Sunday, 30 December 2012

Fourth Circuit on Duke Lacrosse

A couple of weeks late on this. The Fourth Circuit held that all the Fourth Amendment claims by the Duke lacrosse players against the investigating police officers should have been dismissed on qualified immunity grounds.The court did allow state law malicious prosecution claims by the three indicted players, but not by the 30+ players who never were indicted, to proceed. Some thoughts follow.

1) The claim by the three indicted players for a Fourth Amendment malicious prosecution violation failed because the independent decision of the prosecutor to seek and indictment (and the independent decision of the grand jury to indict) broke the causal chain between the officers' conduct and the unconstitutional prosecution. Absent allegations that the officers affirmatively misled or unduly pressured the prosecutor to seek that indictment, his acts insulate the officers from liability. The court further rejected the argument that the police and Nifong conspired to seek an unconstitutional indictment and prosecution, emphasizing the duty of police and prosecutors to work together in seeking to establish probable cause and to seek indictments; a "conspiracy" thus could be alleged in every case. On a related point, the court in a footnote rejected an overlapping Fourteenth Amendment substantive due process claim against the officers for fabricating evidence. Substantive due process is not available when there is an "explicit textual source" for a constitutional claim; because the claim could be brought under the Fourth Amendment, the Fourteenth Amendment could not provide the basis for a claim.

This result seems correct, although it illustrates well the difficulty (if not impossibility) of using § 1983 to challenge misconduct in the criminal justice system. A prosecutor enjoys absolute immunity in seeking and obtaining an indictment, while his conduct insulates police officers from liability, at least absent affirmative lies or concealment of evidence. The court was a bit too dismissive of the possibility of a conspiracy to indict, although that may have been because the complaint itself showed Nifong as the bad actor, taking weak evidence, which the officers themselves insisted was weak, and moving forward with an indictment. On the other hand, because police never themselves initiate a prosecution, perhaps the Fourth Amendment is the wrong source; perhaps cases of fabricated evidence should be handled under substantive due process--after all, it is hard to imagine what misconduct could be more "outrageous" than fabricating evidence.

2) The claims against the City of Durham had to be dismissed once the court held that there was no underlying violation. The same for the "stigma-plus" S/D/P claims against police officers who made public statements suggesting the players' guilt. The DA's independent decision to seek the indictment broke any causal connection between the statements and the indictment, eliminating any "plus" necessary to state a claim. The latter was an unfortunate way to resolve it--I would have liked to hear the court take on whether "stigma-plus" was a valid theory of liability.

3) Judge Wilkinson wrote a strongly worded concurrence, criticizing the e plaintiffs' lawyers for overreaching, both in the dramatic numbers of claims asserted (23, 32, and 40, among the three complaints--and the unindicted players, who never got dragged into the system, actually brought more claims than the indicted players), the "sweeping scope" of the litigation, and the "overwrought" nature of the claims and the allegations. Wilkinson had a stronger position against "stigma-plus" claims as inconsistent with SCOTUS precedent; he also read Iqbal to require particular allegations of precisely what each supervisor did to cause the violations alleged; simply naming names, without identifying their conduct, is insufficient.

4) The state-law malicious prosecution claims remain alive against the officers, as do the claims against Duke University (who could not appeal at this non-final stage) and Nifong (who did not appeal the denial of his motion to dismiss. And despite Wilkinson's point that this case continues more than six years after the criminal charges against the three players were dismissed and coming up on seven years since the infamous party, the case goes on.

Thursday, 27 December 2012

Richard Sherman successfully appeals drug test result: Did NFL avoid StarCaps II?

Seattle Seahawks corner back Richard Sherman, who threatened to sue the NFL if they suspended him for a positive drug test result, successfully appealed the result on grounds the test was corrupted. Had Sherman been suspended and sued, he likely would have relied on the StarCaps litigation - where Minnesota state law was viewed as protecting NFL players in spite of conflicting CBA provisions (the players ultimately lost the case but succeeded in showing state law applied).

I discuss the legal impact of Sherman's appeal with Seattle's NBC TV Affiliate, King TV:

Plantinga's Evolutionary Argument Against Naturalism refuted

Here's my central criticism of Plantinga's Evolutionary Argument Against Naturalism (EAAN). It's novel and was published in Analysis last year.

Here's the gist. Plantinga argues that if naturalism and evolution are true, then semantic epiphenomenalism is very probably true - that's to say, the content of our beliefs does not causally impinge on our behaviour. And if semantic properties such as having such-and-such content or being true cannot causally impinge on behaviour, then they cannot be selected for by unguided evolution. Plantinga's argument requires, crucially, that there be no conceptual links between belief content and behaviour of a sort that it's actually very plausible to suppose exist (note that to suppose there are such conceptual links is not necessarily to suppose that content can be exhaustively captured in terms of behaviour or functional role, etc. in the way logical behaviourists or functionalists suppose). It turns out that if such conceptual links exist, then (rather surprisingly!) natural selection will favour true belief even if belief content is epiphenomenal. So Plantinga is mistaken: even if belief content has no causal impact on behaviour, natural selection can still select for true belief. The EAAN is therefore refuted. To resurrect the EAAN, Plantinga would need to show that there are no conceptual links of the sort I envisage between content and behaviour, links of a sort that, as I say, do seem to exist.

Stephen Law

Plantinga’s evolutionary argument against naturalism (EAAN) is currently one of the most widely discussed arguments targeting philosophical naturalism (see, for example, Beilby 2002).  Plantinga aims to show that naturalism, in combination with evolutionary theory, is, as he puts it, ‘incoherent or self-defeating’. His argument turns crucially on the claim that, in the absence of any God-like being to guide the process, natural selection is unlikely to favour true belief. This, Plantinga supposes, is because natural selection selects only for adaptive behaviour. It is irrelevant, from the point of view of unguided evolution, whether the beliefs that happen to cause that adaptive behaviour are true.

I argue that, even in its most recent incarnation, the EAAN fails. In particular, Plantinga overlooks the fact that adherents of naturalism may hold, seemingly quite plausibly, that there exist certain conceptual links between belief content and behaviour. Given conceptual links of the sort I envisage, natural selection will indeed favour true belief.

I then point out a further interesting, and perhaps somewhat surprising, consequence of the existence of such conceptual links: that even if semantic properties such as being a true belief are epiphenomenal – even if such properties have no causal impact on behaviour – unguided evolution will still favour true belief.

For those unfamiliar with the EAAN, here is a brief outline.[1]Let Naturalism (N) be the view that there’s no such person as God or anything at all like God, and Evolution (E) be the view that our cognitive faculties have come to be by way of the processes postulated by contemporary evolutionary theory. Then, argues Plantinga, the combination N&E is incoherent or self-defeating. This, he maintains, is because if N&E is true, then the probability that R – that we have reliable cognitive faculties (that is to say, faculties that produce a preponderance of true over false beliefs in nearby possible worlds) – is low. But, concludes Plantinga, anyone who sees that P(R/N&E) is low then has an undefeatable defeater both for R and for any belief produced by their cognitive faculties, including their belief that N&E.

