Ryobi stuck with $1.5 million verdict

On Friday, the First Circuit upheld the $1.5 million damages award in Carlos Osorio table saw case.  Osorio, a carpenter untrained in the table saw, lost his hand to a Ryobi table saw after removing all of the saw’s safety features.  The decision was made because Ryobi had neglected to incorporate flesh-sensing brake technology into the saw. In light of the ruling, the Consumer Product Safety Commission voted to propose a tablesaw safety standard that would mandate that saws all sense fingers and retract their blades instantly.

Problem is, only one man has flesh-sensing brake technology.  His patent is so broadly worded that no one else has been able to develop a comparable technology, and his licensing terms have made it impossible for competitors to adopt his invention without pricing their saws out of the market,.  The implications of this ruling for the industry are massive.

In 2004, SawStop’s first cabinet saw hit the market, it offered an amazing and unprecedented safety feature: a blade that instantly senses contact with flesh and snaps out of sight before any real damage can be done. The inventor, Dr. Steve Gass, had tamed carpentry’s most dangerous tool, an amazing feat in itself.  On top of that, unlike thousands of other inventors, Gass actually brought his product to market–himself. Since then, Gass has introduced smaller models of the saw, and sold over 28,000 machines in all.

Osorio suffered a hand injury while he operated a Ryobi Model BTS 15 benchtop table saw (BTS 15). Osorio sued Ryobi, the manufacturer, claiming negligence and breach of the implied warranty of merchantability. At trial, Osorio argued that the BTS 15 was unacceptably dangerous due to defective design. The jury found for Osorio, and Ryobi appealed.

Among its appellate claims, Ryobi argued that Osorio did not present sufficient evidence to prove a design defect. Ryobi argued that Osorio failed to meet a prima facie obligation to present a reasonable alternative design that accounted for the weight, cost, and other features particular to the BTS 15.

Osorio’s defective design theory largely relied on the testimony of his expert witness, Dr. Gass himself.  Dr. Gass testified that he had offered to license SawStop’s flesh-detection technology to Ryobi, but the company was not interested.  Osorio offered a second expert, Robert Holt, to support Dr. Gass’ testimony. Holt accepted Dr. Gass’ claim that SawStop Technology would add about $150 to the price of the table saw. (For saw-pricing context, Osorio’s employer purchased the BTS 15 for $179.)

Ryobi insisted that Osorio’s design, with SawStop, falls short of being a viable alternative.

The First Circuit disagreed with Ryobi, finding that neither the added cost nor the increased weight of Osorio’s proposed alternative design were fatal to his case as a matter of law. Ultimately, the First Circuit determined that it was the jury’s job to determine whether the relevant factors suggest defective design.

It is surprising that Ryobi appealed on the sufficiency of Osorio’s defective design evidence, but didn’t challenge Dr. Gass’ expert classification. While jurors determine how much weight to afford to testimony, it seems unusual that a court would permit expert classification for someone who clearly has a stake in the outcome of the case.


Beachcomber’s “Unauthorized Removal” of Floaties Now Authorized

A Norfolk U.S. District Court reverses a criminal conviction for “unauthorized removal” of personal property, for a woman who cut a length of rope from a beached fishing vessel at Chincoteague National Wildlife Refuge, and took a life preserver from the boat, the Freda Marie, that was floating nearby.
Tait v. U.S. (VLW 011-3-037) (31 pp.)

Microeconomics of Green Jobs

Does a particular green policy create more jobs than it destroys?

A policy is green if it lowers our use of resources and/or environmental impact.  If a green policy is also a net creator of jobs, everyone should agree that it is a good policy. It should be implemented.  End of story.  Green policies which destroy jobs, on the other hand, will require further analysis as to whether the environmental and health benefits outweigh the economic losses.  That’s a question which requires putting relative value on various benefits, and cannot be resolved purely by economic reasoning.  But  the first point bears repeating: if a green policy is also net job creator, everyone should agree that it is a good policy and should be implemented.  Identifying those policies is simple.

Which Policies are Net Job Creators?

There are two ways a policy can increase or decrease economic activity and hence number of jobs.

  1. Jobs can be created or destroyed by substituting labor for capital, energy, and/or other resources in production.
  2. If a policy increases economic efficiency, it will increase economic activity and create jobs. If it decreases economic efficiency, it will reduce economic activity and destroy jobs.

Substituting Labor for Energy or Capital

Marginal rate of Technical Substitution.

Image Source: Wikipedia

A basic tenet of microeconomics is that there is a tradeoff between capital, labor and natural resources such as energy in the production function. In particular, you can substitute capital for labor (by mechanization) or labor for capital (by using shovels and picks instead of bulldozers.) Now add energy into the mix: you can substitute fossil energy for either capital or labor to attain the same production.

For example, a hybrid car.  It substitutes capital and resources (in the form of an electric motor and batteries) for energy (less fuel consumed to do the same work.) A bus substitutes labor (the bus driver) for capital, resources and energy (lots of cars and fuel consumed.) A green building substitutes labor (better architecture/construction) and some resources (extra insulation) for energy.

From this perspective, any policy that promotes the substitution of labor for energy will create green jobs, since you get more work and less energy consumed. Shifting people out of their cars and onto mass transit will create jobs because there will have to be drivers and people managing the transit system, where before no one was paid to drive. To the extent that the transit system can be paid for out of the reduced fuel costs and car ownership costs of the former drivers turned riders, the number of jobs created will be a pure economic gain.

Multiplier Effects

Which brings us to the other major potential source of jobs from green policies: economic multiplier effects.

To the extent that green policies improve economic efficiency by overcoming the barriers to cost effective green solutions, these policies will result in greater economic activity, and hence more jobs. The strongest critique of “green jobs” initiatives is that they simply shift economic activity from out-of-favor “brown” sectors to more politically correct green ones. Yet when a policy improves economic efficiency, it does not just shift jobs and capital around in the economy: it creates economic activity and jobs.

Not all green policies improve economic efficiency. For example, subsidies for not-yet-economic types of renewable energy like wave power and solar installations may be justifiable on the grounds that they are helping to promote needed future technologies, but they probably come at a net cost to near-term jobs (even if they may create more jobs in the long term by allowing the creation of new types of businesses.)

On the other hand, policies to promote energy efficiency will be strong net creators of jobs, because the cost of energy efficiency is typically only a fraction of the cost of the energy saved. The very existence of opportunities to save significantly on energy bills at modest cost is proof that the energy market is inefficient. In an efficient market, all such opportunities would have already been taken.

After the energy efficiency measure has been installed, the cost savings can be used for useful economic activity, rather than wasted on unneeded fuel. This money will then spur additional activity and stimulate jobs.

Using Fossil Resources to Stimulate Growth is Like Stimulating Growth With Debt

Short term jobs (green or otherwise) should not be the only consideration when forming policy. A short term focus on jobs today can end up doing long term economic harm. For instance, if we spend too much borrowed money to create jobs today, the long term drag on the economy caused by paying back the debt will leave everyone worse off.

Economic growth fueled by the extraction of non-renewable resources — natural gas, oil, coal — is no different from economic growth fueled by debt. When we extract these resources and use them, we increase economic activity today, but their non-renewable nature means that we lose the opportunity to extract and use them tomorrow. Hence, the economic stimulus today comes at the cost of a recession tomorrow, and the future recession will generally be larger than today’s stimulus, since improving technology should allow us to get more benefit from each unit of resource in the future.

