Ricci v. DeStefano

Howdy, folks--a buddy of mine asked about this case a while back, and I can finally give him the answer he deserves. I actually have a final tomorrow (Monday) on this class, so the timing worked out well.

Background: Ricci v. DeStefano was decided by the Supreme Court in June 2009. It received a fair amount of media coverage, so maybe the facts will ring a bell.

Disclaimer: this case required me to summarize a healthy portion of employment discrimination law. For your sake and mine, I elided over some of the parts that weren't relevant. So, if you're an employment law scholar and you're reading this, don't expect it to cover every twist and turn in the Title VII landscape.


FACTS:

Crucial to our understanding of the case, of course, is a firm grip on the facts that led to the legal controversy. (I'm mainly pulling these facts from the majority opinion as found in this textbook. I'm going to omit quotes, citations, etc. to make this more readable. Don't sue me for plagiarism!)

In 2003, 118 New Haven firefighters took written examinations to attempt to qualify for promotion to the rank of lieutenant or captain. These tests made up 60% of each applicant's total score--the other 40% came from an oral examination. The collective bargaining agreement between the city and the firefighters' union set some experience and education requirements as prerequisites for taking the test. (I'm just mentioning that so it's clear that a rookie with great test-taking ability would not have had a chance to get promoted.)

New Haven hired an outside firm, IOS, to develop and administer both the written and oral tests. IOS performed job analyses to identify the tasks, knowledge, skills, and abilities essential for the lieutenant and captain positions. For example, IOS interviewed incumbent captains/lieutenants, rode along with on-duty officers, etc. At every stage, IOS deliberately oversampled minority firefighters to ensure that the results would not unintentionally favor white candidates.

IOS drafted a 100-question multiple choice exam written below a 10th-grade level (presumably so that firefighting attributes, rather than reading comprehension, would be tested). IOS compiled a list of training manuals, procedures, etc. New Haven gave this list to the test-takers three months in advance, so that the candidates would have a chance to study for the exam.

For the oral exam, IOS assembled a pool of 30 assessors, all from outside of Connecticut and all superior in rank to the positions being tested. New Haven gave its approval of each of the assessors. 66% of the panelists were minorities, and each of the nine three-member assessment panels contained two minority members. (I know, I know--9 * 3 is 27, not 30. Maybe there were 3 alternates?)

New Haven's city charter imposed a "rule of three"--whoever was promoted had to be among the top three scorers. This means that if there was 1 spot open, the promoted candidate would have to have scored in the top 3. If 10 spots were open, all 10 candidates would have to have been in the top 12 (because the 10th promote was either 10th, 11th, or 12th). So, there's a bit of flexibility but not much.

Candidates took the tests in late 2003. Seventy-seven candidates took the lieutenant test (43 whites, 19 blacks, 15 Hispanics). 34 passed (25 whites, 6 blacks, 3 Hispanics). Eight lieutenant positions were vacant, so under the rule of 3, only the top 10 candidates were eligible for immediate promotion. Everyone in the top 10 was white.

Forty-one candidates took the captain examination (25 whites, 8 blacks, 8 Hispanics). 22 passed (16 whites, 3 blacks, 3 Hispanics). Seven captain positions were vacant, so (under the rule of three) 9 candidates were eligible for immediate promotion: 7 whites and 2 Hispanics.

New Haven got the results, and it's safe to say that it wasn't happy. The New Haven Civil Service Board (CSB) had the task of deciding whether to certify the results. CSB was shown lists displaying the candidates' races and scores, but not their names, at least. Some of the firefighters, without knowing who passed or who failed, spoke at the first CSB meeting in favor of certifying the results. There were some sob stories about how hard they had studied and how much time/money they had devoting to preparing for the tests. One man was even dyslexic and hired his neighbor to read the materials on tape, the poor guy! (I'm not trying to make light of his learning disability; I'm scoffing at how the Court included this in its summary of the facts--doesn't seem germane to the legal issues at play.) Other firefighters spoke against certifying the test results, calling the questions outdated and irrelevant.

The CSB held more meetings and, to its credit, conducted extensive research into the validity/reliability of the test as well as the legal ramifications of certifying. Ultimately, the CSB voted 2 to 2 on the use of the test results, which meant that the results would not be certified. The evidence--at least as a majority of Supreme Court justices saw it--suggests that the tests were fair and that the CSB chose not to certify because of the racial disparity.

Seventeen of the white firefighters and one Hispanic firefighter who passed the tests got together and sued the city of New Haven. Frank Ricci, the named plaintiff, is one of them. (Who's DeStefano, you ask? He's the mayor of New Haven--clearly you don't go to Yale. Don't worry, neither do I.) There was a ton of procedural history (appeals, etc.), but all you need to know is that the case eventually got in front of the Supreme Court.


LAW


Title VII of the 1964 Civil Rights Act prohibits employment discrimination on the basis of race, sex, national origin, etc. Title VII prohibits two major types of discrimination: disparate treatment and disparate impact. To understand Ricci, we're going to have to gain a basic understanding of each of these terms:

Simply put, "disparate treatment" is intentional discrimination on the basis of race or any other protected trait. When you hear "discrimination," you almost certainly picture some type of disparate treatment. For example, if an employer chooses not to promote a black employee (for simplicity's sake, let's call him "Barry") because he's black, the employer is intentionally discriminating on the basis of race. Thus, he's in violation of Title VII. That's easy. Let's make it more complicated...