But why suppose P(R/N&E) is low? Plantinga supports this premise by means of a further argument. He begins by asserting that

materialism or physicalism is de rigeur for naturalism… A belief, presuming there are such things, will be a physical structure of some sort, presumably a neurological structure. (Forthcoming: 2)

According to a proponent of naturalism, then, this structure will have both neurophysiological (NP) properties and semantic properties. However, it is, claims Plantinga, unlikely that the semantic properties of the neurological structure will have any causal effect on behaviour:

It is easy to see how beliefs thus considered can enter the causal chain leading to behavior; current science gives us a reasonably plausible account of the process whereby volleys of impulses propagated along the efferent nerves cause muscle contraction, motor output, and thus behavior. It is exceedingly difficult to see, however, how they can enter that chain by virtue of their content. A given belief, it seems, would have had the same causal impact on behavior if it had had the same NP properties, but different content. (Forthcoming: 2-3)

Plantinga concludes that N&E makes semantic epiphenomenalism (SE) likely. But, says Plantinga, if semantic properties such as having such-and-such content or being true cannot causally impinge on behaviour, then they cannot be selected for by unguided evolution. Given SE, truth and falsehood will be, as Plantinga puts it, invisibleto natural selection. In which case, (on the modest assumptions that (i) 75% of beliefs produced must be true in order for a cognitive mechanism to be reliable and, (ii) that we have at least 100 such beliefs) P(R/N&E&SE) will be low.

So runs the EAAN. Recently, Plantinga has refined the argument by trying to tackle a certain sort of objection. The objection is that by also embracing, for example, reductive materialism (RM), adherents of naturalism may, after all, quite reasonably suppose that they have evolved reliable cognitive faculties. Why so? Well, on Plantinga’s understanding of RM, content properties just are NP properties. But then, because NP properties cause behaviour, and semantic properties just are NP properties, so semantic properties can cause behaviour. And if semantic properties can cause behaviour, then they can, after all, be selected for by unguided evolution.

Plantinga’s argument that P(R/N&E&RM) is low

In his most recent presentation of the EAAN, Plantinga attempts to deal with the above objection. He focuses his attention on one semantic property in particular – truth. Even supposing that semantic properties such as being true can causally affect behaviour, why, he asks, should we suppose, that unguided evolution favour beliefs that are true?

According to Plantinga, the combination N&E&RM gives us no reason to suppose that the content of belief/neural structures resulting in adaptive behaviour is likely to be true. Suppose the belief/neural structure resulting in a piece of adaptive behaviour has the content q. While the property of having q as content does now enter into the causal chain leading to that behaviour, it doesn’t matter whether q is true:

What matters is only that the NP property in question cause adaptive behaviour; whether the content it constitutes is also true is simply irrelevant. It can do its job of causing adaptive behaviour just as well if it is false as if it is true. It might be true, and it might be false; it doesn’t matter. (Forthcoming:10).

But if the NP property can do its job of causing adaptive behaviour just as well whether the content is true or false, true belief cannot be favoured by natural selection. In which case, concludes Plantinga, (PR/N&E&RM) remains low.

Conceptual constraints on likely semantic content
There is, it seems to me, a fatal flaw in even this latest incarnation of the EAAN.

Plantinga supposes that what unguided evolution favours, in the first instance, is adaptive behaviour. As to what causes that behaviour, evolution doesn’t care. True beliefs, false beliefs, something else - it’s all the same to evolution. It is only the result – adaptive behaviour – that is preferred.

But even if unguided evolution doesn’t care what causes adaptive behaviour, just so long as it is caused, it may not follow, given certain further facts about belief that natural selection won’t also favour true belief.

Consider the suggestion that there exist certain conceptual constraints on what content a given belief can, or is likely to, have given its causal relationships to, among other things, behaviour. My claim is that, given the existence of certain conceptual constraints, unguided evolution will then tend to favour true belief.

To begin, let me sketch out a simple illustration of how such constraints might operate.  Suppose we just stipulatively introduce certain terms/concepts. Let’s say that a subject’s belief state has content MC1 iff that state has properties achieving a threshold of at least 30 points, with points allocated thus:

Property A     +20 points
Property B      +15 points.
Property C      +20 points
Property D     -12 points

Notice there’s no one property possession of which is essential if a state is to qualify as having the content MC1. Suppose we similarly stipulate that a subject’s belief state has content MC2iff that state possesses properties achieving a threshold of at least 30 points, with points allocated thus:

Property D     +20 points
Property E      +15 points
Property F      +20 points
Property A     -12 points

Note that if a subject has a belief state with properties A and B, then, ceteris paribus, that state is rather more likely to have the content MC1 than it is the content MC2 (though it might yet turn out to lack content MC1 and possess content MC2 instead if it also possesses properties D, E and F while lacking C). Now suppose that while not all these properties involve causal links to behaviour, some do, namely A, C, D and F. Property A is that of causing behaviour B1 in situation S1, C that of causing behaviour B2 in situation S2, D that of causing behaviour B3 in situation S3, and F that of causing behaviour B4 in situation S4.

Having introduced these conceptual constraints on what it is to have beliefs with the contents MC1 and MC2, we can now see how natural selection might select not only for or against certain behaviours in certain situations, but also for or against these two belief contents. Suppose that exhibiting B1 in S1 and B2 in S2 is in each case adaptive, while exhibiting B3 in S3 or B4 in S4 is maladaptive. Then, other things being equal, natural selection will tend to favour subjects holding beliefs with content BC1 over those holding beliefs with content BC2. So, given conceptual constraints on belief content of the sort outlined above, natural selection need not be blind to belief content. It will select for some contents over others, depending on the kinds of behavioural output with which they are conceptually associated.

So now suppose that constraints of this sort exist on the content of beliefs of the sort with which we are already familiar – contents such as that there is water five miles south, that Paris is the capital of France, and so on. Suppose these constraints conceptually link content with behavioural output. No doubt these constraints will be more complex than in my illustration. But, supposing they exist, with what sort of behaviour is a given content likely to be conceptually linked?

Suppose that, solely in combination with a very strong desire for water, a certain belief/neural structure typically results in a subject walking five miles to the south. Surely, if there are such conceptual links between behaviour and content, then the property of causing that behaviour in that situation will be among those properties lending, as it were, a considerable number of points towards that belief/neural structure achieving the threshold for having the content that there’s water five miles south. Other things being equal, that belief/neural structure is much more likely to have the content that there’s water five miles south than it is, say, the content that there’s isn’t water five miles south, or that there’s water five miles north, or that there’s a mountain of dung five miles south, or that Paris is the capital of Bolivia. Perhaps the belief/neural structure in question might yet turn out to have one of these other contents. We can know a priori, solely on the basis of conceptual reflection, that, ceteris paribus, the fact that a belief/neural structure causes that behaviour in that situation significantly raises the probability that it has the content there’s water five miles south. Among the various candidates for being the semantic content of the belief/neural structure in question, the content that there’s water five miles south will rank fairly high on the list.

