"Let 'em Play" A study in the jurisprudence of sport

Georgetown Law Journal

Volumn 99, Issue 5, 2011, Pages 1325-1369

  Berman, Mitchell N ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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EID: 80052088869     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (126)

1. See Tennis Star Kim Clijsters Announces Retirement, FOXNEWS.COM (May 6, 2007), http://www.foxnews.com/story/0,2933,270274,00.html
2. Kim Clijsters Makes Winning Return to New York, 2009. http://www.telegraph.co.uk/sport/tennis/usopen/6118406/USOpen-2009-Kim- Clijsters-makes-winning-return-to-New-York.html. US Open, THE TELEGRAPH (Aug. 21, 2009)
3. Tina Molly Lang, Kim Clijsters Defeats Caroline Wozniacki to Win US Open, ASSOCIATED CONTENT (Sept. 14, 2009), http://www.associatedcontent.com/article/ 2172747/kim-clijsters-defeats-caroline-wozniacki.html.
4. Unseeded Clijsters Secures U.S. Open Victory, CNN.COM (Sept. 14, 2009),http://www.cnn.org/2009/SPORT/09/13/tennis.us.open.womens/index.html.
5. For a detailed description of the match, see John Martin, In a Bizarre Ending, Clijsters Beats Williams, STRAIGHT SETS (Sept. 12, 2009), http://straightsets.blogs.nytimes.com/2009/09/12/live-analysiswickmayer- vs-wozniacki/.
6. Serena Williams Fined Record $82,500 for U.S. Open Outburst, USA TODAY (Dec. 1, 2009),http://www.usatoday.com/sports/tennis/2009-11-30-serena- williams-open-fine-N.htm.
7. See Geoff MacDonald, The Thinking Behind Calling Foot Faults, STRAIGHT SETS (Sept. 13, 2009), http://straightsets.blogs.nytimes.com/2009/09/13/the- thinking-behind-calling-foot-faults/.
8. The rule governing foot faults provides that, "During the service motion, the server shall not . . . [t]ouch the baseline or the court with either foot . . . ." INT'L TENNIS FED'N, RULES OF TENNIS 2010, at 8 (2009) (Rule 18.b)
9. U.S. TENNIS ASS'N, FRIEND AT COURT 12 (2010) ("Comment 18.3: When does a foot fault occur? A player commits a foot fault if after the player's feet are at rest but before the player strikes the ball, either foot touches . . . the court, including the baseline . . . .").
10. Michael Wilbon, A Call and a Response that Can't Be Defended, WASH. POST, Sept. 14, 2009, at D3, available at http://www.washingtonpost.com/wp-dyn/ content/article/2009/09/13/AR2009091302533.html.
11. Vince Bray, Letter to the Editor, N.Y. TIMES, Sept. 20, 2009, at 5, available at http://query. nytimes.com/gst/fullpage.html?res- 9B01E6DB1439F933A1575AC0A96F9C8B63.
12. J. Everett Prewitt, Letter to the Editor, SPORTS ILLUSTRATED (Oct. 12, 2009), http://sportsillustrated. cnn.com/vault/article/magazine/MAG1161011/ index.htm.
13. (introduction by Thomas Hurka); Simon Blackburn Defends the Grasshopper, VIRTUAL PHILOSOPHER (Feb. 6, 2008), http://nigelwarburton.typepad.com/ virtualphilosopher/2008/02/simon-blackburn.html. I am uncertain that Suits's effort succeeds.
14. Norman Geras, Games and Meaning, in HILLEL STEINER AND THE ANATOMY OF JUSTICE 185 (Stephen de Wijze et al. eds., 2009). Be that as it may, I am disposed to think John Tasioulas right, as against Hurka and Suits, in insisting that not all sports are games.
15. See Thomas Hurka & John Tasioulas, Games and the Good, ARISTOTELIAN SOC'Y, July 2006, at 217.
16. See John Rawls, Two Concepts of Rules, 64 PHIL. REV. 3, 25 (1955).
17. See H.L.A. HART, THE CONCEPT OF LAW 89 (2d ed. 1994).
18. See RONALD DWORKIN, LAW'S EMPIRE 136-38 (1986);
19. see also RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 101-05 (1977).
