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I don’t ever recall so many prominent bloggers all at once questioning Professor Volokh’s sense and integrity after Volokh worried that, under Rasul, a hypothetical 50,000 habeas petitions at once could burden our future war efforts. Kieran Healy now seems to think that Volokh’s justification for eschewing torture issues was a crock. DeLong thinks—well, he just channels mockery. Atrios thinks the good professor has judicial appointment in mind.
Juan Non-Volokh, however, takes the hypothetical seriously (as it should be taken). In disputing Volokh, he quotes the text of the Suspension Clause . . .
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Juan also notes that Congress—not the judiciary—might have final authority to determine whether Habeas Corpus may be suspended.
Certainly other branches of the armed forces—especially those technologically nonexistent in 1789—are but the smallest departure from the constitutional text. “Dire national emergency,” however, might include all sorts of things, like extreme recession, widespread disease, or the resurrection of Disco. So I think Juan’s textual analogy fails.
I offer a half-serious alternative: in moments of dire national emergency, perhaps another sort of “stretching the text” would be permissible. That is, supposing an onslaught of habeas petitions were truly a threatening burden, Congress need only argue that the mass filing of petitions by foreigners in U.S. courts is an “invasion.” Hmm…. Operation of the writ becomes reason to suspend it. Sounds more like a Kurt Vonnegut plot than a plausible argument, but they say necessity is the mother of invention.
Today in History (1997) - The United Kingdom hands sovereignty over Hong Kong to the People's Republic of China. Six years later, half a million people in Hong Kong march to protest, among other things, the government's handling of the plans to implement a new anti-subversion law required under Article 23 of Hong Kong's Basic Law.
From Kristof at the NYT:
An article in Wired to kick off a new Media column by Adam Penenberg, the writer who originally uncovered Stephen Glass's fabrications in The New Republic. Looks cool.
E-porn providers may have dodged a bullet today. The Supreme Court affirmed a preliminary injunction against enforcement of the Child Online Protection Act, 47 U.S.C. §231, an Act designed to bar minors' access to Internet obscenity. The Court remanded for trial on the factual question whether filtering technology, for instance, would be a less restrictive alternative to the COPA. With respect to minors, COPA rather closely tracks the obscenity framework of Miller v. California, 413 U.S. 15, 24 (1973). Surprisingly, however, the majority fails to discuss Miller. This raises the question whether the Court intends to move obscenity doctrine away from the Miller requirements (which, when satisfied, exclude speech from First Amendment protection). Kennedy's majority opinion avoids explicit selection of a standard of review, but in the midst of a lengthy "less restrictive alternative" analysis, he hints that strict scrutiny may apply:
Justice Breyer's dissent, joined by Justices Rehnquist and O'Connor, disputed the restrictiveness of COPA and offered these thoughts:
I think the dissent's reliance on the above is misguided. Just how eager does Breyer think web-surfers are to give credit card numbers or other identifying information to porn peddlers? Of course, COPA also mentions other age-identifying technology, much of which, I imagine, would require surfers to at least install software or register at a government sponsored website that assigns age verifying passwords or some such (which would also require participation by operators of porn sites). And perhaps this is a burden that's worth keeping kids away from nasties online, but I think the dissent underplays the restrictiveness of COPA and the various unsettled factual issues better determined on remand.
So much has been written about Fahrenheit 9/11 that I thought I'd keep out of the discourse for fear of duplicating commentary. But I decided that approaching the film as a failed piece of political journalism (like most commentators have) just isn't very interesting. Clearly, the film is hopelessly one-sided and often misleading, but who expected anything else?
What's interesting about Fahrenheit 9/11 is what it could have been. Moore had the unique advantage of an audience who had spent the last four years watching this nation--largely through mainstream television media--dramatically change. His use of television news clips calls to mind the experiece of citizens, at the television, eager to understand these extraordinary international developments.
One occassionally senses, in Moore's films, a genuine talent for relating the difficulty of social problems, but this talent is utterly corrupted by his blind political passion. What could have been a complex mosaic of media-filtered news, complemented by footage capturing the individual's experience of the war, was soured by the careless partisan venom of Moore's outrage. Fahrenheit 9/11 could have been a remarkable historical artifact for the ages, relating the sensative political struggles and rhetorical nuances during Bush's first term. But Moore's target was November, 2004, and for this his film lacks all dimension as a cultural reflection.
Today Is History (2004) - The United States declares that Iraq's sovereignty has been transferred to an interim Iraqi government.
