| Book Reviews |

A Well-Paid Slave: ’s Fight for Free him that he was part of a seven-player curiam decision in Toolson was joined Agency in Professional Sports trade with the . by such luminaries as Chief Justice Earl The news flooded him with anger. At Warren and Justices Hugo Black, Wil- By Brad Snyder 31 years of age and nearing the end of liam Douglas, Felix Frankfurter, and Viking, New York, NY, 2006. 472 pages, $25.95. his career, most of which he’d spent Robert Jackson. According to Snyder, with the Cardinals, the prospect of Opening Day: leaving his teammates, his home, and One commentator described Tool- The Story of ’s his business was not appealing. More- son as the first step in “the greatest over, although St. Louis was the south- bait-and-switch scheme in the his- First Season ernmost city in which a major team was tory of the Supreme Court.” The By Jonathan Eig located, the Cardinals were a tight team key to the “scheme” consisted of and racially enlightened, whereas the the second half of the opinion’s Simon & Schuster, New York, NY, 2007. 321 pages, $26.00. Phillies had a reputation for being less final sentence, a last-minute ad- inclined toward brotherly love. Flood dition to the unsigned opinion. announced that he would challenge “Without re-examination of the Re v i e w e d b y Jo n M. Sa n d s the . underlying issues, the judgments The reserve clause was collusive below are affirmed on the authori- and anti-competitive, and it violated ty of Federal ... ,” Toolson “It’s been written, Curt, that you’re a the Sherman Act. In 1922, however, concluded, “so far as that decision man who makes $90,000 a year, which in Federal Baseball Club of Baltimore determines that Congress had no isn’t exactly slave wages. What’s your Inc. v. of Professional intention of including the business retort to that?” Howard Cosell asked this Baseball Clubs, 259 U.S. 200, the Su- of baseball within the scope of the question of Curt Flood, a major league preme Court, in an opinion by Justice federal antitrust laws.” But Holm- baseball (MLB) player who, at the time, Oliver Wendell Holmes, ruled that pro- es never said anything in Federal was challenging baseball’s reserve fessional baseball games were not in- Baseball about what Congress had clause, a contractual term that bound a terstate commerce, but were intrastate intended in 1890, only that profes- player to one team for his career, bar- exhibitions with merely an incidental sional baseball as it operated in ring a trade. “A well-paid slave,” Flood relationship to interstate commerce. 1922 was not interstate commerce. replied, “is nonetheless a slave.” Snyder explains: The second half of this final sen- That retort—challenging, defiant, tence was recently discovered to and proud—heralded the modern age Holmes “loathe[d] and despise[d]” be the handiwork of the Court’s of sports, a time when owners bid for the Sherman Act, which he re- new chief justice, Earl Warren. players’ services and free-agent base- ferred to as a “foolish law,” [and] Warren was extremely uncomfort- ball players can earn millions of dollars. he knew almost nothing about able with the opinion, which had Flood made the retort during the pub- baseball. A bookish, unathletic been written by Hugo Black, the licity that followed his letter to Bowie child who had grown up in Boston former U.S. senator among the Kuhn, who was baseball commissioner before the Civil War, he had prob- justices. Warren had asked Black at the time. Flood had written, “After ably never seen a baseball game. to add the “so far as” clause “to twelve years in the Major Leagues, I do In Holmes’s defense, radio broad- make it clear that Congress has not feel that I am a piece of property to casts of baseball games in 1922 the right to regulate baseball if and be bought and sold irrespective of my were in their infancy, the farm sys- when it desires to do so.” Neither wishes. I believe that any system which tem concept was not popularized Black nor the other six justices in produces that result violates my basic until the 1930s, and the first televi- the majority objected to Warren’s rights as a citizen and is inconsistent sion broadcast of a major league addition, which helped transform with the laws of the United States and of game was not until 1939. In 1922, Holmes’s opinion into an express the several States.” it was not obvious that baseball’s “exemption” for baseball. Flood played center field for the St. effect on interstate commerce was Louis Cardinals. He finished his career more than “incidental.” Dissenting, Justice Harold Burton, with impressive statistics: a .293 life- joined by Justice Stanley Reed, argued time batting average, 1,861 hits, seven Thirty-one years later, in Toolson v. that Congress had not carved out a Gold Gloves, three appearances in the , 346 U.S. 356 (1953), baseball exception, and that baseball All-Star Game, and his achievement as the Court again upheld the reserve is obviously an interstate business. a key player on the Cardinals’ World clause, reasoning that Congress must Baseball, however, remained protect- Series teams of 1964, 1967, and 1968. have wanted to exempt baseball from ed, even though the Court refused to Then came the telephone call on Oct. the antitrust laws, or it would have extend the precedent to other profes- 8, 1969, when the Cardinals curtly told overturned Holmes’ decision. The per sional sports.

