The Volokh Conspiracy

Fans of rival teams, especially Red Sox fans, have long known that the New York Yankees are the Evil Empire, as well as major recipients of corporate welfare. But in a recent legal proceeding, the team has now officially admitted it [HT: Josh Blackman]:

A panel of trademark judges in Washington, D.C., earlier this month denied a request from a private entrepreneur, known as Evil Enterprises, Inc., to register the trademark for the phrase “Baseballs Evil Empire.”

Evil Enterprises wanted the exclusive right to market merchandise using that phrase, which was coined in regard to the Yankees by Larry Lucchino, the president and chief executive of the Boston Red Sox, back in 2002....

Evil Enterprises initially applied for a trademark back in July of 2008.

But the Yankees objected, arguing that they had the rights to the phrase—at least when used in connection with baseball.

Part of the Yankees’ argument: a concession that in the baseball world, they are, in fact, the “Evil Empire.” In its legal papers, the team referenced a number of articles from the past decade using the term in connection with the Yankees, and conceded that the team has “implicitly embraced” the “Evil Empire” theme by playing music from Star Wars during their home games.

Not only did the Yankees admit that they are an evil empire, but we now have a legally binding judicial ruling to that effect:

The panel of judges sided with the Yankees, ruling that the Yankees are strongly associated with the phrase. Allowing anyone else to use the phrase exclusively would likely cause confusion, ruled the judges.

“In short, the record shows that there is only one Evil Empire in baseball and it is the New York Yankees,” wrote the judges. “Accordingly, we find that [the Yankees] have a protectable trademark right in the term . . . as used in connection with baseball.”

Evil Enterprises is considering whether to appeal the decision. In the meantime, however, the Yankees have now officially admitted that they are the Evil Empire. Perhaps they will soon collapse, following in the footsteps of previous evil empires, such as the Galactic Empire of Star Wars and the Soviet Union.

UPDATE: I have not been able to find an online copy of the court’s decision. If anyone else does, please e-mail me a link.

UPDATE #2: The opinion of the Patent and Trademark Office Trademark Trial and Appeal Board is available here [HT: commenter Adam B]. Interestingly, the court also rejected the Yankees’ argument that allowing Evil Enterprises to use the term “Evil Empire” would be “disparaging” to the Yankees, because the Yankees have “succumbed to the lure of the dark side”:

The Smith declaration admits that opposer [the Yankees] has “implicitly embraced” the EVIL EMPIRE designation.
For example, opposer has played the ominous theme from the STAR WARS movies at baseball games. Opposer’s embracing the EVIL EMPIRE characterization, whether explicitly or implicitly, undermines its argument that use of BASEBALLS EVIL EMPIRE disparages the Yankees. In other words, having succumbed to the lure of the dark side, opposer will not now be heard to complain about the judgment of those who prefer the comfort of the light. We find that use of the term BASEBALLS EVIL EMPIRE is not disparaging to opposer.

Boston Red Sox legend Johnny Pesky passed away today. Gordon Edes of ESPN has a good obituary here:

More than anybody else, Johnny Pesky embodied the Red Sox. More than anybody else, Johnny Pesky loved the Red Sox. More than anybody else, Johnny Pesky shared that love with anyone who ever asked for a picture, an autograph, a smile, a story. And often, you didn’t even have to ask.

On Monday, just more than a month before his 93rd birthday, Johnny Pesky died in ... Danvers, Mass....

The Red Sox lost the greatest ambassador they ever had, and a damn good ballplayer too, a shortstop who had 200 hits in each of his first three seasons, a lifetime batting average of .307 and, like [Ted] Williams, might have put up even gaudier numbers if he hadn’t joined the Navy during World War II.

The rest of us lost one of our own, a guy.... who never embraced the notion that playing for the Red Sox entitled him to the prerogatives of royalty.

Pesky worked for the Red Sox for over sixty years and was one of the most important public faces of the franchise long after he retired.

Pesky was one of those players who lost a shot at the Hall of Fame by missing three years of playing time due to World War II. He posted HOF-worthy numbers in his first three seasons (1942, 1946-47), and likely would have done the same in the three years he missed in between. Modern sabermetric analysis strengthens his case somewhat, since his .307 batting average was backed by numerous walks, resulting in a lofty .394 on base percentage ( modern analysts consider OBP the single most important offensive stat).

Red Sox fans everywhere will miss Pesky.

Manhattan Institute scholar Nicole Gelinas has an interesting column about a massive financially dubious parking lot at Yankee Stadium, which Bronx Borough President Ruben Diaz, Jr. claims requires a government bailout to prevent a local financial crisis:

If the Zuccotti kids want to protest Wall Street bailouts, they should go occupy the Yankees’ luxury parking garages in The Bronx. Borough President Ruben Diaz Jr. wants to give the garages’ private investors a fat-cat rescue at the expense of Gotham’s Main Street mice.

Four years ago, the Yankees wanted a souped-up parking “system” for their new ballpark, and Mayor Bloomberg obliged. City Hall helped a previously unknown outfit, the Bronx Parking Development Co., borrow $238 million to build and run a $300 million parking paradise on city land under a long-term lease. (The state supplied the balance of the cash.)

ut the mayor didn’t put the city’s credit on the line. Instead, the city’s Industrial Development Agency — which is not guaranteed by city taxpayers — sold the debt to bondholders.

