Thursday, June 02, 2022

A new subject for comparative constitutional lawyers and designers?

Sandy Levinson

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

“Reviewing” The Jurisprudence of Sport:  Sports and Games as Legal Systems is both a challenge and a pleasure.  The challenge is obviously generated by the fact that it is actually a carefully put-together casebook, designed for use in a full-semester course on the topic announced in the title.  No casebook is meant to be read in the same way as an ordinary book, as illustrated by the multiplicity of interesting questions that are meant to stimulate lively joint discussion.   However, the fact that I am I am not likely to offer courses organized around the casebook does not prevent my genuine willingness to sing its praises and commend to other potential readers.  

The praises are due to the sheer pleasure generated by brio of the writing, evidence of the obvious enjoyment that the editors themselves undoubtedly felt in putting the materials (and the questions) together.  Every page illuminates the issues being considered.  But, as well, there is often almost laugh-out-loud humor derived from the sheer capaciousness of the “games” and “sports” that Berman and Friedman bring to the readers’ attention.  Who knew, for example, that competitive eating—known, if at all, to most of us through the annual Fourth of July contest downing Nathan’s Famous Hot Dogs—is actually divided into two camps.  ALICE—the Association of Independent Competitive Eaters—was established by a group of dissidents who rejected the decision of the “older and more established International Federation of Competitive Eaters” to allow contestants, for example, to run their food through water (“dunking”) or “splitting” the bun from the hotdog, rather than following what ALICE calls “picnic” rules where people are expected to eat unmushy hotdogs that are ensconced within the bun.  
First, of course, one has to decide that “competitive eating” is in fact a “sport”; the book begins with a marvelous overview of the various ways that we identify “sports” and “games,” a subject that has drawn the attention of many philosophers, including, famously, Wittgenstein.  To count as a "sport," how much “skill” is involved, and who defines what counts as a skill (like the ability to ingest dozens of hotdogs, especially if they’re mushy, in a short sitting)?  But must the skill be “physical” in some agreed-upon sense?  Mountain climbing clearly passes the test; competitive eating apparently does as well.  But what about chess, which requires physical stamina and psychological discipline in order to endure a long match, but otherwise seems to require only the ability to use one’s fingers to lift and move pieces.  (And, for that matter, it is easy enough to envision matches in which the players simply call out their moves, with no physical movement at all.) 

But agreeing that X is a sport (or a game, for those who distinguish the two) takes us to the brunt of the book, which involves endless debates about what count as “constitutive rules” and, very importantly, how changes in those rules take place.  There is much quotation from the very extensive and formal rules of golfing authorities or of Major League Baseball.  But, of course, there are also “conventions” within any long-established practice.  There is an entertaining discussion of the “unwritten rules” of baseball, which, as a matter of fact, are the object of significant contention.  Consider San Diego Padres player Fernando Tatis, Jr., who hit a grand-slam home run on a 3-0 pitch in the eighth inning of a game where the Padres had a 10-3 lead.  The New York Times, in an article tellingly titled "Baseball’s Unwritten Rules: Where Does It Say You Can’t Do That?," reported that he was berated by his own manager for violating the ostensible convention that one doesn’t swing on 3-0 pitches late in the game where the batter’s team enjoys an apparently decisive lead: “'He’s young, a free spirit,' Padres Manager Jayce Tingler told reporters after the game late Monday night. 'It’s a learning opportunity, and that’s it. He’ll grow from it.'”  Hall-of-Famer Johnny Bench begged to disagree:  “Everyone should hit 3-0. Grand slams are a huge stat.”   

So it is obvious that there is a deep connection between competitive games (or possibly even the game of solitaire when played by a conscientious player) and law.  All have systems of rules, sometimes quite elaborate, that call for interpretation, as well as the “unwritten” laws that also structure practices and entitle the practitioners to receive praise or blame, even if not “points,” for adhering to them.  

