Bionic Judges

Parliament of pundits.

By and
67

Judge Kevin Newsom of the 11th Circuit Court of Appeals joins Sarah and David to reminisce on past times and talk nerdy topics. Let Judge Newsom explain his concurring opinions and:

Lunches spent reading Supreme Court oral arguments

-Humblebrags

-Hiring (life-saving) clerks

-Why he’s a skeptic of standing

-Jurisdiction stripping

-Why Judge Newsom can’t be a podcast host

-Over aggressive judging and why it’s bad for democracy

-What makes good writing

-Adjudicating Alabama

Show Notes:

-TransUnion LLC v. Ramirez

–David French’s column on the Insurrection Act

-Judge Newsom’s favorite writing tool

-Judge Newsom’s opinions

By and
Comments (67)
Join The Dispatch to participate in the comments.
 
  1. Avatar photo
    Bill Dyer (aka Beldar)

    I enjoyed Judge Newsom's guest appearance, although it made me feel very, very old. (I remember when Bear Bryant was mostly still known in Texas as the recently departed head coach of Texas A&M! David French is just another one of those Dispatch young whippersnappers as far as I'm concerned, and that someone who was a summer clerk of his is now a circuit judge makes me feel paleontological.)

    I particularly enjoyed the discussion of the astronaut defamation hypothetical. The sexiest defamation case I ever had was for a plaintiff whose true-life story was made into a movie. In real life (but long before I knew him or her), my client had been convicted of a lesser criminal offense resulting in a personal injury that, in the movie version, was cranked up into a homicide. The movie of course contained the standard disclaimers about being a work of fiction, and the names were all changed. But all of the other identifying details were so very, very much on point, and so very specifically identified my client AS IF he or she were the subject of this movie, that even some of his or her close friends and intermediate family members came to believe, FROM WATCHING THE MOVIE VERSION, that he or she had killed someone.

    And no, I can't tell you any of the actual juicy details about the case due to an NDA. Nor, for reasons of taste and Streisand-effect consequences, will I even confirm my representation in it (although that's technically a matter of public record).

    Collapse
  2. Avatar photo
    John Russell

    In re Sarah's get well note, I recall the ditty she quoted but note that she did not supply the full version. The latter read, "Beans, beans, good for the heart / the more you eat the more you fart / the more you fart the better you feel / so eat your beans with every meal." Who says the lessons one learns while walking home from a public elementary school in the United States can't be enduring?

    Collapse
  3. Avatar photo
    Von Thompson

    Great podcast, we need more of Judge Newsom.

    Collapse
  4. Joe Fisher

    MORE BREYER LIKE HYPOTHETICAL DISCUSSIONS LIKE THE APOLLO 10 TALK

    Collapse
  5. Bradgreenwald

    Late to the party here but I really enjoyed Judge Newsom's appearance. I too am very fun like he is: I was put in charge of my brother's bachelor party and we went skeet shooting.

    Collapse
  6. Shane Davitt

    Hello, this was a wonderful episode (I can just picture a disgruntled Alabama fan trudging out of the stadium). I know you have a lot of cases to catch up on in the next few episodes, but I hope you give some significant time to the Purdue case. My instinct just screams that the government should win this one, so I hope you can explain the nuances of this. I lost some respect for Justice Kagan when she blithely dismissed the principle that parties (not before the court) shouldn’t have their claims extinguished without their consent as a “high falutin principle of bankruptcy law.”

    Collapse
  7. Avatar photo
    Ben Connelly

    At first, when my ears heard, “Kevin Newsom,” my brain kept going, “governor of Cali… no wait.”

    Collapse
  8. MathewA

    A note on heart health. There's a bunch of research out on sauna usage out of Finland, it can reduce your risk of cardiovascular events by 50%, and dementia by 66%

    Dr Rhonda Patrick has some great info at Found my Fitness

    https://www.foundmyfitness.com/topics/sauna

    Collapse
  9. Avatar photo
    A Citizen

    People! Defend the Rule of Law! Michigan cheated. Their #1 status is the fruit of the poisonous tree! Cheaters should never prosper. Thus, Washington, Texas, Alabama and FSU. Problem solved.

