Never underestimate the capacity of law professors to generate new make-work programs for lawyers.

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Maya’s post about basketball was interesting for its depth and analytical rigor. This one is about as banal as the stuff on ESPN I stopped watching twenty years ago.

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The NBA has a 'Basketball Court' replete with Judges for the Slam Dunk Contest that I think is universally recognized as being terrible in its goal of assessing the quality of the dunks that it reviews.

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I disagree with the proposal. Governments need a court system. The NBA does not. The issues they describe with the handing down of punishment are largely due to Adam Silver's (an attorney, by the way) leadership style. Adding more attorneys to the mix -- which is what would happen with the proposed court system -- is an idea only two attorneys could think is a good idea.

In addition, the authors write: "Corporations are led by chief executives like NBA Commissioner Adam Silver who are hired — and can be fired — based on their capacity to generate short-term revenues for the company rather than to generate longer-term consistency."

I'm stunned at how wrong that statement is.

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What's weird to me, at least, is that I see no evidence that the good professors are aware of the Collective Bargaining Agreement that governs relationships between players and their employer, wherein controversies between the two are literally adjudicated by a third party wielding judicial-style authority, a process known as "arbitration" whose absence from this essay is conspicuously, bizarrely lacking.

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After spending most of the piece arguing for a much more legalistic process, we get to the brawls where the NBA was extremely by the book and suddenly the argument shifted to essentially we want judges that'll ignore the plain text of the rule when we don't agree with the outcome and I had to double-check that Mark Joseph Stern or Josh Blackman weren't the authors.

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Jul 11·edited Jul 11

I don’t find this convincing as why we should bring actual courts into the mix. I find it pretty laughable to think sending these decisions to a supreme basketball court will necessarily legitimate the decisions in the mind of fans or even speed decisions up… the actual process of things going through courts creates a ton of controversy, political, legal and otherwise, is often grindingly slow, and is not always very transparent. Will a big Memphis fan ever be convinced of anything other than a 0-game suspension for Ja?

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What is the problem this is trying to solve?

The NBA just kind of enforces their rules to maximize viewership. The have a competition committee to change in-game rules.

The unequal enforcement is part of the product. Sending Myers Leonard to the shadow realm works because people do not care about Myers Leonard. Doing something similar for Kyrie and JB doesn't because they are more popular(and talented).

The NBA barely disciplines players that try to hurt other players.

Is the whole argument that Silver (or other commissioners) are too short-term focused? What would be the mandate of this court?

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Wait, so if an NBA player was safely and legally using a firearm at a range or was filmed explaining firearm safety they would be punished?

Or is the issue the way he was using the firearm? I watched that video 3 times and couldn't even see the firearm but is that the problem?

I'm kinda surprised the racial angle hasn't been raised, e.g., would a white guy playing with a gun during a country song have gotten a similar punishment. Not saying I agree or disagree but it seems like where this kind of discussion would go.

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Jul 11·edited Jul 11

“No NBA player has ever been suspended more than 10 games for a firearms violation“

Was Arenas’ 50 game’s technically for something else?

"Morant certainly violated that rule"

Have they been able to measure if the gun thing was detrimental to the NBA?

"...this was the second time that Morant filmed himself with a gun..."

Also not to be a pedant but his friend seemed to be filming.

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So, the proposal is that Mark Cuban should have taken whoever was to decide on Luka's fine on a trip with his private plane before the decision?

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Insane take. I can't believe you've induced me to leave a comment. Well done.

- The purpose of the Meta court isn't to provide consistency, it's to get people to stop yelling at Mark Zuckerberg.

- "Someone to yell at" is already a primary function of sports league commissioners.

- There's no reason to think that consistency is a positive value in entertainment. Is it a problem that the coyote slams into the tunnel that's been painted on the wall while the roadrunner passes through? No. Similarly, league fans want norm-setting punishments handed to benchwarmers, not MVPs on the eve of the finals.

- Most importantly/distastefully: the point of league sanctions is to protect the business. In the case of Morant, this is tangled up in the problem of policing the behavior of young men who have come into a lot of money; and managing the attitudes of a fan base with significant blocs that will withhold dollars if allowed to incubate racist stereotypes. Ask the NFL. This is why you encourage players to don formalwear pre-game and why you come down like a ton of bricks on gun offenses. The process is inextricably mediated by sports and celebrity journalism--which is unpredictable. A supple approach is required. Players have lawyers and a union, but mostly they have big compensation tied to contracts with morality clauses. This is the deal, it's how the money gets made, and it would be nuts to create an inflexible bureaucracy solely for the sake of principle.

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<resolving complicated questions>

I think my disagreement stems from this. These questions aren't "complicated". Creating a new independent body to resolve conflict would be complicated. The current system is quite simple. The owners own the league and employ a commissioner to act in their best interests. In the Ja Morant case, however long the suspension ended up being: 10 games, 25 games, the entire season ... the only answer is that length was in the best interest of the owners.

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"No NBA player has ever been suspended more than 10 games for a firearms violation, and Morant was suspended 25 games." This statement isn't correct. Gilbert Arenas was suspended for most of the 2009-2010 season after the incident where he brandished a gun in a locker room.

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This has the feeling of a post by a couple of guys with a hammer about how many nails there are out there.

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"...Figuring out whether Silver’s punishment was right depends on how the NBA Constitution is interpreted....Governments have a tool for resolving complicated questions like these about how to best interpret their foundational rules: courts."

But distinguish between:

1) courts have a role in interpreting the constitution, and

2) courts have the sole and unquestioned authority to interpret the constitution.

The second represents the view that no other branch may challenge the court's interpretation of the constitution; the first allows that the executive and the legislature are also co-equal interpreters of the constitution. The second was popular in the last century, and especially popular when the US Supreme Court acted as a reputable and relatively non-partisan upholder of constitutional norms. But it has never been uncontroversial, and as the current court turns into a group of partisan hacks with a slightly more sordid reputation than Tucker Carlson, it ought to become controversial once again.

The question is not settled by the famous dictum that "it is emphatically the province and duty of the judicial department to say what the law is." That is compatible with it also being the province and duty of the executive to say what the law is. And it is manifestly the province and duty of the legislature to say what the law is.

Resist the judicial claim to sole authority in constitutional interpretation. If you want a body to interpret the NBA's "constitution", then construct one. But do not call it a court.

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