Tuesday, September 21, 2010

Thoughts on Sports

I need to write about sports. There are a few very unrelated things that have been weighing on my mind:

#1: Rafael Nadal.

Rafael Nadal is one of the greatest tennis players to ever play the game. He is a competitor. I think that’s why I like him so much. He plays every point like it is match point.

I’m not writing this to say that Nadal is the greatest tennis player ever. In fact, if you twisted my arm, I would probably have to say it is Federer—notwithstanding Nadal’s overwhelming dominance in head-to-head matches (14-7 overall; 5-2 in slam finals). I’m writing this to say that the year Nadal is having is the best year that any player has ever had. You’re probably screaming at the computer screen right now saying, “What about Rod Laver in 1969!” Sure, Laver is the only man to have won all 4 majors in the same calendar year, but he was a grass guy and back in ’69, three of the four majors were played on grass.

Nadal won three of the four majors this year: the French Open on clay, Wimbledon on grass, and the US Open on hard courts. That has never been done. That speaks volumes about both his ability and his work ethic. Just two years ago he was seen as nothing more than a clay court specialist who could never win on hard courts. He was a defensive worker who couldn’t cope with the pace on hard courts. He had a very below average serve and usually just spun it in. Now how’s he doing? He has one of the strongest serves on tour, he’s the favorite in any tournament regardless of the surface, he won three majors this year, and he just stormed through the hard courts of the US Open dropping only one set the entire tournament. With that win at the US Open, Nadal became just the seventh man to win all four majors…and he’s only 24 years old.

Another reason why I like Nadal is because of his humility in all of his interviews. Nadal always deflects the praise, focuses on the task at hand, compliments his opponents, and is very polite to everybody around him. I’m a Nadal fan.

#2: Derek Jeter.

One of my roommates is a huge Yankees fan (he does have redeeming qualities though). I watched a couple innings of their game last week (1 of 162) and saw something that really caught my eye. Derek Jeter, a noted “classy” guy in the MLB, was up to bat and there was a pitch high and inside. Instinctively, Jeter flinched back to get out of the way of the ball. In doing so, the ball struck the butt of the handle of bat and then went into foul territory. The correct call is obviously a foul ball. However, Jeter was hunched over in feigned agony pretending that the ball hit him. The ump decided that it did hit Jeter and subsequently awarded him first base. The opposing team was irate and, after the game, Jeter admitted that it should have been a foul ball.

What really grabbed my attention was the praise that Jeter got for his “smart” play, “quick” thinking,” “gamesmanship,” “do-whatever-it-takes attitude,” etc. I think up until recently I would have agreed with the praise. Wally Matthews on ESPN said that those words are starting to simply become code words for bad sportsmanship and the kind of behavior that would not be tolerated in any other line of work. I’m starting to agree. I think baseball would have been better off if Jeter told the ump that the ball didn’t hit him. Basketball would be better if Manu Ginobli & Co didn’t flop every time down the court. Football has things like this too though I don’t find them as egregious (receivers trapping the ball claiming they caught it, players wrestling for a ball after the whistle at the bottom of a pile). Maybe they don’t bother me as much in football because replay rules generally produce the right call. That’s why tennis is the best sport. None of this goes on in tennis. There is no flopping in tennis…except in this clip that Hiller sent me.

Friday, September 17, 2010

A Taste of Law School

(Disclosure: This post is probably very boring to most of you. I don’t expect anyone to read it, let alone enjoy it. I’m writing it mostly because Jason said that he thought it might be interesting to see what goes on in law school. This entry is basically a synthesis of readings I did today on contracts made under duress. Point being: I haven’t been to class to discuss it so it might be ‘completely opposite’ what I should have gotten out of it. Take it for what it’s worth. I’m writing on this not necessarily because I find it particularly interesting but simply because I just finished reading it.)

Assuming that the form is correct, courts are not in the business of controlling contracts (generally). If a contract is made, and there is consideration on both sides then typically that contract is valid. Courts enter the picture when one of the parties named breaches the terms established by both sides. It is not the role of the court (again generally) to determine which contracts are “fair.” However there are some instances that that allow courts to say that a contract was not valid to begin with and, consequently, neither party is bound by the terms. Duress is one such instance.

