SCOTUS Strengthens 8th Amendment Protections for Intellectually Disabled

In 2002, in Atkins v. Virginia, the Supreme Court prohibited capital punishment for defendants who suffered from what the Court then called “mental retardation.” However, the Court did not prescribe any particular process or standards for determining which defendants qualify. Florida adopted a particularly restrictive approach, refusing even to consider the full spectrum of evidence of intellectual limitations if a defendant’s IQ had not been scored 70 or lower. Earlier this week, in Hall v. Florida, the Supreme Court rejected this test for failing to take into account the standard error of measurement (SEM) of IQ tests. “This rigid rule,” Justice Kennedy wrote for a narrow 5-4 majority, “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” (Along the way, the Court expressly changed its preferred terminology from “mental retardation” to “intellectual disability.”)

Kennedy’s reference to “unacceptable risk” goes to the heart of the disagreement between the majority and the dissenters.  

Continue ReadingSCOTUS Strengthens 8th Amendment Protections for Intellectually Disabled

Why the Redskins Are Called the Redskins

Washington Redskins logoWith 50 United States senators signing a letter to the president of the NFL urging him to pressure Daniel Snyder, the owner of the Washington Redskins, to change the team’s name, and Congressman Henry Waxman calling for the House Energy and Commerce Committee to hold hearings on the name, it is clear that the controversy over the name “Redskins” has yet to subside.

In the Wednesday, May 27, Washington Post columnist Robert McCartney purported to rebut the Redskins’ claim that the team was named the Redskins in honor of its Native American coach William “Lone Star” Dietz (whom, it turns out, may not have been an Indian at all, but that was clearly unknown to team owner George Preston Marshall at the time.)  The source of McCartney’s proof is a July 6, 1933 AP story that quoted Marshall to the effect that he changed the team’s name from “Braves” to “Redskins” so that he could avoid confusion with the Boston Braves of baseball’s National League and so that he could continue to use the team’s new Indian head logo.

McCartney is clearly correct on that point.  The team already had a Native American name (Braves) when it signed Dietz as its coach.  The name was changed, as Marshall indicated in the above quote, because the team was moving to a new venue within the city of Boston.  (The team did not move to Washington until 1937.)

Here is the story:

*In 1932, George Preston Marshall and three partners were awarded an NFL team on the condition that it be located in Boston, where the previous NFL team had folded after the 1929 season.

*Needing a place to play, the options for the new team were limited.  Fenway Park was not available because of a city ordinance that prohibited professional sporting events on Sundays if they were within a certain distance of a church (and Fenway was); Harvard would not rent out its famous stadium to professional teams; and the Boston College field was not enclosed.  The only real option was playing in Braves Park, the home of the Boston Braves baseball team.  Moreover, the baseball Braves owner, Emil Fuchs, was a friend of Marshall’s co-owner Jay O’Brien, a well-known New York investor and playboy.

*Having decided to play in Braves Field, it made perfect sense to use the same name as the baseball team.  This practice was quite common in the early history of the NFL for teams in cities with major league baseball teams.  The pre-1932 NFL at different times featured teams with “baseball” names like the Cleveland Indians, Washington Senators, Detroit Tigers, New York Giants, New York Yankees, and Brooklyn Dodgers, as well as the Chicago Bears whose name was a variant of Chicago Cubs.  Moreover, in 1933, the year following the creation of the Braves, the league added teams called the Pittsburgh Pirates and Cincinnati Reds.  In addition, NFL teams from Buffalo, Kansas City, Hartford, and Louisville had earlier used the names of local minor league baseball teams.  Consequently, there was nothing particularly special about the new Boston team using the name Braves.

*During the 1932 season, the Braves went 4-4-2, without making any special effort to emphasize the fact that the team had a Native American nickname.  Braves Field was nicknamed the Wigwam, but that name had been used for years before the football team was created in reference to the baseball Braves.

*However, a sequence of events following the 1932 season would lead the Boston team to change both its playing field and its nickname. The first step came when Lud Wray, the team’s coach, resigned to become the co-owner of the expansion Philadelphia Eagles.  To replace Wray, Marshall hired Lone Star Dietz, a famous college coach, who was at the time the head coach of the Haskell Indian School in Kansas.

