The abstract for the essay is below:

Serena Williams was eliminated in the semifinals of last years U.S. Open when, having lost the first set and down 5-6 in the second, she was called for a second-serve foot fault that made it match point for Belgiums Kim Clijsters. Williamss explosive and profanity-laced protest of the call incurred a mandatory one-point penalty that gave Clijsters the match. Although nobody defended Williamss outburst, professional commentators and ordinary fans did debate whether a foot fault should have been called, with many maintaining that the sports rules should be enforced less strictly given the critical juncture in the match, and others objecting that such a practice would violate what might fairly be described as basic rule of law principles.

Although the ending to the Williams-Clijsters match was unusually dramatic, the question it raises arises frequently in the world of sports. Many fans of basketball, football and hockey, for example, routinely urge the officials to let em play or to swallow the whistles in crunch time, while other observers wonder how such a practice could possibly be justified.

This essay explores whether it can be. In doing so, it draws on a wealth of popular, legal, and philosophical materials the common sayings no harm, no foul and it cost us the game; the material breach doctrine from contract law and tort laws lost chance doctrine; the mystery of objective singular probabilities and the Hartian distinction between duty-imposing and power-conferring rules; and much more. Its ambition is not merely to resolve this single surprisingly deep and rich puzzle but to birth a new field of sustained jurisprudential and legal-comparative study: the field of sports and law.

If you’d like to read the essay in its entirety, it is available to be downloaded here.

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In the months ahead, Clemens’ legal team will also consider whether to accept a trial by jury, as is Clemens’ right under the Sixth Amendment, or to request a bench trial, which would leave the question of Clemens’ guilt or innocence to Walton. Clemens is likely to accept a jury trial, as he could avoid a conviction if just one of 12 jurors does not find guilt beyond a reasonable doubt. That very scenario played out in the trial of former Illinois governor Rod Blagojevich, who earlier this month avoided conviction on 23 of 24 counts of lying to the FBI because one of 12 jurors dissented. On the other hand, if Clemens’ legal team believes that jurors are likely going to regard Clemens with the same disfavor expressed by many Americans, a bench trial may become a more viable option.

Another key consideration for Clemens’ legal team will be whether the former pitcher testifies in the trial. Clemens is not required to testify, and should he decline, the jury will be instructed to not infer guilt from Clemens’ choice. There are practical consequences, however, to a defendant not testifying. If Clemens’ case boils down to dismissing various prosecution witnesses as liars or persons with flawed memories, a jury may want to see Clemens himself take the stand, look people in the eye and capably respond to questions raised in cross-examination. Clemens’ lawyers, however, may not be comfortable with their client answering carefully-crafted questions asked by seasoned and talented prosecutors. After all, federal prosecutors do not enjoy a conviction rate of approximately 90 percent by accident; they are often among the best trial lawyers around. Clemens cannot testify unless he is willing to face prosecutors’ questions.

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Still, a number of attorneys remain perplexed by the logic of Clemens to seek a public Congressional hearing to repudiate allegations found in the Mitchell Report and then to testify without obtaining immunity, which would have precluded the charges he now faces. According to the attorney mentioned above, “The decision to have Clemens actually ask to testify before Congress, and then to testify without immunity, was idiotic. No good lawyer would have agreed to that without first obtaining immunity for the witness. That kind of decision-making doesn’t bode well for Clemens in this trial. Even if Clemens insisted on testifying, a lawyer is useless if he or she only goes along with the client’s wishes.”

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First, some are questioning revenue sharing as a workable means of leveling the economic playing field (at least without some other cost-and-spending measures, such as a salary cap or salary minimums) because of the incentives built into the system. Second, and relatedly, some are suggesting that teams (at least small-market teams) have no economic incentive to win because it is difficult to both win and turn a profit.

