December 12, 2008

"The dynamics of the common law and the development of one of the most important technical rules of baseball..."

"... although on the surface almost completely different in outlook and philosophy, share significant elements."

When William S. Stevens was law student at the University of Pennsylvania in 1975, he wrote a law review note about the infield fly rule:
Published as a semi-parodic “aside” in June 1975, “The Common Law Origins of the Infield Fly Rule” quickly achieved legal fame, in part because nothing like it had ever appeared in a major law review, in part because of its concise, elegant reasoning. It continues to be cited by courts and legal commentators. It is taught in law schools. It is credited with giving birth to the law and baseball movement, a thriving branch of legal studies devoted to the law and its social context. It made lawyers think about the law in a different way....

“After Stevens, law reviews were never the same,” [said lawprof said Robert M. Jarvis.] “It was a cultural revolution. It cannot be overstated.”

The much-misunderstood infield fly rule was adopted in the 1890s to prevent fielders from taking advantage of a force-out situation at third base. It states that when there are fewer than two outs, and there are men on first and second base, or the bases are loaded, any fly ball in fair territory that, in the judgment of the umpire, is catchable by an infielder “with ordinary effort” is automatically deemed an out, even if the fielder drops the ball. The rule prevents a fielder from intentionally misplaying a fly and then turning a double play by throwing out the runners anticipating a caught fly ball....

Supporting his argument with a raft of footnotes dropped in like legal punch lines, Mr. Stevens described the infield-fly rule as a technical remedy for sneaky behavior that would not have occurred in the days when baseball was a gentlemen’s sport played for exercise.

Baseball, to keep alive the gentlemanly spirit underlying the game, drafted rules to enforce correct behavior. In civil society, the writ system evolved, giving plaintiffs a specific rule to appeal to when seeking redress. “Conduct was governed by general principles; but to enforce a rule of conduct, it was necessary to find a remedy in a specific writ,” Mr. Stevens wrote.

Like common law, the infield-fly rule developed bit by bit, with refinements added to address new problems as they arose, just as common law uses judicial decisions and legislation to make legal remedies conform to new situations.
On Monday, in Anchorage, Alaska, he died of a heart attack at age 60.

ADDED: Stevens is an inspiration to law students everywhere. You could write a little note and everyone would remember it. When your life is over, you could have a big NYT obituary for that elegant idea you worked out between classes and exams. Imagine hitting upon an analogy that everyone in your profession would remember -- an analogy that people would think of if the question were simply: What's a great analogy?

30 comments:

Original George said...

And not only that Betty Page is dead. Oh man.

The original Betty.

Ann Althouse said...

Bettie.

Yeah, I was going to post about that.

vet66 said...

There are some smart folks living in Alaska. Who would have thought...

AllenS said...

There is a rule (penalty) in football that needs to be tweaked: pass interference. If Sarah Palin isn't busy...

peter hoh said...

A delightful story. I shall raise a glass in his honor.

Page and Stevens. Both remembered for what they uncovered when they were young.

Ann Althouse said...

He was on a one-year job in Alaska. It's strange when you die somewhere other than your home town. Jim Morrison in Paris, etc.

rhhardin said...

A philosopher on the rules of baseball. (Stanley Cavell, _The Claim of Reason_, p.119)

Lem said...

Baseball, to keep alive the gentlemanly spirit underlying the game, drafted rules to enforce correct behavior.

Sadly, the game is now threatened by another kind of ungentlemanly spirit.

Unbridled rapacious greed.

EDH said...

I haven't read the note, but I will.

Nevertheless, it seems to me at first glance that with the advent of professional baseball especially, it's the law that necessitated the infield fly rule.

Professional players have a contractual if not fiduciary duty to advance the interests of their teams while on the field. In the absence of a law, or a rule of the game, it is incumbant upon the player under law to do that which is legal to make their team win.

Isn't it the law that superseded "Gentlemanly Spirit," and required a private rule of the game?

Zeb Quinn said...

After so elegantly reasoning and writing about the elegant common law-like evolution of the IFR, it's just a crying shame he didn't do a companion piece to it about the later ham-handed blunt force legislative intervention with Rule 6.10, the designated hitter rule.

Publius said...

"Gentlemanly spirit"? Paging Sir Archy...

siyeh pass said...

Simple reasoning, just like basebal (well, yes, except for Rule 6.10 and Astroturf). Thanks.

This is a very simple game. You throw the ball, you catch the ball, you hit the ball. Sometimes you win, sometimes you lose, sometimes it rains.

john said...

It's strange when you die somewhere other than your home town. It's strange the way you said that, professor. Are you a little squeemish? The lesson is: Don't die unless somebody's home.

Twice this fall we had the IFR called on our 12U fastpitch girls, and I had to explain that odd rule to the parents via email. Some were a little irate that their girls were in effect accused of being unsportsmanlike, but the reality was they couldn't catch a popup anyway.

Richard Dolan said...

Will Stevens and I were classmates in law school, and I remember well the hoot that his infield fly rule piece caused when it was first published. The first word of the article (it was either 'the' or 'a,' I forget which) got its own long footnote, and that set the tone for what was to come. By 1975 law review writing (and editing) had already become a self parody, even if no one involved in churning it out at the time wanted to say so. Enter Will, a born jokester, who couldn't let such an inviting target pass, and wasn't about to let the accumulated stuffiness that defined the received notion of "law review" get in his way. Its sly spirit also captured some of the craziness that passed for normal in 1975.

Fortunately he had the talent as a 3L editor and a writer to turn out a terrificly funny piece -- almost Colbert Report-type treatment well before its time. I didn't know, until reading his obit, that it had turned into something of an iconic piece among legal academics. Good for him. As he said, his 15 minutes turned into 22.5.

