Thursday, August 02, 2007

Critical Basketball Studies

If legal realism simply means that the formalist view of law---in which judges’ subjective value judgments play no substantial part in deciding cases---is wrong, then all reasonable lawyers, judges and academics are legal realists now. However, there has long been a more radical form of legal realism, sometimes embraced by those who identified with the now-largely-defunct movement known as “critical legal studies,” which makes assertions like “in any case that reaches a court of last resort such as the U.S. Supreme Court, a plausible legal argument can be offered to justify a result favoring either party.”

Note the important qualification in this (admittedly made-up) quotation: The claim is not that all law is indeterminate, but that appellate decision making is guided by factors other than law.

Now consider the allegations that NBA referee Tim Donaghy bet on games that he officiated. Basketball fans have long recognized that much of the refereeing in the NBA is uneven if not arbitrary. Whether to call a charge, a block or no foul on any given play in the post seems almost completely within the discretion of the ref. Thus, it’s easy to see how Donaghy could have fixed games simply by calling fouls on the star player(s) of the team he hoped would lose (or fail to cover the spread). No one would be the wiser.

I have long been a critic of radical legal realism, and the Donaghy case is another example of what’s wrong with it. First, the radical legal realist exaggerates legal indeterminacy by focusing on cases in courts of last resort. There are many cases that don’t reach such courts because the answer to the legal question is perfectly obvious. Some results would be the equivalent of calling a foul on a player who is sitting on the bench doing nothing. Second, if the radical legal realist is right, then there’s nothing wrong with doing the equivalent of what Donaghy allegedly did. How can it be wrong to bend the rules when the rules are meaningless?

To be sure, the radical legal realist can say that what Donaghy allegedly did is the equivalent of a judge taking a bribe to rule for Jones even though he ruled the other way on identical facts in another case. By contrast, ideological judges can be consistent across cases even though they’re deciding according to ideology rather than law. But this response seems to me inadequate because the objection to crooked refereeing can be analogized at a higher level of generality. A judge who employs slippery slope arguments when they support liberal but not conservative results (or vice-versa), or who embraces federalism when it leads to conservative but not liberal outcomes (or vice-versa), must articulate some principled distinction among these cases, and often won’t be able to. That was, after all, the point of Herb Wechsler’s often-criticized but never-refuted argument for even-handed application of principles (under the misnomer “neutral principles”).


PG said...

One could see the necessity of being able to articulate a principle as the reason for justices to embrace high-level outcomes rather than "on the ground" results. For example, if you are liberal and opposed to the drug war, but think that the ability of the federal government to regulate is of paramount concern, you rule to have the medical marijuana users imprisoned (and vice versa, as in O'Connor's statement that she would have voted against legalization). Thus one embraces federalism or an expansive ICC as a principle that will generally lead to the outcomes one favors, and preserves the principle even in the rare cases where it goes against the specific preferred outcome.

Perhaps Weschler would prefer this, but I'm doubtful that judges generally decide on the righteousness of a principle without having considered whether it mostly leads to the preferred outcomes. (A ref, incidentally, might be able to do this too; if he's taking money based on only one team, he could pick which kind of acts to tend to penalize, and penalize those consistently for all the games he referees. Consistency does not cancel out corruption; it only limits its scope.)

egarber said...

It seems to me that *constitutional* issues are by their very nature philosophical on some level. It's easy to say you want judges who will simply "apply the law" under the constitution." But what IS the law? If it's heavily established precedent, then a conservative who advocates overthrowing Roe is saying the exact opposite of what she really wants to happen -- i.e., we need judges who aren't activists, so the next judge that shifts the balance should obliterate stare decisis.

Having said that, it seems to me that statutory interpretation is less "philosophical", and more about interpreting text and the narrow intent of the legislature. If courts think of a statute and its context as a mere sidebar, thus inserting their own concept of justice (regardless of what law is on the books), that seems to be a usurpation of legislative power, or at the very least, a drastic weakening of it. Of course, that doesn't mean the answer is to granularize things to the point of absurdity (witness the recent cases on pay discrimination and judges'
guidance on appeals deadlines).

Mike, do radical realists make any kind of distinction between constitutional matters and statutory ones?

Howard Wasserman said...

A story in the new Sports Illustrated cites an anonymous retired NBA referee as saying that the reason Donaghy would have been able to do what he (allegedly) did was because he is far more of a legal formalist than other refs. Donaghy adhered strictly to the letter of the rules, calling almost everything that the rulebook describes as a foul. This meant calling a lot of fouls on inside jockeying and bumping away from the ball, where other refs repeatedly warn the players to keep it clean before whistling many of these fouls.

The result is more fouls, more free throws, and more scoring, making it more likely that the final score will exceed the over/under line (which Donaghy or his partners had bet). According to the story, 60 % of Donaghy-officiated games hit the "over."

Of course, refs who call fewer fouls here still see themselves as following the law--just its spirit (keeping the game flowing and moving), rather than its letter.

egarber said...

Donaghy adhered strictly to the letter of the rules, calling almost everything that the rulebook describes as a foul.

Interesting. So that might make him more like Roberts, et al -- when they squeezed logic out of the law by holding that you only have 180 days to figure out whether your pay is the result of discrimination.

Benjam said...

that was NOT a foul!


karl lewellyn

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