Sky News, one of the non-BBC outlets in the UK, has me confused this morning. I flipped on the hotel TV while getting dressed, and was greeted with a headline declaring that Zarqawi had been captured and two men discussing the good news. One of them noted that this was particularly fortuitous news on the day of the handover.
Eh, what? Wasn't the handover supposed to happen on Wednesday? CNN certainly gave me that impression, with their non-stop display of graphics and journalists bragging about how On The Ground, In The Action they were.
Then the headline suddenly changed to 'General Denies Zarqawi Capture,' and the two men, as confused as myself, haltingly claimed that Reuters had gotten something wrong. An erroneous translation of something from an Arab news source. Or something.
Getting back to the early handover -- Chris Patten said that moving it up by a couple of days, and doing it without too much ceremony, was very sensible, as the Iraqi insurgents probably had planned to cause as much havoc on June 30 as possible. This sounds right; I think the Bush Administration probably has learned that the more fanfare they produce, the more likely it is to come back and bite them on the butt.
A funny thing happened on the way to the bookstore today: as I was looking for Shakespeare & Co. (lame American tourist thing to do, which I completed by buying Ulysses), I came across Paris's gay pride parade.
At first, I thought it was very poor. "My grandmother could throw a better parade than this!" etc. Then I realized that this -- the people standing aimlessly on a bridge across the Seine, the pretty young women handing me flyers -- was just the warm-up.
The real parade swung through about half an hour later, complete with motorcycles, floats, a "Just Married" couple and a moving concession stand selling shish kebabs. There was a slight corporate feel to the whole event, with a radio station sponsoring it as a whole and several companies' names plastered on floats, but I suppose that's part of going mainstream.
Incidentally, the New York Times recently featured a Christopher Caldwell article about same-sex unions in France, which have erupted onto the front page with a small-town mayor's having performed the nation's first.
Today in French History (1793) - First republican constitution adopted. Nineteen years later, Napoleon's invasion of Russia begins.
From the New York Times:
'Judge Certifies Suit Accusing Wal-Mart of Sex Discrimination
The class-action lawsuit against the nation's largest private employer could represent as many as 1.6 million female employees.'
This ruling is not about the merits of the sex discrimination case itself, but about whether Wal-Mart's various stores operate as essentially autonomous businesses, or if they are getting their ideas from on high. This is relevant because if all the stores are one big business -- as the plaintiffs allege -- then female employees of all those stores can be included in the lawsuit, instead of having to hunt up a willing plaintiff from each individual store.
I was reading the International Herald Tribune last week and came across an article about some findings from the 9/11 commission. One of them included information that, according to the article, was obtained from terrorist ringleader Khalid Shaikh Mohammed.
I'd been debating the issue of torture lately, and thus wondered: How did we get this information out of KSM? What methods were required? Was the Geneva Convention violated?
But then again, this was a man who helped to plan the attack on the World Trade Center. Do we really mind if he was psychologically or physically tortured in some way, if it helps us piece together what happened that day?
Today in History (1992) - In R.A.V. v. St. Paul, SCOTUS unanimously declares an ordinance prohibiting 'hate speech' to be unconstitutional. According to Oyez.com, "Under the ordinance, for example, one could hold up a sign declaring all anti-semites are motherfuckers but not that all Jews are motherfuckers."
Funny clip from a cybersquatting case:
(Garden of Life, Inc. v. Letzer, 2004 WL 1152866 (C.D. Cal. 2004))
Perhaps we ought to rethink our hopes that a multi-billion dollar corporation called "Blog De Novo" will emerge and buy us out for a pretty sum.
Check out this article in the Sacramento Bee:
Jill LaVine, Sacramento County's top elections official, didn't expect her cable television debut to go like this.
LaVine, still in her first year on the job, had just given a full explanation of the threats facing California's electoral system when her interviewer asked for clarification.
"Now, can you take that long-ass answer and put it in a nutshell like I asked you?" said Rob Cordrry, one of the satirical correspondents for "The Daily Show With Jon Stewart...
[LaVine] had never heard of "The Daily Show" before agreeing to the interview....
"Don't you think blacks should be given more than one vote to make up for that whole slavery thing?" Cordrry asked LaVine. "P. Diddy's got to be worth two votes, and Justin Timberlake, he's worth two votes, even though he's not black or anything."
Without cracking a smile, LaVine deadpanned, "That doesn't address the issue here."