Not surprisingly, far more space is devoted to baseball and golf than to competitive eating or  cricket, but each and every illustration chosen by the authors has its own illumination.  Is a game necessarily defined by uniform rules?  With regard to Major League Baseball, the answer is obviously not:  The American and National leagues differed for years with regard to allowing “designated hitter" to relieve pitchers from the onus of batting (and freeing managers from the burden of having to decide whether to pinch-hit for an able pitcher when a hit might make a huge difference to outcome of the game). For whatever reason, the National League has now capitulated, beginning with the 2022 season, and "hitting pitchers" are remnants of a storied past.  No doubt traditionalists like George Will--whom I had the pleasure of debating a couple of weeks ago about the need for constitutional reform (he's against it)--are heartbroken; devotees of the “classical game” no doubt regard the "designated hitter" as rsimilar to dipping one’s hotdog into water and separating it from the bun.  But might So might one describe pre-2022 MLB as a form of “federalism” in which constituent units, each with their own measure of “sovereignty” were entitled to make their own rules, at least up to a point?  But what would that point be?  Would we still recognize the American League as playing “baseball” if, in order further to protect pitchers from the ravages of the traditional game, deemed a “strikeout” to occur if there are two missed swings even before a called “third-strike,” or if three foul balls counted as the equivalent of a strike?  Berman and Friedman invite the readers (and their professors) to make up all sorts of fanciful hypotheticals in order to test basic intuitions, and one suspects that most students (especially if they are male?) will enjoy them more than being asked if the regulation of mudflaps by state X can be said to violate the Commerce Clause..  But, unless one is especially interested in students learning something about the Dormant Commerce Clause, there is no reason to believe that thinking about mudflaps is a better way of introducing students to the complexities involved in “analyzing rules” (let alone “standards”) than is thinking about the rules of sports.

But there is a still deeper question raised by the publication of this really quite wonderful book:  As students especially of “constitutional law” and “constitutional design” properly become ever more comparative in our interests, what constitutes the set of legal systems that should be brought to students’ (and fellow scholars’) attention?  Ran Hirschl ha influentially criticized the tendency to focus on what he calls the “usual suspects,” i.e., the documentary constitutions and attendant decisions of the apex courts of no more than a dozen countries, almost all of them “Western” save for Japan and India, but not including, say, Ukraine, Bengaladesh, Zimbabwe, Saudi Arabia, or any of the other 191 countries within the United Nations (almost all, save for Great Britain, New Zealand, and Israel) with “written constitutions” that can be Googled.  But consider “Jewish law,” which has been in existence for at least two millennia and has been the subject of almost endless disputation among extraordinarily learned adepts for that entire period?  So why isn’t it also a candidate to break through the ranks of the “usual suspects, along, of course, with Islamic law and perhaps even the Canon Law of the Roman Catholic Church?  Is “Jewish law” really any less interesting or significant, socio-politically, than, say, the legal system of Ecuador?  I pick that country not to be snarky; in fact the recent constitutional history of Ecuador is extremely interesting, raising fundamental questions, as explored in a brilliant forthcoming book by Joshua Braver, about constitutional change and the notion of “constituent power.”  He makes an ample case for introducing Bolivia (and Venezuela, Columbia, and Bolivia) into our ongoing discussions.  But is there anything in welcoming those countries into ongoing discussions that precludes a similar welcome to “Jewish law”?

One response, of course, is that even if “Jewish law” governs groups of individuals who feel bound to observe it (and who therefore have what Hart called the “internal perspective” of law), it does not structure the governance of anything that we call a “state.”  Even Israel, the purportedly “Jewish state,” does not in fact view itself as “Torah-“ or “Talmud-true,” much to the consternation of certain “ultra-Orthodox Jews” who see this as foreclosing any claim to be considered a legitimate state at all, let alone a “Jewish state.”  Should, though, “comparative law” be restricted exclusively to the study of state practices , including, somewhat awkwardly, practices that purportedly control the practices of individual states, i.e., “international law”?  Perhaps the answer is yes on practical grounds.  States are simply more important than “non-states.”  They can, among other things, more easily wage war, kill people, and extract taxes.  That is all true and important.  But is that simply a mundane practical truth or is it one with deep theoretical import?

