T Y BL O G

FACUL Once the Land of the Braves— and More on American Law and Legal Culture

The Marquette Law School Faculty Blog, on the school’s website, is a wide-ranging forum. Consider this selection of recent postings from four professors, addressing passions past (the Milwaukee Braves) and present (Tim Tebow) and shedding light on matters as diverse as trends in copyright law and the constitutionality of anti-Sharia laws. Serious-minded and open-minded, the Faculty Blog offers lots more of this, in addition to reporting on what is going on at the Law School. Follow it at law.marquette.edu/facultyblog.

TWhy Milwaukee Lost the Braves By J. Gordon Hylton, Professor of Law

orty-six years ago, the baseball world trained its attention on the Wisconsin Supreme Court and its impending decision in the case of FWisconsin v. Milwaukee Braves, Inc., soon to be reported at 31 Wis. 2d 699, 144 N.W.2d 1 (1966). At issue was whether a Milwaukee trial judge, acting on behalf of the State of Wisconsin, could prevent the Milwaukee Braves Major League Baseball team from relocating to Atlanta, Georgia. After the team’s Chicago-based owners had announced their plans to move to Atlanta for the 1966 season, a criminal action was filed in Milwau- kee County Circuit Court. It alleged that the Braves and the other nine teams in the National League had conspired to deprive the City of Milwaukee of Major League Baseball and, moreover, had agreed that no replacement team would be permitted for the city. Thus, the complaint alleged, the defendants were in violation of the Wisconsin antitrust law. The defendants initially removed the lawsuit to the United States District Court for the Eastern District of Wisconsin, but on December 9, 1965, District Judge Robert Tehan, L’29, remanded the case to the state court. There trial was conducted before Judge (and former Marquette Law School Professor) Elmer W. Roller, L’22. On April 14, 1966, only hours before the Braves were to open the season with a game against the Pittsburgh Pirates in Atlanta, Judge Roller ruled that the owners of the Braves and the other National League teams had acted in “restraint of trade” and thus were in violation of the Wisconsin antitrust law. Roller fined the defendants $55,000, plus costs, and enjoined the Braves from playing their 1966 home games anywhere other than Milwaukee,

34 Summer 2012 Once the Land of the Braves— and More on American Law and Legal Culture

Eddie Mathews, third baseman for the Milwaukee Braves baseball team, slides into home plate, as Chicago Cubs catcher Cal Neeman tries to tag him.