Third, and most interesting in these parts, is what this means for the future of stadium funding. The ridiculously advantageous deals that teams have been able to extort from communities have depended on cries of poverty from teams, which insist that they need the stadium to be economically competitive and that they currently lack the resources to pay for the stadium themselves and need substantial public funding. Certainly that was true for the Marlins, who are getting a roughly-$600 million ballpark for only $155 million ($35 million of which is a loan from the county) and keeping big chunks of stadium-generated revenue, with the city paying $125 million and the county about $360 million. But the Deadspin docs showed that the Marlins turned a $49 million profit in 2009. Several city officials would like to reopen the stadium deal and require the Marlins to contribute more towards the project.

The Marlins’s response has been that “a contract is a contract.” Which probably is true, if a bit arrogant. My contracts-professor colleague says it would take some showing that the city/county would not have entered the deal on these terms but for the Marlins’ claims of poverty and that the Marlins either affirmatively lied about or withheld their true financial information–tough things to show. But this could have an effect on the deals that other small-market teams (notably the A’s) are able to swing in the coming years.

The boondoggle nature of the public-stadium game is becoming clearer. But since it shows no sign of changing, I go back to my First Amendment interests. If public funds are going to continue pay for these cathedrals–which really only benefit the teams themselves–on largely false pretenses, then I should be able to wear whatever t-shirt I want, chant whatever I want, and decide whether or not I want to stand during coerced patriotic rituals. So there.

Specifically, Turner concludes: “With the leagues practices called into question with regard to apparel [in American Needle], it appears that the powers that be smartened up in order to preempt what could have become another strong legal challenge to the NFLs ability to negotiate contracts as a single entity.”

Turner’s piece is available in its entirety here.

The National Institutes of Health spent $314,613 over two years on a study that determined that family violence increases about three times as much on the Fourth of July as it does after the local NFL team suffers an upset loss.

Taken together our findings suggest that emotional cues based on the outcomes of professional football games exert a relatively strong effect on the occurrence of family violence, the authors of the study concluded. The estimated impact of an upset loss, for example, is about one-third as large as the jump in violence on a major holiday like the Fourth of July.

The researchers also determined that an upset loss by the local NFL home team was not linked to nearly as great an increase in family violence as were Christmas Day, Thanksgiving Day, Memorial Day, New Years Day, and New Years Eve.

The study is titled Family Violence and Football: The Effect of Unexpected Emotional Cues on Violence Behavior and is authored by two economists — Professors David Card (UC Berkeley) and Gordon Dahl (UC San Diego).

For the full article, please go to: http://www.8countnews.com/news/125/ARTICLE/2825/2010-08-20.html.

Clemens, though, is not an ordinary person. For starters, he will be able to afford the kind of legal representation that few defendants could imagine. Being able to assemble a “legal team” is itself often a marker of wealth. Clemens will likely retain seasoned and prominent defense lawyers who have tried and won perjury cases and also those who will adroitly attack the DNA evidence offered by the government. Given that a conviction could carry a prison sentence, expect Clemens to spare no expense.

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Attorneys for Clemens will also attack the testimony and purported evidence of McNamee.

They will criticize his background, question his truthfulness, and through retained DNA experts, challenge the admissibility and reliability of the syringes and other paraphernalia purportedly containing Clemens’s DNA. If there is even a shred of doubt as to how McNamee stored and handled the allegedly incriminating materials, DNA experts retained by Clemens will probably be able to paint a story that leaves the jury with serious doubt. Clemens’ lawyers will also portray McNamee as throwing Clemens under the bus to avoid a government prosecution of his own.

The government’s best evidence against Clemens may have nothing to do with DNA evidence. Instead, it may be the likely testimony of Pettitte, whom prosecutors will probably call as a witness. Pettitte told Congress in 2008 that Clemens admitted to him that he used Human Growth Hormone. Clemens’ lawyers will have to show that Pettitte somehow misremembered the conversation he had with Clemens, or that Clemens may have made the comment in jest. Whether a jury will convict Clemens based alone on a disputed conversation with Pettitte or possibly conversations with other players — but in the absence of credible physical evidence — remains to be seen. Juries are not always predictable. And that itself may be Clemens’ greatest worry.

