Legal Commentary

Joseph asks a great question: Why is instant-replay review not subject to de novo review as opposed to a more-deferential standard. I have not been writing much lately, so I thought I would turn a comment into a separate post. First, let me say that long have hated replay in sports, so perhaps take this with a grain of salt and recognize that I would argue for any way to limit the full effect of replay.

I would argue that the deferential use of replay review reflects (implicitly, if not explicitly) an understanding of the limits of video. Video does not provide an objectively "right" answer. It simply provides another angle/perspective/viewpoint of the events, usually one different than what the official had. And not just because it can be slowed down and played backwards and rewatched multiple times, but because of differences between where the camera is and where the official was standing. And, of course, what the video "shows" is as dependent on the perceptions of the official watching the replay as was the original call on the field.

Given the reality of how film operates and how we view and understand film, deferential review makes sense because there is a form of institutional competence at work here (which, as Joseph notes, is the general rationale for differing standards of review). Video is not better situated to give an obviously, objectively correct answer than the initial call, at least not in all (many? most?) situations. That being so, there is no reason to give preference to the new viewpoint/perspective over the initial on-field one, unless review clearly shows a mistake. If video cannot necessarily produce a better (in the sense of more accurate) result, then it makes sense to leave control with the initial decision, absent an obvious error.