08 April 2005

Killing the Umpire

Or, the Instant Replay Fallacy

Of late, we've been treating sport officials better than we have our judges. Maybe that's because there's so much less at stake in a sporting event than in a courtroom, either in the broad scheme of things or in personal stakes. It's a sign of a pretty serious dysfunction when the most-revealing rhetoric on the Senate floor concerns officiating:

"The first lesson we teach children when they enter competitive sports is to respect the referee, even if we think he might have made the wrong call," Senator James M. Jeffords, independent of Vermont, said Thursday in a Senate speech. "If our children can understand this, why can't our political leaders? We shouldn't be throwing rhetorical hand grenades."

Carl Hulse & David D. Kirkpatrick, "DeLay Says Federal Judiciary Has 'Run Amok,' Adding Congress Is Partly to Blame." NYT (08 Apr 2005) <SARCASM> Mr. Jeffords obviously needs to spend more time at kids' sporting events, where he'll find out that the parents are by far the worst offenders in their criticism of officiating—and far more likely to turn their displeasure into an assault on officials than at college and adult events. Maybe it's just further proof that the rhetoric is so vicious because the stakes are so low… </SARCASM>

On the other hand, there might be something more to this sporting analogy than perhaps Mr Jeffords suspects. Consider not just the referees, but the players. Unfortunately, one of the other early lessons we teach children when they enter competitive sports is the process of fooling the referee into giving an unearned advantage. Probably the best analogy here is to high-level football—the real stuff, not the pansy-ass version in which there's a coffee break every ten seconds and they wear all that sissy protective gear—for which there is only one referee (just as there is only one judge in a trial). Although "diving" gets more attention now than it used to, it's been a part of the game since not later than the first World Cup. So, too, have off-the-ball hooliganism, the "professional foul," use of ineligible players, and increasing pace of play. All of these combine to increase pressure on the judge referee, while the financial stakes involved (whether player salaries, merchanidising opportunities, gambling, whatever) continue to increase—and single calls in real football can have a far-more-devastating effect on the outcome than in just about any other sport.

So, what does this reveal about the current rhetoric against judges? Largely that it's the product of sore losers. Not entirely; but largely. Outside of academic circles, we almost never hear anyone criticizing an "official" for making the wrong call that ends up favoring one's own team. Similarly, we don't hear nearly as much criticism of "officiating" when it's a blown call that doesn't appear to affect the outcome, or one's team goes on to win against the run of the officiating. Perhaps most importantly, we don't hear much at all about what the "teams" bring to the "game." When is the last time that in politically charged litigation we heard much about the equivalent of a corked bat? Don't try to tell me that nobody is cheating—because, after all, it's not just the players'/lawyers' honesty at issue.

And this gets us to the fallacy of instant replay in the law. Instant replay in sporting events is far, far more accurate than can anything in the law be; and, at least, everybody can view and assimilate the multiple angles. Very, very few commentators ever allow for anything as obvious as the rules of evidence in criticizing judicial actions; fewer still read the entire record; and, by its very nature, the material that is not in the public record—the sealed personal information, the information gathered but for tactical reasons not offered, the trade secrets that are really at issue but can't enter the record because that would destroy them, the material important for context that isn't directly relevant to the cause of action—isn't on that instant-replay screen. In the Schiavo case, none of the commentators, and certainly none of the politicians speaking out against Judge Greer, have read the entire record, let alone witnessed the depositions, or examined the patient personally, or anything else. We don't even have the equivalent of TV instant replay here; instead, we have some county-fair caricaturist drawing a funny-looking impression of someone he/she has never seen before.

Maybe, though, we're getting the government we deserve. That's what the aphorism says; and maybe that has something to do with the remarks I made at the outset about how abusive parents are toward referees.