Poor election official. I don't think anyone who's "never heard of" The Daily Show should be allowed to hold elected office.
Moorewatch, fighting so nobly against the "doublespeak and falsehood that spews from the mouth (and keyboard) of Michael Moore," wants to fight the film, Fahrenheit 9/11, with "campaign finance laws and equal time regulations." (Read the post if you like, it still won't make sense.)
Matto of Ichiblog notes that pesky Amendment the First.
I've written before that film has great potential as propaganda, and supposing this potential is further harnessed in the coming years, some rather interesting first amendment issues could become more relevant. Surely films like Independence Day steer clear of the false statements of fact exception to protection, but documentary type films, which present themselves as factually premised, raise tougher questions. Films as propaganda might also urge viewers to take certain action--action that may involve a purchase or some other "transaction"--in which case the films may be subject to the lower protection of commercial speech.
Could make an interesting law review article, if it hasn't already been done.
I think "duck," as PG put it, is exactly the right word for the Supreme Court's pledge opinion [article, not the decision], and I imagine most people reasonably acquainted with the Supreme Court’s behavior in the last century (particularly the last 40 years) would agree that tossing this case on standing grounds is less a ruling about standing and more a dodging of a difficult or controversial issue. I am not familiar with anything in standing doctrine that compels the result in Newdow, but standing is sufficiently malleable to support this ruling given the facts.
The legal realist judge, as commonly conceived, happily navigates malleability in the law to reach a desired result for political or other reasons. This approach to judging has, of course, been sharply criticized throughout the academy and especially in the legal corner of the blogosphere (most notably by Professors Solum and Bainbridge). The question I’m finally arriving at in this post is whether manipulating doctrine to avoid constitutional questions is, to legal formalists or other anti-realists, just as contemptible as reaching a desired result on the merits by manipulating doctrine.
The judicial practice of avoiding certain questions is common enough to have its own name: the constitutional avoidance doctrine (surprise!). My sense is that acts of constitutional avoidance (which are often quite transparently contrary to precedent) do not pinch the same nerve as garden variety realism. But should they? Don’t they threaten consistency and the rule of law just the same? It wouldn’t surprise me if the truly committed formalist objected to constitutional avoidance just the same, but I somehow doubt this is true for anti-realists across the board.
If you scorn realism but welcome (or tolerate) disingenuous constitutional avoidance, chances are you just scorn the current judiciary (certainly a defensible stance). Or not. Just a thought for formalists.
The Supreme Court managed to swerve around deciding the constitutionality of 'under God' in the Pledge of Allegiance by unanimously (Scalia not participating) declaring that Michael Newdow, due to insufficient custody of his daughter, did not have legal standing to sue on her behalf.
Justice Stevens primly opined, 'When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law.'
Three of his more conservative brethren and sistern (Rehnquist, O'Connor and Thomas) showed their hands and wrote separately to say that 'under God' was constitutional.
UPDATE: Thanks to Greg for the factual correction on the unanimity, or lack thereof, of the decision. Due to being abroad, my U.S. news is coming in very short bursts. However, I disagree on the issue of whether the constitutionality of 'under God' was at issue in Newdow; my understanding is that if that phrase had not been added to the Pledge, there would be no case.
On this ironical holiday, I don't have much to say about Reagan's death because I know very little about him and thus refuse to take a stance. But in the spirit of ignorant partisanship and irreverently unfunny humor, I offer a solution to the controversy over whether Reagan should replace FDR on the dime.
Said solution: Lincoln's already got the five dollar bill, so boot him off the penny to make room for Reagan. After all, everyone knows what part of the Reaganomic dollar actually "trickles down," right?
Perhaps lacking the necessary schadenfreude, Bashman didn't link to this article -- but I will!
Grim regimen awaits Lea Fastow in detention
Travel prevents me from posting much during June, but I was checking on the news just now, and the juxtaposition of these New York Times headlines struck me:
Lawyers Decided Bans on Torture Didn't Bind Bush
Bush Didn't Order Any Breach of Torture Laws, Ashcroft Says
Which raises the question of how bored Justice Department staff must be, if they have to work out the legal consequences of actions that the Administration doesn't plan to take. In other words, why bother figuring out that international treaties regarding torture are not binding on President Bush, unless Bush may wish at some future point to have policies that would violate those treaties?
The second Times article reports, 'Mr. Ashcroft strove to make a distinction between memorandums that may have provided theoretical legal justifications for torture and his assertion that there had never been any directive that actually authorized its use. [...] Mr. Ashcroft said proof that the administration was opposed to torture in practice, despite any legal memorandums [...]'
