Poetry in the Law

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Shortly before Christmas, I came across a notice that Pennsylvania Supreme Court Justice Michael Eakin had written an opinion in verse. In Commonwealth v. Goodson, the court overturned the defendant’s conviction for insurance fraud in an opinion penned entirely in heterometric sexains. Some of the lines are clunky, the rhymes forced: “And thus the matter terminated, or so one might have thought, / but that was not to be, when Goodson’s later schemes were caught.” Syntactical imprecision is not necessarily a fault in poetry, but even as prose the sentence is ungainly and its meaning, though not overly obscure, suffers from vagueness. Nevertheless, the opinion is fairly successful as pastiche and its legal analysis is serviceable.

This was not Justice Eakin’s first foray into judicial versifying. While on the Superior Court of Pennsylvania he composed quatrains for a couple of opinions. In Busch v. Busch (1999) the entire opinion is in verse except for a recitation of the facts, and in Liddle v. Scholze (2001), several stanzas merely bookend more conventional text. Liddle is in many ways the more interesting case, as it deals with the sale of breeding emus. Appellant sued for breach of contract when they didn’t – breed, that is – but lost because she did not take advantage of the contractual remedy in a timely fashion and was thus presumed to have waived it. Perhaps she should have pursued a different cause of action and argued for rescission of the sale on the grounds Scholze was selling an unregistered security, under an investment contract theory. But this is all by the by. In Liddle, Eakin achieves a Coleridgean tone with his first line, “The emu’s a bird quite large and stately . . . .”

Elevated to the Pennsylvania Supreme Court in 2001, Eakin continues to occasionally express himself in verse from the bench. He is not unique in this regard. There are many examples of judicial prosody and even the tax court has tried its hand at the form. See Jenkins v. Comm’r, 47 T.C.M. (CCH) 238 (1983), “Ode to Conway Twitty.” The practice has not been immune from criticism, however. The main thrust of the criticism is that “rhymed verse trivializes the seriousness of the matter before the court and demeans the litigants.” Mary Kate Kearney, The Propriety of Poetry in Judicial Opinions, 12 Widener L.J. 597, 606-607 (2003). It has also been impugned as a waste of taxpayer money and for its tendency to produce not only bad law, but execrable poetry.

These criticisms strike me as not wholly persuasive. The assertion that rhymed verse is more likely to demean than other forms of writing is equivocal at best – on the one hand you have the aubade, on the other gangsta rap. It is true that rhymed judicial opinions are often jocular in tone. Justice Eakin admits he tends to use the form when “the subject of the case call[s] for a little grin here or there.” But could it be that some matters, though legally significant, are trivial in a broader sense? And if this is so, does the appearance of judicial propriety require learned men to pretend otherwise? Benjamin Cardozo, in Murphy v. Steeplechase Amusement Company (1929), is clearly having verbal fun. “The antics of the clown are not the paces of the cloistered cleric.” Is he trivializing the subject matter of the suit? Sure, but in a principled way.

As to the respect litigants are due, jurists have not been restrained in the exercise of their derision by prose. Oliver Wendell Holmes’ opinion in Buck v. Bell (1927) comes to mind. His disdain for the “feeble-minded” is palpable throughout the opinion and culminates in the grotesque: “Three generations of imbeciles are enough.” On the other hand, there are some parties whose actions are so reprehensible, or whose arguments are so frivolous, that they deserve censure; the law, in fact, demands it. In such cases, do they not forfeit the court’s respect? In any event, an adversarial system of justice inevitably demeans the loser in the sense that their dignity is reduced, at least to the extent their loss decreases their status.

In short, I would contend that there is nothing inherently wrong about an opinion that takes liberties with form, as long as it seriously resolves the issue before the court. The idea that a well-reasoned resolution can only be expressed in certain sober tones is belied by the many instances where wit and humor can reveal the weakness of a position or provide a more fitting context for the dispute. Judge Posner, for example, is a master of the well-placed barb that explodes an untenable position. In 2008, Chief Justice Roberts’ recitation of facts in Pennsylvania v. Dunlap is written in the style of a detective novel of the 30’s or 40’s. He described the neighborhood in which the alleged offense occurred as “[t]ough as a three-dollar steak.”

What is problematic about Eakin’s poetic opinions, perhaps, is their slavish insistence on rhyme. He relegates the form to those cases that are after all not very important, those one merely “grins” at. But if one takes seriously the claim that law is essentially a literary activity, then poetry, as the sine qua non of all such activity, is capable of being put to more varied uses. Would an opinion in blank verse on the legal consequences that flow from attempted murder, such as can be found in the Merchant of Venice, necessarily be out of place? Free verse seems particularly apt for intellectual property cases.

Certainly, given the traditions of the law, there is no need to fear that writing opinions in verse in any of its forms is likely to become commonplace. And there are undoubtedly good reasons for this. If nothing else, some uniformity of approach is indispensable to an efficient process. I am reminded of the saying that behind every lawyer is a failed poet, however, and wonder if those that would seek to prohibit its use by judges in the performance of their official duties needlessly restrict the possibilities of legal analysis and stifle its animating spirit. Perhaps that is overstating the case, but I could not resist a plug for poetry.

Would it Be Illegal for Iran to Close the Strait of Hormuz?

Posted on Categories International Law & Diplomacy, PublicLeave a comment» on Would it Be Illegal for Iran to Close the Strait of Hormuz?

In response to international economic and diplomatic pressure to halt its nuclear program, Iran is reportedly contemplating closing the Strait of Hormuz, a narrow and critically important waterway through which approximately a third of global sea-based oil shipments pass each year. The precise nature of this potential action is a little unclear from media reports. Some accounts state that the closure would pertain only to foreign warships that do not receive Iranian permission to transit. Others give the impression that Iran may bar all transit, including oil shipments. The difference is significant, but many seem to think that Iran would be acting illegally either way. My aim here is to briefly explore that view under international law.

The principal hurdle to either type of closure is the U.N. Convention on the Law of the Sea, a treaty that Iran has not ratified but that is widely accepted as codifying preexisting customary rules that bind parties and non-parties alike. One such rule is that in a strait all ships and aircraft shall enjoy an unimpeded right of “transit passage,” which is “the exercise . . . of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait” (art. 38). A corollary is that states bordering straits “shall not hamper transit passage,” and that “[t]here shall be no suspension of transit passage” (art. 44). Continue reading “Would it Be Illegal for Iran to Close the Strait of Hormuz?”

Lois Kuenzli Collins

Posted on Categories Legal History, Marquette Law School, Public4 Comments on Lois Kuenzli Collins

When I was a child, I used to look at the pictures of local attorneys in the Waukesha County Bar Association on the wall of my father’s and grandfather’s law office. One attorney stood out to me among all the others: a woman named Lois Kuenzli Collins. She was the only woman in the bar photos from my grandfather’s era. I wondered who she was and what motivated her to become a lawyer.

Collins practiced with her husband, Vincent Collins, in Waukesha in the mid-1900s. She was one of the first women to practice law in Wisconsin. Recently I had the chance to speak with Collins’ daughter, Patricia Andringa, about her mother’s work and life as an early woman lawyer in Wisconsin.

Collins graduated from Waukesha High School in three years in 1923. She attended Marquette University and graduated in four years in 1927 with both an undergraduate and law degree. She met her husband while at Marquette, and they graduated together.