To read the rest, click here. Also did an interview with Sports Illustrated Inside Report on the indictment and one with The FAN 590.

The panel divided on two aspects of personal jurisdiction analysis (warning: This post of interest to civ pro geeks only).

First, the majority found irrelevant the multiple visits that McNamee made to Texas to train Clemens, because the lawsuit was about McNamee’s allegedly defamatory statements about giving Clemens steroids in places other than Texas and not more broadly about their relationship. The visits to Texas did not give rise to the defamation claim, so they could not be the basis for specific jurisdiction (as opposed to general jurisdiction, which Clemens did not argue). The dissent, taking a much broader view, argued that these visits “related to” the defamatory statements and thus the defamation claim; contacts “relating to” a claim can establish specific jurisdiction, an argument suggested by Justice Brennan in dissent in Helicopteros, but never picked up elsewhere. The visits to Texas were part of the overall relationship that put McNamee in position to give Clemens steroids, to be a source on steroid use for the Mitchell Commission and Sports Illustrated, and to make the defamatory statements.

Second, the panel divided over the proper understanding of the “effects test” of Calder v. Jones. The majority said Calder did not support jurisdiction because it is not enough for the forum to be the place where the harm occurred; the tort must be “directed at” the forum, meaning the subject matter of the defamatory statements must be the conduct or events occurring in the forum and it must be based on sources in the forum. Here, the subject matter (narrowly viewed) was McNamee giving Clemens steroids in places other than Texas. The dissent argued that Calder is a broader (and more flexible) approach to jurisdiction, not as narrow or rigid limitation on minimum contacts. Calder applied here because McNamee knew Clemens lived (and at the time worked) in Texas, knew the harm would be felt in Texas, knew SI would be read in Texas, and knew the effects to Clemens’ reputation would be felt in Texas. Moreover, the “sources” idea was not in play, since McNamee himself was the source and not a journalist writing something based on other sources.

This may actually be a good teaching case, because the judges cross swords over two open areas of personal jurisdiction–the scope of Calder (a case that many academics dislike) and when contacts with a forum are connected enough to a claim to allow specific jurisdiction. The Supreme Court has not decided a major personal jurisdiction case since 1990, although I doubt the Court is going to touch this. So, if Clemens is going to pursue this, it probably will be in a court in New York.

Multiple industry sources have indicated to WEEI.com that the Red Sox and fourth-round pick Garin Cecchini are closing in on a deal that should be completed prior to midnights deadline for signing draft choices.

Cecchini, a shortstop out of Barbe High School in Lake Charles, LA, who is expected to play third base as a professional, is verbally committed to play at LSU next season. A committed student and aspiring lawyer, Cecchini wanted to go to college and told major league teams that he would indeed do so if he wasnt given a $1.75 million signing bonus.

To add to Bean’s story, I think it’s always worth noting that college and law school/other graduate school are not “one-shot” deals in life. I often point that out in regards to NBA players who skipped college to take guaranteed income. People can always go back to college later in life, and that is certainly true of law school as well, as many law students are in their 30s or older (and, for what it’s worth, I’ve found that law students with life experience are often among the better or even best students).

So if baseball doesn’t work out for Cecchini after a few years in the minors, he’d still only be 21 years old. And while, as a former pro baseball player, he would no longer be eligible to play NCAA college baseball and thus could not get a baseball scholarship, he could still afford college tuition and law school thereafter courtesy of a $1.75 million signing bonus from the Red Sox (assuming, of course, he’s not irresponsible with his money — if he is, he probably shouldn’t be going to law school anyway).

In fact, MLB teams often guarantee college tuition for high school players if they end up not making it (see this article on former Red Sox draft pick Steve Lomansey, whom the Red Sox lured away from a scholarship to Boston College). Players can also try what’s probably a very difficult route of going to law school while playing in a pro league. Minnesota Supreme Court Justice and former Minnesota Viking Alan Page did just that and has done extremely well.