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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Sports and Non-Originalist Interpretation
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Monday, June 06, 2022
Sports and Non-Originalist Interpretation
Mark Graber
For the Symposium on Mitchell N. Berman and Richard D. Friedman, The Jurisprudence of Sport: Sports and Games as Legal Systems (West Publishing 2021). The jurisprudence
of sports is not a jurisprudence of originalism. Officiating boards across the country have an
officer called the “Interpreter.” The
Interpreter of Board 40 (might have been 41) of the International Association
of Basketball Officials (IABBO) in New Haven, where I was paying my way through
graduate school as a sports official, insisted that “we interpret the rules in
light of the purposes of the game so that no team gains an advantage in ways not
intended by the rules.” This is
purposivism. Other officials were
textualists. The Interpreter of IABBO
Board 10 on Long Island informed us that if an offensive player was in the lane
for 3 seconds, we were to call a three second violation no matter whether the player
was having any effect on the game. The
three second rule from this perspective needed no more interpretation that the two-senator
rule in the Constitution of the United States (the New Haven Interpreter disagreed).
All interpreters were doctrinalists. Maintaining our precedents was vital. The pitch we call a strike in the first inning should be a strike in the
last inning. No Interpreter was an
originalist of any stripe. We might
learn about what the framers intended when discussing a new rule just adopted that winter, but no Interpreter
gave any instruction in history when discussing various vague rules such as the
advantage rule in soccer (do not call a foul when doing so might disadvantage the
fouled team) or unnecessary roughness in football. THE JURISPRUDENCE OF SPORTS is not a jurisprudence of originalism. In a
fascinating study, Mitchell N. Berman and Richard D. Friedman catalogue the remarkable
number of jurisprudential issues that occur in the sporting world. Their text raises questions internal to
sports about how these issues should be resolved and, as important, whether the
way we think about the jurisprudence of sports ought to influence how we think
about jurisprudence more generally. This
is a text that will inspire numerous professors to teach a
course in the jurisprudence of sports, both because of interest in the
subject matter and because how thinking about sports may help us think about laws
more generally. Professors and students who use THE JURISPRUDENCE OF SPORTS will learn much about interpretation, but little to nothing about originalism, public meaning originalism, living originalism, or any other
originalism. Berman and Friedman discuss
textualism and purposivism in their chapter on how officials interpret sports
rules. The section on the role of
practice is an implicit discussion of doctrinalism and precedent. Nowhere will the reader find a discussion of
the meaning of the rules at the time they were ratified. Berman and Friedman point out
that the ban on fraternization was one consequence of the Black Sox scandal of
1919, but neither the authors nor anyone else seems to think the interpretation
of that ban depends on the public meaning of fraternization in the first
quarter of the twentieth century. The origins of rules in sports is ancient history, important for the study of classics, but not for either players or officials. In the spirit of THE JURISPRUDENCE
OF SPORTS, we might learn something about sports from thinking about why no official
cares about the original public meaning of sporting rules. The reasons range from an emphasis on
consistency, the official as combining factfinding jury and law-declaring judicial roles, the lack
of historical knowledge, and the absence of any claim that the founders of
modern sports, who are deservingly celebrated for their achievements, have
anything of value to contribute to contemporary debates over how the games they invested ought to
be played. In the spirit of THE
JURISPRUDENCE OF SPORTS, we might also consider whether the reasons basketball
officials are not originalists suggest Supreme Court justices also should not
be originalists. Consistency matters in
constitutional law as well as in baseball.
James Madison may have no more to say about running an administrative
state than James Naismith, the person credited with inventing basketball in
1891, has to say about the best interpretation of the double-dribble rule
during the 2022 National Basketball Association finals. The first virtue of sports
officiating is consistency. Officials
should adhere rigorously to precedent. The
pitch I call a strike for the visiting team in the first inning should be a
strike for the home team in the second inning and a strike for everyone in the
ninth inning. Only in the rarest
instance should I decide to change my interpretation or application of the rules in the middle of a game. Players are far more concerned that they can
identify what a strike is or how loosely I am calling hand-checks on defense in basketball than with whether my strike zone or
understanding of legal defense over the course of a game increasingly corresponds with
the understandings of the persons who drafted the rules of the game. Consistency goes far beyond making sure I adhere rigorously to an interpretation of the
rules during the game. If two officials
are working together, then they should strive to call the game the same way. Sotomayor and Alito must be on the same interpretive page when officiating little league basketball. When refereeing basketball, I typically had
a long talk with my partner before the game to harmonize how we interpreted the rules. Again, players want to be assured that we
will call tripping consistently, even though we what decide is a trip is not what a
framer might have thought. I should make
the same calls other officials in my area are making. If no one else in the league calls travelling when a kid
takes an extra step to execute a fancy dunk shot in basketball, I should
swallow my whistle as well, even as the framers bespeech me from their grave to
call a violation. Officials combine
law and fact-finding in a system with very little appeal. In many games, particularly games played by
inexperienced players, an official who called all violations would ruin the
enterprise. As the late Rocco Valvano
(Jim Valvano’s father for those who know their basketball) instructed new
officials, “a good referee is a little bit blind and a little bit dumb.” You do not see the routine pushing and
shoving that takes place when players jockey for rebounding positions in
basketball. You ignore a player
muttering a curse that only you can hear. Police officers behave similarly. Police departments do not investigate every
crime with the same degree of seriousness. Police officers often do not make
an arrest for every crime they see. Originalism is useless for determining when
you enforce the rules as written. The rules
may provide some guidance for when I blow the whistle and stop the game, but in
almost all sports, knowing the point of the game, knowing whether one team is
gaining an advantage in ways not intended by the rules, is far more important
than know the original public meaning of a rule. Referees must make calls quickly. Judges take months to resolve legal disputes
and have clerks who can help them research. When I must interpret an ambiguous rule during a game, I must make my
decision immediately. Textualism
helps. I will know that “roughing the
passer” is a foul in football.
