Amateur Hour at USC

This is a blog post for my Political Theory class.

I’ve been a USC fan for the last four years. I obviously now care about Michigan primarily but since I was a freshman in high school I have been rooting for the Trojans from sunny LA. My brother started as a freshman at USC in 2010 and with his first football season came all the classic traditions of USC football fandom: the drum major riding in on a horse and stabbing the ground with a sword, the fight song playing incessantly, and the large empty, reserved space of Los Angeles Memorial Coliseum.

Why don’t we do this at games?

But one tradition was noticeably absent: bowl games. Or at least eligibility. During my brother’s orientation at USC over the summer, USC’s bowl eligibility, their 2004 BCS Championship trophy, and Reggie Bush’s 2005 Heisman Trophy were taken away and many USC fans were left in the dust, dreading the coming meaningless two years. Aside from creating a truly awful way to start one’s experience at USC, the 2010 crisis forced a renewal of the discussion over rules in the activity and the institution of the team.

For those that don’t know, the USC football team was investigated in 2010 by the NCAA: one player, Heisman winner Reggie Bush, accepted donations from agents, thereby revoking his status as an amateur. Bush gave back his Heisman trophy to the Heisman Trust, the team was deemed ineligible to play in bowl games in 2010 and 2011, and the last two wins of 2004 and all wins in 2005 were vacated. The USC basketball team was also punished in the same year for the same problem: O.J. Mayo had accepted gifts from agents as well, before he had played a game for USC.

Reggie Bush was reportedly heard to be quoting Gob Bluth after his gave his Heisman back

The college team is an interesting concept: while the team itself as an institution may survive indefinitely, each player’s time with the team is ephemeral at best. That is, once a player graduates, they are not a part of the team anymore, but their legacy on the team may have a tangible impact. This is what makes the USC debate so interesting. If Reggie Bush was drafted into the NFL in 2006, why was the USC football team four years later punished for his actions?

USC’s reaction when their winningness was taken

We at Michigan are fortunate enough to be schooled in the concept of “the team.” We listen to Bo Schembechler quotes at football games and even wear quotes on our t-shirts. “The team, the team, the team” is something we’re all familiar with. But while the team is fantastic when it works together, it’s more noticeable when it falls apart. In USC’s case, when one player four years before commits a wrong, the team as a whole gets punished.

In sports, as in politics, there are rules that are assumed that are perhaps not the most rational. These rules exist on the playing field and off. For Bush and Mayo, accepting gifts is totally rational: it is receiving money (presumably for play) instead of turning it down. As Johann Huizinga noted in his essay Homo Ludens, in the magic circle of play there exists rituals, irrational rules that govern life in the circle and thus the play that exists therein. In the context of the NCAA, amateurism is one of those rituals: players may not be compensated for their work as college athletes because the NCAA (legitimately or financial reasons) follows the abstraction of amateurism. Bush and Mayo were rational, accepted gifts, broke the rituals, and were thus punished.

Even Ron Burgundy knew what was up with the NCAA

Amateurism has had its fair share of missteps in the world of college sports recently, notably the case of O’Bannon v. NCAA in which Ed O’Bannon sued the NCAA for using his likeness without compensation for profit after he had graduated. The NCAA claimed that O’Bannon was an amateur and compensating him for his work would be a violation of their value of amateurism in college sports. And while that issue may deal with O’Bannon’s likeness, not his work, consider the case of Northwestern football players who recently decided to unionize because they are compensated through scholarships. It seems as though the concept of amateurism is failing. For now, balance has been restored at USC and their football season is off to a great start (if you ignore their embarrassing loss against Boston College). One thing’s for sure, after their bowl game eligibility was restored, they have been clinging to that opportunity like a cat and a slice of pizza.

Essentially USC and bowl games

Cinematic Motives

This is a blog post written for my Political Theory class. It is not about law but rather about political theory. It is still fairly relevant.

Steven Spielberg is a pretty talented director. He directed Jaws, Schindler’s List, Jurassic Park, Saving Private Ryan, Munich, Indiana Jones, The Color Purple, E.T., War Horse, and Lincoln. I was recently reading an article about Spielberg’s newest project, coming out in 2015, when I started to think: “what reason does this guy have for making another movie?”