Continue reading “Lois Kuenzli Collins”

Friends of Scott Walker v. GAB Changes the Recall Rules Mid-Stream

Posted on Categories Election Law, Judges & Judicial Process, Political Processes & Rhetoric, Public, Wisconsin Law & Legal System9 Comments on Friends of Scott Walker v. GAB Changes the Recall Rules Mid-Stream

Today, Judge J. Mac Davis ruled that the Government Accountability Board must take “affirmative steps to identify and strike duplicate, fictitious or unrecognizable signatures as it reviews the recall petitions expected to be filed against Gov. Scott Walker.”  The ruling comes in the case of Friends of Scott Walker v. GAB, filed in Waukesha County Circuit Court on December 15, 2011. The complaint in the case sought a declaratory judgment from the court that the procedures of the Government Accountability Board, whereby the GAB accepted (but did not necessarily count) duplicative signatures on recall petitions, violated the United States Constitution, the Wisconsin Constitution and Wisconsin law.  The complaint in the case is available here.

The GAB responded to the lawsuit by arguing that the Wisconsin statutes provide a clearly defined procedure that allows elected officials subject to recall to instigate challenges to any signatures that appear to be duplicative, fictitious or unrecognizable. After the GAB accepts the recall petitions, there is a period of 10 days in which the signatures may be challenged by the official. It is at the challenge stage that suspect signatures should be identified and removed, according to the GAB, and not earlier when the recall petitions are accepted by the agency. The GAB also contended that there was no provision in the Wisconsin Statutes that granted the agency the authority to do what the Friends of Scott Walker asked it to do.

Judge Davis disagreed with the GAB, and earlier today he ruled that the GAB is required to take affirmative action that will have the effect of reducing the burden that the Friends of Scott Walker would otherwise face. This is because the GAB must now identify and remove suspect signatures on its own initiative.

Why is the GAB obligated to do this, when there is no statutory language that explicitly places such an obligation on the agency? Continue reading “Friends of Scott Walker v. GAB Changes the Recall Rules Mid-Stream”

Why Milwaukee Lost the Braves: Perspectives on Law and Culture From a Half-Century Later

Posted on Categories Legal History, Milwaukee, Public, Sports & Law, Wisconsin Law & Legal System19 Comments on Why Milwaukee Lost the Braves: Perspectives on Law and Culture From a Half-Century Later

Forty-five years ago, the baseball world trained its attention on the Wisconsin Supreme Court and its impending decision in the case of Wisconsin v. The Milwaukee Braves, soon to be reported as 144 N.W.2d 1 (1966). At issue was whether or not a Milwaukee trial judge, acting on behalf of the state of Wisconsin, could prevent the Milwaukee Braves Major League Baseball team from relocating to Atlanta.

After the Braves’ Chicago-based owners announced their plans to move to Atlanta, Georgia for the 1966 season, a criminal complaint was filed in Milwaukee County Circuit Court alleging that the Braves and the other nine teams in the National League had conspired to deprive the city of Milwaukee of Major League Baseball, and, moreover, had agreed that no replacement team would be permitted for the city. As such, the complaint alleged, the defendants were in violation of the Wisconsin Antitrust Act.

The defendants initially removed the lawsuit to the United States District Court for the Eastern District of Wisconsin, but on December 9, 1965, District Court Judge Robert Tehan remanded the case to the state circuit court where trial was conducted by Circuit Court Judge and former Marquette Law School professor, Elmer W. Roller.

On April 14, 1966, only hours before the Braves opened the season with a game against the Pittsburgh Pirates in Atlanta, Judge Roller ruled that the owners of the Braves and the other National League teams had acted in “restraint of trade” and thus were in violation of the Wisconsin Antitrust Act.

As a consequence, Roller fined the defendants $55,000, plus costs, and enjoined the Braves from playing their 1966 home games anywhere other than Milwaukee, unless the National League agreed to place a new team in Milwaukee in 1967. To give the National League time to make arrangements for an expansion team for 1967, Roller stayed his judgment until mid-June, an act that allowed the Braves to continue playing in Atlanta.

The Braves owners immediately appealed Roller’s decision to the Wisconsin Supreme Court, and the court agreed to hear the case on an expedited basis. On June 9, 1966, the appeal was argued on a day on which the Braves, who never had a losing season while in Milwaukee, sat in 6th place in the National League with a record of 25-30.

With the stay extended, the Braves continued to play in Atlanta, and six weeks later, on July 27, a day that would end with the Braves having slumped all the way down to 8th place, the Wisconsin Supreme Court overturned Roller’s lower court ruling by a narrow vote of 4-3. (Interesting to note is the fact that Supreme Court Justice E. Harold Hallows, who was also a law professor at Marquette, was one of the three dissenters who would have allowed Roller to enjoin the move to Atlanta.)

The Court’s majority’s opinion was based on two different rationales, and while not all of the four justices that made up the majority embraced both theories, each embraced at least one of the two. The first conclusion was that Organized Baseball’s exemption from the federal antitrust laws most recently upheld in Toolson v. New York Yankees (1953), extended to state antitrust rules as well. In the alternative, the majority opinion found that even if Organized Baseball was not exempt from state antitrust regulation generally, the portion of the remedy imposed by Judge Roller that ordered the National League either to return the Braves to Milwaukee or else give the city a new team ran afoul of the United States Constitution’s Commerce Clause and constituted an unenforceable interference with interstate commerce. The majority did, however, confirm Roller’s finding of facts concerning the monopolization of baseball in Milwaukee.

The three dissenters disagreed with both of the majority theories and concluded instead that Congress should be presumed to have left the regulation of Organized Baseball to the states until such time that it explicitly exercised its own regulatory authority. They also maintained that the legitimate interests of the state of Wisconsin in this case took priority over the “restrictive effect on interstate commerce that might result from the enforcement of Wisconsin’s laws.”

Not willing to concede defeat after such a narrow loss, the state of Wisconsin appealed the majority’s decision to the United States Supreme Court. However, pending a decision on the state’s petition for a writ of certiorari, Judge Roller’s lower court order was dissolved, and the Braves were free to play out the season in their new southern home.

Although the Braves lost again on July 28, to fall into 9th place, 14 ½ games behind the first place Pittsburgh Pirates, the Wisconsin Supreme Court decision seemed to clear away the cloud of bad play that had hung over the team all season. After falling to 45-55 on the 28th, the “Atlanta” Braves played inspired baseball the rest of the season, and ended up with a record of 85-77, good for 5th place (out of ten teams), and within 10 games of the pennant-winning Los Angeles Dodgers who overtook the Pirates.

(The year before the Milwaukee Braves had similarly finished in 5th place with a record of 86-76, eleven games behind the Dodgers. However, the previous season had played out in a quite different manner, as the Braves were in first place as late as August 18, before finishing in a 17-27 downward spiral.)

Milwaukeeans had to wait until December 12 to learn that the United States Supreme Court had denied the state’s petition for certiorari. However, in an uncharacteristic move, the Court revealed that it was badly divided on whether or not to hear the case. Justices William O. Douglas, Hugo Black, and William Brennan, it turns out, were in favor of hearing the case, but the cert. petition was opposed by Chief Justice Earl Warren and Associate Justices Potter Stewart, John Marshall Harlan II, Byron White, and Tom Clark.

Although he had taken the oath of office as a Supreme Court justice on October 4, recently appointed Justice Abe Fortas, according to the Court’s announcement, “took no part in the review of the petition.” Consequently, the attempt to involve the nation’s highest court died as a result of the failure of a fourth justice to support the petition.