(Shades of the infamous Rehnquist memo...? I wouldn't want every random musing I've written to be published, but perhaps all this serves as a recommendation to people high in the federal government to do a little less of such musing on the job.)
Reminiscent of the Cheney energy case, the Administration again seems uninclined to attempt an invocation of executive privilege to avoid publicizing their memos regarding what the president may and may not do. This time Ashcroft said, according to the article's paraphrase, that 'it was simply not good policy to openly debate what powers a president had in wartime,' as the end-run alternative justification for withholding information. I am curious as to what has made Bush so reluctant to mention executive privilege now, considering that he felt free to proffer it when refusing to let Congress see prosecutorial records.
Today in History (1856) - Five hundred Mormons leave Iowa and head west for Salt Lake City, carrying all their possessions in two-wheeled handcarts. One hundred twenty two years later, the Church of Jesus Christ of Latter-day Saints opens the Mormon priesthood to "all worthy men,"ending a 148-year-old policy excluding black men.
Why should the "moral" of "The Tortoise and the Hare" be:
That maxim is often false, especially if you're a tortoise. What's wrong with the more obvious and more accurate moral:
? Contact your local school board.
... I need to figure out if I want to take Curriculum A or Curriculum B. For those not in the know -- as I was not, prior to last week -- Georgetown Law Center offers both a traditional first year courseload (A) and a revised set of classes based on the recommendations of their professors (B). Most students take A, but one section of 115 students is enrolled in B.
The best way I can describe B in brief is that it is "integrated." Instead of splitting up learning into traditional areas of Property, Torts, Contracts etc., B appears to be trying to teach them in an almost holistic manner, grounding students in the ideas underlying all of these aspects of common law.
This sounds attractive, but I'm oddly conservative about major revisions to educational curricula, and I want to be sure that I'm not too much of a guinea pig. I'd appreciate any advice De Novo readers might be willing to dispense about the virtues of attempting this alternative to the traditional first year.
Today in History (1965) - SCOTUS issues its 7-2 decision in Griswold v. Connecticut, declaring that the penumbral right to privacy in marital relations.
Today in History (1990) - U.S. District court judge Jose Gonzales rules that the rap album As Nasty As They Wanna Be by 2 Live Crew violates Florida's obscenity law; he declares that the predominant subject matter of the record is "directed to the 'dirty' thoughts and the loins, not to the intellect and the mind." In 1992, a Court of Appeals overturned the obscenity ruling, and the decision was then upheld by the U.S. Supreme Court.
I just wrote a sketch -- it's a commercial parody of sorts. I'm sort of looking for feedback as to whether it's funny; it's for something (of no consequence) that I'm doing, and if it's not funny, I'll just write something else. So if you read it, stick something in the comments so I know if it works or not? Thanks.
[clip from 2004 Democratic Debate; John Kerry speaking]
JOHN KERRY (in a monotone)
Under this administration, the trade deficit has grown by almost 50% and exports have fallen to an all-time low.
Don’t you wish you could relive exciting moments like this, over and over again in the comfort of your own living room? Finally, now you can, with, “The Greatest Moments of the 2004 Democratic Candidate Debates.” All of the highlights are here:
[clip from 2004 Democratic Debate; John Edwards speaking]
Under my plan, almost two-thirds of all women earning less than seventeen thousand dollars a year will receive an education tax credit of up to six hundred dollars.
Remember where you were when Joe Lieberman shrugged his shoulders for the very first time? Or when Dennis Kucinich realized he couldn’t see over the podium.
[clip from 2004 Democratic Debate; Al Sharpton speaking]
There are bigger issues in this race. Issues like why the media continue to ignore me.
The good times, and the bad. The laughter, and the tears. We all remember this emotional moment:
[clip from 2004 Democratic Debate; Wesley Clark speaking]
WESLEY CLARK (in a monotone)
I am the only candidate on the stage with real foreign policy experience.
For years, Americans have clamored for a way to recreate the presidential candidate debates in their own homes. Never before have they had the opportunity. Until now.
[clip from 2004 Democratic Debate; Bob Graham speaking]
I am Florida Senator Bob Graham, and I am running for President because I believe there is a chance all of the other candidates will die in a fiery accident, and I will be the only one left.