Using renewable resources to stimulate growth does not have this problem: Tapping the wind or the sun for energy today does nothing to diminish the wind or sun tomorrow. Hence, to the extent a green job relies on renewable resources and a brown job relies on fossil resources, the green job should be preferred every time, even before taking the environmental benefits into account.

Policy Implications

If we only consider job creation, the focus on policy should be on creating jobs and economic activity, with a preference for green jobs, since those impose less of a cost on future economic activity than jobs based on extractive industries.

Green jobs can be created either by substituting labor for energy and capital, or by reducing energy waste so that the money previously wasted on energy can be put to more productive uses. For policy makers who wish to create green jobs, the implications are clear.

Green job programs should focus on two types of opportunities:

  1. Industries where labor can usefully be substituted for energy or capital, like mass transit.
  2. Breaking down the barriers to energy efficiency which can stimulate economic activity by allowing money that would otherwise have been wasted.

The converse is also true: if the goal is to create jobs and stimulate economic activity, subsidies and other policies which encourage the substitution of capital and energy for labor should be ended, especially those subsidies which encourage the extraction of non-renewable resources which only create jobs today at the cost of future jobs.

The most cost effective policies for creating jobs will be those that break down the barriers to the adoption of cost-effective green technologies, especially energy efficiency. Ironically, most energy subsidies have gone into capital intensive sectors such as nuclear and extractive sectors such as oil and gas.

A very cost effective way to produce jobs would then simply be to remove subsidies from fossil fuels and nuclear energy and redirect them towards the most cost effective clean technologies.

Increased support for and promotion of public transit could do much more to reduce our dependence on imported oil than support for domestic natural gas drilling (which will only make us more dependent on imported oil in the future by using up domestic resources sooner) while also creating jobs.

Meanwhile, energy efficiency programs such as cash for caulkers can cost-effectively reduce energy bills and free up money for other sorts of consumption while also creating jobs in the depressed housing sector.

How to be a musician now that music is free


Musicians! Check out this survey from the Future of Music Coalition.  The study tracks artist revenue streams in the post-Napster era, and captures the ways in which US musicians generate income from songs, recordings, or performances.

Obviously, this is not your grandpa’s music industry.  The past ten years transformed the ways in which music created and distributed. The advent of streaming services and webcasting stations eliminated the cost barriers to the distribution and sale of music, and loads of new platforms and technologies — from Bandcamp to blogs to Twitter feeds — now help musicians connect with fans.

The press is quick to categorize these structural changes as positive improvements for musicians, particularly when compared with the music industry of the past — remember FM radio?  While it’s true that these changes improved musicians’ access to the marketplace, they have not necessarily improved musicians ability to generate revenue from their work.  Almost all analyses of the effects of these changes rest purely on assumptions that they have improved musicians’ bottom lines, or on top-level assessments of the music industry writ large, based on traditional metrics: number of albums sold, number of spins on radio, even stock price valuations.

The results provide some insight into complex nature of being a musician in the 21st century, particularly the financial realities of copyrights, licensing, and royalties.

Elf Off the Shelf back on the shelf

A new copyright and trademark parody case, CCA and B, LLC v. F + W Media, Inc. (N.D. Ga. Sept. 22, 2011), finds that the parody Elf off the Shelf  likely does not infringe the copyright or trademark in plaintiff’s Elf on the Shelf.

Sex, Drugs, and the Public Trust

Let’s talk about this.  From the beginning, there was no private ownership of water.  Under Roman law, tidewaters (like rivers and seas) and submerged lands (stream beds and shoreline) were community property, held in trust by the state for the benefit of the public.  This approach to water management endured for most of human history.  Consider, for example, 13th century Spain.  Las Siete Partidas, the laws of Spain set forth by Alfonso the Wise, recognized public rights in navigable waterways.  In England, this principle evolved into the common law public trust doctrine: the king held all waterways and submerged lands, not for himself, but rather “as trustee of a public trust for the benefit of the people” for uses like commerce, boating, and fishing.

After the American Revolution, each of the original states succeeded to this sovereign right and duty.  Each became trustee of the tide and submerged lands within its boundaries for the common use of the people.  Subsequently admitted states, like California, have the same sovereign rights under the equal footing doctrine.   That is, title to lands under navigable waters is held by the state in trust for the public good.  These lands are not alienable, as the public’s interest in them cannot be extinguished.

II. Purpose of the Public Trust

The Supreme Court described the nature of a state’s title to its tide and submerged lands in 1892, and although courts have reviewed tidelands trust issues many times since then, the Court’s premise remains fundamentally unchanged: a state’s title to its tide and submerged lands is different from that to the lands it holds for sale.  “It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing” free from obstruction or interference from private parties.  Illinois Central R.R. Co. v Illinois (1892) 146 U.S. 387, 452.  In other words, the public trust is an affirmation of the duty of the state to protect the public’s common uses of its waterways.

Are what are these common uses?  Traditionally, public trust uses were limited to water-bourne commerce, navigation, and fishing.  In more recent years, however, the California Supreme Court has said that the public trust embraces the right of the public to use the navigable waters of the state for bathing, swimming, boating, and general recreational purposes.  It is flexible enough to accommodate changing public needs, such as the preservation of the lands in their natural state for scientific study, as open space and as wildlife habitat.  The administrator of the public trust “is not burdened with an outmoded classification favoring one mode of utilization over another.”

The state legislature, acting within the confines of the common law public trust doctrine, is the ultimate administrator of the trust and often may be the ultimate arbiter of permissible uses of trust lands.  All uses, including those specifically authorized by the Legislature, must take into account the overarching principle of the public trust doctrine that trust lands belong to the public and are to be used to promote public rather than exclusively private purposes.  For this reason, the legislature cannot commit trust lands to private development because it would be abdicating its duty as a trustee.   Within these confines, however, the legislature has considerable discretion.

 The legislature speaks to the issue of permissible uses when it assigns trust lands to local governments.  Statutory trust grants are not all the same–some authorize the construction of ports and airports, others allow only recreational uses and still others allow a broad range of uses.

A further and often complicating factor is that granted and ungranted lands already may have been developed for particular trust uses that are incompatible with other trust uses or may have become antiquated. Some tidelands have been dedicated exclusively to industrial port uses, for example, and in these areas, recreational uses, even if also authorized by the trust grant, may be incompatible.  Similarly, tidelands set aside for public beaches may not be suitable for construction of a cannery, even though a cannery may be an acceptable trust use.  Piers, wharves and warehouses that once served commercial

navigation but no longer can serve modern container shipping may have to be removed or converted to a more productive trust use.  Historic public trust uses may have been replaced by new technologies.  Antiquated structures on the waterfront may be an impediment rather than a magnet for public access and use of the waters.  Public trust uses may and often do

conflict with one another.  The state and local tidelands grantees, as administrators of their



10Illinois Central Railroad v. Illinois, supra, at 452-53.


respective public trust lands, are charged with choosing among these conflicting uses, with the Legislature as the ultimate arbiter of their choices.

