Is Our Partisanship a Poli-Ticking Time Bomb?

While trolling through PrawfsBlog to refresh my memory on a debate I wanted to blog about as to the teaching of Legal Writing and Research classes, I stumbled across this post from about a month ago in which FIU professor Howard Wasserman raised the question of how appropriate it is for professors to display their political preferences in the classroom and/or their offices. In reading it, I couldn’t help but think about a conversation I had had with a friend a week or two ago. In response to my joking about how important it was to read my blog posts while I was still able to post them, my friend commented that he/she refused to read the Faculty Blog because he/she didn’t want to read about the political beliefs of professors. Now, I don’t know that I find the posts here to be all that politically charged, but the fact that my friend was so adamantly opposed to that while at the same time being very vocally partisan regarding this past presidential election was something I found ironic. And now that this election has passed and the votes have all been tallied, I think it’s worth reflecting upon just how dangerous it is to be partisan in a learning environment.

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Seventh Circuit Week in Review, Part II: Determining Drug Quantity for Sentencing

This post wraps up the review of new Seventh Circuit criminal opinions that I began yesterday.  In United States v. Fox (Nos. 07-3830 & 07-3831), defendants Fox and Sykes were convicted of various drug trafficking offenses.  Fox was in the habit of getting high with Sykes at Sykes’s house.  In order to support his habit, Sykes sold drugs to others, and, on an uncertain number of occasions, had Fox make drug deliveries to customers on his behalf.  Fox and Sykes were arrested after they participated in a drug sale to an undercover cop, and forty grams of crack cocaine were found by police in Sykes’s house.  The main issue on appeal was whether Fox should be held responsible for those forty grams at sentencing.

Under the Federal Sentencing Guidelines, the quantity of drugs possessed or distributed by a defendant normally dominates the sentencing calculus.  Moreover, a defendant is responsible not just for the drugs that he himself possessed or distributed, but also for the drugs foreseeably possessed or distributed by coconspirators in connection with “jointly undertaken criminal activity.”  This is a controversial — and, in my view, misguided — feature of the Guidelines that can result in very long sentences for small players in large drug trafficking operations.  (My Criminal Law students will recognize parallels between this feature of the Guidelines and the so-called “Pinkerton Rule,” which results in criminal liability for crimes foreseeably committed by one’s coconspirators in furtherance of the conspiracy.)

In Fox, the district court judge determined that Sykes’s possession of forty grams of crack was foreseeable to Fox, and accordingly sentenced Fox as if he had been found in possession of that sizeable quantity of the drug himself.  Fox’s sentence was essentially doubled as a result of this decision.

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Not Sleepless, Just Basketball-Less, in Seattle

After forty-one years of playing in Seattle as the Supersonics, the owners of the franchise this season relocated the team, with NBA approval, to Oklahoma City, where it is currently playing as the Oklahoma City Thunder.  Although the city of Seattle is left without an NBA team, public uproar over the move seems to be at a minimum.

In fact, it is now clear, if it weren’t already, that football and baseball occupy a different place in the sports landscape than basketball and hockey.  Nowhere is this more apparent than in the arena of franchise relocation.  When an NFL or MLB team relocates, a movement begins among the representatives of the area losing its team to convince Congress to take away the ability of the teams and leagues to control the location of their franchises.  Sympathetic fans in unaffected cities rally to the cause and Congressional intervention suddenly seems a real possibility.  This happened in the 1960’s and early 1970’s when Milwaukee, Kansas City, Seattle, and Washington, D.C., lost their major league baseball franchises, and it happened in the 1980’s and 90’s when NFL teams in Oakland, Baltimore, Arizona, Cleveland, and Houston moved to new cities offering more lucrative places to play.

In each case, Major League Baseball and the NFL dodged a regulatory bullet, but only because they permitted or arranged for new teams to replace the ones that had abandoned their home cities.  Thus, Milwaukee lost the Braves and got the Brewers; Kansas City lost the Athletics but got the Royals; Seattle lost the Pilots but got the Mariners; Oakland lost the Raiders and then got them back; Baltimore lost the Colts but got the Ravens; St. Louis lost the Cardinals but got the Rams; Cleveland lost the Browns but got the new Browns; and Houston lost the Oilers but got the Texans.  Had the leagues not moved relatively expeditiously to replace the moving franchises, direct Congressional regulation of franchise shifts could well have become a reality.

In contrast, there have been numerous franchise shifts in the NBA and the NHL since 1960’s.

In the NBA, Philadelphia moved to San Francisco; Rochester moved to Philadelphia; St. Louis moved to Atlanta; Buffalo moved to San Diego, which moved to Los Angeles; Cincinnati moved to Kansas City, which moved to Omaha, which moved to Sacramento; San Diego moved to Houston; Charlotte moved to New Orleans; Vancouver moved to Memphis; and now Seattle has moved to Oklahoma City, and no one cares enough to start the ball rolling on congressional hearings, not even the representatives of the cities losing teams.  Why bother?  In the NHL, congressional indifference has been even more profound, as Denver moved to New Jersey; Hartford moved to Raleigh; Quebec to Denver: Winnipeg to Phoenix; and Minneapolis to Dallas.  Some of the abandoned cities in the two leagues got new teams, but that was because it made economic sense to replace them, and not because of any sustained public uproar.

Football and baseball are sports in which American fans are heavily invested, both financially and psychologically.  The same cannot be said for basketball and hockey, even though NBA basketball at least seems to rival the two main sports in overall popularity.  However, fans clearly do not attach themselves to NBA teams (particularly when they do not live in the city in which the team is located) as they do to Major League Baseball and NFL teams.

There are a couple of caveats.  For some reason the strong reaction against relocation does not happen when an NFL teams leaves Los Angeles.  The nation’s second city lost both the Raiders and the Rams, but the protest both in Los Angeles and elsewhere was minimal.  Apparently LA doesn’t need the NFL, although it does serve a useful purpose for current NFL owners, who can always threaten to move their teams to Los Angeles if their current hosts don’t come up with a sufficiently lucrative stadium deal.  To lesser extent, the same phenomenon was true for baseball in Washington.  Washington lost its traditional team in 1960 to the Twin Cities, but it immediately got a replacement team, which the city lost to Dallas eleven years later.  In the early 70’s a number of Members of Congress threatened to revoke Major League Baseball’s antitrust exemption if a team were not returned to Washington.  Although there was an abortive effort to transfer the San Diego Padres to Washington in 1974, that plan fell through, and when nothing else was done, the furor subsided, largely because no one in Washington was going to games anyway.

The other caveat is that really no one cares when the team that moves is a Canadian team.  Canadians may care, but Canadians have especially little influence over the U.S. Congress.  In recent years, Canada has lost two of its eight NHL teams; one of its two NBA teams; and one of its two Major League Baseball teams.  Neither the U.S. government nor, for that matter, the Canadian government has done anything to try to reverse the flow of teams to the South.

But just wait until Mark Attanasio decides to move the Brewers to Sacramento or Las Vegas. That is when we will see Congress spring back into action.  The Brewers may be a poor team, but there are those who love them.

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