question is whether it would have a leg to stand on, given that it seems the entire city government bought Loria’s line without asking many questions.  It seems the city never asked for much information about whether the Marlins could afford to contribute more; they just took them at their word.  That word was no good.

Miami residents should be revolted by Loria and perturbed by their own city officials who allowed this to happen.  And Major League Baseball should be getting involved.  Otherwise, the prevailing image of baseball in Miami is essentially a real estate con.  No city should have its team provide that image.

 

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The Man and the Myth

Sunday, August 26th, 2012

In my other life (the one outside of the legal profession), I’m a pretty avid cyclist and have been for over a decade.  This translates to my going out on weekend bike rides of 40-50 miles a pop for most of the year and usually riding at least one significant two-day tour (think, MS150) each year.  For most of the time I’ve been a serious cyclist, Lance Armstrong has been the central figure in the professional sport, or, at least, the one best known to everyone in the U.S.

You can call Armstrong a lot of things:  a Tour de France champion, a fierce competitor, an arrogant opportunist, and a philanthropist.  And for a lot of years, a number of authorities have been trying to pin another label on him:  dope cheat.

Professional cycling has been a dirty sport for a lot of years.  It becomes understandable when you see what riders in one of the major tours put themselves through—thousands of miles up seemingly impossible climbs and through all manner of conditions.  And at the end of weeks of racing, a few seconds can decide the winner from the also-rans.  Doping became a huge and shameful part of the sport, and the efforts have only recently gotten serious in cracking down on it.

For his part, Armstrong presented a script that Hollywood couldn’t have written any better.  A cancer survivor—and barely, at that—who came back to, not just win, but dominate on the biggest stage his sport has to offer.  Add to this the fact that he used his new-found fame to raise millions of dollars for cancer research and to improve the lives of people suffering from cancer, and it’s a story that seems too good to be true.  And the U. S. Anti-Doping Agency says it is.

Anti-doping forces have been pursuing Armstrong for years, accompanied by members of the media—including a very vocal French contingent—who believe he cheated to win France’s signature sporting event.  But, during his career and the thousands of drug tests that involved, no one ever nailed Armstrong.  He passed every test, if not with flying colors, at least sufficiently to prevent his accusers from proving their case.  Nevertheless, this week USADA purportedly stripped Armstrong of all seven of his Tour de France titles and obliterated fourteen years of his career.  And this bothers me for a number of reasons.

Everyone agrees that urine and blood testing is the gold standard for finding out if an athlete has been doping. As mentioned, that kind of testing was done on Armstrong to an incredible extent, and he never failed a test that actually lived up to the appropriate procedural.  (I have heard it said that some of Armstrong’s test results were thrown out based on “technicalities.”  What the media tends to call “technicalities” are often what we in the law call “fundamental rights” and this isn’t the place for me to expound on my loathing of the term “technicalities.”  Suffice to say, the USADA couldn’t get the job done with its testing.)  When USADA realized it couldn’t convict Armstrong with scientific evidence, it turned to anecdotal evidence–testimony from teammates and former teammates, some desperately trying to clear their own names or find someone else to blame for their own getting caught (see Floyd Landis).

Secondly, Armstrong has now said that he’s not going to fight the allegations anymore. The USADA’s reaction was that his refusal to contest the allegations was being taken as an admission of guilt. That’s rubbish. Absent a duty to speak, silence is not a confession of anything. USADA has taken the position that, because Armstrong won’t engage it anymore, it is now free to dispense with the burden of proof altogether and jump straight to “guilty.”

Third and finally, there is the question of the tactics employed by USADA, WADA, and other anti-doping crusaders. As I’ve written before, these people strike me as true zealots, and their tactics raise some serious questions about privacy and propriety. Riding in a bike race doesn’t mean giving up all rights to privacy and to due process.  So do I think Armstrong is innocent? Probably, no. I’d like to think so, and I still hope so. The truth is I don’t know. But do I think he’s been shown to be guilty and given his procedural due? Absolutely, unequivocally, positively, no.

