A-Rod and the Rule of Law

The sports media is abuzz with the story of Alex Rodriguez, the New York Yankee third baseman, who has been handed a 211-game suspension by Major League Baseball for his link to BioGenesis -- an anti-aging clinic that fed star athletes performance-enhancing drugs -- and his alleged attempts to obtain and destroy evidence of that involvement. The suspension is slated to begin Thursday and extend through the end of the 2014 season -- by which point Rodriguez's career may be finished (he's 38 now, and his performance has been declining over the past several years: the anti-aging stuff appears not to be working very well). The suspension, if it takes effect, will likely prevent Rodriguez from making a run at the all-time home run record, which lies just 115 home runs away from his career total of 647. (Of course, most people believe that the 747 hit by Barry Bonds were PED-fueled, though that has yet to be proven.) A-Rod is appealing the suspension, and will be permitted to play while the appeal proceeds -- mixed news for Yankee fans who have grown tired of A-Rod's antics and failure to perform when it really counts but who are suffering through a frustrating season that has seen NY third baseman hit a measly four homers all year. On the same day that Rodriguez was given the 211-game suspension, twelve other players were handed 50-game suspensions (which would make them eligible to play again before the end of this season) and Ryan Braun was earlier suspended for the remainder of this season (a total of 64 games) -- all in conjunction with BioGenesis.

What does all this have to do with law? Well, aside from the thousands of dollars A-Rod is likely to spend (and probably has already spent) on lawyers in his appeal and related legal actions and the potential for baseball's antitrust exemption to be called into question once again, the unfolding events implicate fundamental questions about the rule of law about which we should care deeply -- no matter what you think about players who use PEDs to improve their production, no matter how you feel about Rodriguez as a ballplayer or a person, no matter whether you root for or against the Yankees, no matter whether you follow baseball or not.

What is called the "principle of legality" lies at the heart of the rule of law. It provides that no one can be convicted of or punished for a crime unless the law defined the crime and specified the punishment before the person engaged in the behavior under consideration. Herbert L. Packer calls this "the first principle of criminal law" and there can be no question that in the absence of this principle a system does not even qualify as a system of law. In his well-known discussion of the "inner morality of law," Lon Fuller included as fundamental principles of law "promulgation" (laws must be published and knowable by those to whom they apply) and a general prohibition of "retroactivity." The latter, of course, appears prominently in the U.S. Constitution. Article 1, Sections 9 and 10 prohibit Congress and the states from passing ex post facto laws and most state constitutions include a similar ban. An ex post facto law does one of three things: (1) it criminalizes an act that wasn't a crime when it was committed; (2) it increases the punishment for a crime after the act was committed; or (3) it takes away a defense that was available to a defendant when the act was committed. The principle of legality, and its relative the ex post facto ban, help create a predictable system within which people can conform their conduct to the requirements of the law; these principles provide individuals with fair warning about what they can and cannot do, and about what the consequences of their actions are likely to be. Failure to adhere to these principles is, as Fuller said, to fail to make law at all, though it may be something else (quite possibly something oppressive). Even if we take the view of Holmes' "bad man" -- who "does not care two straws for the action or deduction, but . . . does want to know what Massachusetts or English courts are likely to do in fact" -- if we cannot prophesy what the courts will do, we do not have law.

Now think about A-Rod. Even those with little use for Rodriguez (and such folks are legion -- he is quite possibly the most disliked player in the game by both fans and fellow players) should be concerned about the severity of the punishment meted out to him (even though Major League Baseball came up short of what would have been the "nuclear option": a lifetime ban). No punishment has been given at all to those many players from the 90s and 00s who admitted to using (or were strongly suspected of using) performance-enhancing drugs, or even to those who lied (or are suspected to have lied) to various investigative bodies, including Congress. Some of these players have a legitimate shot at being voted into the Hall of Fame; some apologized and continued to play; some are now coaches. Of course, the rules were somewhat different then -- and the principle of legality would suggest that these players should not be punished for doing something (using PEDs) that was not against the rules of their day (at least at the beginning). But even those who have been caught red-handed in recent years have only been suspended for a couple of months at most. The severest penalty yet was that given to Braun -- he was suspended for the rest of the year and his reputation with players and fans is ruined. But Braun had been caught before, suspended, and won an appeal with protestations of innocence that turn out now to be outright lies -- factors that surely added to the severity of his punishment. The 50-game suspensions given the other BioGenesis clients were consistent with the Joint Drug Agreement between the league and the players union. Setting aside the lifetime bans meted out to Pete Rose and "Shoeless Joe" Jackson (and others) for gambling -- bans frequently and justifiably criticized -- Rodriguez's 211-game suspension is more than twice as long as any other suspension in baseball history, as Matt Schiavenza notes in The Atlantic. 