66 | The Federal Lawyer | August 2007 To challenge the Supreme Court for Flood was largely pro bono). As it Goldberg directly challenged the prec- precedent, Flood turned to Marvin Mill- turned out, having Goldberg represent edents, arguing that major league base- er, who had recently become the head Flood was one of Miller’s rare mistakes ball was interstate commerce and that of the players’ union, the Major League in judgment. the prior cases had been wrongly de- Players Association. At the time Flood In A Well-Paid Slave, author Brad cided and needed to be overturned. approached him, Miller had been try- Snyder, a graduate of Yale Law School, MLB was represented by Lou Hoynes, ing to win small concessions from the focuses on Flood’s court case and on a 36-year-old Harvard graduate, whom owners: a raise in the minimum salary, Goldberg, who was surprisingly inef- Bowie Kuhn had recruited to the firm increased pension benefits, and more fective at every stage of the litigation. of Wilkie, Farr & Gallagher, and who money for meals on the road. Miller had Goldberg filed suit in the U.S. District had worked closely with Kuhn before not counted on shaking the foundations Court in the Southern District of New Kuhn became baseball commissioner. of the game so soon. When Flood met York, where the court grandstanded Hoynes’ defense did not rest solely with him, Miller said that it was a “mil- throughout the trial before finally rul- on stare decisis. He also argued that lion-to-one shot,” but, impressed with ing against Flood because of the two Toolson had specifically called upon Flood’s determination and stubborn- Supreme Court cases that it viewed as Congress to act if it disapproved of the ness, the head of the union agreed to binding precedent. During the trial, decision. But “[t]he owners’ key argu- press forward. Flood’s witnesses included Jackie Rob- ment,” according to Snyder, “grounded To represent Flood, Miller turned to inson (already dying from diabetes) baseball’s immunity on federal labor the former counsel to the Steelwork- and slugger , both of law. The Players Association, the own- ers’ Union, , an iconic whom, like Flood, had felt betrayed by ers argued, had agreed to the reserve labor lawyer. Goldberg had success- their teams after having been traded late clause in labor negotiations and there- fully argued cases before the Supreme in their careers. Flood himself testified, fore could not turn around and sue on Court, brokered the merger of the AFL but apparently without much prepara- antitrust grounds.” This was a clever and the CIO, negotiated contracts with tion, because he was clearly ill-at-ease if disingenuous strategy, because the steel company executives, and drafted and ineffective. Counsel for the baseball owners had never negotiated in good labor legislation for Congress. Subse- owners attacked Flood personally and faith about the reserve clause. quently, Goldberg served as secretary called numerous players and executives At the time of the argument, Gold- of labor and was appointed to the Su- to testify that the reserve clause was re- berg had left Paul, Weiss because of preme Court by President John F. Ken- sponsible for the success of major league a falling out, and, after an unsuccess- nedy. Goldberg sat during the heyday baseball. Sadly, MLB’s superstars, such ful run for New York governor, had of the Warren Court, writing Escobedo as and , refused opened his own practice in Washing- v. Illinois, a predecessor of Miranda v. to support Flood (who was particularly ton, D.C. Flood’s brief had been writ- Arizona. Goldberg’s former clerk (none disappointed that his fellow black play- ten primarily by Dan Levitt, a former other than Justice Stephen Breyer) ob- ers did not stand by him), and no active classmate of Justice Breyer and clerk served, “He was happy on the Court; player was willing to testify on Flood’s for Justice Goldberg, and by Peter Wes- indeed, he was in his element.” Gold- behalf. Indeed, at that time, Flood be- ten, a former clerk for Justice Douglas. berg then “made the biggest mistake of lieved that most players were working What happened next could not have his life” in allowing President Lyndon B. against him; was espe- been anticipated. Goldberg had long Johnson to cajole him to become am- cially vitriolic, to the shame of Boston enjoyed a reputation as a skilled and bassador to the United Nations during Red Sox fans. The Second Circuit af- savvy appellate advocate. Although his the . According to Snyder, firmed the decision, again claiming to performance at trial had been question- Johnson appealed to Goldberg’s patrio- be bound by precedent, but essentially able, displaying lack of preparedness tism, his ego, and his ambition, sug- asking the Supreme Court to reconsider and a lack of court sense and missing gesting the possibility that he’d choose the earlier cases. Flood then sought cer- opportunities to make as strong a re- Goldberg to be his next vice president. tiorari, which was no sure thing in this cord as possible, people expected that Goldberg, Snyder writes, gave up his case. Snyder does a good job of detail- Goldberg would make up for his poor dream job for a pipe dream. ing the changing nature of the Supreme performance at oral argument before At the time Miller approached him, Court at the time, with the Warren Court the Supreme Court. Indeed, Goldberg Goldberg was with the prestigious New giving way to the Burger Court, and Jus- told his associates the day before the York firm of Paul, Weiss, Rifkind, Whar- tices Blackmun and Powell taking their argument that it was going to be the ton & Garrison. Goldberg loved social seats. The certiorari petition, according best argument he ever made. Instead, it causes, however poorly they paid, and to Snyder’s analysis, initially garnered turned out to be among the worst argu- he saw Flood’s case as a moral crusade. only three of the four votes it needed. ment anyone ever made. Miller believed that having Goldberg Then, surprisingly, after Justice Douglas, Standing before the Court where represent Flood would convey to the who regretted having joined the major- he had once sat, Goldberg looked at team owners that Flood was serious. ity in Toolson, had drafted his dissent his former fellow justices and fell apart The selection generated publicity (al- from the denial of certiorari, the case completely. For more than half of his though it also caused rumblings in Gold- was accepted for argument. berg’s firm, because Goldberg’s work The case was argued in March 1972. Reviews continued on page 68