20. Indeed, most legal writing on sports that does not pertain to sports law is intended more to entertain than to edify. The best known example of the genre is Aside, The Common Law Origins of the Infield Fly Rule, 123 U. PA. L. REV. 1474 (1975). Recently, however, John Roberts's proposed analogy, offered during his confirmation hearings, between judging and umpiring, has provoked interesting jurisprudential writing-most of it (rightly) critical
21. Aaron S.J. Zelinsky, The Justice as Commissioner: Benching the Judge-Umpire Analogy, 119 YALE L.J. ONLINE 113 (2010)
22. Neil S. Siegel, Umpires at Bat: On Integration and Legitimation, 24 CONST. COMMENT. 701 (2007).
23. As Judge Richard Posner objected, "Neither [Roberts] nor any other knowledgeable person actually believed or believes that the rules that judges in our system apply, particularly appellate judges and most particularly the Justices of the U.S. Supreme Court, are given to them the way the rules of baseball are given to umpires." RICHARD A. POSNER, HOW JUDGES THINK 78 (2008).
24. Amrit Doley, The World's Top 10 Most Popular Team Sports, SPORTINGO (May 16, 2009), http://www.sportingo.com/all-sports/a11587-worlds-top-most-popular- team-sports.
25. Cricket is governed by the "Laws of Cricket," see Laws of Cricket, LORD'S.ORG, http://www.lords.org/laws-and-spirit/laws-of-cricket/laws/ (last visited Jan. 22, 2011), soccer by the Fédération Internationale de Football Association (FIFA) Statutes
26. FéDéRATION INTERNATIONALE DE FOOTBALL ASS'N,FIFA STATUTES: AUGUST 2009 EDITION (2009), and rugby by the "Laws of the Game Rugby Union" and "Laws of Rugby League"
27. INT'L RUGBY BD., LAWS OF THE GAME RUGBY UNION (2007)
28. RUGBY FOOTBALL LEAGUE, THE INTERNATIONAL LAWS OF THE GAME AND NOTES ON THE LAWS (2004).
29. See About FIFA, FIFA.COM, http://www.fifa.com/aboutfifa/index.html (last visited Jan. 22, 2011
30. About ICC, INT'L. CRICKET COUNCIL, http://icc-cricket.yahoo.net/the-icc/ about-the-organisation/overview.php (last visited Jan. 22, 2011)
31. IRB Organisation, INT'L RUGBY BD., http://www.irb.com/aboutirb/ organisation/index.html (last visited Jan. 22, 2011
32. Operational Rules, RUGBY FOOTBALL LEAGUE, http://www.therfl.co.uk/ operational-rules (last visited Jan. 22, 2011).
33. BRITISH PHIL. SPORT ASS'N, http://www.philosophyofsport.org.uk/ (last visited Jan. 22, 2011
34. INT'LASS'N PHIL. SPORT, http://www.iaps.net (last visited Jan. 22, 2011).
35. LEON CULBERTSON ET AL., HIGHER EDUC. ACAD., RESOURCE GUIDE TO THE PHILOSOPHY OF SPORT AND ETHICS OF SPORT 1 (2008), http://www.heacademy.ac.uk/ assets/hlst/documents/resources/philosophy-ethics-sport.pdf.
36. Cf. Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207, 207-08 ("[T]he best way to learn the law applicable to specialized endeavors is to study general rules. Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on 'The Law of the Horse' is doomed to be shallow and to miss unifying principles.").
37. See, e.g., Tom Yantz, Take a Bow Brian Davis for Calling Infraction on Himself, ON THE TEE (Apr. 19, 2010) http://blogs.courant.com/chip-shots/2010/04/ take-a-bow-briandavis-for-cal.html
38. ROBERT SOMMERS & ARNOLD PALMER, GOLF ANECDOTES: FROM THE LINKS OF SCOTLAND TO TIGER WOODS 81-82 (2004). Applauded afterwards for his integrity, Jones would have none of it: "You might as well praise me for not robbing banks," he protested.
39. See generally JASON TURBOW & MICHAEL DUCA, THE BASEBALL CODES (2010). As Chicago Cubs President Andy MacPhail noted when his star slugger, Sammy Sosa, was caught with a corked bat, "There is a culture of deception in this game. It's been in this game for 100 years. I do not look at this in terms of ethics. It's the culture of the game.
