5th Circuit strikes down Horse Racing Integrity Act

[PaceAdvantage]

Originally Posted by the little guy

Imagine a world that is this black and white. Agree or disagree, right or wrong, one thing is clear, they found the most conservative court possible that was, obviously, the most likely to take this opinion. Other courts likely would not have.

I'm not agreeing or disagreeing with HISA, or the decision, just shedding some truth to your incorrectly definitive opinion.

But isn't that what you're supposed to do? Try and find the court/judge most sympathetic to your cause?

We've seen it happen time and time again, in a whole variety of cases with national significance on both sides of the political spectrum.

It's how the system works, unfortunately. But it isn't anything special in this case.

[the little guy]

Originally Posted by PaceAdvantage

But isn't that what you're supposed to do? Try and find the court/judge most sympathetic to your cause?

We've seen it happen time and time again, in a whole variety of cases with national significance on both sides of the political spectrum.

It's how the system works, unfortunately. But it isn't anything special in this case.

It shouldn't be this way but I certainly don't blame them for doing it. I find it amusing when liberal friends ( whose politics I may agree with ) applaud this decision when it was made by a court they may well generally disagree with.

It's like hating a player until he plays for your team:-)

[classhandicapper]

I find it distressing that courts can’t even agree on what a law means or says. You would think lawyers would be smart enough to leave no ambiguity so politics don’t enter the picture, but given my level of cynicism I guess I should presume they do it on purpose for job growth and security.

[dilanesp]

Originally Posted by classhandicapper

I find it distressing that courts can’t even agree on what a law means or says. You would think lawyers would be smart enough to leave no ambiguity so politics don’t enter the picture, but given my level of cynicism I guess I should presume they do it on purpose for job growth and security.

No they don't. When money or even liberty turns on words, it is surprisingly hard to be precise.

The famous example from legal philosophy is HLA Hart's "No Vehicles in the Park" law. Does it apply to bicycles? Horse drawn carriages? Skateboards? And how do you deal with the ambiguities- do you have the park and rec department pass a regulation specifying a whole bunch of vehicles that are OK or not OK? And if it does so, is the public on notice of that?

Law strikes a balance between simplicity and precision. It sometimes strikes that balance wrong, and oftentimes when money or liberty is at stakes courts or juries have to step in and make calls. But it isn't actually easy to write laws (and that's before you even reach the issue of the political compromises sometimes necessary to pass them).

[Robert Fischer]

so are whip counts still in effect?

[BarchCapper]

Originally Posted by classhandicapper

I find it distressing that courts can’t even agree on what a law means or says. You would think lawyers would be smart enough to leave no ambiguity so politics don’t enter the picture, but given my level of cynicism I guess I should presume they do it on purpose for job growth and security.

Although this also happens with a lot of other laws, in HISA's case we're talking a COVID-era attachment to a huge multipurpose bill that was put through without benefit of committee hearings to hear all sides speak on the pertinent matters. So the resulting chaos and holes in the legislation that you could drive a Sallee van through become somewhat predictable.

[rastajenk]

Kind of disappointed to see Dave and Craig wholeheartedly agree with Sheffwed's pablum. It read to me like a politician's stump speech: plenty of general suggestions, not a single specific policy, or the EV* of any aspect of his shotgun approach. "We want it to be better, so let's create a new bureaucracy" that bleeds $72 million a year from its subjects is neither original nor compelling. It doesn't pass a cost-benefit sniff test. Sheff's suggestion about federal incentives likely would focus on changes in tax codes (but hopefully not any kind of direct handouts), and that is to me a worthy pursuit, but it's way beyond the scope of integrity and safety.

Everyone that says this really needs to get done never really says why. It's just a matter of faith we can improve the public's perception. It might be really expensive to find out that we can't. Any delay is a good delay.


* EV- expected value. Apparently it's in the news as SBF's metric in guiding FTX to collapse.

[classhandicapper]

Originally Posted by dilanesp

The famous example from legal philosophy is HLA Hart's "No Vehicles in the Park" law. Does it apply to bicycles? Horse drawn carriages? Skateboards? And how do you deal with the ambiguities- do you have the park and rec department pass a regulation specifying a whole bunch of vehicles that are OK or not OK? And if it does so, is the public on notice of that?