August 2007 | The Federal Lawyer | 67 reviews continued from page 67 allowed time, he meandered through it was up to Congress to fix the prob- rushed to his local federal court in Kan- the facts, stating some incorrectly. Af- lem. The vote was 5 to 3, with Justice sas City. The judge drawn was Judge ter nearly 20 minutes of this, the jus- Powell recusing himself. The opinion Oliver. and the players’ tices began to question Goldberg, who was originally meant to be a short per union were worried nevertheless, but returned again and again to his posi- curiam, but, as was Justice Blackmun’s a lawyer at a small local labor law firm tion that the prior precedents had been wont, it grew in length. The ruling even assured them that things would work wrong. He did not answer the justices’ included an embarrassing ode to base- out. This local counsel had clerked for questions about whether the reserve ball, which commentators ridiculed one of the judges and had a sense of clause had been part of the collective mercilessly. This ode, which contains a the judicial temperament of the bench. bargaining agreement, and he com- lineup of baseball greats, was pointedly He was right. The arbitrator’s decision pletely skipped the issue of whether or not joined by Chief Justice Burger or was upheld by Judge Oliver and then not there was a state antitrust basis for Justice White. by the 8th Circuit. The players’ union the decision. Snyder writes: Although the baseball team owners was so impressed with the local coun- had won the case, the attendant pub- sel’s advice that they brought him in- The Supreme Court law clerks, licity raised the public’s consciousness house. The counsel was Donald Fehr, watching from the far right side about the reserve clause. The times they and he succeeded Marvin Miller and is of the courtroom, were so em- were a-changin’. Team owners, who now head of the players’ union. barrassed by Goldberg’s perfor- had agreed to arbitration for contract Flood sat out the 1970 season and mance that they refrained from disputes, soon found that the Supreme played in only 13 games in 1971 for the their usual snide comments. This Court’s decision, which rested on the Washington Senators, who had received was not the same man who had fact that the reserve clause had been rights to his services from the Phillies in argued the Steel Seizure cases part of the collective bargaining agree- return for three minor prospects, who from federal trial court to the Su- ment, led to adverse rulings by arbitra- were never heard from again. Feeling preme Court in three weeks. He tors, who held that the reserve clause’s old and distracted, Flood never re- was like an aging Willie Mays “option year” (the year following a con- gained his hunger for the game. Bitter stumbling around in the New tract’s end, when a player could play and broke, he left the United States and York Mets outfield in 1973. ... His for the same team at his prior year’s tried to make a living in Europe with performance soon moved Bren- salary reduced by 10 percent) was not his other passion—painting portraits. nan and the other justices from ongoing, but was good for only one This was not a good move for him: he pity to disgust. year. As a result, after the year expired, suffered continued financial setbacks the players would be free agents. This as well as actual and perceived betray- Snyder explains what a good oral set off a revolution in baseball, as play- als by family and friends, and he began advocate would have done; ventures ers could negotiate as free agents, and to drink heavily. Destitute, he returned to describe what a great oral advocate that is exactly what they did. to the United States, where he was ig- could have achieved; and concludes The team owners had achieved only nored by the players’ union and fellow that, in this argument, Goldberg was a momentary victory when they won players, and even by Marvin Miller. “unfamiliar with the facts and was nei- the Flood case. They were outsmarted Slowly, however, with help from a few ther a great nor even a good oral advo- by Miller and, by 1975, the players had old-time players, Flood started to make cate at this point in his legal career.” As free agency. The owners made mis- his way back. He stopped drinking Goldberg told Levitt afterward, “That take after mistake in the negotiations and began to work with youth leagues was the worst argument I’ve ever made and litigation. The way that the reserve in Oakland, Calif., his home town. In in my life.” Levitt later agreed, saying clause came to an end, in a lawsuit 1997, at the age of 59, Flood died of “It was one of the worst arguments filed in Kansas City, Mo., exemplifies throat cancer. I’d ever heard—by one of the smart- their errors. A lawyer whom I know Today, because of what Flood start- est men I’ve ever known, in the setting clerked for the federal judge who up- ed, the St. Louis Cardinals’ current star, where he should have been a super held the arbitrator’s rulings. He recalls Albert Pujols, earns nearly $14 mil- advocate. It was like he choked.” Sny- that the Western District of Missouri lion per year to play for Flood’s old der believes, rightly, that oral argument was known during the 1970s for its team. Surely, the Baseball Hall of Fame rarely decides a case, but that it can pro-labor bench. All four of its judges should honor Flood for his impact on shape an opinion. In this instance, he had a reputation for being favorably in- the game. Yet Flood has not been in- concludes, and the reader has to agree, clined to labor, especially Judge John ducted into the Hall. His statistics are that, “If ever a case had been lost at Oliver. While baseball owners debated just shy of what it usually takes to be oral argument, Flood’s was it.” where to file their challenge to the ar- voted in, and the voters have not seen In June 1972, in Flood v. Kuhn, 407 bitrator’s decision, the owner of the fit to reward his fight against the re- U.S. 258, the Court, in an opinion by (Ewing Kaufman) serve clause with a cherished plaque Justice Blackmun, again upheld the re- became so incensed that he refused to inside the Hall. serve clause and again suggested that wait for counsel to “forum shop” and Snyder’s book is timely. The leaders