This 6-DVD set includes moments from the debate in Louisville, the debate in Des Moines, the debate in Springfield, the debate in the other Springfield, the debate in Grand Rapids, and the hardly-before-seen debate in Chestnut Fields, South Dakota that was only aired on public access television. During a blackout.
[clip from 2004 Democratic Debate; Dick Gephardt speaking]
One of the most important issues facing Americans today is how to get to me, Dick Gephardt, to stop running for President.
These professionally mastered DVDs are offered in the original widescreen format, with Dolby sound quality, and the option to hear the debates in English, or in German.
[clip from 2004 Democratic Debate; Howard Dean speaking]
Apple strudel, Fahrvergnugen, Haagen-Dazs, Weinerschnitzel, AAAARGGGGGGH!
Plus, the original theatrical trailers, and commentary from former Ambassador Carol Moseley Braun.
[clip from 2004 Democratic Debate; Carol Moseley Braun speaking]
CAROL MOSELEY BRAUN
Oh, here’s where I stood too close to the microphone and encountered a slight bit of feedback. It was quite an embarrassing moment.
And, a behind-the-scenes tour of the debate sites, with 1988 Presidential hopeful Bruce Babbitt.
[clip from behind-the-scenes tour]
This is the Green Room, where they provide coffee or tea for the candidates, and give them a place to make final preparations before the debate begins. Across the hall is the media room, where the candidates will make statements to the press after the debate is finished…
And, if you order now, we’ll throw in a limited-edition Joe Biden for President bumper sticker, and an autographed photo of Democratic Leadership Committee chairman Al From.
I’d always dreamed of the day when I could watch the Democratic presidential candidate debates over and over again, whenever I wanted. Now, thanks to this special offer, I can. And I can’t tell you how much it’s meant to me.
Sure you can.
Well, okay. It’s meant I can finally take my Season 1 of Growing Pains DVD out of the DVD player and put it in the garbage where it belongs.
“The Greatest Moments of the 2004 Democratic Candidate Debates.” Order now, before it’s too late.
[clip from 2004 Democratic Debate; Joe Lieberman speaking]
JOE LIEBERMAN (in a monotone)
We need to find a way to lower the cost of refinancing home mortgages in this country; we need moderate change for moderate problems; we need a leader who’s not afraid to listen.
“The Greatest Moments of the 2004 Democratic Candidate Debates” DVD collection may cause nausea, headaches, chest pains, drowsiness, and extreme boredom. Do not operate heavy machinery after watching the debates; the DVD collection is not for everyone; ask your doctor before you order; international shipping is extra.
Sad news that President Reagan has passed away. It strikes me that we may be in for quite a media display in the upcoming days, since there's been ten years to put together retrospective pieces, with the knowledge that there'd be nothing new to add. Already, each network seems to have unveiled a logo, and on CBS and ABC I've seen some prepackaged bits -- "The Reagan Love Affair," "Reagan's Film Career." Photo slide shows on the screen; scores of video clips... Reagan's life coincides with the rise of the mass media -- there's probably more footage of his 93 years than there is of anyone else on Earth. And now's the last chance for them to showcase it. I expect there have been some masterful pieces prepared to illustrate his life and legacy -- I would hope so; and I would guess we'll have lots of chances to see them over the next few days. I hope this entry doesn't read as cynical -- I really do think it's sad news that he's passed away. But I'm honestly interested to see what the media has come up with for it, since they've surely been preparing.
In March, David Wayne Jones became the second Texas inmate to be voluntarily castrated. (The number of Texas inmates who are involuntarily castrated is unknown.) The former East Dallas YMCA camp counselor admitted to molesting more than 40 boys and pleaded guilty in 1991 to felony charges of indecency with a child, in exchange for a 15-year prison sentence. He had served nine years of that before being paroled in 2000, but was soon sent back to prison after being caught in sexual activity with a fellow halfway-house resident.
Jones was released yesterday, despite prosecutor Howard Blackmon's recent attempts to pursue a 2001 indictment for aggravated sexual assault. District Judge John Nelms decided to dismiss this new charge on the grounds that prosecutors violated speedy trial laws and that the delay would seriously impede Jones's ability to defend himself, particularly as the alleged incident occurred 15 years ago.
With the failure of further criminal prosecution, Texas's Special Prosecution Unit is pursuing a civil commitment that would keep Jones confined, though outside a prison, and provide intensive rehabilitation beyond the weekly counseling he will receive as part of his parole.
Today in History (1986) - Former U.S. Navy counter-intelligence analyst Jonathan Jay Pollard pled guilty to Federal charges of spying for Israel. He currently is serving a life sentence.
