4 J. Contemp. L. 241 (1977-1978)
Further Aside - A Comment on the Common Law Origins of the Infield Fly Rule

handle is hein.journals/jcontemlaw4 and id is 249 raw text is: FURTHER ASIDE
A Comment on The Common Law
Origins of The Infield Fly Rule
John J. Flynn*
Many analogies limp, others stumble and a few march with the
machine-like cadence of the Phillies doing exercises before a ball
game. The analogy between the evolution of the Infield Fly Rule and
the common law, to be found in Volume 123 past of the University of
Pennsylvania Law Review and reprinted in this volume of the
Journal,' falls into the limp category and might even descend to the
stumble category when viewed from some perspectives. For exam-
ple, the author totally ignores the impact of economic analysis in the
evolution of both the Infield Fly Rule and the common law. Psycholog-
ical analysis is given short shrift; and the insights of sociology, anthro-
pology, political science and statistical analysis are totally ignored.
One is left with the impression that both the Infield Fly Rule and
common law were largely fashioned by common sense human reac-
tions to reality;2 surely a disturbing conclusion to the followers of S.
Freud, C.W. Mills, B.F. Skinner, A. Smith, H. Spencer, L. Keynes,
J. Bentham, M. Freidman, and countless other leaders of modern
social science.
It is not enough to suggest that an infielder would intentionally drop
* Professor of Law, University of Utah.
Page 1474, Anno domini 1975. Citation form will not necessarily follow the form dictated by
the White Book since it has not been empirically shown what, if any, value is achieved by doing
so.
2 For example, the author suggests that the fact that the batsman in an 1893 game between
New York and Baltimore had the speed of an ice wagon while the runner on first was fast
indicated the necessity for the Infield Fly Rule once a pop up to an infielder was hit. 123 PENN.
L. REV. 1474 at 1477. Aside from the fact that the rule as it finally evolved would not apply to
this situation, (Off.R. Baseball 2.00) it is important to ask why the players involved were moti-
vated to act as they did. There are at least three variables: the batter with the speed of an ice
wagon (N.Y.B.I.W.), the fast runner on first (S.N.Y.F.B.R.), and the allegedly ungentlemanly
respondent to the pop fly (R.B.O.2B). Thus, should we seek the motivation of the parties
(M.O.P.) to the transaction, the equation might be: Let M' = the respondent's (R.B.O.2B)
motive; M2 = the batter's (N.Y.B.I.W.) motive; and, M' = the speedy first base runner's
(S.N.Y.F.B.R.) motive. Then M.O.P. = [M' (N.Y.B.I.W.) x (S.N.Y.F.B.R.)]+ M'(R.B.O. 2B);
or is it M.O.P. x M' (R.B.O.2B) = (N.Y.B.I.W.) x M' (S.N.Y.F.B.R.). Well whatever, this would
give us an M.O.P. which would clearly dictate whether to adopt and in what form to adopt an
Infield Fly Rule, absent the meaningless standard of common sense which should never govern
the development of legal rules. One could also draw good charts and graphs with such informa-
tion, which surely would enhance the intellectual prestige of the article and render the article
unintelligible to all but the initiated. In addition, it would suggest to New York Management
that the ice wagon be traded for a first base coach and cash.

241

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