40. See, e.g., Mark Sappenfield, Serena Williams Foot Fault: What Did She Say and Why?, CHRISTIAN SCI. MONITOR (Sept. 13, 2009), http://www.csmonitor.com/ USA/2009/0913/p02s01-usgn. html ("[T]he [foot-fault] rule is . . . inconsistently enforced. A player must not touch any part of the service line during a serve, yet line judges often ignore infractions. . . . [S]ome players say there is an unwritten rule that-just as hockey referees call nothing but the most blatant penalties in overtime playoff games-tennis officials should ignore seemingly ticky-tack infractions like foot faults when stakes are high.").
41. In the first round of the 2010 NCAA men's basketball tournament, a referee called a lane violation against a player for New Mexico State with 18.6 seconds remaining and the New Mexico State Aggies down to Michigan State 69-67. See Lucas, Morgan Save MSU in 70-67 Win Over NMSU, SPORTS ILLUSTRATED (Mar. 19, 2010), http://sportsillustrated.cnn.com/basketball/ncaa/men/gameflash/2010/ 03/19/62933-recap.html
42. Steve Schrader, Critics: Refs Blew It on Lane Violation, DETROIT FREE PRESS, Mar. 21, 2010, at C8. Importantly, the objection was not merely that the call was made inconsistently. Rather, protested one observer, "You can't have that be a deciding call in a close NCAA tournament
43. See NAT'L BASKETBALLASS'N, OFFICIAL RULES 2006-2007, at 43 (2006) (Rule 12(B)(I)).
44. And not only to me. Here is Sports Illustrated's lead NFL columnist, Peter King, explaining his naming Browns cornerback Hank Poteat "goat of the week": [W]ith Cleveland holding a 37-31 lead and no time left on the clock in the fourth quarter, Detroit quarterback Stafford let fly with a rainbow to the end zone and Poteat tackled Calvin Johnson with the ball in the air. If Poteat had jostled Johnson, there's little chance a flag would have been thrown. But a full-scale body slam to the ground . . . That has to be called. Pass interference. With the extra play, Detroit threw a touchdown pass to win it. On the goat scale, Poteat's play ranks about as high as you can go. Peter King, Monday Morning QB, SPORTS ILLUSTRATED (Nov. 23, 2009), http://sportsillustrated. cnn.com/2009/writers/peter-king/11/22/Week11/3.html (omission in original) (emphasis added).
45. What Is the Exact Meaning of No Harm No Foul?, YAHOO! ANSWERS, http://answers.yahoo.com/question/index?qid-20070518143109AAx6BR1 (last visited Apr. 29, 2011).
46. Idiom Definition: No Harm No Foul, USINGENGLISH.COM, http://www. usingenglish.com/reference/idioms/no-harm,-no-foul.html (last modified Apr. 27, 2011).
47. Nearly thirty percent of black girls born each year in California receive a name given to no other baby born in the state. STEVEN D. LEVITT & STEPHEN J. DUBNER, FREAKONOMICS: A ROGUE ECONOMIST EXPLORES THE HIDDEN SIDE OF EVERYTHING 184 (2005).
48. Ryan, No Harm No Foul, URBAN DICTIONARY (Feb. 22, 2005), http://www.urbandictionary.com/define.php?term-no%20harm%20no%20foul.
49. While this is the dominant view, it is contested. For variants on the opposing view see, for example, MATTHEW H. KRAMER, WHERE LAW AND MORALITY MEET 249-94 (2008) (arguing for strict moral liability
50. John Gardner, The Wrongdoing that Gets Results, PHIL. PERSP., 2004, at 53, 69-86(arguing for moral duties to succeed).
51. BERNARD WILLIAMS, Ethical Consistency, in PROBLEMS OF THE SELF 166, 175 (1973).
52. In a context such as this, "it wasn't your fault" is the idiomatic way to deny not merely that the actor is blameworthy, but also that he did anything wrong. I believe such an expression appropriate. As Matt Kramer rightly emphasized to me in private correspondence, his view accepts that C's family should acknowledge D's faultlessness or blamelessness, but not his purported lack of wrongdoing. Email from Matthew H. Kramer, Professor of Legal and Political Philosophy, University of Cambridge, to author (Apr. 15, 2010, 15:39 CST) (on file with author).
53. See, e.g., DAVID L. PORTER, BASKETBALL: A BIOGRAPHICAL DICTIONARY 203 (2005).
54. No Harm, No Foul, WIKTIONARY, http://en.wiktionary.org/wiki/no-harm,-no- foul (last modified Feb. 1, 2011). Omitted by the ellipses is the word "apology." I think that Wiktionary is wrong about that. In paradigmatic cases where no harm, no foul reasoning applies, there is a need for an apology, though the apology should be accepted. That is why it was my wife, not our babysitter, who uttered "no harm, no foul," and why she did so after he had apologized.