In another unusual development, Wisconsin filed a petition requesting that the Court rehear the petition for certiorari, perhaps in hopes that Fortas might be now willing to support the petition, but this request was also denied. On January 23, 1967, the litigation over the Braves departure finally came to an end when the Court simply announced that the rehearing petition had been denied and that Justice Fortas had not participated in the review.

Thus, by late January it was clear that the city of Milwaukee would be without major league baseball for 1967. When the National League announced in November 1967, that it would be adding two additional teams for the 1969 season, Milwaukee applied for one of the franchises, as did groups from Dallas-Ft. Worth, Denver, Buffalo, San Diego, Toronto, and Montreal.

However, when the two new franchises were awarded in May of 1968, the National League ignored Milwaukee and awarded teams to San Diego and Montreal. (In the minds of many Milwaukeeans, the 1968 rejection was a form of retribution for the city’s filing suit against the league back in 1965.) As a result, except for 20 Chicago White Sox games played in County Stadium in 1968 and 1969, Milwaukee remained without Major League Baseball until 1970, when Bud Selig and his associates bought the bankrupt Seattle Pilots shortly before Opening Day and moved the one year old team to Milwaukee, where they were renamed the Brewers.

The most interesting question arising out of the Milwaukee Braves litigation is why the Braves were so anxious to leave Milwaukee in the mid-1960’s. After relocating to Milwaukee in 1953 (from Boston, where the team had played since 1871), the Braves were for the rest of the decade one of the showpiece franchises of all of baseball. In a decade in which attendance at major league baseball games steadily eroded, the Braves set one National League attendance record after another.

Part of the answer to the question lies in the fact that in the mid-1960’s Atlanta simply held much greater potential than Milwaukee as a source of revenue for a Major League baseball team. Not only was it based in a larger and still rapidly growing metropolitan area, but it was also located in an area (the Southeast) without Major League Baseball. In contrast, Milwaukee was bounded by the Chicago Cubs and White Sox to the South, the Minnesota Twins to the West, Lake Michigan to the East, and the under-populated wasteland of Northern Wisconsin to the north.

In other words, Atlanta’s superior location provided greater opportunities both for live attendance and for the sale of increasingly important broadcasting rights.

However, after the wave of team relocations between 1953 and 1961, Major League owners had become clearly reluctant to permit additional teams to change cities in search of greater revenues, particularly if it would leave the vacated city without a team. The proposals of Kansas City Athletics owner Charlie Finley to move his struggling team to various cities, including Dallas-Ft. Worth, Atlanta, Louisville, and Oakland had been regularly rebuffed in the years between 1962 and 1966. It was highly unlikely that the other owners would have approved the Braves relocation to Atlanta in 1966, had the only reason to move been a desire to make greater profits.

The sad reality was that between the mid-1950’s and the mid-1960’s, Milwaukee appeared to have gone from being a hotbed of baseball attendance to a city in which the citizenry seemed no longer willing to go to the ballpark to support their team, even if the team was still a pennant contender. Although this was something of a misperception, it is easy to understand why many observers in the 1960’s adopted that view.

The following are the attendance totals for Milwaukee between 1953 and 1965, with the team’s rank among major league teams in parentheses. The totals for 1953, 1954, and 1957 represented new National League attendance records.

YEAR ATTEND. RANK

1953 1,826,397 (1st of 16)

1954 2,131,388 (1)

1955 2,005,836 (1)

1956 2,046,331 (1)

1957 2,215,404 (1)

1958 1,971,101 (1)

1959 1,749,112 (2)

1960 1,497,799 (6)

1961 1,101,441 (9 of 18)

1962 766,921 (14 of 20)

1963 773,018 (16)

1964 910,911 (10)

1965 555,584 (19)

The reasons for the fall off in attendance after 1957 are complicated, especially given the fact that the team had a winning record during each of the thirteen seasons that it played in Milwaukee.

Fan exhaustion may have been a factor. This was certainly a much mentioned explanation in the press in the early 1960’s. The Braves were located in one of the smallest markets in major league baseball, and Milwaukee’s attendance totals represented a much higher percentage of the metropolitan population than that of any other major league team in the 1950’s.

For example, in 1960, which was not one of the Braves better years attendance-wise, the team’s attendance amounted to 130% of the population of the Milwaukee metropolitan area. In contrast, the attendance of the two league champions in 1960, the Pittsburgh Pirates and New York Yankees, amounted to 81% and 11% (!), respectively. For the major league attendance leader, the Los Angeles Dodgers, the ratio was 33%. For several years in the mid-1950’s, the Braves’ annual attendance was essentially double the population of the Milwaukee metropolitan area, a phenomenon achieved nowhere else in baseball history.

Of course, not all of those who attended Braves game came from the Milwaukee area. The team, in fact, regularly drew fans from throughout the state of Wisconsin, and the establishment of the Twin Cities-based Minnesota Twins may have cost the team fans from the western and central part of the state. (The Twins drew 1.5 million fans in 1961, and a significant portion of them came from Wisconsin.)

However, the drop in attendance was also related to the team’s perceived declining performance beginning in 1960. By one measure, the Milwaukee Braves were the most consistently successful team in major league baseball history, finishing, as already mentioned, with winning records in each of their 13 seasons in Milwaukee. On the other hand, the Braves were significantly more successful relative to their competition in their first eight seasons than in their last five.

After finishing second in the National League in 1953 and third in 1954, the Braves went on a remarkable run. In 1955 and 1956, they finished second behind the Brooklyn Dodgers, and by only one game in the latter year. They then won National League championships in 1957 and 1958 (and the World Series in 1957), and then finished in a tie for first place in 1959 with the now Los Angeles Dodgers. (Unfortunately, they lost the 1959 play-off series, and thus missed a third straight World Series.)

In 1960, the Braves were in first place as late as July 24, but a 36-30 record over the remainder of the season left them in second place, seven games behind the surprising Pittsburgh Pirates. Although the Braves actually won more games in 1960 than they did in 1959, baseball fans, then as now, were much more attuned to a team’s place in the standings than to its actual win-loss record. Accordingly, attendance at Braves games began to decline noticeably in August and September 1950, especially once it became clear that the Braves were not likely to catch the first place Pirates.

Although most Braves fans expected Milwaukee to return to the top of the National League in 1961, the team finished a disappointing fourth, its lowest finish since arriving from Boston in 1953. Once again, the decline was not as steep as the standings suggested. Even though the Braves lost all-star catcher Del Crandall with a shoulder injury shortly after the season began and number three starter Bob Buhl suffered a noticeable loss of efficiency as he struggled to a 9-10 season record, the team’s win total for the season declined only by five games. Offensively, the 1961 Braves scored 712 runs, compared to 724 in 1960, and the number of runs allowed by Brave pitchers actually improved ever so slightly from 658 to 656.

The situation appeared even worse in subsequent years as the Braves finished fifth, sixth, fifth, and fifth again in their final four years in Milwaukee (even while each year winning between 84 and 88 games in a 162-game season). Attendance plummeted steadily throughout the period even though the team was usually in the pennant chase for the better part of the season.

Accustomed to having a team at the top of the standings, Milwaukeeans seemed much less interested in a team in the middle of the pack, even if the team had a winning record and continued to feature star players like Hank Aaron, Eddie Mathews, Warren Spahn (through 1964), and Joe Torre.

There is little reason to blame the Braves for allowing the team to decline by ignoring the team’s roster. Although some of the Braves stars of the 1950’s, like Red Schoendienst, Wes Covington, Johnny Logan, and Billy Bruton, disappeared from the team’s roster in the early 1960’s, the Braves roster remained a talented one. The 1962 National League All-Star team, for example, featured six Milwaukee Braves among its 25 man roster.