Sorry I've been silent over here as of late -- the change of routine has meant I'm reading less, and thinking less, about relevant stuff that's happening in the world, and I haven't been getting beyond the kinds of more observation-y ramblings I post over at my solo site. I'm trying to get a different pattern going. And the Blogger Survivor contest will help (starting Monday! stay tuned!).
But -- I do have a point this afternoon, although if you're not a baseball fan it's a completely uninteresting point. I was just reading on ESPN.com that baseball columnist Rob Neyer is being moved behind the "wall of premium" and becoming part of ESPN Insider starting in a couple of weeks. This strikes me as silly.
I'm pretty sure Neyer has a fairly substantial following -- he's been writing a 3-5x weekly column on ESPN.com for 7 years I think, and, at least to me, is the only thing that makes ESPN.com worth going to (scores and stats are anywhere -- Yahoo, etc). He's a very solid writer, and a personality comes through in his writing, of a down-to-earth, humble, pleasant, interesting guy. I enjoy his columns a lot; I've read all of his books; I read his rants about the Royals on his personal site; I'm absolutely a fan. But as much as I enjoy his writing, it's not worth the price of ESPN Insider to read it -- there's too much out there that's relatively similar, if not quite as good, for me to justify spending the money; and too much unrelated web content that's basically fungible anyway because it's just reading material for no truly useful purpose is free, and so I can't really justify paying for anything on the web. Maybe the New York Times. Maybe. (But not while I have a student Lexis password.) I can't imagine ESPN Insider has a great deal of subscribers. So putting Neyer behind the wall will presumably cut his audience drastically -- perhaps 90%? 95%? Obviously a blind guess on the numbers, but ESPN gets a lot of traffic and I can't imagine a ton of subscribers. Which, even if I could still read him, makes him a lot less relevant and interesting. Sites that are read -- sites that other people are reading too, and you can talk about, and are creating buzz -- are more interesting than weblogs that get 20 hits a day, no matter how good the weblog is. In a way. I think. I feel like this sucks more for Rob Neyer perhaps than any of his readers, which makes me wonder if he's getting a raise -- especially because a lower profile may mean he can sell fewer books. But it sucks for his readers, because ESPN Insider isn't worth it, and he alone won't (I imagine) drive subscriptions. So he loses, we lose, and, since I won't have any reason to visit ESPN anymore, ESPN loses. Who wins? The magic bullet to make money on the Internet hasn't been found yet, but does anyone think pay sites are the way to go? Paying for diversionary content that no one *needs* to read? It doesn't even sound plausible that that's the future. But what is? Banner ads? Maybe a global Internet fee distributed among all content providers based on traffic? Does that work? I haven't thought it through. But I like the questions. And I feel bad for Rob Neyer. He's a good writer, and seems like a good guy. (And, no, I don't know him; I'm not just shilling; he's actually good.)
Today in History (1940) - In Minersville School District v. Gobitis, an 8-1 SCOTUS majority ruled that schools boards are constitutionally allowed to require students, including Jehovah's Witnesses, to salute the flag. The decision was reversed three years later by West Virginia State Board of Education v. Barnette.
One particularly important bit of wisdom I've gained as a summer associate is that being a Lakers fan is prerequisite to making partner at the firm where I work. This puts me at a special disadvantage because my general interest in sports is on par with my interest in drooling. But once I made an effort to say something about basketball, in my law-geeky sort of way, it occurred to me that the "three point play" rule is a rather interesting compromise between deterrence and compensation rationales of doing justice. (If you're already laughing, do yourself a favor and skip the rest of this post.)
For those of you who don't know what a three point play is: ordinarily players who are fouled when attempting a shot are given two chances to make free throw shots (each worth one point). The idea is to give the fouled player something like the opportunity he may have had but for the foul. However, if the fouled player makes his attempted shot anyhow, he still gets one (instead of two) opportunity at the free throw line. Ideally, a player would score three points (two from the original shot and one from the free throw); hence "three point play."
But why should the fouled player who makes a shot get a chance to score one more point? His opportunity to score was fulfilled. On the other hand, why shouldn't he get two additional free throws? The person who fouled him did the same wrong, and presumably there's the same need to deter would-be-foulers. I suppose it may be the case that successful fouled shooters get only one free throw because they are less likely to have been fouled flagrantly, but I prefer to think that the rule picked a convenient compromise between competing rationales of addressing foul play in the game.