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Of Forests & Trees:
Musings on the Commerce Clause, the Affordable Care Act, & Baseball by the Bay

The Road Lawyer

Article by The Road Lawyer Recurring Author

Posted 12/07/2016

Many say it’s our most beautiful city, that the Golden Gate Bridge tops even the Brooklyn Bridge as a work of engineering, architecture and art, that one experiences more wonders in Golden Gate Park than in Central Park.

Mark Twain may or may not have said, “The coldest I ever been was the Summer I spent in San Francisco.” No place tops The Bay Area for eerie and oppressive fogs and squirrely weather in general. Ah! Those serene sunsets.

New Orleans may be another city with cable cars that run, but SFCA is the only one that deems 30 degree incline angle streets and trolley lines traversable. Memorable movie chase scenes are filmed here.

Back in February, the city honored crooner Tony Bennett for leaving his heart there fifty years ago, making all more beloved. A half century ago, Scott McKenzie sang to a new generation of what to do, “If you come to San Francisco.”

“The two most respected citizens of this wonderful, crazy city are Nancy Pelosi and Patrick Willis,” an ex-pat local friend told The Road Lawyer [“TRL”], as we arrived a few days early for little legal business the first week in July. “It was Jerry Rice back in the 1990s, but it’s Patrick’s time now.”

“And don’t be surprised Sunday if you see almost as many No. 22 Giant jerseys as No. 24s. This city hasn’t forgotten Will’s sweet swing.”

Of Will Clark’s time here, no city has combined a tragic earthquake with an equivalent baseball disaster the way San Francisco did in the 1989 World Series. The blue collar rabble from Oakland crushed in the Giants in four straight, as the quaking earth reduced the Embarcadero Expressway to concrete lasagna.

TRL landed at SFO in the wake of a national legal earthquake that last Thursday in June — with thoughts of Obamacare, the Commerce Clause, and baseball.

What Pages Of History?

“A page of history is worth a volume of logic.” 1 But what page? 1994’s? When Big Baseball emerged from the 1994 strike season with a commercial vengeance? Or was it 1992 and the opening of Oriole Park at Camden Yards, now called The Ballpark That Forever Changed Baseball.2

Baseball still enjoys its antitrust exemption, on paper at least.3 The proper page of history may be one when it all began, the one Holmes penned May 29, 1922, seeing professional baseball foremost as a local “exhibition.” 4 “[T]he fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business.” 5

“[T]he transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money would not be called trade or commerce in the commonly accepted use of those words.” 6 In 1922, what was once known as baseball’s reserve clause, was “not an interference with commerce among the States.” 7

Justice Alito’s Take On Federal Baseball Club

Three years ago Justice Samuel A. Alito, Jr., told the story of Federal Baseball Club in a sympathetic lecture, concluding:

“In law, the view of baseball as a local affair prevailed. The argument that baseball was big interstate business lost. But the real losers in the case were local people [, t]he . . . some 600 citizens of Baltimore” 8 who owned the upstart Federal Baseball League team that Big Baseball ran out of business. “For the people of Baltimore who backed the team, baseball, like politics, was local.” 9

Justice Alito saw that the local people lost and that the “big interstate business” of baseball was the culprit. One would have thought he’d also have seen the makeup of the “big interstate business” professional baseball exhibition market, viz., the players, the competing leagues and teams (including the Federal Baseball Club of Baltimore, Inc.), the fans, the multiple local venues in multiple states, advertisers on outfield walls, radio and in print media, the vendors in the stands, and no doubt more.10 And that as such the Congress could regulate the whole of this aggregated market under the Commerce Clause, and that the Sherman Act was just such a constitutionally authorized regulatory effort.

And that he would have seen the implications of that view for the meaning and application of the Commerce Clause in future cases involving markets so big that — as in 1922 — some might be tempted to focus arbitrarily on certain trees, and miss the forest.

The Commerce Clause As Text

In relevant part, the Commerce Clause provides that “[t]he Congress shall have the Power . . . To regulate Commerce with foreign Nations, and among the several States, . . . .” U. S. Const., Art. 1, § 8, cl. 3. It so read on June 28, 2012, and it so read on May 29, 1922. No mention of the “mere incident” or the “essential thing.” No hint that “Commerce” should be seen as anything other than the economic enterprise that it is. Remember, Adam Smith’s The Wealth Of Nations was published in 1776.

