Santa Claus is just pretend, but he's real.

I am generally opposed to telling lies, even trivial ones. Partly for this reason, I did not intentionally set out to sell the myth of Santa Claus to my children. When my older daughter was younger, I explained to her that Santa was "just pretend." She nodded knowingly, because this was something she had always known. Only, for her, "just pretend" meant something a little different. There was a "pretend land" where the pretend things actually existed, and sometimes they came to our "real land." So "just pretend" didn't mean "not real," it meant, essentially, "supernatural." She had no problem saying something like, "Santa is just pretend, but he's real."

I suppose that I could have rigorously disabused her of this false notion. But the benefits of her misimpression soon became clear. There was, of course, the behavior modification. She didn't really care about disappointing or annoying me, but the thought of getting on Santa's bad side—the dreaded "naughty list"—could move her to immediate tears. In a pinch, this comes in really handy.

More importantly, this idea of Santa brought her palpable joy. Her fascination with Santa, the North Pole, the Elves, the Workshop, etc., was very endearing, and the visible thrill she got from thinking about getting presents from Santa was just adorable. Eventually she knew that what Santa was purported to be capable of was impossible without magic. So she believed in magic.

It came to seem cruel to disabuse her of this notion. So I let it slide, and her belief has intensified over the years. Big Time.

This might be a big mistake. Maybe when she learns the truth about Santa, and about magic, she'll infer some unflattering truths about me as well—for one, that I'm a liar. I will, it must be said, have some plausible deniability. (I'm a lawyer, after all.) I will be able to say that I told her the truth from the start, and she just misunderstood. But this probably won't convince her.

Just the other day she asked, "You  believe in Santa, right daddy?" And I said, "In spirit, yes." (Lawyer'd.) "But Santa is real, " she said. This was not a question. "Well, in spirit." "No, really real," she insisted. Her grasp of the real/pretend distinction is more sophisticated nowadays, and only magic bridges the gap. She was staring at me, somehow looking down her nose from below. So I relented and agreed.

Then this morning I told an outright lie, and it was awesome. We will be in Madison for Christmas, with the grandparents, but we're going to give our presents to the kids tomorrow. Today I just blurted out, "I got an email from Santa, and he said he's going to drop off presents here tonight."

"Really?" Ivy looked like she was going to cry, and I realized my mistake: (1) this was counter-myth; (2) more importantly, she gets a lot more presents at the grandparents than she gets at our house, so she was worried about an inferior haul. (This is a practical magic she believes in.)

"He's still going to Gaga's house, too, he's just dropping some of the presents here tonight."

"Really?" Now she was very serious, sensing one of my little jokes. "No, daddy: really? This is serious. I need to know the truth."

Now Laura chimed in to back me up, which is important because she can be counted on to dispel my little jokes.

Convinced at last, Ivy jumped up and down and began making plans to leave cookies and milk. It really made my day.

Lesson: the more brazen the lie, the better the results. There's going to be a lot more lying to the younger one.

Merry Christmas, Reader(s)™.

"It is not a crime in Canada to sell sex for money."

The Supreme Court of Canada has struck down various anti-prostitution laws.

A good day for individual rights and free markets?

Refreshingly on point or highly tendentious?

Reader Astrophel brings to my attention an essay entitled, "The real reason law schools are raking in cash," by Benjamin Winterhalter for Salon.com.

Spoiler alert: the reason is capitalism. Well, that and Richard Posner.

I may respond to the essay here soon, but for now I invite Astrophel to share his thoughts in the comments. He takes the "refreshingly on point" side of the titular dichotomy. I take the other.

General Rettig v. Captain Justice.

Judge Richard Kopf has a post over at Hercules and the Umpire about a motion in limine that the prosecution filed in Williamson County, Tennessee Circuit Court. The prosecution wanted to prohibit the defendant's attorney from referring to the prosecution as "the government."  The prosecution believes that referring to it as the government is derogatory.  Keep in mind that the prosecution in this case was by the State of Tennessee.  In the motion the prosecution wanted the defense to refer to the State of Tennessee by the title or name of the assistant attorney general prosecuting the case  Among the suggestions the offered in the motion was "General Rettig."  Rettig is the last name of the prosecuting attorney.

Do judges in Michigan hate Michiganders?

When they aren't taking shirtless selfies, lying under oath, and impregnating parties in a case they are hearing, judges in Michigan do the work the people of Michigan elected them to do. What is that work? Finding citizens of Michigan in contempt of court, of course.

The Grudge Match is Alive!

For the first time since 2010, the football teams for the University of Iowa and the University of Wisconsin will take the field to determine whether Mr. Torvik (Wisconsin) or I (Iowa) is the superior blogger.  Or maybe they play for the Heartland Trophy.  According to Wikipedia, the teams have played 86 games.  Two of the 86 games ended in a tie and Iowa and Wisconsin have each won 42 of the other 84 games.  As a result, one team will leave having made their team a winner in this year's rivalry game and also in the all-time rivalry.  Whether either coach is using this tidbit as a motivational tool is unknown.

The Nuge gets a haircut, ponders running for President.

CBS News has the incredibly important story of Ted Nugent, a.k.a., the Motor City Madman, getting a haircut.  He also shaved off his soul patch but that part of the story doesn't get much play.  You can see a picture of a short-haired Mr. Nugent here.  Our previous coverage of Mr. Nugent is here.

"I don’t run down the pope."

Justice Scalia knows his place.

What does it feel like?

NBC News has a story on Herman Wallace's release from prison yesterday. Mr. Wallace's story is notable because he spent 41 years in solitary confinement in the Louisiana State Penitentiary.  Mr. Wallace was released because women were excluded from the grand jury that indicted Mr. Wallace more than 40 years ago. It is not clear to me how the issue of the exclusion of women from the grand jury did not come up before now. But this post is not about that possible oversight.

Mr. Wallace has terminal liver cancer. Prison doctors stopped treating his illness on August 31, 2013, and told Mr. Wallace he has two months to live. Presumably that figure is now down to one month. I can't imagine what it is like to be free from prison after 41 years, let alone being free from solitary confinement after that long. But imagine trying to adjust to being around people, being free, and the idea of dying within a couple of weeks all at the same time. Calling the feelings involved in such an adjustment overwhelming is probably a disservice to the situation.

UPDATE:  Nola.com reports that Mr. Wallace has died.

