Legal Commentary

Why Instant Replay Should be Like de novo Appellate Review

By Ilya Somin

Most lawyers know that appellate courts usually review lower courts? legal decisions de novo, while overturning factfinding and trail management decisions only if the lower court was guilty of ?abuse of discretion.? In other words, if the appellate judges believe the lower court got the law wrong, they will reverse its decision; but they will only reverse a finding of fact if the lower court made an especially egregious or obvious mistake. Instant replay in the NFL and now major league baseball is similar to appellate review of factual decisions: by NFL rules, the referee?s call on the field can only be reversed if the replay provides ?conclusive? or ?indisputable? evidence that the ref blew it. However, law professor Joseph Blocher makes a strong argument that instant replay should instead follow the model of de novo review:

Why are instant replays in the NFL (or in any other sport) subject to a heightened standard of review that requires ?conclusive? or ?indisputable? evidence to overturn an incorrect call? Why not review them de novo? . . .

Standards of review insulate factfinders? decisions from being overturned on appeal, even when reviewing judges disagree with them. A decision about trial management, for example, can be in some sense ?wrong? without being an abuse of discretion. As long as it?s not the latter, it?ll stand.

And there may be good reasons for this. If standards of review are essentially a way of allocating decisionmaking authority between trial and appellate courts based on their relative strengths, then it probably makes sense that the former get primary control over factfinding and trial management (i.e., their decisions on those matters are subject only to clear error or abuse of discretion review), while the latter get a fresh crack at purely ?legal? issues . . . Heightened standards of review apply in areas where trial courts are in the best place to make correct decisions.

But I don?t see how those arguments apply at all to instant replay in sports, which after all are just appeals of a different kind. An umpire or referee operating in real time is not in a better place to make a correct call than another referee (or even the same one) viewing the same play, from multiple angles, in slow motion, on a monitor. Am I missing something, or aren?t the usual arguments for having a strict standard of review?primarily, the relative competence of the factfinder?absent in the context of instant replay?

One possible answer to Blocher?s question is that allowing de novo review on instant replay challenges would lead coaches to challenge more calls, which in turn would delay games unduly. However, the NFL has already addressed this problem by giving each team only two instant replay challenges per game. Even if more coaches will now use both of their challenges, the added loss of time is unlikely to be great. Moreover, any harm caused by loss of time must be weighed against the benefits of getting more critical calls right (presumably, rational coaches will save their challenges for dubious calls that are especially important).

Some people think that legal analysis doesn?t shed light on any of the really important issues in life. This post and Blocher?s will surely put that invidious stereotype to rest.

Full post as published by The Volokh Conspiracy on December 02, 2009 (boomark / email).