On the contribution of baseball to American legal theory.

• Author: Yablon, Charles M.

Americans are great lovers of games. We love to play them, to watch them, to argue about them, and to bet money on them. We use the term "game" to denote not only trivial and unimportant pastimes, but some of the most significant events in our personal and professional lives. As Wittgenstein so playfully pointed out, the term "game" has no fixed and definite meaning.(1) It can refer to anything from a ball bouncing against a wall to multimillion dollar corporate takeovers(2) to the most intimate of human relationships.(3)

Certain games are deeply embedded in American culture and psychology. American football, for example, is little understood by the rest of the world, but has acquired a quasi-religious significance in the United States as the ritual through which we observe some of our most important national holidays.(4) Although basketball, by contrast, has achieved worldwide popularity, it was invented in the United States,(5) and American superiority in the sport recently was demonstrated by the performance of the United States' "Dream Team" in the Barcelona Olympics and the so-called "Dream Team II" at the 1994 world basketball championships in Toronto. These teams dominated their opponents not just on the basketball court, but, more important, in the intense international competition for lucrative product endorsements.

But one game is more intimately linked to American society and American self-image than any other. Its rules and strategies are avidly studied by millions of Americans. It is the subject of intense media interest. Its most successful practitioners earn many millions of dollars. The outcome of a single contest can rivet the attention of whole cities, indeed, the entire nation. It can even cause riots to break out. It is a pastime Americans indulge in more frequently than any other people on earth. That game, of course, is litigation.

Americans also watch a lot of baseball.(6)

This Essay seeks to analyze the importance of baseball to American legal theory. This Essay does not discuss the law as it applies to baseball, although the scholarly law journals are replete with learned analyses of the baseball exemption to the antitrust laws,(7) the rights of free agency under collective bargaining agreements,(8) and even the tort liability of major league baseball to spectators beaned by hard-hit foul balls.(9) It is not even about the infamous George Brett pine tar incident, in which an umpire's ruling disqualifying a hit from an overtarred bat was reversed by the President of the American League,(10) nor about Justice Blackmun's list of eighty-eight of the most memorable baseball players, which appeared in the first part of the Supreme Court's decision in Flood v. Kuhn(11) (a section that Chief Justice Burger and Justice White declined to join).(12)

No, this Essay deals with the contribution of baseball to what is commonly referred to as jurisprudence or philosophy of law. It seeks to demonstrate how recent advances in American legal theory have been brought about by the salutary influence of baseball rules and baseball traditions on the thought processes of legal scholars. I realize the claim is a radical one. Not all legal scholars are baseball fanatics. I myself am only sort of a fair-weather Mets fan.(13) But as the contemporary academic world amply demonstrates, lack of actual knowledge of the subject matter is no impediment to serious scholarly work.

My thesis is a simple one, so I will attempt to state it with as much complexity as possible. First, all American lawyers are enmeshed in the normative boundaries of two incompatible legal systems: the so-called "real" legal system, which they tediously learn through years of law school, and the legal system of baseball, which they pick up effortlessly from playgrounds, sports pages, and television. Second, baseball's legal system is clearly and demonstrably superior to the real legal system. Third, most of the advances in American legal theory have come from lawyers trying to figure out why the real legal system can't be more like baseball.(14)

I will not bother to defend the proposition that Americans are familiar with the normative structure of baseball. Any American determined not to learn the fundamentals of baseball would have to make a lifelong effort to avoid all newspapers, television, playgrounds, and taverns, as well as certain forms of bubble gum and selected boxes of breakfast cereal. Anyone who chose to follow this unlikely (but oddly appealing) regimen would still likely wind up knowing what it means, in the American idiom, to "strike out," "get to first base," and "play in the big leagues."

The point of this Essay, then, is (1) to show that the normative structure of baseball is indeed superior to that of law, and (2) to describe how the attempts of various scholars to deal with that superiority have contributed to the development of American legal theory.