Kids these days are awesome

Mr. Gillette pointed me to a post by Judge Richard Kopf called “Justifying harsh sentencing through the power of a single image.” That image was this one:


This shows that violent crime, which has been dropping for decades now, continued its sharp descent over the last few years, at least until 2011. Judge Kopf’s considered opinion is that “harsh sentencing” has a lot to do with this. The idea, as fleshed out by Judge Kopf in the comments to his post, is that longer sentences keep more criminals off the streets, where they can’t commit crimes (except against each other). Judge Kopf also cites with approval the idea that “the graying of America” has lowered the crime rate because old people don’t commit as much crime as young people. Thus, a shift to an older population will reduce the crime rate.

I think it is pretty easy to show that these two arguments (mass incarceration and the greying of Amercia) are not responsible for much of the epic drop in the crime rate. To do so, let’s assume that these arguments explained 100% of the drop in the crime rate. We would expect to see at least two things in the data.

1) We’d expect that the youth crime rate would be relatively stable. This is because the "graying of America" argument assumes a stable crime rate within age groups, and the "mass incarceration" argument assumes that we are imprisoning people longer (but not sooner). Thus, neither of these arguments can explain any appreciable drop in the youth crime rate.

2) To whatever extent other factors might affect the crime rate, we’d still expect that the crime rates of people in middle age would drop more than the crime rates of youth. This is because the mass incarceration argument assumes that we are sweeping up new criminals and keeping them in jail, where they can’t commit any crimes (except against each other). Before the “draconian” sentencing policies, we let those people out of jail, at least sooner, so they presumably used to drive up the crime rate of the middle aged when they got out of jail and went back to their evil ways.

But here are the facts: the youth crime rate has plummeted, and the middle-aged crime rate hasn’t. This FBI report tells the tale. It breaks down the crime rate by age for every year between 1993 and 2001. (I can’t find the data for other years, but this is a good date range because it encompasses the first half of the great crime rate drop, which started in earnest in 1995.)

Focusing on the violent crime rate, we can see that it has plummeted among the very young, merely lessened among the not-so-young, and not dropped at all among the middle-aged:

Age	Change 93-01
15	-43%
16	-44%
17	-41%
18	-34%
19	-25%
25-29	-29%
30-34	-24%
35-39	-7%
40-44	+8%
45-49	+4%

Now, you might be wondering what has happened since 2001. So I did a little work to figure this out. I found the statistics from the 2010 census, which break down the population by age. Then I calculated a violent crime rate for each of the above age groups using the FBI crime data from 2010. Here’s the result:

Age	Change 93-10
15	-66%
16	-63%
17	-62%
18	-57%
19	-51%
25-29	-46%
30-34	-39%
35-39	-39%
40-44	-22%
45-49	-11%

Given these numbers, it’s hard to believe that the graying of the US population has had more than a trivial effect on the crime rate. On the contrary, the drop in the crime rate is overwhelmingly a youth phenomenon. Kids these days—they’re just way better behaved than they used to be. And they keep getting better! They are less than half as likely to commit a violent crime than their forebears from my generation. That is astounding, and demographics cannot explain it.

These numbers also undercut the argument that mass incarceration is a big factor in the crime rate drop. The mass incarceration argument is that the crime rate is dropping because we’re locking up all the bad guys. But these numbers show definitely that there are just fewer bad guys to lock up.

Of course mass incarceration could have had a nice healthy side effect: deterrence. It could be that tough-on-crime policies have scared the bejeezus out of kids. Kids who once were willing to steal a car when it meant just five years in jail are saying “no way!” when it means ten years in jail.

Anyone who’s spent much time around young men knows that this is argument is unlikely to be true. Young men don’t weigh consequences very well, which is why they are vastly more likely to commit crimes in the first place. So changing the incentives at the margin probably doesn’t matter much.

So what does explain this? My favorite theory remains: lead.

Trophies, college football, and clothes

Virtually the entire sports media world would have you believe that today's game between the University of Alabama and Texas A&M University is the most important college football game being played.  This may be true if one is only concerned about which school might be named college football's national champion in January.  True fans of the game know that the most important football game today is game between the University of Iowa and Iowa State University.  The winner of the game is awarded the Cy-Hawk Trophy.  Our previous coverage of the Cy-Hawk Trophy is here.

According to the Cedar Rapids Gazette, Iowa is slightly favored to win.  However, Iowa State is wearing throwback jerseys to honor Jack Trice. Mr. Trice, if you did not know, was the first African-American football player at Iowa State.  He played for the team in 1923 and died as a result of injuries sustained during Iowa State's game against the University of Minnesota.  The jerseys are not the first time that Iowa State has honored Mr. Trice's memory.  In fact, Iowa State s football stadium is named after him.

You can see the jerseys here.  As far as throwback jerseys go, these look pretty good. Some folks say that being a fan of a team is really rooting for laundry (this article says that Jerry Seinfeld made this observation).  If that is true, at least this week's Iowa State laundry stands for something more than just bragging rights for a year.

The game may be ending.

Continuing our coverage of Michigan state court judge Wade McCree (see here, here, here, and here), the Michigan Judicial Tenure Commission has reached a decision and recommendation for the Michigan Supreme Court about how to handle the charges that Judge McCree engaged in improper conduct while on the bench.  Most of the allegations relate to the fact that Judge McCree became romantically involved with a woman who had a case pending before him. You can read the decision and recommendation here.  In essence, the commission recommends that Judge McCree be suspended from being a judge for a period of six years beginning on January 1, 2015. Judge McCree is up for re-election in 2014.  So, if the voters in Wayne County, Michigan decide someone other than Judge McCree should be their judge, then Judge McCree's suspension will not take effect (assuming that the Michigan Supreme Court adopts the recommendation).  Or perhaps Judge McCree will simply have been suspended by a different authority than the Michigan Supreme court.  I suppose that is a matter of perspective.  

"[W]e find that a hot dog is a sandwich..."

That's a line in this recent decision from the Trademark Trial & Appeal Board. Technically it's dicta, but I think we can consider that important question settled. Next time I go to a ballgame I'm going to go up to the concession stand and say, "One hotdog sandwich, please," just to see what happens.

More importantly, the Board found that "footlong" is a generic term with respect to sandwiches, so Subway can't register a trademark on it.

Previous coverage of this issue here.

In case you're wondering, the last time I checked the litigation over whether Subway's "footlong" sandwiches are deceptively titled had been centralized into a Multi-District Litigation case in the Eastern District of Wisconsin. If I have time, I will see if there have been any post-worthy developments there.