But now notice that, given such conceptual constraints exist, unguided evolution will indeed favour true belief. Consider our thirsty human. He has a strong desire for water. He’ll survive only if he walks five miles south to where the only reachable water is located. He does so and survives. Suppose this adaptive behaviour is caused by a certain belief/neural structure. If there are conceptual constraints on belief content of the sort I envisage, and if a belief/neural structure in that situation typically causes subjects to walk five miles south, then it is quite likely to have the content that there’s water five miles south – a true belief. Were our thirsty human to head off north, on the other hand, as a result of his having a belief/neural structure that, in that situation, typically causes subjects to walk five miles north, then it’s rather more likely that the belief in question is that there’s water five miles north. That’s a false belief. Because it is false, our human will die.

So if beliefs/neural structures cause behaviour, and if there are conceptual constraints linking content with behavioural output of the sort I am suggesting, then natural selection won’t just favour adaptive behaviour. It will also favour true belief.

True, there are other candidates for being the content of the belief that causes our human to head off in the right direction. Perhaps some are more likely candidates. Suppose our human has no conception of miles or south. Then, instead of the belief that causes his behaviour having the content that there’s water five miles south being, perhaps it has instead the content that there’s reachable water thataway. However, notice that, either way, the content of the belief in question is still true.

To sum up: what Plantinga overlooks, it seems to me, is the possibility that there exist conceptual constraints on content of the sort outlined here. The suggestion is that if beliefs are neural structures, then it is at least partly by virtue of its having certain sorts of behavioural consequence that a given neural structure will have the content it does. If such constraints exist, then one cannot, as it were, plug any old belief content into any old neural structure, irrespective of that structure’s behavioural output. We run up against certain conceptual obstacles. If such conceptual constraints exist, it appears natural selection will favour not only adaptive behaviour, but also true belief.

Neither materialism nor functionalism not presupposed

Note that to suggest that such conceptual constraints on belief content exist is not, of course, to presuppose that beliefs are neural structures or that materialism is true. Let’s suppose, for the sake of argument, that substance dualism is true and that beliefs are not neural structures, but soul-stuff structures. Then my suggestion is that we may be able to know on the basis of a little conceptual reflection that if beliefs are soul-stuff structures, and if a given soul-stuff structure in combination with a strong desire for water typically results in subjects walking five miles south, then ceteris paribus that soul-stuff structure is quite likely to have the content that there’s water five miles south, and is rather unlikely to have the content that there’s water five miles north.

Also note that to suggest that there exist conceptual constraints on content given behavioural output is not to presuppose the truth of some reductionist, materialist-friendly theory of content of the sort that Plantinga has gone on to attack[2], such as Dretskian indicator semantics or functionalism. Perhaps belief contents cannot be exhaustively characterized in terms of their causal connections to input and output, as some functionalists claim. That’s not to say that there are no conceptual constraints at all on what the content of a given belief is likely to be, given the causal links that belief has to behaviour. Perhaps there are. Consider my illustration involving contents MC1 and MC2. I stipulated that not all of the weighted properties involved causal connections with behavioural output. Properties B and E involved no such connections. Indeed, B and E might even be properties presenting an insurmountable obstacle to any attempt to characterize the content of MC1 and MC2 in wholly functionalist terms. It wouldn’t follow that there are no conceptual constraints at all on beliefs having content MC1 and MC2 given their behavioural output. Clearly there are.

So, while the combination N&E&RM might be self-defeating, it seems that the addition of CC – the thought that there are conceptual constraints on content of the sort I envisage – produces a combination of beliefs that is not, after all, self-defeating. It appears there are ways of embracing naturalism that sidestep Plantinga’s charge of incoherence.

How natural selection can still favour true belief even if SE is true
In fact, it turns out that in order to sidestep Plantinga’s charge of incoherence our naturalist doesn’t even have to sign up to RM. The addition of CC to R&E aloneis sufficient to rescue naturalism from self-defeat, as I’ll now explain.

As we saw above, Plantinga’s initial worry about naturalism is that it makes semantic epiphenomenalism (SE) likely. He supposes the naturalist will hold that beliefs will be neural structures possessing both neurophysiological (NP) properties and semantic properties. However, Plantinga thinks that only the NP properties of those structures will then have any causal effect behaviour. A given belief would have the same causal impact on behaviour if it had the same NP properties but different semantic properties (or indeed no semantic properties at all).

So now let’s suppose our naturalist actually bites the bullet and accepts SE – they actually accept that the semantic properties of a given neurological structure have no causal impact on behaviour. Plantinga supposes such a naturalist is then compelled to accept that, because natural selection can only select for adaptive behaviour and the properties that cause it, so natural selection cannot select for the semantic property of being true. However, it turns out that Plantinga’s assumption that natural selection favours only adaptive behaviour and the properties that cause it is unwarranted. It turns out, somewhat surprisingly, that, given CC, natural selection will still favour true belief even if the property of being a true belief has no causal impact on behaviour.

To see why, let’s return again to our thirsty human. He has a certain belief/neural structure that, in conjunction his strong desire for water, causes him to walk five miles south. Given the kind of conceptual constraints outlined above, a belief/neural structure that causes a subject to walk five miles south given a strong desire for water will quite probably have the content there’s water five miles south. Notice it really doesn’t matter whether or not that belief/neural structure causes that behaviour by virtue of its having that semantic property. It remains the case that, if that sort of neural structure for whatever reason has that behavioural consequence, then, given CC, it quite probably has the content there’s water five miles south and probably doesn’t have the conceptual content there’s water five miles north. It matters not whether SE is true: the behavioural output of a belief/neural structure still places constraints on its likely content.

But then, given such conceptual constraints, natural selection is likely to favour true belief even if SE is true. Odd though it might seem, given CC, natural selection will favour true belief even if the property of being a true belief has no causal impact on behaviour. This is a rather significant discovery, even setting aside its relevance to Plantinga’s EAAN.


Of course, I am merely making a suggestion. Perhaps there exist no such conceptual constraints on belief content of the sort I envisage. Still, the view that there are such constraints on content is widespread (it is by no means restricted to those wedded to some form of logical behaviourism or functionalism, for example). It seems intuitively obvious to many of us that belief content is not entirely conceptually independent of behavioural output: that one cannot plug any old belief content into any old neural structure (or soul-stuff structure, or whatever) entirely independently of its behavioural output. That intuition would appear to be, philosophically speaking, largely pre-theoretical. It cannot easily be dismissed by Plantinga as a product of some prior theoretical bias towards naturalism and/or materialism.

My central conclusion, then, is this. Plantinga has not shown that naturalism in combination with the theory of evolution is unavoidably self-defeating. It appears that an adherent of N&E who also supposes CC is true can, after all, quite reasonably suppose they have evolved reliable cognitive faculties.

In response, Plantinga might now try to show that if naturalism is true, there are unlikely to be conceptual constraints on semantic content of the sort I describe. Perhaps he can do this. If so, then the EAAN might be resurrected. But as things stand, it is not naturalism that is defeated, but the EAAN.[3]

Heythrop College, University of London
London W8 5HN


Beilby, J. (ed) 2002. Naturalism Defeated? Essays on Plantinga's Evolutionary Argument Against Naturalism. Ithaca: Cornell University Press.

