Sing a New Song, Teach a New Course: Day 2

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

Thus far I’ve been emphasizing one intellectual move common to comparative inquiry: drawing nonobvious connections between superficially disparate phenomena.  That’s what both Sandy and Mark are doing.  The sibling move is to unearth underappreciated distinctions between superficially similar phenomena.  That’s what Yuval is up to in his fascinating discussion of safeties and touchdowns. 

The asymmetry that Yuval identifies is this: when the offense commits a penalty in its own end zone, the infraction constitutes a safety and results in the award of (two) points to the defense, but when the defense commits a penalty in its end zone, the offense is not awarded a touchdown and its (six) points, but instead keeps possession of the ball at the one-yard line.  To make sense of this apparent inconsistency, Yuval proposes that safeties and touchdowns are conceptually distinct phenomena: touchdowns must be caused, whereas safeties simply are.

Maybe.  There’s a lot packed into his argument.  And while there is much I am tempted to say in response, for the sake of brevity (too late!) I’ll just toss out a competing account that I am disposed to favor.  I’d say that it’s the rule that defines and thus constitutes safeties that actually embraces two conceptually distinct kinds of things.  The first kind of safety is a scoring play that the defense executes by tackling the ball carrier in its own end zone.  The second kind is a penalty on the offense for committing an infraction in its end zone where the usual form of penalty—loss of yards—is (thought) unavailable.  Scoring safeties are like touchdowns; penalty safeties are not.  On my way of carving things, but not Yuval’s, it would be truer to the underlying logic if the 2 points that attach to a safety were subtracted from the offense’s score in the case of penalty safeties and added to the defense’s score only in the case of scoring safeties.  Although the competitive consequence is the same either way, truth in advertising might favor this change in much the same way that the NFL already distinguishes between “stands” and “confirmed” as two functionally equivalent verdicts after instant replay review.  To summarize, and taking a page from a classic article, we might ask: How many kinds of safety does NFL Rule 11 constitute?  (a) 1; (b) 2; (c) 3; (d) more.  Yuval, I think, says (a).  I’ve thus far suggested (b).

While each of the contributions is excellent, I probably learned most from Jodi’s because the perspective she offers—“an insider’s view” on the making, amending, and enforcing of rules in the NFL—is most foreign to my own experience.  Beyond thanking her for educating me, I’ll limit myself to one quibble and one more substantive observation.

My quibble concerns Jodi’s suggestion that the New Orleans Saints lobbied for instant replay review of pass interference calls (and non-calls) to achieve “post-season vindication” and without “any particular theory of the game” to back it up.  Given that one lesson her contribution teaches is that the NFL aims to realize a multiplicity of ends—a lesson that vindicates my own thoroughly pluralist sensibilities—I’m a little unsure what she means by “theory of the game.” The current NFL replay system dates to 1999, when it was introduced, as one senior official explained (discussed here), precisely because the League didn’t “want anyone not going to the Super Bowl because of an error that could be corrected.”  Even if they were operating without a fully blown “theory of the game,” surely the Saints had a perfectly good League-certified principle to rely on: that consequential final calls should be correct if possible.  Instant replay of pass interference failed, in my judgment, not because it’s too ad hoc or unprincipled but because it’s hard to operationalize in a manner that significantly improves accuracy without substantial additional delay—which is why asking students to try to fix the problem is a great group exercise.

My final observation.  Jodi concludes by identifying lessons that rulemakers in law (legislators and regulators) might draw from the NFL’s rulemaking process.  All she says here strikes me as right and interesting.  I’d add a lesson for interpreters and legal theorists. Positivists believe that the legally proper approach to textual interpretation in any given legal system is somehow determined by or grounded in certain practices of certain groups of people.  Those practices evolve in response to pressures and incentives from the interpretive environment.  One highly relevant feature of the environment concerns the rapidity and reliability of formal rule revision.  As Jodi explains, formal rule revision in the NFL is highly rapid and reliable.  One should expect textualism to be stricter in NFL football than in U.S. statutory law, where it is in turn stricter than in U.S. constitutional law. 

As these comments are now overlong, as well as overdue, this is a good place to stop.  I’ll return to the beginning by reiterating my gratitude to the symposiasts for their keen and kind commentaries on our book, and to our host for making it possible. 

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.