The doctrine of duress (in the context of contracts) is an effort to establish the boundary between proper and improper advantage-taking. Individual freedom turns on having a large degree of choice. Contracts entered under duress strain that individual freedom. If I point a gun at your head and threaten to kill you unless you make a contract, the resulting agreement is not an expression of free choice. Not surprisingly, the courts refuse to enforce such a contract.

The above example is obviously an extreme example. What becomes difficult is establishing where to draw the line of duress. The classic doctrine says that a threat to do what you are legally entitled to do cannot be duress.

Case law has changed this standard over the last 50 years. There was a case in Texas in which a truck driver named Mitchell for Herrin Transportation Company was injured in a car accident on the job. Mitchell was not at fault but Herrin wanted to secure a prompt settlement of its claim for damages to the truck. In the settlement negotiations, the insurance company of the other driver did not want to pay Herrin until it also received releases from Mitchell for any claim he might have arising out of the accident (apparently a common practice). In its desire to close the settlement, Herron threatened Mitchell that unless he signed the release, he would be fired. Mitchell signed but subsequently brought an action for his injuries. He asked the court to set aside the release on the ground that they had been secured through duress. After a series of trials and appeals, it was determined that the release (a contract) was voidable because it was made under duress.

This case changed the standard. Before, the rule was that duress could only be established if there was a threat to do some act which the party threatening had no legal right to do. Mitchell was at employee at will. Legally, Herrin could fire Mitchell for any reason with or without cause. The court determined that this type of threat can constitute duress if the threat to fire someone is employed as means to force an employee to sign a release of action. There have been several cases in addition to the Mitchell case that have similarly ruled. The rationale is that the parties are not on equal footing in such cases.

Was the court right and how far should they be entitled to go? In Professor Dalton’s words, the problem is “isolating just those kinds of impairment [of bargaining power] that the law is prepared to redress without feeling that the whole structure of bargaining between unequals is put in jeopardy.”

The Restatement on Contracts (basically what respected scholars say case law is) says the test for duress turns on “unfair exchange,” “unfair dealing,” or “the use of power for illegitimate ends.” Those words seems like very uncertain measures of appropriate conduct.

What should the rule be? Should we go back to the classic definition that hinges on legality? Should we limit it to only illegal threats and threats of employment (though many hypotheticals could be thought up that are like employment settings but not)? Or should we leave it up to the judge or jury to determine what is a “fair exchange,” and a “fair dealing”?

Tuesday, August 31, 2010

Socratic Method

I had always heard that law professors principally use the Socratic Method in classroom settings. I only had a cursory (at best) understanding of what was meant by ‘Socratic Method.’ I saw law school as a forum for learning laws, studying cases, and doing legal research. I never really considered how a teaching method could significantly influence the attainment of those objectives and, thus, didn’t spend more than two seconds learning more about the Socratic Method. It meant nothing to me—I had no opinion of it nor any prognostic vision of how it would work in a classroom setting.

After a week or so of school, I have become a huge proponent the Socratic Method in classroom settings. It basically teaches students by asking a series of questions seeking to expose contradictions. In essence, it helps students to identify wholes in logic, thought, arguments, etc. by means of critical thinking.

In law school, the professor “cold calls” a student and has a discussion about a particular statute, procedural rule, or case. The professor simply asks numerous questions about the issues, the ruling, the rationale, dissenting opinion, assumed assumptions, application of the law to specific cases, consistency (or lack thereof) in the interpretation of laws, etc. It is hard. It takes so much more than an understanding of facts to get through one of these sessions. Professors do not let you off the hook if you can’t think through an issue—the whole class is put on pause until you can work through the question.

I love this style of teaching because, I think, it accelerates the learning process SO much. First of all, you have to be prepared for class or else you’ll look like an idiot for 15 minutes in front of everybody. Never have I prepared so meticulously for classes (and yet, there are so many angles that I never even think of that are exposed in class). Second, it forces you to remain attentive during class. Third (maybe a corollary to two), you put yourself in the shoes of the person on the hot seat and see how you would respond in the situation. Fourth, it makes you think on your feet. Fifth, it allows you to develop arguments and presents a forum for presenting them.

I really wish that my undergrad and even high school classes had employed principles of the Socratic Method for the reasons listed above. I really think that I would have learned and retained much more.

P.S. Another great thing about law school is the law library. Unbelievable. While it pales in comparison to BYU’s main library, Oregon’s Law library is a spacious, 4 story library, with (among countless other legal resources) actual attorneys who work as the librarians. And print jobs are $0.01. That’s one cent per job. I compiled a bunch of cases into one document yesterday; 150 pages=one cent.