The employer chooses not to promote Barry, but solely on the basis that the black employee is less qualified than his white coworker (how about "Walker"). This, almost as obviously, is not disparate treatment. Sure, the employer is "discriminating" in one sense in that he's distinguishing two employees, but the employer is not discriminating on the basis of race. That's the key.

Okay, same facts (employer promotes a better-qualified white coworker over a less qualified black coworker), but this time, the employer let race play a role in the decision. The employer thought to himself, "This candidate is black, and I don't want to promote a black person. Also, Barry doesn't have the managerial skills that Walker does," and then proceeded to promote Walker. What now? Well, it turns out that we do indeed have disparate treatment. The law says that if race, etc. plays a "motivating factor" in the employment decision--even if other factors also motivated the decision--this establishes an unlawful employment practice under Title VII. This is where people's opinions start to fracture. Most will agree that Situation 1 should be illegal, and most will agree that Situation 2 should not be illegal. Situation 3 is much tougher, though. On the one hand, Barry was clearly looked at differently than Walker, and isn't one major purpose of law to protect equality? On the other hand, the result would have been the same whether Barry was black or white--even had he been white, he would have missed out on the promotion. So, how can we hold the employer liable when the same result would've occurred regardless of Barry's skin color?

Those first three scenarios covered various ways in which an employer can discriminate (or not) on an individual basis. Of course, system-wide discrimination--referred to as "Systemic Disparate Treatment"--is also unlawful under Title VII in almost* every case. There are two types of systemic disparate treatment: overt (a stated policy of discriminating) and covert (no stated policy but a de facto practice of discriminating), and each type comes with its own procedures. Happily, we needn't concern ourselves with the details of each; the takeaway is that systemic disparate treatment is illegal under Title VII.

Now that we've covered "disparate treatment," we can spend a few seconds on "disparate impact." Disparate impact makes it illegal for an employer to use a facially neutral practice to achieve a discriminatory effect, unless the practice is related to the job and consistent with business necessity. That definition might leave you scratching your head, but an example or two will make it clear:

In the watershed case in this area, the employer administered an intelligence test to all applicants and only hired those who scored above a certain threshold. (Sounds familiar...) Unlike Ricci, however, the applicants in this earlier case were applying for unskilled positions. The test is neutral on its face--it's just as hard for blacks as it is for whites. The test had a discriminatory effect, however--a way bigger percentage of whites passed than did blacks. The Supreme Court held this practice illegal under Title VII, and, even though I'm a free-market guy, I tend to agree. In this first case, it was fairly obvious that the employer was giving its applicants this intelligence test just to weed out the black applicants--before Title VII had passed, the employer had been openly discriminating against blacks--and the test had nothing to do with the job requirements.

Some tests are fine, however--that goes back to the "job-related" and "business necessity" component of our definition. No need to get into the specifics of what will be illegal under Title VII and what won't. For our purposes, we simply need to know that giving a test that's fair in form but discriminatory in effect is illegal, unless the test is job-related for the position in question and consistent with business necessity.


APPLICATION:

So, let's now apply the law we just learned to our facts (if you still remember them after slogging through that boring lecture).

1. New Haven chose not to certify the test because of the statistical disparity based on race. This is systemic disparate treatment--systemwide discrimination on the basis of race. To show systemic disparate treatment, the plaintiffs need to show that the defendant (New Haven) had either a race-based classification or a race-based goal. Here, the city's goal of promoting diversity or balancing the composition of the fire department officers is race-based (no matter how benevolent it is), and thus it's disparate treatment. Note that had the Court determined that the city's goal was simply to come up with a better test, the goal would've been neutral and New Haven likely would have prevailed in this case.
2. The Court found that by rejecting the test, New Haven was trying to avoid disparate-impact liability. Remember that the test had a disproportionate impact on the races. That put New Haven in danger of violating the "disparate impact" aspect of Title VII. By now, you kinda have to feel for the city--if it certifies the test, it risks a lawsuit from black candidates. If it doesn't certify the test, it risks a lawsuit from those who were in line for the promotions.

At this point, the main question is this: whether the purpose to avoid disparate-impact liability (by not certifying the tests) excuses what otherwise would be illegal disparate-treatment discrimination (using race as the reason not to certify the tests). We have to reconcile these two components of Title VII. Still with me? I hope so.

At this point, the Court makes a determination of law based on precedent, reason, etc. It holds that before an employer can engage in intentional discrimination for the purpose of avoiding a disparate impact, the employer must have a strong basis in evidence to believe that it will be subject to disparate-impact liability if it fails to take the race conscious, discriminatory action. What does this mean? It means that the defendant (here, New Haven,) has to look at the entire definition of disparate impact and determine whether there's a strong basis in evidence that it faced liability.

Applying this standard to our facts, it's clear (to the Court) that the city would have avoided liability. Admittedly, the black applicants would have been able to bring a case because New Haven did use a test that had a discriminatory result. BUT--the Court found that New Haven would have avoided liability because the tests were job-related and consistent with business necessity. As a result, the Court concluded that there was no strong basis in evidence for the defendant to fear a disparate-impact suit. Thus, for the city to take the discriminatory action of throwing out the test results on the basis of race was held unlawful. The plaintiffs win.




I know that was a lot. If you made it all the way through, thanks very much for reading. Happy holidays.








