Davies on Casey Meets the Court @horacefuller @GB2d

Ross E. Davies, George Mason University Antonin Scalia Law School; The Green Bag, has published Casey Meets the Court at 27 Green Bag 2d 169 (2024). Here is the abstract.

Ernest Lawrence Thayer, creator of “Casey at the Bat,” produced three versions of his poetical gift to baseball fans. The Supreme Court of the United States, creator of the “baseball antitrust exception,” produced three versions of its doctrinal gift to baseball owners. In Volume VIII of its series of Re-readings booklets, the Green Bag republished all three of Thayer’s versions of Casey, and compared the arc of their literary development to the judicial arc of development of the Court’s baseball antitrust exception. There was something missing, however, from this parallel treatment of Casey and the Court: the two arcs intersected in the end, via Justice Harry Blackmun. This is their story.

Download the article from SSRN at the link.

Blake on A Positivist Baseball-Centric Critique of Originalism

William Blake, University of Maryland Baltimore County (UMBC), Department of Political Science, has published A Positivist, Baseball-Centric Critique of Originalism. Here is the abstract.

Some scholars have argued that respect for the Constitution compels judges to adopt originalism. This paper evaluates the claim of “compelled originalism” by comparing the language of the baseball rulebook to that of the U.S. and other constitutions. First, I describe how different rules of our national pastime align with originalism, while others invite umpires to use a living Constitution approach. I then leverage H.LA. Hart’s philosophy of legal positivism to evaluate baseball and constitutional rules. Hart claims public officials must accept the most fundamental rules of their legal system, which would include any guidance about how to interpret the Constitution. Because compelled originalism is rooted in respect for the Constitution’s legitimacy and supremacy, one would assume the text would instruct judges to be originalists. Of course, the Constitution says no such thing. By contrast, the baseball rulebook sometimes provides specific instructions to umpires about how to adjudicate certain rule violations. I conclude by demonstrating how originalists have managed to turn the debate over constitutional legitimacy on its head. If the goal of originalism is to prevent judges from reading provisions into the Constitution, originalists must take seriously that no requirement to use original public meaning exists in the constitutional text.

Download the article from SSRN at the link.

Home Run! The FIU Law Review's Microsymposium on Law and the Infield Fly Rule @FIULAWREVIEW @SWeberWaller @KarboraniAdrian @robneyer @oldfatherc @fiulaw

Look at this unusual and fresh approach to a law review symposium issue. I know less than nothing about baseball, as you can tell from the title of this post, but I enjoyed looking through FIU Law Review's Micro-Symposium: Infield Fly Rule Is In Effect: The History and Strategy of Baseball's Most (In)Famous Rule.  Here's a list of the articles included.

Adrian Karborani, Introduction to the Micro-Symposium: Infield Fly Rule in Effect

Richard D. Friedman, Just Say No To the Cheap Double Play

Mark A. Graber, Functionalism and the Infield Fly Rule

Andrew J. Guilford, Another Side to the Infield Fly Rule

Richard Hershberger, The Prehistory of the Infield Fly Rule

Rob Nelson, The Enfield Fly Rule

Rob Neyer, Teach the Controversy

Peter B. Oh, De-Limiting Rules

Chad M. Oldfather, Umpires, Judges, and the Aesthetics of the Infield Fly

Spencer Weber Waller, The Puzzle of the Infield Fly Rule

Howard M. Wasserman, Keeping the Infield Fly Rule in Effect 

Abrams on References to Baseball in Judicial Opinions and Written Advocacy

Douglas E. Abrams, University of Missouri School of Law, has published References to Baseball in Judicial Opinions and Written Advocacy at 72 Journal of the Missouri Bar 268 (September-October 2016). Here is the abstract.

Professor Abrams authors a column, Writing it Right, in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing - conciseness, precision, simplicity, and clarity. Future columns will be posted as they are published every three months or so.

Download the essay from SSRN at the link.

Batter Patter: Potuto on Baseball and Legal Argument

Josephine R. Potuto, University of Nebraska, Lincoln, College of Law, has published Swinging at the Facts: How Baseball Informs Legal Argument. Here is the abstract.