Steven Spielberg: a cinematic genius

I can’t say for certain why Mr. Spielberg is directing another movie (I’m certainly not sad about it, I love his movies), but it certainly can’t be about money. Forbes has estimated Spielberg to be worth about $3 billion, nothing to scoff at. And this money didn’t come recently.

Jaws, Spielberg’s first blockbuster movie (and really the first summer blockbuster ever), was released in 1975, when Spielberg was 29 years old. It was the highest grossing movie ever at the time and is still so influential in the American cinematic culture that almost everyone can recognize the movie’s score from two notes.

If it isn’t about money, is it about prestige? Likely not. Of the 30 feature films Spielberg has directed, the films in total have received 124 Academy Award nominations and 33 wins. He’s won the Best Director Academy Award twice. Seven of his movies have been nominated for Best Picture.

I believe Spielberg’s motivation is the activity of filmmaking itself. That is, filmmaking is an autotelic activity for Spielberg. Why else would he stress himself with creating yet another movie when he could easily retire to a mansion with his $3 billion and take it easy?

Tracy Jordan is Jaws, Liz Lemon is Steven Spielberg. Jaws brought in a lot of revenue for Mr. Spielberg, as did a lot of his subsequent films, three of which broke box-office records.

This isn’t to say that Spielberg’s only motivation ever was just filmmaking. He has always been making movies to create art but someone who releases eight films by the time they’re 29 has to be thinking of money. That is, they have to be creating movies with the hope those movies will become popular, bring in a lot of revenue and make them wealthy enough to live their life fully.

What I am proposing is that one can have dual motives for wanting to do something. That is, an activity can be both autotelic and instrumental. For Spielberg, filmmaking was instrumental in terms of making a profit, but is and was also autotelic; Spielberg enjoys making movies. He finds movies an end in themselves.

Bernard Suits and A. Bartlett Giamatti fail to bring up this idea in their writing. Both Suits and Giamatti believe in the dichotomy between autotelic activity and instrumental activity, or at least they fail to discuss any sort of middle ground. This is quite unfortunate because examples of this sort of dual motive are limitless. Many more extremely successful directors are continuing to make movies, like Quentin Tarantino, Martin Scorcese, James Cameron, Ang Lee, Ron Howard, Clint Eastwood, and Woody Allen. Derek Jeter just ended his 20th season playing for the New York Yankees. Similarly, I did debate in high school for four years for both an instrumental reason (it would help with college admissions) and because the activity is autotelic (I found the activity engaging and fun). Clearly all these people are/were in a position to retire long ago, but have kept with their respective professions not only for the money, but for the thrill of the activity, an autotelic motivation if there ever was one.

The Decline of the Think Tank

For my first post, I wrote about faulty information in amicus curiae briefs submitted to the Supreme Court. I would like to write about a tangentially related topic: bias in think tanks. It's tangentially related because there is a different identifiable cause in this source of (potentially) faulty information in a government process: the purchase of influence, particularly by foreign institutions.

Think tanks are policy analysis organizations: they consist of policy experts (people who generally have degrees in public policy) who analyze bills and policy before, during, and after passage. They also craft policy suggestions to achieve a certain goal. Some prominent examples of think tanks include the Brookings Institution, the Cato Institute, the Heritage Foundation, and the Council on Foreign Relations.

The story of think tanks has a happy beginning but quite a tragic ending (so far at least). Think tanks were founded in the progressive era to provide non-biased information to the American public as well as politicians on the wide variety of issues that Congress debated. Simply put, no one had the time to be well-informed on every issue debated at a given time and politicians and citizens alike needed non-biased information to help them make opinions and decisions. This was a positive force for democracy; politicians were now more accountable to a more-informed public. Additionally, the think tanks were founded by wealthy individuals who were the sole donors to the organization so that the research and analysis conducted by the think tank would be independent from any financial or political interest.