When necessary, the Braves were willing to take on the contracts of established players to fortify the line-up. For the 1961 season, for example, they acquired all-star infielders Frank Bolling and Roy McMillan and power hitting outfielder Frank Thomas, each of whom was a regular on that year’s team, and, with Bolling and McMillan, for several years after that. Although the team’s focus shifted to the use of players from its successful farm system after 1961, when necessary, the team was willing to acquire established Major League players like Ed Bailey, Gene Oliver, Johnny Blanchard, Billy O’Dell, Ken Johnson, and Felipe Alou.

The Braves also continued to be one of the better franchises in developing young players and by mid-decade, the team’s roster included new stars like pitchers Tony Cloninger and Denny Lemaster, shortstop Denis Menke, and outfielder Rico Carty, who just missed being the 1964 Rookie of the Year after batting .330. (Perhaps the least significant personnel move of the era was the decision to promote minor league catcher and Milwaukee native Bob Uecker to the major league team in 1962.)

The real problem for the Braves in the early 1960’s was that they had to compete against teams like the Los Angeles Dodgers, San Francisco Giants, Cincinnati Reds, and St. Louis Cardinals of that era. Baseball talent was concentrated in the National League in the early 1960’s, and an impressive number of future Hall-of-Famers were entering the prime of their careers during the Braves’ final years in Milwaukee.

The Dodgers in those years were led by pitchers Sandy Koufax and Don Drysdale, who shattered existing strikeout records, and by shortstop Maury Wills who broke Ty Cobb’s supposedly unbreakable stolen base record. The Giants, in contrast, relied on power rather than speed, with a line-up that featured Willie Mays, Orlando Cepeda, Willie McCovey, who combined for 541 home runs between 1961 and 1965 (including 226 by Mays alone), and by the three Alou Brothers, and by pitcher Juan Marichal.

The Reds of this era featured Frank Robinson, Vada Pinson, and Pete Rose, and a pitching staff that produced six 20-game winners between 1961 and 1965. The Cardinals who finished the five year period from 1961 to 1965 with a combined record seven games better than Braves included players like the aging Stan Musial and younger stars of the caliber of Ken Boyer, Bill White, Dick Groat, Lou Brock, Curt Flood, and the incomparable Bob Gibson.

The Braves experience in the 1960’s of sharply declining attendance in spite of a successful team on the field was not without recent precedent. Between 1948 and 1950, the American League’s Cleveland Indians saw their total attendance decline from 2.6 million to 1.7 million, in spite of having winning seasons each year. Moreover, in spite of never finishing lower than second place between 1951 and 1956, the Indians saw their attendance further decline from 1.7 million to 900,000. The following table illustrated the decline in attendance in the face of consistent winning seasons that occurred in Cleveland in the late 1940’s and early to mid-1950’s.

YEAR FINISH ATTN.

1947 4th 1.5m

1948 1st 2.6

1949 3rd 2.3

1950 4th 1.7

1951 2nd 1.7

1952 2nd 1.4

1953 2nd 1.1

1954 1st 1.3 (best won-lost record in American League history)

1955 2nd 1.2

1956 2nd 0.9

The conventional explanation for the decline in Indian attendance was the Cleveland fan’s frustration at the inability of his team to overcome their hated rivals, the New York Yankees, who won the American League pennant in each of the above years, except for 1948 and 1954 when the Tribe finished ahead of the Bronx Bombers.

Although the Milwaukee Braves 1961 season was hardly a failure in terms of either on the field performance or attendance, it was the first year since arriving from Boston that the team failed to turn a profit. The team’s attendance dropped by almost 400,000 fans, and the decline in attendance revenue, combined with the fact that the Braves probably had the highest payroll in the Major Leagues, converted a $500,000 profit in 1960 into an $80,000 loss in 1961. (The decision to shore up the team with veterans like Roy McMillan, Frank Bolling, Frank Thomas, and Johnny Antonelli , acquired before or during the 1961 season, had greatly inflated the team payroll, but obviously did not lead to a rebound in attendance.)

Some observers attributed the decline in attendance to a new city ordinance that took effect for the 1961 season which prohibited fans from bringing their own beer into the park. Although a number of contemporary newspaper stories report how unpopular this ordinance was with Braves fans, it is hard to believe that this explains the decline in attendance. Throughout the 1950’s, the Braves had been credited with having the “highest per capita concessions sales in the major leagues,” so it seems unlikely that having to pay for beer at the ballpark would alone cause such a steep drop in attendance.

Another explanation for the decline in attendance in 1961 was the appearance in the upper Midwest of the transplanted Washington Senators, now playing as the Minnesota Twins. Throughout the 1950’s, the Braves had been popular in western Wisconsin and Minnesota and excursion baseball buses running across the state had been a regular summer feature. The Twins did draw a million and a half fans in their inaugural season, but, again, it is hard to believe that competition from the Twins explains the substantial drop in attendance, any more than does the new restrictions on bringing beer into County Stadium.

This sudden decline in profitability led owner Lou Perini to make a number of changes after the 1961 season. To cut his payroll, the team sold the contracts of recent acquisitions Frank Thomas and Johnny Antonelli to the expansion New York Mets. (Antonelli was washed up and never pitched again, but Thomas hit 34 homeruns for the Mets the following year.) The team also introduced a new slogan “Something new in ‘62” as a way of highlighting its plans to make greater use of players from the team’s farm system, other than bringing in stars from other teams, which had been the apparent strategy in 1961.

Perini also raised ticket prices (as he had before the 1961 season) and for the first time agreed to permit the broadcast of a limited number of Braves games on television. In 1961, the Braves were the only major league baseball team that did not allow any of its games to be televised into its home market, but in 1962, Perini permitted the broadcast of fifteen road games on local television. He also made plans to install an escalator at County Stadium to make it easier for fans to reach the upper deck.

None of this worked to revive fan interest, and in spite of Perini’s increased spending on publicity, the team sold only 6,000 season tickets for the 1962 season, a total which represented a 50% decline since 1959. When the attendance dropped by another 330,000 that year, Perini in frustration agreed to sell the team to a Chicago-based group of investors for a purchase price of $5.5m. Perini, who never personally moved from Boston to Milwaukee, cited the wide-spread operation of his construction company as a reason for the sale.

There is some evidence that suggests that the new owners purchased the team with plans to move it to Atlanta already formulated. However, Atlanta’s planned new municipal stadium would not be ready until 1964 or 1965, so it was necessary to continue to play in Milwaukee whatever their intentions.

In 1963, the new owners sought to recoup part of the purchase price by expanding the number of Brave games on television, agreeing to broadcast five home games during the upcoming season, as well as another package of away games. In addition, the new owners issued and sold stock in the team, but sales were extremely disappointing.

More importantly, rumors of the new owners plans to move the team to Atlanta began to spread almost immediately, a fact that could hardly have helped attendance. Whatever the impact of such rumors, attendance was basically stable in 1963, and the Chicago-group reportedly lost another $60,000.

The situation improved slightly the following year. The 1964 Braves were one of the great offensive teams of that era, scoring over 800 runs and averaging just under five runs per game, which was better than a half run more than the eventual champion Cardinals. Unfortunately, 1964 was the year that the seemingly ageless Warren Spahn ran out of gas at age 43, and Brave pitchers compiled the second highest ERA in the National League. While they were in contention during the early part of the season, sitting in third place, one and a half games back of first place, on May 29, the team slumped in June and spent most of the season in the second division.

