Ail to the Chief

The dark underside of life tenure for Supreme Court Justices is the difficulty of removing an obviously ailing Justice even after his or her capacity to serve has seriously deteriorated.  However, despite the absence of effective formal removal mechanisms, Chief Justices have sometimes been successful in nudging declining Associate Justices off the bench, as in the cases of Justices Holmes and Douglas.  But what is to be done if it is the Chief who can no longer serve?

That is the question explored in a new paper on SSRN by Chad Oldfather and Todd Peppers.  Although other scholars have grappled with the general problem of disability on the Supreme Court, Oldfather and Peppers identify two reasons why the problem is especially acute when it comes to the Chief.  First, it is much more common for Chief Justices than Associate Justices to serve until the time of death or a major disability.  Only four of the past sixteen Chief Justices have retired while in good health.  (Oldfather and Peppers use the decline and passing of the late William Rehnquist as a case study of the more typical pattern for Chief Justices.)  Second, the Chief is not merely one of nine adjudicators on the Court, but also serves as the administrative head of the entire federal judiciary.  For that reason, the incapacitation of the Chief Justice may do much more damage than the incapacitation of an Associate.

Oldfather and Peppers do not advocate for a particular solution, but they do urge consideration of various potential reforms, such as the imposition of a term limit on the Chief Justice.

Entitled “Till Death Do Us Part: Chief Justices and the United States Supreme Court,” their paper will be published in the Marquette Law Review.

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How to Hold Onto Your Sports Franchise

The Oklahoma City Thunder had a nice run in the recently concluded NBA playoffs, but it was nothing compared to their run from Seattle.  The story of the escape of the former SuperSonics from Seattle is the central case study in a new paper on the retention of major league franchises by Paul Anderson and William S. Miller.  

Anderson and Miller point to the sports facililty lease agreement as the key legal document by which communities attempt to secure long-term commitments from their teams.  However, as the City of Seattle discovered, there are significant legal and practical impediments to enforcing these commitments.  It may be especially difficult to obtain the remedy of specific performance, i.e., a court order requiring a recalcitrant team to continue playing in a city it wishes to desert.

Anderson and Miller helpfully survey a range of non-relocation agreements that have been negotiated between different cities and sports franchises.  They identify the agreement between Bexar County, Texas, and the San Antonio Spurs as a model of a strong agreement that seems much better designed than the Seattle contract to keep a franchise in its city over the long run.  Among other things, the contract includes a liquidated damages clause that starts at $250,000,000 and declines to $106,000,000 over the term of the lease.

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The Media and Dominique Strauss-Kahn

Last month I was contacted by the Italian newspaper Il Foglio and interviewed regarding criminal proceedings against Dominique Strauss-Kahn.  A French banker and head of the International Monetary Fund, Strauss-Kahn has been charged with sexually assaulting a maid for the $3000-a- night hotel suite in which he was staying in New York City.  To my surprise, the reporter was not interested in the legal proceedings themselves but rather in the way the case was being presented in the American mass media.

The case is still another example of the way the prosecution of a rich and/or famous person can be and frequently is presented to the public as a type of contemporary morality play, that is, as a dramatic allegory about temptation, sin, and – in the end – either damnation of salvation.  Comparable media packaging of cases involving O.J. Simpson, Michael Jackson, and Eliot Spitzer spring to mind.

The added twist in the Strauss-Kahn drama is that the featured player in the morality play is a wealthy and worldly European who found out the hard way about down-to-earth American norms and values.  The best comparison might be to the mass media’s packaging of the attempt to extradite the Polish filmmaker Roman Polansky, who allegedly raped a teenager in California.  Lionized by the French artistic community, Polansky squirreled himself away in Switzerland and in the end avoided the grasp of the American authorities.  Strauss-Kahn, meanwhile is under house arrest in Manhattan and waiting trial.  Might Attica be his hellish fate?

The Il Foglio article appears on the front page of the “Martedo, 24 Maggio 2011” edition, but since the article is in Italian, most of us will require the good services of colleague Irene Calboli in order to read it . . . .

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