Lem said...

Once in a while you have an Alex Rodriguez (running from second to third after 2 outs) scream "I got it" thereby distracting the opposing player waiting on the popup fly into giving way to a phantom team mate.

That was such a bushleague play, the sports writes had a field day.
He will never do that again.

He also batted the ball away from a pitcher trying to tag him out at first - at a world series game no less.

This is the guy the Yankess are paying around 25 mill a year.

William said...

Tragically, baseball, even after all these long years of evolution, is not as inclusive as it should be. I, like so many of my countrymen, am left handed. In my lifetime I have never seen a left-handed 2nd baseman, shortstop, or 3rd baseman. The shortstop position in particular is the glamour position in the infield and lt handers are excluded from playing there. Left handers have a second class status in baseball. We are referred to in such sinister terms as "southpaw". Smug right handers have no idea of the damage their complacency and arrogance inflicts on sensitive 12 yr old psyches.....What is to be done? My suggestion is that on designated occasions the base paths should be reversed. The runner thus would run from third to 2nd to 1st to home. In this pattern a lt handed shortstop would have a positive advantage. Since left handers are 12% of the population at least 12% of the games should be played with these altered basepaths. As a good will gesture and as reparation for past damages, I would recommend that 25% of all games be played with these basepaths.....I understand that it is too late for me, but do we really want another generation of left handers to live out their lives without ever initiating a 3-2-1 double play? I appeal to the good sense and fair play of rt handers everywhere to bring about this change. If not, well, that's what courts are for.

campy said...

a 3-2-1 double play?

First base to catcher to pitcher? But there are plenty of left-handed first basepersons. Perhaps you mean a 6-4-3 double play?

Geoff Matthews said...

William,

Except for that last bit, well played. that captured the right note of outrage among the victim class.

Seven Machos said...

Common law is so great, but so misunderstood. So many people want to call it "judge-made" law. But it's not, not at all. It's a terrible abuse of power when judges think that way and a window in tyrannical souls who utter the phrase.

Common law is what reasonable people would do -- and, in fact, are doing -- anyway. The analogy works perfectly for the infield-fly rule.

wgh said...

Hmm... makes me want to read his original article (aside)... anyone have a link?

siyeh pass said...

William, follow the money - if you're left handed, you just have to learn how pitch.

Richard Dolan said...

You can find it here:
http://www.hutchinshall.com/InfieldFly.pdf

wgh said...

Thank you Richard!

Lem said...

I'm only going to say this once.

Pete Rose belongs in the flago-fuckign Hall of Fame!

It's Time. Enouf if Enouf.

ballyfager said...

William,

You have a major league team called the Cleveland Indians. Until this is changed to the Cleveland Native Americans your plaint will fall on deaf ears.

There is a pecking order to being the aggrieved party and your victimhood is subordinate to theirs.

P.S. I may be wrong about this but my understanding was that in the nineteenth century and even the very early twentieth, baseball was NOT a gentlemen's game. In fact, for the most part, nice people did not participate or attend.

Trooper York said...

“P.S. I may be wrong about this but my understanding was that in the nineteenth century and even the very early twentieth, baseball was NOT a gentlemen's game. In fact, for the most part, nice people did not participate or attend."

That is "exactly right and that low life spirit is what the game lacks today. Competition must be first and foremost and you should do whatever it takes to win. A-Rod was right in what he did his only mistake was backing down to the criticism of the douche bag sportswriters. It is very amusing that Lem wants Pete Rose in the Hall of Fame when he is the one guy who most epitomized the outlaw spirit of gas house gang baseball.
You can't have it both ways Lem

Trooper York said...

That's why Ty Cobb, Pepper Martin, Leo Durocher, Billy Martin,Peter Rose, Lou Pinella, Larry Bowa, and Wally Backman played the game the way it is supposed to be played. They would rip your eyes out to win the game.

rastajenk said...

I've always wondered what the purpose of the balk rule is. If the pitcher is on the mound, the batter is in the box, and a runner is on the base, everybody should be aware of everything, and there would be no need for the balk rule.

Trooper York said...

It's another attempt by the nanny state to legislate behavior. The pitcher should be able to fake out the runner and pick him off if he isn't paying attention to what the hell is going on. But they want to legislate morality and let these lazy ass players la-de-da it out there on the base paths. They have to throw at their coconuts and slike with the spikes high and sharpened. What a bunch of pussies we have playing today.

Der Hahn said...

I'm coming at this as more an observer of the game than a player or student, but saying the infield fly rule results from a need to enforce 'gentlemanly conduct' seems mostly tongue-in-cheek.

There is no guarantee that a deliberately misplayed fly ball in the 'infield fly' situation will turn into a double play or even an single out. Many playable balls have been infamously mishandled by professional players. Why would the outcome be different for deliberately mishandled balls? I think the key to the rule is that it allows runners on base to attempt to advance regardless of the skill of the infielder playing the ball.

What does that mean to the game? As I see it, it creates a more exciting game to watch. More runners advance instead of being held on base. More runs are scored. The rule also creates an advantage for hitters who bunt or who can hit long balls. Homeruns, bunts, and races between runners and the throw to the next bag are more exciting plays to watch than a routine popup to the infield. (You can see similalrities to the balk rule. It keeps runners on base and helps them advance.)

Combine that with its adoption at the beginning of the professional era and it's apparent that preventing deliberately misplayed balls is a rationalization for the rule. It, like many rule changes in professional sports, was adopted to make a more exciting game that more fans will come to see, to make players and owners more money.