Plantinga, A. Forthcoming. Content and Natural Selection. Philosophy and Phenomenological Research. Currently available on-line at Plantinga’s departmental webpage:
Page numbers refer to the on-line version.

[1] I here follow the most recent version of the EAAN as presented in Plantinga (Forthcoming).
[2] See the latter part of Plantinga (Forthcoming).
[3] My thanks to Alvin Plantinga for his generous comments on earlier drafts.

Monday, 24 December 2012

NCAA Investigators: are they like prosecutors or cops?

Geoff Rapp has some thoughtful comments on this question in a story in today's Los Angeles Times.  Here's an excerpt:
"The NCAA does not operate like a prosecutor's office or a police department where there are clearly understood constitutional limits," said Geoffrey C. Rapp, a University of Toledo law professor and editor of the Sports Law blog. "They don't have a structure in place to ensure consistency."
For more, click here.

Sunday, 23 December 2012

Lance Armstrong and what constitutes fraud

ESPN reports that Britain's Sunday Times has sued Lance Armstrong, seeking to recover more than 1 million pounds (more than $ 1.6 million) that the paper paid to Armstrong to settle a prior defamation action that Armstrong brought against the paper for repeating allegations that Armstrong doped. The theory is that Armstrong initiated "baseless and fraudulent" proceedings by alleging that doping allegations were false and insisting in settlement negotiations that he had never doped.

UK law is obviously quite different than US law. Still, I cannot imagine this suit can work. By bringing the suit, Armstrong simply put the paper to its burden of proving its allegations were true (a key difference between UK and US defamation law, where the plaintiff must prove falsehood). He was free to deny the truth of those allegations, both in bringing the suit and engaging in settlement negotiations.

Given my First Amendment views, I am no fan of British defamation law or of worthless defamation suits that are designed to intimidate the press. But the notion that such suits, and their settlement, constitute actionable fraud seems equally wrong.

Thursday, 20 December 2012

Mutual Options in MLB Player Contracts

Wendy Thurm over at FanGraphs has written an interesting story looking at the use of mutual options in MLB player contracts.  As she notes, the mutual option only vests if both the player and the team agree to extend the contract for another season.  Not surprisingly, Wendy finds that these clauses have rarely been exercised by both parties, as usually one of the two sides determines it would be more advantageous to walk away from the agreement.  Nevertheless, she identifies several reasons why it may make sense for such a provision to be included in a player's contract.

Check out the full piece here.

Wednesday, 19 December 2012

A Good Week for Sports Law

First, a new law employment report finds: "Legal jobs in the sports industry are red-hot right now". Any good news on legal employment is good news, but it's particularly encouraging to see it concern our area of law -- especially for those of us who teach students hands-on job skills in preparation for entering this awesome field.

Second, Aaron Zelinsky, author of two excellent sports law-related Yale Law Journal articles -- The Supreme Court (of Baseball) and The Justice as Commissioner: Benching the Judge Umpire Analogy -- has been chosen to become a United States Supreme Court clerk.  Aaron is also a contributor to Sports Law Blog, having authored Three Strikes for the National Labor Relations Act, among other contributions.

For those of you who don't know, it's almost impossible to become a Supreme Court clerk.  I don't know the exact percentage of applicants who get a slot, but it's probably less than 1%.  Just as revealing: many of whom that are not picked are themselves outstanding candidates.  To have a sports law author in this truly distinguished group is a positive sign for the scholarship we produce.  Aaron is possibly/probably the first sports law author to become a U.S. Supreme Court clerk.  It was only a matter of time and it's great that Aaron is the one to do it.

And of course, this good week of sports law news follows The Summer of Sports Law, as penned by the estimable Warren Zola.

And if by chance the Mayans prove right on Friday, at least sports law is going out with a bang!

Not just balls and strikes (redux)

I have returned to writing about the infield fly rule, an expansion of the short defense I wrote in October. Thinking about particular examples of infield fly situations (or non-examples) in the context of the full baseball rulebook brought me back to the judge/umpire/calling balls-and-strikes analogy. In particular, I come back to the argument (which I have made before) that one problem with the analogy is that it understates the complexity of the decisions that umpires have to make. And I keep returning to one historic play that demonstrates this complexity.

The Situation: (sorry not to have video to embed--it's really hard to find baseball footage online): Game 4 of the 1978 World Series between the Dodgers and Yankees; Dodgers leading 2 games to 1 and 3-1 with the Yankees batting in the bottom of the sixth. Reggie Jackson on first, Thurman Munson on second, one out; Lou Piniella batting. Piniella hits a low (ankle-high) line drive up the middle, to the left of Dodgers shortstop Bill Russell. Russell moves to his left, catches the ball at his shoe tops, drops it, picks it up as his body is continuing to move left, steps on second for the force out, then throws to first. Jackson had stopped running when he saw Russell initially catch the line drive and he is standing between first and second. As Russell's relay is coming, Jackson (imperceptibly) sticks out his right hip; the ball hits his hip and caroms into right field. Munson scores, Piniella is safe at first.

Several separate columns labeled this one of the five worst (or at least most controversial) calls in World Series or postseason history. Maybe. But look at the rules and facts the umpires had to determine on the fly:

1) Infield Fly: This is a potential infield fly situation (runners on first and second, less than two out). So the second-base umpire first had to determine that the ball hit was a line drive, to which the IFR does not apply, rather than a fly ball. Easy enough decision to make here--the ball clearly is a line drive and not easily playable--but the umpire at least must consider the rule in passing.

2) Intentionally Dropped Ball: Rule 6.05(l) provides that a batter is out and the ball is dead if an infielder intentionally drops a fair fly ball, including a line drive, where any force out is in effect. So the second base umpire had to determine whether Russell had intentionally dropped the ball to get a double play. He concluded it was not deliberate, presumably by reading where the ball was hit, how quickly and far Russell had to move to his left, and Russell's body language suggesting he was scrambling to pick the ball back up rather than being in control.

3) Interference: This is the one for which this play is remembered. Rule 7.09(f) provides that both the base runner and the batter are out and the ball is dead if a base runner "willfully and deliberately interferes" with a fielder in the act of fielding a batted ball with the "obvious intent to break up a double play." So the question is whether Jackson "willfully and deliberately" interfered with Russell's relay throw. The first base umpire decided he was not, presumably because Jackson was genuinely hung-up on the play. The runner need not move all the way out of the baseline as the throw is coming (they usually do as a matter of self-preservation).  It appears on slow-motion that Jackson did stick his right hip out as the ball approached, but the umpires did not have that luxury of breaking the play down that much.

Whether you think the call was right or wrong probably depends on your rooting interests--I was 10 years old and living in northern New Jersey at the time. My point is that the umpires actually had a huge amount to watch, process, and interpret. And it is far from a simple or robotic task.

