For the Symposium on Mitchell N. Berman and Richard D. Friedman, The Jurisprudence of Sport: Sports and Games as Legal Systems (West Publishing 2021).
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.
Although I could easily devote a full post to any one of the four symposium essays, I’ll limit myself to a short comment on each, riffing on one or two elements that especially catch my fancy. And I’ll start with Sandy’s essay, partly because his contribution most squarely addresses the fundamental rationale for the textbook, but mostly for old times’ sake. I started working in this area when still on my rookie contract on the Texas faculty, and Sandy has been a constant source of support and warm encouragement from the get-go.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.