Wednesday, December 02, 2009
Instant Replay: Let's See That One More Time
My post suggesting de novo review of instant replays led to typically insightful posts from Howard here and from Ilya Somin over at VC, and also to some very interesting comments. Since I write on constitutional law and am thus utterly incapable of leaving well enough alone, I’ll try respond to some of them.
First, I should say that I share much of the general antipathy
for the overuse of instant replay, primarily because of the disruption it
causes to the flow of a game. So I fully support
procedural default-type rules that limit the use of replays—challenges
must be made before the next play starts, only a certain number are allowed, and
so on. But I think those raise different questions than what standard of review should
apply once a call is under review, at least as far as game disruption is concerned. After all, it takes just as long to uphold a wrong call as to overturn it.
A few folks here and at VC have emphasized that, as a practical matter, cameras are not always better positioned than a line judge or a referee. That’s a strong objection, but I don't think it has to be a fatal one—if we're going to have instant replay and take it seriously, then more and better cameras are always an option. Why not put one facing across the field at the end zone, or roll one along with the chains to make first down calls easier? Of course it may be that certain kinds of calls should be entitled to more deference or be entirely unreviewable (as some calls are, both in sports and in law), but when it comes to rule-like questions such as whether a play got off in time, whether the ball crossed the plane, or whether a player’s knee was down before he fumbled, it still seems to me that cameras would have the advantage in most cases.
As far as the appellate analogy goes, one particularly interesting argument, which Ilya mentions (though doesn’t endorse) and which has come up in a lot of the comments, is that the purpose—not just the function—of heightened standards of review may be to deter the use of instant replay by lowering the expected payoff. But if the underlying goal of of this deterrence would be to speed up the game, then I'd imagine that the procedural default-type rules mentioned above would be a better way of achieving it.
And if instead the goal of deterring challenges would be to somehow preserve the integrity of the game, it raises other more difficult questions. Is a system that purposefully insulates incorrect rulings—not based on any comparative advantage of the original decisionmaker, but simply for finality's sake—really going to have more long-term legitimacy than one that frankly admits its mistakes? I guess that’s an empirical question, and although my inclination is to say no, I could be totally wrong. After all, in the words of one of the canonical works of legal academia, “[t]he umpire must have the status of an unchallengeable finder of fact. Allowing challenges to his authority on matters of rules admits the possibility that he may be wrong, and encourages a new generation of challenges to findings of fact.” The Common Law Origins of the Infield Fly Rule, 123 U. Pa. L. Rev. 1474, 1480 (1975).
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I like that last quotation (I had forgotten about it) because it perfectly captures the obsession with replay. It also points out an important difference between replay and appellate review that might explain the absence of de novo review: Replay is entirely about factual determinations--safe/out, down/not down, fumble/no fumble--not interpretation of legal rules. Appellate review ordinarily is about law, not fact, with factual questions being the ones subject to more-deferential review. I think we have lost faith in the ability of officials to find facts and we want replay to do it for them.
Posted by: Howard Wasserman | Dec 2, 2009 6:29:01 PM