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Friday, April 25, 2008
Constitutional law in unexpected places

For example, in George Clooney cinematic homages to His Girl Friday, every Cary Grant-Katherine Hepburn comedy, and movies depicting the minor-league backwaters of professional sports.

One of my colleagues was approached by a student in his Con Law I class, who had just seen the movie. According to the student (I have not seen the movie and probably will not until it comes out on video), one issue that arises is an attempt by Congress to regulate the new professional football league, including by requiring the teams to appoint a commissioner. (Can anyone who has seen the film confirm this?)

The ever-vigilant new law student (I always tell my 1Ls that a legal education changes the way you look at everything, even nostalgic slapstick comedy) wanted to know where Congress could get the power to tell a professional sports league how to run its business. The answer, of course, is the Commerce Clause.

But the interesting thing about that answer is that the story takes place in the 1920s, during the wild-west early days of professional football. And the prevailing view of the time was reflected in Justice Holmes' now-infamous decision in Federal Baseball Club v. National League, holding that professional baseball was not interstate commerce for purposes of the Sherman Act. And that decision at least intimates Holmes' (and the Court's) view at the time that professional sports were not interstate commerce for constitutional purposes, thus Congress lacked any power to regulate pro sports in the way apparently depicted in the movie.

Oh well. By now, we should be used to popular culture getting law mostly wrong.


First off, glad to see that google doesn't consider you guys spam anymore.

Secondly, interesting post. As I was reading in the middle of the post, I knew that the commerce clause would be the issue, but didn't realize that the story dated all the way back to the '20s.

Anonymous Emmett Jones -- 5/01/2008 2:47 PM  

If anyone cares, per an inflation calculator, if the Supreme Court had upheld the $240,000 verdict, it would have been similar to a verdict of $2.8 million in 2007 dollars.

Blogger Mark -- 5/01/2008 3:13 PM  

Emmett (and all of our other great readers who took the time to e-mail us over the last few days):

Thanks for your kind words and we're happy to be back after a few days of our blog being incorrectly deemed a spam blog. We won't be able to post for 48 hours per Blogger's rules for restoring a blog, but we should be posting again by no later than Monday.

Many thanks again,
Michael McCann
(on behalf of Rick Karcher, Alan Milstein, Geoffrey Rapp, Greg Skidmore, Howard Wasserman, and all of our terrific guest bloggers and other contributors)

Blogger Michael McCann -- 5/01/2008 3:41 PM  

Glad to see that you are back on the web - great blog

Anonymous Jay Reisinger -- 5/01/2008 4:47 PM  

Great to see that you guys are back, you had me worried for while! I mean, what would I do? actually work?!

seriously though, I'm glad it worked out and I look forward future posts.

Blogger Jimmy H -- 5/02/2008 8:35 AM  

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