    Collapse
  10. Avatar photo
    Clint

    Sarah,

    Thank you for calling out the College Football Playoff hypocrisy. The idea that a committee can use something as nebulous as "best team" to come to a decision is insulting. When Judge Newsom pointed out that you have to take into consideration the FSU injured quarterback was injured, should the CFP committee used that criteria to leave OSU out in 2014 when they were down to their 3rd string quarterback? Or the other THREE(I'd use italics if I could) eventual national champions who won without their 1st string quarterback? And if we're going to bring up FSU's struggling offense in the ACC championship, should we not also bring up the fact that Alabama only won two weeks ago against a 6-5 Auburn team because Auburn made a mistake?

    Unfortunately, Alabama is now in a terrible situation, and I have no pity for them. If they win, it doesn't prove that they should have gotten the spot, because the spot should have been earned by past performance, not future, unpredictable performance. Not to mention we'll never know if FSU would have won. If they lose by a good amount, then they clearly were not the better team, and that was their whole justification for being there.

    One final point: I take umbrage with David's point that with all the titles the SEC has, that they obviously should have been included. You know what helps with getting national titles?!? GETTING A SPOT. It's really freaking hard to win a national title when you get excluded with a perfect record! Not to mention that when you consider appearances vs. wins at the CFP for the various conferences, the SEC is at around 50%(6/12), with the ACC only behind at 29%(2/7), and all the other conferences are far behind both of them with Big 10 at 11%(1/9), Big 12 at 0% (0/7), and Pac-12 0% (0/3). Also, try being an ACC coach in charge of recruiting players considering an SEC school, and trying to convince them that they'll get a chance at the title. Maybe now with the playoff size increasing, but I'm not so sure that'll make enough of a difference.

    Edit: I might be more bothered about this than I realized.

    Collapse
    1. Ben

      One poster argues here that "The CFP itself says it is intent on selecting "the four best teams from among several with legitimate claims to participate", not the "most deserving"

      For the sake of argument I will assume that this phrase is from the actual text provided to the 13 committee member to rank the teams. I am not convinced that the above phrase is the same as saying the four best teams as that phrase is being discussed in the podcast or in these posts.

      The poster who made this statement notes that the above phrase "does not state the four most deserving teams should be selected". That is true. But the above phrase also does not state the four teams that the committee believes are the best right now or at the time of the playoff games should be selected. It just says four best teams. Doesn't that mean the four best teams this season, which could mean the four teams who played the best this season?

      In the NFL, conference champions and best remaining records make the playoffs. No one tries to argue those aren't the best teams because it merely reflects performance over the entire season as compared to how a team is playing in the moment.

      These are more reasons to know exactly what text each member was using (assuming they were all working off the same guidelines.)

      Collapse
    2. V_hannah

      First off, I totally sympathize with the frustration that FSU was included, and the general annoyance with the dominance of the SEC. I think that FSU fans are justified in being frustrated, and in any other year that I can recall, FSU would have been included. If tradition was all that mattered, they should have gotten in. But I do think Alabama has the better case once we look at the text, and I want to stand up for David and Judge Newsom.

      The most important thing this comment and Sarah missed is that there are four criteria listed on the CFP webpage. Notably, the CFP itself says it is intent on selecting "the four best teams from among several with legitimate claims to participate", not the "most deserving":

      1. championships won: both teams won their conference, but the disparity in win-quality looms very, very large. Alabama broke the 29 game win streak of the best team in the country without one of their best offensive players, and FSU barely scraped by in a conference that hasn't been impressive for a few years.
      2. strength of schedule: Alabama is ranked at 5 and FSU's at 55. That's pretty telling.
      3. Head-to-head competition: N/A
      4. Comparative outcomes of common opponents (without incenting margin of victory): both teams played LSU and won in a similar fashion. It is worth noting, however, that Alabama has gotten significantly better since this game, while FSU has experienced serious decline.

