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 

Block That Romance Fiction Sports Reference!

In case you missed it, sports team owners need to move quickly if they want to name their franchises something catchy. Otherwise they might find that they've been pre-empted by someone else--say, a romance novel writer.

Seattle is currently contemplating bringing an NHL expansion team to town, and of course that team will need an exciting name. But which one? A number are under consideration,  but might be difficult to use, because they have other connotations. The "Seattle Kraken" sounds pretty fierce, but haven't we heard about Kraken somewhere before? And the "Seattle Sockeye"? Well, as it turns out, there is a Seattle Sockeye hockey team already, but it exists in the pages of writer Pamela Bowerman's romance novels.  Ms. Bowerman has applied for a trademark to protect her fictional team. Goal?

Maybe we'll be hearing about the "Seattle Seafarers"?

Are You Ready For Some Football (In Legal Writing?) Abrams On References To Football in Judicial Opinions and Written Advocacy @MizzouLaw

Douglas E. Abrams, University of Missouri School of Law, has published References to Football in Judicial Opinions and Written Advocacy at 73 Journal of the Missouri Bar 34 (January-February 2017). 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.

 

In Tandem: The Law and Cycling

Gabrielle J. Appleby, University of New South Wales, and Adam Webster, University of Adelaide, School of Law, have published Cycling and the Law at 39 UNSW Law Journal 129 (2016). Here is the abstract.

There is a strong connection between those associated with the law and cycling. It is possible to find cycling enthusiasts in all three arms of government: former Prime Minister Tony Abbott’s love of cycling is well documented; members of the Commonwealth Parliament who also share this passion for the sport have formed their own cycling group – Riders on the Hill; and cyclists can be found within the judiciary. A love of lycra exists more broadly within the legal profession. Presumably it is the love of the physical activity rather than the laws regulating it that attracts those associated with the law to cycling. This article examines the latter.

Download the article from SSRN at the link.

The Rhetorical Language of Slavery, Workers' RIghts, Football Players, and Unpaid Interns

Maria Linda Ontiveros, University of San Francisco School of Law, is publishing NCAA Athletes, Unpaid Interns and the S-Word: Exploring the Rhetorical Impact of the Language of Slavery in the Michigan State Law Review. Here is the abstract.

This essay presents initial results of a literature survey that explored the use of the rhetoric of slavery by workers' rights groups. It presents quantitative results for uses of terms such as slave, slavery, modern day slavery, plantation, Jim Crow and Juan Crow as these terms were used by immigrant worker advocates, opponents of labor trafficking, advocates for unpaid interns, National Collegiate Athletic Association athletes, professional athletes and in the context of prison labor. The essay also provides a qualitative analysis of how these terms were used by NCAA athletes and unpaid interns and a discussion of the criticism leveled at them for drawing the slavery analogy for voluntary employment relationships. The essay argues that, even though these advocates were criticized for their rhetorical use of the language of slavery, the rhetoric was effective because it helped frame NCAA athletes and unpaid interns as workers engaged in labor deserving of protection under labor and employment laws, even though they were not being paid for their labor. It describes how legal cases brought by these workers, including O'Bannon v. NCAA; Northwestern University and College Athletes Players Association (CAPA); and Glatt v. Fox Search Light have helped redress their problems. The essay argues that these two case studies illuminate the public understanding of core principles of the Thirteenth Amendment, including the right to own and sell your labor and the existence of a floor for free labor created by labor and employment laws. When employment relationships violate these principles, even if the relationship is voluntary, advocates can and will turn to the rhetoric of slavery to advance their cause because the arrangements violate the spirit of the Thirteenth Amendment.

Download the essay from SSRN at the link.

Lannisters, Starks, and Fantasy Football

Joe Berkowitz of Fast Company highlights this meshing of the worlds of Game of Thrones and the NFL. Examine Dave Rappaccio's Westeros Fantasy Football League more closely here at Kissing Suzy Kolber. More GoT fun here from FC writer Dan Solomon, who discusses how Tim Proby gave all 32 of the NFL teams Westeros themes.

