Most lawyers know that appellate courts usually review lower courts’ legal decisions de novo, while overturning factfinding and trial 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.
josh bornstein says:
2 possible reasons come to me right away.
a. In most sports, it is essential that the refs (umpires, etc) have the respect of the players. If there are more overturned calls, this might lead to less respect for calls, more overt protests on the field of play, etc. (I am, of course, laying out a possible rationale that the leagues may be relying on. I know that it’s equally possible that–in fact–the inability to overturn ‘marginally-wrong’ calls actually erodes players’ respect more.)
b. Time factors. Maybe the leagues figure that for a significant number of challenged calls, things will go quicker if the ‘appellate’ ref in the booth merely has to determine that it’s one of those calls that was not an indisputable mistake. In those cases, the game can then proceed. If a de novo trial occurred in all cases, that would delay the game unnecessarily (again, ‘unnecessarily’ in the eyes of the league).
I’m sure there are other plausible reasons as well that don’t come to my mind right off the bat.
December 2, 2009, 2:07 amMikhail Koulikov says:
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?
Because sports is sometimes not about being objectively right – it’s about doing whatever you need – and can get away with / not be caught doing – to win.
Which is how the non-sports world usually works.
December 2, 2009, 2:11 amIlya Somin says:
Because sports is sometimes not about being objectively right — it’s about doing whatever you need — and can get away with / not be caught doing — to win.
That’s true from a player’s perspective, of course. But I don’t see why either fans or the league should adopt that view.
December 2, 2009, 2:14 amIlya Somin says:
2 possible reasons come to me right away.
a. In most sports, it is essential that the refs (umpires, etc) have the respect of the players. If there are more overturned calls, this might lead to less respect for calls, more overt protests on the field of play, etc. (I am, of course, laying out a possible rationale that the leagues may be relying on. I know that it’s equally possible that–in fact–the inability to overturn ‘marginally-wrong’ calls actually erodes players’ respect more.)
I don’t see why players would have less respect just because a few more calls are overturned. Indeed, they might actually have more respect for the process if it were more often correct.
b. Time factors. Maybe the leagues figure that for a significant number of challenged calls, things will go quicker if the ‘appellate’ ref in the booth merely has to determine that it’s one of those calls that was not an indisputable mistake. In those cases, the game can then proceed. If a de novo trial occurred in all cases, that would delay the game unnecessarily (again, ‘unnecessarily’ in the eyes of the league).
I don’t think it would take the ref more time to do a de novo review than a more deferential one. As a practical matter, either would take only a minute or two at most. Indeed, the de novo review might actually take less time, because all the referee watching the tape has to do is decide what he thinks the correct call is. By contrast, if he must look for “indisputable” evidence, he would have to first decide whether the call on the field was right and then (if he concludes that it was wrong) ponder the difficult issue of whether the evidence was indisputable or not.
December 2, 2009, 2:17 amDavid Schwartz says:
I think the problem is that it will turn instant replay review into a crap shoot. After all, the people calling for an instant reply likely aren’t in a better position than the referees are and there are a lot of close calls that can be argued either way.
If you don’t penalize for wrong instant replay requests, you will get lots of them. If you limit instant replay requests, what do you do when someone wins every such request? Do you say “you were right both times before, but you get no more?” That makes no sense.
I just don’t see any practical way of doing it.
Do you propose they get two instant replay requests per game and get no more even if they prevail on both requests? How fair will that appear to be?
December 2, 2009, 2:27 amCraig says:
The cases we are arguing about are cases where the referee looking at the review thinks the call could go either way. (The referee might also think that there is more reason for the call to go one way than for the call to go the other way, but he cannot think that the reason for the call to go one way is so overwhelming that no one would dispute it. If so, then we are in a case where the call would be overturned, and those aren’t the cases we are concerned about here.) In such cases, there must be some way of breaking the dispute.
One way to do that (which just happens to preserve the importance of the live ruling) is to go with the ruling on the field.
December 2, 2009, 2:38 amLarryA says:
Sorry for the heresy, but professional football isn’t a “really important issue” in my life. ;-)
December 2, 2009, 3:02 amIlya Somin says:
Do you propose they get two instant replay requests per game and get no more even if they prevail on both requests? How fair will that appear to be?