Update: Someone found the play on YouTube for me. Here it is:

Tuesday, 18 December 2012

More on the NHL Lockout

Over the last few weeks, I've been corresponding with James Mirtle, one of the NHL reporter for the Canadian national newspaper the Globe and Mail, regarding the legal issues surrounding the NHL lockout.  Mirtle recently compiled this on-going discussion into a column analyzing the current legal status of the NHL labor dispute.  Here's an excerpt from the piece:
No. 2: Why would dissolving the union give the NHLPA any negotiating leverage if it’s widely held that the litigation they’re about to embark down is unlikely to ever reach its conclusion? Isn't this just another stalemate on top of an existing one?
Grow: “It's a really interesting question (and merits a longer answer than I originally anticipated). Disclaiming interest almost certainly would have given the players significantly more leverage had it been done back in October. If they had dissolved the union at that time, there would still have been plenty of time for a court to issue a preliminary ruling on the legality of the lockout before the entire season was endangered. And had the court actually gone so far as to enjoin the lockout, it obviously would have been a huge win for the players. 
“Now, though, there most likely isn't enough time left to get a preliminary ruling before the league cancels the season (although it would be interesting to see what the league would do if a court enjoined the continuation of the lockout in, say, late-February). 
You can read the entire piece here.  Meanwhile, for more regarding the NHL lockout, check out Sports Law Blog's prior commentary on the dispute.

Monday, 17 December 2012

The art and theatre of arguing with umpires

One thing that makes baseball unique is that managers and coaches are allowed to come onto the field for some purposes, including arguing with the umpires (I've always believed this is one reason why baseball coaches, alone among all other coaches, where the same clothes as the players). Here is a fun piece from (H/T: Deadspin) detailing what managers actually are saying during those seemingly heated nose-to-nose shouting matches. Some of it is pretty funny.

Students - make a 1 min film and win £9K

Just receievd this as an author of a OUP Very Short Introduction book (Humanism).

Dear All

As a Very Short Introductions author, I am writing to let you know of a large UK VSI competition in partnership with the Guardian newspaper.

As part of a wider campaign to promote the series to students, this ‘Very Short Film’ competition carries an eye-catching £9,000 first prize, which will pay the winning student’s tuition fees for a year. Students will be asked to produce a one-minute film about a subject close to their hearts. From 1st October through to Christmas, the Guardian will be showcasing the competition and video entries on its recently launched Guardian Students site. The closing date is 31st December, with a live final in March 2013 to be held in London.

More information can be found here:

As many of you are lecturers, teachers, and professors in your fields, we felt it would be a good idea to inform as many of our VSI authors as possible so we can spread the word. This is a brilliant opportunity to promote the series, and the publicity surrounding the competition will be a great platform for the books. If you would like to support this exciting campaign, please do get in touch for further information. We can send you a link to add to your email signature and we also have some leaflets and posters available.

Kind regards


NHLPA Begins Process to Disband

Building off Nathaniel Grow's excellent post from yesterday, various sources report that the NHL players have indeed begun voting to allow their union's executive board to file a formal "disclaimer of interest." This disclaimer of interest would end the union's collective bargaining relationship with the NHL -- making it easier for the players to bring an antitrust claim against the league.

If the NHL players vote favorably, it would mark the fourth time in sports-labor history that a players union has gone this route. The first was on November 3, 1989, when the NFLPA voted to renounce collective bargaining and then filed a labor organization termination notice with the U.S. Department of Labor -- leading to the Powell III, McNeil and White lawsuits. The second and third involved the NFLPA and NBPA -- both in 2011.

For more on past use of this strategy and its outcomes, see my article from this morning on Forbes SportsMoney.

Sunday, 16 December 2012

A Modest Proposal

Let Congress solve the NHL labor dispute and let the NHLers solve the impasse on the fiscal cliff and gun control, since neither seems capable of solving their own problems.

The NHL Files a Preemptive Lawsuit Against the NHLPA

Friday was a busy day in the on-going NHL lockout (for Sports Law Blog's prior coverage of the dispute, click here).  In the early afternoon, news broke that the NHLPA's executive committee voted on Thursday night to seek the full union membership's authorization to file a disclaimer of interest, thereby permitting the committee to dissolve the union in order to file an antitrust lawsuit against the league challenging the legality of the lockout. 

Then a few hours later, the NHL announced that it had filed a lawsuit against the NHLPA in federal district court in New York, preemptively seeking a declaratory judgment that its lockout does not violate the law, and that any dissolution of the union would be ineffective.  The NHL's complaint is available here (courtesy of Canada's Globe and Mail).  The case has been assigned to Judge Paul Engelmayer, a 2011 Obama appointee. Due to his short tenure on the bench, Judge Engelmayer doesn't have much of a track record in either labor or antitrust suits, making him a bit of a wild card for this case.

At the same time, the league also filed an unfair labor practice charge against the union with the National Labor Relations Board, asserting “that by threatening to ‘disclaim interest,’ the NHLPA has engaged in an unlawful subversion of the collective bargaining process and conduct that constitutes bad faith bargaining.” 

The NHL's court complaint is strikingly similar to the one filed in August 2011 by the NBA against the NBPA, and at times copies much of the NBA's earlier language (this fact is not particularly surprising given that both leagues are represented by the Proskauer Rose and Skadden Arps law firms).  As with the NBA, the NHL argues that any decertification or disclaimer of interest by the NHLPA would be an impermissible bargaining tactic and little more than a sham.  The league also argues that such a maneuver would be ineffective under federal labor law, and therefore would not give players the right to pursue antitrust litigation against ownership under federal law. 

The NHL's complaint also copies the NBA's most unique claim, asserting that if the union does in fact dissolve then any existing player contracts would become null and void.  Basically, the league's argument is that because the CBA specifies most of the provisions in the NHL's standard player contract, any repudiation of the CBA by the players (e.g., by dissolving their union) would terminate all existing contracts governed by the CBA.  This is a completely novel legal theory -- no court has ever endorsed the argument -- but one that could nevertheless cause players with long-term contracts some hesitancy before agreeing to dissolve the union.  On the other hand, talented young players who are otherwise years away from free agency may not mind having their contracts voided, as it could theoretically give them the ability to sign new agreements on the open market.

Despite the many similarities, there are some differences between the two complaints.  First, the NHL makes use of an argument that Marc Edelman anticipated a couple weeks ago, asserting that the league operates in a "worldwide relevant geographic market" (see paragraphs 13 and 99-101).  In other words, the league is basically arguing that it competes with other foreign leagues for talent and that professional hockey players thus have employment opportunities all across the globe.  That is potentially significant because in order for the NHL players to get an injunction blocking the lockout they must be able to show "irreparable harm."  The fact that hockey players can potentially go to Europe and play professionally for a significant salary reduces the injury inflicted by the NHL's lockout, perhaps making it less likely that the court would agree to enjoin the lockout.  That was true in the case of the NBA to some extent as well, but probably provides the NHL with a stronger argument given the more comparative salary levels abroad in professional hockey. 