Photo: Wisconsin Historical Society, 1957, WHS-6225 Marquette Lawyer 35 FACULTY BLOG 36 Summer 2012 case tookpriority over the “restrictive on interstate effect the legitimateinterestsof Stateof Wisconsin inthis authority.its own regulatory They alsomaintained that tion ofbaseballtothestates untilitexplicitly exercised Congress shouldbepresumed tohave the regula- left ries inthemajorityopinion and concludedinsteadthat zation ofbaseballinMilwaukee. dispute R withinterstatecommerce.terference The majoritydidnot Commerce Clauseandconstitutedanunenforceable in- afoula new team ran oftheUnitedStatesConstitution’s Bravesthe Milwaukee to return to or else to give the city by JudgeR regulation generally, oftheremedyimposed theportion organized baseballwas notexempt fromstateantitrust as well. concludedthatevenThe alternative theory if York Yankees (1953), rules tostateantitrust extended upheld by theU.S. inToolson SupremeCourt v. New exemption laws, fromthefederal antitrust mostrecently others. rationale The first was thatorganized baseball’s in Atlanta, andsixweeks later, onJuly27, aday that of 25-30. placeintheNationalLeaguewitharecordsat insixth who never hadalosingseasonwhileinMilwaukee, the appealwas argued—a day onwhichtheBraves, to hearthecaseonanexpedited basis. OnJune9, 1966, decision tothe Wisconsin SupremeCourt, whichagreed lowed theBraves tocontinueplaying in Atlanta. R to make for anexpansion arrangements teamfor 1967, in Milwaukee in1967. To give theNationalLeaguetime theNationalLeagueagreedtoplaceanew team unless oller stayed hisjudgmentuntilmid-June, thatal- anact The threedissentersdisagreedwithbothofthetheo- With thestay extended, theBraves continuedtoplay The Braves’ owners immediatelyappealedR oller’s themonopoli- concerning findings offact braced by twobraced justicesandthesecondby two oller that ordered the National League either oller thatorderedtheNationalLeagueeither would seethe Braves slumpingalltheway the Court explained thatonewas em- the Court down toeighthplace, the Wisconsin based ontwo different rationales, and Supreme Court overturnedR Supreme Court lower by anarrow ruling court against themove to Atlanta.) vote of 4-3. (Justice E. Harold vote of4-3. (Justice have sustainedR The Court’s majorityopinionwas the threedissenters, whowould fessor at Marquette, was oneof Hallows, alaw alsoformerly pro- oller’s injunction oller’s oller’s Buffalo, SanDiego, Toronto, and Montreal. franchises, asdidgroupsfrom Dallas–Ft. Worth, Denver, for the1969season, Milwaukee appliedfor oneofthe ber 1967thatitwould beaddingtwo additionalteams 1967. When theNational LeagueannouncedinNovem- Milwaukee would bewithoutmajorleaguebaseballfor in thereview. hadnotparticipated been deniedandthatJusticeFortas simplyannouncedthattherehearing petitionhad Court the Braves’ finallycametoanendwhenthe departure was denied. 23, OnJanuary 1967, thelitigationover the petition,now willingtosupport butrehearingalso for mightbe certiorari, perhapsinhopesthatFortas rehearthe petition petition requestingthattheCourt thepetition. port justicetosup- died asaresultofthefailurefourth event, theattempttoinvolve thenation’s highestcourt ordecisionofthispetition.”in theconsideration Inany according totheCourt’s announcement, “took nopart 4, justiceonOctober preme Court Justice Abe Fortas, shall HarlanII, Potter Stewart, andByron White. Justice Earl Warren andJustices Tom C. Clark, JohnMar of hearingthecase, was opposedby Chief butcertiorari Hugo Black, and William J. Brennan, Jr., were infavor on whethertohearthecase. Justices William O. Douglas, istic move, revealed theCourt thatitwas badlydivided state’s petitionfor certiorari. However, inanuncharacter haddeniedthe that theUnitedStatesSupremeCourt who hadovertaken thePirates. 