That is in fact the current rule, and few seem to object to it – perhaps because they understand that there needs to be some limit to the number of challenges in order to limit the length of games.
December 2, 2009, 3:14 amIlya Somin says:
Sorry for the heresy, but professional football isn’t a “really important issue” in my life. ;-)
Do I really need to point out that my reference to “really important issues” was a joke?
December 2, 2009, 3:15 amjellis58 says:
I’ve often though the same thing, but perhaps the reason for the deferential standard is that the replay official has access to footage from only a few different angles and many times this footage will not conclusivly show what the correct ruling will is because none of them fully capture all the relevant parts of the play. In these cases, the replay offical will have an idea of what ruling is more likely correct, but the official on the field may have seen the play from an angle unavailable to the replay official that does undisputably establish the correct ruling making it better to defer. Of course this line of reasoning only works if on field officials frequently have access to dispositive angles and dont frequently base their on field rulings on the same perponderous of the evidence standard replay officials would be forced to use when they lack “indisutable” or “conclusive” evidence(perhaps because the on field officials can stratigicly postion themselves in ways cameras cannot).
I think this is unlikely to be true, and even if the on field offical does typically have access to better angles, his ability to visually process what is before thim without the benifit of seeing it more than once or in slow motion is limited. This probably makes his rulings more prone to error than the replay official’s even when he does have a better angle.
One other consideration that may jusify the deferential standard is that if a replay official is able to overturn a call on the basis of equivical or flimsy evidence, respect for the system and the legitimacy in the minds of the fans of critical rulings might dimish. If rational minds can differ on what the video footage shows, yet the replay offical nevertheless overturns an on field decision, fans who think the decision was wrong could lose respect for the game. But if the rule is to defer to the on field offical in these cases, people who think the on field decision was wrong will more readily accept the legitimacy of that ruling becuase they will recognize that the video is not conclusive and the on field offical may have seen something not available to them.
Because fans have the same information as a replay oficial, it is easier for a fan to think his incorrect rulings make him a total bonehead, but it is harder for a fan to think an incorrect on field offical is a total bonehead becuase I think fans recognize that the onfield offical is relying on a different set of data. It is bad for the game of football if the offials are viewed as total boneheads so it might be better to defer to the onfield offical, unless no reasonble mind coudl differ on what the replay footage shows, even if the replay offical is more likely to get the correct answer under de novo review.
Of course the obvious rejoinder is that a system that defers to likely incorrect rulings is going to be viewed as a boneheaded system as a whole. But from what I can tell, not very many people seem to have a big problem with the current system, perhaps becasue they feel that on field officating is harder work and somehow more traditional and “authentic,” entiteling it to greater respect than replay officiating even if the on field offical is wrong.
December 2, 2009, 3:28 amjellis58 says:
Another way of thinking about my first point is that if a replay official is greater than 50 but less than 100% sure of himself it might make more sense to defer becuase an on field offical relying on a different data set could be 100% sure. But this only works if a) the field official’s data set is a type likely to often produce decisions with very high levels of certaintly, and b) the on field official is able to accuratly process the data available to him to the same degree as the replay offical, and his level of certainly corelates with what is acutally correct to the same degree the replay official’s does. Im not sure if either of those two things are true. (a) might be adressed by having the on field offical tell the replay offical how sure he is, but (b) is a big problem.
December 2, 2009, 3:51 amDavid Schwartz says:
Ilya: Probably because there aren’t likely to be more than two “profoundly wrong” calls in a game. If there frequently were, as there likely would be under your rule, I think people would be upset by the “two instant replay rules”.
Imagine this: There’s a game where the field refs make a blatantly wrong call. They coach calls for an instant replay. He prevails. That happens again. Then that happens a third time in favor of the same team — don’t you think fans would be pretty angry?