No one ever said so outright, but bondholders were plainly supposed to assume that, because Bronx Parking’s board is stacked with city officials and city officials talked up the bonds, that the city was there should the deal run into trouble.

It sure didn’t make sense on the merits. The old parking lots generated $7 million a year, but the new lots were supposed to pay twice that in annual debt costs. And Bronx Parking can’t just raise prices to fill the gap. Not many folks will pay $35 to park when there’s a new Metro North station right there.

Reality has caught up. Last week, Bronx Parking made its payment to bondholders only by tapping an emergency fund. The firm must make two more payments by next October — and it doesn’t have the cash.

There’s no mystery about what should happen: The bondholders should take their losses.

But not if Diaz gets his way. Last month, the beep issued a call to build a “world-class” hotel and conference center where one of the garages stands. The hotel would pay Bronx Parking for the space — “stabiliz[ing] the financial situation we face so that we can ultimately meet our obligations to the bondholders,” the company said....

Diaz’s proposal relies on fear of a bond-market panic, which would force another 2008-style bailout of sophisticated investors. Apparently, such bailouts are OK as long as they come in the form of useful goodies, like the promise of taxpayer-subsidized construction jobs for Bronx voters.

But bondholders need to be taught a lesson. It’s bad enough national taxpayers have too-big-to-fail banks. Local taxpayers don’t need too-big-to-fail parking lots.

If the bailout does happen, it will add to the already record-breaking figure of over $1 billion in government subsidies for the construction of the new Yankee Stadium and related facilities.

Fortunately, there is an easier solution. Yankees’ co-owner Hank Steinbrenner has recently denounced “socialism” in baseball in very strong terms. It’s clear that he doesn’t want his business dealings tainted by even the slightest whiff of socialistic subsidies.

The parking lot situation gives the Steinbrenners an opportunity to live up to their own principles. They can take some of the $1 billion they got in public subsidies for the stadium and use it to bail out the parking lot project, which, as Gelinas notes, the Yankees helped instigate in the first place. That would obviate the need for further “socialistic” subsidies for the lot and also remove some of the taint created by the original government subsidies for Yankee Stadium.

Hank Steinbrenner, a lonely parking lot turns its eyes to you!

The Red Sox and manager Terry Francona have decided to end their relationship in the wake of the teams’ painful September collapse. Despite the disappointing end to his tenure with the team, Francona will surely be remembered as the most successful Red Sox manager in almost a century, if not ever. During his eight years with the team, the Sox made five playoff appearances and won two world championships. Most important of all, they put an end to the Curse of the Bambino and repeatedly vanquished the Yankees. Even this year, they went 12-6 against them.

Francona was not a great tactical innovator like Earl Weaver or Tony LaRussa. But he still impressed me with his skill, as I followed the team closely during his tenure. His single greatest virtue was avoiding dumb mistakes. He rarely if ever lost a key game by doing something stupid. This is an underrated quality. Sabermetric analysis shows that it is much more common for managers to lose games by making foolish errors than to win them with some brilliant insight. Just ask Francona’s predecessor Grady Little, who provided a textbook example of the former in Game 7 of the 2003 American League Championship Series. Francona avoided those kinds of mistakes, in part because he was open to the use of sabermetric statistical analysis to guide his decisions.

Francona’s other great virtue was the way he handled the insane media circus surrounding the Red Sox and managed to work with the difficult personalities of some of the team’s stars. It is often said that the manager of the Red Sox gets more media and public scrutiny than the governor of Massachusetts or the mayor of Boston. No Red Sox manager in my lifetime handled it better than Francona. It also wasn’t easy for him to deal with petulant stars like Manny Ramirez. But he almost always managed it well.

Much ink will be spilled this winter over the causes of the Red Sox’ collapse this year. After going an MLB- best 81-42 over the previous several months, the team frittered away a possible division title and a 9 game lead in the wild card race by posting an abysmal 7-20 record in September. Having watched many of those games, I saw few tactical mistakes by Francona. Generally speaking, he picked the right players to use in each situation, given the available personnel. The team failed partly because of bad luck (they lost more than their share of close games that could have gone either way), partly because of injuries to key players (e.g. – Kevin Youkilis), and most importantly because too many players performed far below their usual standards, especially the pitchers. It’s hard to say how much blame Francona deserves for the latter factor. Probably at least some. But, on the other hand, veteran players like the Red Sox’ key stars should be able to motivate themselves. Ultimately, there is more than enough blame to go around. Francona, the players, and upper management will all get their share.

Regardless of what happened this year, Francona’s overall legacy is one of extraordinary success. Red Sox Nation owes him a great debt. After the immediate pain of this fall wears off, I think Boston fans will remember that. We should also remember what happened the last two times Boston teams suffered a painful collapse (the Red Sox in 2003 and the Bruins in 2010). In both cases, they won championships the very next year and also got revenge on those teams that defeated them the year before. So may it be with the Red Sox in 2012.