In this article, I use baseball as a springboard for discussing persuasive legal argument. In particular, I compare a lawyer making a legal argument to a batter at the plate. A batter with a well-made bat is poised to hit, but he or she still must connect with the ball. A lawyer with an accurate and complete rendition of applicable black letter law is poised to craft a persuasive argument, but he or she still must connect with the facts. The article was great fun to write (especially the footnotes), and, I hope, will be fun to read. I also hope it is instructive on the subject of written advocacy and also on the subject of baseball. Baseball long has held fascination for legal scholars. This article joins the long line of law review articles that use baseball as focus or jumping off point.

Download the article from SSRN at the link.

A New Casebook on Baseball and the Law

New from Carolina Academic Press: Louis H. Schiff, 17th Judicial Circuit of Florida, and Robert M. Jarvis, Nova Southeastern University College of Law, Baseball and the Law: Cases and Materials (2016). Here is a description of the contents from the publisher's website.

Baseball and the Law: Cases and Materials explores the jurisprudence of baseball through 110 principal readings, 619 notes, and 26 photographs. After an introductory chapter that acquaints students with the sport and the role lawyers have played in its development, the authors proceed to examine a multitude of legal issues, from player salaries, franchise relocations, and steroids to fan safety, broadcast rights, and gambling. Special attention is paid to racial and sexual discrimination; tax planning, asset protection, and bankruptcy; and the burgeoning use of technology. A concluding chapter focuses on amateur and youth baseball. The book draws on a variety of materials—including court decisions, arbitration awards, law review articles, newspapers stories, and blog posts—to place baseball in three different contexts: cultural, historical, and legal. The exhaustive notes make numerous references to movies, TV shows, and videos to further demonstrate the connection between baseball and the law. In addition to being a fun read, this work will strengthen a student’s understanding of such core subjects as civil procedure, constitutional law, property, and torts while improving his or her ability to read contracts and parse statutes. The accompanying Teacher’s Manual provides invaluable tips for both new and experienced instructors.

Louis H. Schiff is Circuit Court Judge, 17th Judicial Circuit, Florida, and Robert M. Jarvis is Professor of Law, Nova Southeastern University College of Law.

 

Baseball and Legal Reasoning

John Tehranian, Southwestern Law School, has published It'll Break Your Heart Every Time: Flood v. Kuhn, (Baseball) Romanticism and the Fallibility of Courts. Here is the abstract.

The recent blockbuster 42 romanticizes the role of major league baseball in the civil rights movement. But Jackie Robinson’s shattering of the color line in 1947 represented only the first step in the game’s evolution. With considerably less fanfare, Curt Flood took the next step. Flood’s ill-fated challenge to the infamous reserve clause landed him before the United States Supreme Court in 1972. It’ll Break Your Heart Every Time casts new light on Flood’s underappreciated legal struggle by presenting a meta-meditation on his lawsuit, the fallibility of judges and the power of the National Pastime’s grand mythology.
When the Supreme Court’s infamous decision in Flood v. Kuhn, 407 U.S. 258 (1972), is cited for any one proposition, it is not for its key holding — the reaffirmation of baseball’s antitrust exemption. Rather, it has become exhibit A for the risks of slavish adherence to stare decisis. In the four decades since its pronouncement, the holding has never been completely overruled — either by the Supreme Court or Congress. And while the decision itself has received widespread condemnation elsewhere, legal, economic and policy analysts have generally failed to appreciate a critical first-order question about the case: how it happened and whether, in other circumstances, it could happen again. This Essay address these issues by examining the profound role of the National Pastime’s mythology and its spell-binding romanticism in the making of bad law. In the process, the Essay also raises broader jurisprudential questions about the nature of legal reasoning and the powerful lure of epistemological narratives, particularly in the struggle for civil rights.

Download the paper from SSRN at the link. 

More Baseball Trading Cards

Ross E.Davies, George Mason University School of Law; The Green Bag, Craig D. Rust, George Mason University School of Law Alumni, and Adam Aft, George Mason School of Law Alumni, have published Supreme Court Sluggers: Introducing the Scalia, Fortas, and Goldberg/Miller Trading Cards in volume 2 of the Journal of Law (2012). Here is the abstract.