10 gamesofthepennant-winningLos Angeles Dodgers, 77, placeinthe10-teamleagueandwithin goodfor fifth the restofseason, andendedupwitharecordof85- the teamallseason. The Braves played inspiredbaseball to clearaway thecloudofbadplay thathadhungover Pirates, the decisionseemed Wisconsin SupremeCourt ninth place, 14½gamesbehindthefirst-placePittsburgh play home. outtheseasonintheirnew southern orderwas dissolved,court andtheBraves were freeto was pending,for awritofcertiorari JudgeR States SupremeCourt. However, whilethestate’s petition loss, theStateof Wisconsin soughtreview intheUnited Wisconsin’s laws.” commerce thatmightresultfromtheenforcement of Thus, by lateJanuary, itwas clearthatthecityof In anotherunusualdevelopment, Wisconsina filed Although hehadtaken asaSu- theoathofoffice Milwaukeeans hadtowait untilDecember12tolearn Although theBraves lostagainonJuly28, tofall into Not willingtoconcededefeat suchanarrow after oller’s lower - - to move teamtovarious cities, hisstruggling includ- proposals ofKansasCity Athletics owner CharlieFinley if itwould leave thevacated citywithout ateam. The change citiesinsearchofgreaterrevenues, particularly additionalteamsto topermit become clearlyreluctant tween 1953and1961, MajorLeagueowners had broadcastingrights. sale ofincreasinglyimportant bothfor livegreater opportunities attendanceandfor the and theunderpopulatedareastonorth. Minnesota Twins tothewest, Lake Michigantotheeast, ed by theChicagoCubsand White Sox tothesouth, the jor LeagueBaseball. Incontrast, Milwaukee was bound- was also locatedinanarea(theSoutheast)withoutMa- larger growing andstillrapidly metropolitanarea, butit Major Leaguebaseballteam. Notonlywas itbasedina potential thanMilwaukee asasourceofrevenue for a that, inthemid-1960s, Atlanta simply heldmuchgreater another.one NationalLeagueattendancerecordafter league baseballgamessteadilyeroded, the Braves set in allbaseball. Inadecadeinwhichattendanceatmajor the restofdecadeoneshowpiece franchises the teamhadplayed since1871), theBraves were for relocating toMilwaukee in1953(fromBoston, where so anxioustoleave Milwaukee inthemid-1960s. After Milwaukee Braves litigationiswhy theBraves were Milwaukee, where they were renamedtheBrewers. and moved theone-year-old American Leagueteamto before OpeningDay SeattlePilotsshortly the bankrupt of course, iswhenBudSeligandhisassociatesbought mained withoutMajorLeagueBaseballuntil1970. That, played inCountyStadium1968–1969, Milwaukee re- result, except for atotalof20Chicago White Sox games and awarded teamstoSanDiegoandMontreal. As a in May 1968, theNationalLeagueignoredMilwaukee However, thewave after ofteamrelocationsbe- In otherwords, Atlanta’s superiorlocationprovided oftheanswer Part tothequestionlies inthefact The mostinterestingquestionarisingoutofthe However, whenthetwo were new franchises awarded is whytheBraves were so anxious toleave Milwaukee inthemid-1960s. The mostinteresting questionarisingoutoftheMilwaukee Braves litigation in 1960. Byonemeasure, theMilwaukee Braves were the team’s perceived beginning declining performance those for any other majorleagueteaminthe1950s. higher percentageofthemetropolitanpopulationthan and Milwaukee’s attendancetotalsrepresented amuch in oneofthesmallestmarkets inmajorleaguebaseball, in thepressearly1960s. The Braves were located factor. amuchmentionedexplanation This was certainly played inMilwaukee. Fan exhaustion may have beena winning recordduringeachofthe13seasonsthatit plicated, especiallygiven thattheteamhada thefact numbers, whichareamongthethingsomitted here. –ed.] andanalyzestheattendance the facultyblogsetsforth observers inthe1960sadoptedthatview. [Theposton of amisperception, itiseasytounderstand why many still apennantcontender. Although thiswas something thehometeam,ballpark tosupport even iftheteamwas seemednolongerwillingtogothe the citizenry being ahotbedofbaseballattendancetocityinwhich the mid-1960s, Milwaukee appearedtohave gonefrom make greaterprofits. in 1966, hadtheonlyreasontomove beenadesireto would have approved theBraves’ relocationto Atlanta and 1966. Itwas highlyunlikely thattheotherowners had beenregularlyrebuffed intheyears between 1962 Worth,Dallas–Ft. ing Atlanta, Louisville, andOakland, Braves’ heyday. HistoricalSociety, Photo:Wisconsin WHS-54732 An aerialviewofMilwaukeeCountyStadiumduringa gameinthe However, thedropinattendancewas also relatedto The reasonsfor inattendancearecom- thefalloff The sadrealitywas thatbetween themid-1950sand Marquette Lawyer 37