*I say "almost" because the employer is allowed to have this overt policy of systemic discrimination if the discrimination is based on a "bona fide occupational qualification." If the BFOQ is "reasonably necessary to the normal operation" of the employer's business, he'll be allowed to discriminate. For example, a prison's hiring policy that required prison guards to be of the same sex as inmates was held valid because women guards simply would not have been able to keep the prison safe. This is a very narrow defense, however. For example, an airline's policy of hiring only female flight attendants because "that's what the customers want" was held illegal because it's not necessary to the airline's normal operation to have nothing but female flight attendants. Customer preference is very rarely an appropriate reason for systemic discrimination. One more note: the BFOQ defense is only available for overt systemic disparate treatment. If the employer is covertly discriminating system-wide (ex: a company has no formal policy but never hires women), the BFOQ defense cannot come in.

Back to School

First off, let me wassup to Chicago's own, Mr. Michael Chin. Looking forward to Portillo's, Chay-Money.

So, 3L year began today. I'm enrolled in five classes that cover diverse topics of law--five classes is a lot but I somehow managed to cram them all into the first three days of the working week, so I have a four-day weekend. Ship it.

First class of the day: Antitrust, taught by this guy. Some of the highlights of that brief wikipedia entry: my professor was nominated to be a judge on the 5th Circuit Court of Appeals (one step below the U.S. Supreme Court) but his ultra-conservative writings were so controversial he was not a politically viable nominee. Bummer! On the plus side, he's married to a woman who wrote an anti-feminist book, so you know he's probably not doing the dishes.

After Antitrust comes Evidence. Class only meets on Mondays and Tuesdays, and since UT's calendar begins on Wednesday for some reason, I can't elaborate much on the course. Long story short: it's a class that takes 3 months to answer the question, "is this piece of evidence admissible at trial?"

After Evidence comes Jimmy John's, most likely. Vito, Italian Night Club, even the Veggie sub--can't go wrong with any of 'em.

After my lunch break, I head to Criminal Procedure, which explains the various procedures that occur between arrest and trial (assuming there is a trial). To sum this one up, just check out this helpful flowchart:



We talked briefly today about an accused's right to probable cause, and already I'm learning new things. For example, did you know that a person who is arrested must be "presented" before a judicial officer without substantial delay? "Substantial delay" isn't precisely defined, of course--if law were cut-and-dried, no one would hire expensive lawyers--but it basically means that you get to appear in front of a magistrate (minor-league judge) within 48 hours and he decides whether the cop who hauled you down to jail had probable cause to do so. (Probable cause has two elements: (1) has a crime been committed and (2) does evidence exist to link the crime to the person being detained?) So, next time you get arrested for, say, DWI, you'll know why you're appearing in front of someone in robes. Note that this isn't a trial: you aren't necessarily entitled to a lawyer and you might not even get a chance to give your side of the story (I say "might" because each state has different procedure), but it's better than nothing.

As a reference point, our professor told a story about how a drug smuggler got detained in France over the summer (while the judges were on their five-week vacations that the denizens of Francia cherish so dearly), asked for a probable cause determination in front of a neutral third-party (ie, a judge), and was told, "sure, no problem...as soon as a judge gets back in late August, we'll get you in front of him." Ouch. What's worse is that he's stuck in jail until then, because no one is around to set bail. Those lazy sonsuvbitches, that's why we had to bail them out in WW2!

My working day concludes with either Employment Discrimination Law (Mondays and Wednesdays) or a Federal Criminal Prosecution seminar (Tuesdays). I can't remark on the seminar because I haven't had a class yet, but I'm sure it'll be just as interesting as it sounds. Regarding Employment Discrimination, this course tackles the age-old question of "I don't want to [hire/promote/respect] the [black/old/atheist/gay] [woman/pregnant woman], but how can I treat her badly (and how badly can I treat her) before I risk getting a pesky lawsuit on my hands?" Since 1964, white men like myself have been struggling with the answer--hopefully this class will shine some light on the topic.

But seriously, folks, this course seems interesting to me. One question we mulled over today was this: must there be some sort of intent to discriminate (or, at the least, knowledge of discrimination) before we give relief to the protected class member, or are actions sufficient? For example, most of us agree that we should award damages to a black person who is not hired solely because he was black.* But, what if the prospective employer--an honest, decent man who has no prejudices and has no intent to discriminate against any race/sex/religion--administers a test as a precondition of employment? Let's say that the test is neutral on its face but has the result of disqualifying a disproportionately higher percentage of blacks than other races. Should a black person who fails the employer's test (and consequently isn't hired) get relief, or should the employer be allowed to administer the test? Does it matter whether the test relates to the position for which the prospective employees are applying?

All in all, should be a pretty fun semester--being a 3L is great. You can check out the hot new 1Ls, you know where all your classes are and just how much you can slack off without it affecting your grade, and you have an ever-growing group of friends with whom to gchat while the professor digresses. I'll try to update this blog whenever I learn something that a reasonable person may find interesting. Until then, enjoy the rest of y'all's summers.





*I know there are free-market arguments against this, but in the long run we're all dead and blah blah blah.

This picture sums up the way I play poker

A Funny Hand (little to no analysis, I promise!)

On 2p2 (the popular poker forum I browse), it's customary to include humorous and fitting pictures to go with the hand history you're posting. Why? Probably because the hand is often far more interesting to the poster than the readers, so to compensate, the poster tries to jazz up the hand with some funny jpegs.

Note: the opponent is a competent regular. If this were a fish, I'd be playing much differently.


Poker Stars $3/$6 No Limit Hold'em - 2 players
The Official 2+2 Hand Converter Powered By DeucesCracked.com

BTN/SB: $763.00
Hero (BB): $600.00

Pre Flop: ($9.00) Hero is BB with 4 6
BTN/SB raises to $18, Hero raises to $54,





BTN/SB calls $36



Flop: ($108.00) 5 Q Q (2 players)
Hero bets $66,






BTN/SB calls $66



Turn: ($240.00) J (2 players)
Hero checks,





BTN/SB checks



River: ($240.00) 6 (2 players)





Hero checks, BTN/SB bets $138,





Hero calls $138

Final Pot: $516.00
BTN/SB shows 8 9 (a pair of Queens)
Hero shows 4 6 (two pair, Queens and Sixes)
Hero wins $515.50
(Rake: $0.50)






A few quick thoughts on this hand:

• Our opponent could have won this hand on either the flop or the turn, had he raised. You really need to turn up the aggression when you're playing heads-up, and he didn't.
• I felt okay with calling here because I couldn't put him on a huge hand (like three queens) because he checked the turn and I couldn't put him on a marginal hand that still beat me (like 77) because I didn't think this particular opponent had the capacity to value-bet that thin. Honestly, someone with 77 or the like should be checking the river because I could easily have 99, JT, etc.
• This hand is a good example of how tough the games are these days and of how high-variance heads-up play can be.
  

Value-Betting for Beginners

To value-bet is to make a bet after the flop with the hope of getting called. Knowing when to make a value bet (and how much to bet) is a necessary skill for a winning player to acquire and cultivate. As you may know, most bet sizes are determined as a percentage of the pot. (For example, I typically make a bet in the amount of about 70% of the pot.) As the pot grows, the size of the bet necessarily grows. As such, the decisions that you make on later streets (the turn and the river) will involve bigger amounts. Since all we care about is money, clearly these bets are very important to our bottom line.

For example, suppose you're in a hand that has involved some betting throughout. When the river falls, it gives you three of a kind (but also puts a third heart on the board). By now, the size of the pot is, say, $300. Your opponent checks to you. You are scared that your opponent has a flush, so you check behind. He shows you two pair. You win the hand, but by failing to make a value bet on the river, you've missed out on anywhere from $150 to $200 of your opponent's money. That may not seem like much to those of you working at Baker Botts or Google or whatever, but that's some real folding money to me.



Since value-betting is such an essential skill, it probably won't surprise you to learn that it is a very nuanced, intricate decision. Obviously, if you have an unbeatable hand, you're going to be betting, but what if your hand is a marginal one? That is, your hand is probably better than your opponent's but if your opponent raised your bet, you'd have to fold. Should you still bet? This situation is dependent on the type of opponent you're facing. If your opponent is very passive, he's easier to value-bet because you don't have to fear being check-raised. Inversely, you have to be wary of an aggressive opponent--he's liable to raise you (either for value or to bluff you off a marginal hand). Considerations like this one are beyond the scope of this introductory post--I just want to demonstrate some of the intricacies involved.

In determining whether to value bet, you simply must put your opponent on a range of hands. I've seen beginners go through a process similar to this: "Well, I have two pair. That's okay, I guess, but it's worse than a straight flush, quads, a full house, a flush, a straight, or three-of-a-kind. I guess it's not a very good hand." The beginner fallaciously believes that his hand has an absolute value. This is wrong. The only value that your hand has is its value relative to your opponent's hand. You can lose pots with full houses and you can win 'em with Ace-high.

**As your hand only has relative value, you need to determine your opponent's hand so you can decide just how relatively valuable your hand actually is.** Here is a fairly routine example of this process. As the focus of this post is the value-bet on the river, I will be eliding over the play on the other streets.


Poker Stars $2/$4 No Limit Hold'em - 5 players

Hero (CO): $410.60
BTN: $454.15
SB: $1056.50
BB (slightly loose, definitely passive): $416.00
UTG: $469.00

Pre Flop: ($6.00) Hero is CO with A 8
1 fold, Hero raises to $12, 2 folds, BB raises to $24, Hero calls $12


We've been playing this guy for about an hour and we haven't seen him 3bet (a/k/a "reraise") before the flop. Thus, we can assign him a pretty reliable range of JJ+, AK. So, we're clearly behind but we have "implied odds" to justify our call. Basically, our thinking is this: "hey, this guy has a hand he's in love with. If I can catch a flop and crack his big pair, I can probably take him for a decent-sized pot. If I airball the flop, I merely lose a small pot and no harm is done. My hand--a suited ace--lends itself to big flops, so let's invest this $12 and try to catch gin."


Flop: ($50.00) 5 5 9 (2 players)
BB bets $20, Hero calls $20

Great flop for us. We could throw in a raise but we have very little fold equity because we're pretty sure he has a big pair and fish hate folding big pairs (justifiably so). Let's keep the pot small until we're winning.

Turn: ($90.00) T (2 players)
BB bets $32, Hero raises to $72, BB calls $40

Boom. We have our flush and if our range is accurate, we know we're ahead. We could get cute and simply call the turn bet, but we want to build the pot while our opponent still likes his hand. If we smooth-call and a fourth spade comes on the river, that could freeze our man and we'd be left with winning a small pot. We do not want to win a small pot, especially in this situation where we called the preflop 3bet knowing we were behind for the express purpose of flopping big and winning a big pot.

When he calls our raise, we can rule AK out of his range (unless he has the king of spades, perhaps). So, now we're putting him on JJ+. Yes, I suppose he could have TT but that's quite unlikely considering he didn't reraise us on the turn.

River: ($234.00) 9 (2 players)
BB checks, Hero bets $40, BB calls $40

Any fear of TT (or 99, I suppose) evaporated when he checked the river. Now we know exactly where we are: we have a flush and he has an overpair to the board. If we were beginners, we might be tempted to think to ourselves, "Shoot, now any 9 or any 5 beats us. There's so many full houses out there that maybe we should be careful and just check behind." Luckily, we're thinking players who realize that although the board looks scary for someone with a flush, it is nearly impossible for our opponent to have a better hand. We have determined (approximately) what our opponent's hand is, and now we know that relative to his hand, our hand is valuable. Also, we know from observing our opponent that he's fairly passive and we thus don't have to fear a check-raise from him that would probably force us to fold.

So, we've done all the hard work--now it's just a question of extracting value. Here we only bet $40--we probably could have gone as high as $60, honestly. (We don't need to talk about bet sizing today..we've enough on our plate as it is.)

Final Pot: $314.00
Hero shows A 8 (a flush, Ace high)
BB mucks Q Q
Hero wins $312.00
(Rake: $2.00)





ez game.

The "Write the Future" Curse

"Write the Future" is the name of the breathtaking Nike soccer ad that feels more like a movie trailer. While the reviews have been resoundingly positive, its cast has performed less than admirably in real life. Could there be a "Write the Future" curse? Let's examine the evidence.

First, here's the ad in case y'all haven't seen it yet:



Let's break it down:

1. The first player to touch the ball is Didier Drogba, from the Côte d'Ivoire (Ivory Coast). Days before the World Cup, Drogba broke his arm in a friendly against Japan. While he has admirably taken the pitch despite the injury, his contributions have been limited. Furthermore, his team will likely fail to advance from its group.

2. Fabio Cannavaro takes over next in the commercial. Italy--the team for which Cannavaro plays and the defending champions--lost today to Slovakia and consequently finished last in its group (a group widely believed to be the weakest of the 8).

3. After Cannavaro comes Wayne Rooney, the diminutive English striker. While England has advanced, they look very shaky (they finished behind the United States, need I say more?) and Rooney has been kept off the scoresheet. I'm gonna chalk this up as evidence in favor of the curse.

4. When Rooney makes his heroic tackle, the commercial cuts to scenes of Rooney's popularity/greatness, including one where he bests Roger Federer at ping-pong. Federer has struggled mightily at Wimbledon this year, getting taken to five sets in his first match and going to four in his next (both against unknown opponents).

5. Next after Rooney we see the one-and-only Ronaldinho, the oft-imitated Brazilian superstar. At this point you're thinking, "Brazil have looked untouchable so far...surely this can't be evidence of a curse." But wait, don't forget that Ronaldinho himself was left off Brazil's World Cup team. Clearly, the commercial has used its powers to curse Ronaldinho while rewarding those who have neglected him (his national team).

6. One of the celebrity cameos we see is Kobe "No surname necessary" Bryant doing his own version of the Ronaldinho stepover celebration. Kobe just won his fifth ring by beating the archrival Celtics--he's on top of the world right now. So, obviously, Kobe is the exception that proves the rule. Moving on...

7. Cristiano Ronaldo features last in the ad, and I gotta admit, his team has played well (it helps to have someone like North Korea to use as a punching bag). But surely the Curse has something in store for this Mediterranean metrosexual--besides, if it doesn't, I'm sure I can use my heightened powers of rationalization to explain why Ronaldo's success is not evidence against the existence of the Curse.

8. Homer Simpson. Well, the Simpsons have been going downhill for a while, so unless the Curse is able to have some sort of causal effect on events that occurred earlier in time, we'll just have to view Homer's appearance as a wash.


So, you decide: is this curse just a series of unfortunate coincidences* or something rivaling 4 8 15 16 23 42? Only time will tell...





Update: Apparently I'm not the only person to have this idea. For what it's worth, I didn't bite anyone's shit, I came up with this on my own.

*ELAINE: Well, I mean, he was in the apartment, and then it's gon and it's in your apartment.

RAVA: Maybe you think we're in cahoots.

ELAINE: No, no.. but it is quite a coincidence.

RAVA: Yes, that's all, a coincidence!

ELAINE: A big coincidence.

RAVA: Not a big coincidence. A coincidence!

ELAINE: No, that's a big coincidence.

RAVA: That's what a coincidence is! There are no small coincidences and big coincidences!

Going on the Record...

...and saying that I will be very impressed with the Celtics and Doc Rivers if the C's manage to win Game 7 on the road without Kendrick Perkins (whose injury will prevent him from playing). Perkins has been a crucial component to the Celtics' success, and his loss causes huge problems for Doc. Rivers might end up relying on 'Sheed, who has been, uh, far from reliable.




The Lakers are -7 and I'm guessing (I use the word "guess" cuz I don't pretend to be an expert, a sports bettor, or an expert sports bettor) they handily cover.

More World Cup Observations

1. If I were Australian, I'd be embarrassed by my national team's showing today against Germany. The Socceroos spent a large part of the first half putting their hands in the air, and played the second half like they just didn't care. If you missed the match, it went mostly like this: Australia plays an offside trap, a German forward or midfielder continually beats the trap with a perfectly-timed run, the Aussies whine and scream in vain for an offside call, and the Germans take direct aim at the net.

Now look, I'm not saying that Australia ever had a chance in this game. Germany played as well as any team we've seen so far, and the Aussies looked slow and less skilled. Hats off to Germany for their pace and their intricate runs. For Australia, there's no shame in losing to a more talented team that's on its game, but the Socceroos went down without a fight (unless screaming at the linesman counts as a fight) and embarrassed its citizenry in the process.

2. Quick--name the first European nation to win a game in the 2010 World Cup. (Answer below.)

3. Adidas needs to fire its marketing department. How hard is it to sell soccer cleats? Hire six famous and skilled soccer players, give them an adidas ball to play with and adidas cleats to wear while playing, encourage them to play creatively, and film them for 5 hours. Nike runs laps around adidas and has been doing so for years. No excuses, adidas--you've been synonymous with soccer for decades. Fix your shit.

4. I've been impressed with the refereeing at this tournament. The linesmen have done a great job calling offsides, and the center refs have been keeping the players under control and playing within the rules of the game. My favorite calls so far were the two yellow cards given to the Germany side for simulation (a/k/a diving). I used to ref and I can tell you that this is one of the hardest calls to make. Even if you know that no foul occurred, it's much harder to be sure that the player fell on purpose in an attempt to draw a whistle. Players loose their footing for all sorts of reasons (losing their balance attempting to turn quickly, getting feet tangled up, etc)...it's very difficult to attribute the fall to a flop (it helped me when the player flailed his limbs as he was tumbling to the turf). Plus, the penalty for diving is fairly harsh, though deservedly so, so a ref really wants to be sure of the call before doling out a yellow card.

5. Answer to #2: Slovenia!

6. On an unrelated note, where in the hell is Slovenia?

Quick Thoughts about the U.S.-England Match

1. How come England had so many odd-man rushes in the second half? I realize that they started playing with three forwards, but that doesn't explain why the U.S. had so much trouble getting men back to defend. Was England faster, fitter, or both?

2. Everyone watching realized that Tim Howard had to make a few clutch saves to keep the U.S. level--what is less clear is how these chances arose. I didn't see anything other than the same telecast y'all saw, but for my money it seemed like there were communication problems in the back. This is quite disconcerting when you consider that the U.S. seemed to rely heavily on the offside trap. Now, maybe the U.S. won't employ this tactic against its next two opponents--the trap is typically used by the inferior team as a way to neutralize the more skilled team's talent, and the U.S. is on paper more talented than Slovenia or Algeria--but if Bradley sticks with it, we could find ourselves in a familiar spot--holding our breath as Howard has to bail us out. Hopefully, the next striker finishes as poorly as Heskey did today, but "we can't take that chance!"

3. Landon Donovan played a tremendous game today. He delivered great balls off of set pieces (corner kicks and free kicks were the only consistent way for America to threaten the English defense), got back on defense, and played with more poise than his teammates. While Onyewu was blasting the ball away instead of playing it back to Howard ("when in doubt, kick it out" stopped being a viable strategy after sophomore year in high school), Donovan played with aplomb and pace.

4. What's the deal with ESPN having an English play-by-play guy? I know he's distinguished and respected, but can't we get an American voice for the U.S. games? Am I the only one who misses Jack Edwards?


(The Gus Johnson of soccer features prominently in this video.)

5. If Rooney keeps performing like he played today, he won't be hugging the queen anytime soon. (I don't even need a hyperlink...by now y'all have seen the ad.) "But the U.S. locked him down!" Yeah, so what--if America can take him out of the game, what do you think Italy's gonna do?

6. I'm not looking forward to waking up at the crack of dawn to watch the next game, haha.

Personal Jurisdiction

("Personal Jurisdiction" is part 2 of an ongoing attempt to bore y'all to tears.)

Before we dive into this, let me say one thing: although it may be counter-intuitive, a state court in, say, Georgia can apply Alabama's, Florida's, or any other state's law to a claim. This is a fairly common stumbling block for people trying to get a handle on personal jurisdiction--just trust me when I tell you that State 1 can hear a case between two parties who live in State 2 (or between two parties who live in State 1) and apply State 2's law to the claim.

One other thing: we're only worried about state courts here, because federal courts have a lower hurdle to clear with respect to personal jurisdiction.


Okay, so, the court you're trying to appear in front of has the right to hear the type of claim that you're presenting. (In other words, it has proper "subject-matter jurisdiction" over the claim.) Congratulations! However, proper SMJ is necessary but not sufficient. The court must also have personal jurisdiction (also known as "territorial jurisdiction") over the parties.

Personal jurisdiction deals with the right of a court to adjudicate the rights of a person (or thing, if the dispute is, say, over a piece of property but let's not worry about that). This is a common-sense concept: a state court in Maine shouldn't have any power to enforce a judgment over an Oregonian in a dispute between two Oregonians that concerns a car crash that occurred in Portland (unless we're talking about Portland, ME...). Yet, if the only hurdle to proper jurisdiction were subject-matter jurisdiction, the Maine court would have this authority (because the Maine state court can hear this type of case). That's why we need another protection, and that comes in the form of personal jurisdiction.

Now, our Maine court (or any other, obviously--we'll stick with Maine as the example) must have proper personal jurisdiction over both the plaintiff and the defendant, but since personal jurisdiction is waivable, the plaintiff is deemed to have waived any potential objection to the court's exercise of personal jurisdiction over him when he files the suit in the Maine court.

The far more important question is this: when does the Maine court have personal jurisdiction over the defendant?

(1) The defendant can waive his objection to personal jurisdiction, typically by making a "general appearance" in court. If the defendant makes a general appearance, there goes his right to dispute the personal jurisdiction issue. So, a savvy defendant will make a "special appearance" in court, which basically tells the court, "look, I don't think you have any rights over me (ie, 'I don't think you have any personal jurisdiction over me') but in order to persuade you of this, I have to be here to explain my side. So, look, I'm only here for purposes of disputing your potential personal jurisdiction over me. I'm not waiving the defense."

You waive your objection to personal jurisdiction when you don't mind litigating in Maine (maybe you got a great deal at a bed-and-breakfast in Falmouth). Unfortunately, winning on the personal jurisdiction issue doesn't let you totally off the hook--the plaintiff will just re-file, this time in Oregon. That's why defendants will sometimes waive their objections.


