Baseball, beer and boys

I love baseball. Nebraska’s recent sweep of the 12th ranked Texas Longhorns was glorious. Reminds me of a little case I had some fun with several years ago.

I was asked to restrain a high school from prohibiting a student from playing baseball. The kid was said to be a phenom. But he had twice violated the school’s prohibition against consuming beer. In the opinion, I quoted Thayer’s Casey at the Bat in its entirety, and decided a temporary restraining order was not warranted. As Thayer put it, the Mighty Casey had “struck out.”

I concluded, “[e]xcept in the most compelling cases, public schools should be run by those assigned by elected officials to run them, and not by geezers wearing black robes. While I know a fair amount about baseball and beer, I know virtually nothing about educating and disciplining high school students who drink beer and play baseball.”*

Spring is upon us. I can hear the twang of the those damn aluminium bats. Pass me a cold one!


*I was also able to footnote to my beloved Toledo Mud Hens.



20 responses

  1. A worthy example of judicial restraint. But couldn’t you have entered an order outlawing aluminum bats?

  2. Jeff,

    Coming from an American League town, I confess that I’ve got used to the DH. But I think it’s great that the National League plays the game the old way–and the changes in strategy required when there’s inter-league play. So I don’t like it when I hear that the NL may adopt the DL. I guess you could say that I’m an Emersonian–consistency is the hobgoblin of little minds.

    By the way, inter-league play during the season–apart from the All-Star Game–should be done away with.

  3. Jon,

    I grew up in New York City where there were both NL & AL teams (except for the gap between when the traitorous Dodgers and Giants abandoned us for Pacific Time – leaving us to the mercy of the bland and robotic Yankees – and when the Mets arrived restoring something akin to decency).

    And I’m also old enough to have been opposed to the DH from the time they started talking about it and recognizing it as an abomination from the day it came. I have only two (polite) words about why pitchers should get to hit: Babe Ruth.

    But from my decades in Toledo, I do love the Hens.

    And you’re absolutely right about inter-league play.

  4. Judge:
    Once, many years ago they said the following about the pitching battery for the MiIwaukee Braves: “Spahn and Sain and pray for rain.” After the result in this case, the litigants in front of you might have said “To Kopf, complain but he will not restrain.”

  5. Excuuuse me, Robert, but “Spahn, Sain and pray for rain” was NOT said about the Milwaukee Braves. It was about the Boston Braves, in 1948. Poor Johnny Sain was never the same after all the work he got that season.

    In 1952, just before the Braves decamped for Milwaukee, my mother–not my father–took me to my first major league game, to see the Braves play the Giants at Braves Field. Warren Spahn was pitching. I don’t remember much about the game, but I remember that when he kicked, Spahn looked like his leg was a mile long, and I remember that he hit a single (no DH!) and although the Braves weren’t going anywhere that year, he ran it out like the World Series depended on it.

  6. Well judge, your nefarious scheme to extract profits from the American public has worked. I paid a full 50 cents to download this ruling on PACER.

    I was about to write a whole thing about the reproduction of copyrighted works in judicial rulings and the absolute immunity you enjoy. Then I looked up Casey at the Bat and saw it was published in 1888.

    Hopefully it won’t get swallowed up by the next time Congress passes a law to prevent the Mickey Mouse copyright expiring.

  7. No longer living in marital bliss, Busch says the Judge was reversibly amiss for not overturning the pre-nup he signed before he and his bride had their lives intertwined.

    Our standard of review is a narrow one — is there an abuse of discretion in what was done? Was there an error in the law’s application, or is this appeal mere financial frustration?

    Appellant’s mind may repose quite contented for his arguments have been very ably presented, but while both his issues are very well taken, their premise, while arguable, we must find mistaken.

    A pre-nup’s a contract, and the parties are bound to honor its terms if disclosure is found to include fair recital of what each one’s got, before it’s put into the marital pot.

    Full and fair the disclosure must be, free of fraud or dishonesty. Of this the parties had to agree and set this out in paragraph three:

    The parties have made to each other a full and complete disclosure of the nature, extent and probable value of all their property and estate.

    As the contract provides such disclosure occurred it falls on appellant to do more than demur; he’s now got the burden to prove otherwise by clear and convincing evidence, not surmise.

    The trial court in making its thoughtful decision looked first to the testimonial deposition, in which Busch admitted disclosure was made — both he and his bride had a schedule to trade.

    And trade them they did, though they were not appended to the contract whose terms remained unamended. But clearly appellant was given the chance to review hers, but chose not to give it a glance.

    The first issue appellant has artfully hatched relies on the fact no disclosures attached. The pre-nup says otherwise, which appellant contends means disclosure is not as the contract demands.

    Busch claims non-attachment means her compilation was lacking in contractual integration making the contract voidable now; this is a Conclusion we cannot allow.

    Busch wasn’t concerned about his fiancee’s possessions for he knew her precision was near to obsession; her summarization would be clear and precise, so he chose not to read it, despite counsel’s advice.

    When offered the chance to look at her estate Busch declined, which settles this issue’s fate. By doing so, he waived attaching the list — the reference to exhibits need not even exist.

    The issue is fairness; were things fully disclosed? Clearly her assets were completely exposed, so enforcing the contract we cannot prohibit for mere want of a staple attaching an exhibit.

    Wife listed all her stocks and other property, and estimated what their value might be. Now he says her figures were stale and too low, their worth was much higher, and he’d the right to know.

