Tag Archives | Instant Replay

Mitchell Berman on the Instant Replay Debate

Some people think that the constitutionality of the individual health care mandate is the most important legal issue of the day. But others clearly believe that it is the question of whether instant replay review of NFL referee calls should be conducted under a de novo standard. For those interested in this crucial issue, Texas lawprof Mitchell Berman has written a particularly thorough statement of the case for a de novo standard in this article on Slate.

I 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 both sides by other legal scholars. No one can say that we legal academics ignore the truly vital questions of the day. […]

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Debate Over De Novo Review of Instant Replay Decisions Continues

Duke Law Professor Joseph Blocher’s argument that NFL instant replay reviews should reconsider on-field calls de novo has resulted in an extensive debate. The 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 didn’t include.

I still maintain, along with Blocher, that de novo review would increase the accuracy of calls at little or no cost to other important objectives. Some of the critics claim that instant replay calls aren’t likely to be any more accurate than those made on the field. This strikes me as extremely unlikely. An official in the instant replay booth can review the play from several different angles over the course of a minute. By contrast, an on-field call must often be made based on a split second glance. Even the best referees will sometimes have trouble figuring out exactly what happened. Moreover, as Blocher points out in his response to the critics, the NFL can certainly install more and better cameras in order to increase the accuracy of instant replay decisions still further. I am also unpersuaded by arguments that switching to de novo review would somehow undermine respect for NFL officials or lead to a breakdown of player discipline. Everyone already knows that NFL referees, like all sports officials, sometimes make mistakes; certainly the players and coaches know it. If anything, reducing the incidence of mistakes should increase respect for the system by both fans and players. And, as I noted in my original post, switching to de novo review won’t make games appreciably longer by increasing the number of instant replay challenges issued by coaches, since the rules give each coach […]

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Why Instant Replay Should be Like de novo Appellate Review

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 . . .


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