Rodriguez strikes me as the prototypical Holmesian bad man (as does Bonds): certain that he can get away with it and willing to do virtually anything to ensure that he does. Assume for the moment that he possessed PEDs supplied by BioGenesis. One can imagine him sitting down with his "advisers" and trying to figure out how to behave. What he wants to know (as Holmes saw) is where the lines are -- what the courts will do in fact -- so he can tailor his conduct to fall just within the lines, or include the expected punishment within his utilitarian calculation of costs and benefits in order to decide what to do. A-Rod evidently discounted the probability of getting caught -- as bad men are wont to do -- but concluded, based on the precedents, that the punishment would not be severe enough to outweigh the expected benefits from his enhanced performance. He had no reason to expect -- nor could his lawyers have anticipated -- that he would be suspended for 211 games if caught; something more on the order of 50 or 60 games would have been expected. So the system failed to provide him with fair warning of the consequences of his actions. And increasing the punishment after the acts have been committed, as noted above, is to transgress the prohibition on ex post facto rules. Throwing the book at an offender does not mean throwing the rest of the library at him, too; the "book" lies within covers set by the promulgated (or experiential) limits of the sanction. And there seems to be no particular reason to throw the book at A-Rod other than that he's an easy target: disliked, haughty, egotistical, too often in the limelight for the wrong things. Braun's punishment, it seems to me, falls within the covers of the book; A-Rod's does not.

But there's more. In this instance, the rules themselves were unclear. Rodriguez appears to be suspended for being linked to BioGenesis, on the testimony of one, unreliable witness (the clinic's founder, Tony Bosch), without ever having failed a drug test (the necessary basis for suspension under the JDA). And baseball throughout its history has been afflicted with the same sorts of drunks, criminals, and jerks that inhabit the playing surfaces of other major sports -- and baseball has mostly turned a blind eye to their off-field behavior. (The exceptions had to do with cocaine use and gambling -- the former illegal and the latter cutting at the heart of the very idea of sports competition.) So what rule did A-Rod violate exactly? Or better stated, what rule can we prove that he violated? Doesn't it seem outrageous to levy a year-and-a-half suspension on a player who has not yet been "convicted" of anything other than being a poor example and a self-centered prima donna?

At some point, Major League Baseball needs to say that "from this time forward anyone who uses performance enhancing drugs on a specified list is done for good." But it has to be prospective not retroactive. The "clean" players, who are finally speaking up, are right: the only way to clean up the game, to stop the use of PEDs, is to make the penalties so severe that even the bad men won't run the risk. Even that probably won't work perfectly; the bad guys are always one step ahead of the cops, in sports as in society in general. There are always those who think they can get away with it; and always those who will do the calculation and decide to break the rules. But to levy a major, career-ending suspension now, prior to the promulgation of the "done for good" rule, against one prominent player, when no one had good reason to think that penalty was forthcoming, seems unfair. 

OK, you're saying that this is baseball not the legal system, and things can be different in the private than in the public sphere. But to draw a rigid distinction between public and private, between baseball and the law, has its risks. The rule of law requires strict adherence to the principle of legality, and to the prohibition against ex post facto laws. As citizens we should be on our guard against those -- whether they be public officials or semi-public officials, government agents or "rulers" of large semi-private associations (like baseball commissioners) -- who would tell us it's alright to violate the fundamental principles upon which our polity is based. Madison hoped that each citizen would be "an Argus to espy" those who would trample on constitutional principles. When Madison spoke of these principles, he meant to include more than the words of the constitutional text, for our constitution encompasses the basic commitments of our way of life as a people embarked on a common voyage. Read in that way, constitutional principles include foundational features of the rule of law such as the principle of legality. Bud Selig, the baseball commissioner, frequently talks about how baseball should use its enormous influence to provide positive examples of proper behavior to old and young alike (though especially, of course, to the young). If he really believes that, if it is not just jargon or bluster, he should be concerned about the lessons being taught by a system that permits punishments that far exceed what could have been predicted by the baddest of men and their advisers -- and permits those punishments to be handed out on the basis of unclear rules, questionable testimony, and general dislike of particular persons. And as citizens, we should recognize what is going on and we should be willing to speak out against violations of fundamental principles even when they occur outside the legal system -- lest we develop the habit of ignoring those principles in the public as we do in the private realm. For that way lies disaster. 

In Praise of Inconsistency

Emerson famously said -- in a passage frequently misquoted and misunderstood -- "a foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines." Emerson believed that no great leader -- indeed, no thoughtful, complete person -- seeks consistency but, like a mariner tacking to-and-fro with the ever-changing winds, simply thinks (and does) what they believe to be right at the moment. According to Emerson, one should seek to do the right thing, under the circumstances as they appear today, and should not get hung up on ensuring consistency between what one does today and what one did and said yesterday. If present thought and action appear inconsistent with prior thought and action, so be it.

One does not follow Emerson's advice easily. Deep within us -- products as we are of the rationalization that characterizes modernity -- lies an powerful urge to be consistent. So powerful is this urge -- and so powerful is the inner logic of the social drive to subject all things to rational calculation -- that we balk at any line of thinking, any policy of action, that seems to conflict with what we thought or did in the past. We criticize those who fail to live up to the ideal of consistency and our social order and its set of deeply ensconced values treats them as unreliable, untrustworthy, undeserving of high position or great responsibility. More than a mere hobgoblin, consistency serves as a core value of late capitalist modernity, one ignored at great peril to one's reputation and authority.

And yet Emerson may have hit upon one of the major differences between leaders and managers. Managers work within systems, within bodies of rules and practices, and so their actions need to be consistent one with the other and all with (and within) the system. Since they work within rationalized systems, replete with rules, precedents, standardized procedures, and regularized decision processes, managers are expected -- and expect themselves -- to think, work, and behave in a consistent manner, one tied closely to "the way things are done" and have always been done. Precedent inevitably drives the work of the manager and, given the press of business, generally little time exists to reflect upon the precedents or to reinterpret them creatively. (In fact, one of the charms of the legal profession, for many though hardly all of us, is the opportunity to reflect on precedent and use it creatively to achieve new ends -- which is not to deny that most lawyers, most of the time, act as managers of legal business.) If I am expected to manage a particular part of a business, say its financial functions, my creativity is necessarily limited by constraints that precede me and by practices that have been put in place to render the work of management predictable. As with all systems of rules, predictability is crucial. To a great extent, predictability can be achieved because rules necessarily place limits on the actions of those who carry out particular roles within the system to which the rules apply.

Leaders differ from managers -- a statement commonly made in the leadership literature, but one too little theorized. Leadership is not simply a matter of power or motivational qualities, though the belief that it is allows the leadership industry to fool us into believing that many can become leaders if only they are endowed with the "right stuff" (usually through pricey seminars and books offered for sale by so-called, and usually self-appointed, experts). The category of "leaders" is considerably smaller than the leadership industry would have us believe -- a topic that deserves more attention than I can give it in the present essay. Beyond  positions of authority or power, beyond the ability to motivate followers, leaders must possess the ability, and most importantly the willingness, to work outside of systems and rules and practices. Though they need not always or even often do so, leaders differ from managers in their willingness to go beyond the rules as laid down, to step outside the circle of the acceptable that is defined by precedents and regulations. W.E.B. Dubois said of Lincoln that,

in that curious human way he was big inside. He had reserves and depths and when habit and convention were torn away there was something left to Lincoln -- nothing to most of his contemners. There was something left, so that at the crisis he was big enough to be inconsistent -- cruel, merciful; peace-loving, a fighter; despising Negroes and letting them fight and vote; protecting slavery and freeing slaves. He was a man -- a big, inconsistent, brave man.

Exactly.

Managers can be defined by the systems within which they operate; their identity can be captured by the rules set down for the roles they play. They are what Hans Gerth and C. Wright Mills referred to as "role-determined": they are "instituted" because they work within, and their functions and positions are given definition by, the institutions (structures, roles, and rules) inside which they operate. Strip away the habits and conventions, and there is nothing (or precious little) left.

Leaders, however, can take on "role-determining" traits, defining and redefining the confines of their roles. Such agents may truly be said to be leaders rather than "mere managers." I do not mean to belittle managers with this phrase, but only to insist on the difference between managers and those more properly called leaders. While leaders may be managers, when they act as leaders they often engage in stretching roles to fit a new way of seeing institutional activities, goals, and functions. Indeed, depending upon the circumstances in which they act, leaders may engage in "new modeling" the rules and systems out of which they operate. In these instances, leaders become "role-creating" (an idea first suggested to me by Robert C. Tucker), re-fashioning the rules, procedures, functions, roles, and other features of the institution in which they act. Leaders of either the role-determining or role-creating sort do not routinely "play by the rules" except to the extent that they make (or re-envision) the rules. Consequently, they often eschew consistency, for consistency requires doing and saying what one has done and said before -- and that is precisely what leaders must be willing to forgo. Leaders must be willing to jettison the "foolish consistency" of "little minds."

The fact is, as David Gergen has noted, "[l]eaders are often those who see fresh, historic opportunities and seize them, even at the expense of their own consistency." Leaders must be flexible, agile, able to respond to circumstances that offer openings for achievement. Leaders must be willing to "new model" their group, their organization, their nation -- and they must not let a "foolish consistency" interfere with what a changed environment and a new view presents to them as the right thing to do, the right way to move. The willingness to constantly examine one's life, one's views, one's circumstances -- to explore the unique concatenation of events that forms the present and to reflect upon how one should act within it -- lies at the heart of good leadership. Leaders re-envision the present, which flows out of a past they seek to understand. And they affirmatively move into the future rather than cling to the past, creating new models rather than dutifully adhering to the old. The future into which they thrust themselves differs from what has gone before and therefore necessarily fails to be consistent with it. Leaders act in a reflexive manner, closely examining the order of things around them with a craving to remake it. Leaders possess the ability and the desire to change in the face of change, to create, to reconstitute the world around them, consistency be damned.

Politicians frequently criticize each other for "waffling," for changing their views, for shifting with the wind of public opinion (or the opinion of their "base"), or for giving away the ranch by compromising on important principles. In this they reflect the rationality of modernity that sees virtue in strict adherence to rules, roles, and patterns. The charge of "flip-flopping" appears to be part of the central repertoire of political campaigning; campaign organizations, party spokespeople, and the media purvey the notion that a willingness to compromise reflects a lack of principles, a failing talked about as if it were fatal to respectability. This gives rise to the bizarre twistings and turnings of politicians seeking to show how their current position truly parallels previous positions, even when it is clear to nearly everyone that it does not.

Compromise, in this way of looking at things, is always suspect, a vice more than a virtue. And yet at the same time, we hear a lot these days about the importance of compromise, especially from those (justifiably) critical of the stalemate in Washington. Civic educators praise compromise as a virtue essential for the success of democracy; theorists of democracy tell us that, without compromise, majority rule cannot work. Compromise is, indeed, an important value for both leaders and followers, in nations, organizations, groups. Woodrow Wilson famously refused to compromise on the League of Nations Covenant, failing first to keep in mind that any agreement worked out in Europe must get the advice and consent of the Senate and failing second to compromise with senatorial leaders, to give a little once it became clear they were unwilling to go along with the covenant as presented to them. Refusal to compromise, as we learn from Wilson, can be tragic. A rigid adherence to principle can undermine collective action and collective well-being. Politics, as Max Weber made clear in his "vocation lectures," is no place for saints or those who aspire to be saints; politics demands a willingness to give and take, to settle for the second best, to compromise in order to get something done. Politics, according to Weber, demands an "ethic of responsibility" to temper the "ethic of ultimate ends" espoused by the idealist and the saint. And the argument holds good not just for politics, but for all circumstances of group activity where leadership can take place. Leaders must have the ability and the willingness to compromise, though it is wrong to imagine that they will always do so, for the appropriateness of compromise depends on the leader's assessment of the many factors and layers of the situation at hand.

Polish philosopher Leszek Kolakowski stated in his essay "In Praise of Inconsistency," "humanity has survived only thanks to inconsistency," for "total consistency is tantamount in practice to fanaticism, while inconsistency is the source of tolerance." Leadership entails the ability to assess circumstances to determine whether one must rigidly adhere to one's principles and previous positions, or whether doing so is the sort of foolishness Emerson had in mind -- or worse, whether doing so is a sign of fanaticism. Notice that this means that one need not be consistently inconsistent, inconsistent "all the way down" as it were. Rather, as Kolakowski concludes, we should be inconsistently inconsistent, keeping always a healthy reserve of uncertainty about the rightness of what we have done in the past, and about the rightness of our own current view and the error of those opposed to us. Leaders strive to be comfortable with this kind of uncertainty, never fully succeeding but never resigning themselves to the warm snugness of the rules laid down or the contentment of consistency.