Replay

California Law Review

Volumn 99, Issue 6, 2011, Pages 1683-1743

  Berman, Mitchell N ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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[No Author keywords available]

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EID: 84255192702     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (122)

1. State on Standby to Help Host 2010 World Cup, AUSTRALIAN, Nov. 22, 2006, http://www.theaustralian.com.au/news/state-on-standby-to-help-host-2010-world- cup/story-e6frg7s6-1111112566130.
2. 2010 FIFA World Cup: South Africa Revels in Success, TAIPEI TIMES, Jul. 14, 2010, available at http://www.taipeitimes.corn/News/sport/archives/2010/07/ 14/2003477885.
3. See, e.g., George Michelsen Foy, World Cup 2010: Ban the Zulu Trumpet Now! SHUT UP AND LISTEN! Blog (June 16, 2010), http://www.psychologytoday.com/ blog/shut-and-listen/201006/world-cup-2010-ban-the-zulu-trumpet-now.
4. Jack McCallum, Refereeing at the World Cup Is a Joke, and It's Hurting Image of the Game, SI. COM (June 28, 2010, 1:07 PM), http://sportsillustrated. cnn.com/2010/writers/jack-mccallum/06/28/world.cup/index.html.
5. See, e.g., Mark Sappenfield, Bad Calls: Top Five Refereeing Gaffes of the 2010 World Cup, CHRISTIAN SCI. MONITOR (June 27, 2010), http://www.csmonitor. com/World/Africa/Africa-Monitor/2010/0627/Bad-calls-Top-five-refereeing-gaffes- of-the-2010-World-Cup.
6. Graham Dunbar, Bad Calls Prompt FIFA to Consider New Technology, SALON. COM (June 29, 2010, 3:52 PM), http://www.salon. corn/sports/feature/2010/06/29/ world-cup-bad-calls-technology.
7. George Vecsey, Worst Call Ever? Sure. Kill the Umpires? Never., N. Y. TIMES, June 4, 2010, at A1, available at http://www.nytimes.corn/2010/06/04/ sports/baseball/04vecsey.html.
8. Jerry Crasnik, Selig Doubts Replay Use Will Expand, ESPN. COM (June 8, 2010, 12:19 PM), http://sports.espn. go.com/mlb/news/story?id=5262731. He also predicted that nothing would be changed.
9. See Mitchell N. Berman, "Let 'em Play ": A Study in the Jurisprudence of Sport, 99 Geo. L. J. (forthcoming 2011) (examining whether, and under what circumstances, rules of sports should be enforced less strictly at crunch time). This is not to claim that jurisprudes have ignored sports (and games) entirely, but only that the attention paid to this domain-including by such giants as Hart and Dworkin-is occasional and ad hoc.
10. See, e.g., H. L. A. HART, THE CONCEPT OF LAW 9, 35 (2d ed. 1994) (appealing to sports to exemplify the difference between power-conferring and duty-imposing rules)
11. RONALD DWORKIN, Taking Rights Seriously 101-05(1977) (also using chess to illustrate his "rights thesis"). The best known precursors in the law reviews to serious jurisprudential or comparative engagement with both sports and law are more whimsical than probing.
12. For the best of breed, see Aside, The Common Law Origins of the Infield Fly Rule, 123 U. PA. L. REV. 1474(1975).
13. See, e.g., TOBIAS J. MOSKOWITZ & L. JON WERTHEIM, SCORECASTING: THE HIDDEN Influences Behind How Sports Are Played and Games Are Won (2011) (exploring, among other questions, the magnitude and causes of home-field advantage, and whether teams and players really ever are "in the zone");
14. Ignacio Palacios-Huerta, Professionals Play Minimax, 70 REV. ECON. STUD. 395 (testing the Minimax theorem using data from penalty shoot-outs in soccer);
15. Joseph Price & Justin Wolfers, Racial Discrimination Among NBA Referees, 125 Q. J. ECON. 1859(2010) (using econometrics to assess racial discrimination by NBA referees).
16. It is difficult to separate types of calls into those that are and are not "game-changing" because a particular instance of a call-type that does not usually substantially influence the game's outcome might be momentous on that occasion. Imposition of a modest five-yard penalty for delay of game or illegal procedure, for example, might push the offense out of field goal position. Moreover, whether it does so might be known only to the kicker and his coach, which is why critics have objected to the NCAA rules that allow booth review only when, among other things, the call at issue would have-in the replay official's estimation-"a direct, competitive impact on the game." 2009-10 NCAA Football Rules and Interpretations at FR-145(2009) [hereinafter NCAA Football Rules] (Rule 12, sec. 5, art 1). The distinction between "judgment calls" and "nonjudgment calls" might appear more promising. Indeed, although the NFL rules specifically enumerate the reviewable calls, many commentators have described-and endorsed-the classificatory principle at work in these more general terms. The argument runs like this: even if we should try harder to get calls right when there is a true fact of the matter to discover (like whether the ball hit the ground or crossed the plane of the end zone), there just are not simple truths about matters of evaluative judgment (like whether some amount of contact was excessive), so subjecting such calls to replay review would amount to substituting one official's judgment for that of another.