--Bart Torvik

Some things never die.

Although the current heat wave in Minnesota is evidence to the contrary, summer is turning to fall. Among other things, this means a return to politics as usual in Washington. One of the first things we can expect is another batch of stories about the need to raise the debt ceiling. Matthew Ygelsias at Slate has a preview here.

Crime down, prosecutions ... down?

On Friday, I published a chart showing that, despite dropping crime rates, the rate of people being sentenced in federal court has gone up.

As I mentioned then, one plausible explanation for this mismatch is that there is just something particular about federal crimes (which are a small slice of overall crimes). So I went looking for some state-only data. I was able to find some data on the number of number of felonies filed in Illinois courts each year since 1997. If you add that data, you get this chart:

(All three lines are normalized to an index rate of 100 in 1997, so this shows their relative change over time.)

The blue line is the new Illinois data. Unlike the federal sentencing rate (which has gone up despite the drop in crime) the Illinois felony-filing was steady between 1997 and 2006, after which it began to mirror the drop in the overall crime rate. So that's kind of encouraging. And it's evidence that undercuts my implicit hypothesis that the prosecution rate isn't at all sensitive to the crime rate.

Paul Soglin, Mifflin Street, and Fair Use

Eugene Volokh has a nice post about a recent federal court decision discussing the use of Paul Soglin's image on some T-shirts sold at the 2012 Mifflin Street Block Party:

The photographer who took the image used for the shirts sued for copyright infringement, but the Court dismissed the case on fair use grounds.

The opinion also nicely lays out the ironic backstory. As you may know, the Mifflin Street Block Party started during the student protest era, with a young firebrand named Paul Soglin at the forefront. Well, times change. Paul Soglin has now been Madison's mayor a bunch of different times, and he's pretty much a party-pooper nowadays. So it goes.

As for my own experience with the Mifflin Street Block Party, I can personally attest to the high quality of the brownies.

Crimes down, Convictions ... up!

Crime rates in the United States have been plummeting for over 20 years. The cause of this turnaround is a topic of much debate and controversy. The Freakonomics guys say we can thank Roe v. Wade. Kevin Drum says we can thank unleaded gas. The authoritarians say we can thank boots on the ground and pigs in the pen. And there are many other plausible theories. Perhaps the most plausible theory is that a lot of things came together at once. But no one denies that we've seen a remarkable and remarkably unexpected drop in crime—all kinds of crime: rape, murder, theft, etc.

This got me to thinking. Even though you hear more and more about this dropping crime rate, you don't hear much about prosecutors sitting around on their hands with nothing to do. So I wondered whether there was any data on the relationship between the number of crimes committed and the number of people who are actually being convicted of crimes.

Although I'm sure such data exists, I couldn't find it on the Google. So I had to create it myself:

The red line is the crime rate in years 1995 through 2011. You can see there is a precipitous decline. The source for this data is the US Department of Justice.

The green line is the number of people convicted of crimes in federal court in years 1995 through 2011. The source for this data is the United States Sentencing Commission.

What you see, obviously, is a remarkable mismatch. As the crime rate goes down, the number of people convicted of crimes goes up.

Now, one obvious objection to this graph is that it comparing apples to oranges: all crimes versus federal convictions. And that's true. So one possible explanation for this mismatch is that federal crimes have expanded despite the overall fall in the crime rate. But my working assumption is that the federal conviction data is a good proxy for the overall state and federal conviction rate. (Some support for my assumption is provided by the fact that overall incarceration rates continued to rise even while crime rates plummeted.)

Anyhow, you can draw your own conclusions. My conclusion is the obvious one: criminal justice is a one-way ratchet.  

A rude return

I returned from vacation to learn that Cosmo Allegretti, better known to millions of Captain Kangeroo fans as Dennis the Apprentice, Mr. Moose, and Bunny Rabbit, has died. The New York Times has Mr. Allegretti's obituary here.

Prosecutor considering whether to enforce unconstitutional eavesdropping law on a "case by case basis"

Reader(s)™ may recall previous coverage here of Illinois's unconstitutional "eavesdropping" law that makes it a felony for a citizen to make an audio recording a police officer in public.

Last we heard, the law was struck down on First Amendment grounds by the Seventh Circuit Court of Appeals. The state (Cook County, actually) appealed to the Supreme Court, but the writ of certiorari was denied. Thus the matter was settled: the law of the land is that this unconstitutional law is unconstitutional and unenforceable anywhere in this jurisdiction.

So imagine my surprise when I ran across this story today:

A Jacksonville [Illinois] man who had his phone seized for recording an on-duty police officer is not likely to be charged under the state’s controversial [sic: should read "unconstitutional"] eavesdropping law. 

Morgan County [Illinois] State’s Attorney Robert Bonjean said Monday that he is not anticipating prosecuting an eavesdropping charge against Randy Newingham — at least not at this time.

For the public at large, this does not mean that recording on-duty officers will never be prosecuted in Morgan County.

“We’ll review those reports and we’ll continue to monitor the decision from the 7th Circuit court,” Bonjean said. “I don’t foresee myself making any blanket decision, just taking it on a case by case basis.”

Let's break down this lawless nonsense.

First, he says he'll "continue to monitor the decision from the 7th Circuit." What a bizarre statement. Is he continuing to monitor Brown v. Board as well? The case is over. O-vah. The law is unconstitutional. That means you don't get to prosecute people for violating it anymore.

Yet Mr. Bonjean says he doesn't foresee "making any blanket decision, just taking it on a case by case basis." Let me help you out, Mr. Bonjean: the 7th Circuit made the blanket decision for you. When a federal circuit court finds a state law unconstitutional, that ruling is—well, it's kind of like a magical blanket that gets put over the entire state, and that blanket makes the law in question unconstitutional everywhere it touches. So you just get to cozy up underneath the blanket and prosecute the other laws that haven't been found unconstitutional (yet).

Mr. Bonjean apparently doesn't understand how legal authority works in a common law system:

“Quite honestly, I haven’t made a decision,” Bonjean said. “Officially I’ve [indicated] to [Police Chief Tony Grootens] that I won’t file charges. But technically it’s a felony charge, so I have three years from the date of the offense to file a charge.”

Do you understand what happens when you prosecute someone for violating a "law" that has been found unconstitutional? That's called violating a person's civil rights. The Seventh Circuit's opinion is "clearly established law" that would make prosecuting Mr. Newingham illegal. You might want to brush up on this stuff, sir.