Another difference between the NHL's complaint and the one filed by the NBA in 2011 is the NHL's extensive use of recent quotes from professional hockey players to support the league's argument.  Specifically, the NHL cites various news reports in which players admit they are actively considering dissolving the NHLPA (pages 20-21) and which suggest that the maneuver would be part of the union's negotiating strategy (pages 24-26).  The complaint also cites recent statements from players expressing strong support for the union's leadership (pages 26-27), lending further credence to the NHL's argument that a disclaimer of interest would not reflect any dissatisfaction with the union, but instead simply be an improper bargaining ploy.

Finally, the NHL and NBA complaints differ in one other significant respect.  Whereas the NBA was able to point to specific instances in the past in which the NBA players had threatened to dissolve their union during collective bargaining, the NHL was unable to point to any such history by the NHLPA.  As a result, the league had to argue that the hockey players were likely to reform a union quickly after reaching a satisfactory agreement based on the prior behavior of NFL and NBA players.  Along these lines, the NHL notes that the NHLPA is represented by James Quinn, the same attorney who has represented the NFLPA and NBPA in the past.  While the NHL is likely correct that players would opt to reform the NHLPA should they reach a satisfactory settlement with the league, I suspect the court will nevertheless be a little hesitant to hold the recent experiences in the NFL and NBA against the NHLPA since it is a wholly separate union with a different membership and management.

Ultimately, the NHL's decision to file suit was not particularly surprising.  It appears that the league had had this complaint prepared for some time, and was simply waiting for the NHLPA to take the first formal step towards dissolving the union before filing suit.  By striking first, the NHL was able to pick the forum it believed was the most favorable to its case.  As Michael McCann has previously noted, precedent in the Second Circuit appears to be favorable to the league on these matters.  It will be interesting to see if this move further antagonizes players, or if it just proves to be a minor bump on the road towards a new agreement.

Saturday, 15 December 2012

Update on New Jersey Sports Betting Litigation

The on-going litigation involving New Jersey's plans to allow licensed sports books recently picked up steam.  Multiple pleadings (with dozens of exhibits attached thereto) were filed last week.  In the course of finishing up a 30,000+ word law review article that is tangentially related to the lawsuit, I pored through hundreds of pages of documents from the case.  My review was revealing (despite the extensive redaction).  I shared some of my thoughts a couple of days ago with David Purdum of SportingNews.  A portion of our discussion can be found here.  Oral arguments on the standing issue take place on December 18.  

Friday, 14 December 2012

Doing the waive at the ballpark

Yankees Ticket PolicyVia Nathaniel Grow (who teaches Legal Studies in the business school at Georgia): The image at left (click to enlarge) is a page from the October issue of Yankees Magazine and features the team's ticket policy. Note the underlined language in the inset at the top--fans acknowledge that team policies banning foul/abusive language and obscene/indecent clothing do not violate their free speech rights and they waive any free-speech objections to those policies or their enforcement.

I find it interesting that the team is now framing its attempts to regulate fan expression explicitly  in free-speech terms. It suggests their recognition of my core argument--that fan expression, even profane or objectionable fan expression, is subject to First Amendment protection and analysis. This policy is an effort to wiggle away from that legal reality. Of course, the idea of "acknowledg[ing]] and agree[ing]" that something does not violate one's rights when it probably does is pretty Orwellian. It goes well beyond a waiver of a claim into a compelled agreement to an alternate reality.

More fundamentally, even as a straight waiver, it cannot possible be enforceable. Assume for the moment the Yankees are a state actor in managing the ballpark--I argued they were with respect to the old Yankee Stadium, which was owned by the City of New York, although the analysis changes for the new ballpark, which is privately owned but (largely) publicly built.  The government cannot condition access to a public forum on a person waiving their right to challenge constitutionally suspect limitations on their speech in that forum (imagine a parade permit saying "As a condition of accepting this permit, you agree that police can halt the parade if your speech is objectionable"). Nor is this saved by the fan's compelled acknowledgement that "such time, place and manner of [sic] the restrictions are reasonable." While it is telling that the team is using those precise words, a TPM restriction must be content-neutral; a ban on foul language and indecent clothing is so obviously not content-neutral.

Finally, I do note that the waiver only applies to dirty words and dirty clothes and not to other possible free-speech violations, such as compelling fans to remain standing by their seats for "God Bless America" or other forced patriotism. I wonder if that is an oversight or if the team has genuinely given up on those efforts.

Thursday, 13 December 2012

Sports and Federal Jurisdiction

I have not read this yet, but I wanted to flag a new article in the Utah Law Review by Michael H. LeRoy (Illinois), titled Federal Jurisdiction in Sports Labor Disputes. He argues that federal courts (especially federal district courts) have been improperly hearing (and issuing injunctions in) Sherman Act claims by athletes and sports unions, claims that properly are subject to collective bargaining and thus should be barred by the Norris-LaGuardia Act, which strips federal courts of jurisdiction to enjoin strikes or other labor activity.

This is the first time I have seen anything on the intersection of sports law and federal jurisdiction, one of the areas I write about. Here is the full abstract:

My database of 83 published court opinions from 1970-2011 shows that pro players used conflicting federal laws to improve their labor market mobility. They formed unions under the National Labor Relations Act (NLRA), and bargained collectively with leagues. But they often failed to negotiate significant changes to league rules that bound them perpetually to a team. Consequently, they challenged these practices as restraints of trade under the Sherman Antitrust Act. Thus, players used a dual engagement strategy of bargaining with leagues under the NLRA and negotiating antitrust settlement agreements under the threat of treble damages.

My study exposes a recurring jurisdiction problem that Congress addressed 80 years ago — the inappropriate role of antitrust courts in labor disputes. Ironically, companies used the Sherman Act, a law meant to curb corporate monopolies, against unions. By 1914, Congress enacted a “labor exemption” in the Clayton Act to protect workers from this misuse of antitrust law. But the labor exemption was vaguely phrased. After judges continued to order injunctions against unions, Congress angrily stripped their jurisdiction in the Norris-LaGuardia Act. This history sprang to life in my study. Some courts recognized the conflict between antitrust and labor law — and therefore denied jurisdiction to player complaints, or ruled that labor restraints are immune under the Clayton Act exemption. But these courts were outnumbered by those that intervened under the Sherman Act in these labor disputes.

This sets the context for my key findings. In 21.7% of their cases, district courts issued antitrust injunctions, but rarely denied a motion for this order (5.0% of their cases). But appellate courts behaved differently: They stayed or vacated injunctions in 34.8% of their cases, but affirmed only one injunction (4.3%). In a second key finding, district courts rejected the antitrust labor exemption, a league defense, in 15.0% of their cases, and granted it in only 8.3% of their cases. However, appellate courts differed, applying this defense in 26.1% of their cases and rejecting it once (4.3%). Viewed together, the statistics show that district courts treated these disputes as antitrust issues amenable to federal jurisdiction, while appellate courts strongly disagreed by viewing them as labor disputes that were inappropriate for their jurisdiction.

