By Mike Dorf
Having arguably called for the abolition of football last week (and that was before the Saints crushed the Giants!), I shall now boldly venture into the rules of baseball, albeit for purposes of making a larger point about the law on the books versus the law in practice: During Saturday's ALCS game 2, umpire Jerry Layne called Yankee Melky Cabrera safe at second base when Angels shortsop Erick Aybar straddled but did not make contact with second base before throwing on to first for what Aybar thought would be a double play. Layne had enforced the rule as written but Aybar and Angels Manager Mike Scioscia said that he had thereby failed to honor the unwritten "neighborhood rule," which says that if a second baseman or shortstop steps in the neighborhood of the bag on a double play, the runner is out. This supposed neighborhood rule is meant to protect infielders against baserunners barreling or sliding spikes up into them.
The particular play is of only academic interest because it did not materially affect the outcome of the game (except perhaps in the unknowable butterfly-beats-its-wings sense): the Angels got out of the inning without allowing the Yankees to score. Further, there has been some debate among baseball fans and writers about whether Layne had respected the neighborhood rule earlier in the game. Fox announcer Tim McCarver first said he had, then later recanted after his staff reviewed earlier double plays, but some bloggers have said that those Fox staffers themselves got it wrong and that McCarver was right in the first place. Whatever.
Here I want to raise the more general question of when an unwritten rule should be permitted to trump a written one. Let's begin by drawing a distinction with a different situation: Often, in baseball and in other rule-governed activities, including law, the rule as written is silent or ambiguous on some point, and an unwritten rule supplements it. For example, there is an unwritten rule that allows managers and players to argue with umpires about most calls but not about balls or strikes. There are also supposedly some "magic words" that will get one thrown out of the game. These unwritten rules supplement but do not contradict the written rules governing ejections.
By contrast, according to the rulebook, the neighborhood play should result in the runner being called safe but (if used by the ump) it results in the runner being called out. (A related neighborhood rule sometimes permits a middle infielder to tag the dirt in the neighborhood of a runner attempting to steal second base and get an out call if the throw beats the runner.) This is quite closely analogous to the situation I used to face when I lived in Manhattan: The official local law forbade dogs off leash in Central Park at any time, but the Park police routinely did not enforce the rule in the morning before 9 A.M. Well-behaved dogs could romp freely in various areas of the park that were known to the local dog owners. Likewise, marijuana possession in the Netherlands is a misdemeanor, but the government has adopted a policy of non-enforcement.
Now the question: In circumstances such as the foregoing--in which the written rule could easily be replaced with a formalized version of the unwritten rule--what are the costs and benefits of leaving the written rule as is but enforcing a contrary unwritten one? The costs are pretty easy to identify: The ever-present possibility that the written rule will be enforced creates anxiety for those subject to it, while opening the way to abuse by officials in the form of arbitrary or discriminatory enforcement; and even if the unwritten rule is uniformly enforced, the very fact that the persons subject to it must come to understand that the law is not what is written down can undermine the core principle of legality and breed disrespect for law more broadly.
Are there compensating benefits? In some contexts, yes. Formalizing an unwritten rule could communicate to the public that the conduct it permits is laudable or at least harmless. The Dutch marijuana example is a case in point. Actually legalizing marijuana would send a signal that there is nothing harmful about it, whereas the policy of non-enforcement of the prohibition is (presumably) premised on the notion that enforcement itself would do more harm than good (as we see from the war on drugs here), even though marijuana use is unhealthy.
It's much harder to make the case that Major League Baseball or the NYC parks authorities are worried about condoning bad behavior, although it is still possible to make out a case for keeping the unwritten rule unwritten even here. In both instances, one might worry about slippage: If you think that no rule will be strictly enforced, then formalizing the unwritten rule will lead to a still looser rule in practice. So long as the rule says the middle infielders must make contact with the bag, the "neighborhood" will be defined narrowly; if the actual formal rule said "neighborhood," we might expect umpires to start calling even more players out. This justification is familiar to drivers. When the speed limit is 55 mph, drivers routinely drive at up to 65 mph without much fear of being ticketed. But actually raising the speed limit to 65 mph will lead to drivers going at 75 mph.
Whether the benefits of keeping the unwritten rule unwritten outweigh the costs identified above is difficult to judge in the abstract.