Sports Paternalism

Matt Mitten has an interesting new paper on SSRN entitled (this is a mouthful!) “Student-Eligibility Rules Limiting Athletic Performance or Prohibiting Athletic Participation for Health Reasons Despite Medical Uncertainty: Legal and Ethical Considerations.”  The paper discusses two policy problems in intercollegiate athletics that both turn on how much paternalism is appropriate in preventing student-athletes from doing things that may ultimately prove harmful to themselves. 

The first problem is use of steroids.  Although performance enhancing drugs are often condemned for giving some athletes an unfair advantage, Matt suggests that unfair advantages are an unavoidable feature of intercollegiate athletics, noting, for instance, disparities in coaching and training facilities.  Moreover, after reviewing the medical evidence, Matt concludes that “currently there are no definitive scientific or epidemiological studies evidencing that a healthy adult’s usage of anabolic steroids in appropriate dosages necessarily will have life-threatening or long-term serious health effects.”  But, of course, the absence of conclusive evidence of danger does not mean that steroids are safe.  Given uncertainty, the question is whether athletes should be permitted to decide for themselves whether to bear the risk.

The second problem is participation by student-athletes suffering from a medical condition (e.g., a spinal or cardiovascular abnormality) that may give rise to increased risks of serious or life-threatening injury.  Again, the question is one of paternalism in the face of medical uncertainty: should the athlete himself or herself be given the right to decide whether to bear the risks?  As with the steroid issue, Matt ultimately concludes that the NCAA and individual universities have “valid legal and ethical authority” to protect student-athletes from themselves.

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Seventh Circuit Week in Review: Can a Defendant Waive the Right to an Impartial Jury?

The Seventh Circuit had three new opinions in criminal cases in the past week.  The court also withdrew, without explanation, its opinion in United States v. Dunson (No. 08-1691), which I blogged about last week.

In United States v. Brazelton (No. 07-2488), the defendant was convicted by a jury of various drug and gun offenses.  The jury included the second cousin of a man who had once been shot by the defendant.  Voir dire indicated no actual bias on the part of the juror — or even that the juror knew of the shooting — and no motion was made to strike him for cause.  On appeal, however, Brazelton argued that he was entitled to a new trial under the implied bias doctrine, which indicates that close relatives of people with actual bias must be automatically excluded.  The Seventh Circuit (per Judge Coffey) rejected this claim.  After noting uncertainty in the law as to whether second cousins are closely enough related to fall within the scope of the implied bias rule, the court instead decided the case on the basis of Brazelton’s failure to seek removal of the juror at trial.  The court concluded that Brazelton thereby waived any right he had to raise the implied bias claim later.  Along the way, the court noted a Sixth Circuit case indicating that defendants may not waive their right to an impartial jury, thus suggesting the existence of a circuit split on the question.

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Independence and Accountability in Wisconsin’s Lower Courts

All methods of judicial selection must account for and balance the competing goals of judicial independence and judicial accountability. Judge James Wynn, Jr. and Eli Mazur described judicial independence as an “immunity from extra-legal pressures” and judicial accountability as the judiciary’s “responsiveness to public opinion.” A method of selection cannot treat independence and accountability as having equal importance. Independence — immunity from extra-legal pressures — must come at the expense of accountability — responsiveness to public opinion, a form of extra-legal pressure.

The three primary methods of judicial selection in the United States are appointment (either by the executive or the legislature), election, and merit selection.  Appointment is viewed as the best method for promoting judicial independence.  Election is viewed as the best method for promoting judicial accountability.  And merit selection attempts to split the difference by having the executive make an appointment from a pool of candidates selected by representatives of the public.

When the issue of judicial selection comes up in a public forum, the focus of the discussion is typically on how to select judges to a state’s highest court.  Wisconsin experienced a public debate on the selection of Supreme Court Justices last spring because of the content of the campaigning and the influx of special-interest group spending during the Supreme Court elections of 2007 and 2008.  Judge Diane Sykes summarized the public debate that appeared in Wisconsin’s major newspapers in her speech published in the most recent issue of the Marquette Law Review.

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