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Tuesday, April 08, 2008

Rock chalk, Law Talk: Finality, Accuracy, and Appellate Review

I am against the recent over-emphasis on video evidence in court, for reasons that I and others have discussed. For me, that objection has carried over (for reasons both similar and different) into a general dislike for instant replay in sports.

Well, the difference in last night's NCAA Basketball Championship, besides Memphis' horrid free-throw shooting down the stretch, was the use of instant replay and, in essence, appellate review of a single decision. With about four minutes left in the game, Memphis guard Derrick Rose launched a fade-away jumper from right around the three-point line, with two men in his face, that banked-in and initially was called a three-pointer. But during the next timeout, the officials went to the videotape and determined (correctly, I think, based on my perception of the video) that Rose's left foot was inside the three-point-line when he left the ground (although he released the shot and landed behind the line), making it a two-pointer and taking one point from Memphis. But for that changed call, Memphis would have lead by 4 with ten seconds left and the dramatic 3-pointer by Kansas' Mario (Superintendent) Chalmers that sent the game into overtime would have been meaningless. Memphis Coach John Calipari, while not necessarily disagreeing with the officials' conclusion as to what the video showed, said after the game he would argue that this use of video should be eliminated.

The instant-replay debate implicates the long-standing policy balance among accuracy, finality, the efficient flow of "the game," and avoidance of piecemeal review that characterizes the law of appealability. At trial, we typically draw that balance in favor of keeping things moving along, making (relatively) few decisions subject to immediate review and deferring heavily to on-the-fly decisions about singular issues, such as evidentiary and discovery ruling. That does mean some legal decisions, even legal errors, escape effective review. Had video review not been available, it would have been cold comfort to KU to announce afterwards that the game should have been one-point closer.

But the loss of accuracy is thought to be outweighed by interests in efficiency and some deference to the competence of trial judges, a view I typically share. Even more so in sports. Instant replay in football--where we have to wait 10 minutes to celebrate a touchdown while the ref stares into a hooded camera--has, I think, badly disrupted the rhythm of the sport. We did not have as blatant an interruption last, but I still would rather let the refs make their decisions and have them stand, any human error simply being part of the game.

And, by the way, I was rooting for Kansas. So pelase consider this principled, rather than results-oriented, jurisprudence.

Posted by Howard Wasserman on April 8, 2008 at 08:34 AM in Current Affairs | Permalink


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I'm not sure that video review during a three-minute time out altered the outcome of the game at all. But even if it had, it's hard to understand why Memphis was entitled to have the game unfold in a way that depended on an official's error.

My experience with three of my favorite sports--football, tennis, and hockey--is that they've been improved immeasurably by video review. There's greater faith in the accuracy of calls, and far less sniping about referee decisions (one wonders what Johnny Mac would have done in the ShotSpot era).

As for the concern that the flow of the game is disrupted, this seems a trivial concern in an era when all sports (except soccer) are peppered with time out, official time outs, TV time outs, changeovers, etc. And the ultimate arbiters of taste--the fans of each of these sports--tend to overwhelmingly prefer video review. It's added suspense and excitement, and sometimes even enhanced the experience of the game for observers (tennis fans now cheer the ShotSpot replay when it's displayed on JumboTrons).

Posted by: Dave | Apr 8, 2008 1:45:57 PM

The decision to count it as a three to begin with changed the nature of the game. And with a three-minute timeout to review it, what's the big downside?

"No guarantee"? How about "no way." Not just in this game, but almost any game. Of course, almost any change in this game within the last few minutes of regulation would have favored Memphis. Just as almost any change in the first ten minutes of the glorious national semifinal game between Kansas and UNC would have favored UNC. Maybe.

Posted by: Grant | Apr 8, 2008 1:28:38 PM

I agree there is no guarantee the game would have proceeded exactly as it did had that basket counted. But I do not think that has to be true for my point to stand. First, my precise point is that this decision on, essentially an interlocutory appeal, changed the nature of the game--at a minimum by putting Memphis up four at the end, perhaps by utterly altering the flow. Second, if I had to speculate, my guess is that any difference in the way the game went actually would have favored Memphis: KU would have had to start taking more 3's and might have started fouling earlier. And with a cusion of 3-4 points rather than 2-3 points, maybe Memphis players don't gag on those free throws.

Posted by: Howard Wasserman | Apr 8, 2008 12:52:19 PM

"But for that changed call, Memphis would have lead by 4 with ten seconds left . . . ." Do you really think that the rest of the game would have unfolded exactly as it did without the change?

But I, too, am results oriented.

Rock Chalk!

B.A., M.A., Kansas

Posted by: Grant | Apr 8, 2008 12:27:42 PM

Hi Howard,
But with basketball as opposed to football, we never stop the flow of the game for a review. They come during a time-out etc. In some sense, the basketball instant reply is more like a district court judge's review of a magistrate. It comes quick with less loss in the flow of litigation.
But I am in the results-oriented business on this one.
Lou Mulligan, B.A. Univ. Kansas '95.
Rock Chalk, Jayhawk

Posted by: Lumen Mulligan | Apr 8, 2008 11:44:33 AM

I guess I disagree. Major sports (college and pro) are about winning and losing. Perhaps when the participants are children the flow of the game is more important, but this is a national championship we are talking about and real consequences follow, even if it is only the ability to raise money for the school. As such, it is more important to get it right than to "feel good" about how we got to the result.

That said, I think that replay should minimize its impact on the game, to the extent that flow disruption has an effect on things such as momentum. Here, the replay was during a timeout - I don't see how that would affect any part of the game. I think football replays need to be shortened, but even there they are often performed during one of many TV timeouts, such that the real impact on the game is minimized. I tend to favor referee selected replays rather than coach selected replays. It is the refs' jobs to get it right, and they should make that call.

Posted by: Michael Risch | Apr 8, 2008 11:43:41 AM

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