I don't want to debate a lawyer on the law given my knowledge level is zero.

But intuitively (and possibly incorrectly) I think laws should be as precise as possible to avoid these issues. If something is not mentioned specifically, it should probably automatically be excluded. In your example, you should try not to use a word like "vehicles" specifically because it's so ambiguous some pain the ass lawyer is going to try to make it about something it's not. And if the intent was to include bicycles and skateboards etc... you should have put that in there from the start. If you accidentally excluded something you should go back to work and change the law if that's the will of the people. I think the system was set up to function fairly well, but it has become a disaster due to politics and badly created laws. Anyway, I don't understand any of this issue with HISA and I'm going to even try. I'd prefer to put my energy into the DD.

[dilanesp]

Originally Posted by classhandicapper

I don't want to debate a lawyer on the law given my knowledge level is zero.

But intuitively (and possibly incorrectly) I think laws should be as precise as possible to avoid these issues. If something is not mentioned specifically, it should probably automatically be excluded. In your example, you should try not to use a word like "vehicles" specifically because it's so ambiguous some pain the ass lawyer is going to try to make it about something it's not. And if the intent was to include bicycles and skateboards etc... you should have put that in there from the start. If you accidentally excluded something you should go back to work and change the law if that's the will of the people. I think the system was set up to function fairly well, but it has become a disaster due to politics and badly created laws. Anyway, I don't understand any of this issue with HISA and I'm going to even try. I'd prefer to put my energy into the DD.

The first principle you list is the "rule of lenity"- an actual rule lawyers apply in interpretation. Err on the side of narrowing the prohibition.

The rest of it, I can only tell you that to "put it in from the start" requires that you get it through a legislature full of politicians, and sometimes it isn't even possible because the only way to get a bill through is to leave something ambiguous. (This happens in contract negotiations too, BTW. The parties can't agree on something, want to do the deal, and leave the term open or ambiguous. Later the lawyers have to clean up matters when there's a dispute.)

And, of course, you can't anticipate everything. If "no vehicles in the park" predated the automobile, how do we apply it to the automobile? Or some weird set of facts comes up, as in the Coronation Cases (e.g., Krell v. Henry) where a renter paid above market rent to rent an apartment to see a coronation parade that was later postponed. What do you do?

And there's also the problem that when you write detailed, unambiguous regulations, they are pages long and nobody reads them.

We try. Believe me, in our perfect world, we want as many foreseeable cases to be dealt with as possible, in as clear language as possible. It's not that easy.

[Dave Schwartz]

Originally Posted by rastajenk

Kind of disappointed to see Dave and Craig wholeheartedly agree with Sheffwed's pablum.

Which part do you disagree with?

Or do you think I am saying that I like what is going on?
(Of course I don't.)

Racing has needed a governing body for a long time. (Going back decades, I hoped it would be The Jockey Club.)

Between cheating and not trying/persevering, to all the other things that are screwing the bettors that go completely unchecked, racing's integrity is in big trouble.

[Dave Schwartz]

We try. Believe me, in our perfect world, we want as many foreseeable cases to be dealt with as possible, in as clear language as possible. It's not that easy.

There will always be gray areas, which would (logically) expand the legislation.

And even as the legislation expands over time, there will still be new gray areas.

Do I have this wrong, Dylan?

[Tom]

There are always gray areas, that's why we have courts.

Racing involves the health and welfare of 10's of thousands of horses, the financial concerns of millions? of people. and crosses state lines.

Federal regulation seems to me a no-brainer.

[AskinHaskin]

Originally Posted by dilanesp

The first principle you list is the "rule of lenity"- an actual rule lawyers apply in interpretation. Err on the side of narrowing the prohibition.

The rest of it, I can only tell you that to "put it in from the start" requires that you get it through a legislature full of politicians, and sometimes it isn't even possible because the only way to get a bill through is to leave something ambiguous. (This happens in contract negotiations too, BTW. The parties can't agree on something, want to do the deal, and leave the term open or ambiguous. Later the lawyers have to clean up matters when there's a dispute.)

