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Friday, June 05, 2009

Baseball Stories in Search of a Good Legal Analogy


There’s a Supreme Court confirmation hearing on the way and that probably means we’ll be hearing some more baseball analogies.  At Chief Justice Roberts’ hearing four years ago, we heard him compare judges to umpires calling balls and strikes as they see them.  Then we heard Vice President (then Senator) Joe Biden point out that different umpires had different strike zones.  (For a recently posted analysis, see Michael Patrick Allen, A Limited Defense of (at Least Some of) the Umpire Analogy).

I’m guessing baseball metaphors are just as likely when Senators question the judge who put an end to the 1994-95 Major League Baseball strike.   So I thought I’d start a list of some of my favorite baseball trivia, stories, and bizarre coincidences in the hope that at least a few of them will provide Judge Sotomayor or the Senate Judiciary Committee with an effective and entertaining way to teach the world about the virtues required of a good judge.

I’ve suggested a few possible parallels in the legal world, but hopefully the Senate Judiciary Committee (perhaps with your help?) will be able to find some better ones.  In any case, feel free to add your own examples and reflections in the comments (and be aware that those looking for baseball metaphors that have already been tested in the crucible of judicial argument can learn a lot more from fellow Prawfsblawger Chad Oldfather’s article, The Hidden Ball: A Substantive Critique of Baseball Metaphors in Judicial Opinions, than they can from this blog post, fun though it was to write).

1.     In 1890, Mike “King” Kelly, was the manager of the Boston Reds.  When a foul ball was hit toward the bench he was managing from, Kelly quickly shouted “Kelly now catching for Boston,” thus making himself the team’s catcher (under baseball’s rules at the time) and made the catch and the out.  

Possible Law Analogy:   Anybody who has seen enough oral arguments has seen at least one occasion where a judge can no longer bear watching an attorney miss opportunity after opportunity to make a powerful argument for a position that the judge is sure deserves a better one, and so, steps in himself or herself to do the job correctly, much as a part owner and President of Operations of basketball’s Washington Wizards (by the name of Michael Jordan) decided the only way to improve the Wizards’ play was to put himself in the game.  New Argentine national soccer team coach, Maradona, will probably make the same move sometime in the next World Cup.  It’s just a matter of time.


2.      One of my favorite nicknames from 19th century baseball was the one that belonged to “Death to Flying Things” Ferguson (and before that, to his Brooklyn Atlantics teammate “Death to Flying Things” Chapman). Ferguson got the name because he often used his first-rate fielding ability to dash the hopes of hitters.  Apart from having a colorful nickname, Ferguson was also a colorful character.  He gained fame as a member of the Brooklyn Atlantics team that in 1870 finally ended the 89-game winning streak of baseball’s first openly professional team, the Cincinnati Red Stockings (and respectively batted in and scored the tying and winning runs in that game).  As an umpire in an 1872 game, he also used a baseball bat to break the arm of a player that had the temerity to argue with him.  I doubt if this is the kind of umpire behavior Chief Justice Roberts had in mind when comparing judges to umpires calling strikes as they see them.

You don’t find too many nicknames like “Death to Flying Things” in modern baseball, and I’m kind of surprised no one revived it for the baseball player that probably did the most to earn it – newly-minted 300-game winner Randy Johnson – whose 95 mph pitching actually did cause the death of a flying thing a few years ago.

Possible Law Analogy:   If arguments in legal briefs could flap their wings and fly around, there’d certainly be some judges whose blunt opinions would earn them the nickname “Death to Flying Things.” 



3.     The 1914 and 1915 baseball World Series provided some of the most unusual and unlikely trading of places in baseball history.   After the National League’s Boston Braves won the World Series in 1914, their American League Boston counterpart, the Red Sox won the World Series in 1915.  The Boston Braves had beaten the AL’s Philadelphia Athletics in 1914, and the Boston Red Sox then beat Philadelphia’s NL team, the Phillies, in 1915.  To top it off, the Boston Braves used the Red Sox stadium, Fenway Park, as their home field in their 1914 Series appearance (their new one was under construction) and the Red Sox then used the Braves’ new field as their home field in the Series a year later (it could accommodate more fans).

Possible Law Analogy:    In FDA v. Brown & Williamson Tobacco Corp.(2000), Justice Scalia, although well-known for his textualism and opposition to reliance on legislative history, signed on to a Supreme Court majority opinion the featured extensive analysis of legislative history.   Justice Breyer, who often takes the opposite side of the statutory interpretation debate, chastised the majority fin that case for adopting an interpretation contrary to the text’s meaning.  There is also a rumor (can anyone confirm it?) that immediately after the decision was issued, Justice Breyer fooled everyone by wearing a Justice Scalia disguise to give a Federalist Society Keynote Speech while Justice Scalia wore a Justice Breyer disguise and delivered a Harvard Law School talk entitled “Getting International Law, Legislative History, and Lots of Other Stuff into Supreme Court Decisions Via Subliminal Messages.”