If you need even for your Game of Thrones fix, check out how the Getty is linking the show with medieval art here, (no football, though).

Football Rules

Howard M. Wasserman, Florida International University College of Law, has published Football and the Infield Fly Rule, at 61 UCLA L. Rev. Discourse 272 (2014). Here is the abstract.

In a previous article, I defended baseball’s infield fly rule, the special rule long beloved by legal scholars, in terms of equitable balance in distribution of costs and benefits between competing teams. This Essay applies those cost-benefit and equity insights to football. It explores several plays from recent Super Bowls, the cost-benefit balance on those plays, and the appropriate role in football for limiting rules similar to the infield fly rule.

Download the essay from SSRN at the link.

Did someone say "flies"?

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. 

Throwing the Game?

Ronald J. Rychlak, University of Mississippi School of Law, has published Gambling with the Bronx Bombers: Betting on, Against, and with the Yankees.

Here is the abstract.

The New York Yankees, arguably the most hallowed name in all of professional sports, has probably had more money wagered on the outcome of its games than any other team in any sport. Although few people today may be aware of it, the team itself has a long history of association with gamblers and gambling. The first owners of the Yankees were notorious gamblers; the team’s first captain was indicted in the 1919 "Black Sox" scandal; one Yankees’ pitcher was suspected of having thrown another Series game; one owner had ties to underworld figures in Las Vegas; another owner was suspended for his dealings with a known gambler; and one of the most beloved Yankees of all time was barred from baseball due to his association with a casino. Additionally, it has been suggested that the Yankees’ threat of moving to New Jersey in the mid-1990s was linked to New York State authorizing gambling.

Download the full text of the paper from SSRN at the link.

Body Talk

Genevieve Lakier, University of Chicago Law School, is publishing Sport as Speech in the University of Pennsylvania Journal of Constitutional Law (forthcoming). Here is the abstract.

Sports play a tremendously important role in American public culture, yet games of spectator sport are not generally recognized as expression protected by the First Amendment. This is notwithstanding the extension in recent years of First Amendment protection to a wide variety of other kinds of nonverbal art and entertainment. This Article argues that the denial of free speech protection to spectator sport is wrong both doctrinally and when considered in light of the aims and purposes of the First Amendment. Drawing upon an extensive body of social scientific research examining the practice and cultural significance of spectator sports, it argues that games communicate the sorts of messages to which First Amendment protection extends. In providing viewers dramatic spectacles of victory and defeat, and in offering fans a symbol around which to rally around, spectator sports also reflect and help shape public attitudes and beliefs about individual excellence, political community and identity, race, gender, and sexuality — even competition itself. The Article argues that the same justifications that support the extension of First Amendment protection to art and entertainment therefore support extending protection to spectator sport, and that the exclusion of spectator sports from the category of expressive conduct furthers none of the purposes of the First Amendment. Instead, it merely distorts the doctrine, by relying on an ultimately unjustifiable distinction between artistic and athletic performance, and live and mediated speech.

Download the full text of the article from SSRN at the link.

More Sports Law in the Humanities

Douglas E. Abrams, University of Missouri School of Law, has published Sports in the Courts: The Role of Sports References in Judicial Opinions, in 15 Villanova Sports and Entertainment Law Journal (2010). Here is the abstract.

In cases with no claims or defenses concerning sports, the Supreme Court and lower federal and state courts frequently publish opinions that draw analogies to the rules or terminology of sports familiar to broad segments of the American people. Sports analogies can help the court explain factual or legal points because today’s generation, including the lawyers and litigants who comprise the prime audience for written opinions, grew into adulthood amid an unprecedented saturation of professional and amateur sports in the broadcast and print media, and more recently on the Internet.

This article surveys the broad array of sports whose references now lace written judicial opinions, and then discusses the use and misuse of these references. Sports references can help courts explain and resolve complexity, but may also implicate Rule 1.3 of the Model Code of Judicial Conduct by detracting unacceptably from the prestige indispensable to the judicial role. A sports reference remains incompatible with judging when a reasonable reader would conclude that the court invoked it primarily for the judge’s personal pleasure and not to facilitate the communication of ideas.

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].