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Why Aren't NFL Instant Replays Reviewed De Novo?

Over on the PrawfsBlawg, guest blogger Joseph Blocher, a professor at Duke Law School, asks a great question that may resonate with some of you lawyers/NFL fans out there:

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?

Instant-replay Blocher observes that football mirrors the legal world in that standards of review "insulate factfinders' decisions from being overturned on appeal, even when reviewing judges disagree with them." That is, even where the lower court's decision is wrong in some sense, it will still stand so long as it is not an "abuse of discretion."

Blocher argues that while this makes sense as a way of allocating decisionmaking authority between trial and appellate courts based on their relative strengths, he does not see how those arguments apply at all to instant replay in sports, which he characterizes as "just appeals of a different kind." Specifically, he argues,

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?

Blocher's fellow PrawfsBlogger Howard Wasserman points out in a comment that a key difference between replay and appellate review might explain the absence of "de novo" review. Replay, he says, is entirely about factual determinations -- safe/out, down/not down, fumble/no fumble -- not interpretation of legal rules. Appellate review, on the other hand, ordinarily is about law, not fact, with factual questions being the ones subject to more-deferential review.

And Ilya Somin on the Volokh Conspiracy blog chimes in that "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." He concludes, however, that any harm caused by loss of time must be weighed against the benefits of getting more critical calls right.

Posted by Bruce Carton on December 7, 2009 at 01:18 PM | Permalink | Comments (2)

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