A somewhat dispirited series of highly-anticipated matches between FC Barcelona and Real Madrid was elevated to high art through the remarkable play of the remarkable Lionel Messi. If you didn’t see his goals in Wednesday’s game — the second one in particular is a thing of sublime beauty — check them out

here (the UEFA official website, with a pretty niggardly 45 second clip)

or here (from a broadcast clip of the 2d goal)

The matches have been dispiriting because Jose Mourinho (Madrid’s coach) made the tactical decision to play the most conservative brand of static football imaginable, in the hopes of suffocating Barcelona’s attack. He’s got no faith, as my son Sam put it, that his players can compete with Barcelona if both teams are attacking. Aside from the fact that the strategy is failing, it has deprived us of what could have been some magnificent games – Madrid showed last weekend, in demolishing a very good Valencia side (on the road, no less) 6 -3, that they have the potential to be a terrific attacking side, and a game in which the two teams were at their attacking best could been truly wonderful side to watch.

But at least — thank goodness — there’s Messi. I know I’ve said it before, but it does bear repeating – we’re lucky to be around to watch him. Those Madrid defenders he’s running by are not clumsy oafs, or statues – they are world-class soccer players, made to look like clumsy oafs and statues. And they’re not the ones with a ball bouncing around unpredictably at their feet!! Jordan, Gretzky, Ruth – sometimes someone not only is better than everyone else in the world at what they do, but better by a prodigious margin, and it’s really something to see.

And while I’m on the subject of spectacular feats on the athletic field: where did the often-repeated trope that “Hitting a baseball from a major league pitcher is the hardest thing to do in sports” come from?? It is demonstrably false. Think about the pitchers, when they’re at the plate. They’re pretty lousy hitters, as a rule – a batting average of .150 or even lower is the norm. But that means once or twice, in every ten at-bats, they not only manage to hit the ball, they hit it well enough to get a base hit! I know they’re terrific athletes, and that most of them spent a lot of time practicing their hitting as teenagers. But the hardest thing in all of sports!?? If that was the hardest thing to do in all of sports, surely we’d expect that people who hardly ever practice it wouldn’t be able to succeed at it, wouldn’t we?

New York Yankees co-owner Hank Steinbrenner recently denounced Major League Baseball’s revenue-sharing system, calling it “socialism”:

Yankees co-chairman Hank Steinbrenner [the other co-owner/co-chairman is Hank's brother Hal] says baseball’s revenue sharing and luxury tax programs need changes.....

“We’ve got to do a little something about that, and I know Bud wants to correct it in some way,” Steinbrenner said. “Obviously, we’re very much allies with the Red Sox and the Mets, the Dodgers, the Cubs, whoever in that area.”

“At some point, if you don’t want to worry about teams in minor markets, don’t put teams in minor markets, or don’t leave teams in minor markets if they’re truly minor,” Steinbrenner said. “Socialism, communism, whatever you want to call it, is never the answer.”

I don’t have a strong view about the revenue-sharing system. As a tool for maintaining competitive balance, it’s much less effective than the salary caps adopted by the NFL, NBA, and NHL. Moreover, the revenue-sharing system suffers from the flaw that the low-payroll teams that receive the money paid in by wealthier franchises can simply put the money into their owners’ pockets, as opposed to investing it in improving their teams.

That said, comparing MLB revenue-sharing to socialism is absurd. Socialism is government control of the economy, not a private arrangement to divide up profits from a joint enterprise. You might as well say that a law firm is “socialistic” if individual partners don’t keep all the profit generated by the clients they bring in, and instead have to transfer some of it to the other partners.

If the Steinbrenners really believe that socialism is “never the answer,” however, they should return the record $1.2 billion in government subsidies that they recently got for the building of the new Yankee Stadium. Even the USSR never spent so much public money on a sports stadium.

Government subsidies for private sports stadiums fall short of full-blown socialism (under which the state would own all stadiums as well as pay for them). But they come a lot closer to it than MLB revenue-sharing. Since the Steinbrenners clearly want to avoid even the slightest hint of socialism in their business dealings, I expect that their check to the long-suffering taxpayers will be in the mail soon.

Sports columnist Rob Neyer has an interesting post about the making of the movie based on Moneyball. Michael Lewis’ famous book about Oakland A’s general manager Billy Beane’s successful efforts to build a great team with a small payroll by relying on statistical analysis to identify undervalued players. The movie will be directed by Aaron Sorkin, of West Wing fame. Billy Beane will be played by Brad Pitt.

I previously wrote about Moneyball here, here, and here. My own employer, George Mason Law School has successfully used Moneyball-like strategies to identify and hire undervalued scholars. If Sorkin’s movie turns out to be a big success, perhaps there will be a sequel focusing on Moneyball strategies in legal academia. That film will surely be a box office megahit. I can’t wait!

Sportswriter Jeff Passan describes evidence indicating that billionaire Miami Marlins owner Jeff Loria may have lied about the team’s finances in order to secure massive public subsidies for the construction of the Marlins’ new stadium [HT: VC reader Eric Robinson]:

A look at the leak of the Marlins’ financial information to Deadspin confirmed the long-held belief that the team takes a healthy chunk of MLB-distributed money for profit. Owner Jeffrey Loria and president David Samson for years have contended the Marlins break even financially, the centerpiece fiscal argument that resulted in local governments gifting them a new stadium that will cost generations of taxpayers an estimated $2.4 billion. They said they had no money to do it alone and intimated they would have to move the team without public assistance.

In fact, documents show, the Marlins could have paid for a significant amount of the new stadium’s construction themselves and still turned an annual operating profit. Instead, they cried poor to con feckless politicians that sold out their constituents.

