Via How Appealing, I saw this interesting Legal Times story about a pretty wonky little essay.

The back story: In their Supreme Court expose The Brethren, Bob Woodward and Scott Armstrong relate a story about Flood v. Kuhn. Flood upheld baseball's "reserve clause" over a challenge on antitrust grounds. Anyway, Justice Blackmun's opinion starts out with a lengthy history of baseball and a long list of the game's great players. It's right up there with "Poor Joshua!" among Justice Blackmun's stranger discourses.

In The Brethren, Woodward and Armstrong write that Blackmun originally circulated a draft, got some comments, and added a few names to the list of baseball greats. According to the writers, Justice Thurgood Marshall noted that there were no black ballplayers on the list, so Blackmun added three. The story has persisted for decades as an example of (at best) Blackmun's thoughtlessness about race.

However, as the Legal Times article reports, there is a new essay by Professor Ross Davies calling the Woodward-Armstrong account into question. Davies has extensively studied Justice Blackmun's papers and finds no indication that there was ever an early, all-white list of players circulated to the other Justices. Therefore, Davies asserts, there was nothing for Justice Marshall to criticize, and the story from The Brethren is false. The essay is a quick read and makes a strong case. I'll leave it for Woodward and Armstrong to defend their work as they see fit.

But reading Davies's analysis, I thought of another piece of evidence he could have marshaled, and I'm surprised he didn't mention it. He writes that Blackmun used a baseball encyclopedia in making his list. He established statistical cut-offs to measure greatness and included the players who made the grade. (When the drafts circulated, Blackmun added a few names in response to suggestions or politicking from the other chambers.)

So why doesn't someone find a baseball encyclopedia, reverse-engineer Blackmun's standards, and see if the black players in the final opinion (Jackie Robinson, Satchel Paige, and Roy Campanella) made the initial cut? I'm not enough of a stat geek to pull this off, but a baseball fan/number cruncher should be able to figure out Blackmun's method pretty easily. (In fact, it may be preserved in his papers.)

I suppose if Justice Blackmun's standard was amorphous and hard to pin down, it might be difficult to know why any particular player was included or not. (Apparently Mel Ott's exclusion was a genuine error, but others may be harder to figure out.) But if it's reasonable easy to determine what Blackmun's personal hall of fame voting metric was, I think it would be just as easy to see whether the black players were inside or outside the hallowed group. If they're above the line, and virtually everyone else above the line is listed in Flood, that's strong evidence they were included all along. But if they were below Blackmun's line, and virtually no one else below the line is on the list, either he imposed his own affirmative action, or did so only at Justice Marshall's suggestion.

In any event, retracing Justice Blackmun's steps in compiling the original list would seem like an obvious and manageable task, and would get us a little closer to an answer to the controversy Davies writes about.

On Monday, the state of Louisiana filed a rehearing petition in the Supreme Court, asking the Court to reconsider its recent decision in Kennedy v. Louisiana, which outlawed the use of the death penalty for child rapists. SCOTUSBlog has coverage and a link to the petition, here's some coverage from How Appealing, here's a little from the Sex Crimes blog, and Prof. Berman here and here.

I discussed the possibilities of a rehearing petition last week in this post. As everyone expected, the petition focussed on the Court's (and the parties') error in failing to note that military law allows for capital punishment for child rapists. Since a major portion of the Court's opinion was based on what it saw as an evolving national consensus away from authorizing the death penalty in these cases, Louisiana's petition said the recently-enacted federal law undermined the Court's reasoning.

It's a fair argument to make, and the petition also makes another very interesting point. The other rationale for the Court's decision was the majority's independent judgment, apart from whatever the national consensus is, that the death penalty is simply a disproportionate punishment for child rape. As the state's petition asks, if the consensus argument is invalidated, is the proportionality holding enough to support the Court's decision? To be sure, it would be if the Court said so, but the petition points out that a straight proportionality holding, without consideration of national consensus, would be a sharp departure from recent Eighth Amendment jurisprudence. And it's probably too big a step to take without briefing and argument.

In the end, I doubt that will be enough to get the petition granted. But I took a special interest in one small part of the petition. In my post last week, I suggested that the Court's decision, apparently striking down a federal law as unconstitutional, gave the United States a right to intervene in the case pursuant to 28 U.S.C. sec. 2403. In the petition, Louisiana specifically cited section 2403 in noting that it served the petition on the Solicitor General, and asked the Court to request the views of the S.G.'s office. The petition didn't explicitly mention intervention, and ultimately, that's the S.G.'s call. And, certainly, I know I'm not the only person to think of this. But I do feel somewhat vindicated in thinking I wasn't completely crazy.

So, anyway, now the ball's in the Court's...uh, court. Stay tuned.

How the States Got Their Shapes by Mark Stein (Amazon, B&N, Powell's). Okay, I'll admit it: I'm a geography nerd. When I was in junior high, I went to the state geography bee sponsored by National Geographic. I didn't get very far, and I was nowhere near the national finals with Alex Trebek. But I was nerdy enough to get my bona fides. So, as you can imagine, this book appealed to me.

How the States Got Their Shapes is exactly what the title promises. It has chapters for every state and the District of Columbia. Stein describes the compromises and controversies leading to the boundaries we see on the map today. Even a pretty obvious state like Hawaii gets a whole chapter (mostly on why certain islands in the vicinity are or aren't included in the state). The more oddly-shaped states get the full treatment, and soon you'll be able to explain why Connecticut has a panhandle and why Michigan has that non-contiguous Upper Peninsula. I was surprised to learn how many borders prompted skirmishes between settlers, and not just the famous Kansas-Missouri one. And you'll find out how just how often crooked borders are the result of nothing more significant than bad surveying (hint: very).

Stein had me hooked with his introductory chapter entitled "DON'T SKIP THIS." And it's good advice. That chapter discusses the big boundary events in American history -- the Treaty of Paris, the Louisiana Purchase, the Mexican War, the Missouri Compromise, etc. When the U.S. acquired new territory, it had to decide how to carve it into states. Stein makes a good case that, very often, those designs were based on commendable Congressional foresight. There's a reason state pairs like Alabama/Mississippi and Arizona/New Mexico are so similar in size (not to mention North and South Dakota). Despite, or maybe because, the original colonies were so dissimilar in size, thanks to royal grants, religious exclusion, and political power, Congress made a concerted effort to give equal size to new states, to the extent possible. Exceptions like Texas and California are truly exceptions. It's pretty remarkable how successful legislators were in their efforts -- as demonstrated by the number of western states that are precisely seven degrees of longitude wide or three or four degrees of latitude high.

That reliance on longitude and latitude is understandable, given the available technology. But it makes me wonder what the states would look like if they were being drawn up from scratch in the modern age. I suppose they would look like our gerrymandered election districts. Faced with that gruesome image, I'm just fine with those boring square states we have.

This book could have been written very differently, with lots of discussion of various Congressional hearings or the efforts by many states to grab a little more land. Stein provides a bibliography, so I suppose that kind of information is out there if you want to track it down. I do wish there had been some kind of index or timeline so one could read the book chronologically, but Stein also provides many cross-references in the individual chapters, so you can peek ahead to Wisconsin while you're reading about Minnesota. But the essentially random nature of the alphabetical approach suits the reader who wants to jump around.

Stein's book is a fun read for grown-up geography nerds like me, and also accessible enough for the junior high class trying to pick a winner of the school geography bee. Chock full of facts, highly interesting, certainly recommended for anyone who ever looked at a map and wondered, indeed, How the States Got Their Shapes.

(Previous 50 Book Challenge reviews)