Purposivism helps. The point of
the “roughing the passer” rule is to protect quarterbacks, who are vulnerable, and
star players. No referee who witnesses a
hard hit on a quarterback has the time to determine what “roughing the passer”
meant at the time that football rule was adopted. We cannot email a clerk. We do not do historian investigations before the game. Most of us are part-timers and have other
jobs. We are not going to spend our
lives reading the fifty-four different drafts of the “roughing the passer” rule
or the minutes of the rules committee that drafted that rule, even if those
documents existed. Legal history is not
part of an official’s training. We learn
the text of rules and their purpose. No basketball
refereeing clinic that I know of examines the history of hand-checking or the
various drafts of the rules that people considered. Maybe there is a history of sporting rules out there that might be of some use to an originalist, but no referee that I know of is aware of the existence of such a document. Officials who know
something of the game’s history are likely to interpret rules differently. In part because officials are part-time and
not professional sports historians, they are likely to interpret history
as consistent with their preferences about how the game is played. Consider the roughing the passer rule. The main point of the rule may be to protect
a vulnerable passer. The main point may
be to ensure quarterbacks, who are the star players on most teams and big fan
draws, are not injured. All the problems with determining the original meaning of "free speech" are likely to occur with interpretation the original meaning of "roughing the passer." If there is a conflict
between the vulnerability and protect the star purposes, officials who know a little about history are likely to interpret the history of
the rule as supporting their preferences on
the purpose of the game. Is anyone surprised? The persons responsible for the
rules are not venerated for their timeless wisdom. James Naismith is in the Hall of Fame as the celebrated
founder of basketball, but no one thinks that he discovered some fundamental
sporting principle that should be kept in pristine form. The people who make the subsequent rule
changes are nameless. Sports lack a John
Bingham who is (falsely in my view) celebrated for fundamentally changing the
rules of the constitutional game. Some
people kvetch about the three-point shot in basketball or the designated rule
in baseball, but broad agreement exists among officials that rules should be
interpreted in light of how games are played at present. Just as no coach would adopt the popular football
defenses of the 1950s, even if the men who devised those defenses are in the
Hall of Fame, so no official thinks that the persons who made the rules in the
1950s discovered eternal truths about how the game is best played. When faced with difficult decisions, we do not commune with our ancestors and ask whether they would have considered a minor tantrum to be "unsportsmanlike conduct." Judges have no more business being
originalists than referees. The
constitutional commitment to the rule of law is as much a commitment to
consistency as an umpire’s commitment to maintaining the same strike zone
throughout the game. Following precedent
in sports and law provides the consistency that enables athletes and political
actors to play the game. Pitchers and
members of Congress can adopt strategies knowing the legal consequences of
their actions. Neither athletes nor
citizens can effectively plan when laws may be changed whenever a prominent
legal historian writes an original article that supports a conservative
position (I’m looking at you Justice Thomas), someone finds a letter from James
Madison in an old attic, or a distant relative of Abner Doubleday (not really
the founder of baseball) reveals on her deathbed the original meaning of the
infield fly rule. As much divergence
exists between constitutional rules on books and in action and sporting rules
on books and in action. Nothing in
originalism tells constitutional decision-makers when to apply and not apply
the rules (the claim that judges should be more bound than elected officials to
original meaning is a claim about how the constitutional game should be played,
not a claim about the original meaning of the constitution). Judges are not much better at history than
sports officials. Many judges have had
no more formal education in the history of the First Amendment than basketball
officials have in the history of the travelling rule. This lack of training means that when judges
(or officials) engage in history, the result is likely to be substantial
variance, which undermines the rule of law, and conclusions more consistent
with the judge’s/official’s notion of good policy/play than the conclusions of
trained historians. Most important,
there is no more reason to seek guidance from the framers of the constitution
than the framers of various sports. Sports
evolve as do societies. If no sane person would think that officials should
strive to interpret the rules of basketball in the spirit of James Naismith,
why should a sane person think judges should strive to interpret constitutional
rules in the spirit of James Madison.
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Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |