70 thoughts on “May 15, 2014: Out of My Brain on a Train”

    1. The game. Randy Wolf got his first career save too. He successfully saved the game when it was 13-2. I love that rule.

      1. I love it, too. It bothers me when people complain about it.
        I also like the relief-pitcher "most effective" rule for when a starter doesn't last five innings but still has the lead.

        1. Unless they're on my fantasy team, it's rain delay after four, and they give it to the next guy who pitches an inning. I think that's happened twice to me this year.

    2. My Twitter feed was impressed with the 94mph fastball vs 74 mph changeup (which gameday called a knuckle).
      He has an OPS+ of 92.
      If he quits today, he's had his best season ever.

  2. I have a hypothetical for the Nation's lawyers. This idea popped into my head, and I don't know why, but luckily there are enough of you guys around -

    Is there anything keeping Congress from re-passing a law that the Supreme Court rules unconstitutional? Obviously any court would be able to cite pretty damn good precedent for ruling in the inevitable slew of suits regarding law 2.0, but could the SOCTUS and Congress get in some sort of infinite loop of pass-invalidate?

    1. As if Congress isn't ineffectual enough already. Don't go giving them new ideas, Mags!

    2. /NotLawer
      The oath of office covers support and defense of the constitution. Mightn't blatant disregard for the official interpretation of the constitution (as decided by the SCOTUS) be in contradiction to their oaths of office?
      Not that anyone could challenge them on that outside of reëlection campaigns or in deliberation over the bill.

      Enforcement of said laws would be irregular, too, as it would be presumed unconstitutional.
      Solution for congress: small changes that probably won't make the law constitutional, but just might be enough.

    3. Once the SCOTUS says a law is unconstitutional (and usually they'll just note that an aspect of a law rather than the entire thing is unconstitutional as with the ACA), Congress could 1) repass the same law and have it immediately struck down again, 2) try to tweak the law to have it become constitutional, or 3) work on getting the Constitution amended (good luck with that!).

      1. #3 has worked in the past, though I could count the number of times on my fingers and toes

      2. Assume in my scenario the entire thing has been struck down, like the law only says "It's illegal to say the word 'duck'" and somehow it is disputed enough to get to the Supreme Court. SCOTUS says, "No, dorks, that's obviously a violation of the First Amendment." Then Congress re-passes "It's illegal to say the word 'duck'" verbatim.

        In scenario #1 you say "immediately" Is that like SCOTUS can just call a press conference and say "Yeah, about that...still illegal" or does it have to be brought up through district and appeals courts again?

        1. No, someone (in your hypothetical, probably the ACLU or some other group out there to protect our rights) would file for an immediate injunction against the law in federal district court. The federal district court will take one look and say, "Well, obviously this is unconstitutional because the SCOTUS said so" and issue an injunction pending appeal. During the entire appeals process, it would remain legal to say "Duck." Odds are, after whatever Court of Appeals hears it and affirms the injunction, the SCOTUS will refuse to grant certiorari because the issue has already been decided and that affirmance from the Court of Appeals will stand to keep it legal.

          An example about maintaining the status quo pending appeal are the many recent same-sex marriage decisions where federal district courts are ruling same-sex marriage bans unconstitutional but they are staying enforcement of their orders until the appeals are resolved.

          1. Ah, injunctions. I knew there had to be something, but being a non-lawyer that bit escaped me.

    5. /notalawyerbutaprofessionalpoliticalscientist

      There's nothing stopping Congress from passing any language whatsoever. Indeed, Congress has occasionally written laws specifically to overturn/end-run specific SCOTUS decisions.

      think about this as a three-cornered bargaining game. SCOTUS can invalidate whatever it wants, but it can't enforce. Congress can enact whatever it wants, but it can't enforce. The Executive can enforce, but has to have money to do so, and risks impeachment or court action. Voters are the ultimate enforcement authority, but that authority is diffuse and vague.