(2) If the defendant gets served with a summons in the state in which the lawsuit was brought (here, Maine), the ME court has personal jurisdiction. That's kind've a harsh rule but it's been around for a while and it looks like it's here to stay for the foreseeable future.




3. The last way for a court to have proper personal jurisdiction is the most confusing. Long story short: the defendant must have minimum contacts with the forum state (here, Maine), the exercise of personal jurisdiction over the defendant must be reasonable, and the Maine statute must authorize the exercise of personal jurisdiction (this is rarely a problem because many states give their courts as much reach as possible).

No one really knows exactly what "minimum contacts" means, but if the defendant has purposefully contacts with the state of Maine, Maine probably has personal jurisdiction. So, clearly the Maine court has no personal jurisdiction over the Oregonian defendant in our car crash example, but if the defendant were, say, a corporation from Oregon who advertises and sells its products in Maine and purposefully avails itself of the benefits of being present in Maine, then that Maine court will have personal jurisdiction.


I know I just said a lot...maybe this analogy will help:

Let's say that you just moved out of the house and found a full-time job, and to celebrate you got your first tattoo (to your mom's noticeable chagrin). When you return home for Thanksgiving, she scolds you for getting the tattoo and threatens to ground you. Here, your mom has no personal jurisdiction over you. She can't enforce a punishment against you because you no longer live under her roof or take money from her. You have "insufficient contacts" with her. Now, if your younger sister (who's still in undergrad) had gotten that same tattoo, your mom would be able to enforce a punishment over her by taking away her tuition money or kicking her out of the house or whatever.

Subject-Matter Jurisdiction

**We interrupt this "sports and poker" blog to bring you an important message about civil procedure.**

I just hit you with my car, and now you want to sue me. You cannot choose to sue me in whichever court you please, though--that would give you unfair strategic advantages and would thus violate my constitutional right to due process. You still get some flexibility, though. So, how do we decide whether a court is appropriate for your litigation? Well, in order for a specific court to be the proper place for your claim, that court must have both subject-matter jurisdiction and personal jurisdiction. (There are other requirements as well, but they are less important so we can save them for a later date.)

Subject-Matter Jurisdiction:

Subject-Matter Jurisdiction is simply the right of a court to hear the type of case that you're presenting. If you're trying to sue me in a state court, you've got nothing to worry about. Most state courts are courts of "general jurisdiction"--they can hear claims that have to do only with state law (like torts) and they can typically hear claims that concern federal law. (Again, there are some small exceptions but they're small enough that we needn't worry about them.)

If you're trying to sue me in federal court (perhaps you think that a federal court is more likely to get you a favorable outcome), that's going to be a more difficult challenge for you. Federal courts are courts of limited jurisdiction--that means they need jurisdiction conferred on them by both the Constitution and by Congress. (The Constitution is pretty liberal with its grants of federal subject-matter jurisdiction, so we're really only worried about statutory authorization.) There are three basic ways for you to get your claim into federal court: (1) if the cause of action concerns a "federal question" (basically, if federal law is implicated in either the original claim or a defense to the claim); (2) if there is diversity jurisdiction, or (3) if supplemental jurisdiction exists.

Diversity Jurisdiction is very simple to explain: if you're black/Hispanic/Asian and I'm white, the federal courts are more interested in our litigation--cuz nothing say "compelling drama" like an interracial dispute--so they get to hear the claim.





Naw, just kidding...by "diversity" we mean "diversity of residence:" if you're domiciled in California and I'm domiciled in Texas, it putatively wouldn't be fair to you if you were forced to litigate in TX (and it wouldn't be fair to me if I had to defend myself in front of a hippie jury in California). So, the U.S. constitution lets us go to a theoretically more impartial location, a federal court. This rule made more sense in the 19th century, when certain states did not get along well with others--now it seems like a bit of an anachronism. Plus, we don't wanna clog up the federal courts with insignificant personal injury claims--that's the job of drug offenses! So, the plaintiff has to be suing for at least $75,000. (In legal terms, we need an "amount in controversy" of at least $75k.)

[Aside: it gets more complicated when you have co-plaintiffs and co-defendants--do we need complete diversity or will partial diversity suffice? What if we're suing a corporation instead--where is the corporation domiciled? Etc.]

[Second Aside: being in a federal court doesn't mean that federal law applies...that'd be way too easy, haha. For example, if you're suing me for driving negligently, there's no federal law on negligence, so a federal court (who again is allowed to hear this case because there is diversity jurisdiction) would still be applying state law. But TX state law or CA state law?! Trust me, you don't want me to get into that.]

Supplemental jurisdiction is more confusing, so let me just give you the Chicago-Kent School of Law version: supplemental jurisdiction allows a federal court to decide a claim--even when the federal court has no other basis for jurisdiction over the claim--when the claim is closely linked to another claim that the same federal court does have independent jurisdiction over. Supplemental jurisdiction exists because it (theoretically) facilitates efficiency in the judicial system and conserves resources.

So, if you and I are both from, say, Illinois and I hit you with my car, you typically can't get yourself into federal court. There's no federal question implicated here (negligence is state law) and there's no diversity of citizenship. BUT if you somehow had both your negligence claim and a related federal question claim against me, the negligence claim could "piggyback" its way into federal court.

Supplemental jurisdiction is muddled in many ways, AND it's discretionary--the federal court can choose to say, "Nah, we don't want this case" and we'd have to go back to state court. (A federal court might pass on the case if, for instance, it thinks the jury will get confused by the two claims.) So, we're not gonna get into it further--at least you know it exists.


