The Jurisprudence of Sports and Standards of Appellate Review for Instant Replay

May 6th, 2011

Last December I linked to a blog post by Joseph Blocher inquiring why instant replays in sports are not reviewed de novo.

Professor Berman has upped the ante with his new paper, titled Replay. Berman is trying to usher in a new “sports jurisprudence” that allows for an intersection of law, sports, and econometrics. I love it. Here is the abstract:

This paper aims to resolve a question of superficial triviality: when sports use instant replay technology to review on-field calls, what standard of review should they employ? The conventional view is that on-field calls should be entrenched against reversal such that, if the reviewing official has any doubt about the correctness of the initial call, he should be instructed to let it stand – even if he thinks it very probably wrong. Indeed, in the wake of officiating debacles at last summer’s FIFA World Cup, many observers proposed not only that soccer introduce instant replay, but also that its governing bodies adopt the NFL rule directing that on-field calls be overturned only when the referee sees “indisputable visual evidence” (IVE) that that call was mistaken. In a small nutshell, this essay argues that conventional wisdom in favor of IVE likely rests upon mistaken premises, and offers several concrete proposals for reform.

A lengthy investigation into the optimal standard of review for instant replay in sports might seem frivolous. But it serves a deeper ambition. We are in the early years of sports’ colonization by econometricians, as legal theorists remain watching from the sidelines. That is unfortunate. Formal organized sports are, in effect, legal systems, and legal theorists might find much both to teach and to learn by paying closer attention to competitive athletics. In short, legal theorists would benefit from a sustained engagement with what I have termed, in previous work, “the jurisprudence of sport” As a case study in this nascent field, this essay reveals that the problem of appellate review in sports is surprisingly rich and complex. But it shows more than that. The jurisprudence of sport maintains that sporting practices and norms can teach lessons for ordinary legal systems as surely as the other way around. Illustrating that claim, this essay draws from football replay practices an argument to reform the criminal trial system to accommodate two verdicts of acquittal, not one.

Blocher, as well as several other bloggers who picked up on the topic are credited in a footnote.

Toward the end of 2009, Duke law professor Joseph Blocher (responding to an article that had discussed the IVE standard approvingly, Oldfather & Fernholz, supra note 9) questioned the NFL‟s IVE standard of review in a post to Prawfsblawg. Joseph Blocher, Why Aren‟t Instant Replays Reviewed De Novo, PrawfsBlog, Dec. 1, 2009, available at That post was picked up by several other bloggers, including George Mason‟s Ilya Somin. Illya Somin, Why Instant Replay Should Be Like De Novo Appellate Review, The Volokh Conspiracy, Dec. 2, 2009, available at Having already completed a draft of this chapter, I wrote a short piece for Slate extending Blocher‟s and Somin‟s arguments. Mitchell Berman, After Further Review, Slate, Dec. 22, 2009, available at These postings, and others, provoked a large number of rejoinders. I will be quoting from some of those comments.

Sports! Blogs! Econometrics! Law Review Articles! Coolness overload.

H/T Legal Theory Blog