68 | The Federal Lawyer | August 2007 of who engaged recruiting the best players from outside that Reese’s embrace did take place in these battles are passing from the MLB, which meant African-Americans. in in May 1947 and cites scene. Bowie Kuhn died on March 16, As Rickey explained, he signed up his conversations with both Robinson 2007, and his obituary in the New York Robinson because he wanted to win and Reese. Kahn quotes Robinson as Times linked his tenure as MLB commis- and it was the right thing to do. saying, “After Pee Wee came over like sioner to Curt Flood. The Times stated Robinson proved to be the right that, I never felt alone on a baseball that, although Kuhn won the case, “the player after all. He had grown up in field again.” Perhaps we will never drive for free agency had begun,” and Pasadena, Calif., and had been a star know the truth. it was Kuhn who presided over bitter athlete at the University of California at Years later, Reese made it a point to labor strikes during his tenure. Marvin Los Angeles. College-educated, he nei- mention in interviews that his role in Miller, who presided over the baseball ther smoked nor drank, and he had an the Robinson drama had been exagger- players’ union from 1966 to 1984 and, exemplary character. Without losing his ated. He had never sought to be an ac- like Flood, did so much to change the cool, he could stand up to racist taunts, tivist and had never intended to make game, has also not been voted into the jeers, and abuse—and that was just grand gestures. All he had ever tried Hall of Fame; he too stands outside from his teammates. Robinson was also to do, Reese explained, was to treat looking in. intensely competitive. He had burned Robinson the same way that he, Re- Flood’s struggle was primarily an with anger in the Negro Leagues be- ese, treated everyone else. “You know, economic one. The reserve clause lim- cause, to his mind, his teammates did I didn’t particularly go out of my way ited the opportunities and incomes of not take the game seriously enough. In just to be nice to you,” Reese once told all players, of all colors. But it had a whatever league he played, Robinson Robinson, who replied, “Maybe that’s racial component, and it was Flood— wanted to win. what I appreciated most.” black and defiant—who was the face of Robinson initially played first base Opening Day covers only Robin- change. At his funeral, Flood was com- for the Dodgers, even though second son’s first season and does not take pared to Rosa Parks and Jackie Robin- base was his regular position. Open- into account the social and historical son, who, as noted above, had testified ing day in Brooklyn should have seen context in which Robinson made his at Flood’s trial. Despite the comparisons a full stadium at Ebbets but 6,000 debut. For that perspective one should that have been made between the two seats remained empty. Three-fifths of turn to Jules Tygiel’s Baseball’s Great men, Robinson’s achievement dwarfed the stadium, however, was filled with Experiment: Jackie Robinson and His Flood’s. Jonathan Eig’s book, Opening African-Americans, who, according to Legacy. Eig’s book is nothing more— Day, examines the truth behind the Eig, cheered and stomped and greeted yet nothing less—than an account of Jackie Robinson myth. Robinson de- Robinson’s every act as an occasion. an extraordinary season that changed buted with the Brooklyn Dodgers on There was no trouble that day, but baseball forever, and it is a valuable ad- April 15, 1947, and on the 60th anniver- the abuse started in earnest over the dition to Jackie Robinson’s legacy. Even sary of baseball’s integration this year, next several weeks. Robinson took the now, 60 years after that season, Jackie all players were allowed for the day to abuse throughout the season, but, de- Robinson’s courage and his achieve- wear his number 42, which had been spite the pressure he faced and a slow ment are still remarkable. TFL retired in 1997. Jackie Robinson should start, he batted .295, led the league in not have been the player to break the stolen bases, and was voted Rookie of Jon M. Sands is the federal public de- color barrier. He had a weak arm and the Year. fender for the District of Arizona. an aching, injured ankle; he was a rela- Among the myths that Eig seeks to 2007 Handbook of Section 1983 tively inexperienced player; and, at the dispel is the one that, in May 1947, dur- Litigation age of 28, he was old for a rookie. But ing a game against the , he possessed the passion and the in- when the harassment of Robinson was By David W. Lee telligence that , general reaching a fever pitch, his Dodger Aspen Publishers, New York, NY, 2007. 1049 of the Brooklyn Dodgers, was teammate , a Southerner pages, $260.00. looking for when he selected Robinson who played shortstop, walked over to to integrate MLB. Robinson and, in a show of unity, put In 1947, the Dodgers were the worst his arm around him. However, after ex- Re v i e w e d b y St e p h e n E. Re e l team in the National League and had amining the memoirs and newspaper the smallest stadium and the poorest accounts that describe this expression Lawyers charged with the defense balance sheet. When Rickey, who had of brotherhood and its effect of unify- of law enforcement officers, school earned a J.D. at the University of Michi- ing the team behind Robinson, Eig con- boards, state or local government of- gan Law School in 1911, was general cludes that the incident did not occur. ficials, or any other category of public manager of the St. Louis Cardinals from But baseball loves its myths. employees should have David W. Lee’s 1925 to 1942, he had brought innova- Roger Kahn, author of the acclaimed 2007 Handbook of Section 1983 Litiga- tions to baseball, such as spring train- history of the Brooklyn Dodgers, The tion at the ready. This book has been ing and standard training in the minor Boys of Summer, takes issue with Eig’s updated every year since 2001, and I leagues. Now, with the Dodgers, Rick- account. In a letter to the New York ey sought to make his team the best by Times on April 21, 2007, Kahn argued Reviews continued on page 70

August 2007 | The Federal Lawyer | 69 reviews continued from page 69 have cracked open its covers countless defense, when artfully presented, can Ancient Civilizations and the times since then. Time is money, and be a dagger that goes straight to the Journey to Recover the World’s this book will save valuable research heart of a plaintiff’s case and prevents Greatest Stolen Treasures time for those seeking information on the case from reaching the jury. recent U.S. Supreme Court and feder- The Handbook does not bog down By Matthew Bogdanos with William al courts of appeals decisions regard- the reader with excerpts from court Patrick ing civil rights cases brought under 42 opinions or from secondary sources. Bloomsbury Publishing, New York, NY, 2005. U.S.C. § 1983. Nor does the book follow the develop- 302 pages, $25.95 (cloth), $15.95 (paper). Section 1983 litigation is not intui- ment of § 1983 from 1871 to present tive. The practitioner whose experi- or provide the sort of scholarly analysis ence has been primarily in common that one might find in law reviews of, Re v i e w e d b y El i z a b e t h Ke l l e y law torts is at a serious disadvantage for example, disagreements among the when stepping into the battleground of circuits. Instead, the Handbook simply I wrote this review over Memo- § 1983 litigation. For the inexperienced provides brief summaries and, in some rial Day weekend 2007, when we as practitioner, whether serving the plain- instances, one-line statements of feder- a