A last gasp effort saw the club win 14 of its final 17 games to pull within five games of the first place Cardinals (although still in 5th place). Attendance went up about 200,000 people in 1964, but the season’s total fell below the one million mark.

Throughout 1963 and 1964, rumors were rampant that the new owners planned to move the team to Atlanta. Even with increased attendance and more games on television the team incurred further losses in 1964, totaling a reported $500,000 (!). In light of continued losses, the decision was finally made to relocate the team to Atlanta in time for the 1965 season, and initially the other National League teams supported the move.

However, the Milwaukee County Board threatened to sue to enjoin the relocation of the team unless it complied with the terms of its lease which ran through the 1965 season. A team offer to buy out the lease was rejected by the Board, and in the face of a potential lawsuit, the other National League owners refused to approve the 1965 relocation plan after all. However, they did declare that it was in the best interests of the National League to permit the Braves to move to Atlanta in 1966, essentially confirming the lame duck status of the Milwaukee Braves of 1965.

Fan reaction to this resolution was one of unrepressed anger. Although the Braves were in first place for most of the 1965 season, after opening day, the 1965 season was played under a fan boycott, and barely a half million people showed up for the Braves home games that year. When the Braves did in fact depart after the 1965 season, the case of Wisconsin v. Milwaukee Braves began.

Was there anything that could have been done to prevent the situation that resulted in the Braves departure? In 1965, as a last ditch effort, Wisconsin Senator William Proxmire introduced a bill in the Senate that would have required major league teams to pool all of their radio and television income in a way similar to the then current practice in the National Football League. The bill never got out of committee in the United States Senate, but such a requirement might have reduced the lure of relocating to new territory and perhaps kept the Braves in Milwaukee.

However, short of a structural change of that nature, it is difficult to see how the situation might have been different. The real aberration in Milwaukee baseball history was the attendance figures of 1953-1959, not those for 1960 to 1965. Given its population, Major League Baseball attendance in Milwaukee in the early 1960’s, at least through 1964, was actually pretty good. Selling the team to owners with no commitment to Milwaukee in 1962, probably made it inevitable that the team would soon be relocated to a larger, more lucrative market.

On the other hand, what the Braves really lacked after 1960 was exceptional pitching. In December 1960, fearing that long-time shortstop Johnny Logan was nearing the end of the line and believing that neither of his back-ups, Felix Mantilla and Andre Rodgers (acquired from the Giants earlier in the off-season) were ready to be full-time major league shortstops, the Braves traded pitchers Juan Pizarro and Joey Jay to the Cincinnati Reds for all-star shortstop and Gold Glove winner Roy McMillan.

Although not a strong hitter, McMillan was widely regarded as the best defensive shortstop in baseball, and, teamed with newly acquired second baseman Frank Bolling (obtained in a trade with Detroit for centerfielder Billy Bruton), he gave the Braves the best defensive infield in the National League.

However, the two pitchers the Braves traded for McMillan both blossomed in 1961. Joey Jay had first appeared for the Braves in a major league game in 1953 as a 17-year old bonus baby, but had been a disappointment for most of his time with the team. Consequently, even though he had pitched well when inserted in the starting rotation at the end of the 1960 season, he was deemed expendable. Unfortunately for the Braves, Jay won 21 games with the pennant-winning Reds in 1961, tying Spahn for the most wins in the National League and finishing 5th in the National League MVP voting.

Pizarro, who was subsequently traded by the Reds to the White Sox, had shown great promise with the Braves in 1958 and 1959, but had a disappointing season in 1960. However, in 1961, given a chance to start for the White Sox, the left-hander went 14-7 with a 3.05 ERA and led the American League in strikeouts per nine innings.

In 1961, the Braves starting pitching was at best mediocre behind staff aces Warren Spahn (21-13) and Lew Burdette (18-11). Bob Buhl, with Spahn and Burdette the anchor of the staff during the World Series years, slumped to 9-10 with a 4.11 ERA and fourth starter Carl Willey finished only 6-12. Highly regarded rookie pitchers Bob Hendley and Don Nottebart combined for a disappointing 11-14 record, and mid-season call up Tony Cloninger, while posting an impressive 7-2 won-lost log, had an unimpressive 5.25 ERA.

One can never say for certain, but had the 1961 Braves featured a starting rotation of Spahn (21-13), Jay (21-10), Burdette (18-11); and Pizarro (14-7), and a shortstop parlay of Logan, Mantilla, and Rodgers, the chances are good that the Braves, not the Jay-less Reds, would have won the National League pennant that year. Even more importantly, Milwaukeeans would have returned to the ballpark at 1957 and 1958 levels; Parini would have not sold the team to the Chicago investors; and the Braves would still be playing in the Cream City.

At least it’s fun to think that that might have happened.

The saga of the Braves in the 1960’s does raise a number of questions that are beyond the scope of this essay. Why, for example, were Major League Baseball teams in the 1950’s and 1960’s so slow to exploit the economic advantages of local television broadcasting in their own immediate markets? This is particularly interesting in light of the importance of such rights in the modern era. (New York Yankee dominance is currently built on the team’s local cable contract.) Although the Braves were extreme in their refusal before 1962 to allow any of their games to be broadcast into Milwaukee, several teams, including the highly successful Los Angeles Dodgers, refused to allow the broadcast of their home games in that same era.

Finally, what would have happened if the Supreme Court had granted certiorari in Wisconsin v. Milwaukee Braves? One can only guess, but it seems likely that two of the three justices who voted to hear the case—Douglas and Brennan–wanted an opportunity to overrule the Supreme Court’s decision in the 1953 case, Toolson v. New York Yankees (1953), in which the exemption of Organized Baseball from the antitrust laws was upheld. Six years later, in their dissents in Flood v. Kuhn (1972), the two said as much. What Justice Black was thinking in 1966 is less clear, particularly given that he, with a last minute contribution from Warren, had written the court’s per curiam opinion in Toolson.

Of course, a decision overturning Toolson would have been of no immediate benefit to Milwaukee, since if the federal antitrust laws were to be applied to Organized Baseball, that would almost surely mean that they would preempt any application of the Wisconsin Antitrust Act.

The more interesting question is whether it possible that there were five justices on the court in 1967 that would have accepted the broad leeway given to state power by the opinion of the dissenting justices on the Wisconsin Supreme Court? One can never answer such questions with absolute confidence, but if such justices existed, why wouldn’t they have voted to hear the case? Moreover, as constitutional historian Michael Belknap demonstrated in his The Supreme Court Under Earl Warren, the Warren Court was generally hostile to state efforts to regulate the instrumentalities of interstate commerce.

On the other hand, the voting patterns of United States Supreme Court justices in cases involving the sports industry have been notoriously difficult to predict.

In any event, the Braves left town, but life, and baseball, managed to go on in Milwaukee without them.

Author’s note: Growing up in Pearisburg, Virginia, I became a fan of the Milwaukee Braves in 1961 for three reasons. (1) My youth league team, from which I was cut in 1961 but rejoined the following year, was called the Braves. Although our uniforms were green, I associated the Pearisburg Braves with the Milwaukee Braves from the very beginning; (2) My Great-Uncle Kester, “Ket,” Hoke was from Nitro, West Virginia, the home town of Braves star pitcher Lew Burdette, and he was a member of a group of men who went squirrel hunting with Burdette in the off-season; and (3) my oldest baseball card, which dated all the way back to 1959, was of Braves first baseman Joe Adcock who I thought looked a little bit like my Dad.

