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Why Aren't NFL Instant Replays Reviewed De Novo?

By Bruce Carton

Over on the PrawfsBlawg, guest blogger Joseph Blocher, a professor at Duke Law School, asks a great question that may resonate with some of you lawyers/NFL fans out there: 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? Blocher observes that football mirrors the legal world in that standards of review "insulate factfinders' decisions from being overturned on appeal, even when reviewing judges disagree with them." That is, even where the lower court's decision is wrong in some sense, it will still stand so long as it is not an "abuse of discretion." Blocher argues that while this makes sense as a way of allocating decisionmaking authority between trial and appellate courts based on their relative strengths, he does not see how those arguments apply at all to instant replay in sports, which he characterizes as "just appeals of a different kind." Specifically, he argues, 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...

Full post as published by Legal Blog Watch on December 07, 2009 (boomark / email).