December 2, 2009, 5:18 amRobert Bloomfield says:
What if by some chance there is simply no camera view at all? (Lineman are big enough to block several cameras these days). How else would you write the rule to say ‘if you can’t see enough on the camera to make the call, don’t overturn the call on the field’? Maybe ‘indisputable video evidence’ is too strong, but it is easier to implement than ‘pretty darn good video evidence.’
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December 2, 2009, 7:20 amDavid Schwartz says:
I realize my post above could be misunderstood. What I mean is, with your rule, it’s much more likely that there will be two successful instant replay protests followed by a single blatantly wrong call. That will look really bad.
December 2, 2009, 7:37 amCullen says:
I was going to post a longer response to this thread, but I see that Jellis58 has gotten it exactly right.
December 2, 2009, 7:40 amLagrangian Mechanic says:
Not quite. If a team has two successful challenges they are given a 3rd.
December 2, 2009, 7:40 amJRL says:
1. Can Professor Blocher (or anyone else, for that matter) give an example of a reviewed play that would have come out differently under this proposed “standard”?
2. I’m not so sure this isn’t really what is already happening. Unlike the judge at trial court, the judges (officials) on the field are actual eyewitnesses to the relevant events. The players don’t testify that the running back’s knee was down or not down before the ball was lost. The officials actually observed what happened. The decision of the officials on the field isn’t just a finding of fact, it’s actual evidence of the existence of the fact.
December 2, 2009, 7:47 amAlan Polonsky says:
College football does it a little better by having review of every play without being asked. The standard seems to also be “indisputable evidence” but the call of what that is is made by the reviewer in the booth and not the on field official. It is more like an extra official in the sky. Watch a college game and you will see some delays but often very short.
I agree the standard at any level of “indisputable” is silly. What is, after all “indisputable” to a fan. Perhaps “clear and convincing” would be better.
One issue that has always bothered me is what if the review shows the official was right on the call but there was an obvious penalty that was not called. For example, a typical review will focus on whether or receiver was in or out of bounds when a catch was made. What if in reviewing the play, the reply shows the call of the referee that the catch was out bounds is correct but an obvious pass interference against the defender was not called? The rules say they must ignore the penalty. Is this a good rule?
Isn’t that like appellate review where the Appellate Court sees a problem that neither side raised?
December 2, 2009, 7:51 amDavid Schwartz says:
Lagrangian Mechanic: Ahh, that makes more sense. But it still exposes problems with this change. Suppose the first call is close, but they prevail because they are clearly more correct. The second call is razor thin, and they are overruled in something that could go either way. The third play is a blatantly wrong call that they now can’t protest because of the razor thin call.
Ilya’s rule would create a lot of “fans are angry, apparent injustice” cases unless you allow lots of instant replays. (For example, my scenario above only requires one very bad call.)
December 2, 2009, 8:29 amjosh bornstein says:
Alan,
December 2, 2009, 8:31 amI think the reason for that is that, in football at least, there are penalties that could be called on, literally, almost every play (usually holding). Would you limit it to only certain types of penalties? What if there was such a penalty, but was across the field, unrelated to the disputed call entirely? Should referees examine all cameras, and check everything, every time, to see if any such penalties occurred? Not practical, I fear. (Although I do yell at the TV set when it happens to my beloved Redskins, I admit.)
Adam B. says:
It’s kinda like “strict scrutiny,” isn’t it? The question isn’t what standard the reviewer states he’s applying; it’s what standard is actually being applied. My hunch is that for reasons dealing with the officials’ union it’s stated as “indisputable evidence,” but in practice it’s much less deferential.
December 2, 2009, 8:59 amwws says:
yep, Jellis58 hit almost everything I was thinking of. I would only add that that we should remember *why* the replay system was set up to begin with; it was *not* to get every call correct with some higher level of review. Rather, the purpose was to allow the game to continue unchanged as much as possible, while providing a safety valve for overturning the obvious bad calls which were embarrassing the league and becoming more commonly known because of the increasing number of camera angles.
Don’t forgot the big picture; this isn’t about justice, it’ about show business. Any more time spent on the process would annoy the audience, and that’s the biggest consideration of all. The calls don’t have to actually *be* correct, they just need to appear to be correct to the vast majority of the audience. And that’s your only true standard.
December 2, 2009, 9:20 amSoronel Haetir says:
If you actually watch pro games you’ll see that the standard is in fact very strict. Strict enough that the announcers often think a challenge will be upheld but are wrong. It is an extremely rare event for the announcers to think a challenge will lose and be wrong.
Ilya,
As for the time issue you must also remember that after the 2 minute mark of each half review control goes to an overwatch official. I have seen games with several such booth challenges and it does interrupt the flow of the game in an unpleasant way. Makes it like the last 1:30 of a basketball game where one team fouls constantly.
December 2, 2009, 9:24 amPatHMV says:
wws… I agree with your general point, that this is about show business, but I’m not sure you’ve applied it correctly to these facts. If the standard is “indisputable evidence,” isn’t it likely that the reviewing refs will look at the call longer, view more replays in ever slower motion before making the decision? If the standard was de novo review, then the reviewing ref can take a look at just 1 or 2 quick camera angles, make the call, and move on. If he’s got to make sure that the evidence is “indisputable,” then he’s got to look more closely at the entire thing, thus taking more time.
December 2, 2009, 9:41 amHouston Lawyer says:
I think the deference given to the officials on the field is right. Until recently, there was no review of the on-field officials. We only need to change their calls if they are obviously wrong. Consequently, not all calls are reviewable.
Only in football do we have reviews. I believe we only have reviews in football because the audience can be clearly shown that some calls are blown.
December 2, 2009, 9:54 amCvMe says:
The problem that replays seek to fix is not imperfection–or even a failure to make the best possible call given imperfect evidence–in refereeing. The main problem is the perceived unfairness of an obviously blown call that changes the outcome of a game. An “indisputable evidence” standard means that obviously blown calls will not stand. This increases the fairness of the game and increases the legitimacy of refereeing in that even fans on the losing side of a changed call should accept the ruling when the replay indisputably shows that the original call was wrong. Fans should also accept an unsuccessful challenge if the video evidence is not undisputable. While some disagreements may linger about whether the evidence is undisputable or not, a high standard is easier to argue about, even among partisans.
A de novo standard, on the other hand, does not address merely the obviously blown call that changes the outcome of the game. Blocher suggests that the objective reviewing officials may make better decisions based on increased information, but neglects to take account of the millions of non-objective decisionmakers, i.e. the fans, who are reviewing the same evidence. If the standard is de novo, millions of armchair reviewing officials will disagree on every reviewed play whether the call on the field was correct or not, thereby undermining the legitimacy of refereeing and decreasing the overall enjoyment of the game.
In short, millions of fans bitter at perceived incorrect instant replay calls is not good for business.
December 2, 2009, 9:56 amguest1 says:
i don’t think the analogy works. the fact is in football and in most other sports, the rules that are reviewable (I’m not talking about penalties like holding or pass interference, e.g.) are all bright-line rules, not standards. thus there is always a clear right or wrong answer to whether the ruling on the field was correct. the only issue is whether the replay official has a clear view of the play on the field. if the replay official does have a clear view of the play, the decision to confirm or overturn the call will be clear to everyone who understands the rules (i.e. indisputable). if he does not, then there is no basis for the replay official to judge. in that case the call on the field may or may not be correct in the abstract, but as a practical matter there is no method to tell. so the call stands.
December 2, 2009, 9:57 amT.J. Chiang says:
I basically concur with David Schwartz. Ilya, your proposal pretty much assumes that the current rule (two challenges only, or some limit on challenges) will stick. But this slope seems really slippery. To draw the appellate review analogy further, you are suggesting a rule that appellate courts will review de novo, but you can only preserve two issues during a trial–and you need to exercise that right in real time. There is no way that regime will stick, not least because of the perverse incentives for a district judge (or the ref). So after Party A has exercised his two challenges (and Party B has not), the optimal strategy for a district judge is to become ridiculously biased in favor of Party B, since only Party B still has the stick of appellate review.
December 2, 2009, 9:59 amstashy says:
If criminal trials were routinely videotaped, and the tape were made part of the appellate record, would that change the standard of review to be applied by appellate judges to, say, claims of prejudicial prosecutorial misconduct in closing argument? Judicial rulings claimed as ground for reversal?
