f/k/a archives . . . real opinions & real haiku

December 8, 2004

baseball’s antitrust exemption: intestate commerce (stare decisis on steroids?)

Filed under: pre-06-2006 — David Giacalone @ 6:58 pm

Federal Club v. National League is the disinherited child of interstate commerce law.  In a decision

written by Oliver Wendell Holmes, the Supreme Court decided in 1922 that baseball is not commerce

and the antitrust laws did not apply.  Although interstate commerce doctrine has changed mightily

since then, and all other sports have been brought under the interstate commerce umbrella, baseball

still has its antitrust exemption, due to the application of  the principle of stare decisis [“let what is

decided stand”] in Flood v. Kuhn in 1972.

                                                                                                                                                                                  at bat neg 


The interest in Congress over the use of steriods by baseball players has renewed the issue.  Two days

ago,   I asked if any one knew the current status of baseball under the Commerce Clause.  Today, Greg

at Sports Law Blog has strongly reiterated his belief that baseball is interstate commerce, disagreeing with Fed84.  Besides all the factual and doctrinal reasons that support this conclusion, Greg points to one

sentence in Flood v. Kuhn , the assertion that:

    “Professional baseball is a business and it is engaged in interstate commerce.”

And, Greg adds: “If it was true in 1972, I have to imagine it is true today.”  I would hope that common

sense prevails and baseball would be once and for all included within the Commerce Clause (and lose its

antitrust exemption).  However, I must note that the sentence from Flood is strictly speaking dictum, as the

issue did not have to be reached by the Court, which upheld the Federal Club antitrust exemption,


“If there is any inconsistency or illogic in all this, it is an inconsistency and illogic of

long standing that is to be remedied by the Congress and not by this Court. If we were

to act otherwise, we would be withdrawing from the conclusion as to congressional intent

made in Toolson and from the concerns as to retrospectivity therein expressed. Under

these circumstances, there is merit in consistency even though some might claim that

beneath that consistency is a layer of inconsistency.”

at bat  I believe Greg was correct when he said, on December 6, that Congress might use the threat to

withdraw baseball’s antitrust exemption as leverage to get baseball to fix the steroid problem on its own. 

[Of course, that would pit the players’ interest in having the antitrust exemption removed with the owners’

desire to keep the exemption.]


Two parting thoughts: (1) it will be interesting to see how this conservative Supreme Court deals with both

the Commerce Clause and stare decisis in a number of cases in the next few years; consistency? activism? 

(2) The Federal Club case indicates that even so venerable a justice as Oliver W. Holmes can come to a conclusion in a Commerce Clause case that seems to be based on personal whim rather than on precedent

and common sense (see the discussion in Flood, 407 U.S. 258, 271, showing there were precedent by the

likes of Learned Hand, Justice Harlan, and Holmes himself that pointed to finding baseball to be commerce).  Folks might keep that in mind when predicting the results in the pendng wine shipping and medical marijuana



update (Oct. 1, 2005): More on this topic in “exempt this! baseball, antitrust & stare decisis”,

which discusses Bruce Fein‘s article Baseball’s Privileged Antitrust Exemption(Washington 

Lawyer, Oct. 2005).  Fein gives the history of the exemption and shows how it has harmed fans in

the District of Columbia.


high noon

the boys refill

their water pistols



the foul ball lands

in an empty seat

summer’s end



bases loaded

a full moon clears

the right field fence



“high noon” –   July Selection, Snapshot Press, 2005 Haiku Calendar                                                  

“the foul ball lands” – Modern Haiku 35.2 (Summer 2004);  

“bases loaded” – from the haiku chapbook piano practice       


the lobsters stir

Filed under: pre-06-2006 — David Giacalone @ 11:48 am

untended fish stall–

the lobsters

stir in their tanks



spelling test

the teacher’s

squeaky shoes



credits: “untended fish stall” – Modern Haiku XXX:3

“spelling test” – Frogpond XXIII:3


55 limit n  Most days, I think age is mostly a mind thing, but today is my last day in my

“early 50’s”, and it is hard to ignore some of the bodily signs of aging — especially

when I realize they will only exacerbate over the next few decades (we live pretty

long in my family).  Looking back over haiku that I penned this Dec. week last year 

[scroll to bottom], they seemed to be body-worried, too.  To prove that my mind is

also going, I haven’t come up yet with a new haiku for today, but here is a fun

one from last December:


by dagosan:  

poking a cold nose
from under warm blankets
that squirrel and I
                              [dag, 12/05/03]

1 PM: Real-life brings inspiration:


frantic shampooing–

long hot shower

suddenly cold

                              [dag, 12/08/04]

 one-breath pundit

tiny check Best wishes to Mike “the Fedster” Cernovich at Crime & Federalism, who has his

last law school exam tomorrow (Dec. 9).  Mike hasn’t posted as of  Noon today — I hope that

means he is studying, rather than preparing an especially long post while procrastinating

just one more time as a law student.  Were there weblogs 28 years ago, I would have surely

been in the procrastinatin’ camp.


Even Gomer Nods : This might not measure up to other plagiarism episodes we’ve seen

this year (see, e.g. here, there, but it is at least a little ironic that the following Notice appeared

at the foot of the Speaking of Ethics column in this month’s Washington Lawyer:

From the Editors: We recently discovered that significant portions of a number of

“Speaking of Ethics” columns should have quoted or otherwise been attributed to

the opinions of the D.C. Bar’s Legal Ethics Committee. Washington Lawyer apologizes

to its readers for any confusion this oversight may have caused. The specific columns

involved are being noted and corrected in the magazine’s online pages at www.dcbar.org.”


tiny check  While Googling the “spelling test” haiku above, I notice an ad selling squeaky shoes

for babies and had to check it out.  The ad copy includes the statement “Parents love this shoe even

more than the kids.”  Perhaps Denise at B&B has an opinion on the product.  [I was Googling to make

sure I hadn’t already used Barry’s haiku on this site.  We Boomers need all the memory aids we can get.]


lawyer cellphone small  Bummer.  I completely missed the radio ads sponsored again this year by the

NYSBA, in their “Lawyers Trusted Advisors” series.  Prof. Yabut had a lot to say about an earlier version

of this campaign last April in PR or Parody?.  You can find the text for the 2004 ads here.  I was particularly

inspired to go hug a lawyer by this one:

Script 3 – “Rule of Law”:

Voice 1: To read the headlines, it seems our way of life is open to attack from inside

and outside forces.
Voice 2: We live in challenging times.
Voice 1: Change seems certain.
Voice 2: But one thing doesn’t change. . . our system of government. . . based not

on the politics of the moment. . .but on the rule of law.
Voice 1: The founders of our country made it that way.
Voice 2: Think about it.
Voice 1: The law. . .it’s your business. This message brought to you by the 72-thousand

member New York State Bar Association and the New York State Broadcasters Association.


tiny check  If you care about the future of lawyer advertising, you should check out the proposed ad rules from the Florida Bar’s “Advertising Task Force 2004”, which is seeking comments until Dec. 31. (via SunEthics)


tiny check I hope J. Craig Williams will turn his many talents to this story: “Judge’s role in quarrel queriedboxer smf

City Court jurist allegedly went toward defendant in heated exchange” (Albany (NY) Times Union, Dec. 8, 2004)

No one present is talking, and the steno’s transcript abruptly stops.  The article notes: 

“Sources said the argument between the two became so heated that Carter allegedly threw his robe

to the ground after he launched from his bench”

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