4.     Closer to our own time, and to my own pain:  In 1999, Chicago Cubs’ pitcher Jon Lieber pitched a perfect game through 7 innings and 2 outs, retiring 20 consecutive batters and striking out 9 of them.

But he never got the third out of the 7th inning.  Rather, he then gave up six straight hits in six pitches, including three home runs.   And ended up with six earned runs in the inning and the game before being pulled out of it (very quickly).   The Cubs lost the game 7-2 and, to make it worse, the Cubs’ loss was to the St. Louis Cardinals. 

Possible Law Analogy:   For almost every inning of the 20th century, the Commerce Clause gave no ground in the Supreme Court to those who would limit it.  The 1995 case of United States v. Lopez then broke up that perfect record.   The problem with the analogy is that Jon Lieber’s perfect game was broken up by a hit from Mark McGwire that eventually landed outside the field for a home run.   By contrast, in the wake of the Supreme Court’s decision in Gonzales v. Raich, the Lopez ruling is more like a very a long and high fly ball that hasn’t yet landed.

Jon Lieber has had late inning perfect games and no-hitters-in-progress stopped on other occasions.  An Andres Galleraga home-run dashed a 2000 no-hitter of his in the 7th inning (and the Braves, with Greg Maddux as their pitcher) ultimately beat the Cubs 1-0).  On other occasions, he’s lost the perfect game or no-hitter in 7th, but still won the game (9/19/04, pitching for the Yankees and on 5/13/06, pitching for The Phillies).



5.     In 2003, Chicago Cubs were playing the Florida Marlins in the NL Championship series and only five outs away from reaching the World Series for the first time since 1945.  As every baseball fan knows, everything changed when a foul ball chased by Cubs outfielder Moises Alou was knocked away by an excited fan. (Although Alou now says he would have likely missed it anyway). This was followed by 8 Marlins runs, which resulted in a Cubs loss that day, soon to be followed by another Cubs loss, and another year spent watching the World Series instead of playing in it.

The Cubs have done a lot to get back to the World Series since 1945, even trying to make up for one likely source of “the Curse”: The hex that Billy Goat Tavern Owner Billy Sianis placed on them after the team refused to let him remain in Wrigley Field with his goat during the 1945 series.  They’ve let Sianis’s nephew bring a goat into Wrigley Field (albeit a different one) in 1984 and 1994, and they’ve held curse-ending press conferences at the Billy Goat Tavern.  Magically-minded Cubs’ fans have tried curse-transferring rituals (perhaps unintentionally removing the Red Sox curse from Boston and bringing it over to add to that which already weighs down The Cubs.  As Harry Potter author J.K. Rowling would probably point out, this kind of thing just isn’t a job for muggles).

Possible Law Analogy:   I think that Congress’s efforts to regulate porn on the Internet, which failed in Reno v. ACLU, and again in Ashcroft v. ACLU, are also cursed – except, as in United States v. American Library Association, when Congress uses its power to attach spending conditions to funding for state governments  (since attempts to limit that power are just as if not more cursed).



6.     The Baltimore Orioles of the 1890s were one of the late 19th Century’s – and baseball’s – best teams.  They reached the Temple Cup Series (a 19th c. precursor to the World Series) all four times it was played and won it twice.  They were also known as inventors of “scientific baseball” and featured some of the best players of the day, including John McGraw, Hughie Jennings, Wilbert Robinson, and “Hit ‘Em Where They Ain’t” Wee Willie Keeler.  Three of these, McGraw, Robinson, and Jennings went on to use their baseball analysis skills to become storied baseball managers for many years in the early 20th century (Jennings managed Ty Cobb’s Detroit Tigers and was, as I noted in a previous blog post, one of only seven managers in baseball history who had a law degree).

Possible Law Analogy:   The Orioles of old invented scientific baseball.  A contemporary of theirs, attorney Louis Brandeis, invented the science-and fact-intensive “Brandeis brief”  And just as many of their Orioles took their habits of analysis as players to managerial jobs later in their careers, attorney Brandeis later became Judge and then Justice Brandeis.  