For my part, I will continue to admire Armstrong.  Even if his Tour wins were tainted, there is plenty of likelihood that he was no worse than anyone else participating.  Moreover, the symbol of Armstrong will always be at the forefront.  Having seen my father succumb to cancer and having witnessed my wife haunted by its specter, what Armstrong has done for cancer awareness and funding is bigger than anything else he might or might not have done.  Ever.  I will continue to wear my LIVESTRONG bracelet every day, even in court.  And when it breaks, I’ll go buy another.  Because sports isn’t just about competition; it’s about myth-making.  And sometimes we need the myth more than we need the man.

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Super Arguments

Friday, June 8th, 2012

Okay, this is the kind of stuff that makes me love being a lawyer.  Some people practice for the money; some do it for the prestige; some do it because they honestly are doing good things, great things even, that are so, so necessary for our system of justice.  But I’m shallow compared to them, and I admit it.  I just love the clever argument, and I love being the one to make it.  And that’s why I would have given up my Spiderman PJs to be the lawyer for Toy Biz, Inc., who came up with this gem.  And the connection to the superhero comics of my youth is just an added bonus.

It seems there’s a distinction between “toys” and “dolls” when it comes to import duties.  Let’s face it.  All these things are manufactured in China and shipped into the U.S.A.  When Toy Biz moved to import a bunch of “action figures” from the Marvel Comics universe—specifically, the X-Men, Spiderman, and the Fantastic Four—it was told that they’d be subject to the 12% ad valorem import tax rate on “dolls.”  This was as opposed to the 6.8% ad valorem duty on “toys.”  How did Toy Biz answer?

It argued that the “action figures” at issue “are properly classifiable as ‘Toys representing animals or other non-human creatures (for example, robots and monsters) and parts and accessories thereof: Other.’”  In other words, they said the X-Men aren’t human.  Whatever your position on Mutant Rights, that argument is terrific.  And it won.

Of course, this leaves me thinking:  what is the fate of Iron Man (aka Tony Stark)?  It’s only the suit that makes him “super,” so does the Tony Stark (Iron Man suit) version get treated differently from the Tony Stark (Armani suit) version?  And really, he’s the same guy, either way.  So what happens?

Incidentally, if anyone wants to contact me about this . . . really, for whatever reason . . . my information is on this site.  Just sayin’.

 

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Forbidden Words

Tuesday, May 29th, 2012

Well here’s something to think about the next time you’re on Facebook.  The Department of Homeland Security has released (under duress, according to the Daily Mail) a list of keywords and phrases it uses to monitor social networking sites and online media for signs of terrorist or other threats against the U.S.  The list runs from “Al Qaeda” to “Los Zetas” with stops in-between at “chemical agent,” “ebola,” and “nuclear facility.”  Damn, there goes my next tweet.

But what does this mean for the average person?

Well, it means if you live in D.C., Atlanta, or San Francisco and you ride public transport, Big Brother is watching because WMATA, MARTA, and BART are all on the list.  Fans of heavy metal might want to reconsider their love for Anthrax, and shoppers might think about transferring their allegiances to J.C. Penney because Target has a black cloud over it.  (Speaking of which, the Weathermen of the 1960s and 1970s have got nothing on the reprobation doled out to the meterologically inclined by DHS.)  Don’t even think about going near El Paso, Yuma, Tucson, or Juarez.  Actually, just stay away from the border area, altogether.  You’ll be better off.

In the sports world, “ice” skating is out, but roller skating appears to be okay.  They should be able to re-vamp things in time for the Stanley Cup Finals.  Oh, and USC fans (and condom enthusiasts, I guess)?  “Trojan” is on the list, too.  So it’s time for a new mascot.

Even Jerry’s Kids aren’t immune.  (Okay, that was awful, I admit it.)  “MDA” also means “maritime domain awareness,” and that is most definitely on the list.  And don’t say those poor kids are “sick.”  Because that’s on the list, too.

It’s enough to make you want to stop speaking altogether.  But don’t do it.  Just be careful.  Relax.  Treat yourself to lunch.  (But not “pork” chops or sandwiches.)   And stay away from “social media” because we always knew that stuff was “toxic” anyway.