FACULTY BLOG FACULTY BLOG 38 Summer 2012 games thatyear. half millionpeopleshowed upfor theBraves home season was played underafan boycott, andbarelya for mostofthe1965season, openingday, after the1965 pressed anger. Although theBraves were infirst place the Milwaukee Braves of1965. in 1966, thelameduckstatusof essentiallyconfirming theBravesNational Leaguetopermit tomove to Atlanta they did declare thatitwas inthebestinterestsof approve all. the1965relocationplanafter However, lawsuit, theotherNationalLeagueowners refusedto byrejected theboard, and, inthefaceofapotential the 1965season. A teamoffer tobuy outtheleasewas ofitslease,complied withtheterms through whichran to sueenjointherelocationofteamunlessit themove.the otherNationalLeagueteamssupported team to Atlanta intimefor the1965season, andinitially losses, thedecisionwas finallymadetorelocatethe 1964, $500,000. totalingareported Inlightofcontinued games ontelevision, lossesin further theteamincurred Atlanta. Even withincreasedattendanceandmore that thenew owners plannedtomove theteamto an $80,000lossin1961. Major Leagues, in1960into converteda$500,000profit that theBraves probablyhadthehighestpayroll inthe decline inattendancerevenue, combinedwiththefact attendance droppedby almost400,000fans, andthe aprofit.Boston thattheteamfailedtoturn Theteam’s or attendance, itwas thefirst from year sincearriving ofeitheron-field performance hardly afailureinterms Worldstraight Series.) lost the1959playoff series, andthusmissedathird with theLos Angeles Dodgers. (Unfortunately, they 1957), andthey finishedinatie for firstplacein1959 pionships in 1957 and1958 (andthe World Seriesin the latteryear. They thenwon NationalLeaguecham- hind theBrooklynDodgers, andby onlyonegamein able run. In1955and1956, they finishedsecondbe- 1953 andthirdin1954, theBraves went onaremark- last five. tion intheirfirsteightseasonsMilwaukee thanintheir significantly moresuccessfulrelatively totheircompeti- Baseball history. Ontheotherhand, theBraves were mostconsistentlysuccessfulteaminMajorLeague the Fan tothisresolution was reaction oneofunre- However, theMilwaukee CountyBoardthreatened Throughout 1963and1964, were rumors rampant Although theMilwaukee Braves’ 1961seasonwas finishingsecondintheNationalLeague After