7.     After a history of baseball in which no team had gone from last place one year to a league championship in the next, in 1991, **both** the AL and NL Champions, the Minnesota Twins and Atlanta Braves, were teams that had finished last in their division the previous year.  The result was one of the closest World Series ever played, with three games decided in extra innings, four decided in the final at bat, and the Twins coming back from being down 3 games to 2 to win the 6th game in the 11th inning (on a Kirby Puckett home run) and the 7th game in the 10th inning.  This was also the first seven-game world series since Minnesota previously beat St. Louis in 1987 to win their first World Series since they had won it, in a “past life” (and with a past identity) as Walter Johnson’s Washington Senators in 1924.  Despite these dramatic contributions to baseball history, the power-that-be in the Major Leagues in 2001-2002 contemplated simply eliminating the Twins in a proposed MLB contraction.  You can read more about that, and the law related to it, in Minnesota’s ‘Homer Hanky’ Jurisprudence: Contraction, Ethics, and the Twins by Paul Horan and (Prawfsblawger) Jason Solomon.

Possible Law Analogy:   Of course, there are also instances in constitutional law of “the last shall be first, and the first shall be last.”  It happens when a dissenting opinion comes to be the Court’s ruling, and while this usually doesn’t happen quite as quickly as it did between the 1990 and 1991 baseball seasons, it can happen pretty fast.  It took only 9 years for the Court to overrule National League of Cities v. Usery, 7 years for the Court to discard Pennsylavania v. Union Gas, 3 years to reverse Minersville School District v. Gobitis.  Some overrulings have come even more quickly.  One the other hand, some Sup. Ct. decisions last longer, like Flood v. Kuhn, written by Justice Harry Blackmun, a Minnesotan, and including numerous references to baseball history (including one to Clark Griffith, whose nephew Calvin, moved Griffith’s Washington Senators to Minnesota and renamed them the Twins).



8.     Speaking of come-from-behind World Series victories, another impressive one occurred when the 1979 Pittsburgh Pirates – with one of the year’s hit songs, “We are Family” as their theme song – came behind from a 3-1 Series deficit to beat the Baltimore Orioles led by Willie “Pops” Stargell.

Possible Law Analogy:    I read (or perhaps dreamed about) a good history of The Supreme Court recounting that Chief Justice Burger – who was Chief Justice during the 1979 World Series – used to similarly have all the Justices sing “We are Family” just before Supreme Court deliberations to try to promote camaraderie, and to emphasize the same communitarian themes that he liked to include in his opinions.



9.     It’s not uncommon for injuries to send baseball players to the disabled list, but some get there for more memorable reasons than others.   Among those the most memorable are those where a player was taken out by an insect or arachnid. Milwaukee Brewers Dave Nilsson had to go on the DL after a mosquito bite got him sick in Australia.  Cubs player Jose Cardenal had to miss a game after being kept up all night by singing crickets (The unlucky Cardenal had to miss another game when his eyelid got stuck shut, perhaps thanks to some microscopic bug?).  And Toronto Blue Jays’ DH Glen Allen Hill learned the hard way that imaginary bugs can be even more dangerous than real ones when a nightmare about being attacked by spiders sent him crashing through a glass table.   All this makes me wonder whether “scientific baseball” has now quietly been taken to a new level, with entomologists – and perhaps voodoo practitioners –hired by unscrupulous team owners to send trained insects and spiders, or evil dreams, after their opponents’ players.

Possible Law Analogy:   A pesky insect not only has the power stop a baseball player in his tracks.  It can also stop a massive construction project (with a little help from federal legislators, administrators, and judges).  When San Bernardino County wanted to build a new hospital, it found its plans thwarted by the Delhi Sands Flower-Loving fly (when fly was classified by The Fish and Wildlife Service as an endangered species).  The DC Circuit then ruled, in Nat’l Assoc. of Homebuilders v. Babbitt, that this protection of the Delhi Sands Flower-Loving Fly was within the federal government’s power under The Commerce Clause.


10.     English-born journalist Henry Chadwick was the most prominent baseball journalist of the late 19th century and deserves a lot of credit for today’s Moneyball/SABRmetrics methods of thinking about the game.  He’s considered the inventor of the box score and one of the major forces in making player statistics such an important part of baseball culture.

But just as important as his contribution to this supremely rational side of baseball culture was his contribution to the more mystical, faith-based element of its nature.  More specifically, when he made the highly plausible suggestion that baseball evolved from the English game of rounders, an indignant Al Spalding set out to prove him wrong by showing it was 100% American in origin.   He worked in 1905 to set up the Mills Commission to solve baseball’s origin once and for all (and make sure that solution placed its beginnings squarely on American soil).  Spalding and the Commission found what they were looking for when they received a letter from 71-year old Abner Graves, who remembered being present in Cooperstown, New York at the time that Abner Doubleday (later a Union General in the Civil War) invented the game in 1839.  Graves was 5-years old in 1839.  And Doubleday was probably too busy with his studies at The West Point Military Academy that year to travel back to Cooperstown and invent baseball.  But the story became legend and Cooperstown, NY became hallowed baseball ground, and the site of the Hall of Fame.