55. Kenneth W. Simons, The Crime/Tort Distinction: Legal Doctrine and Normative Perspectives, 17 WIDENER L.J. 719, 720, 727, 729 (2008).
56. In football, similarly, most infractions incur penalties regardless of whether the infraction affected the play. For example, when a long run from scrimmage (or a long return of a punt or kickoff) is called back because of a hold or an illegal block by the offense (or the receiving team), it is not uncommon for the announcer to observe, in commiseration with the penalized team, that the infraction was particularly unfortunate because it occurred at a place on the field where the player held or blocked could not possibly have had an impact on the play. But the rule for pass interference is instructively different: "Contact that would normally be considered pass interference [is not pass interference if] the pass is clearly uncatchable by the involved players." NFL Rules Digest: Pass Interference, NFL.COM, http:// www.nfl.com/rulebook/passinterference (last visited Apr. 28, 2011).
57. In soccer, the offsides rule is much like the uncatchable rule in football: a player who is in an "offside position" does not commit an "offence" if he is not "involved in active play" by interfering with the play or with an opponent, or by "gaining an advantage by being in that position." FéDéRATION INTERNATIONALE DE FOOTBALL ASS'N, LAWS OF THE GAME 2010/2011, at 31 (2010) (Law 11).
58. But what about the player who simulates an injury with the intent of deceiving the referee? This is an offence for which a yellow card must be awarded regardless of whether the player has successfully deceived anyone. Id. at 115 (Law 12, Decision 5). In table soccer (foosball), "[s]pinning of the rods is illegal," INT'L TABLE SOCCER FED'N, RULE BOOK 11 (2007) (Rule 15), but "[s]pinning of a rod which does not advance and/or strike the ball does not constitute an illegal spin." Id. (Rule 15.2).
59. The rule and its history are summarized in Roger A. Fairfax Jr., A Fair Trial, Not a Perfect One: The Early Twentieth-Century Campaign for the Harmless Error Rule, 93 MARQ. L. REV. 433 (2009).
60. See Baltimore Ravens v. Minnesota Vikings, ESPN (Oct. 18, 2009), http://scores.espn.go.com/nfl/recap?gameId-291018016.
61. E.g., It's NO GOOD!, Comment to Steve Hauschka: 'It's Definitely One I Want Back,' RAVENS INSIDER (Oct. 18, 2009, 9:03 PM), http://weblogs. baltimoresun.com/sports/ravens/blog/2009/10/post-4.html.
62. Vikings Barely Stay Perfect, Hold off Flacco, Ravens, CBSSPORTS.COM (Oct. 18, 2009) (internal quotation marks omitted), http://www.cbssports.com/nfl/ gamecenter/recap/NFL-20091018-BAL@MIN.
63. DONALD GILLIES PHILOSOPHICAL THEORIES OF PROBABILITY 2 2000 "On this approach probability measures degree of knowledge, degree of rational belief, degree of belief, or something of this sort. . . . Objective interpretations of probability, by contrast, take probability to be a feature of the objective material world, which has nothing to do with human knowledge or belief."Id. The dominant view is that probability judgments regarding "singular events"-like whether this particular coin will land heads or tails on the next toss, or whether some particular individual will contract cancer within the next year-are invariably epistemic (because the "objective" probability of such events is either incoherent or always either 0 or 1)
64. See, e.g., D.H. MELLOR, PROBABILITY: A PHILOSOPHICAL NTRODUCTION 36 (2005). Because we are concerned here with the probabilities of singular events, our probability assessments must be epistemic. Given our familiarity and comfort with epistemic probability assessments, the fact that the probability estimates I'll be invoking are epistemic, not objective, will not, I believe, strike most readers as cause for concern. Nonetheless, I'd like simply to flag that scholarly debates over the
65. See, e.g., Steven R. Koch, Whose Loss Is it Anyway? Effects of the "Lost-Chance"Doctrine on Civil Litigation and Medical Malpractice Insurance, 88 N.C L. REV 595 595-611 (2010).