      This, for instance, is why Alabama fans were so frustrated last year when they were excluded: the text doesn't say anything about wins. Ultimately, it seemed to come down to conference championships, but we saw what happened last year when a weaker team with a strong conference record got in. Frankly, the four criteria amount to a balancing test in situations where individual criteria split in favor of one team over another. This year, however, that isn't the case.

      A few other quibbles:

      On the final point: I suspect that the 50% statistic is misleading. Some of the SEC "losses" have come against other SEC teams, i.e., Georgia vs Alabama. Regardless, the ACC's rate is hardly half of the SEC's. If you saw those head to head percentages in a political race, I don't think we'd characterize it as close.

      I think your point about the Iron Bowl performance as opposed to the ACC championship performance is solid, but frankly, Auburn always gives Alabama an incredible game when it's on the Plains, regardless of how good Alabama is that year. More importantly, this Alabama team just beat the best team in the country (without their star running back). Personally, I agree with you that the performance across the season should matter more, but the text only refers to conference championships, so I think we need to confine our evaluation to that.

      A point that isn't mentioned that I think counts in your favor is that FSU's third string quarterback wouldn't be running the offense in a month. The second string quarterback would be. I don't know that the committee really addressed that, and I think it makes the FSU case stronger. Not strong enough to overcome the textual argument raised above (even with their first string quarterback, I think Alabama would come out on top as a matter of criteria), but still something worth considering.

      All in all, both teams have a good case for inclusion, but Alabama wins out on a textualist reading. They don't need to "prove themselves", and their inclusion is justified. It's a separate question whether these criteria are fair. They certainly aren't equitable.

      With all of this said, Alabama could well lose to Michigan. Michigan has a great team! Perhaps FSU would even have given them a better game than Bama will. In that regard, FSU might just be a better team. But according to the CFP's criteria for determining the four best teams, Bama meets the bill.

      I sincerely hope this doesn't come off in a way that would discount your frustrations. I just don't think it's just to attribute hypocrisy to the CFP or to discount the really incredible turn around this Alabama team has had. It's not their fault that their improved performance happened to fall along the lines of the CFP's metrics, and I think in most years, we'd all think they deserved a spot, too. This was a particularly tough year, and it's heart-breaking that FSU was excluded after such a great season.

      Collapse
      1. Avatar photo
        Clint

        First of all, thank you for responding. I hadn't considered going to the CFP's website and looking at their criteria, but there are some additional listed criteria not on the page you went to that make a textual decision extremely difficult, specifically criterion 4. Going to their FAQ, they list their criteria as such(but I also found the page with the list you mentioned):

        1) Strength of Schedule - Ok, Alabama has an ESPN SoS of 5, and FSU had a 55. Michigan is 35, and Georgia is 37. If Georgia only had a 37, does that mean they weren't really the best team in the country? Regardless, I have a real distaste for black box rankings that are based on some formula I don't have access to. Also, from Heather Dinich, reporting on the 2016 CFP: "It's one of the most frequently mentioned metrics (SoS) used to explain the Tuesday night rankings, which begin Nov. 1, but it's also one of the most subjective and debatable." Couldn't have said it better myself.
        2) Head-to-head results against common opponents - "Alabama has gotten significantly better since this game, while FSU has experienced serious decline." This is the kind of frustrating statement that subjective analysis gets you. How has FSU experienced a "serious decline" since their first win of the season? By going undefeated? If Alabama got significantly better after playing LSU, which games included stomping Chattanooga (one would hope), why did they almost lose to a barely bowl eligible Auburn?
        3) Championships won - I think it's completely fair to say that Alabama had a more impressive win in their conference championship. I also think it's unfair to say that Florida State "scraped by" with a 10-point win in a "unimpressive conference" that currently wins the head to head in wins vs the SEC. And, if you discount that metric, exactly what do you use to qualify the ACC as "unimpressive?
        4) "Other Factors" - whatever that means - i.e., the SEC must have at least one team in attendance =). This is the criterion that makes a textual analysis impossible. How exactly do you comply with something as nebulous as this?