      Remember that most SCOTUS decisions are not decided on purely constitutional grounds, but rather on statutory intent grounds. Where SCOTUS takes a hard, blanket, constitutional stand, it is much, much harder for Congress to directly contradict. But if the decision is unpopular enough, Congress can always pass a constitutional amendment resolution to send to the states. That's what happened with Chisholm v. Georgia and the 11th Amendment.

      1. Yeah, I'm aware of the separation of powers. I just wondered if there was a mechanism in place that prevented a revolving door type situation.

          1. There are some rare examples of congress repassing bills (in all but exact form) after a veto. I am aware of one under Truman. Two vetos. On the third try, the bill was sufficiently modified to get a veto-proof majority, if memory serves.

          2. I would also add: SCOTUS largely controls its own agenda, but cases still have to be brought to it. So Congress passing a law that prima facie is unconstitutional would still have to wind its way through lower courts (unless it dealt specifically with an original jurisdiction issue).

            In the extreme, Congress can write a law that excises some portion of court jurisdiction, declaring that some matter (other than original jurisdiction turf) is not reviewable by the courts. That could, of course, be challenged on constitutional grounds. But not very well.

            Here's the relevant constitutional passage from Article 3:

            In all Cases affecting Ambassadors, other public ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

            So, it should be abundantly clear, Congress has the authority to take appellate jurisdiction away from the Supreme Court via statute. That's pretty much end game.

  4. the Czech Mapplethorpe?

    The Czech artist David Černý has built his career on challenging sculptures that leave few social mores sacrosanct. With "Proudy" (“Streams”), two animatronic sculptures in front of the Kafka Museum piss continuously into a puddle shaped like the Czech Republic. Microchips in these two satisfied-looking statutes allow the precisely aimed streams of water (moving hips and penises and all) to be used in writing out famous quotations from Czech literature.

  5. From DG's Facebook page, I saw that 102 years ago today, the New Mexico Supreme Court (when still a territory) ruled:

    To sustain the judgment of the lower court [holding that playing baseball on Sundays was illegal], upon the first count of the information, we would be compelled to hold that the Legislature intended to prohibit all “sports” on the Sabbath day, however innocent or harmless they might be. Can it be that the Legislature, by the use of the word, intended to so limit and restrict the liberty of the people? To so hold would be to prevent members of a family from engaging in a game of croquet, tennis, or golf, or other like sports; in fact, would, instead of making Sunday a day of rest and relaxation from business and labor, and a day to be looked forward to with pleasure, cause the people to regard it as a day to be dreaded, for fear they might be haled into court and fined for infraction of the law.

    We think the lawmakers, by the use of the words “horse racing or cock fighting,” pointed out the class of sports which they intended to prohibit, and that they intended to prohibit only such sport as tended to immorality. It is well known that horse racing and cock fighting by reason of the fact that a purse is usually paid to the owner of the winner, and that gambling and betting sometimes attend such sports, are generally considered immoral. Ex parte Hull, 18 Idaho, 475, 110 Pac. 256, 30 L. R. A. (N. S.) 465.

    In the case of State v. Prather, 79 Kan. 513, 100 Pac. 57, 21 L. R. A. (N. S.) 23, 131 Am. St. Rep. 339, the Supreme Court of Kansas, in discussing the question as to whether baseball was prohibited by a statute which prohibited all “games” on the Sabbath day, said: “In the broad sense in which the word is often used it includes baseball. Giving the statute this interpretation, the statute applied to every contrivance or institution which falls within the general term. This construction would make the statute apply to every game of authors, whist, chess, checkers, backgammon, and cribbage, even when played within the privacy of one's home, and to croquet, basket ball, tennis, and golf, whether played in public or private grounds. It hardly seems possible that it could have been the intention of the Legislature to enact a provision so drastic in its terms as to make the playing of all games on Sunday misdemeanors without regard to their character.” And the Supreme Court of Missouri in the case Ex parte Joseph Neet, 157 Mo. 527, 57 S. W. 1025, 80 Am. St. Rep. 638, in speaking of baseball, says: “Baseball does not belong to the same class, kind, species, or genus as horse racing, cock fighting, or card playing. It is to America what cricket is to England. It is a sport or athletic exercise, and is commonly called a ‘game,’ but it is not a gambling game or productive of immorality. In a qualified sense it is affected by chance, but it is primarily and properly a game of science, of physical skill, of trained endurance, and of natural adaptability to athletic skill.”