effect on the ground that its language regarding Sharia ontheground thatitslanguageregarding Sharia effect prohibitedtheOklahomalaw temporarily fromtaking thatatleast injunction issuedapreliminary court “Sharia Law” inmakingjudicialdecisions. A district “considering orusing” either law”“international or state’s from constitutiontoprohibitOklahoma courts voters approved aballotinitiative thatamendedtheir be relocatedtoalarger, morelucrative market. probably madeitinevitable thattheteamwould soon to owners withnocommitmenttoMilwaukee in1962 through 1964, was prettygood. actually Sellingtheteam attendance inMilwaukee intheearly1960s, atleast 1960–1965. Given itspopulation, MajorLeagueBaseball was theattendancefiguresof1953–1959, notthose for ture? inMilwaukeeThe realaberration baseballhistory prevent thesituationthatresultedinBraves’ depar I By RyanM.Scoville,AssistantProfessorofLaw Sharia LawAmendment A SecondLookatthe Was thatcouldhave thereanything beendoneto Amendment.” A quicksummary: In2010, Oklahoma Circuit issuedadecisiononOklahoma’s “Sharia Law n January, theU.S. of Court Appeals for the Tenth

- nited States onlytotreaties towhichtheUnitedStates pertains text Amendment narrowly. There isafairargument thatthe a coupleofways. The first the would betoconstrue or useofU.S. treaties. it would beunconstitutionaltobartheir consideration considering orusingcustominmuchthesameway that the Sharia from Amendment tobarOklahomacourts cepts thatview, thenitwould beunconstitutional for and thusbacked by theSupremacyClause. Ifoneac- offederalis thatsuchcustomaform commonlaw ofprettyheateddebate,a subject view thetraditional ter, bindstheUnitedStates. generally Though recently toitsdevelopment,objected andthus, mat- asaformal custombindsallstatesthathaveInternational nottimely the cerning Amendment’s law. languageoncustomary inOklahoma. ingly bepermissible byodds withthosedictated U.S. treatieswould seem- outcome ofacase. Even at litigationoutcomesdirectly the affect of how significantlythetreatymightotherwise its legalrelevance, even ineffect itsexistence, regardless prohibit aratified treaty’s oruseistodeny consideration treaties thathave thestatusofsupremefederal law. To fromconsideringorusing ment barsOklahomacourts those towhichtheUnitedStatesisaparty, the Amend- refers to treatieswithoutqualificationandthusincludes constitutionality isprettystraightforward. Insofarasit treaties towhichtheUnitedStatesisaparty. United States,” theClauseestablishessupremestatusfor or whichshallbemade, underthe Authority ofthe Law of theLand.” Byreferring totreatiesthatare “made, the Authority oftheUnitedStates, shallbethesupreme that “all Treaties made, orwhichshallbemade, under Article VI, 2oftheU.S. Section Constitutionestablishes custom ofallkinds. fied, andthusatleastfaciallyencompassestreaties both treatiesandcustom. This prohibitionisunquali- “considering orusing” law of international intheform from Amendment explicitly prohibitsOklahomacourts reason istheSupremacyClause. First, notethatthe lawinternational alsomay beunconstitutional. The it’s worthnotingthatthe Amendment’s languageon discretion inissuingtheinjunction. didnotabuseits court decision heldthatthedistrict Law violatestheEstablishmentClause. The Tenth Circuit A court mightattempt toavoidA court theseproblemsin There’s alsoaSupremacyClauseargument con- The argument for theShariaLaw Amendment’s un- Now oftheSupremacyClause. considerthetext Although notyet addressedby the courts, Ithink

about custom’s domesticstatus. toresolvetom may requirecourts alongstandingdebate tional oressentiallyirrelevant. And itstreatment ofcus- uncertain. Itstreatmentoftreatiesiseitherunconstitu - Amendment’s law languageoninternational is, atbest, of federal commonlaw. customlacksthe status squarely heldthatinternational has generated, buttheU.S. hasnever SupremeCourt argument sides ofthedebatethatBradley–Goldsmith There are, frankly, prettyintriguingarguments onboth onthatissue. doctrine fromthetraditional departure the statusoffederal commonlaw would requirea do anyway. nottodosomethingthatthey don’t tially tellthecourts as thatistrue, thenarrow interpretationwould essen- custom thatdonotbindtheUnitedStates. And solong resolve disputesover obscure principles ofinternational to I alsodoubtthatthey encountermany opportunities treaties towhichtheUnitedStatesisnoteven aparty. to resolve U.S. disputesconcerning treaties, muchless encountermany casesrequiringthem Oklahoma courts tional law essentiallyirrelevant inpractice. Idoubtthat pretation would renderthe Amendment’s- oninterna text encounter difficulties, however. First, thenarrow inter in theirdecisions. would homa courts notbeobligedtoconsideroruseit the SupremacyClausedoesnotencompassit, andOkla- 1990s. law isnotfederal commonlaw, Ifcustomary then itinthelate andJackGoldsmithfirstarticulated Bradley sinceProfessors Curtis has gainedatleastsomesupport view, to thetraditional tion would becontrary butit offederalsimply notaform commonlaw. This posi- unconstitutionality would betoconcludethatcustomis federal law. hibition appliesonlytotreatiesandcustomthatarenot Clause problemby ensuringthatthe Amendment’s pro- The narrow interpretationwould alleviate theSupremacy or bindingcustom, whicharethelaw ofthiscountry. or cultures.” The latterdoesnotimplicateratified treaties to theapplicationof “legal preceptsofothernations norms. tomary Otherlanguagestatesanoppositiononly includes U.S. treatiesandatleastarguably includescus- intent toadherefederal law—a bodythatobviously States. language, Certain for example, suggestsageneral is notaparty, andtocustomnotapplicabletheUnited In short, theconstitutionalityofShariaLaw Second, customlacks concludingthatinternational tosaveBoth oftheseefforts the Amendment would Another potentialway tosave the Amendment from Marquette Lawyer 39 -