December 2, 2009, 10:03 amSpocougar says:
“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.”
This is where the author is wrong, as others have touched on. Many times there is not a good camera angle to review a play. The referee on the field almost always has a unique view, and one that is not reviewable. This is where the analogy to courts break down. In that situation all the data is available to everyone. Out of deference to the expert judgement of the referee with a unique and unreproducible view, de novo review is not advisable.
December 2, 2009, 10:11 amJP Martin says:
My concern is when field refs make a ‘non-call’ (E.g., letting the play continue after a fumble.) because they don’t have a good view of the play. Now, the replay officials have to have indisputable evidence to overturn the fields ref’s ‘non-call’ that he may not have any faith in the first place. You can imagine the field ref deferring to the replay official, who then must defer to field ref…
Maybe the field ref’s should be able to signal a non-call when they didn’t get a good look at the play. Then the replay officials will make the call w/o the requirement of indisputable evidence to “overturn” play on the field.
December 2, 2009, 10:16 amSoronel Haetir says:
Except that the standard is indisputable evidence to overturn the call on the field, not indisputable evidence of something or other. That standard also gives the ref an easy out, if it’s taking too long then it’s not indisputable.
The really long reviews usually seem to be based on respotting the ball and changing the game clock, not whether the challenge is upheld or not.
December 2, 2009, 10:31 amphastphil says:
As a former high school football official I see a couple of problems with the “de novo” approach. 1)What if there is a blatant foul like pass interference that wasn’t flagged on the play? Does replay make that call after the fact? Do you really want replay to start anew? 2)The damn inadvertent whistle! (An Officials nightmare!)When did the whistle sound? A question that will always be a problem for replay.
December 2, 2009, 10:42 amAll I personally really care about is that they get the obvious errors corrected. 5 angles later – who cares?
sureyoubet says:
Right now, review is limited to “objective” calls (like was the knee down? was the foot in bounds?)
De novo review might also open up any play or call to review. Like was that really pass interference? Why wasn’t that guy called for holding? Etc.
After all, if it’s de novo why not have the judgement of the replay official substitute for that of the official on the field?
The current limit to having clear objective evidence to overturn seems the right one.
December 2, 2009, 10:46 amTo Have and Have Not says:
I wonder if Brandeis’s thought applies here: “It is usually more important that a rule of law be settled, than that it be settled right.”
December 2, 2009, 10:48 amSammy Finkelman says:
Two thoughts:
1) Some rules may be very difficult to enforce and decide, and perhaps the problem is with the rule. If some rules were different, there might be many fewer disputes.
2) Is there some reason the original referee can’t be part of the team thaht loks at the instant replay?
December 2, 2009, 10:52 amNolPros says:
Personally, I like the indisputable video evidence standard of review. The league has an interest in minimizing the officials’ direct impact on the game while providing an avenue to overturn an obvious bad call. People buy tickets and tune in to watch the players not the refs. The balance to be measured is the refs’ ability to maintain order and command the respect required to officiate the games while keeping their impact on the ultimate outcome to a minimum. The heightened standard of review preserves the refs’ authority and respect for their on the field decisions by deferring to their rulings absent conclusive video evidence to the contrary. Besides, the same justifications for deferential review by appellate courts to trial courts persist when it comes to instant replay. It undermines respect for the entire system when there’s overreach from the booth. For an example from the college game think back to the Oklahoma/Oregon onside kick fiasco from a few years back.
December 2, 2009, 11:00 amPatHMV says:
Soronel, my understanding is that the replay officials do not have access to an HD TV, and thus all replays they see are the much lower resolution standard definition. I think that makes it take longer to determine things like whether the foot was inbounds or not. I’ve seen replays take a very long time, having nothing to do with respotting the ball or resetting the clock.
December 2, 2009, 11:04 amAultimer says:
A sport where every infraction is duly penalized is a different (though not necessarily better or worse) sport than one with human referees. Instant replay was a move in that direction, and led to some “lesser” penalties being added, to balance the calculus that was applied in setting the penalties in the first place. Making the replay official review de novo would be another step in that direction and would require further adjustments to penalties.