66. Compare, e.g., Herskovits v. Grp. Health Coop., 664 P.2d 474, 479 (Wash. 1983)
67. (finding a 14% reduction in plaintiff's chance of survival sufficient for recovery), with Hotson v. E. Berkshire Area Health Auth., [1987] 2 W.L.R. 287, 303 (appeal taken from Q.B rev'd [1987] A.C 750 (H.L.) (finding a less than 50% decrease in plaintiff's odds of survival insufficient for recovery). Several scholars, Stephen Perry most influentially, criticize the doctrine essentially on the grounds that the increase in probability of injury that the doctrine assumes must be epistemic, not objective, and that a change in one's epistemic probability of injury cannot itself be an injury in the sense of a welfare setback.
68. Stephen R. Perry Protected Interests and Undertakings in the Law of Negligence, 42 U. TORONTO L.J 247 (1992).
69. Compare, e.g., Matthew D. Adler Risk, Death and Harm: The Normative Foundations of Risk Regulation, 87 MINN L. REV 1293, 1346, (2003)
70. (agreeing with Perry that risk damage is not a welfare setback), with Claire Finkelstein, Is Risk a Harm?, 151 U. PA. L. REV. 963, 995-97 (2003) (arguing otherwise).
71. See generally Stephen Perry, Risk, Harm, Interests, and Rights, In RISK: PHILOSOPHICAL PERSPECTIVES (Tim Lewens Ed 2007)
72. Stephen R. Perry, Risk, Harm, and Responsibility, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW 321 (David G. Owen ed., 1997)
73. Stephen Perry, Harm, History, and Counterfactuals, 40 SAN DIEGO L. REV. 1283 (2003). A minimally adequate analysis of the problem of lost chances-what are better termed augmented probabilities of harm-is beyond the scope of this Article. Nonetheless, I hope that readers will appreciate that the problem of temporal variance in sport might both benefit from, and illuminate, doctrines of tort law that similarly depend upon changes in probabilities of the outcomes of which we are centrally concerned (outcomes like victories and deaths).
74. see generally Robert Cooter, Prices and Sanctions, 84 COLUM. L. REV. 1523 (1984). In much the same way, the rules of organized basketball might be best understood as permitting teams to intentionally foul late in the game for a price. Although that might seem absurd at first blush, something can be said for it. While nobody much likes the stretching out of games with one team fouling the other on each possession, to prohibit the practice might be tantamount to affirming that it's preferable to let a team with a lead pass and dribble out the clock. It's not crazy to think that would be worse.
75. See History of NCAA Basketball Rule Changes, ORANGEHOOPS, http://www.orangehoops.org/NCAA/NCAA%20Rule%20Changes.htm (last visited Apr. 26, 2011). Maybe the NBA should follow the NCAA's lead. Then again, the seeming fact that college referees rarely call late-game strategic fouls as "intentional," and therefore refrain from awarding the victimized team post-free-throw possession as the formal rules would require, might suggest that the logic of the game creates substantial pressure to treat late-game strategic fouls as permitted-for-a-price.
76. Robert L. Simon, The Ethics of Strategic Fouling: A Reply to Fraleigh, 32 J. PHIL. SPORT 87, 88 (2005) (arguing that strategic fouling is not always unethical)
77. Warren P. Fraleigh, Intentional Rules Violations-One More Time, 30 J. PHIL. SPORT 166 (2003) (arguing that it is). I favor Simon's analysis, though I add this quibble: because Simon explicitly invokes the price-sanction distinction, he ought not to agree that "[s]trategic fouls occur when a competitor in an athletic contest deliberately and openly breaks a rule expecting to be penalized and with willingness to accept the penalty, in order to obtain a strategic advantage in the contest.
78. See John Branch, For Free Throws, 50 Years of Practice Is No Help, N.Y. TIMES, Mar. 3, 2009, at A1 (observing that the average free-throw shooting percentage has remained steady at approximately 75% for more than fifty years).
79. For the now-classic discussion in the philosophy-of-sport literature, see J.S. Russell, Are Rules All an Umpire Has To Work With?, 26 J. PHIL. SPORT 27, 35 (1999) (urging that "[r]ules should be interpreted in such a manner that the excellences embodied in achieving the lusory goal of the game are not undermined but maintained and fostered").
80. NFL Digest of Rules: Pass Interference, NFL, http://www.nfl.com/rulebook/ passinterference (last visited Jan. 23, 2011).