My study yields three conclusions. First, Congress did not want the Sherman Act to supply one side in a collective bargaining relationship with more bargaining chips to play against the other side. Unfortunately, district courts ignored congressional intent to stay out of labor disputes which players dressed-up as antitrust problems. Second, federal courts unwittingly contributed to labor disputes by creating uncertainty as to whether bargaining over league-imposed labor market restraints were governed by labor or antitrust law. Courts were therefore partly to blame for the economic interruptions that grew out of sports labor disputes in 2011. Finally, I observed a deep conflict between district and appellate courts. Until district judges restrain their sympathies for players, these judges will be integral actors in professional sports labor disputes. And unless these judges learn from their appellate brethren, they will risk the institutional disrepute that befell the federal judiciary in the early twentieth century.


Wednesday, 12 December 2012

Do You Believe He Can Fly? Royce White and Reasonable Accommodations Under the Americans with Disabilities Act for NBA Players with General Anxiety Disorder and Fear of Flying

If an NBA player can't fly, how can he play in the NBA?  On SSRN, I have an updated legal analysis for a forthcoming article in the Pepperdine Law Review on this topic. Here's an excerpt:
The Rockets, however, have no ability to modify its 82-game regular season schedule. Like every other team’s schedule, the Rockets’ schedule is determined by the league in accordance with league policies and CBA protections for players. The league sets the date, time and location for the 1,230 games played each season by the 30 teams. In setting teams’ schedules, the league tries to treat every team as equally as possible. For instance, by rule, each team plays two home games and two away games against each other team in its division; each team plays three or four games against other teams in its conference; and each team plays one home game and one away game against each other team in the opposing conference. There are myriad other policies, including prohibition of games played on three consecutive nights, prohibition of games played on days when players have travelled across two time zones, and restrictions on games played on holidays. Availability of arenas, many of which are shared with NHL teams and host music concerts and other sporting events, is also considered. The Rockets, in other words, cannot unilaterally modify its schedule so that it accommodates White’s anxiety disorder and fear of flying. 
Expecting the NBA to modify the schedule to accommodate one of the league’s 450 players also seems unreasonable. The complexity of scheduling would make such a request extremely difficult. Even assuming such a request is technically feasible, honoring it might undermine fairness and player protections. For instance, if the Rockets are able to play more home games than other teams, it would give them a significant advantage. The same would be true if the Rockets received an easier travel schedule. Plus, what would happen if the Rockets traded White to another team? Would the new team’s schedule be changed and the Rockets schedule reverted back to normal?
To read the rest, click here.

Sunday, 9 December 2012

On the other hand . . .

While I generally agree with Rick about the unseemliness of the college football (and basketball) coaching carousel, my school is experiencing the flipside as we speak, illustrating why coaches do what they do and need to get the best deal at the best job they can.

A year ago, FIU football coach Mario Cristobal was on a two-year run that included a conference championship, some wins over BCS schools, and consecutive bowl games. Several years ago, just before or just after Cristobal took over the program, it was ranked as the next-to-worst program in Division I-A (and was on probation). Cristobal received strong consideration for the Pittsburgh job and was apparently all set to take the Rutgers job (his attorney was negotiating terms). But he instead decided he wanted to stay in Miami (where he was born and raised) and at FIU. You can call it loyalty, although he was well-compensated for staying. But he did stay to try to continue building his program.

Last week, after an unexpectedly poor season that included many injuries (including to the starting quarterback and running back) and four close and/or overtime losses (including one in which a receiver was tackled inches short of the goal line on the last play of the game), Cristobal was fired. FIU has pretty much gotten killed for the decision, which leaves the school with the glaring question of who is going to want the job--both given the limitations of the FIU job, as well as the unceremonious way Cristobal's tenure ended.

The point is that while coaches are trying to move around and up, they face the uncertainty of being subject to termination at will (yes, they still get paid, but that is not the same thing as job security). So I am less convinced that there is anything wrong with a coach dumping his current school for something better, because his home school can just as easily dump him at anytime. As the former AD at South Alabama said in The Times article, "If you have an opportunity to move, you move. . . .You have to."

Johnny Football

Last night, Texas A&M quarterback Johnny Manziel won the Heisman Trophy, making him the first freshman (albeit a "redshirt" one) to do so in the history of the award.  His situation highlights the restrictions placed on college athletes, without a union representing their best interests, by both the NFL and NCAA.

1. Texas A&M plays in the 2013 Cotton Bowl on January 4th v. Oklahoma.
a. Payout to University is projected to be $ 7.35M.
b. Manziel, and everyone on a team playing in a post-season bowl game, are allowed to receive gifts up to $550 in cash value per NCAA rules.

2. Manziel is unable to enter NFL draft due to draft eligibility rules. [See Maurice Clarett.]
a. Would be eligible for 2014 draft, since he will be three years removed from his high school graduation—2011 (redshirt), 2012 (freshman), 2013 (sophomore year).
b. Note: As a future member of the NFLPA, Manziel had no official voice in the union as they negotiated to restrict player entry into the NFL draft with an age eligibility requirement collective bargaining with the league.  [Again, see Maurice Clarett.]

3. Texas A&M is able to market and sell any merchandise it wants, using the name and image of Johnny Manziel.
a. Note: the University is working with Manziel and his family to obtain the trademark “Johnny Football” even if Manziel can’t profit off of it now. [Link]

4. Texas A&M, the SEC, and broadcast stations will be able to market his appeal to corporate sponsors, raising rates and generating revenue for their broadcasts.

5. In order to retain his NCAA eligibility, Johnny Manziel is unable to obtain any financial benefit off his success as a clear violation of NCAA amateurism rules.

Seem fair to you?

'Tis the Season to Breach Your Contract

The poaching season is finally here!  John Grupp and Scott Brown at the Pittsburgh Tribune-Review discuss whether anything can be done to stop college football coaches from jumping ship.

Deck the coach with barrels of money,
Fa la la la la, la la la la.
Tis the season to breach your contract,
Fa la la la la, la la la la.
Don we now our new apparel,
Fa la la, la la la, la la la.
Troll the ancient tampering carol,
Fa la la la la, la la la la. 

Thursday, 6 December 2012

Bertrand Russell: Names and descriptions

(From my book The Great Philosophers)

Our focus is on Russell’s theory of descriptions, and his view on how ordinary proper names function. Russell considered his theory of descriptions to be one of his most important contributions to philosophy.

A puzzle about existence

Let’s begin by sketching out an ancient and infernal puzzle: how do proper names – such as John, Paris or Jupiter – function? What role do they play in those sentences within which they appear? An obvious suggestion would be that they refer. Take the sentence:

John is tall.

We use ‘John’ to refer to a particular individual. We then assert something about this individual – namely, he is tall. The claim is true if the individual to whom we refer is tall, and false if he isn’t. Another apparent use of a referring expression is:

The tallest building is in Kuala Lumpur.

Here, it’s tempting to suppose we use the description ‘the tallest building’ to refer to a particular building. We then claim that the building in question is in Kuala Lumpur. Our claim is true if, and only if, the building referred to is in Kuala Lumpur.

