The Volokh Conspiracy

I started on Monday with a puzzle – what might be said in favor of enforcing at least some rules of sports less strictly at crunch time? – and tried to develop a solution. That solution turned out to be two solutions, or two variants of a single solution.

All competitive sports, I have claimed, share a core interest that the outcomes of contests reward competitors’ relative excellence in the performance of the sport’s fundamental athletic tests. To further this interest, each sport has reasons – weighty but not decisive – (1) not to enforce penalties on infractions when, for contextual reasons, the penalty would be unusually over-compensatory, and (2) to sometimes disregard the rule-like form or surface of some norms in favor of the standard that underlies it.

These arguments are tentative and partial, only first steps toward a solution to the puzzle. But whether they ultimately justify the temporally variant enforcement of particular rules of particular sports, all things considered, is not greatly important to me. Think of this study as a search for what Robert Nozick called a philosophical explanation: not a defense of the thesis that temporal variance in sports is optimal, but an account of how that could be.

Philosophical explanations are not always the right goal. Often we want to know what some agent should do. In this case, however, I’m satisfied to identify factors and analytical devices that might prove useful for theoretical projects across reaches of law and sports.

For example, the analyses here might helpfully illuminate the lost chance doctrine in torts; the granting of equitable relief, near contest’s end, from rules governing municipal and corporate elections, or appellate litigation; the difference between genuine “jurisdictional rules” and mere claim-processing rules; and possibly much else.

Those are just promissory notes at this point. So I’ll conclude by offering one final non-obvious lesson – albeit one for gamewrights, not for legislators or judges. It concerns soccer.

Continue reading ‘“Let ‘em Play”: Concluding Thoughts’ »

Recall Tuesday’s contention: Competitive sports go better, all else equal, insofar as contest outcomes reflect the competitors’ relative excellence in executing the particular athletic virtues that the sport is centrally designed to showcase, develop and reward. Call this “the competitive desideratum.” If something like this is so, then we should identify the athletic challenges that the rules governing tennis serves are designed to hone and test.

To a first approximation, the challenge is to strike the ball with power and accuracy into a specified space. Yet serving while standing at the net would not conform to the athletic challenge that tennis service is meant to present. So a refinement is necessary. Perhaps this: the challenge is to strike the ball into a precisely defined space from a precisely defined distance.

Notice that if this is the best understanding of the athletic challenge presented by serving in tennis, then temporally variant enforcement of foot faults would not serve the competitive desideratum. If it’s constitutive of a core athletic challenge in tennis to hit the serve without touching the line, then to forgive a server’s having stepped on the line would frustrate that athletic ideal and would contravene the competitive desideratum.

But perhaps that is not quite the athletic challenge that the service rules embody. Perhaps the challenge is better formulated as the ability to serve the ball into a precisely defined space from a generally defined distance. That is, notwithstanding that the formal rules specify both the starting point and the landing space with precision, the underlying athletic challenge that the rules codify involves a precise target but a general launching site.

Continue reading ‘“Let ‘em Play” — Day 4: Of Rules and Standards’ »

First, let me thank the many readers who have commented these past few days. I did not know what to expect when I accepted Eugene’s invitation to blog about my article, and have been impressed by, and grateful for, the number and incisiveness of the comments. Unfortunately, there have been too many to permit me to respond in a systematic manner, let alone in a comprehensive one. So here are a mess of somewhat random reactions.

Continue reading ‘“Let ‘em Play” — Some Responses to Comments’ »

At first blush, we might suppose that the analysis I provided yesterday applies, mutatis mutandis, to foot faults in tennis and therefore that tennis officials should call foot faults less strictly at crunch time. But this conclusion would be premature. It could be that foot faults in tennis differ from fouls and similar infractions in basketball, football and comparable sports in ways that make a difference.

I’ll explain today why I believe that foot faults do differ in a way that matters. Tomorrow I’ll argue that temporal variance in their enforcement might nonetheless be defensible on alternate grounds.  This afternoon I will respond to some of the many excellent comments already posted by VC readers.

The analysis I presented yesterday for temporal variance in the enforcement of penalties for fouls like those committed in basketball depended upon the claim that there are times when it might better serve the objectives of competitive sports to refrain from enforcing a penalty despite the occurrence of an infraction. That’s because the competitive costs of an infraction and of the sanction or penalty that it begets are both temporally variant and the latter can become, at game’s end, very much greater than the former.

Yet assessing the competitive costs of these two things – the infraction and the sanction – seems impossible in some cases. Take balls and strikes in baseball. The denomination of a pitch as a “ball” is not properly conceptualized as the penalty for an infraction; the concepts of infraction and penalty just don’t apply here.

That not all undesired consequences that attach to nonconformity with the dictates of a rule are sanctions imposed for infractions was a central claim upon which Hart relied when critiquing the Austinian command theory of law.

Continue reading ‘“Let ‘em Play” — Day 3: Of Constitutive and Regulative Rules’ »

Although the Serena Williams episode provoked my interest in the puzzle of temporal variance, I’ll start not with tennis, but with other sports in which a practice of temporal variance might seem more secure – sports like football, hockey, and basketball. In each, whistles for minor physical contact toward the end of tight contests predictably elicit a cry from the stands: “Let ‘em play!” or “Swallow the whistle!”

Though the plea is familiar, its rationale is obscure. To be sure, the tighter the rules are enforced, the less physical contact there will be. And observers may reasonably disagree about the level of physicality that makes a sport the best it can be.

But however a league might answer that question, it is not self-evident why the optimal degree of laxity should differ in crunch time during an NBA game relative to ordinary time, or throughout the NHL playoffs relative to the regular season. It is not obvious what can be said for “letting them play” at this particular time different in character or force from what can be said generally for “letting them play.”

Still, basketball remains a good place to start. I doubt that many tennis fans are justifiably confident that tennis officials do (or don’t) allow players a little more foot faulting toward the end of close matches than earlier. Maybe they do (or don’t), but foot faults just aren’t called enough to permit those without intimate knowledge of the sport to be sure what the enforcement patterns are.

Basketball is different. That basketball referees respect some measure of temporal variance seems clear to many hoops fans. Maybe that’s because the case for temporal variance in basketball is unusually clear. (Or maybe not.) If we can explain and justify slack in the calling of basketball fouls, we might be better able to assess whether temporal variance makes sense elsewhere too. Continue reading ‘“Let ‘em Play”: A First Solution’ »

Many thanks to Eugene for inviting me to discuss my just-published paper “Let ‘em Play”: A Study in the Jurisprudence of Sport, 99 Geo. L.J. 1325, in this forum. I’m grateful for the opportunity and look forward to your comments.

Recall the women’s semifinal of the 2009 U.S. Open, pitting Serena Williams against Kim Clijsters. Having lost the first set, Williams was serving to Clijsters at 5-6 in the second. Down 15-30, Williams’s first serve was wide. On Williams’s second service, the line judge called a foot fault, putting her down double-match point.

Williams exploded at the call, shouting at and threatening the lineswoman. Because Williams had earlier committed a code violation for racket abuse, this second code violation called forth a mandatory one-point penalty. That gave the match to Clijsters.

Williams’s outburst was indefensible. But put that aside and focus on the fault. CBS color commentator John McEnroe remarked at the time: “you don’t call that there.” His point was not that the call was factually mistaken, but that it was inappropriate at that point in the match even if factually correct: the lineswoman should have cut Williams a little slack. Many observers agreed. As another former tour professional put it, a foot fault “is something you just don’t call – not at that juncture of the match.”

The McEnrovian position – that at least some rules of some sports should be enforced less strictly toward the end of close matches – is an endorsement of what might be termed “temporal variance.” It is highly controversial. As one letter writer to the New York Times objected: “To suggest that an official not call a penalty just because it happens during a critical point in a contest would be considered absurd in any sport. Tennis should be no exception.” On this view, which probably resonates with a common understanding of “the rule of law,” sports rules should be enforced with resolute temporal invariance.

Perhaps McEnroe was wrong about Williams’s foot fault. But the premise of the Times letter – that participants and fans of any other sport would reject temporal variance decisively – is demonstrably false. One letter appearing in Sports Illustrated objected to the disparity of attention focused on Williams as compared to U.S. Open officials, precisely on the grounds that “[r]eferees for the NFL, NHL and NBA have generally agreed that in the final moments, games should be won or lost by the players and not the officials.”

Regardless of just how general this supposed agreement is, many NBA fans would affirm both that contact that would ordinarily constitute a foul is frequently not called during the critical last few possessions of a close contest and that that is how it should be. So insistence on rigid temporal invariance requires argument not just assertion.

However, advocates of temporal variance shouldn’t be smug either. For while the negative import of temporal variance is clear – the denial of categorical temporal invariance – its positive import is not. Surely those who believe that Williams should not have been called for a fault implicitly invoke a principle broader than “don’t call foot faults in the twelfth game of the second set of semifinal matches in grand slam tournaments.”

But how much broader? Is the governing principle that all rules of all sports should be enforced less rigorously toward the end of contests? Presumably not. Few proponents of temporal variance would contend that pitchers should be awarded extra inches around the plate in the ninth inning, or that a last-second touchdown pass should be called good if the receiver was only a little out of bounds. So even if categorical temporal invariance is too rigid, the contours and bases of optimal temporal variance remain to be argued for.

“Let ‘em Play” is an attempt to think through this problem. My goal is not to establish whether and in what respects temporal variance is optimal, all things considered, for any given sport. That’s too darn hard.

My goal at this early stage is merely to figure out whether “sense can be made” of such a practice. Instead of trying to determine conclusively just what optimal practices should be, I aim only to explain why temporally variant rule enforcement might be sensible – what can plausibly be said for it.

Furthermore, investigating temporal variance in sport is only the paper’s surface agenda.

While econometricians are busily tackling sport, and while philosophers of sport occasionally draw on legal philosophy (in addition to, e.g., aesthetics, ethics, and metaphysics), legal theorists have paid sports only passing attention. Most jurisprudential appeals to sports and games have been ad hoc, and most legal writing on sports that does not pertain to sports law is intended more to entertain than to edify.

The lack of sustained jurisprudential attention to games, and sports in particular, should surprise, for sports leagues constitute distinct legal systems. This is superficially apparent to non-Americans. While baseball, football, and basketball are governed by official “rule books,” the most popular global team sports like soccer, cricket, and rugby are all formally governed by “laws,” not “rules.” More substantively, sports systems exhibit such essential institutional features as legislatures, adjudicators, and the union of primary and secondary rules.

Accordingly, my grander ambition is to help spur the growth of the jurisprudence of sport as a field worthy of more systematic attention by legal theorists and comparativists. In a sense, “Let ‘em Play” does double duty as a manifesto for an enlarged program of jurisprudential inquiry.

Importantly, it’s not just that (municipal) legal systems and sports systems confront similar challenges. For several reasons, jurisprudential attention to sports is particularly likely to contribute to our understanding of phenomena and dynamics shared in common.

First, because sports’ rules and practices have long been thought unworthy of serious philosophical investigation, even low-hanging fruit has yet to be harvested. Second, sports supply vastly many examples for the generation and testing of hypotheses. And third, our judgments and intuitions about certain practices – such as, to take the present topic, the propriety of context-variant enforcement of rules – are less likely in the sports courts than in the courts of law to be colored or tainted by possibly distracting substantive value commitments and preferences.

For all these reasons, sporting systems, though rarely explored with seriousness by legal theorists and comparative lawyers, comprise a worthy object of legal-theoretical study.

Here’s my plan for the remainder of the week. Tomorrow, I will summarize my prima facie case for temporally variant enforcement of non-shooting fouls in basketball and, by extension, of similar violations in other sports. In a nutshell, that argument depends upon a growing gap between the competitive cost of the infraction and the cost of the sanction imposed for the infraction.

On Wednesday, I will explain why the argument that might explain and justify temporally variant enforcement of fouls in sports like basketball, hockey, and football most likely does not cover the rules governing faults in tennis. On Thursday I will propose a different account that might fill that need – one that draws on what I think are novel observations about the hoary rules/standards distinction.

On Friday, I will advance a modest proposal for improving the world’s most popular sport.