Nothing in the text of the Commerce Clause tells Congress it must focus on persons, nor does it limit the regulatory authority of Congress to particular classes of persons or other market participants. Nothing in the text limits that authority to discrete activities, nor does the text exclude inactivity or omissions affecting commerce where made by persons or classes of persons or entities. Nothing in the text excludes regulation of the merely reasonably foreseeable aspects of the commercial engine that is inherently an ongoing enterprise.11 Commerce is not something that is but rather is always a continuous process of becoming.

Every proffered reasoned elaboration of the Commerce Clause, by James Madison or John Marshall or John Roberts or Sam Alito, must withstand scrutiny under the text.12

Every judicial generalization or policy preference regarding the Commerce Clause must in addition (a) withstand scrutiny under Holmes’ wise insight that “[g]eneral propositions do not decide concrete cases,” 13 and (b) answer the charge that it is but the expounding Justice’s overt or sub silentio value judgment or personal political preference that cannot be justified by a fair reading of the text.

Back To Justice Alito and Federal Baseball Club

“In 1922, the Court saw the Commerce Clause as a limited power that did not extend to all ‘economic . . . activities that have a substantial effect on interstate commerce.’ This approach forced the court to draw fine — some would say arbitrary — lines.” 14

Assume arguendo that there is sense in the notion of the Commerce Clause “as a limited power” that should be again reigned in. Given what Justice Alito said about Federal Baseball Club in 2009, there would seem no way he (or any other Justice) could miss the practical reality that a case centered on congressional regulation of a “big interstate business” was not the occasion for a defensible reigning in. Nor any way such a view might pass muster under any of the three scrutinies just stated.

Justice Alito’s words and sympathies bore bitter fruit 90 years after Federal Baseball Club. Without Holmes’ excuse for not knowing the relevant legislative facts (after all, Holmes never went to a baseball game), The Five,15 including Chief Justice John G. Roberts, Jr., saw but a lone class of trees, and missed a forest far bigger than a mere “big interstate business,” and with infinitely more genre and species of trees.

On June 28, 2012, The Five isolated — arbitrarily, formalistically, and so charactaristically — the act from the omission, “activity” from “inactivity,” 17 the completed effect from the merely reasonably foreseeable. This view cannot stand under any of the three scrutinies. Yet, Chief Justice Roberts persists, though he concedes a fourth level deficiency in his argument, viz., “[t]o the economist . . . there is no difference between activity and inactivity; both have economic effects on commerce.” 18

How could The Five not know (1) that in but a moment any lawyer can conjure dozens of contexts in which acts and omissions are equally actionable when one or the other causes damaging effects, and (2) that good economists19 are every bit as practical as good lawyers, if not more so.

There Are None So Blind As Those Who Will Not See

How could The Five not see that those who may be “taxed” 20 via the individual mandate are but one of many species of “trees” whose acts and omissions make up “the forest” and drive the commercial engine within the legally relevant market?

Or, fail to see that the relevant legislative facts include that which no one denies, viz., that “[c]ollectively, Americans spent $2.5 trillion on health care in 2009, accounting for 17.6% of our Nation’s economy”? 21 And that the economic emergence and effects (identifiable and foreseeable) of this massive commercial market are the relevant “page[s] of history”?

Or, fail to see that health care consumers are but one of many categories of trees (subsuming all potential individual mandatees) whose acts and omissions make up the forest and the economic engine that drives the legally relevant market? Or, that the operative words of Art. 1, § 8, cl. 3, are “regulate Commerce” with no hint those words should be grudgingly construed and limited to persons or entities or sub-categories of commerce?

Or, fail to see that this aggregated forest with all of its genre and species of trees — with a magnitude of $2.5 trillion a year, “accounting for 17.6% of our Nation’s economy” — is within the phrase “Commerce . . . among the several States,” and are thus the relevant market to which the text of the Commerce Clause, augmented by the Necessary and Proper Clause, must be applied?