As Chad Oldfather’s article points out, Spalding thus helped to enshrine the notion that baseball was the quintessential American game and helped to do so by following up his Doubleday “discovery” with the following passage in the book, America’s National Game:

“It would be as impossible for a Briton, who had not breathed the air of this free land as a naturalized American citizen; for one who had no part or heritage in the hopes and achievements of our country, to play baseball, as it would be for an American, free from the trammels of English traditions, customs, or conventionalities, to play the national game of Great Britain.” (Perhaps he’s right: there were, I think, no American entrants in “Britain’s Got Talent.”).

Possible Law Analogy:  Much as Chadwick had done years earlier, historian Leonard Levy caused a stir in the world of First Amendment scholarship with the 1960 publication of his book, The Legacy of Suppression.  He proposed that the Framers’ understanding of First Amendment free speech was not a radical new safeguard for speech unique to America, but rather the old notion of English writer William Blackstone that “the liberty of the press consists in laying no previous restraint on publications and not in freedom from censure from criminal matter published.”  In other words, suggested Levy at the time, the Framers’ vision of First Amendment free speech was not our own modern broad notion of it – which protects people from being thrown in jail for unpopular statements – it was rather a much narrower conception, which barred the government only from censoring a speaker ahead of time (not from punishing him afterwards).  Many scholars disagreed with Levy’s thesis, arguing that the American conception of free speech at the founding was different from, and broader than, the earlier English one proposed by Blackstone. 


11.     There are lots of colorful fan chants, cheers, and paraphernalia.  Twins fans have homer hankies and Orioles fans yell out “Oh!” during the “O Say Can You See” line in the National Anthem.   One of the most legally-relevant has been the little stuffed rally monkey that Angels’ fans wave around, not only because it was at the center of a trademark fight, but also because it is a fan ritual that is supposed to be reserved only for the dire circumstances where it is necessary:  Rally monkeys are to be used only when “the Angels [are] either losing or tied in the 7th inning or later.”

Possible Law Analogy:   Thus, the use of the rally monkey is essentially an emergency power.   Like habeas suspension, it is not supposed to be trotted out every time someone can imagine a possible role for it in ordinary politics.  It also like the Article IV Amendment process, not be used before one tries other more ordinary chants, cheers, or magic rituals.  It’s rather supposed to be there for those rare situations when you need extraordinary measures.  Of course, the analogy isn’t perfect: as good a team as the Angels were in 2002, when the rally monkey became a national celebrity, they were probably behind in a home game (with rally monkeys twirling everywhere) far more often than we’d like to find ourselves invoking emergency or using the Article V amendment process. 

12.     In 1901, teams in an upstart new professional baseball league – the American League – started stealing star players from the more established National League, which had been around since 1876.   One of most famous players to switch leagues was star second baseman, Napoleon Lajoie, who jumped from National League’s Philadelphia Phillies to the American League’s Philadelphia Athletics.  The Phillies got a court-granted injunction preventing Lajoie from playing for anybody else, which led to the Athletics to trade Lajoie to another AL team to keep him outside the court’s jurisdiction.

Possible Law/Politics Analogy:   Lajoie’s cross-town league switch bears an uncanny similarity to the jump that Senate Judiciary star Arlen Spector would make 108 years later from the Pennsylvania Republican Party to being a Pennsylvania Democrat.   There’s also Planned Parenthood of Southeastern Pennsylvania v. Casey, where Gov. Casey took a position on Roe v. Wade at odds with those of many other Democrats and where Justices O’Connor, Kennedy, and Souter took positions surprising to many who expected a different one from nominees of Republican Presidents.  I suppose the analogy’s not the greatest fit in the world: Lajoie didn’t move to the American League because he decided he found their rules or philosophy more to his liking (he had no particular fondness for the Designated Hitter rule, which wasn’t introduced until 1973 anyway).  Like many other star players at the time, he just got a better offer.



13.     Speaking of switching leagues, there are only a handful managers good enough to have won World Series in both leagues (Sparky Anderson and Tony LaRussa), and Cy Young Awards on both an AL and NL team (Roger Clemens, Randy Johnson, Pedro Martinez) or a batting championship in both (Ed Delahanty).

Possible Law Analogy.   Some judges have won admiration from both sides of the political aisle.  The most topical example, of course: Judge Sonia Sotomayor was originally nominated to be a federal judge by George H.W. Bush before being elevated to the Second Circuit Court of Appeals by Bill Clinton and then nominated to the Supreme Court by Barack Obama.

Posted by Marc Blitz on June 5, 2009 at 02:31 AM in Sports | Permalink

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