The ugliness of the Marlins’ ballpark situation is already apparent, and the building doesn’t open for another 18 months. Somehow a team that listed its operating income as a healthy $37.8 million in 2008 alone swung a deal in which it would pay only $155 million of the $634 million stadium complex. Meanwhile, Miami-Dade County agreed – without the consent of taxpayers – to take $409 million in loans loaded with balloon payments and long grace periods. By 2049, when the debt is due, the county will have paid billions.

More on the Marlins stadium subsidies from Matt Welch here.

Even if the Marlins’ financial state were as tenuous as Loria claimed, it still would not justify massive government subsidies for a new stadium. Stadium subsidies almost never create benefits for the community that come even close to offsetting the huge costs. Professional baseball is a large-scale industry that can and should pay for its own stadiums. The fact that MLB franchises sell for hundreds of millions of dollars whenever one comes up for sale suggests that the industry is considerably more profitable than subsidy-seeking owners would have us believe. But if team owners find they aren’t making a profit, they should cut costs and work to become more efficient, just like any other business. For example, they could limit costs by adopting a salary cap, as have the NBA, National Football League, and the National Hockey League.

In fairness to Loria and the Marlins, they might have been able to secure massive government subsidies even without lying about their profits. The New York Yankees are the most lucrative franchise in baseball. But that didn’t prevent them from raking in hundreds of millions of dollars in government subsidies for the new Yankee Stadium that opened last year. If Passan’s figures are correct, the Marlins’ stadium subsidies may actually surpass the record set by the Yankees. As a Red Sox fan, I am reluctant to admit it. But the Marlins may have outdone baseball’s Evil Empire in feeding at the public trough.

As regular VC readers know, I love baseball. But those taxpayers who don’t share my interest in the sport should not be forced to subsidize it. It is long past time to make billionaire sports team owners pay for their own stadiums.

The sports world is  atwitter over Major League umpire Jim Joyce’s blown call in the ninth inning that cost Detroit Tigers pitcher Armando Galarraga a well-deserved perfect game.  The play at first base was made to end the game.  It would have been the 27th out on the 27th batter, but Joyce called the runner safe.  But he was wrong, as instant replay showed.  The game will go down in the books as a one-hit, complete game, as those are the rules.  Only an asterisk will show it should have been recorded as a perfect game.

This was not the only big blown call last night.  There was another in the middle of the second period during game 3 of the Stanley Cup finals between the Chicago Blackhawks and Philadelphia Flyers.  The game was tied 1-1- and the Flyers were on a power play, and it appeared Scott Hartnell deflected Chris Pronger’s shot past Blackhawk netminder Antti Neimi.  The siren sounded, but no call was made, and play continued — for another minute-and-a-half.  Yet at the next stoppage, the refs asked the video booth to review the call.  The video was unmistakable, and the call was corrected.  Score a goal for the Flyers, reset the clock, and pick up the game as if the proper call had been made in the first place.

Professional hockey, like most professional sports, uses instant replay to help ensure that game-changing calls are made correctly. Accommodations are made to maintain the integrity of the game — such as waiting until a natural stoppage before reviewing the tape — but instant replay is still used to make sure saves are saves and goals are goals, and it works.  Indeed, during overtime there was another close call, a shot that could have been called a goal as the puck skated along the line.  This, too, was reviewed, and properly ruled a save.  And so the Flyers would have to take more shots before finally winning the game.

The outcome of the game should turn on the performance of the players, not the performance of the referees.  Not every call is reviewable, and some amount of human error is inevitable, but instant replay can reduce the scope of potential error and help ensure the proper outcome.  And, as last night’s hockey game shows, it need not come at the expense of the game.  The refs review the tape when they can; they don’t stop play just for the sake of a review.  What’s out about the relative lack of instant replay in baseball is that replay poses less of a threat to the flow of the game than in virtually any other sport.  Stoppages in baseball are constant, and many calls — such as who tags a base first — are easy to review.  And yet some cling to the tradition of relying upon the on-field umpires to make the calls, as if this is somehow makes baseball more “authentic.”  Hardly.  The fact is Galarraga did pitch a perfect game last night, but he won’t get official credit for it because baseball won’t allow instant replay to help make such important calls.

UPDATE: Yes, I am aware that baseball uses instant replay for one very limited purpose — to determine whether balls are home runs or not.  But baseball does not use replay for something for which replay is very well suited — the timing of tags — that could affect the outcome of a game.  (And, to be fair, football uses replay for some calls for which replay is of little help.)  There is very little judgment involved in such a call — unlike, say, calling balls and strikes or a balk — and replay can often provide a definitive answer.  Some argue in the comments that the missed call last night did not affect the outcome of the game.   We know that now, but there was no assurance at the time that the erroneous call would not have allowed a comeback. (Okay, it was Cleveland, so a comeback was very unlikely, but you get my point.)  And the same could be said of an erroneous call on a home run.  At the time a call is made, there is no way to know whether it will alter the outcome of a game.  It all depends.  My ultimate point is that there are some situations for which replay is very well suited — such as who reaches the base first — where it is not used and should be.