Paraphrasing and plagiarizing what former Giants manager Leo Durocher once said of umpires, our problem is not with the integrity of The Five, but with their eyesight.

Baseball By The Bay

A local exhibition of baseball took place at AT&T Park f/k/a Pac Bell Park in San Francisco on Sunday afternoon, July 1, 2012, that may be worthy of note and reflection.

The accidental tourist happening by would have thought it business as usual in the reefer capitol of the country. Happy people everywhere high with anticipation. Colorful dress. A happening was about to happen.

Understand that all whose acts and omissions have an economic effect on the professional baseball exhibition market dream of playing in October. The dream is seen a bit more possible in San Francisco since the Giants won the World Series in 2010. That early July Sunday afternoon saw a reunion of the 2002 Giants who came up a game short in an all California World Series with the American League’s Angels.

Bright pumpkin orange and dark satanic black were everywhere within blocks of the corner of King and Second Streets that Sunday afternoon. Those not knowing the dress Giants market participants wear would have thought of October all right. Such colors are normally reserved for Halloween.

Any doubts about the nature of the scent of magic and witchcraft that filled the air were laid to rest in the bottom of the ninth when the San Francisco swirls caught Angel Pagan’s high fly ball to right and eased it behind poor Jay Bruce’s outstretched glove. Giants 4, Reds 3! The party was on.

AT&T Park

The Polo Grounds once graced the corner of West 155th Street and Eighth Avenue in Upper Manhattan. Giants labored there from 1883 to 1957. Commerce called. The Giants and their inter-borough rival Dodgers crossed many state lines, found gold in California and invited others to join them.

Forty years in cold churly, multi-sport Candlestick Park (Patrick Willis and the ‘49ers still play there) were punctuated by the last two 1989 World Series games played there after the Loma Prieta earthquake of October 17, as the players were about to take the field for Game Three.

AT&T Park lies in the industrial waterfront area known as China Basin in the up and coming neighborhoods of South Beach and Mission Bay. Reports are that it cost $357 million to build n/k/a $482 million in today’s dollars.

Engineered so that wind levels are about half those in “The Stick” (tell that to Jay Bruce), regulars report cold summer fog and winter jackets are still seen at Giants games in July, despite the higher average temperatures. TRL appreciated the nice 65° game time thermometer reading, knowing it was almost certainly above 95° at Trustmark Park back home.

AT&T Park seats about 42,000 with SRO room for another 1500. It opened for local exhibitions of baseball for the Millenium Season. 68 luxury suites. 5200 club seats on the club level, with 1500 more at field level behind home plate. Big bucks are spent here. TRL’s field box seat far beyond the foul pole down the third base line cost $66. Two beers and a dog added another $25.

Most prominent at AT&T is the right field wall, 24 feet high in honor of Willie Mays who played here long after his Say Hey days, but still wore No. 24. Behind Levi’s Landing in right field is China Basin aka McCovey Cove and in which over 90 “splash” HRs have landed, 35 hit by bulked up Barry Bonds. Texas Rangers’ first baseman Mitch Moreland of Amory via State and Starkville is one of two AL players to hit a “splash” HR; the other David (Big Papi) Ortiz.

A dozen or more kayaks and inflated rafts dotted McCovey Cove with fish nets ready, hoping for “splash” HRs that have been a lot less plentiful since the Giants declined to resign Bonds for the 2008 season. To the north was a marina, home to hundreds of moored sailing craft, with the obligatory blue and white colors.

Fans get to Giant games via the usual public and private means of transportation, but one AT&T means of arrival is unique. Ferries tie up at a pier out behind center field. Golden Gate Ferry navigates past Alcatraz from and to Sausalito and Larkspur on game days, and embark for return voyages 30 minutes after the last out. Those on the Marin County side of The Bay (less and except those who are guests of the state at bayside San Quentin) have a scenic ride to the ball park. TRL’s son and family were ferried to and fro that Sunday afternoon.

The Muni delivers fans to the T intersection of Second and King aka Willie Mays Plaza, even closer to the front door than at Safeco Field in Seattle, and much closer than any of the other ballparks TRL has found in his road lawyering over the years.