81. Bradley C. Karkkainien, Reply, "New Governance" in Legal Thought and in the World: Some Splitting as Antidote to Overzealous Lumping, 89 MINN. L. REV. 471, 479 (2004), the league's recent rescission of the five-yard face-masking penalty in favor of making all such infractions punishable by fifteen yards suggests that it has cast its lot with the lumpers
82. see John Clayton, Owners Table Reseeding Playoffs Proposal; Pass Other Rules, ESPN (Apr. 2, 2008, 7:08 PM), http://sports.espn.go.com/nfl/news/story? id-3325273. And this isn't obviously crazy. Sensible system designers will frequently make available a more limited range of penalty options than might initially strike us as possible and desirable-perhaps to mitigate risks of over- or under-deterrence, or to reduce the time and expense of rule application, or to serve other reasonable systemic goals. For example, while most U.S. jurisdictions authorize sentencing officials to impose any sentence for voluntary manslaughter between two broadly spaced poles (say, between two and twenty years), California authorizes only three possible sentences: three, six, or eleven years. CAL. PENAL CODE § 193(a) (West 2010). Closer to home, law students might contrast the thirty-two-interval grading system used at the University of Chicago (any numerical score from 155-186, inclusive) with the four-interval system employed at Yale (Honors/Pass/Low Pass/Fail).
83. Compare Key to Transcripts of Academic Records, U. CHI., http://registrar.uchicago.edu/policies/transcript-key.shtml (last visited Jan. 25, 2011)
84. with Grade S., YALE L. SCH., http://www.law.yale.edu/academics/jdgrades. htm (last visited Jan. 25, 2011).
85. ROBERT HENDRICKSON, THE FACTS ON FILE: ENCYCLOPEDIA OFWORD AND PHRASE ORIGINS 280 (1997).
86. Peter King, No Matter Which Way You Dissect It, Bill Belichick Made the Wrong Call, SPORTS ILLUSTRATED (Nov. 16, 2009, 5:57 AM), http:// sportsillustrated.cnn.com/2009/writers/peter-king/11/15/mmqb/index.html. The Patriots didn't get the first down; the Colts took over on downs and scored the winning touchdown with thirteen seconds remaining. King is critical of the decision, urging that New England should have punted instead. Id. His criticism was misguided. For a powerful defense of Belichick's decision
87. Frank Frigo, The Anatomy of a (Fourth-Down) Decision, FIFTH DOWN (Nov. 25, 2009, 7:00 PM), http://fifthdown.blogs.nytimes.com/2009/11/25/the-anatomy- of-a-fourth-downdecision/.
88. See, e.g., Ritch, OK-So Bettman's "Cracking Down," AM. HOCKEY FAN (Apr. 21, 2006, 12:38 PM), http:// americanhockeyfan.blogspot.com/2006/04/ ok-so-bettmans-cracking-down.html.
89. Dave Sheinin, Roy Halladay No-Hitter Lifts Phillies Past Reds in Game 1, WASH. POST (Oct. 7, 2010, 12:01 AM), http://www.washingtonpost.com/wp-dyn/ content/article/2010/10/06/AR2010100606427. html.
90. Stephen Jay Gould, Op-Ed., The Strike That Was Low and Outside, N.Y. TIMES, Nov. 10, 1984, at 23. Gould's piece was mistitled. Video of the play makes clear, as the body of the essay suggests, that if the pitch wasn't the right height, it was too high, not too low-as Gould subsequently recognized.
91. See STEPHEN JAY GOULD, TRIUMPH AND TRAGEDY IN MUDVILLE: A LIFELONG PASSION FOR BASEBALL 47 (2003);
92. TheMLBhistory, Don Larsen's Perfect Game Biography, YOUTUBE (Dec. 22, 2010), http://www. youtube.com/watch?v-crTFMCkG7cU&t-02m50s.
93. ZACK HAMPLE, WATCHING BASEBALL SMARTER 122 (2007) (internal quotation marks omitted). In fact, many authorities attribute the quote to Hall of Fame umpire Bill Klem-and about Rogers Hornsby, not Ted Williams
94. See, e.g., Rogers Hornsby Quotes, BASEBALLALMANAC, http://www.baseball- almanac.com/quotes/quohorn.shtml (last visited Jan. 19, 2011). But that's nitpicking:Williams had a pretty fair eye, and the umps knew it.