17. See, e.g., Chad M. Oldfather & Matthew M. Fernholz, Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review, 43 IND. L. REV. 45, 51-52(2009). But matters are not quite so neat Most importantly, many unreviewable "judgment calls" involve elements that are purely factual. Take the most significant of the unreviewable calls: pass interference. How much contact is necessary to constitute forbidden interference might well be a matter of judgment and not properly reviewed. But what if replay shows that there was no contact at all, that the receiver tripped over his own feet? A mistaken defensive pass interference call in such circumstances seems like just the sort of thing that review is well-suited for. Just as interestingly, reviewable calls can contain unnoticed elements of judgment Consider a potentially game-altering play in the Giants' 38-45 loss to the Eagles in Week 14 of the 2009 season. After scrambling for a fifteen-yard gain to escape a sack, Giants quarterback Eh Manning fell to the ground and lost the football. The Eagles recovered and were awarded possessioa Calls of fumble and change of possession are reviewable to determine whether the ball carrier was down by contact before losing control of the ball, and the Giants challenged. Replay showed indisputably that Manning's knee was down before he lost the ball. So ordinarily the call would be reversed. But while it was clear that Manning was down, it was not as clear that he was down by contact: Eagles' defensive tackle Brodrick Bunkley had grabbed a piece of Manning's jersey as he escaped the pocket, but Manning took a few steps before hitting the turf, making it unclear whether the defensive contact had caused Manning's contact with the ground. If it had, there was no fumble; if it had not, there was. In the event, referee John Parry upheld the call on the field, but neither he nor the broadcast announcers suggested that this was a judgment call, hence not reviewable.
18. See, e.g., Gabriele Marcotti, Further Review on Instant Replay, SI. COM (Sept. 25, 2008, 1:57 PM), http://sportsillustrated.cnn.com/2008/writers/ gabriele-marcotti/09/25/replay (arguing that soccer should institute instant replay and that the appropriate standard of review is "simple. Just adopt the NFL language.").
19. See Don Banks, Upon Further Review: Recalling How NFL Adopted, Refined Instant Replay, SI. COM (June 4, 2010, 12:59 PM), http://sportsillustrated.cnn. com/2010/writers/don-banks/06/04/nfl.replay/index.html.
20. What If the NFL Had Not Employed Instant Replay, ESPN. COM (Feb. 13, 2007), http://sports.espn. go.com/nfl/news/story?id=2764251.
21. See Nat'l Football league, Official 1986 National Football league Record & Fact book 16(1986).
22. @18. Lonnie White, Instant Replay-Football: NFL Gives It a Second Look, and Tagliabue Says New Computerized System Is Huge Improvement Over Version Used in the Late'80s, L. A. TIMES, Sept 12, 1999, at D15.
23. For accounts of these various officiating gaffes, see, e.g., Dave Anderson, Just Thank Testaverde for Replay, N. Y. TIMES, Mar. 18, 1999, http://www.nytimes.com/1999/03/18/sports/sports-of-the-times-just-thank- testaverde-for-replay.html;
24. Thomas George, 6 Packers, 1 Receiver, 3 Seconds: 49ers Rewrite History, N. Y. TIMES, Jan. 4, 1999, http://www.nytimes.com/1999/01/04/sports/pro- football-6-packers-l-receiver-3-seconds-49ers-rewrite-history.html;
25. Ken Murray, NFL Zebras: Endangered Species?, BALT. SUN, Dec. 1, 1998, http://articles.baltimoresun.com/1998-12-01/sports/1998335065-l-tony-simmons- hail-mary-patriots.
26. Thomas George, N. F. L. Backs Limited Replay After Complaints of Bad Calls, N. Y, TIMES, Mar. 18, 1999, http://www.nytimes.com/1999/03/18/sports/pro- football-nfl-backs-limited-replay-after-complaints-of-bad-calls.html.
27. Charean Williams, Play It Again: The NFL's Instant Replay Isn 't Always the Last Word, L. A. Daily NEWS, Sept 8, 1999, at S1.
28. Reviewable calls include: all those related to whether a player or ball did or did not cross a goal line or side line; whether a pass was completed or intercepted; whether a pass was touched by an ineligible receiver or by a defender, and whether it was thrown beyond the line of scrimmage; whether a ball carrier was down by contact before losing control of the ball; whether a kick attempt was good, when not higher than the top of the uprights as it crossed the goal post; whether there were too many players on the field; and the spotting of the ball when a correct spot might determine whether the offense is awarded a first down. 2010 OFFICIAL PLAYING RULES AND CASEBOOK OF THE NATIONAL FOOTBALL LEAGUE 110-11 [hereinafter NFL RULES] (Rule 15, sec. 9, "Instant Replay"). The list of unreviewable calls is much longer. Some of the more common and consequential include offside, holding, pass interference, unsportsmanlike conduct, status of the clock, forward progress not relating to touchdowns or first downs, and recovery of a loose ball in the field of play.
29. See, e.g., D. H. Kaye, The Error of Equal Error Rates, 1 LAW, PROBABILITY & RISK 3(2002) (discussing and criticizing the competing hypothesis that preponderance of the evidence equally allocates errors).
