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Wednesday, December 02, 2009

Standards of review and instant replay: A different take

Joseph asks a great question: Why is instant-replay review not subject to de novo review as opposed to a more-deferential standard. I have not been writing much lately, so I thought I would turn a comment into a separate post. First, let me say that long have hated replay in sports, so perhaps take this with a grain of salt and recognize that I would argue for any way to limit the full effect of replay.

I would argue that the deferential use of replay review reflects (implicitly, if not explicitly) an understanding of the limits of video. Video does not provide an objectively "right" answer. It simply provides another angle/perspective/viewpoint of the events, usually one different than what the official had. And not just because it can be slowed down and played backwards and rewatched multiple times, but because of differences between where the camera is and where the official was standing. And, of course, what the video "shows" is as dependent on the perceptions of the official watching the replay as was the original call on the field.

Given the reality of how film operates and how we view and understand film, deferential review makes sense because there is a form of institutional competence at work here (which, as Joseph notes, is the general rationale for differing standards of review). Video is not better situated to give an obviously, objectively correct answer than the initial call, at least not in all (many? most?) situations. That being so, there is no reason to give preference to the new viewpoint/perspective over the initial on-field one, unless review clearly shows a mistake. If video cannot necessarily produce a better (in the sense of more accurate) result, then it makes sense to leave control with the initial decision, absent an obvious error.

Posted by Howard Wasserman on December 2, 2009 at 08:00 AM in Howard Wasserman, Judicial Process, Sports | Permalink

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A deferential standard of review also provides an ex ante disincentive to use IR unless you are fairly confident you are correct or if the call is particularly important, both justifiable (in my view) restrictions of its use, given IR's potential disruption to the enjoyment of the game.

Posted by: Scott Dodson | Dec 2, 2009 11:40:09 AM

I think the video itself can be objective, because its showing you different angles and ways of looking at it. The video does not show a subjective view of the play in question, but a different angle that allows the official to be more objective.

Posted by: Disability Insurance | Dec 2, 2009 3:28:15 PM

You argue that "[v]ideo is not better situated to give an obviously, objectively correct answer than the initial call, at least not in all (many? most?) situations." Yet one could argue forcefully to the contrary. Ball spotting in NFL games is a prime example of routine refereeing that would almost certainly be more accurate if done by IR every time. We know this because commentators consistently talk about ball spots after a play in subjective terms: "good," "generous," "bad," etc. When a player is tackled and spun around, or when other players pile on, getting an exact spot is difficult--particularly when one measures by inches or feet, rather than yards.

An IR every time process would grind NFL games to a halt, which is why it is not used, but that does not mean it would not be more accurate. Other examples include safe/out determinations in baseball, where umpires must make snap judgments that are wrong a high percentage of the time, balls and strikes (the MLB uses electronic devices to "grade" the accuracy of umpires, making it clear that a better objective umpiring system is available), three-point vs. two-point shot determinations in basketball, and offsides calls in both hockey and soccer. The speed with which most of these calls must be made, the limited perspective of a single referee or umpire, and the human nature of the arbiters all ensure that such calls are suboptimal from an accuracy standpoint. Nonetheless, leagues do not frequently use IR to improve accuracy because in most cases the costs (disruption, loss of faith in officials) would outweigh the benefits (improved accuracy).

As for the standard of review, Scott's point seems intuitively right. Since we want to maximize accuracy while minimizing disruption, imposing a clear error standard sets the incentives right for invoking IR. The NFL ups the ante even further by imposing a one timeout penalty on a team that unsuccessfully challenges a play. In that regard, it would be interesting to see what the relative frequency is for play reviews during before the 2:00 warning, when these incentives apply, and after, when only the booth may call for a review (and absent any penalty for doing so when the call on the field is not clearly wrong).

Posted by: Kevin | Dec 2, 2009 5:49:49 PM

"An IR every time process would grind NFL games to a halt, which is why it is not used, but that does not mean it would not be more accurate."

This is empirically false. In college, they use an "IR every time process." I don't think the college game has slowed down measurably since that rule was implemented (in fact, due to other rule changes, it's probably sped up). The vast majority of calls are not changed by the review.

Posted by: Noah | Dec 8, 2009 6:14:39 PM

The standards' purpose in instant replay is separate from its purpose in appellate review. Without de novo review the close calls could practically go on forever. e.g. Sid Bream's slide in the 1995 World Series. Efficiency is something the courts seem to care little about, but I assure you sports enthusiasts care gravely, and rightly so. This explains the need to assume the call was correct and move on, generally without any review. Moreover, without any deference the refs lose primacy and their ability to control the game is compromised (22 people uncertain that a play is truly over is clearly problematic). In this sense, the refs perform a dual role, enforcement and interpretation, and increased scrutiny on the latter necessarily calls into question their legitimacy in the former. In the sports context the need for definite decisions is unchecked by broader notions of fairness. Players agree to compromise the latter for the benefits that clear and unilateral decision making provides. Cf. pickup basketball. The replay should be utilized, as the standard suggests, to prevent clear oversight not to second guess every important play.

Posted by: Greg DeBacker | Dec 9, 2009 1:50:42 AM

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