It gets worse, actually, when you read the comments of Tony Grootens, the Chief of Police of the department which made the false arrest:

Grootens said he believed that Newingham was sincerely ignorant of the law.

“Believe me, [the State’s Attorney’s Office is] busy enough,” Grootens said. “There’s more pressing things on their plate right now than to go with that. I already took care of it. … I told him not to be doing it. He honestly thought he was OK to do it, so now if he continues to do it, I can’t tell you that he certainly won’t be arrested.”

This final comment should probably be the motto of his police department, encircling the badge: "We can't tell you that you certainly won't be arrested." Even if your conduct has been specifically found to be protected under the First Amendment by the federal court of appeals whose rulings are law in this jurisdiction, they can't guarantee that you won't be arrested for committing a phony felony.

Do corporate executives have any fiduciary duties?

Yesterday, while on the train heading to the courthouse, I perused my Twitter feed and saw this tweet by Slate blogger Matthew Yglesias:

Awful lot of people are under the false impression that corporate executives have a fiduciary duty to shareholders.
— Matt Yglesias (@mattyglesias) August 1, 2013

This caught my attention because I am one of those people under the allegedly false impression that "executives" of businesses owe fiduciary duties to the company and its shareholders. In fact, I thought this was just a specific case of the general principal that all agents are fiduciaries, and all employees of corporations are its agents. Officers (i.e., "executives"), as the company's most powerful agents in its day-to-day affairs, surely must comply with the duties of care and loyalty, right?

And yet, here was the learned legal scholar* Matthew Yglesias breezily dismissing my understanding of corporate law and substantive principles of agency.

My first thought was that maybe this was just sarcasm. But a subsequent Yglesias tweet clarified that he believed only directors, not mere "executives," owed anyone fiduciary duties. This was like a punch in the gut. Could I really have misunderstood something so fundamental?

Of course not. Ygelesias is dead, stupid wrong. For example, here is the Delaware Supreme Court, in Gantler v. Stephens:

[W]hether or not officers owe fiduciary duties identical to those of directors has been characterized as a matter of first impression for this Court. In the past, we have implied that officers of Delaware corporations, like directors, owe fiduciary duties of care and loyalty, and that the fiduciary duties of officers are the same as those of directors. We now explicitly so hold.

Notably, this was a principle that was so obviously true that the Delaware Supreme Court hadn't actually ever gotten around to explicitly holding it until 2009—likely because no lawyer could come up with a non-trivial argument to the contrary. This is because, as I noted above, the existence of these duties flows naturally from the agency relationship. The only conceivable theoretical question would be the scope of the duties, which can vary depending on the nature of the agency relationship. This is why the question in Gantler wasn't whether officers have fiduciary duties, but only whether they are "identical" to the fiduciary duties of directors. And they are.

So: whew!

*Correction: Mr. Yglesias is not a scholar, much less a legal scholar, but he is a college graduate who is able to write very fast.

--Bart Torvik

Sometimes it is hard to tell who is on which side.

The Miami New Times has a story today about Adam Finkel, a 26-year-old assistant state attorney in Florida. Mr. Finkel allegedly got into an altercation this weekend with the doorman of a club in South Beach. The altercation allegedly occurred with Mr. Finkel was told that he had to wait in line because the club was full.  After arguing with the doorman about having to wait, Mr. Finkel was told he was no longer welcome at the club. 

The standing desk is passé.

In Douglas Coupland's Generation X: Tales for an Accelerated Culture, he describes the cubicles in the one character's office as "veal-fattening pens."  However, some folks no longer aspire to be veal. Instead, they are getting on gerbils wheels.

The Cincinnati Enquirer has the story of some lawyers who have stopped virtually and started literally spinning their wheels by using treadmills as their desk.  Note that one of the attorneys mentioned spends up to four hours a day on the treadmill desk.  That must be quite a glow by the end of the day. I assume that Mr. Torvik will get one of these desks right way as it will allow him more time to make it all work.

I'd like to be able to say I understand this impulse. But I don't. I spent most of my  twenties and thirties at jobs that required standing all day. By the end of the day, my feet would really hurt. This was especially true on the days I worked a double shift. When people ask what I like about being a lawyer, one thing I mention is that I get to work sitting down. It is not the first thing I mention but it is in the top five.

Knucklehead, victim, or both?

Let's close out the week by hearing what Aaron Rodgers thinks about Ryan Braun now. Our previous coverage of Mr. Rodgers and Mr. Braun can be found here, here, and here.  The Milwaukee Journal Sentinel has this report on a press conference during which Mr. Rodgers discussed Mr. Braun.

Faulkner's heirs sue Woody Allen for copyright infringement

And lose.

This is a pretty good example of the craziness of our copyright laws. William Faulkner has been dead for over fifty years. Woody Allen had a character paraphrase one of his quotes in an utterly transformative way. Yet the film studio got sued for it and had to litigate.

At least Woody & Co. won, so that's some vindication for the law. But the case exposes two problems:

1) Copyright lasts too long. There is no reasonable justification for Faulkner's heirs to have a monopoly right to his works so long after his death. The main idea of copyright is to provide an incentive to produce works of art, etc. You could argue that providing for one's heirs gives some extra incentive, so a few years of posthumous exclusivity is justifiable. But current US copyright lasts for 70 years after the author's death. That's just absurd.

2) The contours of "fair use" are too fuzzy, which creates a playground for bullies and their lawyers. This creates a serious chilling effect. Particularly when there is a lot of money on the line, a copyright owner can threaten to sue for an injunction. Holding up a movie's release date is a serious threat that can do millions of dollars of damages in a very short time. So usually it's worth it just to cave in and pay some ransom.

It's all pretty nutty.

--Bart Torvik

Did Aaron Rodgers just lose a year's salary?

As Mr. Gillette points out, Green Bay QB Aaron Rodgers was a strong defender of Brewers' left fielder Ryan Braun when he was accused of juicing last year. His defense included the following exchange with a fan on Twitter:

@toddsutton ya I'd put my salary next year on it. #ponyup #exonerated
— Aaron Rodgers (@AaronRodgers12) February 23, 2012

Now that Braun has essentially confessed to using PEDs, many are saying that Rodgers lost his bet, which amounts to $8.5 million or so.

To state the obvious, there's no enforceable contract here because there was no consideration. But a tougher question, perhaps, is whether there was even a bet. Notice that Rodgers's statement is couched conditionally: "I'd put my salary next year on it." So he said that he would put his salary on it, but left unstated were the terms and conditions of the bet. People don't normally make "bets" unless they stand to gain something if they're right. So this seems like a challenge to make a bet, a dare, rather than an actual bet. There was no real offer, and no real acceptance. Most importantly, they never shook on it.

