Sports and the Law Review

Sports and the Law 3 Above the Law blog.jpgIn honor of both the start of baseball season and April Fool’s Day, log onto Westlaw and type in 123 U. Pa. L. Rev. 1474. What you will find is a piece from the June 1975 University of Pennsylvania Law Review called The Common Law Origins of the Infield Fly Rule. This Aside, presumably written tongue-in-cheek, examines “whether the same types of forces that shaped the development of the common law also generated the Infield Fly Rule.”
The Infield Fly Rule is a baseball rule that prevents infielders from intentionally dropping pop flies with less than two outs and either runners on first and second base or the bases loaded. According to the rule, if a batter hits a pop fly in infield territory, the umpire is supposed to automatically call the batter “out.” Runners are then free to advance at their own risk.
As discussed in the Aside, baseball owners implemented the Infield Fly Rule to combat gamesmanship by infielders, including most famously Columbia Law School graduate Monte Ward, who realized that intentionally dropping pop flies would allow turning single outs into double plays and triple plays. Without adding such a rule, base runners would have no way to know whether to advance or retreat on pop flies until the very last moment.
Over the years, The Common Law Origins of the Infield Fly Rule has developed a cult following. The work has been cited 56 times, including by the U.S. Court of Appeals for the Fifth Circuit. Wikipedia ranks the Aside as one of the sixteen most “significant” works ever published by Penn Law Review. The author Will Stevens even stepped forward to identify himself after having originally published the piece anonymously.
More discussion, after the jump.

The Common Law Origins of the Infield Fly Rule is popular today for three reasons. First, although iconoclastic, the Aside actually does a good job of discussing the emergence of common law. To that extent, the work adds serious value to mainstream academic discourse.
Second, most baseball fans enjoy reading the Aside for its intermingled stories about the game. For example, when explaining that in the old days of baseball “[v]ictory was to be pursued by any means possible,” the author recounts a tale about how in the days when baseball’s rules allowed substitutions “on mere notice to the umpire,” a player named Mike “King” Kelly inserted himself into the game when a ball was already in the air to catch a pop fly that was out of the reach of any of his teammates (footnote 21). Needless to say, that rule was thereafter changed.
Finally, in a less serious vein, the Aside does a great job of mocking the regimental style of law review writing. After the Aside’s very first word (“the”), the author drops a footnote to provide a definition for that word. After the second use of “the,” the author drops another footnote, stating “Note 1 supra.”
The author also has fun playing with words and phrases with multiple connotations. In defining the term “origins” (as in “common law origins”), the author cites to both Scopes v. State and Genesis 1:1-2:9 (footnote 6). Meanwhile, for contract law’s unclean hands doctrine, the author cites not to Williston or Corbin but rather to a section of the California Health and Safety Code that requires food service employees to wash their hands (footnote 37). Finally, with respect to the sentence, “A gentleman, when playing a game, does not act in a manner so unexpected as to constitute trickery,” the author cites simply to “see e.g., Pluck (the wonder chicken).”
I am not particularly versed in poultry. However, for those of you that may know anything about Pluck the Wonder Chicken, please feel free to enlighten our readers by explaining below in the comments.
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Marc Edelman is an attorney, business consultant, published author and professor, whose focus is on the fields of sports business and law. You can read his full bio by clicking here, and you can reach him by email by clicking here.

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