Balkinization: More Fun than the Dormant Commerce Clause

More Fun than the Dormant Commerce Clause – and At Least as Enlightening

Guest Blogger

For the Symposium on Mitchell N. Berman and Richard D. Friedman, The Jurisprudence of Sport: Sports and Games as Legal Systems (West Publishing 2021).

Richard D. Friedman

            First, let me thank Jack Balkin and the participants in this little symposium for putting time and effort into it, and for the generosity of spirit with which they approached it.

            As I see it, our book (The Jurisprudence of Sport: Sports and Games as Legal Systems, by Mitch Berman and me) is based on the simple premise that a game (or sport) is a legal system; rules constitute the game, and you don’t know what the game is until you know at least some of the rules. And so I think we can talk about the rules – or standards, or law – governing a game with as much intellectual gain as we can talking about those governing state-operated systems and others perhaps more traditionally thought of as within the ambit of THE LAW. Sandy Levinson got it just right in saying that presumably one can teach as much concerning analysis of legal systems by talking about sports as by talking about the Dormant Commerce Clause – but for many students talking about sports is a whole lot more fun.

            Two side points: First, yes, as Sandy suggests, more male students than female students tend to be interested in a course like this. Given that the class is an elective, and one among many, I’m comfortable with this, especially given that I always have a critical mass of female students. They are as avid participants as their male classmates and they often have expertise in particular sports that others in the class know little or nothing about. And, by the way, we inevitably spend a great deal of time talking about important issues related to sex equality that should be of interest to any student, sports fan or not. Second, the Dormant Commerce Clause is always the whipping boy or, to mix metaphors, the poster child for a boring subject. But for good reason. The doctrine ought to be eliminated. Perhaps this next Supreme Court term, in National Pork Producers Council v. Ross, it will be. That’s another conversation.

            Now note that I said that sports rules can be discussed with as much intellectual gain as other legal systems can. I have to agree with Sandy that, on the whole, state-operated legal systems have greater consequences than do others. That does not minimize the importance of non-state systems, which cover an enormous range of human activity. But, especially because I figure my students are going to forget most of the particulars I teach them anyway, intrinsic importance of the subject matter is less crucial to me than the extent to which it lends itself to sustained, rigorous, engaged examination. In fact, I have occasionally noted that, ironically, I can do my best pure law teaching in this course. In part, unsurprisingly, this is because students who choose it are so happy to immerse themselves in questions such as whether pass interference should be reviewable (not as easy as one might have thought, as Jodi Balsam points out) or whether extra innings in baseball should start with a runner on second. But there are other reasons as well.
            First, there is no curricular expectation; there’s no need to hurry to make sure I can cover a given set of topics. We go as far as we get. (One small caveat: I do think I ought to cover replay review each year.) Never once have I been asked whether a given topic is on the bar!

            And second, relatedly, I can feel free to spend as much time as I want way out towards the ought end of the is-ought spectrum. When I teach confrontation and hearsay in Evidence, to take a topic that absorbs much of my energy, though I certainly want students to think hard about what an ideal structure of the law would be, I also feel duty-bound to make them at least somewhat familiar with the law as it stands, warts, multitudinous hearsay exceptions, and all. But when I teach Rules of Play, as I call the course, I don’t much care if students walk away not knowing, say, what constitutes offsides in soccer or holding in football. I do sometimes focus on the details of rules so we can think hard about how word choices might matter and how changes might affect what happens on the field, for better or worse. And I’ve now taken some time making sure they understand the infield-fly rule, because it’s a useful exercise in the logic of game mechanics and it helps focus on some of the basics of baseball. But my principal interests in focusing on that rule are to ask questions such as whether it addresses a problem that needs a solution (I’m not so sure it does) and, if so, whether it’s the optimal one. (I feel strongly it isn’t; it protects the offense by giving a windfall to the defense.) I want students to think big, recognizing that, as Jodi makes so clear, even very well established games often change, sometimes dramatically. So I always want students to think about what changes would make a game as good as it can be. And I want them to think comparatively, to ask whether one sport can learn from another and whether variations in how they handle a given situation reflect differences embedded in the nature of the particular sports or mere path dependence. So, for example, how about eliminating free throws in basketball and penalizing fouls the way that ice hockey does, by taking players out of the game for a brief period? I think that would be a huge improvement. Most of my students do not. That’s OK, but I just don’t want to hear that the change would be too big or that it would be so different from the way the game has been played.

            I found Jodi’s emphasis on the constancy of change especially salient in conjunction with Mark Graber’s contribution to this symposium. Mark makes the arresting observation that a reader of our book will learn “little to nothing about originalism, public meaning originalism, living originalism, or any other originalism,” and that “[n]owhere will the reader find a discussion of the meaning of the rules at the time they were ratified.” Gee, I hadn’t thought about that, but I guess he’s right. As Mark says, the jurisprudence of sports – referring both to the topic and to the title of our book – is simply “not a jurisprudence of originalism.” Consistency, he says, based in part on his own experience in officiating, is the chief desideratum in officiating. Indeed, he seems to deny the propriety of what we call temporal variance: “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.” (I suspect that I agree with his position more than Mitch does.)