For all these reasons, a list of uses or a list of cases without more may not be as useful as an analysis of public trust law applied to a specific factual situation.

III. The Leasing of Tidelands



A few principles established by the courts are instructive in analyzing under the public trust doctrine the leasing of public trust lands for particular uses.  For example, it was settled long ago that tidelands granted in trust to local entities may be leased and improved if the leases and improvements promote uses authorized by the statutory trust grant and the public trust.  Leases for the construction of wharves and warehouses and for

railroad uses, i.e., structures that directly promote port developme nt, were approved early in the 20th century.11   Later, leases for structures incidental to the promotion of port commerce, such as the Port of Oakland’s convention center, were held to be valid because although they did not directly support port business, they encouraged trade, shipping, and commercial associations to become familiar with the port and its assets.12   Visitor-serving facilities, such as restaurants, hotels, shops, and parking areas, were also approved as

appropriate uses because as places of public accommodation, they allow broad public





11San Pedro etc. R.R. Co. v. Hamilton (1911) 161 Cal. 610; Koyner v. Miner (1916) 172

Cal. 448; Oakland v. Larue Wharf & Warehouse Co. (1918) 179 Cal. 207; City of Oakland v. Williams (1929) 206 Cal. 315.


12Haggerty v. City of Oakland (1958) 161 Cal.App.2d 407, 413-414.


access to the tidelands and, therefore, enhance the public’s enjoyment of these lands historically set apart for their benefit.13

These cases provide three guidelines for achieving compliance with the public trust when leasing tidelands for construction of permanent structures to serve a lessee’s development project:  (1) the structure must directly promote uses authorized by the statutory trust grant and trust law generally, (2) the structure must be incidental to the promotion of such uses, or (3) the structure must accommodate or enhance the public’s enjoyment of the trust lands.  Nonetheless, when considering what constitutes a trust use, it is critical to keep in mind the following counsel from the California Supreme Court: The objective of the public trust is always evolving so that a trustee is not burdened with outmoded classifications favoring the original and traditional triad of commerce, navigation

and fisheries over those uses encompassing changing public needs.14












IV. Promotion of Trust Uses and Public Enjoyment of Trust Lands







13Id. at p. 414; Martin v. Smith (1960) 184 Cal.App.2d 571, 577-78.


14National Audubon Society v. Superior Court, supra, at p. 434.


Installations not directly connected with water-related commerce are appropriate trust uses when they must be located on, over or adjacent to water to accommodate or

foster commercial enterprises.  Examples include oil production facilities, freeway bridges and nuclear power plants.15   Hotels, restaurants, shops and parking areas are appropriate because they accommodate or enhance the public’s ability to enjoy tide and submerged lands and navigable waterways.  The tidelands trust is intended to promote rather than serve as an impediment to essential commercial services benefiting the people and the ability of the people to enjoy trust lands.16

Nevertheless, the essential trust pur poses have always been, and remain, water



related, and the essential obligation of the state is to manage the tidelands in order to implement and facilitate those trust purposes for all of the people of the state.17

Therefore, uses that do not accommodate, promote, foster or enhance the statewide public’s need for essential commercial services or their enjoyment tidelands are not appropriate uses for public trust lands.  These would include commercial installations that could as easily be sited on uplands and strictly local or “neighborhood-serving” uses that confer no significant benefit to Californians statewide.  Examples may include hospitals,

supermarkets, department stores, and local government buildings and private office




15See Boone v. Kingsbury (1928) 206 Cal.148, 183; Colberg, Inc. v. State of California ex rel. Dept. Pub. Work, supra, at pp. 421-22; and Carstens v. California Coastal Com. (1986) 182

Cal.App.3d 277, 289.


16Carstens v. California Coastal Com., supra, at p. 289.


buildings that serve general  rather than specifically trust-related functions.



V. Mixed-Use Developments






















































17Joseph L. Sax, AThe Public Trust in Stormy Western Waters,@ October 1997.


Mixed-use development proposals for filled and unfilled tide and submerged lands have generally consisted of several structures, including non-trust use structures or structures where only the ground floor contains a trust use.  While mixed-use developments on tidelands may provide a stable population base for the development, may draw the public to the development, or may yield the financing to pay for the trust uses to be included in the development, they ought not be approved as consistent with statutory trust grants and the public trust for these reasons.  These reasons simply make the development financially attractive to a developer.  Projects must have a connection to water-related activities that provide benefits to the public statewide, which is the hallmark of the public trust doctrine. Failure to achieve this goal, simply to make a development financially attractive, sacrifices public benefit for private or purely local advantage.  A mixed-use development may not be compatible with the public trust, not because it may contain some non-trust elements, but

because it promotes a “commercial enterprise unaffected by a public use”18  rather than


promoting, fostering, accommodating or enhancing a public trust use.19   That use, however, need not be restricted to the traditional triad of commerce, navigation and fishing.  It is an evolving use that is responsive to changing public needs for trust lands and for the benefits



18City of Long Beach v. Morse (1947) 31 Cal.2d 254, 261.


19Haggerty v. City of Oakland, supra, at pp. 413-14.


these lands provide.20


Moreover, commercial enterprises without a statewide public trust use may violate the terms of statutory trust grants.  Typically, grants allow tidelands to be leased, but only for purposes “consistent with the trust upon which said lands are held.”  This term is not equivalent to “not required for trust uses” or “not interfering with trust uses.”  Since leases of tidelands must be consistent with statutory trust grant purposes, leases which expressly contemplate the promotion of non-trust uses rather than trust uses would not comply with

the terms of the trust grants.




































20National Audubon Society v. Superior Court, supra, at p. 434.


For these reasons, non-trust uses on tidelands, whether considered separately or part of a mixed-use development, are not mitigable.  That is, unlike some environmental

contexts where developments with harmful impacts may be approved so long as the impacts are appropriately mitigated by the developer, in the tidelands trust context, mitigation of a non-trust use has never been recognized by the courts.  To the contrary, the California Supreme Court has said that just as the state is prohibited from selling its tidelands, it is similarly prohibited from freeing tidelands from the trust and dedicating them to other uses

while they remain useable for or susceptible of being used for water-related activities.21



VI.         Incidental Non-Trust Use

All structures built on tide and submerged lands should have as their main purpose the furtherance of a public trust use.  Any structure designed or used primarily for a non- trust purpose would be suspect.  Mixed-use development proposals, however, frequently justify non-trust uses as “incidental” to the entire project.  The only published case in California in which a non-trust use of tidelands has been allowed focused on the fact that the real or main purpose of the structure was a public trust use and that the non-trust use would be incidental to the main purpose of the structure.22   In this context, the court noted

that because the real or main purpose of the structure was to promote public trust uses, non- trust groups could also use the facility, but the non-trust uses must remain incidental to the





21Atwood v. Hammond (1935) 4 Cal.2d 31, 42-43.


22Haggerty v. City of Oakland, supra, at p. 413.


main purpose of the structure.23   This is the state of the law, and it is supported by good policy reasons as well.  If the test for whether a non-trust use i s incidental to the main purpose of a development were not applied on a structure-by-structure basis, pressure for more dense coastal development may increase as developers seek to maximize the square feet of allowable non-trust uses.  Disputes may arise as to how to calculate the square footage attributable to the proper trust uses versus non-trust uses, with open waterways and

parking garages likely being the dominant trust uses and structures being devoted to non- trust uses.