I followed the Braves intently every year in the 1960’s, and having read about the glory days of 1957 and 1958, I fully expecting them to return to the top of the National League standings. I was not particularly disappointed with the move to Atlanta in 1966 for a couple of reasons. First of all, Atlanta seemed much closer to my home town than Milwaukee, and the arrival of the Braves in Milwaukee allowed for the transfer of the Braves top minor league to Richmond, Virginia, where my cousins lived and where the top Brave farmhands would play for the next forty years.

I have only the vaguest recollection of the lawsuit Milwaukee filed against the Braves, but I do remember much better how widely the fan boycott of 1965 was covered by the press, even in the local Virginia newspapers. Consistent with “following” the Braves to Atlanta, I felt no affinity for the Brewers when they arrived in Milwaukee in 1970. Hence, my years as a Brewer fan only began when I joined the Marquette faculty in 1995. However, when I attended the special ceremony at County Stadium in 1997 honoring the 1957 World Champion Braves, I felt like I was paying tribute to a part of my childhood.

Congratulations to the 2012 Jenkins Competitors

Posted on Categories Legal Writing, Marquette Law School, Public1 Comment on Congratulations to the 2012 Jenkins Competitors

The Jenkins Honors Moot Court Competition is an appellate moot court competition for Marquette law students. Students are invited to participate based on their performance in the fall Appellate Writing and Advocacy course at the Law School.

Congratulations to the participants in the 2012 Jenkins Honors Moot Court Competition: 

  • Joseph Birdsall
  • Bailey Briggs
  • Clayton Britnell
  • Nicole Cameli
  • Mark Darnieder
  • Dana Gilman
  • Kristina Gordon
  • Steven Gruber
  • Nickolas Hagman
  • Anne Halverson
  • Matthew Hanson
  • Nicholas Hermann
  • Gabriel Houghton
  • Nathan Imfeld
  • Adam Koenings
  • Jenna Leslie
  • Jenna McConnell
  • Sarah McNutt
  • Matteo Reginato
  • Patrick Ritter
  • Brett Schnepper
  • Max Stephenson
  • Ariane Strombom
  • Megan Zabkowicz

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Felony Prosecutions Are Cheap

Posted on Categories Criminal Law & Process, PublicLeave a comment» on Felony Prosecutions Are Cheap

Earlier this week, the Bureau of Justice Statistics released the latest data from its periodic national surveys of prosecutors’ offices.  The report contains a lot of interesting information (albeit perhaps a bit dated — the survey was from 2007).

The number that struck me the most was $2,792 — what BJS reported as the average cost per felony prosecution in large jurisdictions.  This seems to me a remarkably low number in light of the very high stakes in a felony prosecution, both for the defendant and the community (incarceration costs, for instance, may average in the neighborhood of $30,000 per inmate per year).  Is $2,792 in prosecutorial costs really enough to ensure reliable decisionmaking at the charging and adjudication stages of a criminal case? For the cost of a family vacation to Disney World, we are deciding to send people to prison for five, ten, twenty years or more?

From the standpoint of private litigation practice anyway, this would be a rather small legal bill.  Admittedly, the comparison is problematic in many respects, but I don’t think it entirely irrelevant.

To be sure, the $2,792 both overstates and understates the costs in important ways.

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A Good Year for Marquette, But Not So Good for Legal Education

Posted on Categories Legal Education, PublicLeave a comment» on A Good Year for Marquette, But Not So Good for Legal Education

With the completion of the first full calendar year in Eckstein Hall, the establishment of the Law School as a premier center for public policy debates in Wisconsin, and the announcement of the Marquette Law School Poll, 2011 was a banner year for the Marquette Law School. The same, unfortunately, cannot be said for legal education generally.

Scandals regarding the accurate reporting of employment statistics and student LSAT scores have rocked a number of law schools, and a handful of disgruntled former law students have gone so far as to file suit against their own institutions on the grounds of false advertising. And for the past several months a series of unflattering articles discussing the problems confronting American legal education have appeared in the New York Times, Wall Street Journal, Washington Post, and other prominent periodicals.

An article in the December 26, 2011, National Law Journal entitled “The Year the Chickens Came Home to Roost” sums up what was by any account a bad year for legal education.

Its list of top ten stories of the year for legal education includes:

1. the misreporting of data to the U.S. News and World Report by Villanova and the University of Illinois

2. student lawsuits against the Thomas Jefferson Law School , New York Law School, and Thomas Cooley

3. pending U.S. Senate hearings on the adequacy of the ABA’s oversight of legal education during the past decade

4. a ten-percent decline in the number of LSAT takers and in applications to law school

5. new ABA-dictated rules that require more rigorous and more detailed employment data reporting on the part of law schools

6. the elimination of the four-tier approach to law school rankings by US News

7. deans resigning under pressure at the University of Baltimore, the University of Texas, and the University of Massachusetts-Dartmouth

8. the New York Times’ series of unflattering articles on legal education

9. the ABA proposal to eliminate from law school accreditation standards the traditional requirements that law schools recognize tenure for their faculties and make use of the LSAT in the admissions process

10. the introduction of “therapy dogs” for the purpose of reducing student stress at Yale, Arizona, Richmond, and other law schools.

Apparently the antitrust lawsuit filed on December 22 by the law school at Lincoln Memorial University after it was denied ABA provisional accreditation came too late to make the list.

A Visit From the Ghost of Jury Service Past

Posted on Categories Criminal Law & Process, Evidence, Federal Criminal Law & Process, Public, Seventh CircuitLeave a comment» on A Visit From the Ghost of Jury Service Past

What do you remember about November 29, 1995? That was the day when one of the jurors in Jesse Webster’s drug trafficking trial was out sick. The next day, with all twelve jurors again present, Webster was convicted. Many years later, Webster claimed in a petition for post-conviction relief that the eleven jurors who showed up on November 29 improperly proceeded with deliberations that day at the direction of a rogue bailiff.

In response to the petition, an investigator tracked down the jurors to ask them what they recalled about November 29, 1995. The interviews took place between 2001 and 2006. (Evidently, the investigation was not exactly a high priority.) The results, as the Seventh Circuit put it with considerable understatement in an opinion last week, were a “mixed bag”:

The first question was: “The court records show that on one day one of the jurors did not appear. Do you recall any such time when that might have occurred?” Seven jurors said they did not recall a juror being absent; four jurors said they did. Of the four who did remember a juror’s absence, three recalled that an alternate juror replaced the absent juror, a claim wholly unsubstantiated by court records. One of the four thought the juror was absent on the day before Thanksgiving; another claimed the juror was absent on the first two days of deliberations. Two correctly recalled that the absent juror was male; one said the absent juror was female. The second question was: “Do you recall being sent home early because of this juror’s absence?” The jurors answered either “no” or that they did not recall.

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Before the Sports Broadcasting Act: Professional Football Fifty Years Ago

Posted on Categories Labor & Employment Law, Media & Journalism, Public, Sports & LawLeave a comment» on Before the Sports Broadcasting Act: Professional Football Fifty Years Ago

Warning:  This essay contains pure, unadulterated nostalgia for the professional sports regime of the middle third of 20th century America.

I remember watching the 1960 World Series on television, but the first year that I really followed major league baseball was 1961, the year of Roger Maris and Mickey Mantle’s historic assault on Babe Ruth’s single season home run record. When the baseball season was over, my new-found enthusiasm for sports led me to become a pro football fan as well.

The 1961 season was the second in which the National Football League faced competition from the upstart American Football League. Although everyone I knew and everything I read viewed the NFL as the superior league, no one seemed to deny that the AFL was a major league. As with baseball, my two primary sources of sports information were the sports page of our daily newspaper, the Roanoke Times, and sports cards that came packaged with bubble gum, the purchase of which consumed most of my meager resources.

