Legal Commentary

Many thanks to the whole Prawfs crowd for having me here. Throughout the month I?ll try to blog a bit about constitutional law and being a first year law professor, but I?m going to start with a question of much broader significance: 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?

These are familiar questions for lawyers, of course. 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 (i.e., such issues are reviewed de novo). 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?

While puzzling through this momentous issue during last night?s Saints-Pats blowout, I learned that illustrious (aren?t they all?) Prawfs alumnus Chad Oldfather has done some actual, longer-than-a-blog-post thinking about it. He and Marquette 3L Matthew Fernholz have co-authored an interesting new piece called Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review, __ Ind. L. Rev. (forthcoming 2010), which as I read it doesn?t take a stand in favor of de novo review (see n. 97) but does use the process of instant replay in the NFL to elucidate some general principles of appellate review.

And for a multimedia version of the principle in action, check out the review of Brad Miller?s possible-buzzer-beater against the Nuggets last month.