This is a natural way of understanding how both names and descriptions function, but it famously generates the baffling puzzle of empty reference, with which philosophers continue to grapple: If names and descriptions are referring expressions, how can we succeed in using them to say something true, when they do not in fact succeed in referring to anything?

To illustrate, look at these examples:

        The golden mountain does not exist,


        Pegasus does not exist.

Both sentences are true. However, if the job of a name or description within each sentence is to refer, how can they be true? In each case there is nothing for the name or description to refer to. But then the name or description cannot do its linguistic job. With no reference, surely the sentence might as well contain a gap where the name or description appears, like so:

...does not exist,

which is obviously not a sentence, let alone a true one.

An attractive feature of Russell’s theory of descriptions is its success in explaining how the sentence, ‘The golden mountain does not exist’, can be true (it solves a number of other puzzles too, which we won’t explore here).

Russell’s analysis of descriptions

According to Russell, when we use a description, ‘the F’, in a sentence like so:

The F is G,

we are actually making three distinct claims. We are, in effect,

• At least one thing is F;
• At most one thing is F; and
• Whatever is F is G.

To illustrate, suppose I say, ‘The queen of Denmark is in Brazil.’ According to Russell, I make three distinct claims. First, I claim there is a queen of Denmark. I assert that at least one thing is queen of Denmark. However, I don’t just claim that there exists a queen of Denmark – use of ‘the’ indicates that whoever is queen of Denmark is uniquely queen of Denmark. So, I am also claiming that, at most, one thing is queen of Denmark. Finally, I claim that whoever is queen of Denmark is in Brazil.

Russell here offers us an analysis of a sentence containing a description. The surface appearance of the sentence suggests it is used to make a single claim. According to Russell, appearances are deceptive – the surface appearance disguises the sentence’s true ‘logical form’. We are actually dealing with a conjunction of three distinct claims. A little analysis reveals this hidden logical structure.

An interesting feature of Russell’s analysis of sentences containing descriptions is that it entails descriptions are not referring expressions. To see why, let’s take a brief look at another sort of expression – the quantifier. Consider this expression:

…is happy.

Obviously this is not a sentence. However, we can turn it into a declarative sentence by inserting a referring expression into the gap. So, if I refer to a particular person as John, I can slot ‘John’ into the space, thus:

John is happy.

This sentence will be true if and only if the individual I refer to is happy. Another kind of expression could also be slotted in to produce a declarative sentence. Consider these quantifiers:

No one

Instead of referring to a specific individual, they talk about quantities. The sentence:

Someone is happy,

for example, says that the number of individuals who are happy is at least one.

No one is happy,

on the other hand, says that the number of individuals who are happy is zero.

It’s worth emphasizing that quantifiers are not referring expressions. To say, ‘No one is happy’ is obviously not to refer to anyone at all. Nor do I refer to anyone using, ‘Someone is happy’. For the latter to be true, it doesn’t matter which individual is happy, so long as someone is. There is an obvious contrast here with, ‘John is happy’. If ‘John’ refers to a specific individual, then what I say will be true only if that individual –
the one referred to – is happy. Whether anyone else happens to be happy is irrelevant.

Russell’s solution

You may have noticed that Russell’s analysis of ‘The F is G’ involves quantifiers (‘at least one thing’ and ‘at most one thing’ are obviously quantifiers). For the three claims to be true, all that is required is that something be uniquely F, and that whatever is F also be G. It doesn’t matter what is uniquely F and also G, so long as something is. In other words, no reference is made to any specific individual. So according to Russell, descriptions such as ‘the queen of Denmark’ and ‘the tallest building’ are not, after all, referring expressions. The surface appearance of language deceived us into supposing that they were.

Now let’s return to the puzzle of explaining how ‘The golden mountain does not exist’ can be true. How do we apply Russell’s theory here?

Well, that sentence is just the negation of:

The golden mountain exists,

which, according to Russell, says:

1. At least one thing is a golden mountain; and
2. At most one thing is a golden mountain.

(Note that we do not add, ‘Whatever is a golden mountain exists’, as (1) and (2) together already assert that there exists exactly one such mountain.)

Russell’s analysis of ‘The golden mountain does not exist’, therefore, is:

It is not the case that:
1. At least one thing is a golden mountain; and
2. At most one thing is a golden mountain.

Because (1) is false (there are no golden mountains), so the original sentence comes out as true. Our puzzle was to explain how, ‘The golden mountain does not exist’ could be true. Russell’s theory allows us to solve that puzzle.

Russell on meaning

Russell’s theory of descriptions allows him to solve a second puzzle generated by a further assumption concerning sentences such as, ‘The golden mountain does not exist’.

The meaning of a referring expression is just the thing to which it refers.

For example, if ‘John’ refers to a person, then that person is the meaning of ‘John’. Russell accepts this, supposing that, for referring expressions, meaning equals reference.

Of course, if this simple theory of meaning is correct, and if the description ‘the golden mountain’ is indeed a referring expression, then not only is it puzzling how the sentence,

The golden mountain does not exist,

can be true, it is equally puzzling how it can succeed in saying something meaningful – for it contains a meaningless expression.

By applying his theory of descriptions, Russell shows how the sentence could still be meaningful even if there are no golden mountains. Russell retains the theory that meaning equals reference, but abandons the theory that descriptions are referring expressions.

However, the theory that meaning is reference is dubious. Many contemporary philosophers of language reject it. One of the most important critics of the theory is Ludwig Wittgenstein (see page 156), who suggests that, rather than thinking of meaning as reference, it is usually more helpful to think of meaning as use . Clearly, a name or description might still have a use even if it lacks any reference (‘Santa Claus’, for example, has a clear use, despite the fact that we don’t use it to refer to anyone). Notice that, if meaning equals use, then we don’t need Russell’s theory of descriptions to explain how, ‘The golden mountain does not exist’ can be meaningful (though perhaps we still need it to explain how the sentence can be true).

Ordinary proper names

A puzzle remains. We have explained how, ‘The golden mountain
does not exist’ can be true, but we have not yet explained how, ‘Pegasus does not exist’ can be true. ‘Pegasus’ is not a definite description, but a proper name. So Russell’s theory cannot directly be applied. How does Russell solve the puzzle here?

As commonly interpreted (not every philosopher interprets Russell in this way), Russell solves this puzzle by suggesting that ordinary proper names are, in effect, definite descriptions in disguise.

Suppose that ‘Pegasus’ is synonymous with the description, ‘the winged horse’. Then the sentence, ‘Pegasus does not exist’, has the same meaning as, ‘The winged horse does not exist.’ So we can now apply Russell’s theory of descriptions.

Of course, the suggestion that ordinary proper names are not referring expressions is counter-intuitive. In fact, while Russell’s theory of descriptions is still widely accepted, many contemporary philosophers of language believe Russell was wrong to claim that proper names are synonymous with definite descriptions. The chapter on Saul Kripke (see page 199) says more on this.

If proper names are not synonymous with definite descriptions, then we cannot apply Russell’s theory of descriptions to explain how, ‘Pegasus does not exist’ can be true. That puzzle remains.