Supreme Court Justices Regularly Include Dubious, Unresearched "Facts" in Opinions
The New York Times has an unsettling piece today describing the work of law professor Allison Orr Larsen, who's found that the Supreme Court frequently cites dubious "facts" provided in amicus briefs by third parties. Amicus briefs, also called friend-of-the-court briefs, are submitted by groups who are interested in a case's outcome but are not party to it. And sometimes these groups' assertions are repeated in Court opinions without any due-diligence factchecking:
In a 2011 decision about the privacy rights of scientists who worked on government space programs, Justice Alito cited an amicus brief to show that more than 88 percent of American companies perform background checks on their workers.
“Where this number comes from is a mystery,” Professor Larsen wrote. “It is asserted in the brief without citation.”
Aside from the obvious issue of reliability, the practice is problematic from a structural standpoint, the Times writes:
The trend is at odds with the ordinary role of appellate courts, which are not supposed to be in the business of determining facts. That is the job of the trial court, where evidence is submitted, sifted and subjected to the adversary process.
On the bright side, we now understand why Anthony Kennedy's supporting opinion in National Federation of Independent Business v. Sebelius included a section encouraging the other justices to send their bank account routing numbers to "His Excellency Prince Adebowale." (JOKE.)
32 Escape From Tennessee Juvenile Detention Facility With History of Problems
32 teenagers escaped from a Nashville juvenile detention facility yesterday and ten are still at large. From The Tennessean:
The teens were able to get into the yard and then broke out through a weak spot under a fence, Johnson said. The escapees are all boys between 14 and 18 years old who were brought to Nashville from across the state.
The facility, the Woodland Hills Youth Development Center, was the subject of a 2010 Tennessean piece that documented evidence of a sexual abuse problem. A kitchen employee was sent to jail for statutory rape, while a federal survey said inmates had anonymously reported "high rates of sexual victimization."
Last year local NBC station WSMV obtained photos and video of Woodland Hills guards sleeping while on duty.
WSMV's piece noted that during a six-month period in 2012 at Woodland Hills there were 17 reported assaults against staff members and 50 assaults by juveniles on other juveniles.
Eight NFL Storylines to Follow This Season
Last October, Frontline ran its massive exposé of the NFL’s secret history with concussions. The film was a devastating account—as thorough a fisking as any professional sports league has received in my lifetime—and the reaction was overwhelming. Michael Humphrey of Forbes spoke for many when he wrote, “If I keep watching, it is at my own ethical risk. And I honestly don’t know what I’m going to do.”
I don’t know what Humphrey did, but I know what the rest of us did: We kept watching football. More than we ever had, in fact. Every single marker of NFL ratings was way up last year, from the regular season to the postseason to the Super Bowl. The wild-card game between Green Bay and San Francisco—one I doubt you even remember—had nearly five times as many viewers as the series finale of Breaking Bad. The Super Bowl, a terrible game that was essentially over after half an hour, was the most watched program in American television history with 111.5 million viewers. Earlier this month, a meaningless preseason game featuring Cleveland’s Johnny Manziel taking 27 snaps on the NFL Network—a station many cable providers still don’t carry—received a million more viewers than the half-season finale of Mad Men.
Every year around this time, pundits like me write these big, long NFL-preview pieces covering all the offseason problems. There are the new studies showing that CTE (chronic traumatic encephalopathy) is more often caused not by one big hit—contrary to the PR focus on “safe tackling”—but by the continued pounding inherent to the sport. There is the ugliness of the official historical support for the Washington football team’s nickname. There is the bungled response to the domestic-violence episode of Baltimore Ravens running back Ray Rice, who knocked his then-fiancée out in an elevator and received a two-game suspension for it, half what a player gets the first time he is caught smoking weed. These controversies flood the NFL’s offseason — and commissioner Roger Goodell spends the spring and summer months batting them away with the league’s lawyers. Then the first kickoff comes, and everyone forgets every complaint they had and gets ready for some football.
This has happened every offseason in the NFL for a decade, and I have no doubt it will continue for decades to come. But the NFL isn’t shrinking in response to controversy. In fact, it wants to expand: Goodell has expressed a desire for an 18-game season, as brazen a move as a man with an injury crisis on his hands could possibly summon; would also like to add another playoff round or two; and has spoken of adding Friday games, something television networks would bid billions for. He may not be satisfied until the rest of the world starts calling their football soccer.
And why shouldn’t he be ambitious? I’ll be watching the first Thursday night, and most of the rest of the season, and oh, man, the Super Bowl—the Super Bowl is gonna be awesome. And you? You just want to know, this being Fall Preview week, what you need to know about the upcoming season. All told, I’d rather talk about that, too. So: your 2014 cheat-sheet fall-preview story lines.
