The Origins of the List of Baseball Greats in Flood v. Kuhn

One of the oddest things about the Supreme Court case of Flood v. Kuhn, where the court reaffirmed baseball's antitrust exemption, is the following passage from Justice Blackmun's opinion:

Then there are the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander, Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus Wagner, Joe McCarthy, John McGraw, Deacon Phillippe, Rube Marquard, Christy Mathewson, Tommy Leach, Big Ed Delahanty, Davy Jones, Germany Schaefer, King Kelly, Big Dan Brouthers, Wahoo Sam Crawford, Wee Willie Keeler, Big Ed Walsh, Jimmy Austin, Fred Snodgrass, Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man McGinnity, Three-Finger Brown, Harry and Stan Coveleski, Connie Mack, Al Bridwell, Red Ruffing, Amos Rusie, Cy Young, Smokey Joe Wood, Chief Meyers, Chief Bender, Bill Klem, Hans Lobert, Johnny Evers, Joe Tinker, Roy Campanella, Miller Huggins, Rube Bressler, Dazzy Vance, Edd Roush, Bill Wambsganss, Clark Griffith, Branch Rickey, Frank Chance, Cap Anson, Nap Lajoie, Sad Sam Jones, Bob O'Farrell, Lefty O'Doul, Bobby Veach, Willie Kamm, Heinie Groh, Lloyd and Paul Waner, Stuffy McInnis, Charles Comiskey, Roger Bresnahan, Bill Dickey, Zack Wheat, George Sisler, Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne, Moe Berg, Rabbit Maranville, Jimmie Foxx, Lefty Grove. The list seems endless.

The list is not only endless, but a classic example of the kind of sickening sentiment that infects so much of American sports jurisprudence. There are a lot of great stories about this list, such as a clerk from another chamber jokingly inquiring as to the omission of a particular player and receiving a detailed memorandum justifying the player's exclusion a few days later, as well as the story that Justice Marshall originally planned to dissent from the opinion given the list's omission of any African American players (some were subsequently added).

Now, via the Volokh Conspiracy, I've learned of an exciting new paper, Blackmun's List, by Northeastern University law professor and former Baseball Hall of Fame scholar-in-residence Roger Abrams. Along with a recent book on the Flood case, this article promises to enhance understanding about a classic opinion from sports law. You can download the paper for free from this link.

In skimming the paper, it's obvious that Professor Abrams is amused by Blackmun's list. He refers to it as a "curious and quite exceptional paean to the appellee in what was a critical sports law decision . . . ." While the paper is still in draft form (i.e., it contains some odd formatting, some blanks to be filled in at a later date, and will likely go through some organizational reworking), it does offer some interesting perspectives from a veteran sports law teacher on this odd passage and some of the names on the list. I look forward to reading the finished version.

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