Sing a New Song, Teach a New Course: Day 1

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).

Mitch Berman 

Let me begin with both thanks and apologies.  Sincere thanks to Jack Balkin for hosting this symposium on Rich Friedman’s and my book, and to Yuval Abrams, Jodi Balsam, Mark Graber, and Sandy Levinson for their incisive and generous commentaries.  Heartfelt apologies to them for my absurd delay in responding. There’s a story to be told (isn’t there always?), but a fine sporting term captures the gist: unforced error.

I see our book as serving two functions.  As a textbook, its first and most important aim is to enable the teaching of an intellectually rewarding and pedagogically sound course that investigates sports conceived as legal systems.  Having taught with the book, I know that it can achieve this end.  Because you’d have reason not simply to take my word for this, here I’d just emphasize the wide variety of courses it can profitably facilitate—from seminars to full 3-credit courses, and to a range of audiences. 

As Yuval anticipates, the book can be used not only in law schools but also in an undergraduate curriculum as an introduction to law and legal thinking.  I have myself taught it to a mixed class consisting of JD students, LLMs, and advanced undergrads.  Moreover, given the explosion of interest in sports analytics thanks to the data-richness of the environment (note Jodi’s contribution), the book also holds great promise to be co-taught with colleagues expert in statistics, maybe in economics departments or business schools.  Furthermore, many law schools require 1Ls to select one elective from a slate of courses on “perspectives” or “methodology.”  A course in the jurisprudence of sport could fit this bill wonderfully well.  (As far as possible gender imbalance goes, my experience is the same as Rich’s: although the topic attracts somewhat more men than women, it appeals to plenty of everybody.) 

The book’s second ambition is to serve as a resource for scholarship.  It’s not only that we as instructors can use sports to teach students lots about ordinary statist (“municipal”) law and legal reasoning.  The jurisprudence of sport is an immature field ripe for scholarly exploration, and the many unusual sports rules, practices, and incidents that the book collects, along with countless editorial questions and comments, provide plenty of grist for any scholar’s mill.  At least that’s our hope.  Happily, the rich comments in this symposium, and the diverse scholarly orientations and sets of concern they reflect (system design, interpretation, rulemaking, and legal theory), only strengthen my confidence that faculty who engage with the material will find it fertile ground for scholarly insights, not only a teachable text.

I read Sandy’s contribution as a set of reflections on whether comparative law should “be restricted exclusively to the study of state practices.”  To ask this question, one might think, is to answer it—especially for somebody with Sandy’s boundless curiosity and skill at drawing unnoticed connections.  Nonetheless, Sandy does not take a negative answer as a given.  Allowing that “states are simply more important than ‘non-states,’” he asks whether that is “simply a mundane practical truth” or “one with deep theoretical import.”

The answer is neither.  Or perhaps both.  Comparative studies are in the business of illumination, and you take your illumination where you can find it.  For some purposes, the fact that municipal law concerns more important matters than do sports, and is backed by the coercive force of the state, is a relevant difference, while for other purposes it isn’t, much as careful study of fruit flies can teach some lessons that are of genuine importance for humans (say, concerning age-related diseases) and others that are of no use at all (say, concerning social organization).  To take a single example discussed in the book, collective sanctions are exceptional in municipal and international legal systems but routine in team sports.  Use of such sanctions in sports might well teach useful insights about their instrumental efficacy in ordinary legal contexts while not supporting valid inferences about their moral permissibility.  None of this will be news to Sandy.  It’s a quick reply to possible skeptics of the enterprise.

Chief Justice John Roberts stands conspicuously among those who understand that careful attention to sporting rules and practices can teach valuable lessons about ordinary law or legal practice.  That’s the point of his (in)famous declaration that “judges are like umpires”: we can learn about proper judicial behavior by reflecting on the proper behavior of baseball umpires (and, presumably, of other sports officiators too).  Mark Graber agrees with the premise but draws a different lesson.  Sports officiators don’t undertake originalist interpretation, he observes, and neither should our justices.

As a dedicated non-originalist, I am of course sympathetic to Mark’s criticisms.  But instead of piling on, I’ll address a point on which Mark and I possibly disagree.  It concerns what consistency in officiating involves. 

Deeming consistency “the first virtue of sports officiating,” Mark argues that “officials should adhere rigorously to precedent.”  And that adherence entails, among other things, that a pitch that’s called a strike in the first inning must be called a strike in the ninth inning too.  As it happens, my very first article on the jurisprudence of sport (indeed, the piece that, although not inaugurating the field, did coin the term) offered a pro tanto justification for the practice of swallowing the whistle in crunch time.  So, as Rich hints, I have a dog in this fight.

Speaking very narrowly, I agree with Mark about balls and strikes: the size of the strike zone shouldn’t vary.  But that’s partly because the rules governing balls and strikes are constitutive, not regulative.  To conclude that no regulative rules of sport should be enforced in a temporally variant manner would be to overgeneralize. 

The core defense of whistle-swallowing rests on three premises.  First, well-designed penalties in sport are super-compensatory on expectation.  In the ordinary case, competitor A’s infraction reduces B’s win probability and increases its own.  In order both to compensate and to deter, the penalty aims to restore B to a win probability greater than it would have had but for A’s infraction.  (This is the start to a response to some of Yuval’s ruminations.)

Second, because every outcome-effecting event matters more toward the end of close contexts, the absolute magnitude of the difference between the win-probability effects of the penalty and of the infraction can become very great in crunch time.  Non-shooting fouls in basketball illustrate.  Take a slight non-shooting foul by defender A against ballhandler B with the score tied and 2 seconds remaining.  By making it just a little harder for B to get off a good shot or pass, the foul marginally reduces B’s probability of winning.  The award of free throws, however, would increase B’s win probability massively.  It is a windfall remedy.  Third, there are reasons to disfavor the award of windfall remedies in sport.  (The reasons, in my view, have deep connections to certain conceptual or essential truths about sport, but that’s a story in itself.)  If all this is right, then the same dislike of windfall remedies that underpins the substantial performance doctrine in contract law and the harmless error rule in criminal procedure can justify enforcing some rules more leniently toward the end of close contests.

Even if so, the practice might be all-things-considered unjustified if it doesn’t give players what they need.  That’s where Mark comes in.  What they need, he says, is predictability.  And because consistency serves predictability, they also need consistency. 

In broad strokes, Mark is certainly right.  But I think that consistency is more contextual than Mark suggests.  Consider soccer.  The very same tackle that might elicit only a verbal warning from the referee if committed at midfield might earn a yellow card if committed nearer the goal box.  Soccer players don’t find this disparity objectionably inconsistent because they get that the tackles are not “the same” in all relevant respects: they are committed at different places on the pitch.  Because the temporal location of a game event can be as salient as its physical location, it follows that a practice of calling the same behaviors differently at different times in a contest need not strike participants as inconsistent, and therefore need not introduce excessive unpredictability.  It all depends on how regular and consistent the temporal variance has become, a matter for empirical sociology.

This point is significant for law for at least two reasons.  First, it suggests that the temporally variant enforcement of some legal rules might be defensible—think especially of election laws as election day approaches and of pre-trial motions.  Second, it bears implications for Mark’s larger interest in interpretation.  One frequent argument for originalism has been that it delivers the predictability that non-originalist forms of interpretation cannot.  While much can be said in response, the fact that insiders’ intuitive judgments of likeness and difference can be highly nuanced and contextual is a likely component of the full counterargument.

Mitchell Berman is the Leon Meltzer Professor of Law and Professor of Philosophy at the University of Pennsylvania. You can reach him by e-mail at mitchber@law.upenn.edu.