FACULTY BLOG T Y BL O G after Tebowing in a school hallway. Whether their First Amendment speech and religion rights were violated is unknown—have all hallway obstructions led to such FACUL punishments?—but there can be no doubt that the Constitution applies to the school’s actions. Nor has Tebow-related conduct been confined to stu- dents. In Columbia, South Carolina, a high school coach seemingly encourages his athletes to be religious in the manner of Tim Tebow. That is entirely fine as a senti- ment, but if it translates to pre- or post-game prayers led or promoted by the coach, then the Establishment Clause would almost certainly make such conduct unconsti- tutional. The same might even be true of Tebow-like touchdown prayers by players, if encouraged, let alone Getty Images Sport directed, by the coaching staff. To be sure, it was in the context of a public high Tebowing and the Constitution school’s football game that even student-initiated and student-led prayer, when using the school’s public By Scott C. Idleman, Professor of Law address system on school property and under school faculty supervision, was held by the U.S. Supreme Court uch has been made of Denver Broncos (now (in 2000) to be unconstitutional under the Establishment New York Jets) quarterback Tim Tebow’s Clause. Although the Court noted that “nothing in the Moutward expressions of his Christian faith, es- Constitution . . . prohibits any public school student from pecially his practice of kneeling in moments of prayer— voluntarily praying at any time before, during, or after “Tebowing” as it is now called—after touchdowns, some the school day,” it further remarked that “the religious of them admittedly a bit miraculous. liberty protected by the Constitution is abridged when A recent issue of Time magazine, for example, the State affirmatively sponsors the particular religious included an article on Mr. Tebow, his faith, and the practice of prayer.” Tebowing phenomenon, with pictures of people in dif- In summary, Tebowing or other Tebow-like conduct ferent locations “Tebowing Round the World.” Fox Sports’ may in some instances be protected by the Constitution’s website similarly offers a gallery of athletes and celebri- First Amendment, while in others it may be circum- ties Tebowing in various settings. scribed if not absolutely prohibited. Such calls, of course, So, what is the possible relationship between Tebow- will ultimately be made not by zebra-striped referees on like conduct and the Constitution? As long as the faith the field of play but by black-robed judges in a court of expressions of Tim Tebow and his imitators don’t law, with no set limit on either the number of challenges implicate the government, then the Constitution, which or the use of instant-replay footage. generally concerns only the government’s actions, is not triggered. Whether non-governmental entities such as the NFL or the Broncos may place limits on Tebowing—e.g., The Conservative Turn in as “excessive celebration” prohibited by NFL Rule 12, § 3, art. 1(d)—is a matter that could potentially infringe play- Copyright Politics ers’ rights under federal or state civil rights statutes. But By Bruce E. Boyden, Assistant Professor of Law neither the First Amendment’s ban on religious establish- ments nor its guarantee of religious free exercise would come into play. avid Brooks had an interesting column in the The matter, alas, has not been confined either to New York Times in which he asked, “Why Tim Tebow or to non-governmental settings. At least Daren’t there more liberals in America?” According two public school students in New York, for instance, to Gallup Poll numbers, about 41 percent of Americans were suspended, allegedly for causing an obstruction, self-identify as conservative, versus 36 percent as