The local drug store from which I purchased most of my football cards carried the 1961 Fleer Pro Football set, which contained 220 player cards representing all 8 AFL teams and 14 NFL teams, including the expansion Minnesota Vikings. (There were only seven Viking cards, and the player pictured on each was shown in the uniform of his previous NFL team.) Cards came five to a pack with a piece of bubble gum. AFL and NFL cards were never mixed together, so you knew immediately whether you had gotten an AFL or a generally-perceived-to-be-much-more-valuable NFL pack.

For me, picking a favorite football team in 1961 was a real challenge. My home town in southwest Virginia was more than 300 miles from any city with a team; neither of my parents was a professional football fan, and my family, having always lived in rural Virginia and West Virginia, had no connection to any large city. In baseball, I had rooted for the New York Yankees and the Milwaukee Braves (the former because of Maris and Mantle and the latter because my youth league team was called the Braves).

However, these baseball connections did not automatically transfer into my becoming a New York Giants or a Green Bay Packer fan. (I now regret not picking up on the coolness of the Packers until I came to Marquette in 1995. I think the Green and Gold uniforms, which closely resembled those of the Narrows Green Wave, my town’s arch rival, eliminated them as a rooting interest.) I did root for the New York Titans (now Jets) in the AFL, but the AFL counted for very little among my circle—my friend Tommy Powell once offered to trade me his entire collection of AFL cards for my one Johnny Unitas card, but I refused the offer.

The ability to follow an NFL team in Pearisburg, Virginia, in 1961 was restricted in several ways. One was the limited number of television and radio options for following the NFL generally. The one local radio station did not carry any football games at all, and the options available on the one television station that we received were, needless to say, fairly restrictive.

Although the Sports Broadcasting Act was passed in the fall of 1961, the 1961 season was the last in which the previous broadcasting rules applied. Basically, because of judicial interpretations of the Sherman Act’s application to the NFL, the league was prohibited from negotiating a collective broadcasting contract with an individual television network (of which there were then three). As a result, individual teams negotiated with the networks or with independent stations for the rights to their home games. (Allowing the collective sale of broadcast rights was the major change brought about by the Sports Broadcasting Act.)

Throughout the 1950’s, most NFL teams sold their broadcast rights to CBS, but for the 1960 and 1961 seasons, the rights to the home games of the Colts and Steelers were acquired by NBC. In contrast, the AFL games had been sold as a block to ABC shortly after the league’s founding in 1960, apparently on the assumption that the Sherman Act did not apply to the AFL in the same way it applied to the NFL. (Presumably, this was rooted in the notion, given the nature of its founding where teams were started from scratch, that the AFL constituted a single economic entity whereas the NFL was a combination of teams, most of whose economic existence predated their membership in the NFL.

Unfortunately, because of the location of our house (and probably because of the technological limitations of our television antenna which had been purchased in 1955 or 1956), we could only pick up the signal of one television station, WSLS-TV in Roanoke, which was an NBC affiliate. Consequently, the only games I could watch featured either the Colts or the Steelers and whomever they might be playing. (The two teams, which were in different divisions, did not play each other in 1961.) Some people in the town with a better location (or a better antenna) could pick up a CBS station, but no one got ABC.

The other factor affecting the object of my fandom was the enormous popularity of the Baltimore Colts in southwestern Virginia. As far as I could tell, all of the pro football fans in my home town rooted either for the Colts or the Washington Redskins (which was the closest team.) Older adults could probably remember when the Redskins were a top team, but in the recent past they had been dreadful. (Just ask Professor Kossow, who even then was a season ticket holder.) In 1960, the Redskins were 1-9-2, and the year before that, which to me in 1961 seemed like ancient history, they were only 3-9-0. It was also clear to me that most Colts fans were of the view that only life’s losers rooted for the Redskins.

In contrast, the late 1950’s and early 1960’s were the Golden Age of the Baltimore Colts. The Colts had won NFL championships in 1958 and 1959, and the names of their star players—Johnny Unitas, Lenny Moore, Kenosha’s Alan Ameche, Raymond Berry, Gino Marchetti, Eugene “Big Daddy” Lipscomb, L. G. “Long Gone” Dupre, and Art “Fatso” Donovan—were as well known in the Mid-Atlantic region as the Lombardi Packers would be in 1960’s (and later) Wisconsin. The Colts appeared to be on their way to a third straight championship in 1960 until they mysteriously lost their last four games of the season, and were replaced as Western Division champions by Vince Lombardi’s upstart Green Bay Packers, which, before Lombardi’s arrival, had spent most of the 1950’s competing with the Redskins for the title of “sad sack” of the NFL.

So I began the season unsure of which team I liked best. My next door neighbor, Tom Givens, convinced me that I should be rooting for the Redskins, so I started off trying to be a Redskins fan, but after the still all-white team started the season 0-9-0 while being outscored 245-68, I sort of gave up on them. As it turned out, it didn’t get much better for the Skins, who finished the season 1-12-1 with a tie and a final game victory over the Dallas Cowboys, which were in their second year of existence.

Watching the Steelers on television on a regular basis made me sort of a Steelers fan, and they did have some very cool players: halfback Tom “the Bomb” Tracy (who specialized in the halfback option pass, although he only rarely completed his tosses), fullback John Henry Johnson (presumably named after the legendary railroad worker who was a local hero where I grew up), and quarterback Bobby Layne, whom the announcers treated like some revered elderly figure and who kicked extra points, but not field goals.

However, the Steelers didn’t do that well either. They lost their first four games—only one of which was televised–before finally getting their first win of the season, a shutout of the Redskins. (Who else?) Plus, Bobby Layne was injured and missed the middle half of the season, and even though the Steelers won four of their next five games after the 0-4 start, they dropped three of their last five to finish 6-8-0. By mid-season, I was basically a Colts fan.

But the Colts also had problems. The shortcomings that had plagued the team at the end of the 1960 season, which were probably personnel related, continued in the early part of the 1961 season. After opening with a narrow 27-24 victory over the Los Angeles Rams, the Colts lost four of their next six games, including losses to the Packers and Lions, which along with the Colts had been the preseason favorites in the NFL West, and two defeats at the hands of the Chicago Bears in the space of 15 days.

At mid-season, the Packers were in first place in the West with a 6-1-1 record while the Colts were in fifth place, trailing not just the Packers, but also the surprising Bears, the 49ers, and the Lions.

The Colts appeared to be on the verge of rallying in the second half of the season when they pasted the Packers, 45-21, in a November 8 game in Baltimore. Unfortunately, the Colts dropped their next game to expansion Minnesota Vikings, by an embarrassing score of 28-20. This loss left them three games behind the Packers (who that same day bested the Bears 31-28 in Wrigley Field) with only five games to play.

Although the Colts won four of their last five games, the Packers continued to win and actually clinched the West Division championship at the end of Week 12, two weeks before the end of the regular season.

The race in the NFL East Division was much closer, and basically featured a three-way contest among the defending champion Philadelphia Eagles, the New York Giants, and the Cleveland Browns that lasted until the final day of the regular season. The Eagles either held or shared first place for 10 of the first 12 weeks of the season, but at the end of Week 12, the Eagles and Giants were tied for first with records of 9-3-0, with Cleveland a game behind at 8-4-0.