        Addressing some of your other points, I don't see how the 50% figure is misleading. There has been one time that two Big Ten teams have attended, and all that means is you now have a 50%-ish chance of getting the title that year instead of 25%, even if your teams go head to head in the semifinals. How would you adjust the statistic to be more accurate? Also, while we might not say Haley is "close" to Trump(and the ACC and SEC stats are far closer than those two candidate's polls), we also wouldn't say she's in the same category as Burgum, Ramaswamy, and Pence. (The rest of the conferences)

        If you are trying to be super textual, and think that the rest of the season performance shouldn't matter, that's fine. That doesn't square with you then referring to the "Strength of Schedule", which is literally the comparison of the season performances. Either we're talking about it, or we aren't. And no, I didn't see anything in the criteria that said it was required to use the "ESPN-determined SoS". So the Iron Bowl performance, while always weird, does play into my own calculations of Strength of Schedule.

        "This, for instance, is why Alabama fans were so frustrated last year when they were excluded: the text doesn't say anything about wins." I think one just has to be in awe of the pure, unadulterated chutzpah of the Alabama fan. It's a sight to behold. Who else can say in the same breath, that not only should an undefeated P5 team be left out for a one-loss Alabama team this year, but that the same thing should have happened last year for a two-loss Alabama team. Good-freaking-grief. I do greatly appreciate that you are engaging with me on this and making a heartfelt argument for your position, but that's something else.

        Continuing on the discussion of last season, you mention that a weaker team (TCU, I'm assuming) got in. Why do you say they were weaker? Because they got "boat-raced" in the national championship? We all seem to forget that in order to get to the final game, they had to win a game in the playoffs. And a 3-seed TCU upset a 2-seed Michigan to get there. Sometimes a team just has another teams number. Georgia was dominant last year. No doubt about that. But if TCU's performance has had any influence on the committee's position, or allows people to believe "Alabama should have broken all precedents and gotten in with a 10-2 record", I will quote you in response: "They (in this case TCU) don't need to "prove themselves", and their inclusion is justified."

        "I just don't think it's just to attribute hypocrisy to the CFP or to discount the really incredible turn around this Alabama team has had. " That is very gracious of you. I think some of the reaction has gone way too far. DeSantis talking about lawsuits is absurd, and he needs to go focus on losing his presidential race. However, even if I go ahead and agree with you on every point you've made that the committee followed their charter and were faithful to their criteria for the FSU exclusion and Alabama inclusion, then they couldn't have been faithful with the SMU and Liberty exclusion/inclusion. The two decisions are mutually exclusive. Which, unfortunately, has to mean inconsistent application of the criteria, or hypocrisy.

        Thank you for challenging me to look deeper at the committee's decision. This has been a truly weird turn of events, and a great football team was going to be left out in either case. I just think SEC-bias and subjective analysis lead them to make a truly unjust decision.

        P.S. - Just as a though experiment, what should FSU have done differently that you think would have given them enough justification to be included this year? Higher spread in scores, and if so, what kind of stomping would have been objectively sufficient?

        Collapse
        1. Ben

          Thank you so much for bringing this up. I just listened to the podcast. I was going to mention here we have three legal scholars, who often support textualism, arguing whether the best team or the most deserving should get in and without stating or arguing what the text of the guidelines or rules actually say! They reminded me of lay people arguing what a court should rule without knowing what the text of the law states. You saved me a long letter.

          I had a similar discussion with lay friends last week that understandably were upset about FSU not getting in. So I told them rather than trying to sound profound about arguing there is a difference between best team and most deserving, what does the actual text of the pertinent rule or guidelines say? That way we know whether to criticize the rule or the committee.

          I could not find the actual guidelines! Has anyone found them? I found a description of what some guidelines are on the CFP website, but I didn't feel comfortable that I found the actual text of the rules. Is there a text of the rules available? Or do we just have CFPs website that tries to summarize the rules?