Eli Manning. Can you believe that young Eli is starting his 11th season as the Giants’ starting quarterback? It feels like just yesterday that he was plucked from the fields of Mississippi as our G-Men’s own slack-jawed yokel. This is a critical year for Manning and the Giants. Tom Coughlin’s first year as Giants coach was Manning’s first year in the league, and even though that combination has given the Giants two wildly improbable, out-of-nowhere Super Bowl wins, it has also led to only one playoff appearance in the past five seasons. It’s particularly important for Manning, who, despite those two Super Bowl wins and his status as the Giants’ all-time leading passer, still doesn’t feel like a pantheon Giants star you’ll see on the side of MetLife Stadium someday. The fact that he’s led the NFL in interceptions three times might have something to do with that.
Michael Sam. The first openly gay player ever to be selected in the NFL draft wowed scouts during the preseason, but he’s still facing an uphill climb. Now that the Rams have cut him, will there be a backlash? More important: Will other teams—whose scouts have been raving about Sam’s effort—leap to pick him up? What happens if they don’t?
The NFC West. One could make a strong argument that four of the best five teams in the NFC are in the West. The defending-champion Seattle Seahawks, the model-franchise San Francisco 49ers, the up-and-coming Arizona Cardinals (who were probably the best team to miss the playoffs last season), and the St. Louis Rams, headed by renowned coach Jeff Fisher. The worst division five years ago is the best, by a long shot, today.
Chip Kelly and his supercharged game. The former Oregon head coach was expected, upon being hired by the Philadelphia Eagles, to have his “gimmicky” quick-fire offense crushed by the big bad defensive minds of the NFL. Nope! The Eagles ended up second in the NFL in total offense and turned journeyman Nick Foles into one of the most efficient quarterbacks in league history. The second year is always the real test: Is Kelly’s whip-fast offense the future of the NFL, or, if you’ll forgive me, a passing fancy?
Will Washington change the name? At this point, the U.S. Patent and Trademark office, the president, and Seahawks cornerback Richard Sherman—who said the NFL wouldn’t act against a Donald Sterling type because it has let Washington keep its name—have all come out against the racially offensive Washington football-team logo and appellation. But Goodell has so far allowed the name to stay, and Washington owner Dan Snyder has dug in. Will Goodell finally take a stand? Or will Snyder’s stubbornness win out? And seriously: What year is it, anyway?
Jerry Jones and the death of the Cowboys. Just three years after Oakland Raiders owner Al Davis died, the imperialist Dallas owner is doing everything in his power to take his place as the league’s most interventionist, self-destructive owner. Jones, like every other guy holding the purse strings, fancies himself a football genius, but unlike his peers, he actually insists on absolute power over personnel moves and public relations. The result has been a disaster, an aging team hopelessly in salary-cap debt that hasn’t made the playoffs in four years. The Cowboys—once the league’s signature franchise—are the laughingstock of the NFL, the Knicks but worse, and the reason can be found in the owner’s box. Or in front of every camera within a 100-mile radius of Arlington, Texas.
Michael Vick. Speaking of letting things go when the games start … Michael Vick’s in town. The protests are difficult to locate; it has been a while since he was released from prison in 2009. The Jets brought in Vick ostensibly to back up starter Geno Smith, but this is still Michael Vick, and this is still the Jets, who never met a big name they didn’t want to throw out there for their fans to lustily boo. The story of the Jets may still be the ongoing survival of Rex Ryan, who has been on the hot seat for roughly his entire Jets career and yet is essentially the one Jet left standing. Maybe that’s because he’s possibly the most entertaining sports figure New York City has had since Reggie Jackson.
Johnny Manziel. And then we have the Texan gunslinger, our generation’s Joe Namath, the most purely electrifying figure in the sport, both on and off the field. (He’s already been caught on camera in a preseason game flipping his opponents the bird.) The question as to whether Manziel will become a great quarterback for the Cleveland Browns is almost beside the point. What really matters is whether there’s even room for a shit-kicker like Manziel in today’s corporatized NFL. (Goodell would definitely insist Namath get a haircut.) Manziel doing anything is so inherently entertaining and individualistic that you wonder whether the NFL will even allow the show to go on. But, of course, they will.
*This article appears in the August 25, 2014 issue of New York Magazine.
Ebola Vaccine to Get Human Trial for the First Time
As the race continues to stop the outbreak of the Ebola virus in West Africa, a new Ebola vaccine is set to begin a human trial for the first time this week. The vaccine, which is being developed by the NIH along with pharmaceutical company GlaxoSmithKline, and has “performed extremely well” in primate studies, Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases at the National Institutes of Health, told ABC News.
