The NFL and the Limits of Legal Formalism

-- By ShakedSivan - 17 Feb 2012

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 endorsing 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 while endorsing some traditional notions of jurisprudence. 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."

What can we learn about jurisprudence from actual umpires? It is useful to analyze the metaphor in a slightly different context. Football, like baseball, is a sport with a self-contained set of rules that are generally precise, and the rules are enforced by officials on the field but made by someone else. Football involves more moving parts and thus is somewhat closer to mimicking the incredible complexity of society. In addition to finding the "facts"- was a catch made, where should the ball be spotted, etc., football referees are also responsible for routinely penalizing players and teams. We can use refereeing in football to see formalism at work.

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. They are tasked with making snap decisions about plays occurring at full speed. They are well trained and generally athletic, but not full-time officials. Indeed, one of the most notoriously long-winded (though respected by coaches) referees, Ed Hochuli, works as a lawyer when not officiating. Though NFL referees are presumably the best people available for the job, the limits of human ability dictate the inevitability of officiating mistakes. In sports, the "right call" is generally discernable and objective. The decision-making process, however, is subjective and fraught with error. Unfortunately, I could not find a study of the percentage of calls missed in the NFL, but every fan can recall any number of such mistakes. 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 only comes up in football in the context of the head official choosing among competing accounts from other referees. Rules in football are generally not vague, either. If one accepts that unlimited discretion would be unbearable, as Morris Cohen proposed, then a system designed to reduce discretion as much as possible would be a relief.

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. Johnson leaped over the Chicago defender, secured the ball, and half his body seemed to touch the ground before he went out of bound (in the NFL, only two feet have to be inbounds for a completion to count). The closest referee signaled a touchdown and Detroit fans and players burst into celebration. However, the officials recanted. They determined that Johnson did not maintain control of the ball after he went to the ground. He did not complete the "process" of the catch. The officials maintained this decision after using video replay; there was no factual dispute. "How can that not be a touchdown?" became a common refrain after the game. 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. "Law is a weak form of social control" because people do not make most decisions or judge most acts based on law. If Johnson had just one foot inbounds, no NFL fan would claim he caught the ball, even though college football only requires one foot inbounds. What constitutes a catch in the NFL is defined by the rules of the NFL, not the rules of college football or any other league. Fans are aware of this and first react to a sideline catch by checking to see if both feet remained inbounds. Yet we remain convinced that Calvin Johnson caught the ball and the referees stole a win by sticking to the letter of the law. Mechanical application of the law does not remove judicial decision makers from the scrutiny of crowds.