David Post needs to comment on the idea of IR for futbol – without the flop, the balance of soccer power would shift dramatically.
December 2, 2009, 11:25 amLarryA says:
Oops. Down here in Texas most folks wouldn’t consider it as such. My bad.
December 2, 2009, 11:36 amAdam B. says:
Baseball now has limited instant replay to determine whether a home run was hit (fair/foul, cleared fence), as with Rodriguez’s camera/home run in Game 3 of the recently concluded World Series. In addition, the NBA allows review to determine whether a shot left a player’s hands before the expiration of time.
And I do watch plenty of NFL games, and I have no confidence as to what standard of review is actually being applied.
December 2, 2009, 11:48 amHamlet says:
This is incorrect; a coach gets a third challenge if both of the first two are successful.
I do quite agree with this post though. Overall, I think resistance to instant replay in many sports (and the deferential standard of review is just an example of this) comes from a sort of misplaced sense of tradition. Human officating does have an impact, so in a sense the rules of the games (defined by which situations are actually enforced) would change under a more modern mechanism. But in the long run, it’s best to write the rules to reflect how you want the game to be played out, and then enforce those as consistently possible, than to rely on a sort of referee-made “common law”.
For an example of what can go wrong, see http://deadspin.com/5392067/excerpts-from-the-book-the-nba-doesnt-want-you-to-read .
December 2, 2009, 11:50 amThe Moment says:
Football, unlike our court system, is not solely a quest for the most correct answer. Instead, the game is marked by other important characteristics. In particular, the game is filled with individual moments, including the immediate call/ruling, and the emotional reaction to those moments. These moments have value in themselves — something would be lost if after big plays, we had to wait until the final appeal to cheer. As a result, there is a presumption in favor of on-field decisions not because those decisions are better (they are not) — but because something valuable about the game would be lost if immediate calls were subject to full review.
To be sure, to some extent, the existing replay system already devalues the importance of the moment. But by confining it to circumstances of obvious error, the effect is lessened.
December 2, 2009, 11:58 amDave N. says:
While I agree with most of the posters, the obvious reason it is not de novo review is a trial analogy.
During a trial, the judge makes many calls, some right, some wrong. But not all rulings are created equal — the appellate court only reviews the rulings that are so egregious that they affected the trial.
But the trial judge often has to make rulings quickly, while appellate courts can (and do) review in leisure.
So it is with football, where the officials on the field have to make a split-second determination if there was holding, or pass interference, or if both feet are in bounds, or whatever. Because of the split-second nature of their rulings, the more leisurely review of the tapes should have some level of deference.
December 2, 2009, 12:04 pmjelisgito says:
1. Refs on the field can see in 3-D, so their ruling might deserve some deference.
2. A high standard of review discourages coaches from challenging calls in the first place and slowing down the game. The goal is to reverse the obviously incorrect calls, not to get everything perfect.
December 2, 2009, 12:19 pmDavid Chesler says:
Lots of camera and slo-mo are likely to see things the ref missed. If there isn’t a camera of the dispute, no evidence, but there’s nothing for the announcers to point out to the audience anyway.
I watch on TV, and as a law-liking mathy I prefer right answers over favorable answers. That’s probably a minority view.
Didn’t I read in this forum that interest in sports (especially soccer) goes up with bad refereeing? And since the networks and the leagues are ultimately selling entertainment, they might prefer more controversy, more calls where the announcers can prove the referee on the field got it wrong. As long as the referees are unbiased (or biased in a good way, like being stricter with a team that has been getting away with fouls) those with a stake in winning won’t object much to the noisiness of the data.
I’m not from Texas. My high school didn’t have a football team. We did have a math team, on which I was.
December 2, 2009, 12:55 pmgeorge weiss says:
i think if you watch football you see that instant reply is de novo in practice (albeit with burden of proof to preponderance on the challenger).
this is despite the deferential standard in the official rulebook.
football fans agree?