A Game Played By Southern Boys

Everyone knows Willie Mays is from Fairfield, Alabama in the Birmingham area, while Willie McCovey is from down near the Coast in Mobile. Not one of the nine Giants who took the field for a local exhibition of baseball that Sunday afternoon came from north of the Mason – Dixon Line.22

NL All Star Catcher Buster Posey is from just outside Albany, Georgia, and still looks like a teenager. 1B Brandon Belt aka “Baby Giraffe” is from Texas, with two “splash” HRs to his credit. 2B Ryan Theriot is from LSU. SS Brandon Crawford played for UCLA.

Starting pitcher Ryan Vogelsong hales from Charlotte, NC. Others in the Giants’ starting rotation are Matt Cain of Dothan, Alabama, who threw a perfect game on June 13, Madison Bumgarner from Hickory, NC, and Barry Zito from Las Vegas. The odd duck is Tim Lincecum from Belleview, WA.

Then there was the ever-increasing demographic phenomenon (on all MLB teams, including those without so many players from the Old South) of the boys from further south and whose first language is not English. The Giants tradition includes Orlando Cepeda from Puerto Rico and Juan Marichal from the Dominican Republic.

Starting on that first Sunday in July were 3B Pablo (“Kung Fu Panda”) Sandoval and RF Gregor Blanco, both born and raised in Venezuela. Outfielders Melkey Cabrera and Joaquim Arias, and relief pitcher Santiago Casilla grew up in the Dominican Republic. CF Angel Pagan and reliever Javier Lopez are from Puerto Rico.

In fairness, two of The Five had the insight and eyesight to see — and the courage to say — that “[t]he history of the United States is in part made of the stories, talents and lasting contributions of those who crossed oceans and deserts to come here.” 23 And to add that “the sound exercise of national power of immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.” 24

The visiting Cincinnati Reds were not that different. Zach Cozart from Memphis and Ole Miss was one of many Southern boys on the field at AT&T Park on July 1. SS Miguel Cairo is from Venezuela. Two relievers who appeared hale from the Dominican Republic. The only yankee was 3B Todd Frazier (whose two run HR had Cincinnati ahead for a while) from New Jersey. Star first baseman Joe Votto (who had a sore left knee did not play) is from Toronto.

If the face of baseball has changed demographically from what it once was, it has changed even more commercially. The new ball parks starting with Baltimore’s Camden Yards and high priced sky boxes are but one of many new clumps of trees that have emerged within Big Baseball and the massive market of commerce among the several States that we now know so well.

AT&T’s Culinary Offerings

For a decade TRL has reviewed the beer and dogs, peanuts and crackerjacks at ballparks across the Country. As with so much else, the Internet has made things easier and more readily accessible. To learn more than you could possibly want to know of the culinary offerings at AT&T Park, click here.

Still TRL dutifully walked the Promenade Level concourse and the View Level aka upper deck. A few observations are appropriate.

Beer (bottled and draft) flows as freely as at any park where baseball is played, but it’s not so furiously marketed at AT&T. A couple of modest Coors Light facade billboards visible from most everywhere, and a few Budweiser stands within the concourse are about all.

There were long lines at most concession stands, particularly in the early innings. Here’s another sense in which AT&T is fan friendly. You may have to wait most of an inning to feed your face, but there are TV monitors everywhere. The only time you have to miss a pitch is when you place your order and pay for it. There’s even audio play by play in the restrooms!

Not surprising in this jumping off point to Napa and Sonoma Valleys, wine is readily available. Three California Wine Bars, one on the concourse behind third base, the other behind deep right field. Not bad offerings. Coppolla, Clos du Bos, Kenwood, Ravenswood, and a few more. TRL noticed not a single patron at any, on 3rd and 6th inning inspections, nor were sitings made in the stands. A local exhibition of baseball was being presented that Sunday afternoon, not a wine tasting.

One hard liquor stand on the concourse far behind the home plate area was almost as lonely.

No set of dining options in SFCA would be complete without Chinese food. But Edsel Ford Fong’s!?

Go to the Internet and check the link above.