I have often criticized government subsidization of sports stadium construction, including the biggest such boondoggle: the record expenditure of over a billion dollars in government money on the new Yankee Stadium (see here for my most recent post on the subject and links to earlier ones). As I pointed out in my very first post on this issue, such subsidies almost always fail to produce economic benefits that justify their exorbitant costs.

New York, however, is not the only city that has indulged in this particularly egregious form of corporate welfare. Washington, DC spent a great deal of public money to build a stadium for the Nationals. Now, however, the city is extending the life of a tax originally intended to pay for the stadium so that they can divert the funds to other projects [HT: Taxprof Blog]:

A citywide business tax the D.C. Council passed to help to help pay for the $611 million Washington Nationals ballpark has become such a cash cow that the city is now using it to help close its nine-figure budget gap.

D.C. passed a tax on businesses’ gross receipts to help finance the construction of the stadium. From fiscal 2005 until the end of this fiscal year, more than $129 million will have been collected, finance office records show. Overall, the city will have netted more than $135 million in all taxes and rent above what the city is paying back in bond payments from fiscal 2005 to 2010.

But instead of using the surplus funds to pay the stadium off, Mayor Adrian Fenty and the city council are using the money to plug monstrous holes in the District’s budget.

“They took all the money,” Councilman Jack Evans, D-Ward 2, said of his colleagues. “They’re spending every dime.”

Many business leaders are crying foul.

“The deal that we had ... was that any excess monies would be used to pay down the bond,” said D.C. Chamber of Commerce Chief Executive Barbara Lang. “We would like to see those bonds paid off earlier to relieve us of that tax. I’m very concerned that it will become part of the city’s operating budget.”

Evans, who helped engineer the ballpark deal, said the tax “was the biggest mistake that this government has made.”

Imagine that! A “temporary” government program intended to serve a narrow purpose has become permanent because it has turned into a cash cow for politicians. Everyone knows that when government power expands during a crisis, that expansion is always limited to measures strictly necessary to address the problem at hand and is terminated as soon as the crisis is over! Unfortunately, past and present experience shows that that is very far from being the case.

The DC businesspeople who apparently expected the city government to stick to the “deal” they had worked out should not have been so naive. No city government is going to give up a massive revenue source merely because the initial justification for creating it is no longer valid. To borrow a line from Instapundit, this may be a case of “rubes self-identifying.”

Conservative blogger Paul Mirengoff and liberal law professor Paul Campos argue that Elena Kagan is poorly qualified for the Supreme Court because of what they argue is a weak record of scholarship. Mirengoff expresses incredulity that “you could publish so little and still become the dean of a major law school.”

I have a much higher opinion of Kagan’s scholarship than Campos and Mirengoff. Still, I agree that she’s not one of the very top scholars in her field. But Kagan’s greatest accomplishment is not her scholarship but her record as Dean of Harvard Law School. The real flaw in Campos’ and Mirengoff’s argument is the implicit assumption that being an outstanding dean requires you to be an outstanding scholar. It doesn’t.

The job of dean is primarily managerial and political. The dean has to manage the faculty and staff, maintain good relations with the university, and raise money. He or she must be a good judge of others’ scholarship, since she plays a key role in faculty appointments. But she doesn’t have to be an outstanding scholar herself. As Campos concedes, most deans don’t do much in the way of scholarship anyway, perhaps because they rarely have the time.

I have previously compared law school administration and faculty hiring to the growth of Moneyball strategies in baseball (e.g. here and here). Billy Beane’s effective use of Moneyball strategies as general manager of the small-market Oakland A’s contains many lessons for academic institutions. One such lesson comes from Beane’s own background. Many baseball pundits used to think that to be a successful major league executive or manager, it was important to be a good player. Beane, however, was the greatest executive of his generation even though he was (by major league standards) a terrible player. Indeed, as Michael Lewis explains in Moneyball, major league teams’ overestimation of Beane’s own talent was one of the factors that convinced him that new measures of talent were needed. As Paul Caron and Rafael Gely explained in this article, this lesson applies to the hiring of academic administrators too. The skills of a good administrator are very different from those of a good scholar. A reclusive, difficult to get along with person, can be an outstanding scholar but would be a disaster as an administrator. Contrariwise, a skilled manager and politician who is not an original thinker would make a poor scholar. But so long as he values and recognizes original thought in others, he could be an excellent dean.

To return to the case of Kagan, there is little doubt that she was an excellent dean. She successfully hired numerous top scholars in many subfields, and from across the political spectrum. Under her tenure, Harvard arguably managed to surpass Yale and Chicago as the law school with the most productive faculty (I say this despite the fact that I’m a Yale Law grad, and a longtime admirer of Chicago). At the very least, she did a great deal to regain the ground that Harvard lost to its rivals in the 1980s and 90s.

She did this in part by pushing for the hiring of top conservative scholars like Jack Goldsmith and John Manning. In a hiring market characterized by a degree of hostility to non-leftwingers, productive right of center scholars were an undervalued asset similar to the undervalued high-OPS hitters that Beane relied on in his early years with the A’s. More generally, Kagan fostered by word and deed an atmosphere of openness and ideological tolerance at a a school that previously wasn’t exactly well known for either. She deserves special credit for achieving all this at an institution with a famously difficult to manage faculty and at a time of harsh ideological conflict in society as a whole.

