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Friday, December 11, 2009

Another Angle on Instant Replay

Speaking of truly significant developments in legal academia, the instant replay argument rages on at the Wall Street Journal law blog, in a thorough treatment by Josh Patashnik at The New Republic, and in another incisive post from Ilya at VC.

The most strident (though by no means the only) argument commenters have made against de novo review is essentially that folks like football the way it is, and we don’t need anyone lawyering it up. I fully support the sentiment, but objecting to the legal analogy is really trying to lock the barn door after the horse is long gone. As it stands, the current system is a lot like appellate review, complete with standards of review. In fact, instant replay employs standards that sound like they were taken straight from law books: "indisputable" in the NFL, "clear and conclusive” in the NBA, and "clear and convincing" in baseball. Take away the Latin, and de novo review seems more straightforward and intuitive (i.e., correct a call if it was wrong, period), and a move away from legal-style standards of review that evolved for reasons that simply don’t apply to instant replay in sports. Many commenters have also said that, rules be damned, referees actually do apply de novo review in practice. Inasmuch as that’s true—and I’m sure it is, at least sometimes—I’m happy for my normative argument to be a justificatory one.

I’m still not convinced by the argument that de novo review would unduly disrupt games. It’s instant replay that disrupts the flow of a game, not failure to defer to an incorrect call on the field. The best way to improve game flow, it seems to me, is not to uphold incorrect calls, but to limit the number of challenges or the kinds of plays that can be challenged—sensible restrictions which, as Ilya has pointed out, the NFL and other leagues already have in place.

Finally, a number of commenters have noted that the heightened standard of review allows refs to fix calls that are obviously wrong, while allowing close calls to stand. This is obviously true as a descriptive matter, but it doesn’t explain why that’s a good thing. If we’re going to stop the game and go to the videotape anyway, there needs to be an additional reason why we should allow incorrect calls to stand.

On that score, the best argument seems to me to be that sometimes finality is just more important than accuracy. (Naturally, that is also a principle of our legal system.) And although that argument pushes against having instant replay at all, it could be said that the benefits of finality are only outweighed by the costs of truly, indisputably wrong calls. That may be so in many (or even most) cases, but a balancing-of-the-interests type approach also has to account for the fact that there are times when close calls—even those that are wrong but not indisputably so—are game-changers, and a deferential standard of review is going to insulate them from reversal.  

And before I start a fight on another front, let me assure the Steeler Nation that I’m not taking a position on whether Holmes was in or not, just using his catch as example of a close, game-changing call.

Posted by Joseph Blocher on December 11, 2009 at 02:28 PM | Permalink

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Comments

There are three other factors in favor of the current standard of review: First, it preserves the primacy of the game on the field. Sports are first and foremost about physical performance, not about technology. Close calls and human judgments are part of the game, so referees' rulings are presumptively upheld.

Second, the "indisputable" standard of review minimizes second guessing afterward. It is easier to accept a doubtful on-the-field call than it would be to accept an equally doubtful video review. Thus, there should be no doubt about accuracy when video review is used.

Finally, what would be the point of de novo video review if it were only to provide a "more likely" rather than an "indisputable" result. The live referees are perfectly capable of determining "likely" result. Video is only superior if it is undoubtedly more reliable.

Posted by: Steven Lubet | Dec 11, 2009 4:31:11 PM

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