New York Personal Injury Law Blog » April 1


April 2nd, 2008

Deconstructing a Fantasy (And Who Was Duped?)

Maybe fantasies weren’t meant to be deconstructed. But in both baseball and the law such analysis takes place all the time.

So here goes. The idea for the April 1 post on the Supreme Court granting cert in the fantasy baseball case — with three justices recusing themselves and two not — stems from some very real issues and a very real case.

First: Recusals can be huge. In the set-up for the post two weeks ago (see, Recusal In the High Court…For Fantasy Baseball?) I noted all the commentary in the legal blogosphere over it, as Chief Justice Roberts stepped aside in Warner-Lambert v. Kent, resulting in a 4-4 split, and therefore no decision. The real world application of such a split was discussed at the Drug and Device Law blog a month ago.

Second: Not only is it a problem with a justice not being replaced if s/he steps aside, but the issue of when a justice should step aside has been hotly debated, with both Scalia and Alito previously in the cross-fire.

Third: Enter, stage right, a real case about fantasy baseball that could wind up in the high court, as a cert petition was filed.

Fourth: We know that some of the justices are baseball fans (or at least we know Alito and Stevens are, as the links at my posts were real).

So that brings us to the “what if” factor of a justice having a minor financial interest in the outcome. If s/he happens to belong to a fantasy league, in the example I used, there will be a financial interest, albeit a small one. But the ethics law doesn’t draw any lines as to how much. And that means different judges can decide different ways, and the decision is unreviewable. (Or it means that another statute exists that I don’t know about, but what the hell, I had a good time anyway.)

So far as I was concerned, the stars were aligned for a posting on the subject that might make a few folks think about the issue, and perhaps for a bit of fun, zing a few people who weren’t paying close attention to the clues at the end that it wasn’t 100% on the level. (Of course, with a petition for cert pending, you never know…)

Who was duped on a day everyone was looking out for hoaxes? Among the honorees…

The three biggest clues, which I buried near the bottom under the theory that many people wouldn’t bother to read the whole thing after getting the gist of it:

  • Siddartha “Sidd” Finch making a comeback;
  • The name of the league is “Articles for Deletion (AFD also being the acronym for April Fools Day);
  • And Justice Stevens’ co-owner was “Ernie Thayer.” Ernest Thayer wrote Casey at the Bat. And the Stevens/Thayer team, I wrote, “drafted the much despised Jimmy Blake.” Who is Jimmy Blake? You can ask this commenter at Volokh, or read a portion of the immortal poem, as the crowd despairs that their savior isn’t even in the on deck circle:

    But Flynn preceded Casey, as did also Jimmy Blake,
    And the former was a lulu and the latter was a cake;
    So upon that stricken multitude grim melancholy sat,
    For there seemed but little chance of Casey’s getting to the bat.

    But Flynn let drive a single, to the wonderment of all,
    And Blake, the much despis-ed, tore the cover off the ball;
    And when the dust had lifted, and the men saw what had occurred,
    There was Jimmy safe at second and Flynn a-hugging third.

The set-up from two weeks ago, by the way, had a hidden message in it. But you have to read the first letter of each paragraph to find it.

My thanks to David Lat (who was in on the joke) for using his considerable megaphone at Above the Law by broadcasting it first thing in the morning, and to Scott Greenfield for vetting an early draft and making up lies about me.

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