1. Getting to First: The Normative Superiority

   of Baseball to Law

   To begin, we must uncover the hidden history of games and the law. Lawyers play games. Judges play games. But precisely what game are they playing? Although the historical record remains obscure, and much of the relevant evidence has been suppressed, it appears that through much of early legal history, the game they were playing was dice.

   Consider that great legal theorist, Francois Rabelais, recounting the testimony of Judge Bridlegoose, an innovative sixteenth-century jurist who was often faced with the problem of conflicting or vague precedents that modern legal academics have come to characterize as the "indeterminacy of the law."(15) Bridlegoose subjected his cases to careful analysis. He quite literally weighed the pleadings and papers in the case before him. If the papers were voluminous, and the legal issues accordingly weighty, he resolved them by rolling his little dice. In simpler cases, with shorter pleadings, he used his big dice.(16) Although Bridlegoose's contemporaries questioned some of his methods, he justified them by pointing out that although his decisions were frequently appealed, none had ever been reversed.(17)

   Modern judges, however, have tended to reject the Bridlegoosian approach with a vehemence that is hard to comprehend. Courts of today occasionally tolerate dice playing on the part of jurors, but only because the rules of evidence prohibit any examination of a jury's decisionmaking process.(18) When judges engage in rolling the dice, however, they are universally condemned.(19) The reasons for this rejection of dice playing by judges remain unclear. After all, the judicial process is supposed to be fair, and nothing is fairer than a crap game - assuming, of course, that all parties have sufficient opportunity to inspect the dice.(20)

   Why does the prospect of deciding cases by dice make judges so uncomfortable? Random processes certainly are not unknown to the law. Most jurisdictions assign judges and jurors to cases at random. In the Southern District of New York, as in most courts with more than one judge, the judge assigned to a new case supposedly is determined by a "wheel" that is spun at the time the new case is filed.(21) So far as I know, however, no lawyer or litigant has ever watched the wheel being spun, or even observed it - a breach of gambling etiquette that would not be tolerated in even the seediest casino.(22)

   Of course, randomness in selecting the decisionmaker is unimportant if decisionmakers are fungible, that is, if all judges will decide like cases alike. Deciding the case by a roll of the dice, however, reintroduces an element that lawyers and judges have assiduously sought to banish from the legal process: the element of luck.

   Luck, like spitting and swearing at the judge, is absolutely forbidden in a court of law.(23) Litigants do not win because they are lucky. They win because they are "entitled" to relief. Lawyers do not win because they are lucky. They win because of their superior acumen and knowledge of the law. Nobody ever gets lucky in a court of law. Indeed, the very idea of introducing luck seems destructive to the smooth functioning of the legal system, which purports to be governed by rational and determinate processes. Yet, as we have seen, judges do not merely laugh off attempts to reach legal results through gambling or luck. Nor do they simply dismiss them as misguided efforts of foolish decisionmakers. They hate them and condemn them, and seek to suppress all discussion of such activities.(24) One cannot help wondering if this is because almost every judge has, at least in some difficult case, felt the urge to go back into chambers and roll those little dice just once.

   Contrast this stultifying and repressive attitude toward luck with the far more enlightened approach of baseball. In baseball, luck is permitted, even encouraged - and so, for that matter, are spitting and swearing at the judge. Luck is recognized as an essential element of the game, and its distribution among players and teams is carefully monitored and evaluated. There are hard-luck pitchers and lucky hits, and various devices designed to maximize the quantum of luck available to a given team (e.g., rally caps). This, then, is the first respect in which baseball is demonstrably superior to law. The rules of baseball successfully acknowledge and incorporate the element of luck. The rules of law foolishly seek to suppress it.

   Consider next the element of skill. While the normative structure of baseball acknowledges the importance of luck, it positively celebrates the skill and expertise of the game's great practitioners. Skill is the most important determinant of success in baseball, and the relative skills of various players are constantly assessed and compared, both through the market for free agents and through the statistical techniques for which the sport is famous. Indeed, many baseball statistics specifically measure the interrelationship between...