          When working with my lay friends, I just used the website. It's all I could find. One thing going away from the process is my dismay at the committee considering Jordan Travis injury in evaluating FSU. I was reminded of Cincinnatti Bearcat Kenyon Martin's 2000 injury just prior to the NCAA basketball tournament and the comittee lowering the Bearcats. I thought that was unfair. This is even more unfair. Look up the name Cardale Jones. He's the Ohio State 3d string QB who won the 2014 national championship. Next consider that FSU's 3d string QB played the last game, but their 2nd string QB is coming back. Also consider football has 22 players vs 5 in basketball. Each injury means less. One committee member from NC State said the injury was crucial in dropping FSU from the top four. Even if the criteria is four best teams (is it?), I thought it was complete speculation to factor in Travis's injury.


          Just to summarize. There are 13 committee members. There names and bios are on the CFP website. They are required to rank the teams. What were each of them provided, in writing, to consider in ranking the teams? Where they just left to looking at the website just like the rest of us? Is there an official version of the guidelines we can all read? Frankly, this is more opaque than it needs to be.

          Thanks again everyone!Expand full comment

          Collapse
        2. V_hannah

          First off: no, thank *you* for responding! This has been really fun; I'm not super active on platforms, and I was worried my message would come off in the wrong way, so I'm glad to hear it wasn't offensive or anything. I really appreciate your thorough responses, so I will return the favor in order.

          To your point about looking to the FAQ page, if they didn’t see fit to put it into the actual “College Football Selection Committee Protocol”, I don’t think it’s something we can consider. I’d need to see an argument for going beyond the document itself (it’s a knock against the CFP that they’d have conflicting info on their website, but what are you gonna do?) . I've attached the link to the digitized version of the document if you want to check it out. The criteria are under the "principles" section: https://collegefootballplayoff.com/sports/2016/10/24/selection-committee-protocol

          Strength of schedule: it’s only one of four criteria for determining the best teams, so no, Georgia being 37 on SoS doesn’t mean that they aren’t the best team. Understandable why you might not like this metric, but it’s the metric they chose and enacted in the text. If you want to go with a different SoS calculation, I think that would be okay, but it's perfectly within the text and best exemplifies the principle of charity if we look at this one. (some of the other ones give some zany rankings, but that's besides the point). 

          A word on your objectivity point: I think we might be talking past each other a bit. The way I see it, this is a group of people who are making a collective judgment about who the four best teams are. It's inherently subjective (from my subjective vantage point). The point of the criteria is to introduce an objective standard by which to order one’s subjective judgment (also a primary justification for textualism as a theory of statutory construction). Your point about the lack of objectivity in my citing FSU’s decline is absolutely right. I should have specified *where* the objective decline set in because although it was after the LSU game, it was wayyyy after the LSU game. The decline of which I (and the committee) speak is FSU’s best player-the spark plug of their offense- getting knocked out in a tragic injury. Here are some stats that might inject a bit more objectivity (I think the quality of your objectivity point goes beyond my statistical recitation given the mottled, objective-subjective nature of statistics. We really need to establish a subjectivity threshold when it comes to these sorts of things. I don’t have one to offer, but I wanted to flag it). In the games prior to FSU losing their quarterback, they averaged 467. 2 total yards per game. In the games since, they’ve averaged 221.5 total yards per game. I think experiencing a greater than 50% decline in your offensive productivity on the basis of yards is pretty telling. They averaged 38.3 points per game prior and 20 points per game since. Alabama averaged 31.87 points per game 366.63 total yards per game prior to the LSU game and 42.25 points per game and 443.75 total yards per game since then. As to how FSU experienced a significant decline, it’s in the numbers. Going undefeated when you play Florida and Louisville (2 additional games after the point of serious decline) isn't particularly impressive. By "impressive", I mean that neither of those teams were within top status bowl game contention. Returning to the auburn game, I'll mainly just reiterate my previous point: regardless of how good Alabama is and how bad auburn is (and this goes back a long long time), Auburn gives Alabama a great game when it’s played on the Plains. You can check some of the other unbelievably talented Alabama championship teams where this has been the case. 