It is beyond contention that the state cannot grant tidelands free of the trust merely because the grant serves some public purpose, such as increasing tax revenues or because the grantee might put the property to a commercial use.24   The same reasoning applies to putting tidelands to enduring non-trust uses by building structures on them.  Accordingly, the only enduring non-trust uses that may be made of tidelands without specific legislative authorization are those incidental to the main trust purpose applied on a structure-by- structure basis.  Each structure in a mixed-use development on tidelands must have as its primary purpose an appropriate public trust use.  If its real or main purpose is a trust use, portions of the structure not needed for trust purposes may be leased temporarily to non- trust tenants, provided that the non-trust use is incidental to the main purpose of the







VII. The Role of the Legislature



The Legislature is the representative of all the people and, subject to judicial review, is the ultimate arbiter of uses to which public trust lands may be put.  The Legislature may create, alter, amend, modify, or revoke a trust grant so that the tidelands are administered in a manner most suitable to the needs of the people of the state.25   The Legislature has the power to authorize the non-trust use of tidelands.  It has done so rarely, and then on a case- specific basis.26   Many of its actions have been a recognition of incidental non-trust uses or of a use that must be located on the tidelands. When these legislative actions have been challenged in court, the courts, understandably, have been very deferential, upholding the actions and the findings supporting them.27

The Legislature has provided a statutory framework for the leasing of tidelands for

non-trust uses by the cities of Long Beach and San Francisco grounded on findings that the tidelands are not required for (San Francisco) or not required for and will not interfere








24National Audubon Society v. Superior Court, supra, at p. 440.


25City of Coronado v. San Diego Unified Port District (1964) 227 Cal.App.2d 455, 474.


26For example, in Chapter 728, Statutes of 1994, the Legislature authorized tidelands in

Newport Beach to continue to be put to non-trust uses for a limited term after it was determined that the tidelands had been erroneously characterized and treated as uplands by the city due to incorrect placement of the tidelands boundary.


27See, e.g., Boone v. Kingsbury, supra, at p. 183 and City of Coronado v. San Diego

Unified Port District, supra, at pp. 474-75; but see Mallon v. City of Long Beach (1955) 44

Cal.2d 199, 206-07, 212.


with (Long Beach) the uses and purposes of the granting statute.28   Where, as in these two statutes, the Legislature has authorized in general terms the use of tidelands for non-trust purposes, the statutes’ provisions must be interpreted so as to be consistent with the paramount rights of commerce, navigation, fishery, recreation and environmental protection.  This means that the tidelands may be devoted to purposes unrelated to the common law public trust to the extent that these purposes are incidental to and

accommodate projects that must be located on, over or adjacent to the tidelands.  These non-trust uses are not unlimited, for there are limits on the Legislature’s authority to free tidelands from trust use restrictions.29

To ensure that the exercise of the Long Beach and San Francisco statutes is



consistent with the common law public trust, the tidelands to be leased for non-trust uses must have been filled and reclaimed and no longer be tidelands or submerged lands and must be leased for a limited term. The space occupied by the non-trust use, whether measured by the percentage of the land area or the percentage of the structure, should be relatively small. Finally, any structure with a non-trust use should be compatible with the overall project. Findings such as these are necessary because legislative authorizations to devote substantial portions of tidelands to long-term non-trust uses have generally been considered by the






28Ch. 1560, Stats. 1959; Ch. 422, Stats. 1975. These statutes also provide for, inter alia, the lease revenues to be used to further trust uses and purposes.


29Illinois Central R.R. Co. v. Illinois, supra, at pp. 452-54.


courts as tantamount to alienation.30



In several out-of-state cases, specific, express legislative authorizations of



incidental leasing of publicly-financed office building space to private tenants solely for the purpose of producing revenue have been subject to close judicial scrutiny, although they did not involve tidelands trust use restrictions.31   One case involved construction of an international trade center at Baltimore’s Inner Harbor with public financing where

legislation expressly permitted portions of the structure to be leased to private tenants for the production of income.  Another was a condemnation case where the statute authorizing the New York Port Authority to acquire a site on which to build the World Trade Center was challenged on the basis that it allowed portions of the new structure to be used for no other purpose than the raising of revenue.   In both cases, opponents of the projects argued that a publicly financed office building should not be permitted to have any private commercial tenants even though the respective legislatures had expressly allowed incidental private use of each building.  The state courts in both Maryland and New York held that so long as the primary purpose of the office building was for maritime purposes connected with the port,

legislation authorizing the leasing to private tenants was valid.32   Although both cases



involve challenges to financing and condemnation statutes and do not involve the public




30Atwood v. Hammond, supra, at p. 42; see also Illinois Central R.R. Co. v. Illinois, supra,

at pp. 454-53.


31Lerch v. Maryland Port Authority (1965) 240 Md. 438; Courtesy Sandwich Shop, Inc. v. Port of New York Authority (1963) 12 N.Y.2d 379.




trust, they are instructive because they demonstrate the importance to the courts, even in



the context of public financing and condemnation, that when a portion of a structure is to be leased for the purpose of raising revenues to offset expenses, this incidental non-public leasing must have been legislatively authorized.

VIII. Exchanges of Lands



Situations where a local government or a private party acquires a right to use former trust property free of trust restrictions are r are.33   In order for such a right to be valid, the Legislature must have intended to grant the right free of the trust and the grant must serve the purpose of the trust.  Public Resources Code section 6307 is an example of the rare situation where abandonment of the public trust is consistent with the purposes of the trust. Section 6307 authorizes the Commission to exchange lands of equal value, whether filled or unfilled, whenever it finds that it is “in the best interests of the state, for the improvement of navigation, aid in reclamation, for flood control protection, or to enhance the configuration of the shoreline for the improvement of the water and upland, on

navigable rivers, sloughs, streams, lakes, bays, estuaries, inlets, or straits, and that it will not substantially interfere with the right of navigation and fishing in the waters involved.” The lands exchanged may be improved, filled and reclaimed by the grantee, and upon adoption by the Commission of a resolution finding that such lands (1) have been improved, filled, and

reclaimed, and (2) have thereby been excluded from the public channels and are no longer





33National Audubon Society v. Superior Court, supra, at p. 440.


available or useful or susceptible of being used for navigation and fishing, and (3) are no longer in fact tidelands and submerged lands, the lands are thereupon free from the public trust.  The grantee may thereafter make any use of the lands, free of trust restrictions.

In order for such an exchange of lands to take place, the Commission must find that the lands to be exchanged are no longer available or useful or susceptible of being used for navigation and fishing, taking into consideration whether adjacent lands remaining subject to the trust are sufficient for public access and future trust needs; that non-trust use of the

lands to be freed of the public trust will not interfere with the public’s use of adjacent trust lands; and that the lands that will be received by the state in the exchange not only are of equal, or greater, monetary value but also have value to the tidelands trust, since they will take on the status of public trust lands after the exchange.  Only then can the Commission find that the transaction is in the best interests of the state, that the exchange of lands will promote the public trust and that it will not result in any substantial interference with the public interest in the lands and waters remaining.