*Having hired Dietz, Marshall, who was a born-showman who had long been fascinated with Native Americans, decided to revive “Indian football.”  Coach Dietz may well have been the inspiration, since he had been a teammate of Jim Thorpe at the Carlisle Indian School, when that institution ruled college football.  Moreover, only a decade earlier, the NFL had featured all all-Indian team, the Oorang Indians, which in 1922 and 1923 had been captained by Thorpe, universally viewed as the greatest football player in American history.

*Marshall encouraged Dietz to sign Native American players—six ended up on that year’s Boston team—and he decided to add an Indian emblem to the team’s uniform and planned a variety of Native American symbols ranging from war paint on the players’ faces, to Dietz’ Indian headdress which he wore on the sidelines, to the supposedly Indian-inspired tricks plays that filled Dietz’ playbook.  These plans were in place while the team was still planning to play the 1933 season as the Boston Braves.

*Nevertheless, subsequent developments would bring the career of the Boston Braves to a sudden close.  For a variety of reasons Marshall was not happy with Braves Field, which he felt was poorly maintained by the penny-pinching Fuchs.  O’Brien had dropped out of the ownership group after the 1932 season, and Marshall apparently did not get along with Fuchs, whom he felt was also overcharging the football team when it came to rent.  (Fuchs did not own Braves Field and was subject to an onerous master lease himself.)

*That same summer, Boston repealed the “close to a church” ordinance, just as substantial renovations to Fenway Park were completed.  Given the opportunity to move to a newer, nicer park at less rent, Marshall signed a new lease with Tom Yawkey, the owner of the Red Sox and Fenway Park that guaranteed that the football team would play the 1933 season in a new home.

*Given that he was no longer a subtenant of the Braves, he had very little incentive to have his football team continue to play under that name.  On the other hand, he was committed to the idea of bringing back Indian football, but the pool of Indian names was limited.  The Cleveland Indians had played in the NFL as late as 1931, and that name appeared to be informally reserved for a future Cleveland team.  Consequently, Marshall chose the name Redskins, in part, one suspects, because of the way that it echoed “Red Sox.”

*In the summer of 1933, the term Redskins was widely viewed as a synonym for Indian and as no more or no less pejorative than names like Indians, Braves, Warriors, or Chiefs.  Recent events have made it clear that many Americans today, both Indian and non-Indian, view Redskins as an objectionable name.  However, that is a consequence of much more recent linguistic changes and had nothing to do with the decision to adopt the name Redskins in 1933.

A fuller account of this story and the history of Native American team names in pre-World War II American can be found here  (http://scholarship.law.marquette.edu/facpub/564/) .

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It’s Officially Summer: What’s on Your Recreational Reading List?

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For those of us in and around the law school, the close of the academic year is often a time to catch up on all of that recreational reading we’ve been wanting to do. Maybe your recreational reading is a non-fiction book on a topic you’ve been wanting to learn more about; maybe it’s a classic you’ve read before (or have always wanted to read); maybe it’s the newest fiction you plan on reading on the beach. Whatever your choice of a for-fun read, let’s start a list here.

After many, many months, I finally finished Tolstoy’s Anna Karenina, a book I finished just to say that I finished it.

I will recommend, however, Karen Joy Fowler’s We Are All Completely Beside Ourselves. I downloaded the full book to my Kindle quite by accident; I meant to download just the sample because I just wasn’t sure about it. But within just a few days, I had finished the entire book. The writing was engaging and lively, and although it was easy to figure out the connection between Fern (the sister) and Rosemary (the narrator), the “why” of it all kept me reading until the end. (See here for a book review.) Fowler also wrote The Jane Austen Book Club, a book that was not nearly as interesting or as lively as We Are All Completely Beside Ourselves.

A few of my favorite reads from last summer include all three of Stieg Larsson’s books: The Girl with the Dragon Tattoo, The Girl Who Played with Fire, and The Girl Who Kicked the Hornets’ Nest. (Read with care – the subject matter is graphic and can be disturbing.) And although I am not a Hemingway fan, I did enjoy The Paris Wife by Paula McLain.

This summer, I may make it through Thomas Piketty’s Capital in the Twenty-first Century; it’s pretty thick, so I may end up being satisfied with reading the reviews. Also on my list are John Boyne’s The Boy in the Striped Pajamas, Donna Tartt’s The Goldfinch, and Gillian Flynn’s Gone Girl.

What are your recommendations for a summer read?

Continue ReadingIt’s Officially Summer: What’s on Your Recreational Reading List?