    To hold that the word “sports,” used in our statute, was designed to prevent people from engaging in baseball on Sunday, would make the statute so elastic that it would prohibit all sports, however innocent or harmless they might be, and however much they might tend to make the Sabbath day a day of rest and relaxation from labor. As remarked by the court in Ex parte Joseph Neet, supra: “Such a construction would have curtailed many of the pleasures of many of our people, without elevating them or improving their moral tone. Until the lawmakers expressly provide for such sweeping changes in the lives and customs of our people, it is not proper for the courts by construction to impair their natural rights to enjoy these sports or amusements that are neither mala in se nor mala prohibita—neither immoral or hurtful to body or soul.”

    We therefore hold that baseball, so long as it is conducted and carried on in a harmless and proper manner, free from rowdyism, gambling, and immorality, does not come within sports prohibited by the statute.

    Territory v. Davenport, 124 P. 795 (N.M. 1912).

    1. Hmm. So NM relies on KS ruling that baseball is not a "game" to determine that it is not a "sport".
      Sounds like an unpleasant law and some judges that construed a reason to invalidate it. Both in KS and NM.*
      Ticket anyone playing cribbage or hopscotch or mumbledypeg or tag or anyone racing to the end of the fence/block/whathaveyou.
      Ticket any adults allowing children to play the same.

      *Or I could see the phrase "horse racing or cock fighting" listing the universe of prohibited Sunday Sports, although not enough of the original is there to see how it is written.
      httpv://www.youtube.com/watch?v=7di7FDFLgtk

    1. The first person to link me to that (via fb) mentioned it making her rethink what medicine knows and maybe anti-vaxxers have a point.
      Or something like that.

      1. Just have to be lucky enough to survive without the vaccine. And be lucky enough to have a particular type of cancer.

    2. That is the cancer my mom is suffering from. She had a stem cell procedure that got rid of the cancer cells (very temporarily) but also wiped out all her immunizations.

      Within a couple years, cancer treatment will be totally different than it is now.

      1. Within a couple years, cancer treatment will be totally different than it is now.

        Mmm. More of the sexy butt of Science!

        also, best wishes to your mom.

          2. Ditto on the best wishes. My mom had breast cancer but early detection and aggressive treatment saved her. That was about ten or twelve years ago now, so long I never think about it unless something reminds me.

    2. NBC Los Angeles reports that several businesses in the area have been affected; at least one—The Gentlemen's Club—was covered with oil and evacuated.

      A sidewalk sale opportunity may have been missed here.

    3. your link says it's been revised to 10,000 gallons.
      Not that any of us would know one from the other.

      1. I get to do spill estimates at work if we have an accidental release. The largest spill I've been around was 2,000-3,000 gallons (corn flour and water- pretty innocuous stuff). I'd say the difference between 10 and 50 thousand gallons should be easy to spot, but then again, you always want to err on the high side when you report it.

      3. I see now that I misread the update. Should have cited the 10k number.

        Either way, it was a mess.

    1. Yes, it's a bad situation in San Diego and then last night we had some morons (sounds like teenagers) start two fires on a hill behind our Little League complex during Junior's game. There were houses on top of the hill but I think the fire department took care of it before it got there, but the whole hillside eventually was on fire. The game was called in the third inning with Junior's team leading 8-1 and will be resumed at a later date. The local newspaper said the fire was completely contained about 90 mins after it was started. I guess the good thing about it happening during a game was so many parents there with cell phones to call 911 right away.

  10. Kansas doesn't like social media SelectShow

    1. I haven't wanted to talk about it because I'm fairly certain they will lose the lottery and give their pick to Phoenix.

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