Knox Out!

After 11 hours of deliberation, an Italian jury overturned the conviction of Amanda Knox and Raffaele Sollecito in the murder of Meredith Kircher, Knox’s former roommate.  Knox testified in her own defense in the appeal (which is allowed in Italy; the appellate court can revisit the facts). She told the eight-member jury, in Italian, “I’m not a promiscuous vamp. I’m not violent … I have not killed, I have not raped, I was not there, I was not present.”

Congratulations to Knox, who is now free to sell the movie rights.

The Interested Game

In the wake of the Black Sox scandal of 1919, Major League Baseball appointed a federal district judge, Kennesaw Mountain Landis, to head the new Office of the Commissioner.  Landis demanded, successfully, a revision of the league constitution giving the Commissioner nearly absolute power over the league’s affairs, subject to a single limitation: that the Commissioner act only “in the best interests of the game.”  Part legislative, part judicial, his decisions were “the supreme law of the game.”  In a sense, the powers and responsibilities of the Commissioner of Baseball became like those of a Supreme Court justice.   Commissioners and Justices both make inherently difficult, controversial, and value-driven decisions at high levels of abstraction, and both interpret and modify the rules to preserve their institutions’ core values, like fair play and due process. In particular, both Justices and Commissioners (1) provide guidance, (2) refrain from error correction, (3) undertake rulemaking, (4) exercise countermajoritarian powers, (5) explain their decisions, (6) protect the fundamental values of their respective institutions, (7) employ special masters for fact-finding, (8) decide on statutes of limitations, and (9) exercise finality.  Here are just a few paradigm illustrations of these similarities, matching a Court decision with a comparable action by the Commissioner of Baseball.

1. Providing Guidance: Chevron and the Strike Zone

Both Justices and Commissioners are tasked with providing interpretive guidance to their subordinates. At their cores, the jobs of both Justices and Commissioners are to ensure the proper interpretation of rules. This common structural role can be observed in the Court’s landmark administrative law decision, Chevron v. Natural Resources Defense Council, and the Commissioner’s long history of regulating interpretation of the strike zone.

In Chevron, the Supreme Court provided guidance to subordinate judges regarding the appropriate standard of review that should be applied to an agency interpretation of a statute that it administers. In adopting a default rule of substantial deference, the Court held that “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron and its progeny provided an approach for how to interpret agency statutes, allowing fora virtually unfettered range of acceptable actions in the agency’s “strike zone”—any actions that are substantiated by a “permissible construction” of the governing statute. Thus, the Supreme Court did not define the exact boundaries of agency authority in Chevron but provided guidance for how lower courts should assess administrative actions.

Similarly, the Commissioner of Baseball has long grappled with providing the proper interpretive guidance to umpires regarding calling balls and strikes. On their face, the Major League Rules define the strike zone clearly:

The strike zone is that area over home plate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the hollow beneath the knee cap. The Strike Zone shall be determined from the batter’s stance as the batter is prepared to swing at a pitched ball.

Yet enforcement of the strike zone has been a controversial issue: umpires have often declined to follow the official rules and, in particular, have not called high strikes. In 2001, seeking to speed up the pace of the game and help pitchers, current Commissioner Allan “Bud” Selig instructed that umpires more strictly enforce the strike zone as written, resulting in more strikes being called. In taking action in this manner, Selig did not alter the rulebook; instead, he provided guidance to subordinates on how existing rules should be interpreted.

2. Refraining from Error Correction: Magnum Import Co. v. Coty and Armando Galarraga

Just as Justices and Commissioners provide interpretive guidance, so too do they generally refrain from correcting individual errors. This similarity between these two offices is evident in the Court’s decision inMagnum Import Co. v. Coty, where the Court explicitly described its guidance function, and in Commissioner Bud Selig’s 2010 decision to leave intact umpire Jim Joyce’s blown call, which robbed Armando Galarraga of a perfect game.

The Supreme Court is not in the error-correction business. Supreme Court Rule 10 states that “[a] petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.” In Magnum Import Co. v. Cotybaseball’s greatest Justice (and one-time candidate for Commissioner), Chief Justice William Howard Taft, declared for the majority:

The jurisdiction to bring up cases by certiorari from the Circuit Courts of Appeals was given . . . to bring up cases involving questions of importance which it is in the public interest to have decided by this Court of last resort. The jurisdiction was not conferred upon this Court merely to give the defeated party in the Circuit Court of Appeals another hearing.

There are sound reasons for this policy. The Court “position[s] itself as a source of structure, guidance, and uniformity, not as a traditional court of appeals that reviews the correctness of lower court opinions.” It does so to keep its docket under control and to ensure that it considers cases only after they have received careful review by multiple lower courts. Justice Breyer has described this structural feature of the Court: “[T]he Supreme Court does not generally determine whether the lower courts have correctly disposed of a particular case. . . . Rather than correcting errors, then, the Supreme Court is charged with providing a uniform rule of federal law in areas that require one.”

Similarly, the Commissioner of Baseball does not review the on-field calls of umpires for error; rather, he provides general guidance to the umpires on how to interpret the rules. For example, consider the case of Armando Galarraga. On June 2, 2010, Galarraga took the mound for the Detroit Tigers. Through eight and two-thirds innings, Galarraga was pitching a perfect game (twenty-six up, twenty-six down). Had Galarraga gotten the last batter out, he would have been the twenty-first pitcher in Major League history to throw a perfect game.The twenty-seventh batter, Cleveland Indians shortstop Jason Donald, hit a grounder down the first base line. Tigers first baseman Miguel Cabrera left the bag to field the grounder, and Galarraga ran to cover first base. Cabrera’s throw to Galarraga easily beat the runner to first, and thus he should have been called out. Instead,first base umpire Jim Joyce erroneously called the runner safe, ending Galarraga’s perfect game.

Upon viewing the video replay, Joyce immediately realized that he had made the wrong call, lamenting that “I had a great angle, and I missed the call,” and that “I just cost that kid a perfect game.” Unfortunately, there was nothing Joyce could do to remedy the situation; the official record showed Galarraga’s game as near-perfect, having retired twenty-six batters in a row. Inside and outside of baseball, many observers were unhappy with Joyce’s call. However, the final decision on whether to reverse Joyce’s call rested with Commissioner Selig.

In the days following the game, the Commissioner actively considered reversing Joyce’s call and awarding Galarraga a perfect game. In the end, Selig declined to reverse the single error in the application of settled law, but he contemplated a larger systemic change to Major League Baseball’s policy about instant replay:

[T]here is no dispute that last night’s game should have ended differently. While the human element has always been an integral part of baseball, it is vital that mistakes on the field be addressed. Given last night’s call and other recent events, I will examine our umpiring system, the expanded use of instant replay and all other related features.

The Commissioner’s message was clear: even though Joyce had clearly erred in applying a settled rule (by awarding Donald a base to which he was not entitled), the Commissioner’s job, like that of a Supreme Court Justice, is not error correction.

3. Rulemaking: Miranda v. Arizona and Harvey Haddix

The Commissioner and the Court also share the structural responsibility for rulemaking in their respective systems. A classic instance of this rulemaking power in the Supreme Court was its decision on police interrogation in Miranda v. Arizona. As for the Commissioner, a comparable instance of rulemaking was the Commissioner’s reconsideration of the definition of a perfect game in the case of Harvey Haddix. In both instances, to quote Judge Posner, the Supreme Court and the Commissioner “chang[ed] the rules” of their respective games.

