1. Congress reenacts statute without changes or comments
2. Congress takes no action on statute after judicial interpretation is either:
a. Raised at hearings
b. Criticized in report
3. Congress amends statute but does not address prior precedent
Harlan concluded that stare decisis could be overcome in Moragne because making a more just new rule would create more faith in the justice system than sticking with the bad old rule.† But if you make a new rule, it makes for a lot of work for a lot of lawyers figuring out the contours of the law and it will now stand.
would you argue that under Moragne
you should not recover for loss of affection if you were to win in one of these
actions?† Moragne is a common law decision, not an interpretation of the
How would you argue that in light of allowing this action to proceed as a matter of common law we should actually allow it to go beyond pecuniary losses and encompass love, affection and loss of relationship?
Policy is being divined from statute.† How do we fashion a rule of law?† Itís a remedial cause of action.† People have suffered in a way that the law hasnít adequately addressed.† We might say, if Congress doesnít want to change its statute, thatís okay, but weíll make the common law responsive to the problems of today.
Congress went far enough to create a statutory cause of action.† We have decided as a common law matter that we would create an additional federal common law cause of action.† We use that statute and extrapolate from it, but we donít agree now what we feel the standard is now than it was in 1920.
Are there good reasons to extend the reasoning of Moragne?† Why is it unusual for courts to do what the Supreme Court did in Moragne, to extend the law beyond what the statute says?
Congress makes laws.† The courts have been active in admiralty and maritime law.† But if you give the courts the power to fill in laws that Congress didnít make, you arguably create a competing legislature.
Flood v. Kuhn
It is important to be clear to the legal background to the case.† The issue of baseball antitrust has arisen several times.
What was the rationale for Federal Baseball?
When does Congress first appear in this drama?† What happened in 1952?† There was a subcommittee report.† What did they say?† Why did baseball need this reserve clause?† They said there were chaotic conditions without a reserve clause.† A reserve clause requires an anti-trust exemption.
By the 1950ís, most money is coming from sources that are inextricably interstate.† The time seems maybe to be ripe for overturning Federal Baseball.† Who else is aware of these changes?† Congress is.† Since itís a statute, Congress is aware of the changes and they fail to propose new changes.
Should the Court, as a matter of antitrust law statutory interpretation, fill in a gap that has been created between baseball and other sports?
How do you reject Toolson?† You can go back to Moragne at least analogically.† They love baseball, and weíll get to that in a minute.† You canít rely on a love affair.
You could try to give a positive spin to it and say all the evidence in the record says that Congress was something something.
Congress wasnít comfortable with it because 50 different times people tried to extend it elsewhere and they said: ďNo, no, no!Ē
The record is fertile!
The opinion listed some stuff.† Baseball players!† It was an encomium.† Stare decisis is less troublesome when the decision is wildly inconsistent with a lot of other existing law.
What is the most persuasive form of inaction?† Weíll then do the funnel of abstraction.