95. See JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED x-xi (Hackett Publ'g Co. 1998) (1832). In addition to the criticism developed in the text, Hart objected, inter alia, that Austin's analysis could not make sense of the continuity of a legal system or of the normative character of law.
96. In fact, in the early days of baseball, more balls were required to make out a walk. Five successive rule changes adopted between 1879 and 1889 dropped the number from nine to the current four. DAVID NEMEC, THE OFFICIAL RULES OF BASEBALL ILLUSTRATED 22 (2006)
97. GLEN WAGGONER ET AL., SPITTERS, BEANBALLS, AND THE INCREDIBLE SHRINKING STRIKE ZONE: THE STORIES BEHIND THE RULES OF BASEBALL 114 (rev. ed. 2000) ("In 1879 it took nine balls . . . . By 1889 it was down to four . . . .").
98. JOHN R. SEARLE, SPEECH ACTS 33 (1970). And they create new forms of behavior-what Searle sometimes calls "institutional facts"-by assuming the form "X counts as Y in context C." Id. at 51-52 (internal quotation marks omitted). Thus, for example, moving the king two squares toward a rook and moving that rook to the square over which the king has crossed counts as castling in chess.
99. See generally JOHN R. SEARLE, THE CONSTRUCTION OF SOCIAL REALITY (1995)
100. RAIMO TUOMELA, THE PHILOSOPHY OF SOCIAL PRACTICES: A COLLECTIVE ACCEPTANCE VIEW (2002). For criticisms of the regulative/constitutive distinction
101. see, for example, Christopher Cherry, Regulative Rules and Constitutive Rules, 23 PHIL. Q. 301, 309 (1973)
102. Frank Hindriks, Constitutive Rules, Language, and Ontology, 71 ERKENNTNIS 253, 253 (2009).
103. See PGA Tour, Inc. v. Martin, 532 U.S. 661, 700 (2001). In concluding in the affirmative, the majority determined, in effect, that the central athletic challenge the PGA Tour presented was (to a first approximation) the ability to hole a ball by means of striking it with a club, in the fewest number of strokes, while battling fatigue.
104. See Pittsburgh Steelers WR Santonio Holmes NamedSuper Bowl MVP, ESPN (Feb. 2, 2009, 1:24 AM), http://sports.espn.go.com/nfl/playoffs2008/news/story? id-3877889.
105. FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 153 (1991)
106. see also, e.g., Larry Alexander & Emily Sherwin, The Deceptive Nature of Rules, 142 U. PA. L. REV. 1191, 1198 (1994) (arguing that "a rule works best if it lies").
107. see also 61-8-303. Speed Restrictions-Basic Rule, MONT. CODEANNOTATED 1995, http://data.opi.mt.gov/bills/1995/mca/61/8/61-8-303.htm (last visited May 3, 2011).
108. Claire Oakes Finkelstein, When the Rule Swallows the Exception, 19 QUINNIPIAC L. REV. 505, 515 (2000). On this view, true rules and rulified standard alike can be overridden by an exception. My claim is that, for rulified standards but not true rules, we can resist the rule's directive in a second way too-by disregarding its form in favor of the rule's own animating reasons.
109. See PELé A. & ROBERT L. FISH, MY LIFE AND THE BEAUTIFUL GAME (1977).
110. David Post, Americans, Soccer, and Scoring Con't, THE VOLOKH CONSPIRACY (June 27, 2006, 7:47 AM), http://volokh.com/posts/1151349617.shtml.
111. See Graham Dunbar, Bad Calls Prompt FIFA To Study High-Tech Ref Help, USA TODAY (June 29, 2010, 3:46 PM), http://www.usatoday.com/sports/soccer/2010-06- 28-933619635-x.htm.
112. see Liz Clarke, Koman Coulibaly's Call Negates U.S. Goal Against Slovenia in World Cup, WASH. POST (June 19, 2010), http://www.washingtonpost.com/wp-dyn/ content/article/2010/06/18/AR2010061805139.html
113. Elliot C. McLaughlin, Ireland Outraged After French Handball Nixes World Cup Hopes, CNN (Nov. 19, 2009), http://articles.cnn.com/2009-11-19/world/henry. handball.world.cup-1-world-cup-irish-national-soccer-team-handball
114. Officials Miss Call on Lampard Goal, ESPN (June 27, 2010), http://soccernet.espn.go.com/world-cup/story/-/id/5333533/ce/us/ no-goal-england-refs-miss-first-half-call&cc-5901
115. World Cup: Argentina Beats Mexico 3-1, CBS NEWS (June 27, 2010), http://www.cbsnews.com/stories/2010/06/27/sportsline/main6624435.shtml.