          Championships won: once again, you’re right to call me out for not looking at the numbers on FSU’s “scrape by” victory: they totaled 219 yards: only 55 of which were passing yards. This is not a team that’s going to be able to run the ball on Michigan (or Georgia). Once again, you’re right to call me out for the “unimpressive” language. What I mean by that is that when we examine the head to head of champions from the SEC vs the ACC since the CFP age, it’s not close. The SEC has 3 different teams comprising 6 championships to the ACC's 1 team with 2 championships.

          Other factors: when you look at the document voted upon and unanimously approved, it makes one explicit: “unavailability of key players or coaches that may have affected a team’s performance during the season or likely will affect its postseason performance”. Bingo. Setting this aside, your comment about the SEC having to have a team in—while obviously sarcastic—actually has some truth to it. If we're going to put the best four teams in, it's really hard to envision a possible world in which one (or more) of those four doesn't come from the conference with the most money and the most talent. In terms of your worry that this criteria is too nebulous for a textual reading, two things: 1. the example they've given us in the text actually eradicates this worry in the case of FSU. 2. more broadly, this isn't a damning worry for textualism's general applicability as a method of statutory interpretation. If you take issue with the “other factors” prong (setting aside the explicit mention of exactly the factor that proved decisive in this instance), your beef is with the 2012 legislative body's poor drafting. Be that as it may, this committee has to adjudicate on the basis of the document they're given. Further, textualism *does* still offer us space for statutory construction. We just want to minimize it in the interest of transparency and justice as process. Tons of texts fail to be perfectly clear. But in those times more than ever, we must rely on what *is* made explicit, which brings us back to the invalidity of key players provision. 

          Turning to your other great counterpoints, the figure is misleading because it ignores that there are situations in which a SEC team *has* to lose, such that it offsets the SEC team that wins, which narrows the sample size and has a distortionary effect. Put differently, those games where SEC teams, i.e., bama and Georgia, face each other are erased as instances of victory due to the loss of the other. Accordingly, we lose sight of one Alabama championship (2021 I think) and one or two semi-finals between those two. In terms of how I would fix it, that’s an interesting question. I think it depends on what we’re trying to do. If we’re trying to see how teams from different conferences compete against each other in head to head matches, we should just omit the head to head intra-conference match-ups. That’s pretty unfair to Alabama and Georgia, though, and belies their success. Another problem with that approach is that the goal motivating it isn’t what we’re really interested in. We want to know what conference is most dominant. I’m using “dominant” in an analogical sense to its meaning in the game theoretic context, i.e., what strategy when played trumps all other possible strategies. My thought here is that we presume each conference that has a team in a given CFP bracket is playing their intra-conferential weakly dominant strategy (conference champion). As semi-finalists become finalists, we presume that the dominant strategy has emerged from each end of the bracket, such that the dominant strategy each year is the CFP champion. Now, this isn’t a perfect analogy to the game theoretical set-up for a few reasons (mainly given the presumed modal properties I’m attributing to each team qua strategy at each stage of victory, i.e., that they’d come out on top against all other strategies within the SEC matrix), but i think it’s a useful way of conceptualizing things. In summary, if we’re trying to measure which conference is most dominant, compare apples to apples with dominant strategies. For each conference that’s included in each year we’ve had the CFP, they get a +1 when their strategy wins out, and a -1 when they make it in and lose at some stage. That way, we don’t hold it against the PAC-12 when they don’t have a team in for a year or so. Anyways, that’s just a thought, but you evidently think deeply about these things, so I’d be curious to hear your thoughts too. 