There is one countervailing piece of evidence, though: the hashtag comment "#ponyup." What does that mean? My colloquial understanding of the term is that to "pony up" means to pay up, especially after you lose a bet (particularly in a card game such as poker). Does Rodgers's use of #ponyup imply that he is promising to pay up if he's proven incorrect? Or is it a reference to winning bets he previously made to others before Braun was ephemerally #exonerated?

There's enough ambiguity in there that I would say Rodgers is not beholden under the Gentleman's Code to #ponyup this year's salary to Mr. Sutton or anyone else. But a big fat charitable donation to a worthy cause might be in order.

One final thought. I'm on record as suspecting that PEDs are rampant in pro and college football. In that light, Rodgers's over-zealous defense of Braun seems suspiciously defensive. The QB doth protest too much, methinks.

[Cross-posted at Adam's WI Sports Blog]

Mot Juste?

With the news that Milwaukee Brewers' slugger Ryan Braun is being suspended for the remainder of the baseball season, it might not hurt to review Mr. Torvik's excellent post about Mr. Braun from the last time he was in trouble for using performance enhancing drugs.

Also, Frank Schwab at Yahoo Sports does a nice job of reminding people that Packers' quarterback Aaron Rodgers was a bit of a knucklehead when it came to Mr. Braun.

Weather Myths

Some of you may have noticed that in the United States weather patterns tend to move from the west to the east. If you tell me it's really hot in Nebraska today, I will deduce that it will likely be hot here in Illinois tomorrow or so. I don't need a weatherman to know which way the wind blows.

Another thing you might have noticed is that it gets really hot in the summer pretty much all over the United States. Normally this isn't news. It's really only news when the hot weather gets to New York. Because that, after all, is where the news people live.

So hot weather is in the news because boy is it getting hot in New York. My wife and elder daughter are there right now, live on the scene, and they can confirm the reports.

But we in the Midwest saw this coming, of course, because it's been scorching hot here for about the past week. Here in Chicago the last five days have had highs of 91, 93, 95, 96, and 94. At the blog's other headquarters in Minneapolis it had been just as bad in the four days ending yesterday: 89, 92, 94, 94. The heat finally broke today in Minneapolis, and it should break tomorrow in Chicago.

But Slate blogger Matthew Yglesias looked at today's high of 84 in Minneapolis and came to some false conclusions:

When I say you should move to Minneapolis, I often get weather-related objections. But check out today's heat map and you'll see the news isn't all bad for the Twin Cities in terms of weather. I wish I were there right now.

Yglesias apparently hasn't noticed that weather systems in the United States move from west to east. I can't say I blame him, since he's spent his whole life on the east coast, and the only weather news he hears is when his own home area is having a weather event. But this idea that Minneapolis is a temperate paradise during the summer is quite misinformed. Here are the facts:

	July Hi	Jan Low
New York	85	26
Chicago	84	15
Mpls	83	4

So, winters are terrible in Minneapolis, bad in Chicago, and okay in New York. But the summers are the same in each city.

Conclusion: Contra Yglesias, there is no weather-related reason to live in Minneapolis—unless you love long cold winters, as some Minnesotans have, bless their hearts, convinced themselves that they do.

Rankings in the bottom half are good, right?

The Robert Wood Johnson Foundation has sponsored a study of people's health in the United States by county. Jason Sadowski at Slate discusses how these maps show the variation of life expectancy by socioeconomic status here. It is an interesting read.

As someone who grew up in a middle class or possibly upper middle class home, I wondered if the various counties I have lived in had good health scores.  Turns out they do not. The county I grew up in Iowa ranked 77th out of 99 counties. The county in Kansas that I called home as a middle school student ranks 70th out of 105 counties (although 3 counties weren't rated). I lived in two counties when I lived in Wisconsin. Those counties, Winnebago and Milwaukee, ranked 37th and 71st out of Wisconsin's 72 counties. Finally, my home county in Minnesota ranks 55th out of Minnesota's 87 counties.  To sum it up, I have only lived in one county that was even close to the top half of all counties in the state.

Despite these poor showings by my various home counties, I fully intend to fulfill my solemn oath to see the Tricentennial.

A different time

The July 12 episode of the Planet Money Podcast presents what it calls a one-page plan to fix global warming. Basically, it describes how a carbon tax could limit carbon usage to acceptable levels. The episode was somewhat infuriating because it did not acknowledge until the very end of of the podcast that a carbon tax would work best if every country did it. To put it mildly, that seems unlikely.  This post is not about that unlikely event.

"Traveling from place to place, esp. working or based in various places for relatively short periods."

When the headline to a review of a play includes the word "peripatetic," the critic is not doing a good job of telling your readers whether the play is any good.

Are things going well for people who don't like big government?

David Weigel at Slate has a post today about how only 15 bills passed by the 113th Congress have been signed into law by President Obama. By comparison, Mr. Weigel notes that on  July 12, 2005, President George W. Bush signed 13 bills into law just on that day.

Our work here is done

Today someone found this blog by entering the following query into Google:

"jeffery toobin is always wrong"

I am so proud of this blog.

Man Bites Car

People sometimes do strange things when they're in the back of a police car. Consider, if you will, Ryan Frederick of Sheridan, Illinois, who was arrested for drunk driving and escorted into the squad car, presumably handcuffed. Under the circumstances, he simply did the best he could with what he had, and tried to eat his way out.

He failed.

--Bart Torvik

Farewell to a wonderful historian.

The New York Times reports that historian Edmund S. Morgan has died at the age of 97. One of my favorite biographies is his book The Puritan Dilemma: The Story of John Winthrop. If you are looking to learn a little bit about the early history of New England, check out one of his books. You won't be disappointed.

Two new saints

This is not a post about football. Let's get that out of the way first. If you are ever in downtown Milwaukee, Wisconsin, you might want to stop by the Cathedral of St. John the Evangelist. It is a beautiful church and has statues of two people in the news today.

The New York Times has the story that Pope Francis has named two new saints. One of them, Pope John-Paul II, was expected. The other, Pope John XXIII, is something of a surprise as only one miracle has been attributed to him. Normally a person needs two miracles attributed to them to become a saint. However, the Times reports that Pope Francis waived the two miracle requirement for Pope John. I did not realize this requirement could be waived. But I guess rules are made to be broken.