And, of course, you can't anticipate everything. If "no vehicles in the park" predated the automobile, how do we apply it to the automobile? Or some weird set of facts comes up, as in the Coronation Cases (e.g., Krell v. Henry) where a renter paid above market rent to rent an apartment to see a coronation parade that was later postponed. What do you do?

And there's also the problem that when you write detailed, unambiguous regulations, they are pages long and nobody reads them.

We try. Believe me, in our perfect world, we want as many foreseeable cases to be dealt with as possible, in as clear language as possible. It's not that easy.

My initial impulse was to skewer your early post in this thread, but I am impressed that you have done very well at fielding (everybody's) thoughts on this.

The example of "no vehicles in the park" is really good, and to bring it nearer to, uh, home I might draw a parallel between (the intended ambiguity in your examples) and (what is supposed to be) routine, at-home recycling (which is not yet "routine" in all areas).

The pictures/diagrams they use in trying to guide us can only include so much, even though some individuals among us think "it would be complete if only they'd tell us where to put ____________". Those diagrams being already rather "busy" to the eye. (though you have a year to study and familiarize yourself, before they change it again)

Or consider the multitude of bins at McDonald's. At least there is a finite number of menu item containers, and they can post the vast majority of those on the diagram. But then, at home, there aren't two people behind you and a guy in front of you trying to guess in which spot to put his used syringes.


As for HISA... it's great in theory... and there is no way to reach a point where actual practice matches theory without going through the minefield of being overly-critiqued and completely laughed at as things are ironed out.

HISA funds would be better invested in testing every horse after every race (vs. the more typical test every winner, and three other, totally random horses on the entire card ) (using 8 fields of 8 average starters, that's 11 tested of 64).

The whip rules are so arbitrary that they are on the edge of meaningless, and the pure stupidity that is pretending the surrounding society will better accept horse racing sans whips in noticeable fashion is just that.

Racing leaders have gone for decades without any inclination or interest in helping themselves and that has been the central problem, not the lack of the rest of society stepping in to somehow 'police' a sport which really doesn't need that much additional policing.

Add to it that most of those same racing leaders have now married themselves (and horse racing as well) directly TO the casinos which are in some ways "competition" (if no longer exactly competitive that way). Thus restricting any hope that racing might ever optimize the advantages it still holds.

In summation, HISA is doomed to be a significant waste of resources on every level, and a means through which a few people/interests who positioned themselves for near-term gain can extract a bit more from the system.

It was the same interest in near-term gain, back in the 1980's, which doomed horse racing to its present day fate, brought to you not by the government in any way, but by horse racing leaders themselves.

[classhandicapper]

Originally Posted by Tom

There are always gray areas, that's why we have courts.

I'm not so much complaining about grey areas that come up as new information comes in or things change over time. Those can be addressed. I'm complaining about politics creeping into law way too often because laws are not precise enough to prevent that from happening.

Without knowing much about theses HISA rules, it seems preposterous to me that depending on which court reviewed the case we might have gotten a different ruling.

This is horse racing not some amendment written over 200 years ago.

Whether the law is satisfactory or not or good/bad it outside my range, but gee wiz courts can't even agree on this?

[ubercapper]

There's still a chance HISA survives, or the Supreme Court Intervenes.

This is because there are arguments scheduled next month in the 6th circuit on an appeal of Judge Hood's previous ruling that HISA was constitutional. This could turn out the opposite of the ruling by the three judge panel in the 5th circuit, then there would be a split and the Supreme Court would have to settle the dispute.

Another issue is the ruling by the 5th is likely only binding in three states (Texas, Louisiana and ?Mississippi). This is not a national ruling and HISA is still in place in the rest of the country even after the lower court in Texas issues a ruling in line with what the three judge panel of the 5th instructed.

There was a similar case the 5th (Jarkesy) ruled on in May regarding a government agency (SEC) being subservient to a private entity. The government asked for a full "en banc" hearing by the 16 (17?) judges in the 5th and were denied, but it took FIVE MONTHS.

In this case the lower court judge has to rule as the appellate court directed, then HISA can ask for the "en banc" hearing, and if that denial (or approval) takes five months, HISA is well in effect, except perhaps in the states the 5th has purview over.

Unless one of the parties asks for, and is granted, a stay of the ruling.

I am open to being corrected by Dilan or any other attorney on PA if anything I have written may be inaccurate.