Wednesday, August 4, 2010

Why Political Science?

People tend to have a laundry list of questions ready to ask whenever meeting new people. I don't blame them for asking these questions--I do it too--though it often leaves an unmemorable, rote conversation as a first impression.

Frequently, one of the initial questions asked of me is "What are you studying?" or "What did you study at BYU?" I always hesitate to answer this question because I believe (mistakenly or otherwise) that there is a stigma attached to poli sci majors. By saying that I study(ied) political science I feel that people develop an image of me as 'political science guy'--a flamboyant, obnoxiously opinionated, loud, and sometimes holier-than-thou follower of politics.

The conversation would then shift to deeper questions, like "Where are you from?" or "If you could be any head of a three headed squirrel, which would it be?" I would always let it progress to the next question on the list without quenching my desire to say, "Yes, I study political science but I'm not 'political science guy'."

One of the reasons I studied political science was because of the "low hanging fruits" it offers. There are so many research questions that nobody has ever spent time exploring. Almost every topic has avenues that have yet to be studied.

I offer one example to illustrate the point. There has been tons of research done (with various conclusions) on the impact of partisan pressures on congressional behavior. Some scholars maintain that the partisan influence on legislators is negligible because party is merely an element of the preferences of members of Congress upon entering office. That is, legislators are driven primarily by personal and constituent opinions--members of Congress of opposing parties tend to act differently not because of partisan pressures but because these opinions are different. A competing group of scholars assert that partisan pressures are real and significant in shaping the behavior of legislators. The "low hanging fruit" in this example is to analyze the partisan influence on members of Congress in differing stages of their political careers. It's not necessarily 'do parties matter' but rather 'for whom do parties matter.' Do higher office seekers need the support of their party more than other congressmen and are, therefore, more influenced by partisan pressures? Have retiring members of Congress completely dissolved the partisan link? What about newly-elected legislators? etc.

These questions aren't necessarily hard to come up with either. Jason's Mechanized Creativity entry can be applied to creating a research question (items on the list being democracy level, corruption, gdp, etc.). I find the resultant questions very interesting. The amount of research yet to be undertaken is one of the reasons I studied political science.

I don't know why this has been on my mind nor do I know why I posted it. To those who have read this whole post: I apologize if your eyes are glazed over out of boredom. I think that's why I never took the conversation described above in this direction. I mean, who really wants to hear about political science research questions? Instead, I would stick to the meaningful get-to-know you conversation: "I would definitely want to be the middle head of the squirrel and let me tell you why..."

Scratching my Head

I was listening to the radio on the way into work today enjoying country music--a great way to start off any day. The station that I was listening to needed to break for commercials and I left the radio untouched rather than switch to another station. I heard a commercial that struck me as both annoying and ironic. Although I don't remember the words verbatim, it basically unfolded as follows.

Little Girl: "Daddy, what are you doing?"

Dad: "I'm reading about my investments."

Little Girl: "What's an investment?"

Dad: "An Investment is like owning small part of a company. Mine are going up; that's good."

Little Girl: "How do you know what companies to invest in?"

Dad: "Because like you, I do my homework."

Little Girl: "So would you say sending me to Challenger School was a good investment?"

Dad: "Yes, that was a great investment."

The commercial then proceeded to inform listeners of the benefits of sending children to Challenger School over public schools.

I found it odd because I have no idea how that little could conclude that sending her to Challenger School was a good investment given the definition of investment proposed by her father. To the little girl, an investment is simply owning a small piece of a company yet she reasoned that going to school somehow fell under that umbrella. Either Challenger School is doing wonders for that little girl enabling her to make that jump or Challenger School needs to rethink the logic in its commercials (not good when the product offered is an alleged unmatched education).

Inaugural Entry

Consider this the grand opening of my blog (even if it's not so grand). Never thought I'd be a blogger, but here I am. I am doing this--in large part--because of Jason Bell. Though I never saw myself doing this, he pointed out many of the merits of doing so. I mostly just want to keep in touch with old roommates and friends. This provides a way to write what is on my mind, and--by reading and making sarcastic comments on their blogs--I'll be able keep up-to-date on their lives.

I don't really know what I will post here. I'm sure it will mostly be thoughts about sports, school, people, and random events/ideas. Read it if you want. Skip it if you want. Let me know if it is boring you to tears.