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Being principled when you don’t have to…

Saturday, February 25th, 2012

It’s not unusual to see athletes either skirting controversy in the understandable name of good business or suddenly developing principles when the “not guilty” verdict—or plea to a lesser crime—comes in.  So it’s refreshing to see a case like that of Joseph Williams, a junior walk-on for the University of Virginia’s football program.  As of February 23, Williams was in the seventh day of a hunger strike “to protest the economic and social injustices perpetrated by the UVa administration against the vast majority of the University’s service-sector employees.”  In particular, Williams calls out top University administrators who are among the highest-paid state employees in Virginia while noting that hundreds of the University’s contract employees are paid as little as $7.25/hour.  He also calls out the University for moral hypocrisy and calls for a living wage for University employees.

Williams, himself, comes from a difficult background.  By his own account, he grew up as one of four children supported by a single mother and lived in 30 different places—several of them homeless shelters—before graduating high school at age 16.  As a result, it would seem Williams knows a thing or two about living with economic hardship.

Of course, Williams doesn’t have as much at stake as did Michael Jordan when he reportedly commented that “Republicans buy shoes, too.”  But there’s still something nice about seeing a student-athlete—and a football player, in particular—who is willing to tilt at some windmills in the name of his principles.   And it’s nice to see him having principles before he needs them to repair a fractured image.

Tip o’ the hat to Dr. Saturday.

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Houston, we have a superhero….

Friday, January 6th, 2012

Texas fanboys, rejoice!  Houston has its own version of Spiderman in the Marvel Comics universe.  The character is Scarlet Spider, a clone of the original Spiderman but one with a checkered past who is now trying to go straight while leading a life in the Bayou City.  Or at least, straighter, to judge by the caption at the top of issue #1—“All of the Power.  None of the Responsibility.”

Yep, sounds kinda like Houston.

According to the series’ creators, Scarlet will be doing battle with a variety of baddies—Salamander, an assassins’ guild from New Orleans, and the pinnacle of evil in the Marvel universe—Roxxon Corporation, a conglomerate having its headquarters in Houston.  Huh…wonder where they got the idea for that one…there’s more than one possibility.

But, of course, the first question that crossed my mind was “how’s he gonna get around?”  I mean, outside of downtown, of course.  The original webslinger is well known for swinging from the highrise buildings and towers of Manhattan, but outside of downtown and a few select areas, Houston offers no such easy transit for a would-be superhero.  Perhaps Scarlet Spider’s writers are going to have to get a little creative to help their protagonist beat the everyday villain in Houston—rush-hour traffic.  It would take a bit of the “super” out of the “superhero” to think of him having to catch the bus from Smith Street out to Greenway Plaza.

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Politics, bias, and the law

Thursday, January 5th, 2012

There’s something a little weird about members of Congress accusing Supreme Court justices of being overly political.  Republican lawmakers and their supporters have demanded that Justice Elena Kagan recuse herself from any case involving “Obamacare” or the “Affordable Health Care Act.” (Really, what you call it depends on whether you’re for or against it.)  Similarly, Democratic members of Congress and their supporters have called for Justice Clarence Thomas to recuse himself, in light of his wife’s campaigning against the new law.  As tempting as it is to try to weed out any and all possibilities of bias from a judicial panel before allowing it to hear a case, it’s a futile task and a pointless one, too.  No one goes through life without forming opinions on a whole lot of subjects, whether or not they’re qualified to opine on those subjects.  The combined efforts of plaintiffs’ and defendants’ trial lawyers try to choose jury panels that are roughly balanced, but it’s a given that predilections still exist.  When those predilections serve our opponents’ purposes, we call them “biases.”  When they serve ours, we call them “life experience.”

So it was good to see Chief Justice John Roberts stand up for the integrity of the Court in his year-end report on the Court’s activities.  Roberts didn’t mention the healthcare debate—or any particular case, for that matter—but he dismissed the notion that Supreme Court justices are subject to laxer rules than other judges.  “I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” wrote Roberts. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties.”

The truth is, Roberts may be flat wrong.  But it doesn’t matter.  The good of our judicial system (and our governmental system, as a whole) dictates that we maintain a few fictions, and Supreme Court impartiality is one of them.  The Constitutional scheme of life tenure for federal judges creates the best chance it can of an impartial judiciary.  On the federal level, we’ve done our best.  In Texas, where we have a long history of allegations of “justice for sale”—on both sides of the party aisle, whether the characterization is correct or not—we’re still working on it.  Roberts’s report recognizes that an ethical judiciary requires appointing ethical people.  All else is faith.

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