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The Rules of the Game

Lawyers get paid to parse arcane rules and to figure out how they apply to a particular fact pattern.

Real estate practice has some rules that are so colorful, they get their own names. Anyone remember The Rule in Shelley’s Case and The Rule Against Perpetuities?

But the law has its match for arcane rules in the grand old game of baseball.

The official rulebook of baseball (you can download your very own copy at mlb.com) is thick for what is really a game for kids. And the rulebook is thorough, covering all kinds of fact patterns. A lawyer would be proud how many are included.

For example, there are 23 different ways a batter can get to first base. One of them is “hit a single.”

There are 15 different ways a pitcher can balk, defined in my downloaded rulebook  as “an illegal act by the pitcher with a runner or runners on base, entitling all runners to advance one base.”

“Illegal act.” See? Baseball and the law are practically one.

And baseball has its own judges. They wear masks and pads and stand behind home plate.

Recall U.S. Chief Justice John Roberts’ famous opening statement at his Senate confirmation hearing in 2005. He promised that he would “remember that it’s my job to call balls and strikes and not to pitch or bat.”

Law imitates baseball.

The MLB rulebook is practically a Bible to some sportscasters.

A few years back, I was watching a game on TV when a batter popped up a pitch.

“Infield fly rule,” one of the announcers was quick to say, way faster than any lawyer could assess a case and say, “Rule Against Perpetuities.”

Ah, the infield fly rule. It’s often cited in any discussion of complicated baseball rules.

The Infield Fly Rule comes into play if there are fewer than two outs and there are runners at first and second or the bases are loaded. Any playable pop fly within the infield is an automatic out. See MLB Official Baseball Rules, Rules 2.00, 6.05 (2013).

Why is it an out?

It would be easy for the infielder to say, oops, my bad, and let the ball drop, then pick it up and start a quick double play on base runners who thought the ball would be caught.

You don’t hear the Infield Fly Rule called very often. But the rules are there, waiting for the facts to align.

A legal scholar once wrote a law review article on the Infield Fly Rule. In 1975, the University of Pennsylvania Law Review published a note entitled, “The Common Law Origins of the Infield Fly Rule.”

It starts off, rather elegantly, with the line, “The Infield Fly Rule is neither a rule of law nor one of equity; it is a rule of baseball.”

For eight well-footnoted pages, the author slyly discusses the rule with the high tone and seriousness of purpose one finds in most law review articles. But he was, remember, talkin’ baseball.

The note was written by a man named William Stevens, who apparently was the first guy ever to have fun in a law review article.

When he died in 2008, the New York Times obituary quoted an observer who said that Stevens’ little baseball note started “a cultural revolution.”

Well, a revolution among those who write law review notes, anyway.

The best oddball baseball rule that I found was the Travesty Rule.

Its origins are kind of murky, but it’s a catch-all rule holding that when anyone, such as a player or manager, did something to make “a travesty of the game,” i.e., to disrespect it or to reduce it to a farce, then that action was null and void. Umpires could eject a player or manager, or call a man out, if the offender was committing an act that would be “a travesty of the game.”

In 1951, St. Louis Browns owner Bill Veeck pulled a publicity stunt that put him in the baseball history books: He signed Eddie Gaedel, a 3-foot-7-inch dwarf, and put him in as a pinch-hitter. The strike zone for Gaedel (who wore the number “1/8”) was about an inch and a half; he walked on four pitches, registering a lifetime on-base percentage of 1.000.

American League President Will Harridge banned Gaedel the next day, saying his appearance made a “travesty of the game.”

Pittsburgh sportswriter Tom Hritz credited the origin of the Travesty Rule to Don Hoak, a member of the Pirates in the early 1960s. Hoak once advanced 89 feet down the third-base line after a foul ball. The umps ordered him back to third, but Hoak said the rules didn’t require him to tag up. The guys in blue consulted the rulebook and realized he was right. As the pitcher wound up for the next pitch, Hoak stepped one more foot and scored. The Travesty Rule was written a few days later, along with the tag-up rule, according to Hritz.

Today, according to Rule 7.08(i), the Travesty Rule is limited to shenanigans such as “running the bases in reverse order.”

Just imagine if the law had a Travesty Rule. If opposing counsel tried oppressive hardball tactics at a deposition or overly theatrical antics at a trial, a lawyer could go to judge and argue his opponent was making “a travesty of the law” and should have his case dismissed.

Boy, there’s a rule I bet judges could get behind.

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