Lots of Americans at AT&T That Afternoon

Like so many of the “new” ballparks, AT&T is kid friendly. “My First Game” T-shirts seemed a hot seller. A veritable children’s playground and recreation park lies on the concourse deep behind the outfield. Trusting parents can turn their children loose with little risk the kids will know there’s a ball game on.

One moment sticks in TRL’s mind and memory from that Sunday afternoon above all. The 42,000 at AT&T Park began the Seventh Inning Stretch with a “God Bless America” sung with a gusto matching the fervent renderings TRL has experienced in Rick Perry country — Minute Maid Park in Houston and Rangers Ballpark in Arlington — to Safeco Park in left leaning Seattle, and to those venues more directly touched by the malicious attacks of 9/11, the old Shea Stadium in Flushing, KeySpan Park on Coney Island and Nationals Park at the Navy Yard in D. C.

We were all Americans in that moment that was followed by a joyous “Take Me Out To The Ball Game.”

An Event Plucked Out Of The Future

The pumpkin orange and satanic black clad home crowd was really into the game. Dads and kids alike wore jerseys featuring their favorites, including a few for “Fear the Beard!” Brian Wilson, out for the season with his second “Tommy John surgery.”

Several Mays’ No. 24s, a McCovey No. 44, an Orlando Cepeda No. 30, and, yes, two with the back of the jersey reading “CLARK” above a big bold orange 22.

The Giants took an early lead one run lead. Then Frazier’s two run HR put the Reds up. The Giants pulled back ahead 3-2 in the bottom of the 7th, but relievers Javier Lopez and Santiago Casilla couldn’t hold it in the top of the 9th. The score was tied 3-3 when the Giants came bat. Two quick outs.

Buster Posey swung late at a two strike pitch and served a double inside the right field foul line. Kung Fu Panda was intentionally walked.

Angel Pagan battled Reds’ reliever Jose Arrendondo until . . . .

A half century ago, John Updike had the sight to see that “there will always lurk, around the corner in a pocket of our knowledge of the odds, an indefensible hope, and this was one of the times, which you now and then find in sports, when a density of expectation hangs in the air and plucks an event out of the future.” 25

TRL has reported above that the San Francisco swirls caught Angel Pagan’s high fly ball to right and eased it behind poor Jay Bruce’s outstretched glove. Giants 4, Reds 3! Giants win! Giants win!

It wasn’t pretty. Nine times out of 10 Bruce would have caught the ball, even with Bay Area winds to contend with. It wasn’t historic, as was Ted Williams’ last at bat, that Updike so poetically memorialized. It didn’t cinch a pennant; the 2012 Season was barely half over. The Giants have much work to do, to play baseball in October.

Rather, it was a lot like what happened at the Supreme Court on Thursday morning, June 28, 2012. The Five were rock solid in their refusal to see beyond the trees they had so arbitrarily identified and so indefensibly isolated from the relevant market of “Commerce . . . among the several States,” leaving many with only an “indefensible hope” as the clock struck 10 A.M.

Yet in the courthouse as at the ballpark, there are those times, “when a density of expectation hangs in the air and plucks an event out of the future.”