In Miranda, the Court ruled that evidence obtained from a suspect in police custody is not admissible in the courts, unless the suspect is informed of his right to counsel and right against self-incrimination and then makes a voluntary waiver of his rights. The Court threw out Ernesto Miranda’s conviction not as a misapplication of settled law but because the lack of warnings violated his right to Due Process. In changing the Fifth Amendment rules, the Court discarded the old “totality of circumstances” test. The Miranda Court instead set new standards for the lower courts in terms of admissibility and dictated constitutionally mandated procedures for police interrogations of criminal suspects. Miranda did not “merely” grant the appellant “another hearing;” it was an instance of the Court promulgating new rules for a large set of cases in the lower courts.

Similarly, in 1991, Commissioner Vincent convened a “Committee for Statistical Accuracy” to create rules for determining authoritatively what constitutes a perfect game. The Committee decided that a perfect game should require both “at least nine innings” and that “no batter reach[] any base during the course of the game.” As a result, Harvey Haddix’s 1959 game, where he pitched twelve perfect innings before yielding a hit, was retroactively declassified as a perfect game, since Haddix had given up a hit in the thirteenth inning. The cases of both Miranda and Haddix suggest that neither the Commissioner nor the Supreme Court, in Justice Breyer’s words, is generally engaged in “correcting errors . . . [but] is charged with providing a uniform rule.”

4. Countermajoritarianism: Brown v. Board of Education and Jackie Robinson

Both the Court and the Commissioner have a mixed record with respect to racial integration. The Court’s nadir came in its decision upholding the “separate but equal” doctrine in Plessy v. Ferguson. For the Office of the Commissioner, the low point was Kenesaw Mountain Landis’s strong resistance to integration and strong support for racially segregated leagues. However, both institutions ultimately vindicated themselves in landmark events: the repudiation of “separate but equal” in Brown v. Board of Education, and the signing of Jackie Robinson to play for the Brooklyn Dodgers.

At first, both the Court and the Commissioner hid behind the fallacy of “separate but equal.” In Plessy, the Court identified “the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority.” In other words, separate couldbe equal. For baseball, the equivalent argument for separate leagues was that “players of both races have been permitted to develop in their own environments and rise to the heights of stardom within their own circles.”

In upholding racial segregation, the Court was more frank about its actions than was the Commissioner. While the Court was explicit about its embrace of separate but equal, Landis was duplicitous. He publicly claimed that“Negroes are not barred from organized baseball by the commissioner and no rule forbids their entry.” In private, however, he was more candid, telling owner Bill Veeck that he would “invalidate any contract [Veeck] made with a black player and, for conduct detrimental to the game, he would bar Veeck from organized baseball for life if he hired one.” Thus, in reality, the Commissioner, like the Court, acted as the structural bulwark of “separate but equal” within his institution.

Just as the Court and the Commissioner both grievously erred by supporting segregation, so too were they subsequently at the vanguard of ending the practice. In so doing, both the Court and the Commissioner took countermajoritarian actions with long-lasting social impact. Both national institutions strongly confirmed the values of nondiscrimination and equality and thereby made important contributions to the civil rights movement. And there is yet another parallel: the military’s experience with nondiscrimination played a critical role in the decisions of the Court and the Commissioner to desegregate.

In Brown v. Board of Education, the Court famously declared that “separate educational facilities are inherently unequal.” In so doing, the Brown Court unanimously overturned laws that were, in many states, strongly supported by the public. At the time Brown was decided, the U.S. military had already been integrated byPresident Harry Truman’s 1948 Executive Order. Truman’s Order strongly encouraged popular acceptance of integration prior to the Brown decision and was cited by amici in Brown who supported desegregation. And, as some scholars have argued, military desegregation had a strong impact on the Court’s decision to hold separate-but-equal schooling unconstitutional.

Seven years before Brown, Major League Baseball broke its own color wall. In 1947, Jackie Robinson joined the Brooklyn Dodgers as the first black major leaguer of modern times. Some commentators have attributed as much or more long-term social significance to Robinson’s breaking the color barrier than to the Brown decision.And it was Commissioner Happy Chandler who proved pivotal in the integration of Baseball. Whereas Landis had supported the “separate but equal” status of the Negro Leagues, Chandler came to support racial integration of Baseball strongly, even against the will of the majority of the owners.

Just as the military’s integration provided an impetus for the Court’s decision in Brown, Chandler pointed to the military as a leading reason to favor integration on the playing field. Although Truman had not yet ordered the military desegregated at the time Robinson joined the Dodgers, Chandler was aware that white and black units fought alongside each other effectively in World War II. As Chandler put it, “If they can fight and die on Okinawa, Guadalcanal, [and] in the South Pacific, they can play baseball in America.” The parallel cases ofBrown and Robinson demonstrate that, as protectors of the fundamental values of their respective systems, both Justices and Commissioners must sometimes take unpopular countermajoritarian action in order to advance the evolving core values of their institutions.

5. Providing Explanations: Boumediene v. Bush and Giamatti’s 1988 Statement

Both Supreme Court Justice and Baseball Commissioner do more than make decisions: they explain themselves to the larger public. Consider, for example, the Court’s landmark decision in Boumediene v. Bush, in which a divided Court held that the constitutional protections of habeas corpus extend to detainees held at Guantanamo Bay. The Boumediene majority discussed the “history and origins of the writ,” and Justice Souter noted the role of the writ as “something of value both to prisoners and to the Nation.” The majority emphasized the lack of assistance of counsel for detainees and their consequent deprivation of a voice in the process against them. In response, Justice Scalia in dissent crafted a competing historical narrative and contextualized the decision as one that would “cause more Americans to be killed.” In Boumediene, both the majority and the dissent exercised their explanatory functions, placing their respective opinions in the context of a larger narrative.

Baseball Commissioners play a similar role in explaining their decisions to the public by situating such decisions in the context of the “national pastime” and its values. For instance, when Commissioner Giamatti banned baseball’s all-time hits leader, Pete Rose, for gambling, Giamatti issued a detailed statement to the American public, explaining the reasons for his decision. Giamatti placed the Rose case in historical context, declaring that“there had not been such grave allegations since the time of Landis.” He discussed Major League Baseball’s obligation to its “fans and well-wishers.” Like the Boumediene Court, Commissioner Giamatti took his explanatory role seriously, seeing the “sorry” Rose case as an opportunity to discuss the core values for which baseball stands.

6. Due Process and Best Interests: Roe and Rose

Both the Supreme Court and the Commissioner are tasked not only with explaining the fundamental values of their respective systems, but also with protecting those core values. For the Supreme Court Justice, this often means protecting the “due process of law”; for the Commissioner, this means protecting the “best interests of baseball.” Commissioner Fay Vincent described the structural similarities between the Due Process and Best Interest Clauses:

The best interests of the game . . . . It’s like “due process” or any other of the wonderful statements that govern our lives. I mean, what does due process mean? The fourteenth amendment has a huge affect [sic] on our daily life. And the same thing is true with phrases like “the best interests.” The wonderful thing about the “best interests” is that it is not susceptible to easy definition, and it was written by Landis, to generate authority for his ability to make rulings that he thought were [just].

