Legal Commentary

I am against the recent over-emphasis on video evidence in court, for reasons that I and others have discussed. For me, that objection has carried over (for reasons both similar and different) into a general dislike for instant replay in sports.

Well, the difference in last night's NCAA Basketball Championship, besides Memphis' horrid free-throw shooting down the stretch, was the use of instant replay and, in essence, appellate review of a single decision. With about four minutes left in the game, Memphis guard Derrick Rose launched a fade-away jumper from right around the three-point line, with two men in his face, that banked-in and initially was called a three-pointer. But during the next timeout, the officials went to the videotape and determined (correctly, I think, based on my perception of the video) that Rose's left foot was inside the three-point-line when he left the ground (although he released the shot and landed behind the line), making it a two-pointer and taking one point from Memphis. But for that changed call, Memphis would have lead by 4 with ten seconds left and the dramatic 3-pointer by Kansas' Mario (Superintendent) Chalmers that sent the game into overtime would have been meaningless. Memphis Coach John Calipari, while not necessarily disagreeing with the officials' conclusion as to what the video showed, said after the game he would argue that this use of video should be eliminated.

The instant-replay debate implicates the long-standing policy balance among accuracy, finality, the efficient flow of "the game," and avoidance of piecemeal review that characterizes the law of appealability. At trial, we typically draw that balance in favor of keeping things moving along, making (relatively) few decisions subject to immediate review and deferring heavily to on-the-fly decisions about singular issues, such as evidentiary and discovery ruling. That does mean some legal decisions, even legal errors, escape effective review. Had video review not been available, it would have been cold comfort to KU to announce afterwards that the game should have been one-point closer.

But the loss of accuracy is thought to be outweighed by interests in efficiency and some deference to the competence of trial judges, a view I typically share. Even more so in sports. Instant replay in football--where we have to wait 10 minutes to celebrate a touchdown while the ref stares into a hooded camera--has, I think, badly disrupted the rhythm of the sport. We did not have as blatant an interruption last, but I still would rather let the refs make their decisions and have them stand, any human error simply being part of the game.

And, by the way, I was rooting for Kansas. So pelase consider this principled, rather than results-oriented, jurisprudence.