          As to why i care about SoS: i care about it because I’m a textualist. And SoS is the first criteria in the text. You’re right to call out my ambiguity on this point, however. I was pointing out that the only consideration given to total season performance is through SoS, i.e., not win totals in the regular season. I presume that the drafters figured conference championships would create constraints in their own right, and I largely think they’re right about that. The iron bowl calculation-to the extent that auburn’s less than stellar status is what you mean-factors into SoS, too, so the metric doesn’t dismiss that point out of hand. You’re right that the CFP don’t have to use ESPN’s SoS. My point is just that they could, and we can read them most charitably by making that assumption (it’s not a huge one either since it’s fairly reputable anyway). 

          Yeah, i mean like i said, I understand your frustration. I don’t share your scorn for Alabama fans. I think they’re just people who take pride in their school. When you're from an area of the country where outsiders assume you're an idiot because of their faulty inference-making from accents to intellects, it's kind of nice to have something of home you can unqualifiedly take pride in without having to distance yourself from your culture. More broadly, I think it's good for our country to have these robust little institutions around which communities can coalesce.

          Yeah, I did mean TCU. When i say they’re “weaker”, i mean comparatively to that Bryce Young Alabama team that dealt with a lot of injuries last year that impacted their record. I don’t think anyone thinks that Alabama wouldn’t have given Georgia a better game than TCU (and maybe even a loss, although they wouldn’t have been favored). You’re absolutely right that TCU beat Michigan, and i agree I obfuscated that point in my previous comment. I honestly don’t know what to make of that in terms of how you could reverse engineer that CFP decision. Good on you for calling me out on that one. As I’m reflecting, OSU should’ve been omitted. No conference championship; not a strong schedule in terms of ranked opponents aside from ND and Michigan; lost in a head to head matchup with Michigan fairly decisively. Saying all of that, I think you’re absolutely right that last year was wild. Michigan beat OSU and then lost to TCU. TCU got boat raced. OSU gave Georgia an absolute gem of a game. I say Alabama over OSU because I want to be intellectually honest based on the committee’s criteria, but I think you have the better argument on that one in terms of outcomes (given the chaos of the field). But again, I want to focus on text and committee judicial reasoning, not outcomes.

          The liberty/SMU point is interesting. I didn’t know anything about this controversy until you mentioned it! I think the difference maker is that FSU was subject to criterion 4 given the injury in a way that Liberty was not. I’d be curious to hear your thoughts on it, as you’re certainly more knowledgeable than I. 

          Ultimately, I don’t think I’ve said anything to change your mind. Frankly, I think our differences boil down to an unspoken dispute about what justice is. I think it's process, but I'm speculating from your comment that the decision was "unjust" that you're thinking of justice more in terms of outcomes. I agree that FSU being left out as a matter of outcome was unfair, but more in a cosmic sense than as a result of anything the CFP did. As a matter of process, I think they got a fair application of the criteria. On that basis, it would’ve been unjust to exclude Alabama, in my opinion. I think our debate strikes a nice parallel with controversies over presumed notions of justice and conflicting methods of statutory (and constitutional) interpretation. In conclusion, David and Sarah should let us guest host an episode about this. I'd love to talk more about this and have really enjoyed the exchange.

          I really like your P.S. but I’m afraid you won’t like my answer :( 
          I don’t think there’s anything they could’ve done. Part of it has to do with just how much is out of their control to begin with. There are so many moving pieces given that they’re being placed ordinally. Furthermore, college football is not a fair playing field to begin with. The big name programs are big names for a reason. As long as we’re picking the “best” (especially according to the criteria), I think a lot of teams don’t have as much agency as they would in a perfect world.Expand full commentShow less

          Collapse
          1. Avatar photo
            Clint

            You most certainly haven't been offensive, and if anything, have encouraged me to dial down my own sass. I also feel like you've been generous in your analysis of my own points which I have appreciated.

            It's a fair point regarding average scores and yards. The issue is that FSU has had 2 games since Travis Jordans' injury, and Alabama has had 4 games since LSU. One of which was Chattanooga, which is going to dramatically alter those stats. If you just limit it to their two toughest games in that same period, it's an average of 27 points and 378 yards, which isn't that different than the previous average stats. I would challenge the two statistics you chose to compare though. Football has an offensive bias, but Virginia Tech managed to be a perennial ACC championship contender for many years on the backs of defense and special teams. If they were judged solely on their offense rather than wins and losses they probably would have been left out.