Berman and Friedman are, after all, looking seriously at a variety of practices that, however “stateless,” command the loyalties of literally millions—and in the case of soccer, probably billions—of people, some of whom are more than happy to engage in violence against their "enemies" who root for other teams or countries.  The sports are highly organized, with professional organizations enjoying a variety of coercive powers.  They can affect the lives of the professional participants in a given sport by fining them (or even prohibiting their future participation in the sport that has provided their livelihood).  They can attempt to offer binding definitions of gender identity relevant to deciding who can participate in those sports that are divided by reference to “men” or “women,” a classification, of course, based on the assumption that it would be “unfair” to place all in a single competitive contest based on, say, speed or the ability to lift extremely large weights or to hit balls from tees to their final resting place in holes.  

Needless to say, many such “disciplinary” acts quickly become the fodder for law suits that wind up in ordinary courts and reference to pre-emptive state laws involving, say, discrimination, but the crucial issue most often becomes ones that we are well aware of as lawyers:  To what extent should second-order decisionmakers, like reviewing judges, defer to the decisions, even if thought to be “mistaken” by the outside observers, made by those claiming the authority to set and enforce rules for the game?  Thus the book begins with the ultimately successful effort by professional golfer Casey Martin to gain an exemption from the general rule of the Professional Golfers Association that requires competitors to walk the course rather than ride a cart.  (Martin suffers from a rare and extremely painful degenerating circulation disorder that makes walking almost literally impossible.  But he is, nonetheless, a sufficiently skilled shot-maker to have earned a place on the PGA tour.)  Ultimately, the Supreme Court, through Justice John Paul. Stevens, apparently a golfer himself at the age of eighty, decided in his favor, holding that the Americans with Disabilities Act governed the PGA Tour.  Justice Scalia wrote a vociferous dissent, in part predicated on the notion that walking the course was an “essential” part at least of “classical” golf.  (One suspects that he would agree with ALICE’s maintenance of “picnic” rules in hotdog eating contests!)  

Perhaps some “states” proclaim their “sovereign” ability to regulate and all aspects of life within the jurisdiction, but “liberal states” do in fact recognize limitations on their “sovereignty.”  This is especially true, of course, is they are at all receptive to the insights of “pluralist” critics of “state sovereignty” like John Figgis, G.D.H. Cole, or Harold Laski. Perhaps we should realize that the state is only one organization or institution among many competing for the loyalty of persons.  We are most familiar with this through the rubric of “federalism.”  But there is no reason to deny that professional sports commonly have “governing organizations” that claim a measure of autonomy in their ability to regulate the members of their particular community.  They behave as governments often do (save for claiming the ability to kill people), but also, as with states in federal systems, generate inevitable conflicts as to who has ultimate authority to resolve those conflicts.  Would we recognize Congress’s authority, for example, simply to declare that the designated hitter makes a travesty of “America’s National Pastime” and forbid its future use, and, while they’re at it, abolish the infield fly rule (another topic of joyful analysis by Berman and Friedman) as just too complicated for just enforcement?  Perhaps Congress has the authority to order us to eat (or at least subsidize broccoli) under the Commerce Clause, and, surely, most of us would gladly overrule Justice Holmes’s inane decision exempting baseball from the anti-trust rules that apply to each and every other professional sport, but would we really grant Congress, under any plausible reading of the Constitution, the ability to change any and all rules even if supported by a majority of Americans?  To what extent, if at all, should we distinguish in our answers between congressional regulation of what the Court prefers to call “sovereign states,” on the one hand, and “private organizations,” on the other.  Or do “private governments” have their own claim to autonomy, perhaps by invoking notions of “freedom of association”?  And if they do, then why not pay at least some attention to them in our endeavors to understand better “comparative law” or “comparative constitutionalism,” including "constitutional  design?

All of these questions are raised by the publication of The Jurisprudence of Sport.  Whether we are simply besotted sports fans, students of jurisprudence, or institutional designers, all of us have reason to be grateful to Berman and Friedman for their clearly assiduous efforts to cover the field.  They have earned a 10 (though, as one would expect, they have an interesting discussion of “objective” v. “subjective” scoring).


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