Interpretation of both the Due Process Clause and the Best Interests Clause can be controversial. Such controversy is unsurprising, since, in exercising the Due Process and Best Interests powers, the Court and the Commissioner claim to speak for the deepest values of the system. When others do not share such values or disagree about the appropriate application of those values, the response is typically strong and heartfelt.


Consider Roe v. Wade. In Roe, the Supreme Court famously declared that “[a] state criminal abortion statute . . . that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.” The Court did not invoke the Due Process Clause lightly, noting that it was limited to “only [those] personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty.’”

Commissioner Giamatti similarly protected Major League Baseball’s deepest values in the Pete Rose incident by invoking the Best Interests Clause. Rose had been accused of gambling on Baseball. In response, Giamatti permanently banned Rose from Baseball (with the potential for reinstatement at a later time). Giamatti based his decision to ban Rose on the Best Interests Clause, to “protect[] the integrity of the game of baseball—that is, the game’s authenticity, honesty and coherence.” Giamatti invoked the Best Interests Clause to preserve the core foundations of the game. In Giamatti’s words,

I believe baseball is an important, enduring American institution. It must assert and aspire to the highest principles—of integrity, of professionalism of performance, of fair play within its rules. It will come as no surprise that like any institution composed of human beings, this institution will not always fulfill its highest aspirations. I know of no earthly institution that does. But this one, because it is so much a part of our history as a people and because it has such a purchase on our national soul, has an obligation to the people for whom it is played—to its fans and well-wishers—to strive for excellence in all things and to promote the highest ideals.

For Giamatti, the Best Interests Clause served the same structural purpose in the Rose incident as the Due Process Clause did in Roe: to safeguard the “fundamental” principles of the institution he was duty-bound to protect.

Unsurprisingly, invoking such a structural power in such contexts does not come without controversy. The phenomenon of Roe Rage” is well known. Similarly, much ink has been spilled debating whether Giamatti appropriately exercised his powers in banishing Rose—what one might call ‘Rose Rage.’ The invocation of either Clause is strong medicine; the structural interpretation of “fundamental” values can land Justice or Commissioner in a pickle. However, protecting the basic values of their respective systems is at the core of their roles.

7. Special Masters: The Ellis Island Case and the Dowd Report

Though the Commissioner and the Court generally seek to provide guidance to lower courts on questions of law, their original jurisdictions sometimes necessitate fact-intensive inquiries. Nevertheless, the Commissioner and the Supreme Court are both ill-suited for the task of factfinding. Consequently, both rely on special masters to engage in factfinding for them. Particularly instructive is a comparison of the Court’s use of a special master ina dispute over Ellis Island with the Commissioner’s use of a special master to investigate allegations of gambling.

In 1993, New Jersey sued New York before the Supreme Court, contesting the ownership of Ellis Island. Rather than engage in the time-consuming process of factfinding, the Court appointed Paul Verkuil as a special master, granting him

authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings, and with authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem it necessary to call for. The Special Master is directed to submit such reports as he may deem appropriate.

The Court’s appointment of a special master was not unusual; indeed, the Supreme Court’s “appointment of Special Masters in original jurisdiction cases [is] standard practice.” In these cases, the Court grants substantial deference to the Special Master’s findings but does not surrender judicial control. As the Court declared in an earlier case, “Though the Master’s findings on these issues deserve respect and a tacit presumption of correctness, the ultimate responsibility for deciding what are correct findings of fact remains with us.”

Pursuant to the Court’s order, Special Master Verkuil conducted his hearings and submitted a report to the Court summarizing over four thousand pages of trial record. Verkuil’s report ultimately determined that “New York’s sovereign authority was limited to the original area of the Island . . . which he pegged to the mean low-water mark of the original Island.” After hearing oral argument, the Supreme Court upheld the Special Master’s findings with the exception of a “miniscule detail.”

Like the Supreme Court in The Ellis Island Case, Commissioner Giamatti appointed a special master in the Pete Rose case, a procedure later followed by Commissioner Selig when he appointed Senator Mitchell to investigate allegations of steroid use. Instead of conducting a factual inquiry himself, the Commissioner recognized that“[t]o pretend that serious charges of any kind can be responsibly examined by a Commissioner alone fails to recognize the necessity to bring professionalism and fairness to any examination.” Thus, the Commissioner engaged John Dowd, a former Department of Justice prosecutor, “to investigate these and any other allegations that might arise and to pursue the truth wherever it took him.” Giamatti explained that “such a process, whereby an experienced professional inquires on behalf of the Commissioner as the Commissioner’s agent, is fair and appropriate.”

Dowd produced a 225-page report with eight volumes of exhibits, concluding that Rose had, in fact, gambled on Major League Baseball games. Giamatti scheduled a hearing to review Dowd’s report with Rose, just as the Supreme Court had reviewed Verkuil’s report, but Rose declined to attend. Giamatti then banned Rose from Baseball and issued a public statement explaining his actions.

Like the Supreme Court in The Ellis Island Case, the Commissioner recognized the impediments to personally undertaking a fact-intensive inquiry in the exercise of his original jurisdiction. Furthermore, like the Court, the Commissioner did not accept automatically the report of his special master. Rather, attempting to promote “a process that . . . embodies integrity and fairness,” the Commissioner gave the accused an opportunity to contest the special master’s findings.

8. Statutes of Limitations: Ledbetter v. Goodyear and the Chalmers Trophy

Deciding when the statute of limitations has run is a fundamental task of Justices and Commissioners, as they decide who can seek redress before them. This Section compares the Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., where the Court interpreted the statute of limitations applicable to Title VII of the Civil Rights Act, with Commissioner Kuhn’s 1981 decision to leave undisturbed Ty Cobb’s hit record, thereby confirming the outcome of the 1910 Chalmers Trophy race.

Lilly Ledbetter was a Goodyear Tire employee from 1979 to 1998. After retiring, Ledbetter commenced a Title VII pay discrimination claim, arguing that

during the course of her employment several supervisors had given her poor evaluations because of her sex, that as a result of these evaluations her pay was not increased as much as it would have been if she had been evaluated fairly, and that these past pay decisions continued to affect the amount of her pay throughout her employment.

The District Court allowed Ledbetter’s claim to proceed, and the jury found in her favor. On appeal, Goodyear maintained that Ledbetter’s “claim was time barred with respect to all pay decisions made prior to September 26, 1997,” because Title VII’s statute of limitations barred actions not filed within 180 days “after the alleged unlawful employment practice occurred.” In response, Ledbetter argued that her pay within the last 180 days of her employment was lower as a “result of intentionally discriminatory pay decisions that occurred outside the limitations period,” and therefore her pay “was unlawful because it ‘carried forward’ the effects of prior, uncharged discrimination decisions.”

In a 5-4 decision, the Court rejected Ledbetter’s argument and held that “[t]he . . . charging period is triggered when a discrete unlawful practice takes place. A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination.” Justice Ginsburg, in dissent, argued that Lebdetter had no way of knowing that discrimination was taking place since “[p]ay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time.” The Court’s decision was clear: even if the violation was unknown (and functionally unknowable) at the time the violation occurred, the statute of limitations still applied.

