By Mike Dorf
During Sunday's NFL football game between the NY Giants and the Arizona Cardinals, Giants receiver Victor Cruz appeared to fumble and the Cardinals appeared to recover. However, the referees ruled that Cruz had relinquished the football only after having "given himself up." Apparently, Rule 7, Section 2, Article 1 states that once a runner declares himself down by falling to the ground, or kneeling, and making no effort to advance, the play is dead. Cruz, in the mistaken belief that he had been tackled did that, the referees stated, so the ball was dead. I want to use this case as an entree into a very brief discussion of the relation between two sets of dichotomies: 1) Rules versus Standards; and 2) Objective versus Subjective tests.
But first, a clarification. I am reporting what the Rule "apparently" states because the NFL only makes available a "digest" of the rules, rather than the complete rules themselves. I took the above description from a news story describing the controversy. It's possible that the rule as exactly written raises different issues.
Okay, now onto the controversy. A number of commentators have criticized the NFL policy on two grounds: (1) Whether a player has given himself up is a vague standard; and (2) Application of that standard turns on the player's subjective mental state, which is impossible to discern. Both are legitimate points, although both could be countered by pointing to the vices of the alternatives: (1) An attempt to formulate a more precise rule would end up being both over and under-inclusive, as rules often are; and (2) an attempt to discern "objective" intent would require a somewhat hypothetical inquiry into such imponderables as whether a reasonable player in the circumstances at issue would have been giving himself up if he acted as the actual player did.
I don't have a strong view--or really any view--about whether the standard at issue is appropriate. I do have a view about the debate over it, and it is this: The question of whether to govern by rules or standards is a distinct question from whether to use an objective or a subjective standard of intent. It is possible to use a standard like "reasonable force is permitted in self-defense" in a way that links to either an objective or a subjective test. E.g., the reasonableness of force will be judged based on the perspective of a reasonable person (objective) versus the reasonableness of force will be judged based on the perspective of the actual person (subjective). The same is true for rules. E.g., whether a categorical rule prohibiting knowingly causing the death of another without justification or excuse could be measured by the knowledge we would impute to a reasonable person (objective) or based on what the actual person knew (subjective).
Despite the analytical separability of the rules/standards and objective/subjective dichotomies, in practice, the sort of person who favors rules will tend, other things being equal, to favor objective tests. (E.g., Justice Scalia). That is because standards and subjective tests can feel squishy and, well, subjective. But the association I am noting here is probably more psychological than logical. Logic would allow one to think that in some circumstances it makes sense to pair a rule with a subjective test or a standard with an objective one.