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Friday, April 25, 2008

Con law in unexpected places

For example, in George Clooney cinematic homages to His Girl Friday, every Cary Grant-Katherine Hepburn comedy, and movies depicting the minor-league backwaters of professional sports.


One of my colleagues was approached by a student in his Con Law I class, who had just seen the movie. According to the student (I have not seen the movie and probably will not until it comes out on video), one issue that arises is an attempt by Congress to regulate the new professional football league, including by requiring the teams to appoint a commissioner. (Can anyone who has seen the film confirm this?)

The ever-vigilant new law student (I always tell my 1Ls that a legal education changes the way you look at everything, even nostalgic slapstick comedy) wanted to know where Congress could get the power to tell a professional sports league how to run its business. The answer, of course, is the Commerce Clause.

But the interesting thing about that answer is that the story takes place in the 1920s, during the wild-west early days of professional football. And the prevailing view of the time was reflected in Justice Holmes' now-infamous decision in Federal Baseball Club v. National League, holding that professional baseball was not interstate commerce for purposes of the Sherman Act. And that decision at least intimates Holmes' (and the Court's) view at the time that professional sports were not interstate commerce for constitutional purposes, thus Congress lacked any power to regulate pro sports in the way apparently depicted in the movie.

Oh well. By now, we should be used to popular culture getting law mostly wrong.

Posted by Howard Wasserman on April 25, 2008 at 02:38 PM in Constitutional thoughts | Permalink


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You are right about Congress (!) appointing a federal football commissioner. Somehow that whizzed right past me, but I was struck that the commissioner called the editor of the large Chicago newspaper in and told him that he had to print a retraction of a story. The editor smiled and agreed.

Posted by: Edward Still | Apr 25, 2008 8:44:49 PM

Somewhat related, I just saw There Will Be Blood and when I saw the climactic "I drink your milkshake" scene, I immediately thought of how modern courts have applied the Pierson v. Post first capture rule to the depletion of common subterranean resource pools. For what it's worth, Daniel Plainview got it right: he got the oil first, and that made it his.

Posted by: Dave | Apr 25, 2008 6:41:50 PM

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