I think this post is already too long, so we'll leave personal jurisdiction for the next time.

Preventing a Downswing

I've played poorly the last few times on Stars, and it's almost 100% attributable to the fact that I've not been thinking through the hands enough. Basically, the cycle starts like this: you have a losing day despite playing well (you get unlucky or run KK into AA or whatever), so the next time out you chase losses a bit by adding more tables than you normally play. This causes you to have less time to think, so you make the occasional fundamental error, which means more losing, which means more tables (or maybe longer sessions, which also leads to more mistakes), and so it goes.

If you catch this problem early enough, it's not a huge deal--as the cliche goes, "poker is measured in years, not days." A few bad days, or even a bad week, is just a bump in the road when you've been playing as long as I have. That said, it's obviously important to right the ship as quickly as you can.

What follows probably the best example of this downward spiral--I threw this hand in here (with a bit of explanation) because it's a mistake that many players will make and I want you to avoid this spot.



Poker Stars $2/$4 No Limit Hold'em - 9 players

SB: $283.90
BB: $400.00
UTG: $400.00
UTG+1: $400.00
UTG+2: $410.75
MP1: $488.00
MP2 (Tight-aggressive regular): $449.00
Hero (CO): $655.50
BTN: $1385.25

Pre Flop: ($6.00) Hero is CO with 9 9
4 folds, MP2 raises to $12, Hero raises to $36, 3 folds, MP2 calls $24


This is standard play here with the 99. You can argue for a smooth call or even a fold, but you're probably wrong, haha. I'm not gonna get into it here because it'll take forever to hash out the various alternatives and that's not the point of this post.


Flop: ($78.00) 4 5 4 (2 players)
MP2 checks, Hero checks

This is the ideal flop for us. When MP2 called our reraise out of position, we safely assign him a range of a big ace or a medium pocket pair. So, unless he has 55 (unlikely) or 44 (exceedingly unlikely), we're winning. I suppose he could have TT but we may be able to persuade MP2 to fold TT if we bet hard enough.

If MP2 has overcards, he probably will be done with the hand if we bet here. If he has a medium pocket pair, he's probably not going to fold to a bet here because he's still skeptical that we have him beat. (For what it's worth, we probably do have him beat.) I like to say that the opponent "needs convincing" that we have something like AA or KK, and it usually takes more than a flop bet to meet the burden of persuasion. That's a good thing, though--what typically happens is that we bet the flop, he calls (skeptically), we bet the turn, and--assuming the turn didn't help him--he folds (reluctantly). We end up winning more money than we would have had he simply folded on the flop.

Our hand is vulnerable to lots of overcards, so we probably would be content with a fold from our opponent. This isn't always the case, of course--if we had AA we'd want our opponent to stick around.

So, for all these reasons, we should certainly be betting this flop. We'll fold out overcards and we'll continue our story that we have a huge pocket pair. Clearly, checking here (as we did) is a mistake.

For what it's worth, I probably checked this flop here because I was feeling a bit exploitable/vulnerable. When you're losing, you realize just how easy it is for someone to bully you out of a pot. Rarely do I get it all-in against a regular without a very strong hand, so it'd be quite easy for MP2 to check-raise me and get me to fold. Now, of course, MP2 very rarely will make this play because he's more worried about stacking fish than getting into "regwarz" (fights with other regulars) and because if I have something like KK or AA he just threw away $400. It's very unhealthy for your poker bankroll if you're playing like a "catastrophist" (always assuming the worst), because it turns you tentative at very inopportune times.

Turn: ($78.00) A (2 players)
MP2 checks, Hero bets $52, MP2 asks for time, deliberates, and calls $52

I don't dislike this bet. Our opponent probably has us on a big ace or a pocket pair. When we checked the flop, he probably put us on a big ace because most pocket pairs would bet that flop. So, betting the ace (as a bluff, obviously--we don't want MP2 to call us here) continues our story that we have the opponent beat.

In this specific hand, MP2 "time-banked" before calling...that's often a sign of indecision. So, good try--we bet the turn hoping he'd fold, but he called. Oh, well--time to cut our losses and move on, right?

River: ($182.00) 2 (2 players)
MP2 checks, Hero bets $116, MP2 calls $116


I hate this river bet, and here's why: we tried on the turn to convince the regular that we had him beat. We almost persuaded him (he time-banked, after all), but we didn't convince him. So, after the river (the most harmless of cards), we try again to convince him? What an egregious mistake. Our chance to convince him came and went--firing on this river is akin to lighting money on fire.

No regular worth his salt will call the turn and then fold the river in a spot like this where the river changed nothing, because you have to play consistently if you want to win. This is actually a common mistake that losing regulars make too often--they call the turn to see what the opponent will do on the river...this is a losing play because you're merely putting off the decision or, alternatively, you're spending too much money on purchasing additional information (the additional information here is how the hero acts on the river).

**Note: this hand is not a perfect example because the opponent himself had an unbeatable ace, so he wasn't really deliberating so much as trying to induce a bluff from us on the river. It doesn't matter whether he had AK or JJ, though: we still should not ever be betting this river on a bluff. Once he called the turn we pretty much know he's going to be calling the river.

Final Pot: $414.00
MP2 shows K A (two pair, Aces and Fours)
Hero shows 9 9 (two pair, Nines and Fours)
MP2 wins $411.00
(Rake: $3.00)


Okay, so that hand was a disaster, but at least we learned from it.