The last full measure of devotion.

150 years ago today 215 men from Minnesota saved our country. In doing so, 83% of them were killed or wounded. Among the survivors of that group was future United States District Court Judge for the District of Minnesota William Lochren. He described receiving the order to charge, this way:

Every man realized in an instant what that order meant-death or wounds to us all, the sacrifice of the regiment to gain a few minutes time and save the position, and probably the battlefield-and every man saw and accepted the necessity for the sacrifice.

That was 150 years ago. Every one of those men is long dead. Probably every person who ever met any of those men is also dead. We have not talked much about the Civil War on this blog. But 150 years ago today was probably the most important day of that war. It would not hurt to remember that war today and say a thank you that Judge Lochren and his fellow soldiers fought as gallantly as they did.

How much jewelry is enough?

One of F. Scott Fitzgerald's most famous quotes comes from his 1926 short story, The Rich Boy. He wrote, "Let me tell you about the very rich. They are different from you and me." The Rich Boy is not one of Mr. Fitzgerald's most famous works. But the quote is famous because it rings true to many people.

An idea to save the Voting Rights Act

The Supreme Court has invalidated Section 4 of the Voting Rights Act. That provision sets forth a formula for determining what jurisdictions must get "preclearance" from the Department of Justice to change voting practices (even trivial things such as the location of a polling place).

Technically the Court just said that the Congressional formula is no longer "appropriate legislation" given the changes that have occurred since the Voting Rights Act was passed in 1964. So Congress could theoretically fix the provision by coming up with an up-to-date formula. But many think that's likely to be impossible given the political realities in Congress. The main reason they kept approving the old formula was that it was political poison to get into the weeds of renegotiating the formula. So the provision is fixable in theory but dead in fact.

But what if Congress just passed a law that delegated the responsibility to come up with a good formula to some federal agency? They could even say the formula has to be revisited and revised every year, or whatever, thus ensuring that it would always be up to date. This would bypass many of the political obstacles to getting the provision fixed, and it would also meet the Court's argument that the provision was based on antiquated factors.

There are probably big problems with this idea, and I'm certainly no expert on the Voting Rights Act or the unconstitutional delegation doctrine, but I thought I'd just throw it out there for discussion.

What will we look like on the Tricentennial?

Mr. Gillette and I have made a solemn oath to live until our great nation's tricentennial in 2076. In that year, I will turn 100 and Mr. Gillette will turn 110—assuming we are able to elude history's greatest monster. Many reader(s)™ have, I assume, wondered how we will look when we are out celebrating 300 years of USA! USA! USA! Slate has a nice story with pictures of some current centenarians. I assume we will look a little better than these folks, thanks to technology, but I would settle for this:

Bart Torvik and Mr. Gillette in 2076

Some advice for the Supreme Court

Now that the Supreme Court is done working until October, perhaps some of the justices will hit the beach for some rest and recreation. If so I hope they read this NPR report on some of the best and worst beaches when it comes to water pollution and the accompanying public health threats like hepatitis, dysentery, and stomach flu. Those threats are also known as the hat trick of a bad vacation.

In the unlikely event you come here for breaking news.

The Supreme Court found DOMA unconstitutional in a 5-4 decision. You can read the opinions and dissents here. Mr. Torvik's prediciton is at least half right.

Prediction:

The Supreme Court will decide the gay marriage cases today.

When the Girlfriend Consents Too Much

Usually it is a good thing when your girlfriend consents. But there are exceptions. One of those exceptions is when the girlfriend consents to a search of your house and computer after she's called the cops because she found child pornography on your computer.

That was the situation under review by the Wisconsin Supreme Court in State v. Sobczak. The specific issue was whether the defendant's girlfriend of three months had authority to consent to the warrantless search of the defendant's computer. She had been using the computer, apparently with the defendant's consent, while she was staying the weekend at his parents' house. But when the defendant went off to work, she went clicking around, found videos of child pornography, and called the cops. I think they broke up.

The court found that the girlfriend did possess the necessary authority to consent to the search. Professor Orin Kerr thinks this is the right result:

[O]vernight guests have a “measure of control of the premises” when “the host is away.” Although this passage is hardly free from ambiguity — a “measure of control” isn’t clear about how much of a measure it confers — I would think that the most basic measure of “control” of a house is the ability to invite someone to enter the common areas of the home. If I’m right about that, Podella was exercising that right by allowing the officer to enter the common area of the home when Sobczak was away. Granted, she did so in one of those “unlikely” circumstances in which the guest found evidence of the homeowner’s crime, and the homeowner would not want the guest to invite in the cops. Olson indicates that if the homeowner is present and objects, the homeowner’s veto controls. But the homeowner was not present to object in this case, so I don’t think that conflict of interest matters.

Chief Justice Abrahamson dissented. One of her disagreements with the majority was that it relied on the characterization of the houseguest as the defendant's "girlfriend," and the evidence didn't necessarily support the conclusion that they were so initimately involved. Instead, the record was that they met online, had been dating for three months, and that she'd accepted his invitation to spend the weekend at his parents' house while they were away. Then, in an apparent swipe at the majority, the Chief Justice says,

The majority apparently assumes that a 22-year-old man is having a romantic, intimate relationship with a 20-year-old woman whom he invites over for the weekend while his parents are away.

What do you think, Mr. Gillette: did the majority make a reasonable inference?

Judge Posner is unstoppable. He cannot be stopped.

I was thinking this morning about Samuel B. Kent, a former judge for the United States District Court for the Southern District of Texas. He was famous for writing opinions and orders that took lawyers to task over the way they handled cases before him. For example, see this opinion which speculates that the submissions the judge received were done in crayon as a way of saying the lawyers on the case were stupid.

My last post?

Today I drank a bottle of Dr. Pepper which had an expiration date of February 2013. If I never post again, you know why.

Was Snowden Really a Spy?

News broke yesterday that Edward Snowden, the NSA leaker, has been indicted under the Espionage Act. Though this is unsurprising, it has provoked some outrage. To some, Snowden is a whistle-blower doing God's work—an insider and true believer who became disenchanted by what he learned of the NSA's abuses and excesses, and felt the only choice was to make them public. Such conduct seems unworthy of criminal prosecution.

As a civil libertarian who's highly skeptical of government power, I am glad that the documents we have were leaked, and look forward to more. But I'm not sure Snowden is really wearing a white hat.