30. The game's conclusion was noteworthy for another reason too. It prompted the NFL to change its overtime rules to reduce the influence of luck in calling the coin toss by providing that a team cannot win a playoff game in overtime just by scoring a field goal on the first overtime possession. See David Fleming, The Making of NFL Rule 16, ESPN THE MAGAZINE, Dec. 27, 2010, at 74, available at http://insider.espn. go.corn/nfi/insider/columns/story?id=5920207 (registration required). The new rule provides that [i]f the team that possesses the ball first scores a field goal on its initial possession, the other team (Team A) shall have the opportunity to possess the ball. If Team A scores a touchdown on its possession it is the winner. If the score is tied after Team A's possession, the team next scoring by any method shall be the winner.
31. NFL RULES, supra note 23, at 113 (Rule 16, art. 4 (b)).
32. Did Officials Bungle the End Game for Vikings?, N. Y. TIMES (Jan. 24, 2010, 10:43 PM) http:///fifthdown. blogs.nytimes.com/2010/01/24/did-officials- bungle-the-end-game-for-vikings.
33. Gregg Rosenthal, Pereira Talks About Controversial Calls in Saints-Vikings Overtime, PROFOOTBALLTALK (Jaa 27, 2010, 10:41 PM) http://profootballtalk.nbcsports.com/2010/01/27/pereira-talks-about- controversial-calls-in-saints-vikings-overtime.
34. Championship Playoffs Official Review Bonus Coverage, NFL. COM (Jan. 27, 2010, 7:32 PM), http://www.nfl.com/videos/nfl-playoffs/09000d5d816037d3/ Championship-Playoffis-official-review-bonus-coverage (video at 2:41).
35. Over the course of the 2009 season, offenses facing third down and at least eight yards to go had converted just under 24 percent of the time. Inside 3rd Down Run v. Pass Success-NFL 2009 Offense, STAMPEDE BLUE (June 24, 2010, 12:41 AM), available at http://www.stampedeblue.com/2010/6/24/1533609/inside- 3rd-down-run-vs-pass. I have not calculated the conversion percentage for third and fifteen, but we can bet that it was noticeably lower.
36. See Statistics: By Player Category, NFL. COM, http://www.nfl.com/stats/ categorystats?statisticCategory=FIELD-GOALS&season=2009&seasonType=REG (last visited July 9, 2011). I am disregarding kickers who had only a token number of field goal attempts.
37. Toward the end of 2009, Duke law professor Joseph Blocher questioned the NFL's F/E standard of review in a post to Prawfsblawg. Joseph Blocher, Why Aren 't Instant Replays Reviewed De Novo?, PRAWFSBLOG (Dec. 1, 2009, 2:28 PM), http://prawfsblawg.blogs.com/prawfsblawg/2009/12/why-arent-instant-replays- reviewed-de-novo.html (noting the then-forthcoming article by Oldfather & Fernholz, supra note 12, had not taken a stand in favor of de novo review).
38. That post was picked up by several other bloggers, including George Mason's Ilya Somin. Ilya Somin, Why Instant Replay Should Be Like De Novo Appellate Review, THE VOLOKH CONSPIRACY (Dec. 2, 2009, 1:58 AM) http://volokh.com/2009/12/02/why-instant-replay-should-be-like-de-novo- appellate-review. Having already completed a draft of this Essay, I wrote a short piece for Slate extending Blocher's and Somin's arguments.
39. Mitchell Berman, After Further Review, SLATE (Dec. 22, 2009, 12:25 PM), http://www.slate.com/id/2239018. These postings, and others, provoked a large number of rejoinders. I will be quoting from some of those comments. Blocher was not the first to recommend that the NFL adopt a less demanding standard of review. Nearly a decade earlier, a short piece appeared in the Vermont Law Review proposing that "manifest weight of the evidence" would be a preferable standard.
40. Jack Achiezer Guggenheim, Blowing the Whistle on the NFL's New Instant Replay Rule: Indisputable Visual Evidence and a Recommended " Appellate" Model, 24 VT. L. REV. 567(2000). That analysis, however, was almost entirely based on a peculiar premise. Observing that, midway through the 1999 season, nearly 30 percent of challenged calls had been reversed, Guggenheim concluded that the reviewing referees must be applying something less stringent than TVE in practice.
41. See, e.g., bsharporflat, What I Think Berman Doesn 't Recognize, Comment to Berman, After Further Review, supra note 35 (Dec. 23, 2009, 9:25 AM) http://fray.slate.com/dscuss/forums/thread/3534251.aspx?ArticleID=2239018 (contending that "the essence of sports spectatorship demands that the referee's onfield decision take precedence over a video-shows-mostlikely-correct decision"). Non-deferential review might be a bad idea, but the notion that it would flout essential demands of sports spectatorship is hard to take seriously.
42. See, e.g., Allen, Comment to Blocher, supra note 35 (Dec. 7, 2009, 2:35 PM), http://prawfsbkwg.blogs.com/prawfsbhwg/2009/12/why-arent-instant-replays- reviewed-de-novo.html ('To me the current system makes sense. Deferential review because there are instances where the officials see things the cameras can't Replays overrule the officials where the cameras see the same things, and the result is different").