We are pleased to introduce a few new members of the“Supreme Court Sluggers” trading card lineup. The addition of Justice Antonin Scalia to the team is in keeping with our goal of expeditiously compiling and publishing data for all current members of the Supreme Court. (We have issued cards featuring Chief Justice John G. Roberts and Justice John Paul Stevens, and Justices Sandra Day O’Connor and Samuel Alito are in the works.) This season, we have also completed the first two cards of what might be called our “Veterans” series of those who served long ago: Justice Arthur Goldberg, who appears in the company of baseball great Marvin Miller, and Justice Abe Fortas.

Download the article from SSRN at the link.

The Supreme Court and Baseball

Ross E. Davies and Craig D. Rust, George Mason University School of Law, have published "Supreme Court Sluggers: Behind the Numbers," at Green Bag 2d 213 (Winter 2010). Here is the abstract.

Issued last fall, the Chief Justice John G. Roberts “Supreme Court Sluggers” trading card pictured on page 213 above is the first in what should be a very long series of “Sluggers” cards. The first Associate Justice card – of John Paul Stevens – will be out this spring. Others, of the sitting Justices and of their predecessors, will follow in the coming months and years. The Green Bag’s ambitions for this project are simple, if not small: (a) to develop and share comparable measurements of the work of every member of the Supreme Court since 1789; (b) to gradually expand and refine those measurements with an eye to making them as useful and interesting as possible; (c) to create informative, entertaining, and unorthodox yet respectful portraits of the Justices by first-rate artists; and (d) to present all of this material in a way that will be enjoyable for the producers, consumers, and subjects of the “Sluggers” cards. As an introduction to the “Sluggers” project, we offer here short descriptions of what went into the development of the front and back of the Chief Justice Roberts card. The front is a work of art that makes light-hearted connections between its subject and the game of baseball. The back is packed with statistics and sprinkled with quotations drawn from the subject’s judicial work.

Download the article from SSRN at the link.

More Law and Baseball

And it's back.

Aaron Zelinksy, Yale Law School, is publishing "The Justice as Commissioner: Benching the Judge-Umpire Analogy," in Yale Law Journal Online. Here's the abstract.

Chief Justice Roberts has repeatedly compared the role of a Supreme Court Justice to that of a baseball umpire, and this analogy has assumed a prominent place in the contemporary debate over the appropriate role of a Supreme Court Justice. This paper traces the history of the judge-umpire analogy since its first judicial invocation in 1886, finding that it was originally intended for trial court judges. Moreover, courts historically invoked the analogy as an illustrative foil to be rejected because of the umpire’s passivity. In place of the judge-umpire analogy, this paper propose that the appropriate analog for a Justice of the Supreme Court is the Commissioner of Major League Baseball. Both Supreme Court Justices and Major League Baseball Commissioners fulfill four critical characteristics which separate them from trial court judges and umpires: they provide interpretive guidance to subordinates, undertake extended deliberation, take countermajoritarian action, and wield substantial rule-making power.

Download the article from SSRN at the link.

Law and Baseball

Ross E. Davies, George Mason University School of Law, has published "It’s No Game: The Practice and Process of the Law in Baseball, and Vice Versa," in Seton Hall Journal of Sports and Entertainment (forthcoming). Here is the abstract.

It is a commonplace that the relationship between baseball and the law is a long and close one. But, first, is it true? And, second, if it is, just how long and how close? Strangely, given the large amount of good work produced by able scholars of baseball and the law, concrete answers to these basic questions are not readily available. This article is a first step toward filling that gap. It is a sketch of the length, breadth, and depth of the relationship between baseball and the law. (In order to tell a less-than-interminable tale, this article mostly tilts back and forth between recent years – evidence of the vibrancy of the baseball-law relationship today – and the late 19th and early 20th centuries – evidence that it has been vibrant for a long time – and deals only sketchily even with those periods. This should not be taken to mean that the baseball-law relationship was any less interesting at other times, or that there isn’t much more to be said about all times.) As should be clear by the end of this article, the answer to the first question is an emphatic and certain “Yes”: baseball and the law are close and have been for a long time. The answer to the second question, however, is an equally emphatic but far less certain “Very”: while there surely are both unrecognized extents and unmarked limits to the law-baseball relationship, we cannot define them without a fuller inventory and chronology – an old-fashioned digest – of the thousands upon thousands of events that make up the history of baseball and the law. Perhaps this article can serve as the kernel of such a project.

[I don't normally blog articles about law and baseball, but I'm branching out].