The NFL and the Limits of Legal Formalism

Recent Supreme Court confirmation hearings featured the metaphor of judges acting as umpires calling "balls and strikes." John Roberts famously used this metaphor during his hearing as the ideal judges that should aspire to. Elena Kagan was asked about the "balls and strikes" language during her confirmation hearing. While condoning certain aspects of the metaphor -"judges have to be neutral and realize they are not the most important people in our democratic government"- she emphasized its limits and endorsed some traditional notions of jurisprudence. Kagan was perhaps trying to reframe the misleading rhetorical divide between empathetic liberal jurisprudence and conservative jurisprudence focused on hard-line rules. Law, she said, is not a robotic enterprise, but "it's law all the way." In making decisions, judges incorporate precedent, text, structure, history, "law and only law."

The notion of equity lurks around the rhetorical framework that Kagan was pushing against. Aristotle wrote, “all law is universal but about some things it is not possible to make a universal statement which shall be correct… [when] a case arises on it which is not covered by the universal statement, then it is right… to correct the omission-to say what the legislator himself would have said had he been present, and would have put into his law if he had known.” The equitable, Aristotle argued, is “a correction of law where it is defective owing to its universality.”

Aristotle’s conception of equity does not necessarily imply the dreaded notion of judges acting as legislators; indeed, he describes an equitable decision as one that says “what the legislator himself would have said had he been present.”

The balls and strikes metaphor, however, suggests wariness about judges undertaking this sort of equitable decision making. This rhetoric could be dismissed as attempts to undermine the legitimacy of unfavorable decisions, but is worth addressing due to its prevalence. Mistrust of judicial overreach and a belief in the fairness of universal rules underlies these concerns where they are genuine. The balls and strikes metaphor implies lower stakes and little discretion for judges.

What can we learn about jurisprudence from actual referees? By analyzing law in a vacuum where no equitable decision making is supposed to take place, I hope to point out the limits of formalism. Formalistic, mechanical application of the law breaks down when dealing with the reality of fallible judges and the inherent defectiveness of universal statements. Judges on the field will exercise some discretion and when they don’t make equitable decisions, they will fall under fierce criticism. The fairness of universal rules breaks down when the rules fail, as they inevitably will in some situations. We can analyze formalism by reasoning from analogy.

The Problem of Fallible Fact Finders

In Courts on Trial," Jerome Frank argues that two factors make subjectivity unavoidable in judicial decision-making. The first is the fallibility of the witnesses and the second is the fallibility of the fact finders, who are "fallible witnesses of the fallible witnesses." NFL referees have the privilege of serving as the witness and the fact finder. In sports, the "right call" is generally discernable and objective. The decision-making process, however, is subjective and fraught with error. Every fan can recall any number of mistakes made by NFL officials. In baseball, one study suggested that umpires are wrong 14.4 percent of the time.

Discretion is Unavoidable

Jerome Frank writes that there are two types of discretion: rule discretion and fact discretion. He focuses mainly on fact discretion and criticizes Cardozo for ignoring the same. Frank's example of "fact discretion" is choosing to believe one witness rather than another. This rarely comes up in football, and the rules are generally not vague, either.

Yet discretion persists. Pundits often state that holding could be called on every play if referees so chose. This may be an exaggeration, but it's quite likely that sticking to the letter of the law would make games unwatchable.

Fans and pundits commonly believe that officials should and do become more lax about calling penalties near the end of games. Different officiating crews call penalties at different rates, while NFL teams include information about officials in their scouting reports. When it comes to winning, the personality of the judge matters.

Do You Believe in Catches?

With a clear rulebook, and the frequent use of instant replay to go over decisive plays, there will often be little disagreement as to any legal question (the R) or the facts (the F) in Frank's calculation. Even in such situations, enormous controversies can erupt over officiating decisions. In the second week of the 2010 regular season, Detroit receiver Calvin Johnson caught a go-ahead touchdown catch with less than 30 seconds left in the game. Almost all observers, including the players on the field, assumed Detroit had won the game. However, the officials determined that Johnson did not maintain control of the ball after he went to the ground. There was no factual dispute and the rule was clear. Still, the Huffington Post asked, "Was it a catch, or were the referees right?"

The answer is yes. It appeared to be a catch on first glance to virtually anyone familiar with the NFL. It continued to look like a catch after repeated replays. According to the rulebook, the referees were correct, but many if not most fans believed Detroit was robbed of a victory on a technicality. The rule was clear, but people do not make most decisions or judge most acts based on law. Just “calling balls and strikes,” or making narrow decisions based on clear rules, does not necessarily work in the confines of a stadium, let alone a court room.

-- ShakedSivan - 03 Aug 2012