43. As the venerated English sportswriter Simon Barnes observed, "One thing that sex and sport have in common is that stupid people like them both. One important difference is that clever people can enjoy sex-and can say that they enjoy sex-without forfeiting their right to be considered clever. However, a clever person who claims to enjoy sport will be considered less clever as a result." Simon Barnes, The meaning of Sport 46(2006).
44. dsimon, Refs Already Apply De Novo Review, Comment to Berman, After Further Review, supra note 35 (Dec. 23, 2009, 9:25 AM), http://fray.slate.com/ discuss/forums/thread/3533936.aspx?ArticleID=2239018.
45. Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 SYRACUSE L. REV. 635, 663(1971).
46. matcliff, Burden of Proof vs. Standard of Review, Comment to Berman, After Further Review, supra note 35 (Dec. 23, 2009, 9:25 AM), http://fray.slate.com/discuss/forums/thread/3539860.aspx?ArticleID=2239018.
47. Ref Collina Clarifies Comments on Video Officials, REDIFF. COM (Dec. 30, 2009, 10:16 AM), http://sports.rediff.com/report/2009/dec/30/referee-ollina- larifies-comments-on-video-officials.htm.
48. For the ranking of referees, see The World's Best Referee of the Quarter of a Century (1987-2011), Int'l Fed'n Football History & Statistics, http://www.iffhs.de/?20e43c03f32b00f31c13f32b17f7370eff3702bb1c2bbb6e08.
49. See, e.g., Mayer v. Montgomery County, 794 A.2d 704, 716 (Md. App. 2002) ("A de novo proceeding is one that starts fresh, on a clean slate, without regard to prior proceedings and determinations. A true trial de novo... puts all parties back at 'square one' to begin again just as if the adjudication appealed from had never occurred.") (alteration in original) (emphasis added) (internal citation omitted) (internal quotations omitted).
50. See, e.g., Paul Finkelman, Baseball and the Rule of Law Revisited, 25 T. JEFFERSON L. REV. 17, 25(2002).
51. Compare Judge Jack Weinstein's observation that '"de novo,' while reflecting the usual Latin obscurantism of the law, does not really mean the judge will decide as on a clean slate without considering the decision of the administrator (or on appeal the decision also of the trial court). Even the most egocentric federal judge applying de novo review will give some weight to what the presumably more expert or experienced plan administrator actually did, even if that weight is applied sub rosa or subconsciously." Mood v. Prudential Ins. Co., 379 F. Supp. 2d 267, 271 (E. D. N. Y. 2005).
52. Consider too debates over the proper review of patent claims construction after the Supreme Court's decision in Markman v. Westview Instruments Inc., 517 U. S. 370(1996).
53. See, e.g., Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1462 (Fed. Cir. 1998) (en banc) (Plager, J., concurring) ("Though we review [the] record 'de novo,' meaning without applying a formally deferential standard of review, common sense dictates that the trial judge's view will carry weight"); id. at 1463 (Bryson, J., concurring) ("[O]ur adoption of the rule that claim construction is an issue of law does not mean that we intend to disregard the work done by district courts in claim construction or that we will give no weight to a district court's conclusion as to claim construction, no matter how the court may have reached that conclusion.... [W]e approach the legal issue of claim construction recognizing that with respect to certain aspects of the task, the district court may be better situated than we are, and that as to those aspects we should be cautious about substituting our judgment for that of the district court"). I am open to the possibility that, for this reason, a referee engaged in de novo review might properly have upheld the on-field ruling that Meachem had made a clean reception in overtime of the 2010 NFC Championship Game.
54. See Statistics, NFLGSIS. COM (media password needed for access to database);
55. c.f. Hello, Red Flags! How NFL Teams Fared with Challengers in 2009, FOOTBALLBUSKER. COM (June 8, 2010, 8:54 PM), http://footballbusker.com/?p=4 ("[T]he average team uses less than one challenge per two games...").
56. Then again, because "timeouts are precious," coaches would still use their challenges cautiously even if the likelihood of success were somewhat greater than it is now. See Dave Anderson, Replay Instant Replay, N. Y. TIMES, Mar. 11, 1997, http://ww.nytimes.com/1997/03/11/sports/replay-instant- replay.html (quoting Bill Parcells).
57. See NFLGSIS. COM (media password needed for access to database).
58. Braziled, The Tim Donaghy Angle, Comment to Berman, After Further Review, supra note 35 (Dec. 23, 11:50 AM), http://fray.slate.com/discuss/forums/thread/ 3534640.aspx?ArticleID=2239018.
59. Tony Long, March 11, 1986: NFL Adopts Instant Replay, WIRED (Mar. 11, 2009), http:/www.wired.com/science/discoveries/news/2009/03/dayintech-0311.
60. David Hume, A Treatise of Human Nature 320 (Batoche Books 1999) (1739).
61. Fred Mitchell, Picture Fuzzy to Bears, CHI. TRIB., Nov. 6, 1989, at C1; see also Oldfather & Femholz, supra note 12, at 49 (citing Mitchell).