On Sunday, December 10, the Division leaders squared off against each other in Philadelphia. The Eagles led 10-7 after the first quarter, but the Giants then replaced starting quarterback Y.A. Tittle with his aging back-up Charlie Conerly. Conerly rallied his teammates, throwing three touchdown passes and no interceptions as the Giants held off their rivals to the south and came away with a 24-20 victory. This put the Giants one game up on the Eagles with one game to go, assuring them of at least a tie for first place. That same day, the Browns were eliminated by a close 17-14 loss to the Bears in Chicago in a game in which the Browns had led 14-0 in the 4th quarter before faltering.

To retain the East Division title, Philadelphia had to defeat the Lions in Detroit the next weekend and hope that Cleveland could travel to New York and win out over the Giants. In that case, the two teams would play a 15th game to determine the division champion.

The Eagles defeated the Lions, but it was for naught as the Giants and Browns battled to 7-7 in Yankee Stadium. With a record of 10-3-1, the Giants edged the 10-4-0 Eagles by a half game.

Two weeks later, on New Year’s Eve, the Packers and Giants met in Green Bay for the 1961 NFL Championship. Although the Packers had played in the 1960 championship game, their last NFL title had come in 1944, when they bested the Giants 14-7 in New York’s Polo Grounds. The Giants were not strangers to the title game either; in fact, although their last NFL title had come in 1956 when they trounced the Chicago Bears, 47-7, Gotham’s team was playing in the championship tilt for the fourth time in six years.

The 1961 championship was played in 17-degree weather with a 10-mph wind in the Packers still new stadium, which had opened in 1957. Known originally as “City Stadium” or “New City Stadium,” the structure would not be renamed Lambeau Field until 1965. The game was televised on NBC, which held the exclusive rights to broadcast the NFL championship game from 1955 through 1963.

The game itself was a complete anti-climax. After a scoreless 1st quarter, Packer halfback Paul Hornung, the NFL’s leading scorer, ran the ball over the goal line from six yards out. Quarterback Bart Starr then tossed TD passes to wide receiver Boyd Dowler and tight end Ron Kramer. When the next Packer drive stalled at the 10-yard line, Hornung finished off the 24 point quarter with a 17-yard field goal. (In 1961, NFL goal posts were positioned on the goal line, hence the 17 yard field goal.)

In the third quarter it was more of the same, with Horning kicking a 22 yard field goal, and Starr tossing another TD pass to Ron Kramer. The only scoring in the final quarter was a third field goal by Hornung, this one from 19 yards out, giving him a total of 19 points for the game (one touchdown, four extra points, and three field goals)

For the game, the Packers outrushed the Giants 181 yards to 31, with Hornung and Jim Taylor leading the way with 89 and 69 yards, respectively. Starr passed for 164 yards and three touchdowns, compared to a combined 119 yards for Tittle and Conerly. Ron Kramer led the Packers in receptions with four (two for TDs), and both Dowler and Hornung pulled in three catches. Popular wide receiver Max McGee was shut out in the receiving department, but no one really noticed.

The Packer defense was particularly effective that day, as the 37-0 score suggests. In addition to holding the Giant running backs to 31 yards on 14 carries, the defense sacked Tittle twice for losses of 20 yards and intercepted him four times. As in the earlier Giant-Philadelphia game Charlie Conerly was brought in off the bench when Tittle faltered, but in the championship game there would be no magical comeback, as Conerly was able to complete only four of eight passes for a paltry 54 yards.

The names of the starters for the Packers in the 1961 NFL championship game still resonate deeply for many Wisconsin sports fans. The offensive backfield that day included Bart Starr (QB), Paul Hornung (HB), Jim Taylor (FB), and Boyd Dowler (FL). The ends were Max McGee and Ron Kramer, and the offensive line included center Jim Ringo, guards Fuzzy Thurston and Forest Gregg, and tackles Norm Masters and Bob Skoronski. (Starting guard Jerry Kramer missed the game with an injury, forcing Forest Gregg to move to guard from his normal starting tackle position.)

The Packer defensive line was made up of defensive ends Willie Davis and Bob Quinlan and defensive tackles Henry Jordan and Dave Hanner. The starting linebackers were Bill Forester, Dan Currie, and middle linebacker Ray Nitschke, while the defensive backfield included cornerbacks Hank Gremminger and Jess Whittenton, strong safety John Symank, and free safety Willie Wood. Wide receiver Boyd Dowler handled the punting, and Hornung did the place-kicking.

The 1961 NFL season did not actually end, however, until January 14, 1962, the date of the post-season all-star game officially known as the East-West Pro Bowl game. It too was televised by NBC.

I can still remember listening to the game sitting on the floor in our den. I say listening because some time after Christmas 1961, a tube blew out in our television set, a fairly common occurrence in the pre-printed circuit era of electronics. Although the sound continued to work, the screen remained completely blank, effectively turning the television into a radio. When this happened, my parents invariably treated it as a kind of divine signal that my brother and I needed to take a break from TV, and they usually waited a few weeks before getting the tube replaced.

Consequently, I was forced to listen to the game and imagine in my mind what turned out to be the most exciting professional football all-star game of all time. The West led for most of the game, jumping out to a 14-3 lead in the first quarter. However, the East regrouped and managed to narrow the gap to 17-10 at the half. At the end of the third quarter, the West still led, 24-16, as both teams scored touchdowns, but the East’s extra point attempt was blocked by Green Bay Packer (and University of Virginia graduate) Henry Jordan.

However, the East offense caught fire in the final quarter, and put a quick 14 points on the scoreboard when Title passed two yards to his team Alex Webster for one touchdown and fullback Jimmy Brown ran 70 yards for another.

With the East now in the lead, 30-24, the West offense continued to sputter, and with less than two minutes to go in the game, the East had the ball with the intention of running out the clock with a series of rushing plays. However, a crushing tackle by Chicago Bear linebacker Bill George caused an uncharacteristic fumble by Jim Brown, which was recovered by George on the East’s 42 yard line, providing the West with one final shot at winning the game.

West quarterback Johnny Unitas quickly completed a pass of 14 yards to tight end Mike Ditka of the Bears, and then on the next play, one of 15 yards to his Baltimore Colt teammate Lenny Moore. However, a second pass to Moore fell incomplete, and with only seconds remaining, the West had the ball on the twelve-yard line. On the game’s final play, Unitas hit Los Angeles Ram halfback Jon Arnett in the back of the end zone for a game tying six points, and with time expired the West converted the extra point for the victory.

In spite of his fumble, Jimmy Brown was named the player of the game while top lineman honors went to Henry Jordan.

It was a great way to end a great season. We talked about it the next day in my Fourth Grade class, and a half century later, I still remember the 1961 season.

 

Holiday Reading List

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Exams are over, and we have a few weeks before classes resume. I belong to a book club, and we recently voted in our books for the following year. I’m planning to get a head start on some of those books over the holidays. Here are the books at the top of my current reading list. What are some books you’re looking forward to reading?

1. Cleopatra: A Life, by Stacey Schiff. Schiff is a Pulitzer Prize-winning biographer. This biography is a great book to read before or after you visit the Milwaukee Public Museum’s current exhibition, Cleopatra: The Search for the Last Queen of Egypt. The exhibition features 150 pieces and will be in Milwaukee until April.

2. State of Wonder, by Ann Patchett. This novel is about a researcher who travels to the Amazon jungle in search of a colleague.

3. The Immortal Life of Henrietta Lacks, by Rebecca Skloot. This is the true story of Henrietta Lacks, a poor African-American tobacco farmer. Her cancer cells were taken without her knowledge and used in numerous medical research studies.

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