I wouldn’t go so far as to say that Kagan was the Billy Beane of legal academia. Harvard has far more resources relative to its rivals than the Oakland A’s do. Kagan is perhaps more analogous to Boston Red Sox GM Theo Epstein, who won two world series by using moneyball methods at a franchise with much greater resources than the A’s (though still much less than the rival Yankees). Kagan is also, in my view, a much better scholar than Beane was a baseball player. Both, however, had their greatest success as executives.

In sum, Kagan’s record as dean is highly impressive, and it is not undermined by her relatively lesser success as a scholar. Whether that record justifies an appointment to the Supreme Court (which requires skills somewhat different from either a dean or a scholar) is a different question.

UPDATE: On closer inspection of their posts, I think that Campos doesn’t assume that an excellent dean needs to be a top scholar to anything like the same extent as Mirengoff does. He notes, for example, that Kagan was “an able administrator,” despite his low regard for her scholarship. Still, I think this underrates her achievements as HLS dean.

UPDATE #2: As a prominent scholar pointed out to me in an e-mail, one of the reasons why Kagan hasn’t produced as much scholarship as one might expect of a well-known professor at a top law school is that her academic career was interrupted by several stints in government service, and of course by her tenure as HLS dean. Moving back and forth between academia and government is not uncommon for legal scholars, though it is becoming less common as legal scholarship becomes more specialized and demanding.

UPDATE #3: Paul Mirengoff responds to this post here:

Ilya Somin of the Volokh Conspiracy takes issue with what he takes to be my claims that (1) Elena Kagan is poorly qualified for the Supreme Court because she produced a surprisingly small amount of legal scholarship and (2) an excellent dean needs to be a top scholar. Actually, I don’t think I made either claim. Instead, I argued that (1) given the slender amount of her scholarship and the fact that she’s never been a judge, Kagan would be a stealth nominee and, indeed, might be considered something of a stealth law professor and (2) that it was surprising to me (as someone who hasn’t followed law school politics closely) that a law professor could become the dean of a top law school having produced as little scholarship of note as Kagan has.

Like Somin, I believe one can succeed as a law school dean without having written much legal scholarship. For example, the managing partner of a large law firm might make a fine law school dean, as I understand Taylor Reveley has at William & Mary. And a law professor with no administrative experience and little scholarship of note might prove to be a terrific law school administrator.

I am sorry that I apparently misunderstood Mirengoff. If I read his new post correctly, he doesn’t seem to deny that Kagan was a highly successful dean of Harvard Law School. He does, however, suggest that her supposedly meager scholarship raises questions about her qualifications for the Supreme Court.

My own view of Kagan’s scholarship is that it is pretty good, though not pathbreaking. Her major articles have gotten numerous citations and are well-regarded by other scholars in her field, especially her 2001 Harvard Law Review article on “Presidential Administration.” Her 1995 University of Chicago Law Review article makes a good case for Senate questioning of judicial nominees’ legal philosophy, a position I have argued for myself. As Campos and Mirengoff suggest, the quantity of her scholarship is not impressive. However, that is in part due to the fact that she spent several years in government service in the 1990s, and then was Dean of HLS from 2003 on. She might be better-qualified for the Court had she written more and better scholarship. On the other hand, her years of service in the Justice Department, as HLS Dean, and as Solicitor General are also valuable qualifications.

Mirengoff suggests that being a successful dean of a major law school may not be much of a qualification for the Court. I agree that it probably isn’t sufficient by itself. But it surely counts in the nominee’s favor. As Dean, Kagan showed that she is an excellent judge of legal scholarship and that she understands that she is familiar with a wide range of viewpoints on constitutional law and legal theory. She also proved to be a good manager and administrator. All of these skills are useful to a Supreme Court justice, though they are not the only ones a justice should have, and often not the most important.

Overall, I think is Kagan is not best-qualified possible nominee. But I do think her professional qualifications are good enough. Any plausible objections to her appointment would have to be based primarily on her ideology and judicial philosophy.

USA Today recently published an article lamenting the supposedly low percentage of African-American players in major league baseball:

Major League Baseball is celebrating Jackie Robinson Day today. But 63 years after he broke the game’s color barrier, the number of African-American players continues to suffer, with 9.5% of them making opening-day rosters, according to USA TODAY research.

“He would turn over in his grave if he saw the lack of African Americans playing ball,” Minnesota Twins second baseman Orlando Hudson said.

MLB had its first increase in African-American players in 15 years in 2009 when the number climbed to 10.2%, according to the University of Central Florida’s Institute for Diversity and Ethics in Sport. This year, though, there were 17 teams with two or fewer African-American players on their opening-day roster.

“It makes you wonder a little bit what’s going on,” said Hudson, who this week questioned whether racism was a factor in former All-Stars Jermaine Dye and Gary Sheffield being unsigned.

Dye has hit at least 27 home runs in each of the last five seasons but batted .179 after the All-Star break in 2009. He and Sheffield, 41, have turned down several contract offers.

This is not a new complaint and the numbers in the USA Today article give it some superficial plausibility. African-Americans (including mixed-race people) are about 13.5% of the overall US population, so the figure of 9.5% representation in baseball may seem low. However, it is important to remember that almost 28% of MLB players are foreigners. In recent years, Latin American and Asian players have flocked to major league rosters, displacing the weakest American players of all racial groups. If you consider the African-American percentage of US-born players, it is just over 13%, almost exactly on par with the black percentage of the overall population.