62. George Will, The End of the Umpire? Foul!, Chi. Trib., June 19, 2008, at C27.
63. Howard Wasserman, Against Instant Replay, SPORTS LAW BLOG (Sept. 10, 2007, 12:10 AM), http://sports-law.blogspotcom/2007-09-01-archive.html. In the same vein-though provoking the question "Does Wilson know what catchers do?"-Buffalo Bills owner Ralph Wilson objected to instant replay, reasoning that "it takes the human element out of the game, that it's like baseball doing away with the catcher and using a computer to call balls and strikes."
64. Thomas George, Owners Renew the Instant Replay, N. Y. Times, Mar. 3, 1990, http://www.nytimes.com/1990/03/13/sports/owners-renew-the-instant-replay. html.
65. For criticism of the analogy, see Mitchell N. Berman, Constitutional Interpretation: Non-Originalism, 6 PHIL. COMPASS 408(2011).
66. I anticipate that most readers will agree with this on reflection. Those who are unpersuaded might reflect on the increased use of advanced technology not to review calls initially made by humans but to replace human decision-makers in the first instance. For example, lets in tennis, wall touch in swimming, and points in fencing are all determined by technological means without relying upon direct human perception. Few fans, other than the most antiquarian or nostalgic, think that the introduction of such devices is a loss so long as adequately persuaded of their accuracy. But see Harry Collins, The Philosophy of Umpiring and the Introduction of Decision-Aid Technology, 37 J. PHIL. SPORT 135(2010) (objecting to such devices when they offer a precision that substantially exceeds that which participants and spectators can perceive). In any event, nobody objects to such solutions on the grounds that they eliminate the opportunity for officiating error. Well, almost nobody. Oldfather and Fernholz argue that dramatic considerations have persuaded the NFL to preserve its low-tech chain system for measuring first downs despite the availability of several more precise high-tech alternatives.
67. See Oldfather & Femholz, supra note 12, at 74 (citing John Branch, In High-Tech Game, Football Sticks to an Old Measure of Success, N. Y. Times, Jan. 1, 2009, http://www.nytimes.com/2009/01/01/sports/football/01chains.html). I believe, however, that they overstate the importance to the NFL of "[t]he drama of close measurements." As I read it, the article that Oldfather and Femholz cite suggests that the League's principal objections to laser-based alternatives are their high cost and the fact that they promise only trivial marginal increases in accuracy given that the officials' spot of the ball would remain highly imprecise.
68. We might say that minimizing weighted error is always the goal (keeping other costs constant). But when the weights or costs of each type of error are equal, minimizing total errors and minimizing total weighted errors amount to the same thing. Either way, I am indulging the modestly simplified assumption that the two types of correct decisions are equally good. Interesting recent work on the beyond-a-reasonable-doubt standard of proof challenges that assumption for criminal trials. See Larry Laudan & Harry D. Saunders, Re-Thinking the Criminal Standard of Proof: Seeking Consensus About the Utilities of Trial Outcomes, INT'L COMMENT. ON EVIDENCE, Sept. 2009, art. 1, at 1. But the assumption seems sound that, when it comes to reviewing on-field calls, correct affirmances and correct reversals are at least very close to equally good.
69. What precisely is the "it" that he deserves-to be punished? to suffer? Something else? For thoughts on this important question that theorists of the criminal law routinely overlook see Mitchell N. Berman, Two Kinds of Retributivism, in PHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW 433 (R. A. Duff & Stuart P. Green eds., 2011).
70. In re Winship, 397 U. S. 358, 372(1970) (Harlan, J., concurring).
71. See Alexander Volokh, Aside, n Guilty Men, 146 U. Pa. L. Rev. 173, 195-96(1997). The delightful phrase "raised him an execution" is Volokh's.
72. Psychologists are uncertain just how nuanced human confidence judgments actually are. No doubt the human confidence scale is not calibrated in hundredths: outside of games of chance and similar contexts in which we internalize frequentist probabilities, it would be bizarre to claim to be, say,.58 confident that p. Beyond that, however, about all that psychologists are agreed upon is that, between the poles of being "certain" that some proposition is true and being precisely in "equipoise," humans can reliably distinguish only among limited categories of subjective confidence, frequently grouping their judgments in such broad clusters as more likely than not, very likely, and almost certain. For a recent experimental study of how coarse or fine-grained are people's probability judgments, see Yanlong Sun et al., Probabilistic Judgment on a Coarser Scale, 9 COGNITIVE SYS. RES. 161(2008).
73. See, e.g., Joel D. Lieberman, The Psychology of the Jury Instruction Process, in Jury Psychology: Social aspects of Trial Processes 133 (Daniel A. Krauss & Joel D. Lieberman, eds. 2009).