The latter half of the 20th Century, however, saw the beginning of the decline of the think tank as a respectable institution. The American Enterprise Institute, a half-think tank, half-corporate lobby combination, was founded in 1943 by businessmen who staunchly opposed the New Deal and governmental involvement in economy and industry. 1973 saw the creation of the Heritage Foundation which combined a corporate interest and a Republican agenda. Think tanks continued to expand greatly in the 1980s and competed for influence. To compete with the more prominent think tanks, newer ones sought outside funding which in turn handed corporations a say in the think tanks' research and positions. Think tanks with a distinct focus began to appear, which further incentivized corporations to donate to influence the debate happening in their industry's policy realm.

Before the problem becomes more severe, let me briefly describe the impact that corporate lobbying of think tanks has on American policymaking (I might be letting a bit of my bias show here): think about the recent Citizens United court decision. If you are unfamiliar, the Supreme Court ruled that corporations are free from government restriction on campaign contributions; essentially, companies can donate unlimited sums of money to political candidates. If you don't see an immediate problem, think again: political representation is essentially controlled by corporate interest, not by the the people a representative would, well, represent. Congressmen don't have to be accountable to the public, much less their constituents, they only have to be accountable to the corporations that are donating money to their campaign. This means they can ignore their constituents' demands if they are at odds with their backing corporations' interests. This might seem like the biggest problem in the world until you realize that the corporate involvement in this instance is only limited electing people into office; there's no guarantee that the candidate will push for their bill. In fact, companies can't reach out to every candidate in the House, Senate, state governments, executive branch, etc. There simply isn't enough money. In the world of corporate-controlled think tanks, not only are politicians controlled by corporations because of election concerns, the corporations are their politicians' information source. This is essentially a monopolization of the political process, something which should be alarming to anyone concerned about the democratic fate of this country. And, since this information is read by the citizens and congressmen alike, these think tanks have a much wider impact. But we can all find some solace in the fact that at least those corporations are American and in the end American interests are being represented (albeit potentially a minority of Americans). This brings me to today's problem: international funding sources.

An article I recently read in the New Republic describes the problem of foreign contributions today. There are many, many examples of foreign donations but the one that stuck with me took place in the Center for Strategic and International Studies (CSIS). For the last twenty years or so, the CSIS has been receiving donations from various Japanese institutions, such as Toyota and JETRO, a part of the government that controls trade. And the problem with these donations is that, like any other country, when Japan gives, Japan expects something in return. My favorite quote on this matter is attributed to Edward Lincoln, an expert on Japan and the economy and a professor at New York University who was at the time working at the Brookings Institution: "The first thing [the Japanese] ask when they give money is what do we get." In this case, that's a policy recommendation that favors Japan's economy.

And here's why this is a bigger problem than American companies donating: when an American company donates to a think tank and influences the recommendations produced by the think tank, the expressed opinion is still American in a sense. The opinion may not be shared by a majority of Americans but it is held by Americans and likely wasn't influenced by non-American sources of information. When foreign sources of funding pervade the think tank policy analysis process, the once-objective, or at least once-American source of analysis for American policy is now controlled by foreign sources that seek to skew American opinions and policymaking in favor of their country. This is exactly the reason why Andrew Carnegie and Robert Brookings founded their respective think tanks with their own money: to separate the policy research from the funding. Outside sources of funding, particularly foreign sources of funding, compromise the think tank process which was originally a way for citizens and policymakers alike to receive objective information about policy and issues that would shape opinions in a non-biased way.

For additional reading, this New York Times article (which the National Review article was about) provides statistics about the rise of international funding of think tanks in America.

UPDATE - SEPTEMBER 18, 2014

The House of Representatives has proposed a bipartisan agreement to force think tanks testifying on Capitol Hill to disclose all foreign sources of funding. As a testament to the power of journalism, the bill was drafted as a response to the New York Times article mentioned at the end of the original post. Jackie Speier (D-CA), who drafted the legislation, said that lawmakers have a right to know who finances the research they so heavily depend upon to formulate policy. This demand depicts the integral role think tanks play in the political process.

The bill, I believe, is an excellent idea. It doesn't directly harm the think tanks in any way, that is, it doesn't inhibit their policy analysis. It opens the public's and government's eyes to a major problem that plagues the policy-making process.