    This is true in so far as his reasoning goes, but this right was waived, the moment he chose not to look at her assets; in his blissful condition he never relied on the list’s composition

    Her listing of stocks and all the shares held was on her disclosure, and Husband could tell what they were worth, if he really cared, by opening the paper to see how they fared.

    This contrasts with the Ebersole facts as our case has something that Ebersole lacks. There, a catch-all phrase lumped all the many “financial assets” of the marriage, “if any”.

    This aggregation was too vague to be fair, as one couldn’t tell what assets were there. No matter how much Mr. Busch may implore us this isn’t the same as the contract before us.

    In our case the assets were all clearly shown, by the full list of holdings Mrs. Busch then owned. So appellant’s reliance on the Ebersole case, while understandable, nonetheless is misplaced.

    Busch had been married before, so he knew what a pre-nuptial contract’s intended to do; when taking this wife, (he’d been wed twice before), it’s certain appellant knew what was the score.

    He’d had a pre-nup with his previous wife, and sought to avoid any mischief or strife by asking his bride for a pre-nup himself, to allow her to insulate personal wealth.

    They wanted to marry, their lives to enhance, not for the dollars — it was for romance. When they said “I do,” had their wedding day kiss, it was not about money — only marital bliss.

    The trial court so learned was led to conclude that appellant only seeks to undo that which he wanted back in ’84, a deal which clearly he fancies no more.

    But a deal is a deal, if fairly undertaken, and we find disclosure was fair and unshaken. Appellant may shun that made once upon a time, but his appeal must fail, lacking reason (if not rhyme).

    Order affirmed.

    Busch v. Busch, 773 A.2d 1274 (Pa.Super. 1999).

    I challenge you to top THAT, Judge K.

  8. Which I guess makes me repeat here my Warren Spahn story (first told on-line in a blog post, about innocence and false memory and other depressing stuff, that I wrote almost exactly five years ago). The tale is from the end of his career when he was pitching for my Mets.

    “Friday night, June 11, 1965. I was at Shea Stadium. Mets-Dodgers game. Warren Spahn was pitching for the Mets, Don Drysdale for the Dodgers. Dodgers won 2-1. Both Dodgers runs were on homers by Drysdale. The Mets run was on a homer by Spahn. Incredible. Etched in my memory. I’ll never forget it. Except, of course, it didn’t happen that way.

    “Oh, I was at the game, and it was one hell of a game. A real pitching duel between Spahn and Drysdale. And Drysdale did win it with a home run in the 8th. But the Dodgers other run was on a homer by John Roseboro in the 5th. The Mets run, also in the 5th, came when Joe Christopher singled in Johnny Lewis. Spahn went 0 for 3. Helluva game, like I said. As Casey used to say, you could look it up. (I did. I’ll save you the trouble. Here’s the link.) Close enough to my memory so you can see how the story got better over time. Until . . . . Like I said, I’m mistaken. I know I’m wrong about just how the game unfolded. But I remember it as three homers – two by Drysdale and one by Spahn. It’s not a lie to say I remember it that way. And if I hadn’t looked it up, I wouldn’t know I was wrong. And even though I know, know for sure, my memory hasn’t changed.”

  9. Dear John:
    You are correct, sir. My apologies. And, just for the Hell of it, here’s the poem that inspired the phrase:
    “First we’ll use Spahn
    then we’ll use Sain
    Then an off day
    followed by rain
    Back will come Spahn
    followed by Sain
    And followed
    we hope
    by two days of rain.”

  10. Where does this go?

    Bill Hicks was a hack who gathered his anger and Letterman kissed his mothers ass because he died “before” his time.

    Chalk it up? The set was terrible.

    Throwing the baseball…

    You can love this game.

    There are moments that blend tension and athletics.

    Mostly it is a game of patience and fundamentals.

    Those that have both in spades make the starting roster.

    You ready to trot out and in?

    The mud eventually literally becomes groomed dirt without gravel, but the grass, the grass brings everything together under the lights.

    Yes it is real.


  11. Down here in the land of sunshine, Ponzi schemes and alligator wrestling, Spring is the time Major League Baseball screws up baseball. We’re erratic, but we can count on the big league teams coming to town. They scratch, pose, spit and preen, but we know they aren’t the real thing. The real thing arrives when they leave.

    There’s nothing like minor league baseball. It’s the baseball you remember from childhood. It’s guys trying hard, and teams trying hard to entertain. It’s Bil Veek, Billy Martin and P.T. Barnum. The bat boy could be a dog; a box seat is $20, and a hotdog is $2; if it rains, you get a rain check; the teams might pay you to park; there is always a gimmick; and

    it all ends with fireworks.


  12. Old Omaha Cardinals in Western League 1A played in CB at a high school till the Blatt was built. Tom Kelley was their catcher. Saw my first game because when Omaha was at bat he and my Dad were negotiating a settlement of a divorce case. Dad reprinted the Cards and Ringling Brother, only things about being a lawyer’s son that impressed my friends.

  13. Offer3,

    Thank you.

    By the way, I didn’t cite to the case thinking the kid probably did not need a reminder after these many years. God knows I drank a lot 3.2 beer back in the days when Ohio allowed the selling of that swill, and nobody checked your age at the door. I also played third base, half in the bag some of the time. I just never got caught.

    All the best.


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