nation were not only honoring those tiff or defense bar, the Handbook is al appellate cases. Lee assumes that his who fought, suffered, and died for our essential to circumnavigating the mine- readers are practitioners who possess a country but were also grappling with fields that can lay hidden beneath the rudimentary knowledge of § 1983 and our country’s role in Iraq. We continue placid surface of § 1983. know how to phrase the legal question to debate issues, such as the validity Lee, a seasoned litigator in state and to start their inquiry. Armed with those of the war, whether there should be federal courts in Oklahoma, has argued basic skills, readers can turn to the a timetable for troop withdrawal, and four cases before the U.S. Supreme Handbook and find answers to their the consequences of any steps we take. Court. He taught at the University of questions. Presidential candidates jockey for posi- Oklahoma Law School and has been a The Handbook has some limita- tions, and families of redeployed sol- guest speaker at the prestigious semi- tions, however. In addition to lacking diers speak out. How fractured we have nar titled “Section 1983: Civil Rights Lit- in-depth discussions of cases and com- become since Sept. 11, 2001, when we igation” presented at the Georgetown parisons with other cases that address were all united in anger and grief over University Law Center. He is also a fre- the same issues, the book does not pro- the slaughter of innocent lives on our quent lecturer at the National College vide model forms for motions or plead- own soil! of District Attorneys. ings (which a practitioner might expect Books like Thieves of Baghdad are The Handbook is organized by top- to see, given the price of the book). vital because they remind us of that ics, which include scope of liability; In addition, decisions are listed in no day. The post–Sept. 11 canon is plenti- federal rights protected; liability of lo- discernible order; it might have helped ful, with books like The Good Life by Jay cal governments and their officials; due readers who were interested, for ex- McInerney and films like “Reign Over process; immunity; pleadings, motions, ample, only in cases in a particular cir- Me.” But Thieves of Baghdad prompts us and affirmative defenses; injunctions cuit if the decisions had been listed in to focus on an aspect of the war in Iraq and declaratory relief; damages and numerical order by circuit. In addition, that usually goes unnoticed: the fact that interest; discovery and subpoenas; trial it is not clear why some appellate cir- Iraq was the cradle of civilization—rich issues; and attorneys’ fees and costs. In cuit cases receive extensive discussions in history and splendor. some areas Lee provides a brief discus- whereas others of seemingly equal im- Marine Col. Matthew Bogdanos led a sion of the historical development of portance receive only cursory descrip- multiagency task force to recover price- case law; in other areas he skips any tions of their holding. less works of antiquity that had been discussion and simply lists the perti- Despite these marginal shortcom- stolen from the Iraq Museum during nent decisions pertaining to the topic ings, however, the Handbook is a jew- the Battle of Baghdad, and Thieves of and provides a brief description of the el for civil litigators who need a quick Baghdad tells of that adventure. (“Ad- courts’ holdings. reference to begin their research. Once venture” is not too flip a word; the au- Perhaps Lee reveals his defense bias you use the Handbook, I suspect that thor freely admits that he was inspired by reserving his longest chapter for a you will sign up to receive the 2008 by “Indiana Jones.”) Bogdanos also de- discussion of immunity from liability. version. TFL scribes where he was on Sept. 11 (in Of this chapter’s more than 200 pag- his family’s apartment, which was 100 es, he devotes nearly 160 of them to Stephen E. Reel is general counsel for a yards from the World Trade Center), a thorough examination of the issue statewide municipal insurance associa- the story of his youth in New York City of qualified immunity. His treatment tion in Oklahoma City. as the son of Greek immigrants, his de- of this issue reflects the vital impor- cisions to enter law school and to enlist tance that this legal defense provides in the Marines, and his experience in for public officials sued in their indi- Thieves of Baghdad: the Manhattan district attorney’s office, vidual capacities. A qualified immunity One Marine’s Passion for where he was on the team that unsuc-

70 | The Federal Lawyer | August 2007 cessfully prosecuted Sean “Puff Daddy” tually do all these different things Combs for weapons violations. and they merge and form a syn- Thieves of Baghdad is a story of Like mysteries and legal thrillers, thesis. They might even leverage heroism. But it is heroism not so much Thieves of Baghdad is fueled largely by one another. As Nietzsche sees it, of strength and bravery but of intellect plot, and it is a good story. Bogdanos balance is not striving to achieve and sensitivity. TFL fleshes out his characters well and does the Aristotelian Golden Mean. In not write like a lawyer, although the fact, like Alexander before him, he Elizabeth Kelley is a criminal defense book occasionally reads like Bartlett’s despised the middle road as medi- attorney in Ohio who has a special Book of Familiar Quotations, because it ocrity, and in many ways I share commitment to representing individu- teems with references to people rang- his dislike of moderation. als suffering from mental illness and ing from Euripides to Robert Browning mental retardation. She frequently to . As an adult, reflecting upon his time provides legal commentary for Court The story of the recapturing of the in Iraq, Bogdanos comes to realize that TV and can be contacted at Zealous stolen antiquities is the centerpiece of one side of himself enriches the other, [email protected]. the book. Bogdanos begins with the but that passion and intensity make discovery of more than a thousand one truly alive and are vital to success pieces of gold and jewels—“Iraq’s in any kind of battle: Creditors’ Rights crown jewels,” as they are often called. By Alexander L. Paskay He describes the cultural obstacles to There are indeed many kinds of Vandeplas Publishing, Lake Mary, FL, 2006. working with the remaining staff of the courage—the courage of Ther- 955 pages, $129.95. Iraq Museum, especially the women. mopylae, the courage to tell it And he tells of the creative ways that straight to your kids, and the he and his team retrieved missing ar- courage to tell colleagues in your Re v i e w e d b y Le s l i e R. Ho r o w i t z tifacts one by one, with no questions department that you are going to asked. start cooperating with the police. Every practitioner