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.
Read more about this topic: Flood V. Kuhn
Famous quotes containing the words legal, analysis and/or criticism:
“I am opposed to writing about the private lives of living authors and psychoanalyzing them while they are alive. Criticism is getting all mixed up with a combination of the Junior F.B.I.- men, discards from Freud and Jung and a sort of Columnist peep- hole and missing laundry list school.... Every young English professor sees gold in them dirty sheets now. Imagine what they can do with the soiled sheets of four legal beds by the same writer and you can see why their tongues are slavering.”
—Ernest Hemingway (1899–1961)
“The spider-mind acquires a faculty of memory, and, with it, a singular skill of analysis and synthesis, taking apart and putting together in different relations the meshes of its trap. Man had in the beginning no power of analysis or synthesis approaching that of the spider, or even of the honey-bee; but he had acute sensibility to the higher forces.”
—Henry Brooks Adams (1838–1918)
“A friend of mine spoke of books that are dedicated like this: “To my wife, by whose helpful criticism ...” and so on. He said the dedication should really read: “To my wife. If it had not been for her continual criticism and persistent nagging doubt as to my ability, this book would have appeared in Harper’s instead of The Hardware Age.””
—Brenda Ueland (1891–1985)