74. Well, as everybody knows, "the tie goes to the runner." So if the ball and batter reach first simultaneously, you answered, the batter-runner deserves to be called "safe." That's true. But only since 2010. Universal sandlot wisdom about ties might trace to Rule 6.05 (j), which provides that a batter is out when "[a]fter a third strike or after he hits a fair ball, he or first base is tagged before he touches first base." Major league Baseball, Official Baseball Rules 50(2011), available at http://mlb.mlb.com/mlb/downloads/y201 l/Official-Baseball-Rules.pdf. If the batter reaches first at the same time that first base is tagged, then the base has not been tagged "before" he touches it. And so, one might reasonably surmise, he must be called safe. Unfortunately, recent versions of two other rules working together indicated that that conclusion would be too quick. Rule 6.09 (a) provides that the batter becomes a runner when he hits a fair ball. Id at 55 (rule unchanged). That seems both obvious and unproblematic. The historic version of Rule 7.08 (e), however, provided that "Any runner is out when... he fails to reach the next base before a fielder tags him or the base, after he has been forced to advance by reason of the batter becoming a runner."
75. Major League Baseball, Official Rules of Major League Baseball 118-19(2009). That is, on a force play, the runner-including, per Rule 6.09 (a), the batter who has become the runner-is out unless he reaches the base before the ball does. So it now appears that the rules were hopelessly contradictory: according to Rule 6.05 (j), the tie goes to the runner, according to the old Rule 7.08 (e), the tie went to the fielder. Indeed, that is precisely the conclusion reached by the sleuth-the philosopher Ted Cohen-who first identified this troubling interaction among the rules in a marvelous essay.
76. Ted Cohen, Comment, There Are No Ties at First Base, 79 YALE REV. 314(1991)
77. reprinted in Baseball and Philosophy: Thinking Outside the Batter's box 73 (Eric Branson ed., 2004) (explaining that when he presented this contradiction to MLB officials, advising them to remedy it, he was rebuffed on the grounds that, according to the umpires, "there never are any ties"). But did the rules really conflict, requiring a choice between them in the case of a tie? Strictly speaking, no. Rule 6.05 (j) says only that a batter-runner is out if first base is tagged before he touches it The rule does not say that a batter-runner is safe if first base is tagged at the same time that he touches it To be sure, that is the most natural implication. As Cohen puts it, that is the rule's "import because the other rules do not give any other reason for calling him out" Cohen, supra, at 316.1 would say, rather, that that would be the rule's inescapable import if the rules did not give any other reason for calling him out But they do-that was the effect of Rules 6.09 (a) and 7.08 (e) until the loophole was closed. So the apparent contradiction could be escaped by reading 6.05 (j) literally, refusing to indulge its negative implication.
78. Cf. Royal American Oil & Gas Co. v. Szafranski, 147 B. R. 976, 982 (Bankr. N. D. Okla. 1992) (stating the risks of negative inference as a method of statutory construction). And if we choose that path, we are left with a simple rule: ties go to the fielder!
79. 2009 National Football League referees' Manual 53(2009) [hereinafter NFL Referees' Manual].
80. In saying this, I do not mean either to claim that all viewers will see the call the same way or to deny that how viewers see the call may be influenced by their ideological priors, including their attitudes about referees. For one discussion of the relationship between perception and normative or evaluative priors, see Dan M. Kahan et al., Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 HARV. L. REV. 837(2009).
81. One of the most notorious reversals in NFL history-the call that made the 'Tuck Rule" famous-was referee Walt Coleman's overturning of his own initial call that Patriot quarterback Tom Brady had fumbled with less than two minutes remaining in a 2002 playoff game against the Raiders. See Richard Sandomir, Referees Turn to Video Aid More Often, N. Y. TIMES, Jan. 25, 2002, at D1.
82. OFFICIAL BASEBALL RULES, supra note 68, at 84 (General Instructions to Umpires).
83. Some of the experimental literature is concisely summarized in Erik Lillquist, Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability, 36 U. C. DAVIS L. REV. 85, 111-17(2002).
84. See Another Strong Finish Allows Steelers to Take AFC North Crown, NFL. COM, http://www.nfl.com/gamecenter/2008121401/2008/REG15/steelers@ravens#recap- channels:cat-post-recap-full-story (last visited July 9, 2011).
85. Patrick McManamon, Upon Further Review, NFL Replay System Should Go, AKRON BEACON-J., Dec. 15, 2008, http://www.ohio.com/sports/mcmanamon/36179439. html.
86. Peter King, Indisputable Evidence, Steelers Continue to Survive in Tough Games, SI. COM (Dec. 16, 2008, 12:54 AM), http://sportsillustrated.cnn.com/2008/ writers/peter-king/12/14/Week15/index.html.
87. See Josh Patashnik, Football, Instant Replay, and Arbitrariness, NEW REPUBLIC (Dec. 8, 2009, 9:13 PM), http://www.tnr.com/blog/the-plank/football- instant-replay-and-arbitrariness (asserting that "most referees don't truly impose an indisputability standard").
88. During the 1980s, Major League Baseball confronted a gap between the law-in-the-books and the law-in-action of its own: umpires refused to call strikes as high as the rulebook required. After years of unsuccessfully trying to cajole, threaten and importune the umps to call higher strikes, MLB settled on a wise solution: it lowered the upper limit of the strike zone from the armpits to "the midpoint between the top of the shoulders and the top of the uniform pants." Although this upper limit was still higher than what the umps had been calling, the league office reasoned that if the formal rule were closer to what the implementing officials-the umpires-liked, they would adhere to it even if they found it less than ideal. See Murray Chass, Baseball Changes the Strike Zone, N. Y. TIMES, Dec. 8, 1987, http://www.nytimes.com/1987/ 12/08/sport/baseball-changes-the-strike-zone.html. This episode suggests a more general lesson: when the gap between the law-in-the-books and the law-inaction becomes too great, the former can lose almost all its power to influence behavior. So, perhaps counterintuitively, a loosening of the rules might produce a tightening of behavior.
