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 [...]