  1. N. Y. Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).
  2. Fittingly, Camden Yards was the first of almost a dozen of the “new” traditional looking ball parks that TRL visited and reviewed in this Newsletter.
  3. See Flood v. Kuhn, 407 U.S. 258 (1972).
  4. Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, 259 U.S. 200, 208, 209 (1922).
  5. Id., at 209.
  6. Id.
  7. Id.
  8. Alito, “The Origin of the Baseball Antitrust Exemption: Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs,” 34 Journal of Supreme Court History 183, 193 (2009).
  9. Id.
  10. Television is certainly a player today in the “big interstate business” professional baseball exhibition market, but are Stub Hub and Ticketmaster?
  11. The Federal Employers Liability Act, 45 U.S.C. §§ 51, et seq., would have been no less constitutional if it had been enacted before the first railroad worker was mangled by two colliding freight cars, or even before the first railroad was built in this Country.
  12. Prof. Ronald Dworkin takes the idea of a chain novel and provides an insightful metaphor. Dworkin, Law’s Empire (1986). The legal text — the Commerce Clause — is the title. Each case decided under the Commerce Clause is seen as successive chapters in the chain novel. Each new case must strive for principled consistency with prior cases (qua stare decisis) but should independently be scrutinized for consistency with the text of the Commerce Clause. Reliance interests complicate the metaphor in the instance of Big Baseball’s antitrust exemption, given the line of cases from Federal Baseball Club to Flood v. Kuhn. The text — the title of the chain novel — should trump where there are no such conflicting interests present.
  13. Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting). A practical understanding of the law application phase of judging, e.g., Boardman v. USAA, 470 So.2d 1024, 1029-30 (Miss. 1985); cf. Fed. R. Ev. 702(d), makes clear the impossibility of a credible adjudication where all that is brought to bear on the facts are polemics stated at the 30,000 foot level of generalization.
  14. Alito, supra, 34 Journal of Supreme Court History at 193.
  15. The Five include Justices Antonin G. Scalia, Anthony M. Kennedy and Clarence Thomas, in addition to the Chief Justice and Justice Alito.
  16. National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (June 28, 2012)
  17. National Federation, 132 S.Ct. at 2587 (per Chief Justice Roberts).
  18. Id. at 2589.
  19. With respect, it is bizarre that Chief Justice Roberts would call economists “metaphysical philosophers” and “visionaries,” dichotomizing them from the Framers of the Constitution he labels “practical statesmen” and “practical men.” Id. Most thoughtful persons would find all four labels fit for both the Framers, good economists, and good lawyers as well.
  20. National Federation, 132 S.Ct. at 2593-2600 (per Chief Justice Roberts); id. at 2642 (per Justice Ginsburg, concurring).
  21. National Federation, 132 S.Ct. at 2627 (per Justice Ginsburg, concurring).
  22. Holmes had an up close, personal and thrice near fatal knowledge of those from below the Mason – Dixon Line. See, e.g., his justly famous address on Memorial Day, 1884, of which Shelby Foote remarked, re the standard of “the ‘few appropriate remarks’ Lincoln had uttered at Gettysburg . . . , [that] one at least came close at Keene, New Hampshire, in 1884, . . . .” 3 Foote, The Civil War, A Narrative 1046 (1974). One can only wonder how Holmes’ 1922 page of history might have been written had he known a bit more about the commercial enterprise of baseball. Compare, e.g., Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting); Hammer v. Dagenhart, 247 U.S. 251 (1918) (Holmes, J., dissenting); Adkins v. Children’s Hospital, 261 U.S. 525 (1923) (Holmes, J., dissenting); see also, Plant v. Wood, 176 Mass. 492, 57 N.E. 1011 (1900) (Holmes, J., dissenting); and Vegelahn v. Gunter, 167 Mass. 92, 44 N.E. 1077 (1896) (Holmes, J., dissenting). In Federal Baseball Club, arguably Holmes was respecting the stare decisis effects of U. S. v. E. C. Knight Co., 156 U.S. 1 , 17-18 (1895) and Hooper v. California, 155 U. S. 648 (1895); see also, Holmes’ own dissenting opinion in National Securities Co. v. U. S., 193 U.S. 197 (1904).
  23. Arizona v. United States, 2012 WL 2368661, *18 (June 25, 2012) (Kennedy, J., joined by Chief Justice Roberts and three others). Baseball fans and other sociologists wonder how some future David Halberstam will write “of the stories, talents and lasting contributions” and friendships on today’s Major League Baseball teams. See Halberstam, The Teammates: A Portrait of a Friendship (2003). And as a footnote to a footnote, AT&T’s bullpens are down the base lines adjacent to right and left field foul lines, so that the relievers sit in the dugouts and enjoy the regular camaraderie with rest of the guys.
  24. Id. It is a sad irony that the three dissenters in Arizona are surely aware that, at some level of the ancestry of each, prejudice and discrimination was experienced not unlike that encountered by today’s Spanish speaking illegal immigrants whose only sin in the sight of God is their naive faith that this Nation still means it when it says to the world “Give me your tired, your poor, your huddled masses yearning to breathe free,” as per Emma Lazarus’ famous poem, “The New Colossus,” graven within the pedestal on which the Statue of Liberty stands.
  25. Updike, “Hub Fans Bid Kid Adieu,” The New Yorker (October 20, 1960).