It seems increasingly plausible, in fact, that Snowden wasn't an insider who became disenchanted, but rather an outsider who purposefully infiltrated the NSA with the specific intent to make its secrets public. For example, the Los Angeles Times reports that Snowden has long been critical of the NSA:

A self-taught computer whiz who wanted to travel the world, Snowden seemed a perfect fit for a secretive organization that spies on communications from foreign terrorism suspects.

But in hundreds of online postings dating back a decade, Snowden also denounced "pervasive government secrecy" and criticized America's "unquestioning obedience towards spooky types."

At least online, Snowden seemed sardonic, affably geeky and supremely self-assured. In 2006, someone posted to Ars Technica, a website popular with technophiles, about an odd clicking in an Xbox video game console. A response came from "TheTrueHOOHA," Snowden's pen name: "NSA's new surveillance program. That's the sound of freedom, citizen!"

It is strange that a person who made these comments would be granted a top-secret security clearance and allowed access to the country's most secret double-secrets, unless it was all just a clever cover story (which I doubt). On the other hand, it makes me feel a bit safer that the NSA's all-seeing surveillance wasn't all-seeing enough to know they had given an obvious mole super-user access to their servers.

But it also provides a possible answer to another nagging question: why was a lowly nerd like Snowden given access to these super-secret documents? One possibility is that he actually wasn't given access to these documents, but took it. In other words, he used his admin privileges to probe the NSA's databases and went looking where he shouldn't have, all with the specific intent of exposing anything he found and considered objectionable.

Obviously, this is rank speculation on my part. ("Rank Speculation" would be a great sub-title for this blog, after all.) But if it's true that Snowden was on a mission to divulge, and that he went looking for documents he wasn't supposed to look at, it's harder to be outraged at the decision to prosecute him—even if you think (as I do) that his actions ultimately further the public interest.

UPDATE (6/24/2013):

According to the South China Morning Post, Snowden now admits that he took the Booz Hamilton job with the specific intent to gather and divulge the NSA's secrets:

"My position with Booz Allen Hamilton granted me access to lists of machines all over the world the NSA hacked," he told the Post on June 12. "That is why I accepted that position about three months ago."

Will Bryan Garner take the bait?

United States District Court Judge Richard Kopf recently posted on his blog a list of ten legal writing hints for lawyers to use when appearing before him. Hint number 9 caught my eye. It says,

Burn anything that Bryan Garner has written.  He really knows his stuff, but Strunk and White’s The Elements of Style said it all.  Besides, Garner, Scalia, and Posner pissed me off when they got into a juvenile cat fight over a book about rules.  Not to put too fine a point on it, but I am the only one who is permitted to act like a spoiled brat.

We covered the spat Judge Kopf mentions to the point it grew tiresome (see here, here, here, here, here, and here).

Some people do not know when to stop.

When one sees a Detroit Free Press story about a Wayne County, Michigan judge being removed from office, one thinks the story will refer to Judge Wade McCree (see other posts about Judge McCree here, here, here, here, here, and here). But it turns out that Judge McCree is not the only judge in Wayne County to run into problems with the Michigan Supreme Court.

The Tyranny of Contract

The Supreme Court today issued another opinion (American Express v. Italian Colors Restaurant) making it harder to sue in federal court after you've "agreed" to arbitration and "agreed" to waive any authority to pursue a class action. This kind of case—strengthening arbitration clauses and weakening class action privileges—is what people point to as exemplifying the "pro-business" bias of the Roberts Court. I've pushed back on that argument before, but today I want to push back a little the other way.

Specifically, I want to push back on the idea that these decisions are admirable as vindicating the "liberty of contract." A good example of that argument is made by graysilverback-blawger Walter Olson, who hails today's decision as "a victory for freedom of contract."

I do not think today's decision and the others like it are a victory for any kind of freedom or liberty of contract. I think they are better understood as furthering a pernicious tyranny of contract. No one—and I mean no one—negotiates a credit card or cell phone or cable television contract. This is true for consumers and it is true for small businesspeople. These are take-it-or-leave it arrangements, so the only option is to vote with your feet and sign on with a competitor. But it is no surprise that all the options impose these same onerous terms and waivers because in the final analysis no consumer or small businessperson will ever choose a credit card or cell phone based on finely printed dispute-resolution procedures. We choose on price and features, full stop. Anyone sophisticated enough to understand the effect of these provisions is sophisticated enough to know there is no choice but to accept them.

That is not to say that the Supreme Court's decisions in these cases are necessarily wrong to enforce these provisions. I am suspicious of the "effective vindication" doctrine that was at issue in today's case because it is a judicially crafted exception to rather clear federal legislation. And the objectives the plaintiffs' bar seek to vindicate can be achieved the old fashioned way: through legislation.*

So these decisions can be defended in terms of judicial modesty, and as consistent applications of basic interpretative principles. But it goes way too far, I think, to celebrate them as a triumph for freedom. The existence of these contracts is best understood as a market failure. They have the effect—undisputed in today's opinion—of making it cost prohibitive for people to prove violations of their statutory rights. It may well be wise of the Supreme Court to say, "this is not our problem." (Or, as Justice Kagan put it, "too darn bad.") But let's not pretend that individual freedom was actually increased as a result.

UPDATE: Walter Olson points out on Twitter that "grayback" is apparently an obscure insult, which was not my intent. I meant "silverback," which is to say that Mr. Olson is like a gorilla and that is not at all offensive. In seriousness, I was ineffectively just referencing the fact that he's been blogging about the law longer than just about anyone.


*FOOTNOTE: The chances of such legislation getting passed are undeniable small, for much the same reason that the companies are able to impose these terms in the first place. The companies each have billions on the line, and the consumers have literally pocket change at stake. So there are public choice problems. But another way of looking at this is just that Congress is "pro-business" too.

Cat vs. machine.

Ralph Waldo Emerson supposedly said that if you "build a better mousetrap, the world will beat a path to your door." However, the employees at the Henderson County, North Carolina courthouse have discovered that the best way to get rid of a rat infestation is not a trap but  a cat. The Hendersonville Times-News carries the story of how the courthouse rat infestation was solved by a cat named Mr. Jingles. The story does not mention how Justice Thomas feels about this form of capital punishment. From what I can tell neither Alexander Hamilton nor James Madison ever built a mousetrap. Perhaps that makes it likely that the Framers  were pro-cat.

Justice Thomas: Liberal?

