Swinging at the Facts: How Baseball Informs Legal Argument

Author:Josephine (Jo) R. Potuto
Position:Potuto is the Richard H. Larson Professor of Constitutional Law at the University of Nebraska College of Law. This Article combines two areas of prime interest: writing and baseball. Potuto's book, Winning Appeals, discusses the elements of good writing and persuasive argument. She has taught the subject to law students and practicing lawyers. ...
Pages:245-265
 
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Swinging at the Facts: How Baseball Informs Legal
Argument
Josephine (Jo) R. Potuto*
TABLE OF CONTENTS
Introduction .................................................................................. 246
I. Baseball and Litigation, Briefly and Simply ................................ 249
II. Elements of Hitting ...................................................................... 251
III. Elements of Legal Argument and Litigation ................................ 253
IV. Baseball and Persuasive Writing: Put Em Together and
What Have You Got? ................................................................... 255
V. Horse and Carriage Illustrated ...................................................... 257
A. Example 1: Holding a Banana, Not a Bat .............................. 257
B. Example 2: Holding a Super Bat, but Whiffing ..................... 258
C. Example 3: Holding a Super Bat, but Having No
Pitch to Hit ............................................................................. 259
D. Example 4: Success ............................................................... 259
VI. Batting and Legal Argument, the Closer ...................................... 259
Appendix—“Whos On First? .................................................... 260
Copyright 2017, by JOSEPHINE (JO) R. POTUTO.
* Potuto is the Richard H. Larson Professor of Constitutional Law at the
University of Nebraska College of Law. This Article combines two areas of prime
interest: writing and baseball. Potutos book, Winning Appeals, discusses the
elements of good writing and persuasive argument. She has taught the subject to
law students and practicing lawyers. In a past life, Potuto worked in editing and
production. Potuto is a lifelong New Yor k Yankees baseball fan from a large
extended family of Yankee fans. Ettie Ward compiled a book of essa ys on the
New York Yankees, Courting the Yankees: Lega l Essays on the Bronx Bombers
(Carolina Academic Press 2003). Her contributors were law professor Yankee
fans. Potuto admits to both deep regret and envy that she was not one of them.
Potuto owes many and deep thanks to law professors and baseball fans Bill Lyons
(Boston Red Sox) and John Lenich (Chicago White Sox). Each spent more time
than she deserved but certainly time that was warrantedin a close review of
an earlier draft of this article. Each provided many helpful comments. Potuto also
owes thanks to the University of Nebraska College of Law for the support
provided through the McCollum Summer Research Fund.
246 LOUISIANA LAW REVIEW [Vol. 78
INTRODUCTION
Baseball has been called a church1 and a path to God.2 It is the only sport
with its own widely recognized song3 and an iconic poem.4 It boasts the
cleverest and perhaps most loved comedy routine ever performed5 as well as
Casey Stengel and Yogi Berratwo of the best-known philosophers of
modern times. Baseball is the subject of movies spanning from ribald
comedies6 to biographies and histories7 to exercises in pure nostalgia.8 Writers
1. BULL DURHAM (Orion Pictures Corp. 1 988).
I believe in the Church of Baseball. Ive tried all the major religions, and most
of the minor ones. Ive worshipped Buddha, Allah, Brahma, Vishnu, Siva,
trees, mushrooms, and Isadora Duncan. . . But it just didnt work out between
us. The Lord laid too much guilt on me. . . Its a long season and you gotta
trust it. Ive tried em all, I really have, and the only church that truly feeds
the soul, day in, day out, is the Church of Baseball.
Id.
2. See JOHN SEXTON, BASEBALL AS A ROAD TO GOD: SEEING BEYOND THE
GAME (2013).
3. JACK NORWORTH, Take Me Out to the Ballgame (York Music Co. 1908).
Other songs also pay tribute to baseball. See, e.g., JOHN FOGERTY, Centerfield, on
CENTERFIELD (Warner Bros. 1985). There may be popular songs written in tribute
of other sports. I can think of none.
4. Ernest Thayer, Casey at th e Bat, S.F. EXAMINER, June 3 , 1888, at 4.
Another baseball poem was written about the famous Chicago Cubs double pla y
combination. Franklin Pierce Adams, Baseba lls Sad Lexicon, N.Y. EVENING
MAIL, July 12, 1910, at 6.
5. T he routine is Abbott and Costellos famous sketch, Whos on First? See
The Abbott and Costello Show: The Actors Home (T.C.A. Productions television
broadcast May 15, 1953). For the full routine, see the Appendix. I could not resist
including it.
6. These movies include Major League and Bull Durham. See Mike Oz, Major
League Turns 25 Here Are 15 Things You Didnt Know about the Movie, YAHOO
SPORTS (Apr. 7, 2014), https://sports.yahoo.com/blogs/mlb-big-league-stew/-major-
league--turns-25--here-are-15-things-you-didn-t-know-about-the-beloved-film-
091540571.html [https://perma.cc/675F-X4XP]; Roger Cormier, 15 Major Fa cts
About Bull Durham, MENTAL FLOSS, http://mentalfloss.com/article/65034/15-major-
facts-about-bull-durham (last visited June 28, 2017) [https://perma.cc/DC2R-GNA4].
7. One such biography is the biography of Lou Gehrig. THE PRIDE OF THE
YANKEES (Samuel Gold win Prods. 1942). One such histor y details the Chica go
White Sox throwing the 1919 World Series. See EIGHT MEN OUT (Orion Pictures
Corp. 1988). The movie was based on a novel by the same name. See ELIOT
ASIMOV, EIGHT MEN OUT: THE BLACK SOX AND THE 1919 WORLD SERIES (Henry
Holt and Co. 1963).
8. See W.P. KINSELLA, SHOELESS JOE (1982). The reclusive writer/baseball
fan in the story is another famous author, J.D. Salinger (named in the boo k,

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