Takings Pop Ups Seriously: The Jurisprudence of the Infield Fly Rule

In 1975, the University of Pennsylvania published a remarkable item. Rather than being deemed an article, note, or comment, it was classified as an "Aside." The item was of course, The Common Law Origins of the Infield Fly Rule. This piece of legal scholarship was remarkable in numerous ways. First, it was published anonymously and the author's identity was not known publicly for decades. Second, it was genuinely funny, perhaps one of the funniest pieces of true scholarship in a field dominated mostly by turgid prose and ineffective attempts at humor by way of cutesy titles or bad puns. Third, it was short and to the point in a field in which a reader new to law reviews would assume that authors are paid by the word or footnote. Fourth, the article was learned and actually about something - how baseball's infield fly rule is consistent with, and an example of, the common law processes of rule creation and legal reasoning in the Anglo-American tradition. The article also was the launching point of the Law and Baseball movement. Legal scholars simply cannot keep their hands off the infield fly rule - either substantively or as a metaphor. An eminent antitrust scholar quickly responded to the Aside, arguing that the infield fly rule was in fact the product of law and economics concerns about efficiency (and potentially other more humanistic concerns) and that the Aside was fatally flawed in portraying the infield fly rule as inevitable or the product of a scientific legal regime. Metaphorically, the infield fly rule also has been used to analyze legal problems in tax, evidence, labor law, constitutional law, e-commerce, and the law of prostitution, as well as topics in areas as far afield as linguistics. It has been utilized to analyze problems in cases ranging from the law of sexual harassment to the law governing compromise and settlement. Indeed, the infield fly rule has even been cited as a possible topic of political protest and has been cited in religious sermons. The Common Law Origins of the Infield Fly Rule has been widely cited in articles dealing with both baseball and such diverse other subjects as legal theory, legal history, bankruptcy, criminal law, civil rights, constitutional law, and legal citation. For all its greatness, though, Common Law Origins is a creature of its time. Written with reference only to common law reasoning, it bears a striking resemblance to the legal process school's conception of the proper development of law through a process of politically neutral reasoned elaboration. Even in 1975, the concept of the Legal Process school as the appropriate jurisprudential tool to view law was under heavy attack. Moreover, Common Law Origins appears to have deliberately chosen not to address earlier jurisprudential movements such as legal positivism, legal realism, and natural law which would have offered quite different explorations for the evolution and significance of the infield fly rule. In addition, the Aside was published in 1975 at the very beginning of the flowering of what is now often referred to as Post-Modern jurisprudence with its many different approaches to challenging legal orthodoxy. Such challenges can be found in an array of sources ranging from law and economics, critical legal studies, feminist jurisprudence, and cultural studies. We propose to go beyond the common law origins of the infield fly rule and do what the author chose not to do: namely, explore the different spaces for an infield fly rule from the point of view of the great jurisprudential movements of the last hundred years. In so doing we conclude (i) that post-modern jurisprudence strongly suggests that the infield fly rule was far more socially constructed and historically contingent than previously acknowledged, and (ii) that it is much more difficult to be clever, funny, and insightful about Law and Baseball than it appears.