Commissioner Kuhn faced a similar issue when he decided to leave intact the outcome of the heated 1910 batting title even though new evidence had come to light that was not available at the time the title had been awarded. In deciding to affirm the outcome of the “Chalmers Race,” Kuhn “essentially said the statute of limitations had lapsed,” even though new, previously unknown evidence had surfaced.

The 1910 season began with two new baseball milestones: President Taft started a tradition of Chief Executives throwing the first pitch of the season, and car executive Hugh Chalmers promised that he would give a new car to whomever had the highest batting average at the season’s end. “The Great American Automobile Race”seized the public’s attention. Over the course of the season, the batting average lead went back and forth between Detroit’s outfielder, Ty Cobb, and Cleveland’s second baseman, Nap Lajoie.

With two games remaining in the season, Cobb decided to rest on his lead, citing a “flare up in his vision problems,” but the fans believed that Cobb was trying to coast to victory by sitting out the last two games.Cobb’s plan seemed destined to work. The outlook wasn’t brilliant for Lajoie that day: he would need a hit every time he came up to bat in his final two games, an October 9th doubleheader against the Browns. In his first at bat, Lajoie hit a triple off the center field wall. In his next at bat, Lajoie bunted and made it safely to first. His next time up, Lajoie bunted again. “And again. And again. And again and again and again.” In all, Lajoie bunted safely seven times. This was anomalous, to say the least, since “[t]hen as now players might go an entire season without logging seven bunt singles.” Many in the press complained that the Browns had been complicit in defrauding Cobb of his title. Nevertheless, it appeared Lajoie had won: he had batted .384 to Cobb’s .383.

Ban Johnson, President of the American League, was “irate” when he heard what had transpired. He ordered his statistician to go back and recheck all of the data. Amazingly enough, the statistician found that “[t]he Tigers had played a doubleheader on Sept. 24, yet the league statistician only recorded the first game,” and “Cobb had gone 2 for 3 in that missing game,” enough to put him ahead of Lajoie for the batting crown. Johnson declared that he would “‘certify . . . that Cobb has a clear title to the leadership of the American League batsmen for 1910 and is therefore entitled to the Chalmers trophy.’” (Chalmers, for his part, gave both of the ballplayers cars.)

From 1910 to 1981, the Chalmers race, Cobb’s self-benching, and Lajoie’s seven bunts were largely forgotten. Then, in 1981, the Sporting News reported that Cobb’s “lost” game, contrary to the statistician’s finding, had actually been recorded in the first place. Lajoie was the true winner of the Chalmers trophy after all. Cobb did not, in fact, have the all-time record of nine straight batting titles. Nor did Cobb’s all-time hit record stand at 4,191; Pete Rose needed only 4,189 to break it.

Faced with this new evidence seventy years later, Commissioner Bowie Kuhn had to decide whether to award the 1910 batting title to Lajoie retroactively and to take away two of Cobb’s record number of hits. Ultimately, Kuhn elected to leave the record books intact. Kuhn faced a statute of limitations question similar to the issue that confronted the Ledbetter Court: long after the initial event, information had come to light that, had it been known at the time, would have led to a different outcome. Both the Commissioner and the Supreme Court decided that the statute of limitations had lapsed, that some issues were beyond their control, and thus that there was nothing that could be done to help the aggrieved party.

9. Finality: Bush v. Gore and the 2002 All-Star Game

Both Justices and Commissioners have the power of finality within their respective systems. As Justice Jackson put it, “[w]e are not final because we are infallible, but we are infallible only because we are final.” Likewise, when he assumed the Office of the Commissioner, Landis “made clear the necessity of having the final word,” reminding the owners that “[y]ou have told the world that my powers are to be absolute.”

The power of finality is most controversial when it is perceived to have been exercised prematurely, truncating a legitimate process. In December 2000, the Supreme Court ended the Florida recount with its decision in Bush v. Gore. Unsurprisingly, this exercise of finality was met with strong criticism. Many turned to sports analogies to describe what Professor Laurence Tribe called the Court’s “ending the game before the matter could reach Congress.” Nevertheless, the Supreme Court’s power of finality carried the day: the decision in Bush v. Goreended over seven weeks of legal fighting regarding the presidential election outcome.

Similarly, the Commissioner’s use of the power of finality was exercised in controversial fashion when the Commissioner appeared literally to end a game too early: the 2002 All-Star Game. After eleven innings, the AL and NL Teams were tied 7-7 and were both down to the last pitchers on their rosters. Facing the prospect that no team would have any remaining pitchers, Commissioner Selig ordered that the game be declared a “tie” at the close of the eleventh inning if neither team had the lead. Selig’s decision to end the game was not well received by fans: they started chanting “let them play” and “refund” and threw beer bottles onto the field.Nevertheless, Selig’s decision as Commissioner was final: the Game was over, and no appeal was possible.Justices and Commissioners are not final because they are infallible; they are infallible because they are final.

Pirates May Not Be Pirates

The Fourth Circuit heard arguments today in United States v. Abdi Dire, an appeal of the first piracy conviction in a U.S. courtroom in nearly 200 years.  Kevin Walsh has an excellent synopsis of the oral arguments, available here.  The defendants, five Somali pirates, were convicted for their attack on the U.S.S. Nicholas in in April, 2010.  The Nicholas was in the Indian Ocean north of the Seychelles Islands.  Three pirates approached in a skiff, fired rocket-propelled grenades in the air and raked the ship with AK-47 fire, but did not board the ship. No sailors were injured in the attack.

In short, the pirates’  position is that their actions did not constitute piracy, in the legal sense, because they did not board the ship or rob it.  They argued that the Supreme Court has been clear about a key element of piracy: “It is robbery at sea.” But the government said Congress has embraced a broader definition of piracy based on international policy and a common understanding of the term.  Under the government’s definition, piracy includes “violent attacks on the high seas” and does not require actual robbery.

The Nicholas was part of an international flotilla combating piracy in the seas off Africa.  The Somalis mistook it for a merchant ship because the Navy used a lighting array to disguise the 453-foot warship and attract pirates.  The pirates also argued that they were not read their Miranda rights once they were captured by the crew of the Nicholas.

The Nicholas ruling could have an impact beyond that case. Last August, a judge in Norfolk dismissed piracy counts against five defendants accused in an attack on another Navy ship, the USS Ashland. In attack on the Ashland, a 610-foot dock landing ship, the ship’s 25mm cannons destroyed a skiff, killing one Somali man and injuring several others.  The judge concluded that since the men had not taken control or robbed the ship their actions did not rise to the nearly 200-year-old U.S. Supreme Court definition of piracy.  The government appealed the Ashland ruling, but the Fourth Circuit set that aside until they heard the  Nicholas case.  The last U.S. conviction for piracy was in 1819, and involved a foreign vessel. U.S. piracy law was based on that case.



Eleventh Circuit Rules for Spain in Shipwreck Treasure Case

In 2007, a band of American explorers recovered 17 tons of gold coins from a sunken Spanish galleon off the coast of ——.  Today, the Eleventh Circuit ruled that the men surrender the treasure to Spain.  For the opinion, go here.