of bankruptcy law What raises Thieves of Baghdad Intellectual courage, moral, and can use a one-volume treatise on credi- above an ordinary mystery or legal artistic courage, as well as the tors’ rights to sit on his or her desk so thriller is the author’s sensitivity and courage valued in the three ar- it can be referred to at a glance. Judge introspection. Bogdanos paints a vivid eas in which I spend most of my Alexander L. Paskay’s Creditors’ Rights picture of the hardship and struggles time—the courtroom, the boxing is such a book. Paskay, who is chief that the troops in Iraq undergo, of the ring, and the battlefield—I see as bankruptcy judge emeritus of the U.S. sacrifices that soldiers’ families make, all one thing, and, both physical Bankruptcy Court for the Middle Dis- and of the difficulties that arise when and moral, coming from the same trict of Florida, brings years of experi- the troops return home. place. ence to this treatise, which is an ex- A theme that runs through Thieves of cellent guide for both the experienced Baghdad is the author’s recognition of In my view of the world, being and inexperienced bankruptcy lawyer. the seemingly conflicting sides of him- efficient and ruthless on the bat- The author lays out the law in a cogent self—the youthful athlete and the artist tlefield is entirely consistent with and readable fashion, and his book is versus the adult soldier and the scholar. being a loving, fully sensate hu- exceptionally well organized. As a young man, he began to find an- man being. It is not so much a Creditors’ Rights covers every area swers in the writings of Nietzsche, and question of bouncing back and of interest to creditors of a bankruptcy he describes the revelation in this way: forth but of integrating. ... estate, whether they are consumers or businesses. The book addresses juris- Growing up as I did, where I did, Hemingway, who integrated both diction, automatic stays, discharge- just about all you were allowed to the aesthetic and the active side ability, contempt, sanctions, trustees’ talk about among the guys were of life, put it this way: “If people duties, plan confirmation, liquidation, sports and girls. So I always felt bring so much courage to this administration of assets, and more. Pas- a little out of it that I was also in- world, the world has to kill them kay explains the revisions made to the terested in things like dance and to break them, so of course it kills bankruptcy code by the Bankruptcy theater and good books. The split them. ... It kills the very good Abuse Prevention and Consumer Pro- or contrast perplexed me, until I and the very gentle and the very tection Act of 2005. read The Birth of Tragedy, Nietz- brave impartially. If you are none Paskay begins with the basics and sche’s exploration of the interplay of these, you can be sure it will explains the importance of terminology between the Dionysian and the kill you too. But there will be no in the world of bankruptcy. He writes: Apollonian. He showed me that special hurry.” two seemingly irreconcilable forc- The terminology used in the ad- es can actually form a more co- My idea of hell is being one of ministration of bankruptcy cases herent whole. It was confirmation those for whom life is in no spe- that I wasn’t crazy. You can ac- cial hurry. Reviews continued on page 72

August 2007 | The Federal Lawyer | 71 reviews continued from page 71

is radically different from the ter- ing an entire steel mill from the Ruhr lapse of entire towns because of under- minology used in state or Federal Valley in Germany, where it had been ground mining. The industrial growth civil litigations. It is important to dismantled, to the Yangtze River Basin has also resulted in a great disparity in emphasize and discuss the unique in China, where it was reassembled. income between those still living in the terminology used in bankruptcy. This mind-numbing accomplishment economically primitive countryside and While some terminology will be illustrates China’s huge and low-cost those living in the rapidly growing cities. familiar to practitioners because labor supply, the government’s efforts Although poised to overtake the United of its use in civil litigations, the to fulfill the country’s exploding mate- Kingdom as the world’s fourth largest terms have a different meaning rial needs, and the growing capitalistic economy, China still ranks barely above in bankruptcy. Improper use of drive in China. The effort exemplifies the world’s poorest nations, with a per terminology in a bankruptcy case the change in China’s role in world af- capita income of $1,000 per year. may cause serious problems for fairs from a long-term bystander to a China has the longest continuous the uninitiated. Not only may ad- competitive actor. history of any nation and a unique ditional work be required to cor- To understand China today, Kynge cultural heritage. Until modern times, rect an , but also substantive advises, one must start with the migra- China considered itself self-sufficient right of a client may be jeopar- tion of the country’s huge population. and morally and culturally superior to dized. Despite the death of an estimated 30 other nations. Its contacts with West- million people during the Mao-inspired ern nations, such as occurred during Creditors’ Rights discusses the im- programs of the 1970s, the government the Opium Wars, were mainly nega- portant bankruptcy cases but does not policy of restricting urban families to tive. China eventually recognized its spend a lot of time with string citations. bearing one child and rural families to economic shortcomings, but its initial It provides an overview of the Federal two, and the practice of aborting fe- attempts in the early 1900s to catch up Rules of Bankruptcy Procedure as well male fetuses and even female infanti- economically were unsuccessful. Hard- as the statute, and it will be useful to cide, China’s population has surged to line Communist rule after World War II, debtors’ and well as creditors’ counsel. approximately 1.6 billion—one-sixth particularly Mao’s “peasant revolution,” As all practitioners know, consulting a of the world’s population. The town resulted in a disastrous step backward treatise is only the beginning of the re- of Chongqing reflects this growth. A for the country. The current autocratic, search that is necessary to handle a case, sleepy town perched on a cliff during politically repressive, and nominal- but this treatise gives the practitioner a World War II, it has grown at a rate of ly Communist government stands in running start. TFL 300,000 people per year since 1998 and contrast with an increasingly capitalist now has more than four million resi- economy and the people’s broad-mind- Leslie R. Horowitz is a partner in the law dents; when combined with the areas ed attitudes and policies. firm of Clark & Trevithick in Los Ange- surrounding the town, this area forms a This contrast may be starkly illus- les. He practices in the area of commer- “municipality” of more than 32 million trated by describing the lives of several cial law and bankruptcy. people! Chinese citizens. Zong Qinghou sold China Shakes the World: In the last 20 years, approximately ice pops for less than a penny each in A Titan’s Rise and Troubled 300 million Chinese people—a num- the 1980s, but, by 2005, as a result of Future — and the Challenge for ber that is comparable to the entire hard work, government connections, America U.S. population—has moved from the and business acumen, he controlled a countryside to the cities, resulting in a syndicate that rivaled Coca Cola. Yin By James Kynge huge surge in construction in the larger Mingshan was imprisoned for 20 years Houghton Mifflin Co., Boston, MA, 2006. 