Roe v. Kuhn

One way of sorting out peoples’ politics of law is to ask them if they find Harry Blackmun’s opinion for the Court in Roe v. Wade or Flood v. Kuhn more jurisprudentially offensive. (Flood held that, in order to avoid reversing a half-century-old precedent, baseball’s reserve clause would continue to be treated as legal under federal antitrust laws.) I teach the Flood case in my Legislation course, and one thing I try to bring out is the economic naivete of the opinion, which proceeds from the dual assumptions that

(a) Americans love baseball more than almost anything else; and

(b) Major league baseball can’t survive as a viable economic enterprise without special legal protections for team owners.

The Flood case came to mind this morning when I was putting together my Legislation syllabus, and I happened to notice that the major league minimum salary ($390,000) is now roughly three times higher, in real terms, than the mean salary at the time of the Flood case (the median salary was of course much lower), and almost exactly the same as what the mean salary was back in 1981, after the first great wave of free agency had driven salaries to what the owners insisted were unsustainable levels.