December 2, 2009, 1:31 pmDunstan says:
“Many times there is not a good camera angle to review a play. The referee on the field almost always has a unique view, and one that is not reviewable. This is where the analogy to courts break down. In that situation all the data is available to everyone. Out of deference to the expert judgement of the referee with a unique and unreproducible view, de novo review is not advisable.”
I think this (and similar responses from other commenters) is the correct answer.
An interesting comparison is to professional tennis. The chair umpire will only overrule a linesperson’s call if it is clear erroreous. But if a player challenges the human decision (in matches where the electronic line calling system is available), it’s de novo.
December 2, 2009, 1:43 pmJG says:
Perhaps at least part of the concern is that instant replay isn’t infallible (in part because it depends on the camera angles) and that, unless there is a fairly deferential standard of review, there is a significant chance that instant replay will introduce, rather than correct, an error by getting wrong (or least apparently wrong) a call that was correct (or at least debatably correct) on the field. My intuition is that, although most fans will tend to want the call to come out their team’s way, people will generally be more accepting of a system in which a tough call on the field that’s questionable but not obviously wrong stands than a system in which a call that isn’t obviously wrong is reversed and replaced with a decision that isn’t obviously correct and may well have gotten wrong something that initially was right.
December 2, 2009, 1:45 pmRealistLiberal says:
The current rule is actually slightly different. That was the initial rule but it was changed. In a further effort to make coaches be careful, you are given two, if you succeed on both then you are granted a third one. After that, you’re done. Also, it is important to remember that there is no coaches challenge within the last 2 minutes of the game (presumably when a changed call could have an even more dramatic difference).
December 2, 2009, 1:45 pmChristopher John Brennan says:
The similarity relies on deferring to the unique perspective of the person who was actually there in situations where actually being there matters. The person on the scene is assumed, not unreasonably, to be acting on information unavailable to the reviewer.
Factual judgments in trials often depend upon the credibility of witnesses. The trial judge is in the courtroom during the testimony and has information (tone, non-verbal cues, etc.) believed to be essential to a trial’s fact-finding process which appellate judges do not have available to them.
Similarly, a referee on the field has a unique in-person perspective which television cameras cannot duplicate for the booth official. If nothing else, the on-field referee has a different angle, is usually closer and has (or should have) full-resolution stereo vision.
December 2, 2009, 1:54 pmNot My Leg says:
This isn’t correct. Both basketball and baseball use some form of review. In baseball it is very limited, extending only to home run calls. In basketball it is broader extending to (I believe): was it a three pointer or not, did the shot beat the buzzer, and what player committed the foul/was fouled (not whether a foul was committed, only who committed it).
To add content though, I would say that the analogy actually cuts the other way. The officials on the field are the fact finders. They are there, as it happens, watching from a variety of different angles, and only they ultimately know why they made the decision. The man upstairs has only a limited ability to access the information available to the fact finder. He can view certain select angles, and cannot get into the officials’ heads to determine what they saw. (This holds true whether the review is done upstairs, as in college, or on the field, as that official can only add his view to the mix, not everyone else’s). In some cases, this limited information is enough to declare with certainty that the fact finder was wrong. In other cases it leads the reviewer to believe the fact finder was probably wrong, but doesn’t resolve the issue with certainty. We assume in those cases that the fact finder may have seen something that the reviewer doesn’t have access to, and therefore allow the decision to stand.
December 2, 2009, 2:05 pmdcperson says:
this is a tangent, but that is so frustrating…seeing an issue and not being able to do anything about it…
December 2, 2009, 2:11 pmXanthippas says:
You know I made that same connection, and wondered the same thing: why isn’t it de novo? I like the quasi-legalistic nature of instant replay in the NFL, but I don’t think that’s a good justification for it.
December 2, 2009, 3:12 pmSeaDrive says:
One aspect not discussed is that the challenging coach sets the question to be answered. Issues not raised in the challenge are out of reach. For example, the coach may challenge a ruling of an incomplete pass. The video may show a valid catch, but that the ball was spotted in the wrong place. Under the current system, the spot won’t be changed. A de novo standard could loosen that up.
re: baseball Other than the recent use of video for home runs, umpires are not authorized to make use of outside evidence. However, from time to time, an ump has made a ruling on the basis of video shown on the scoreboard, or shoe polish on a baseball. The league has taken a pretty soft line, at least in public, and not criticized an ump from “making use of all the information available” to get the correct call.