            All fair enough, and very interesting. But I don’t think I would extrapolate as much as Mark does. “If no sane person would think that officials should strive to interpret the rules of basketball in the spirit of James Naismith,” he asks, “why should a sane person think judges should strive to interpret constitutional rules in the spirit of James Madison.” Thus, he asserts: “Judges have no more business being originalists than referees.”

            Well, let me say right off that I am far from a dyed-in-the-wool originalist; I consider myself an eclecticist who regards various sources of meaning play an appropriate role in legal interpretation, the exact mix depending on the circumstances. I think the two Jameses were involved in very different enterprises, and that has a bearing on the role that original meaning may have.

            If the game Naismith created didn’t work longterm – that is, if it didn’t generate enough interest for people to continue to play it – oh well. And if it did work and endured, he probably would have been delighted to know its rules would constantly be subject to re-examination and potential revision under a process akin to the one that Jodi describes for football. And if he wouldn’t be delighted, it doesn’t matter; I can’t imagine he would have expected us to feel constrained by anything he did, and in any event we aren’t constrained. Perhaps it is a misnomer to still call the game basketball given that, rather than peach baskets, we use polyester nets that, quite intentionally, don’t even serve the basic purpose of a basket – to hold things. Nobody cares.

            As for Madison, he was trying to do a deal that would give doubters assurances of longterm security; the Constitution was intended in part as a set of constraints, after all, one “intended to endure for ages to come,” and to serve its purposes it could not be amended lightly or easily. In some circumstances, particularly where we don’t have a thick intervening history of interpretation and application, the original meaning – what the deal meant – may exert some pull.

Finally, I’ll offer some thoughts on the very interesting contribution by Yuval Abrams, who focuses on one of my favorite parts of the course and the book, discussion of fouls and penalties. Though ultimately he says that procedural law is a good model for thinking about the subject – and I agree, for procedural problems are pervasive throughout our book – he asks first whether fouls and penalties are more like crimes or torts. Consistent with his discussion of public and private law, I’d say that sometimes penalties principally serve one purpose, sometimes the other, sometimes both, and sometimes what we call penalties are really the price we impose on competitors to achieve a given result. (You’re behind late in a basketball game and you want to stop the clock and have a good chance of getting the ball back? You can do it, until my proposal for hockey-style penalizing is adopted, but the price is free throws.) Because in-game penalties are imposed quickly and without a whole lot of procedure, there is usually no need as a practical matter to resolve the analytical issue of how they should best be characterized.

            Yuval contends that, for the most part, penalties are not meant to serve the purpose of compensatory justice. Surely that’s sometimes right – though an “and one” in basketball may reward the extra difficulty of scoring despite a foul, no harm warranting compensation has been done. But I think some penalties, including yardage in football and free shots in sports such as basketball, soccer, and hockey (ice and field) are meant largely as compensation. True, we don’t ask officials to calibrate the penalty according to the probability that the victimized team would have scored absent the penalty. But that would put too much pressure on the fact-finding abilities of an official with very limited time; instead sports tend to impose flat-rate penalties. Yuval also points out that most sports don’t award scores on the basis of counter-factual speculations, though we might count goal-tending in basketball – and I suspect a lot of fans outside of Uruguay would join me in contending that it should be done in soccer as well.

            Yuval also offers a perceptive discussion of touchdowns and safeties. He point out that the former, unlike the latter, require an “achievement or success” on the part of the scoring team. He’s right that someone on the offense has to possess the ball across the goal line for a touchdown to be scored, even if (remember Ahmad Bradshaw!) that person is unopposed, but a safety can happen without anyone on the defense (as determined at the end of the play) touching the ball carrier.   Most safeties, though, begin with the ball close to the goal line, and result from the defense at least applying considerable pressure. I’d make safeties worth more than two points – but instead of calling a safety whenever the offensive team is penalized in its end zone, I’d make it run a play from there, if it still has downs left, and call the safety if it doesn’t get the ball out.

            I could keep on, but I’m overstaying my welcome. Sandy speaks of the “obvious enjoyment” we had in writing this book. Damn right. I’ve enjoyed this symposium, as I hope all the participants have, and I hope our book will provide many students and teachers a chance to engage in what Sandy calls “joyful analysis” of the endless and endlessly intriguing issues that the rules of sport provide.

Richard D. Friedman is the Alene and Allan F. Smith Professor of Law at the University of Michigan. You can reach him by e-mail at rdfrdman@umich.edu.

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