            I don't think it's fair to say which conference is impressive for the purposes of ranking teams this year based on historical CFP participation. LSU was a national champion in 2019 and didn't lose a game. They were 5-5 the following year. "Championships won" as a criteria is referring to whether a team won a championship this year or not(in my opinion)

            I concede your point as to the committee textually following the criteria, with one exception: I think we blew right past the introduction to those criteria which was: "The selection committee will select the teams using a process that distinguishes among otherwise comparable teams". You know I believe to be two comparable teams? Michigan and FSU. Both won out their regular season and won their championship. How do I distinguish between them? Ah, we have these helpful criteria. I could easily argue that Alabama at 12-1 and FSU at 13-0 are not comparable and I can already easily distinguish between those two, and thus criteria to do so is unnecessary.

            I also have a smaller point. Within the text is this statement: "Comparative outcomes of common opponents (without incenting margin of victory)". The "without incenting margin of victory" has a narrow application in this context, but I believe it is intended to communicate to teams that there is no value in "boat-racing" your opponent for comparison purposes. What will incentivize that is all this talk of how FSU just "squeaked by" in their championship, which will throw sportsmanship out the window and have teams crush their opponents by 50, 75, or 100 points if possible.

            I don't have scorn for Alabama fans. It makes me sad that you think that, especially since when I looked up the definition of "scorn", it means: belief that someone or something is worthless or despicable. No one is worthless, and I hope I didn't communicate that. Some context though: I moved to Alabama about 15 years ago, and since then have experienced a mountain of arrogance and a spirit of entitlement from their fans that I'd never seen elsewhere. Not to say there aren't completely decent and wonderful fans too, but they are much fewer in number. So yes, be proud of your institution, and institutions are very good, but be gracious in defeat and victory. And if you decide regularly to tell everyone how many championships you've won, and whine every time you lose, you will lose respect from all of the other college football fans out there.

            I don't think I know much more than you about it, but basically with SMU/Liberty, Liberty had a perfect record with the worst ESPN SoS in the whole FBS(133?). SMU had an SoS that was 76 with a record of 10-2(2 of their games were against P5 opponents). They both won their championship. When Corrigan was asked why Liberty got the NY6 bowl spot for G5 conferences instead of SMU, he said "they just kept on winning". I don't think either school had notable injuries. As such, they viewed the perfect record as more important than the SoS in one comparison, and flipped that with another comparison. It makes the "we were just fairly applying the criteria" argument fall really flat.

            I will agree that ultimately it seems I am arguing more from an outcome based justice perspective. And I don't like that. I do believe that process should be followed, but I will say that following the process to the letter can result in some very unjust outcomes, if the process is flawed. And I would argue that if the process leads to an undefeated Power 5 conference champion being excluded in favor of a 1 loss Power 5 conference champion, the process is in fact flawed. I am normally not one for giving much or any weight to what the masses say as far as accuracy of an adjudication, but I think the more subjective a decision process is(even with all of the good faith efforts to make it less so), the more value should be given to popular opinion, and the popular opinion is that this was a travesty.

            You are right about my feelings regarding your answer to my PS. =) As someone who's team is in the ACC, I don't like that my team doesn't have as much agency. I know a lot of this will improve with the expanded playoff, but it doesn't feel great for someone to just discount your team because the conference they are apart of doesn't have the right "pedigree". Feels very anti-American.

            I concede your SoS arguments and I don't know how to accurately reflect the most dominant conference in the CFP That's something that would require a LOT more thought. My point was more that if we really are trying to say that because the SEC is dominant in past CFP's they should just get a spot, I don't see why Texas gets in over FSU. The Big 12 is definitively not dominant in any sense of the word in the CFP, and doesn't have a better record than the ACC.

            Collapse
      2. Deleted Comment

        This comment has been deleted

Load More