89. See, e.g., Daniel Kahneman et al., Anomalies: The Endowment Effect, Loss Aversion, and the Status Quo Bias, 5 J. ECON. PERSPECTIVES 193-94(1991). Another alleged cognitive bias, the omission bias, might also be relevant. But I do not think that this bias (essentially, a disposition to assess acts that produce a bad outcome as worse than failures to act that produce the same outcome) adds anything to loss aversion in this particular context And because omission bias is somewhat less well understood than is loss aversion-in particular, it is far from clear when omission bias is a genuine cognitive error or irrational as opposed to a substantive moral judgment-I focus here on loss aversion only. For a recent discussion of omission bias, including a review of the literature
90. see Jonathan Baron & Iiana Ritov, Omission Bias, Individual Differences, and Normality, 94 ORG. Behav. & Hum. decision Processes 74(2004).
91. See, e.g., Ido Erev et al., Loss Aversion, Diminishing Sensitivity, and the Effect of Experience on Repeated Decisions, 21 J. BEHAV. DECISION MAKING 575(2008) (discussing empirical reevaluation of test results that were explained as proof of loss aversion and arguing that these results were really a result of a diminishing sensitivity to absolute payoffs);
92. Jason F. Shogren et al., Resolving Differences in the Willingness to Pay and the Willingness to Accept, 84 AM. ECON. REV. 255-70(1994) (criticizing previous tests demonstrating the endowment effect for creating a situation of artificial scarcity and providing evidence from more scientific tests that suggest no endowment effect). In light of uncertainty regarding the existence, shape, and strength of the relevant phenomena, instant replay is not just an issue that settled understandings in psychology can help address; it also provides a context in which psychological theories can be tested and refined.
93. The American Heritage Dictionary of the English Language 606 (4th ed. 2006).
94. The Official Rules are not quite as clear on this point as we might hope. Rule 10.12 provides, that an error shall be charged for each "misplay (fumble, muff or wild throw) [which] prolongs the time at bat of a batter, prolongs the presence on the bases of a runner, or permits a runner to advance one or more bases," but it does not explicitly define "misplay," "fumble," "muff," or "wild throw." But the notes make adequately clear that not everything that falls short of the ideal counts. The rule's commentary directs that "[s]low handling of the ball that does not involve mechanical misplay shall not be construed as an error." The commentary further explains that, while "[i]t is not necessary that the fielder touch the ball to be charged with an error," the fielder's failure to do so shall be charged an error only if "in the scorer's judgment the fielder could have handled the ball with ordinary effort." Official Baseball rules, supra note 68, at 102.
95. On conduct rules and decision rules, see Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. Rev. 625(1984).
96. On primary rules and secondary rules, see HART, supra note 10, at 79-91.
97. See Natalie Angier, Drugs, Sports, Body Image and G. I. Joe, N. Y. TIMES, Dec. 22, 1998, http://www.nytimes.com/1998/12/22/science/drugs-sports-body- image-and-gi-joe.html.
98. See generally MARQUIS DE CONDORCET, ESSAISUR L'APPLICATTON DE L'ANALYSE À LA ProbabilitÉ des Decisions Rendues À la Pluralité des Voix (1785).
99. The National Hockey League (NHL) runs a centralized review operation along these general lines out of its Toronto "War Room." See, e.g., Tarik El-Bashir, In the NHL's 'War Room,' They Know Who's Been Bad, WASH. POST, Dec. 9, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/12/08/ AR2009120802731.html. As best I can tell, however, officials in the NHL War Room deliberate over the correct ruling, whereas, drawing on Condorcet, I am suggesting a non-deliberative process. It is not obvious to me which would be preferable, all things considered.
100. One commentator has claimed that the video technology "used at the Beijing Olympics... blows away anything in use in the NFL." Paula Duffy, Santonio Holmes Catch Still Under Review, EXAMINER. COM (Feb. 4, 2009), http://www.examiner.com/sports-in-national/santonio-holmes-catch-still-under- review-slide-show.
101. Graeme Smith Says Test Cricket Referral System Is Half-Hearted, AUSTRALIAN, Mar. 3, 2009, http://www.theaustralian. news.com.au/story/0, 25197, 25132162-5001505, 00.html.
102. Readers who would defend IVE might nonetheless enjoy this chestnut. Although the NFL rules rarely specify the standard of proof required for an on-field call, they sometimes do. For example, they specify a standard for receptions: if there is any doubt that the receiver made a valid reception, the pass must be ruled incomplete. NFL RULES, supra note 23, at 51 (Rule 8, sec. 1, art. 4). So we can combine that standard of proof with the indisputable-visual- evidence standard of review to produce a nice question: if the ruling on the field is "complete," what must the replay official determine in order to overrule that call: (a) that there is indisputable visual evidence that the pass was incomplete, or (b) that there is indisputable visual evidence that it is not certain that the pass was complete? Imagine, for instance, that the camera shows only the back of the receiver as he goes out of bounds and it is impossible to tell from that angle whether he had full possession of the ball before he left the field of play, and that the official who called the pass complete was standing next to the camera, making it (arguably) indisputable that he could not have discerned with certainty that the pass was complete. What is the correct call on review?