116. These are not abstract possibilities, as, once again, play in the 2010 World Cup shows. Consider, for example, the star-crossed Australians. The Socceroos were up 1-0 against Ghana in an opening-round match when defender Harry Kewell was sent off for a hand ball in the twenty-third minute. See Rob Smyth, World Cup 2010: Ghana 1-1 Australia -As it Happened, GUARDIAN.CO.UK (June 19, 2010, 1:04 PM), http://www.guardian.co.uk/football/2010/jun/19/world-cup- 2010-australiaghana-rob-smyth. It was a harsh and possibly decisive call on a seemingly inadvertent handling. The Black Stars scored on the ensuing penalty kick and held on for a 1-1 draw. Id. Days earlier, Uruguay's Nicolas Lodeiro was properly sent off for a reckless challenge against France in the eighty-first minute.
117. See France, Uruguay Play to Scoreless World Cup Draw, CBS NEWS (June 11, 2010), http://www.cbsnews.com/stories/2010/06/11/sportsline/main6573038.shtml. Playing defensively, La Celeste could resist Les Bleus for ten minutes, and the game ended in a scoreless tie. Id. Australia was ordered to play shorthanded for sixty-seven minutes for Kewell's infraction; Uruguay was disadvantaged for a mere ten minutes for Lodeiro's.
118. FOOTBALL-DATA.CO.UK (Jan. 26, 2011), http://www.football-data.co.uk/ englandm.php.
119. The Matches of 2010 FIFA World Cup, FIFA, http://www.fifa.com/worldcup/ matches/index.html (last visited Jan. 29, 2011)).
120. Michael Bar-Eli et al., Consequences of Players' Dismissal in Professional Soccer: A Crisis- Related Analysis of Group-Size Effects, 24 J. SPORTS SCI. 1083, 1087 (2006). Of course, it is possible, additionally or alternatively, that players behave differently early and late in games precisely because the impact of a red card varies depending on when it is issued.
121. Indoor Soccer 6 v 6 Laws of the Game, OXNARD INDOOR SOCCER, http://oxnardindoorsoccer.com/Rules-and-Forms.html (last visited May 3, 2011) (providing that when a player is ejected "the team can replace the player so they do not play short"). In team handball a "suspension" requires the offending player to sit out for two minutes, during which time his team plays shorthanded, whereas a "disqualification" results in the ejection of the offending player for the remainder of the contest, but only a two- or four-minute period of shorthandedness for this team
122. See INT'L HANDBALL FED'N, RULES OF THE GAME 49, 51 (2010) (Rules 16:3, 16:6). Until a recent revision, handball also authorized a penalty that, like the present red card in soccer, resulted in dismissal of the offender for the remainder of the game without right of substitution. Called an "exclusion," it applied to a "forceful and deliberate attack against the body of another person."
123. INT'L HANDBALL FED'N, RULES OF THE GAME 33, 54 (2005) (Rules 8:7, 16:9). My suggestion is that soccer should not maintain a red card system that is the mere equivalent to the old "exclusion" in handball. That is, I propose that it change the current red card to be something like " disqualification" in handball. Whether soccer should preserve its very strong medicine in addition to the somewhat softer penalty-perhaps it could have a crimson card and a burgundy card-is a separate question. Of course, this question again implicates the lumping/splitting debate
124. G. Ridder et al., Down to Ten: Estimating the Effect of a Red Card in Soccer, 89 J. AM. STAT. ASS'N 1124, 1126-27 (1994) (finding that an early red card increases the chance of victory for the other team)
125. Marco Caliendo & Dubravko Radic, Ten Do It Better, Do They? An Empirical Analysis of an Old Football Myth 1, 13 (Institute for the Study of Labor Discussion Paper No. 2158, 2006), available at http://ssrn.com/abstract- 08250 (finding that scores, for either team, were not influenced by expulsion and that the idea that "ten do it better" remains a "myth")
126. Mario Mechtel et al., Red Cards: Not Such Bad News for Penalized Guest Teams 15 (Working Paper, 2010), available at http://ssrn.com/abstract-571867 (finding that the send-off for a guest team after seventy minutes led to worse score for home team).