Despite this fact, it’s possible to argue that black players are victims of discrimination or that MLB is not doing enough to recruit black talent. Absent such factors, maybe the percentage of black players would be much higher than their percentage of the general population (as is the case in many other sports). At this point, however, there is little if any data to back up any such claims. Certainly, it seems highly unlikely that there is more discrimination against black players today than there was 30 or 40 years ago, when the percentage of African-Americans on MLB rosters was much higher. Rather, the percentage of black players has fallen partly because of the influx of foreign players and partly because many of the best black American athletes have focused on football and basketball, where salaries are higher. NBA players, for example, are the highest-paid athletes in the world. NFL players don’t make as much as MLB players, but there are many more players per team, and “skill position” players (the positions multisport athletes are likely to gravitate to) make more than linemen.

Finally, it’s worth noting that many of the foreign baseball players are themselves racially black (primarily black Latin Americans). If African-American players are being forced out by racism, it’s hard to understand why the supposedly racist management is hiring black Latin Americans instead. In sum, it’s doubtful that racism has been completely eliminated from MLB, anymore than it has anywhere else. But it’s unlikely that it (or inadequate recruitment) accounts for more than a tiny fraction of the decline in the percentage of African-American baseball players.

If the sports media wants to focus on genuine mistreatment of African-American athletes (along with some of other races), they should cast a more critical eye on the NCAA cartel.

UPDATE: I wrote a somewhat similar post two years ago, responding to the same argument. The present post, however, has updated data.

In this recent New York Times article, Howard Megdal revives the longstanding claim that anti-Semites on opposing teams tried to prevent Jewish Detroit Tigers slugger Hank Greenberg from breaking Babe Ruth’s home run record in 1938 because of anti-Semitism:

Evidence has finally been published that seems to resolve a 72-year-old mystery. When Hank Greenberg of the Detroit Tigers made a run at Babe Ruth’s season home run record, falling two short with 58 in 1938, was he pitched around because he was Jewish? ...

Some members of Greenberg’s family and legions of his fans believed that anti-Semitic pitchers had walked Greenberg often to keep him from a fair shot at Ruth, who set the record in 1927....

Greenberg received many more walks as he chased Ruth in 1938 than he did in the rest of his career. Almost no other hitter going after the home run record had anything like Greenberg’s late-season spike in bases on balls. He had 119 walks to lead the A.L., the only time he did so, and they accounted for 17.5 percent of his 681 plate appearances.

But the way pitchers handled Greenberg early in the season was clearly different than the way they approached him as Ruth’s record came into view....

Over all, Greenberg walked in 15.9 percent of his plate appearances through the end of August 1938. In September, that rate jumped to 20.4 percent. His walk rate was 14.5 percent in 1937 and 15 percent in 1939.

Megdal points out that other hitters who threatened Ruth’s 1927 record of 60 HRs did not have a higher walk rate in September than earlier in the season. He concludes that opposing teams wanted to prevent Greenberg from breaking the record in 1938 because he was Jewish.

The idea that Greenberg was a victim of anti-Semitism in this instance is not implausible. Anti-Semitism was not uncommon in 1930s America, and Greenberg was a victim of anti-Semitic slurs on many occasions. Moreover, by September 1938, the American League pennant race was over (unfortunately, the New York Yankees had run away with their third straight pennant) and opposing teams risked very little by walking Greenberg a few extra times.

Nonetheless, Megdal’s case seems weak. The difference between Greenberg walking in 20.4% of his plate appearances in September and walking in 15.9% is just a handful of walks. It could easily have happened just by random chance. The difference between 119 walks in 1938 and Greenberg’s career record in this respect is also modest. Greenberg had both power and excellent plate discipline -a combination that routinely causes high walk rates. Overall, he had three seasons with over 100 walks and four others with 80 or more. He even led the National League in walks in 1947, the last season of his career when he was well past his prime.

Jack Marshall points out several other shortcomings in Megdal’s statistical analysis here. The bottom line is that Greenberg’s walk rate in 1938 could easily have been accounted for by a combination of random chance and his inherent attributes as a hitter.

It’s also worth noting Greenberg’s own comments on this issue in Lawrence Ritter’s classic book The Glory of their Times (pg. 317):

Some people still have it fixed in their minds that the reason I didn’t break Ruth’s record was [that], because I was Jewish, the ballplayers did everything they could to stop me. That’s pure baloney. The fact of the matter is quite the opposite: so far as I could tell, the players were mostly rooting for me, aside from the pitchers. I remember one game Bill Dickey was catching for the Yankees, he was even telling me what was coming up. The reason I didn’t hit 60 or 61 homers is because I ran out of gas; it had nothing to do with being Jewish.

The American League was a relatively small world in 1938 (there were only eight teams). If opposing players were systematically trying to prevent Greenberg from breaking the record out of anti-Semitic motives, it seems likely that he would have heard about it.

Megdal dismisses Greenberg’s statements on the grounds that it would have been “out of character” for him to blame his failure to break the record on others. But Greenberg did not hesitate to point out the extensive anti-Semitism that he faced on other occasions, and also didn’t hesitate to blame it for bad outcomes when he thought it was warranted. In the very same interview with Ritter, he blamed anti-Semitism on the part of the owners for his decision not to try to become the owner of the Chicago White Sox in the 1960s.