40 Summer 2012 moderate and 21 percent as liberal. This strikes Brooks Concerns about copyright lawsuits are similar, which T Y BL O G as a bit of a puzzle, since the financial crisis and the eco- is a bit surprising, since most copyright critics are prob- nomic downturn would seem to support liberal beliefs in ably politically liberal. The law is said to be hopelessly some ways. Brooks’s answer: “Americans may agree with nebulous, plaintiffs are out of control, the potential dam- FACUL liberal diagnoses, but they don’t trust the instrument the ages are huge, and even the faintest threat of a suit chills Democrats use to solve problems. They don’t trust the innovation and drags down individuals and businesses. federal government. A few decades ago they did, but There is no longer faith that judges and juries will sort now they don’t. Roughly 10 percent of Americans trust the good cases from the bad at a reasonable price. And government to do the right thing most of the time, ac- even if they could, the plaintiffs are looked at askance, cording to an October New York Times, CBS News poll.” as not really suffering an injury worth remedying at any Brooks goes on to speculate about the basis for that non-trivial investment of time and resources. distrust: “Why don’t Americans trust their government? Part of the common theme here is, I think, part of the It’s not because they dislike individual programs like long-term trend away from the common law in American Medicare. It’s more likely because they think the whole jurisprudence. Once, a hundred years ago, nearly all of system is rigged. Or to put it in the economists’ lan- the law in its everyday application was non- guage, they believe the government has been captured statutory—entirely accreted from judicial by rent-seekers.” opinions over the centuries, without any This all sounds very familiar. It’s essentially the basis basis in statutes. Even where there were of the current critique of copyright law: that Congress statutes, judges felt free to add to them has become beholden to a few stakeholders, and, as a with doctrines of their own making— result, modern copyright law has become unmoored fair use and secondary liability in from any legitimate purpose and now simply apportions copyright law are well-known exam- rents to favored dinosaur industries. ples. Indeed, much of the doctrine we But even that description of the situation is not dark have in copyright law was built during enough. The pessimism, in copyright as well as politics this era—substantial similarity, the idea/ generally, extends to the judicial branch as well. The expression distinction, merger and scènes à Supreme Court, along with conservatives, has essen- faire—which explains copyright’s different feel tially given up on the courts and lawsuits as an instru- from patent law, which was statutorily codified in ment for civil justice. I think this is what explains the 1952 in a way that did not simply preserve the judicially sharp turn in recent years away from discovery as the developed doctrines that came before. fire in which the truth proves its mettle, away from Copyright, like tort, is to a large extent a common law class actions, toward summary judgment, away from subject, and the zeitgeist is moving steadily away from jury control over punitive damages, away from lawsuits courts as the locus of law’s development—or, really, of generally and toward arbitration at every opportunity. any legitimate decision-making control over the law at Think of the rhetoric in favor of “tort reform”—limit- all, beyond mere application. This trend is exemplified ing tort lawsuits and especially placing damage caps by the Supreme Court confirmation hearings in which on actions, for example, for grievous injuries caused by nominees from both parties describe the enterprise of negligence. The very idea of letting negligence determi- judging as more or less a routine application of exist- nations go to the jury—once a core function of juries— ing law to facts. For whatever reason, nebulousness and strikes many as intolerable. Tort lawsuits are said to be uncertainty—in tort law, in litigation costs, in copy- out of control, with liability highly unpredictable, and right—are becoming less tolerable, and the practice of unreasonable, eye-popping damage awards that create legislatures of kicking key legal determinations to judges a chilling effect that acts as a drag on innovation, sup- or juries is getting viewed with more and more suspicion ported only by a highly influential lobby that controls and anger. I think that’s a long-term problem, however, the relevant legislatures. Only the lawyers win. There’s as the idea of being able to regulate conduct through the considerable skepticism in the tort reform rhetoric operation of some sort of fully specified, easy-to-apply about the plaintiffs, too—who are these complainers? set of rules identified in advance is just as unachievable Why can’t they just suck up the trivial misfortunes that now as it was when H.L.A. Hart made fun of it in The come their way? Concept of Law in 1961.

Marquette Lawyer 41