The trial comes as the World Health Organization warned last week the Ebola outbreak could infect as many as 20,000 people. It’s unclear if the vaccine will be ready in time to help combat the current outbreak, but the timetable is being sped up in case the trials are successful. According to ABC News, “although [NIH’s] Fauci said in July that it would take until late 2015 for a vaccine -- if successful -- to be administered to a limited number of health workers, GlaxoSmithKline said in a statement that the grant will also enable it to manufacture 10,000 doses of the vaccine while the trials are ongoing. If the vaccine trials are successful, it will be able to make stocks available immediately to the World Health Organization.”
Here’s more on the upcoming trial from ABC News:
The phase 1 clinical trial set to begin this week at the NIH Clinical Center in Bethesda, Maryland, will involve 20 human subjects between the ages of 18 and 50, according to the NIH. Researchers will use the study to determine whether the vaccine is safe and see whether it prompts an immune response necessary to protect against Ebola. No human subjects will be infected with Ebola. A $4.7 million grant will also go toward Ebola vaccine trials in September at the University of Oxford in England, as well as centers in Gambia and Mali, according to GlaxoSmithKline. In all, 140 patients will be tested… The NIH said it should have initial data from the trial in late 2014.
In Case of Emergency, Japan Launches Public Awareness Campaign Urging People to Stockpile Toilet Paper
When stockpiling supplies for a potential disaster the first things that jump to mind are: food and water. In earthquake-prone Japan, however, authorities want to make sure the list doesn’t stop there and on Monday the government launched a public awareness campaign to make sure people also remembered to stock up on another oft forgotten item—toilet paper.
While the need for toilet paper, disaster or not, is perhaps obvious, during a potential earthquake in Japan, TP can become a particularly scarce strategic resource as “nearly half of the supply comes from one of Japan's most earthquake-prone areas,” according to the Associated Press. "After running out of toilet paper, people start using tissue, and that could clog up precious workable toilets," Toshiyuki Hashimoto, an industry ministry official in charge of paper products, told the AP.
Here are some more fun facts from Japan’s "Let's stockpile toilet paper!" campaign, via the AP:
As part of the campaign, makers are offering a tightly rolled, 150-meter- (490-foot-) long, single-layer toilet paper that lasts more than twice as long as a regular roll. A family of four should be able to survive for a month on a six-roll pack, priced at 460 yen ($4.40) and with a five-year expiration date, said Satoshi Kurosaki, chairman of the Japan Household Paper Industry Association. Government and industry officials said 41 percent of the country's toilet paper supply comes from Shizuoka prefecture in central Japan, where experts say there is a higher than 80 percent chance of a major offshore quake in the next 30 years. Officials warned of a nationwide toilet paper shortage for about a month in such a disaster, based on lessons learned from the deadly March 2011 earthquake and tsunami in northern Japan.
Hundreds of Thousands of Fish Turn Up Dead in Mexican Lake
Mexican officials have different opinions on what’s going on at Lake Cajititlan. Over the past week, hundreds of thousands of fish have turned up dead in the lake in the state of Jalisco. So far, almost 50 tons of dead popoche chub freshwater fish have been taken from the lake, the BBC reports, but the mass death isn’t thought to be over yet. “The local authorities said it was part of a ‘natural cycle’ but state officials said it was due to the lake's ‘poor management,’” according to the BBC.
Local officials, Agence France Presse reports, “said the deaths were due to a drop in oxygen due to a cyclical change in water temperature.” However, the state’s environmental secretary, Magdalena Ruiz Mejia, said “the deaths were ‘more and more’ frequent and intense due to ‘bad management of the body of water,’” according to AFP.
Whatever the cause, some of the images of Lake Cajititlan are pretty stunning.
Federal Judge Temporarily Blocks Enforcement of Louisiana’s Restrictive New Abortion Law
A federal judge stepped in and temporarily blocked the enforcement of a restrictive Louisiana state law on abortions on Sunday. The law, signed by Gov. Bobby Jindal in June, will still go into effect on Monday, and requires doctors performing abortions to have admitting privileges at a local hospital. Abortion rights advocates say the measure, if enforced, will likely cause the closure of all five of Louisiana’s abortion clinics, Reuters reports.
Here’s more on the decision from the Associated Press:
U.S. District Judge John deGravelles wrote that authorities cannot enforce the law until he holds a hearing on whether an order to block it is needed while the case remains in court… But lawyers and advocates appeared to disagree about whether the judge's order affects doctors at all five abortion clinics in the state or only those at three clinics whose lawsuit challenges the measure… The judge said he will call a status conference within 30 days to check on the progress of the plaintiffs' applications and to schedule a hearing to consider a request for an order blocking the law while the case is in court.
“Louisiana is among 11 states that have passed similar laws, with courts recently ruling unconstitutional such measures in Alabama and Mississippi,” Reuters reports. “Key parts of a Texas law that would have shuttered most remaining clinics in that state were blocked by a federal judge on Friday.”