Think about the bill in economic terms: the bill informs the public and congress that the supply of a product (political information from think tanks and/or lobbyists with foreign funding) is tainted in some way (foreign funding) and the quality of the product is bad. Demand for the market remains the same, but the supplier of the product changes, or shifts, to think tanks that provide a better, more reliable product.

This is a new twist on the debate between transparency and effective policy. While normally the debate centers over whether the government has a right to withhold information from the public if the information would have an effect on policy, those cases involve information from the government. In this case, information goes from a public source to the government in the event of a testimonial in Congress. Posting on the internet is distinct from testimonial; it isn't a government-established source of information with credibility. When think tanks send members to testify in Congress, they should be transparent, especially when the information is publicly available.

There is precedence to this: The Truth in Testimony rule requires witnesses before the house to disclose whether the federal government has provided financial support to the organization the witness works for. If we require a check for US government influence, why are we not checking other countries' influence?

Facts came from this self-lauding New York Times article.

On the amicus curiae

I recently read an article in the New York Times in which Adam Liptak writes about the Supreme Court's usage of the amicus curiae, which is legal commentary submitted by a third party that gives some sort of information and judgment about the case, ultimately favoring one side over the other.

The concept seems like a good one. Lawyers can't be experts on every potential topic, science and otherwise, nor can lawyers consult every expert on a given topic. Amici curiae (plural) therefore are necessary submissions from experts in relevant fields that may provide critical insight into the field in which the Court is ruling. They may inform the Court of the facts of case-equivalent situations elsewhere as well as the potential effect certain laws may have on people, places, industries, etc. Without these submissions, the Court might as well be shooting in the dark with a gun that doesn't know up from down. How is John Roberts or Ruth Bader Ginsburg supposed to know the conclusions of studies that identify the effect of certain patent laws on certain sectors of the economy or the amount of privacy violations that happen in some government agencies?

There are two main problems with the amicus curiae:

1. The Supreme Court is designed to hear appeals (legal protests of lower courts' decisions), that is, they have appellate jurisdiction. Appellate jurisdiction, thus, necessarily excludes the hearing of new facts because that would not match the case heard in the lower trial court, which have original jurisdiction. Amicus briefs definitely provide new facts, that's their purpose, mostly in cases the Supreme Court is hearing under their appellate jurisdiction.

As an aside, the Supreme Court does in fact have original jurisdiction in a small amount of cases, but the amicus brief is not frequently used for these cases. And even in these cases, there should be some check of the validity of these briefs, which I will now discuss:

2. The main message from the New York Times: often times, these briefs are not fact-checked, peer-reviewed, or have any other relevant qualification. And while one major benefit to amicus briefs is that they democratize the judicial process by magnifying the public voice in judicial matters, the reason why the judicial branch is so separated from the public is precisely for this reason: being a Supreme Court justice requires not being of the "average crop" of people in the same way that we elect representatives - for such important and complex legal matters, we must rely solely on the best legal minds, not Jane Smith and John Doe from the ACLU citing a blog post written by an anonymous author (please don't get me wrong, I do not believe U.S. Representatives are the "cream of the crop" to continue the agricultural metaphor).

And, as an additional argument, most of the problem isn't the democratization of the process but rather the presence of non-factual assertions that derail any hope of creating meaningful, effective change in our laws. In fact, Liptak reports that many of the studies sent to the Supreme Court were designed specifically for influencing the Court. In my limited experimental experience, beginning with a conclusion to be obtained is not reliable for coming to an objective conclusion.

What gets me in particular is certain justices' hypocrisy regarding the way justices should treat amicus briefs. Liptak quotes Justices Alito Jr. and Scalia and identifies an opposition to amicus briefs shared by both justices. The only problem is that Alito Jr. and Scalia both have cited amicus briefs when convenient.

To resolve the problem of the amicus brief is a tall order given their preeminence in the legal scene today. But hope is not lost. If justices are to continue to use the amicus brief, which isn't a bad idea, they must be sure to employ their clerks to conduct their own research on the nature of those briefs and come to a conclusion about whether the brief's studies and sources are reliable enough for the Supreme Court. Certainly these Harvard and Yale Law graduates can discern between research that would qualify for being used in a high school essay and research that would not.