Over at Slate, freelance writer Mark Joseph Stern, has an article examining the supposedly surprising jurisprudence of Justice Thomas:

Supreme Court Justice Clarence Thomas is frequently accused of being a partisan hack, a conservative lackey serving only the interests of the Republican Party. His votes are often portrayed as products of political ideology rather than constitutional philosophy, a practice he only encourages with his forays into political commentary. But as his recent opinions in Alleyne v. United States and the Myriad gene-patenting case illustrate, Thomas is much more than a Tea Party mouthpiece. That his views skew conservative is a product not of partisanship but rather of his deep, occasionally confounding dedication to originalist theory. And sometimes that dedication leads this already idiosyncratic justice to cast votes that would please Earl Warren.

Reader(s)™ will recognize this as a recurring theme of this blog, and I'm happy to see this published at Slate, which is generally a hotbed of the cynical, personality-focused coverage of the Supreme Court that I detest.

But the article contains at least one egregious error in its discussion of Justice Thomas's views on the Eighth Amendment, which Mr. Stern says include approval of "astonishingly torturous methods of capital punishment":

More than any justice in history, Thomas is an originalist, ruling exclusively by the letter of what he views as the Founders’ original intent in writing the Constitution. Because the Founders, for example, condoned “public dissection” and the “embowelling [sic] alive, beheading, and quartering” of prisoners, so too does Thomas.

This is laughably incorrect. The supposed source for this assertion is Justice Thomas's concurrence in Baze v. Rees, but Mr. Stern interprets the concurrence, um, incorrectly. Justice Thomas does discuss "embowelling alive, beheading, and quartering" of convicts, but not as examples of practices the Founders condone. On the contrary, he discusses these practices as the very "cruel and unusual" punishments he believes the Eighth Amendment was intended to outlaw:

That the Constitution permits capital punishment in principle does not, of course, mean that all methods of execution are constitutional. In English and early colonial practice, the death penalty was not a uniform punishment, but rather a range of punishments, some of which the Framers likely regarded as cruel and unusual. Death by hanging was the most common mode of execution both before and after 1791, and there is no doubt that it remained a permissible punishment after enactment of the Eighth Amendment . “An ordinary death by hanging was not, however, the harshest penalty at the disposal of the seventeenth- and eighteenth-century state.” Banner 70. In addition to hanging, which was intended to, and often did, result in a quick and painless death, “[o]fficials also wielded a set of tools capable of intensifying a death sentence,” that is, “ways of producing a punishment worse than death.” Id., at 54.

One such “tool” was burning at the stake. Because burning, unlike hanging,  was always painful and destroyed the body, it was considered “a form of super-capital punishment, worse than death itself.” Id., at 71. Reserved for offenders whose crimes were thought to pose an especially grave threat to the social order—such as slaves who killed their masters and women who killed their husbands—burning a person alive was so dreadful a punishment that sheriffs sometimes hanged the offender first “as an act of charity.” Id., at 72.

Other methods of intensifying a death sentence included “gibbeting,” or hanging the condemned in an iron cage so that his body would decompose in public view, see id., at 72–74, and “public dissection,” a punishment Blackstone associated with murder, 4 W. Blackstone, Commentaries 376 (1769) (hereinafter Blackstone). But none of these was the worst fate a criminal could meet. That was reserved for the most dangerous and reprobate offenders—traitors. “The punishment of high treason,” Blackstone wrote, was “very solemn and terrible,” id., at 92, and involved “embowelling alive, beheading, and quartering,” id., at 376.

* * * 

Although the Eighth Amendment was not the subject of extensive discussion during the debates on the Bill of Rights, there is good reason to believe that the Framers viewed such enhancements to the death penalty as falling within the prohibition of the Cruel and Unusual Punishments Clause.

So, while the article is a welcome corrective to the usual lazy reportage on Justice Thomas, it could sure use some fact checking.

Judicial Wordplay and the NSA

In my post the other day about the blockbuster leaks regarding NSA surveillance, including the alleged PRISM program, I even cited some case law: In re Directives [redacted text] pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1015 (2008). I found this case on Westlaw and didn't realize at the time that is one of the very few decisions that has ever been published out of the FISA court.

I joked about how there was even a redaction in the case title—the name of what I called the "brave service provider" who had challenged the NSA procedures on behalf of its customers. Today we learned the identity of that service provider: Yahoo!

For once, the exclamation point is appropriate. I'm almost tempted to put one of those Spanish upside down exclamation points in front of it for good measure.

Anyhow, I was perusing the opinion again today, and noticed this passage:

The [Protect America Act] was a stopgap measure. By its terms, it sunset on February 16, 2008. Following a lengthy interregnum, the lapsed provisions were repealed on July 10, 2008, through the instrumentality of the FISA Amendments Act of 2008, Pub.L. No. 110-261, § 403, 122 Stat. 2436, 2473 (2008). But because the certifications and directives involved in the instant case were issued during the short shelf life of the PAA, they remained in effect. See FISA Amendments Act of 2008 § 404(a)(1). We therefore assess the validity of the actions at issue here through the prism of the PAA.

We now know exactly what that "prism" was. I have no doubt that this wordplay was intentional, given the cheekiness of the rest of the opinion and that Judge Selya, the author, is well known for his "distinctive writing style."

Perhaps the rest of the opinion deserves a very, very close reading to see what other secret messages it contains.

"Jeffrey Toobin pledges to end predictions"

According to Politico, Mr. Toobin has made yet another wrong prediction about the Supreme Court:

the CNN legal analyst and New Yorker staff writer on Thursday made another prediction—although one much less assertive than his inaccurate Obamacare declaration of last year—about the Supreme Court: On MSNBC’s “Morning Joe,” Toobin said “very likely we’re going to get the affirmative action case” today.

Wrong. As a result, Toobin jokes that he is now going "to make all [his] predictions about the past."

The Gillette-Torvik Blog considers that a victory. But we know it won't last.

Jai Alai? Really?

Seth Stevenson at Slate is going to cover the trial of alleged Boston crime figure Whitey Bulger. Mr. Stevenson's coverage begins here. As Mr. Stevenson notes, Mr. Bulger is accused of a number of crimes. One crime called to mind an episode of "Man Men." Mr. Bulger is accused of murdering a businessman in 1981 as part of an attempt to take over the World Jai Alai association. Was there enough money being made in jai alai that alleged mobsters wanted in on the action? I wonder if the defense to that particular charge will be that Mr. Bulger was not stupid enough to believe he could make money on a sport that virtually no one plays, follows, or knows anything about.