December 2, 2009, 3:17 pmDoug says:
The argument rests on the faulty premise that replay officials have a better view (or at least as good a view) of the play on the field. Sure, they get to view a play from multiple angles, but television is still a two dimensional representation of what actually happened. There have been numerous articles about how camera angles distort the angle a viewer sees. For example, the camera angle for pitching a viewer sees when watching baseball is about 5 degrees to the right of center, which makes some curve balls look like balls when they are actually strikes. The same thing happens with the goal line in football games.
December 2, 2009, 3:53 pmreadery says:
The value of people relying on the opinions of the fact-finder is not necessarily a linear function of the fact-finder’s actual degree of accuracy.
One can argue that for example there ought not to be a placebo effect, that there ought not to be a benefit simply from people believing that doctors have healing powers even when what they’re giving is a sugar ill. But objectively there is such an effect.
Similarly, the value in the finality of judgments does not solely depend on those judgments being always correct.
December 3, 2009, 1:23 amDavor says:
Replay has to be done this way. Replay is used so that objective technology can correct judgment calls. If the referee looking at the replay can make a call based on anything but clear evidence, than the judgment call on the field is replaced by the judgment call in the booth. And the crew chief is in the booth, not on the field – something that should never be done.
December 3, 2009, 2:48 amThe improvement in instant replay would be to allow the referee watching the replay to ask for replay if he thinks something is suspicious and to broaden the range of decisions where the replay can be used.
The only way where de novo review could be used is if the referee who made the call watches the replay and, if it’s inconclusive, decides whether his initial judgment was correct, or he wants to change the call. No other referee can change the call if the replay is inconclusive.
Charles says:
A measure of deference is important because while often the replay cameras have a better view, this is often not the case. Particularly with goal line calls, when the camera is not perfectly aligned with the goal line – and with a mass of bodies between the camera and the ball – the replay angle isn’t very good at all. The refs are often in a better position and when the camera can’t clearly see the challenged play, there is no good reason to overturn the call made in real time because the replay judge has a feeling that the ref got it wrong.
December 3, 2009, 1:28 pmYeah says:
“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.”
Quite the opposite. It’s the modeling of instant-replay rules after standards of appellate review that’s causing the problem in the first place. And there is a problem: As Blocher implies, it’s absurd to consecrate an on-field ruling when there’s no question of witness credibility or the like. Even if you want to call flopping a matter of credibility, instant replay is better at catching that than even the eaglest-eyed ref, just like it’s better at catching most everything else that goes on.
Mind you, that’s no knock against NFL referees, who, with the exception of overprotecting guys like Tom Brady, do an excellent.
December 3, 2009, 10:04 pmaltysin says:
True. But the heightened scrutiny means that the number of possible successful challenges in any game is low– meaning that it’s unusual for a coach who wisely uses challenges to be without one at a critical moment.
If it’s de novo review, that changes. More calls will be perceived as subject to challenge, and the likelihood a coach will wisely use challenges, yet find himself unable to challenge a call at a critical moment, will increase.
December 4, 2009, 12:15 amThe Volokh Conspiracy » Blog Archive » Debate Over De Novo Review of Instant Replay Decisions Continues says:
[...] Wall Street Journal law blog has a list of various links here. I endorsed Blocher’s argument in this post. There has also been a response by Josh Patashnik of the New Republic, which the WSJ survey [...]
December 10, 2009, 6:36 pmThe Briefcase » Friday Roundup says:
[...] to think about during the holiday games. Law and football intertwine over at the Volokh Conspiracy, which cites an article arguing that instant replay should be modeled after the appellate law [...]
December 18, 2009, 6:47 amThe Volokh Conspiracy » Blog Archive » Mitchell Berman on the Instant Replay Debate says:
[...] defended the same position in much lesser depth here and here. The second of my previous two posts on this subject has lots of links to arguments on [...]
December 24, 2009, 1:30 am