Israel Land Grab Claims Nearly 1,000 Acres in West Bank
Israel announced on Sunday the appropriation of nearly 1,000 acres of Palestinian land in the occupied West Bank. The land grab is thought to be the largest in 30 years and would pave the way for an expansion of the Jewish settlement bloc in the area. “The land, which is near the small Jewish settlement of Gvaot in the Etzion bloc south of Jerusalem, has now officially been declared ‘state land,’ as opposed to land privately owned by Palestinians, clearing the way for the potential approval of Israeli building plans there,” the New York Times reports.
“The announcement follows the cabinet’s decision last week to take over the land in response to the June kidnapping and killing of three teenage Jewish boys by Hamas militants in the area,” Haaretz reports. “Last year, the government invited bids for the building of 1,000 housing units at the site, and 523 are currently under construction. Ten families now live on the site, which is adjacent to a yeshiva.”
"We urge the government of Israel to reverse this decision,” a State Department official said in Washington told Reuters. “Nabil Abu Rudeineh, a spokesman for President Mahmoud Abbas of the Palestinian Authority, condemned the announcement and called for a reversal of the land claim, saying that it would ‘further deteriorate the situation,’” the Times reports. “The land appropriation has quickly turned attention back to the Israeli-occupied West Bank and exposed the contradictory visions in the Israeli government that hamper the prospects of any broader Israeli-Palestinian peace process.”
“Israel has said construction at Gevaot would not constitute the establishment of a new settlement because the site is officially designated a neighbourhood of an existing one, Alon Shvut, several kilometres down the road,” according to Al Jazeera.
No NFL Team Claims Michael Sam, Unlikely to Join Rams’ Practice Squad
The first openly gay player to be drafted by an NFL team will not be playing just yet. None of the NFL’s 31 other teams claimed Michael Sam after the St. Louis Rams released him on Saturday, so he is now a free agent, according to reports by ESPN, the Associated Press and USA Today. The big question now is whether Sam, who was a seventh-round draft pick, could join the Rams’ 10-man practice squad. He could also join another team’s practice squad. And some have even suggested he could join the Canadian Football League, notes the Guardian.
On Saturday, Rams coach Jeff Fisher made it sound as if the team may not have a need for Sam in its practice squad. "The practice squad is heavily dependent on what you do in other positions," Fisher said, according to ESPN. "We've got, for example, it's well noted that [CB] Trumaine [Johnson] is going to be down for a few weeks, [C/G] Barrett [Jones] is going to be down for a few weeks. We may have to go heavy in the other positions. If you're familiar with our roster right now, we've got five linebackers, for example; we need linebackers on the practice squad. I'm not going to go into what his odds are or what those opportunities are until we sift through things tomorrow.”
The AP says it “appeared unlikely” that the Rams would sign Sam to the practice squad “because the defensive line is their strongest unit and they need help elsewhere.”
Putin Calls for Talks on “Statehood” for Southeastern Ukraine
Russian President Vladimir Putin seemed to up the ante on his Ukraine rhetoric by calling for immediate talks on “statehood” for southeastern Ukraine. In an interview broadcast on Russian state television, Putin called for “substantive, meaningful negotiations, and not on technical issues and on the political organization of society and statehood in the southeast of Ukraine.” A Kremlin spokesman quickly denied that the words meant Moscow was officially endorsing independence for rebel-held territory in eastern Ukraine. But it hardly seems like a coincidental wording considering it comes after he compared Kiev leaders to Nazis and warned the West not to “mess with us,” reports Reuters.
Use of the term “statehood” amounts to “a vague and provocative turn of phrase,” notes the New York Times. Although Putin has repeatedly said he does not favor breaking up Ukraine and only wants the east to get more autonomy, “the word ‘statehood’ suggests more than that, and if it reflects a major shift in Kremlin policy, it would be a direct challenge not only to Kiev but also to Western European nations and the United States, which have been trying to force Moscow to back down,” according to the Washington Post.
The words may ultimately amount to a big pressure tactic, writes the BBC’s Steve Rosenberg:
There is no doubt that Russia is determined to retain a degree of influence in Ukraine and to ensure, at the very least, that Ukraine never joins Nato. Moscow is equally determined to make sure the pro-Russian separatists avoid a military defeat.
Promoting "statehood" in the east is one way of increasing the pressure on Kiev to stop its military operation and start talks with the pro-Moscow militants—and with Russia itself.
If Kiev fails to do this, the Kremlin may well press for south-eastern Ukraine (or “Novorossiya” as Moscow increasingly refers to the region) to break away from Kiev.
Putin’s comments come as the European Union has warned it would impose new sanctions against Russia by the end of the week if the Ukraine conflict continued to escalate. Ukrainian President Petro Poroshenko warned Saturday at a EU meeting that his country could be “close to the point of no return” and a “full-scale war” could be imminent, reports the BBC.