270 cities, with new skyscrapers soaring during Mao’s rule merely because his pages, $25.00 (cloth), $14.95 (paper). upward as the streets below become family had “capitalistic tendencies.” Fi- congested with people using all meth- nally granted his freedom, through his ods of transportation. This urbanization remarkable diligence and savvy but Re v i e w e d b y Jo h n C. Ho l m e s has created a huge demand for steel, without employment skills, he turned aluminum, copper, nickel, iron ore, oil, a backyard garage into a hugely prof- The title of this book comes from gas, coal, and many other basic metals itable bicycle company. “Every rags to Napoleon’s advice, “Let China sleep, and materials and has catapulted China riches story,” Kynge writes, “is different, for when she wakes, she will shake into the global economy. but risk and hardship are common de- the world.” James Kynge, a financial In turn, this rapid industrial growth, nominators.” journalist who worked in China for with little regard for environmental safe- Qi Yuling’s story is less inspiring. many years, pinpoints 2004 as the year guards, has resulted in cities that have She studied diligently at school in order that history will acknowledge that the severe pollution that blocks out sunlight to pass an examination and escape the shaking occurred. That was the year and causes bronchial infections, mas- poverty of her country surroundings by that Chinese entrepreneurs, with gov- sive erosion of the countryside, unsafe getting a factory or office job in the city ernment assistance, finished transport- drinking water, and even the partial col- and marrying well. At first she was told

72 | The Federal Lawyer | August 2007 By Philip E. Orbanes that she had passed the exam, but she Da Capo Press: Cambridge, MA, 2007. 262 and filed a patent for “The Landlord’s was later informed that it was a mis- pages. $26.00 (cloth), $14.95 (paper). Game,” intending it not just as a game take, and she was heartbroken. After 10 but as an educational tool as well. Be- years of drudgery working as a peas- cause a patent required specificity, she ant, with no suitable marital prospects, Re v i e w e d b y Jo n M. Sa n d s supplied rules and described pieces. she inadvertently discovered that a lo- The patent office granted her request cal Communist official had stolen her in 1904; it was the first time that a pat- exam results and attributed them to his The first episode of the final season ent had been granted to a board game, daughter, who was successfully living of the HBO hit, “The Sopranos,” finds and The Landlord’s Game was appar- the life of which Qi had dreamed. Tony, his wife, his sister Janice, and her ently the first board game with an adult In China Shakes the World, Kynge husband Bobby doing their best imita- theme. exhibits an inquisitive mind and an en- tion of a suburban family on vacation Magie’s game was strikingly different tertaining writing style. With respect to by playing the board game, . from today’s Monopoly. Properties were China’s economic future and world sta- Things start to get tense when a dispute rented rather than purchased, and the tus, he concludes: breaks out over the rules, with Tony object of the game was not to acquire wanting to use the standard variation a monopoly, but to illustrate the unfair China has much going for it ... an in which money from fines or tolls gets advantage that landlords had. In the ancient culture, sparkling tradi- put into the middle of the board to be corners were squares labeled “Mother tions in literature and the arts, the collected by the next person who lands Earth,” “Absolute Necessity/Jail,” “Pub- accumulated wisdom of think- on the “free parking” space, but Bobby lic Park,” and “No Trespassing/Go to ers over thousands of years, the preferring the official policy of return- Jail.” In between were lots, railroads, size of its potential power, the ing such money to the bank. Bobby utilities, and spaces that required pay- taste of its cuisine, kung fu and complains, “The put ment to the bank for penalties incurred. other martial arts, the diligence a lot of thought into these rules,” and A circuit of the board earned the player and intelligence of its people, then things get ugly. The game be- wages at Mother Earth. There is no re- the gleaming skyscrapers in cool comes a symbol of all the tensions and cord of the game’s having been com- new cities such as Shanghai, and dynamics of the Sopranos. mercially produced, but it was privately of course the cuddly giant panda. Monopoly, by Philip Orbanes, thor- produced and soon began to circulate But against these positive associa- oughly describes the evolution of the in progressive circles. tions are a raft of less alluring im- game, its rise to worldwide popular- The Landlord’s Game was soon the ages: shabby products, counter- ity, and its cultural symbolism. As with rage with professors at Columbia Uni- feit goods, ripoffs of intellectual many books about games—including versity and other elite schools. One property, exploited labor, human Scrabble, chess, and even crossword young economist (with supposed so- rights abuses, the 1989 Tianan- puzzles—the author of this book has cialist tendencies) introduced the game men massacre, official nepotism a passion for, if not an obsession with, to his students at Wharton School. and corruption, the persecution the game whose tale he tells. Orbanes The game proved popular, and, as it of religion and other forms of is a former senior vice president in the spread from community to communi- spirituality, a sick environment, Research and Development Depart- ty, its name was changed to “Auction outbursts of angry nationalism, ment of Parker Brothers; thus, he has Monopoly” and then just “Monopoly.” and opposition to the exiled Dalai access to the files and historical docu- Copies of the game were made by Lama. ... The resulting image ... is ments related to Monopoly. Moreover, hand, and each new owner seemed to often far from positive, and Chi- as he tells us, he is an international delight in naming the spaces after his nese companies pay handsomely referee for Monopoly championships, or her favorite city streets and in chang- every year for the poor percep- and, of course, he will tell us about the ing the rules. When the Depression hit tions held in the West. TFL greatest game ever played. in the early 1930s, the game, with its Monopoly began as an effort at tax bankruptcies and failures, seemed pre- John C. Holmes recently retired as chief reform. In the early 20th century, a scient. administrative law judge at the Depart- progressive movement led by Henry In late 1932, with the country mired ment of the Interior, after having served George sought to reform capitalism by in the Depression, an Atlantic City as an administrative law judge at the calling for the imposition of a “single couple—the Todds—learned of the Department of Labor for almost 25 tax” on the unearned increase in land game from a fellow teacher and were years. He currently works as a mediator value that landlords received. This was enthralled. While out walking one eve- and arbitrator and may be reached at the only worthy tax, adherents of this ning, they chanced upon another cou- [email protected]. movement believed, because landlords ple—the Darrows—and it turned out profit from the increasing value of their that the women had been classmates Monopoly: The World’s Most holdings by charging higher and higher 21 years earlier. The Todds invited the Famous Game and How It Got rents. In 1903, Elizabeth “Lizzie” Magie Darrows to dinner and introduced them That Way had an idea for a game that would pro- mote the cause. She hired an attorney Reviews continued on page 74

August 2007 | The Federal Lawyer | 73 reviews continued from page 73 to the game. , an unem- hower played Monopoly in London as The popularity of Monopoly may ployed plumber and business failure, a way to relax from planning the D-Day now be waning, but in the second half was taken with the game. He asked the invasion. In postwar America, it was of the 20th century, seemingly every- Todds if he could make his own ver- one of those games, such as Scrabble, one had a game in the closet, perhaps sion, and the Todds encouraged him to that every household had to have, and with a wayward Scrabble tile in the do so. Darrow laid the game out on his Monopoly was hauled out of closets box. Monopoly introduced many to real kitchen table in Atlantic City and started on slow weekends or on vacations— estate investing and to the possibility to refine its rules and name its lots after frequently with pieces missing. Players that bankruptcy was looming around Atlantic City streets. He made copies of invented their own “unique” variations the corner; perhaps some lawyers en- the game for his friends—for a price. (as Tony Soprano tried to do). The gaged in their first “statutory” interpre- He played it at a bank and won over game became part of the baby boom- tation when they played the game as the manager, who extended him credit er generation’s mentality, although its children. Future prosecutors vigilantly to market the game for the Christmas popularity, along with that of all board prevented their opponents from de- season. games, waned with the advent of tele- frauding the bank, and future criminal At the time, the United States did not vision. Still, Monopoly continues to defense counsel looked for the “Get have a huge market for board games. sell, and today, of course, we have a Out of Jail Free” card. If this review has The few popular ones were for chil- computer version. stirred memories for you, then you’ll dren; adults played card or dice games. Monopoly is a case of clever inven- enjoy the book. TFL The leading game company, Parker tion, fortuitous discovery, and careful Brothers, headquartered in Salem, cultivation by Parker Brothers. The Jon M. Sands is the federal public de- Mass., was reeling from the Depres- company aggressively protected its fender for the District of Arizona. sion. It had been taken over recently copyrights and its trademark figure of by a Harvard Law School graduate, the monopolist, known as Little Eskey. Robert Barton, who had been persuad- This mascot, which debuted in 1936, ed to give up his slow law practice to was taken from a figure on the call- help his wife’s family business, Parker ing cards of one of Parker Brothers’ Brothers, for a while, and he never left sales representatives and modeled on the company. He took over as chair- J. Pierpont Morgan. The game has been man and proceeded to fire the entire adapted to various locales, where seem- staff to save money. He then hired a ingly every city or college has its ver- few back at half wages. Monopoly was sion (all licensed, of course—beware, a natural for him. the copyright lawyers are vigilant). Barton heard about Monopoly and Orbanes tells the tale briskly, al- persuaded Darrow to sell him the rights though he is not a great stylist. Mo- to the game. Barton agreed to pay Dar- nopoly is authoritative, and one need row royalties on all sets that Parker look no further for arcane information Brothers sold. Monopoly kept increas- on the subject. The book has 10 ap- ing in popularity, and Darrow became pendixes, which contain all versions of a millionaire. Barton applied for a pat- the game and similar games (such as ent and was shocked to discover that “Life”) and their rules. One learns that The Landlord’s Game had beaten him the B&O Railroad is the space most fre- to the punch. Not wanting to take quently landed upon, and that the best chances, he tracked down Lizzie Ma- properties to own are the orange ones. gie (now) Phillips and persuaded her The original pieces were produced by to sell him the patent rights for $500 as the Dow Manufacturing Company, and well as a promise to manufacture a ver- the game is in the midst of being “mod- sion of The Landlord’s Game. True to ernized” (one version has Nike shoes Barton’s word, Parker Brothers did so, and Starbucks coffee). A game takes but it was not a success. an average of 90 minutes to play. The Monopoly’s popularity exploded in Monopoly World Championship is held the 1930s and grew steadily after that. every four years (the next one will be The game was not cheap, and those held in 2008). In describing the 2004 who played it were not the people World Championship, Orbanes gets standing in bread lines. The popularity carried away with excitement; seri- of the game continued to grow during ous Monopoly players are as frenzied, World War II and soon went every- though not quite as eccentric, as play- where the troops went. General Eisen- ers of Scrabble and crossword puzzles.

74 | The Federal Lawyer | August 2007