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Law & Humanities Blog

Baseball and Legal Reasoning

Posted: 16 Dec 2013 08:44 AM PST

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. 

Child Abuse and Legal Intervention In Early Nineteenth Century Quebec

Posted: 16 Dec 2013 08:39 AM PST

Ian C.
Pilarczyk, Boston University School of Law, has published 'To Shudder at the Bare Recital of Those Acts': Child Abuse, Family, and Montreal Courts in the Early Nineteenth Century in IX Essays in the History of Canadian Law 370 (G. Blaine Baker and Donald Fyson eds., Toronto, University of Toronto Press for the Osgoode Society for Canadian Legal History, 2013).

This paper uses archival and other primary sources to reanimate the judicial response to child abuse by family members in Montreal for the period 1825-1850. In a period before the operation of child protection agencies, the records reveal a tentative but growing engagement with issues related to child abuse and a limited judicial response to impose limitations on parental authority. Parents and guardians were prosecuted and imprisoned for a range of offences, including assault, aggravated assault, ill-usage, and attempted murder. While incest was not a cognizable offence during this period, the judicial archives also reveal some evidence of the existence of incest as a social phenomenon, as well as some prosecutions (generally brought under the charge of ravishment or, more unusually, abduction). This paper contributes to our understanding of Quebec socio-legal history for an understudied time period, and adds dimension to our understanding of the manner in which the legal system grappled with compelling social phenomena before widespread legislative or public action on these issues.
Download the essay from SSRN at the link. 

Deconstructing "Benito Cereno"

Posted: 16 Dec 2013 08:07 AM PST

From the Chronicle of Higher Education: Greg Grandin on the historical background of Melville's Benito Cereno. Dr. Grandin is the author of the forthcoming The Empire of Necessity: Slavery, Freedom, and Deception (Metropolitan Books/Henry Holt, 2014). Here is a description of the book from the publisher's website.

One morning in 1805, off a remote island in the South Pacific, Captain Amasa Delano, a New England seal hunter, climbed aboard a distressed Spanish ship carrying scores of West Africans he thought were slaves. They weren't. Having earlier seized control of the vessel and slaughtered most of the crew, they were staging an elaborate ruse, acting as if they were humble servants. When Delano, an idealistic, anti-slavery republican, finally realized the deception, he responded with explosive violence.
Drawing on research on four continents, The Empire of Necessity explores the multiple forces that culminated in this extraordinary event—an event that already inspired Herman Melville's masterpiece Benito Cereno. Now historian Greg Grandin, with the gripping storytelling that was praised in Fordlandia, uses the dramatic happenings of that day to map a new transnational history of slavery in the Americas, capturing the clash of peoples, economies, and faiths that was the New World in the early 1800s. 


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