In sum, it’s certainly possible that some opponents walked Greenberg because they didn’t want a Jewish player to break Ruth’s record. But Megdal fails to prove that it actually happened.

UPDATE: Commenter “Michigan & Trumbull” points out that Greenberg’s higher walk rate in September might well have been due to the fact that he had less protection in the lineup than he did earlier in the season. This further undercuts Megdal’s thesis.

There was a delightful review, by Pete Hamill, in last week’s NYT Book Review, of James Hirsch’s “Willie Mays: The Life and Legend.” Can’t speak for the book, but Hamill’s little love letter to baseball in New York in the Fifties is wonderful. There never was, and never will be, anything like baseball in New York in the Fifties – NY teams completely dominated the post-season highlight reels (8 championships in 9 years, the Dodgers’ great win in ’55, “The Catch” in ’54, The ‘Shot Heard ‘Round the World’ in ’51, Larsen’s perfect game, . . . ) and the rivalry between the Dodgers, Giants, and Yankees was life-and-death stuff to pretty much everybody in town. [The clearest evidence ever (though there's lots and lots more, mostly from the world of soccer) of how incredibly stupid the owners of US sports franchises are with their desperate "exclusive geographic area" strategies].

Hamill captures many things about the era, but what I liked best was his observation (that I’m not sure I’ve ever seen made before) that

“He [Mays] could hit, he could run, he could catch, he could throw. And he brought to the playing of baseball a mysterious, almost magical quality that has disappeared from the professional game. Willie Mays brought us joy. All of us.

Even those of us who from birth were fanatical acolytes of the secular church of the Brooklyn Dodgers. . . . Above all, I remembered Mays getting a thunderous round of applause when he first came to bat in games at Ebbets Field (the only other visiting player to hear such cheers was Stan Musial of the St. Louis Cardinals). Even the most fanatical Dodger fans wanted Mays to go 3 for 4, steal two bases and make one astounding catch in center field, as long as the Dodgers won, 6-4.”

It’s so true – at least, I remember the same thing. I, too, like Hamill, had the “Dodgers in my DNA”, being a Brooklyn boy [Hamill, of course, is legendary in Dodger folklore - it was Jimmy Breslin and Hamill who were, the story has it, sitting in a bar one day, and talk turned to the question "who were the three most evil men in history?" Each pulled out a pen and paper and wrote down their nominees, and when they turned their lists face up, they were identical: Hitler, Stalin, and Walter O'Malley] , but the first game I remember going to was up at the Polo Grounds, ’56 or ’57; my uncle Mack was, for some inexplicable reason, a Giants fan, and he took me up there one afternoon to see the Giants play (I think) the Phillies. We sat on the third-base line, and I remember — the only thing I remember — is Mays. He got a triple at one point, and there he was, flying around second base and running right towards us! Willie Mays! . . . I can conjure it up in my mind to this day. There really was something about him that made everybody adore him . . . Thankfully, he never ended up playing for the hated Yankees, which would really have been too hard to take ...

Former Boston Red Sox star Curt Schilling has been campaigning for Republican Massachusetts Senate candidate Scott Brown. In response, Democratic candidate Martha Coakley called Schilling “another Yankee fan.” Schilling responds here:

I’ve been called a lot of things....

But never, and I mean never, could anyone ever make the mistake of calling me a Yankee fan. Well, check that, if you didn’t know what the hell is going on in your own state maybe you could….

Score one for Schilling here, with the minor caveat that ignorance about pro sports teams doesn’t necessarily equate to general ignorance about the state they’re in.

On a slightly more serious note, I don’t see why anyone should pay any particular attention to the political views of Schilling and other celebrities. As a longtime Red Sox fan, I yield to no one in my admiration for Schilling as a pitcher. I also think he’s an interesting commentator on baseball issues. But if you read his blog (which I very much like for the sports content), I think it’s clear that his expertise on political issues is not much greater than that of the average voter. I would say the same thing for most of the other sports and entertainment industry celebrities who make political endorsements and expound on political issues. Voters should generally discount such statements, except in the rare instances where the celebrity in question has some genuine insight into the subject. That’s not a criticism of Schilling and the other celebrities. He has his field of expertise, and he’s certainly been more successful at his profession than 99.9% of the rest of us have been in ours (myself included). And of course celebrities are entitled to their political opinions. The real fault lies with the voters and media who pay much more attention to celebrities’ political pronouncements than they should.

Why, then, do many voters pay attention to the political statements of celebrities – so much so that candidates find it worth their while to include them in ads? I hate to beat the same horse that I have pounded so often before. But I suspect it has to do with political ignorance and irrationality. Most citizens know little about politics, and have little incentive to rationally analyze the limited information they do have. As a result, many of them are influenced by celebrity endorsements in ways they would not be if they were better informed. Schilling’s endorsement of Brown is unlikely to sway highly knowledgeable voters and those already strongly committed to one side. But in a close race, it may affect the decisions of some swing voters. On average, swing voters tend to have the lowest levels of political information.

UPDATE: In this September post, I wrote about the then-rumored possibility that Schilling might run for the Senate seat himself, and the ways in which political ignorance facilitates campaigns by celebrities and scions of famous families such as the Kennedys and Bushes.