103. The NFL's Competition Committee does not like this rule either, but their preference is almost diametrically opposed to mine. In March 2011, while this Essay was in production, the Committee proposed to eliminate the third challenge. The owners ended up rejecting that proposal, but approved a different proposal to require the review of all scoring plays. See Mark Maske, NFL Changes Kickoff, Instant Replay Rules, WASH. POST, Mar. 22, 2011, http://www.washmgtonpost.com/sports/redskins/nfi-changes-kickoff-instant-replay- rule/2011/03/22/ABIL30DB-story.html.
104. See John Clayton, Dungy Wants Changes to Replay System, ESPN. COM (Dec. 15, 2002, 7:24 PM), http://a.espncdn.com/nfl/columns/clayton-john/1476343.html.
105. See INT'L RUGBY BD., LAWS OF THE GAME: RUGBY UNION 2010, at 43(2010) (Law 6. A.6 (b)). Somewhat farther afield, when a court determines that some other court (say, a higher court or the court of another jurisdiction) is better equipped to resolve a novel question of law, it is often authorized to certify that question to that other court for initial resolution.
106. NCAA FOOTBALL RULES, supra note 12, at FR-146 (Rule 12, sec. 7, art. 1). I do not know why it substitutes "video" for "visual."
107. Japan: True Stores of Life on the Road 39 (Donald W. George & Amy Greimann Carlson eds., 1999). The author of the travelogue noted that the gyogi he saw wore a ceremonial fan to represent a dagger, but top-ranked gyoji (tale-gyoji) still wear actual daggers to represent their willingness to take their own life for a mistaken call.
108. See Sumo Gyoji Costume, OSUMOU. COM, http://ozumou.eom/e/gyouji-shouzoku. html (last visited Aug. 17, 2011).
109. In 2009, the league office revised its official referees' manual to validate this practice. See NFL REFEREES' Manual, supra note 69, at 52-53 ("If you confirm or reverse the ruling on the field, explain the reason why. The explanation should be short and to the point. The only time you should announce 'the ruling on the field stands' is when there is not enough visual evidence to make a decision. However, do not say the play or ruling is 'confirmed' or 'reversed'.").
110. Peter Duff, The Not Proven Verdict: Jury Mythology and "Moral Panics," 1996 JURID. REV. 1, 6.
111. In recent years, American legal journals have seen two proposals for reform along these lines. See Andrew D. Leipold, The Problem of the Innocent, Acquitted Defendant, 94 NW. U. L. REV. 1297(2000);
112. Samuel Bray, Comment, Not Proven: Introducing a Third Verdict, 72 U. CHI. L. REV. 1299(2005). For a more radical reform proposal driven by a concern that jury verdicts should send clear and nuanced messages
113. see PAUL H. ROBINSON, STRUCTURE AND FUNCTION IN CRIMINAL LAW (1997). You might think that the issue would have been mooted more exhaustively in the English legal literature given the greater salience to English lawyers and scholars of the Scottish experience. Not so. When I expressed my surprise at the dearth of English literature on the subject to John Gardner, the Glasgow-bom Professor of Jurisprudence at Oxford, he had a ready explanation: "The quickest way to ensure that the English don't do something is to tell them that's the way it's done in Scotland."
114. See Bureau of Justice Statistics, NCJ 221152, Felony Defendants in Large Urban Counties 2004, at 3(2008), available at http://bjs.ojp. usdoj.gov/content/pub/pdf/fdluc04.pdf (reporting that, in the nation's seventy-five most populous counties, 79 percent of trials in 2004 resulted in conviction).
115. Federal prosecutors do as well as their state counterparts. BUREAU OF JUSTICE Statistics, NCJ 213476, Compendium of Federal Justice Statistics 2004, at 62 tbl.4.2, available at http://bjs.ojp. usdoj.gov/content/pub/pdf/cfjs04.pdf (documenting 2, 630 convictions in 3, 346 cases that went to trial for a success rate of 78.6 percent).
116. For an incisive discussion, see Larry Laudan, The Presumption of Innocence: Material or Probatory?, 11 LEGAL THEORY 333(2005).
117. Cal. Penal Code § 851.8 (West 2010).
118. Matthew Rabin, Psychology and Economics, 36 J. ECON. LIT. 11, 36(1998).
119. See Mark Kelman et al., Context-Dependence in Legal Decision Making, 25 J. LEG. STUD. 287(1996). (Pubitemid 126406452)
120. See Innocence Project, 250 Exonerated 51(2010).
121. Sally Broadbridge, Home Affairs Section, house of Commons Library, sn/ha/2710, the "Not Proven" Verdict in Scotland 8(2009), available at http://www.parliament.uk/briefing-papers/SN02710.pdf.
122. Renton & Brown: Criminal Procedure (6th ed. 2010) ¶ 18-79.9.