Flood V. Kuhn - Legal Analysis and Criticism

Legal Analysis and Criticism

Legal commentators have criticized the decision as not just a mistake but a compounding of the earlier mistake made in Federal Baseball and continued in Toolson. According to antitrust expert Kevin McDonald of Jones Day, Flood v. Kuhn is a "principle of antitrust law that is (1) indefensible as a matter of fact or policy, and (2) an embarrassment to the Court." Holmes' original decision has been misread by both later cases to imply a divination of congressional intent to exclude baseball and a prescription for congressional action to remedy that, he argues: "Just as Toolson blamed Holmes for a problem (an express statutory exemption) that he did not create, Flood blamed him for insisting on a solution (Congressional action) that he did not mention."

Yale law professor William Eskridge, a harsh critic of the decision, has called it "the most frequently criticized example of excessively strict stare decisis." It is often counterpointed to the Court's decision in the 1940 trust case Helvering v. Hallock, where Justice Felix Frankfurter explicitly rejected the idea, embraced by Blackmun in Flood, that the Court should consider congressional inaction as a tacit statement of acquiescence with one of its existing holdings, however questionable they may have seemed. Eskridge notes that there are many reasons besides express lack of intent that would forestall Congressional action to remedy a flawed Court decision.