In previous columns, I have provided updates concerning the status and evolution of particular doctrines relevant to commercial litigation and the effect of recent decisions in those areas. Rather than address another recent development in a particular area of law, in this column I want to pose a question: What, exactly, are we doing? Litigators, including commercial litigators, pursue their clients’ rights in areas where they have been harmed or accused. We seek, within the bounds of the ethics rules, to vigorously advocate for our clients and to secure just and fair outcomes. Right? The question becomes more complicated, though, when the law does not quite fit. How are we to go about our business then?

Take for instance the curious case of Jim Thorpe, and the U.S. Court of Appeals for the Third Circuit’s recent experience with his final resting place. As is well known, Thorpe was a premier athlete of the early 20th century, dominating in football, baseball and Olympic competition. Thorpe was also of American Indian descent and was born in Oklahoma. Upon his death in 1953, his third wife, Patricia, first arranged for a traditional American Indian burial in Oklahoma, but then arranged with a municipality to be newly formed in eastern Pennsylvania for his burial in the borough of Jim Thorpe, Pa., where his remains rest today.

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