Sunday, August 05, 2012

Law School Lessons - from the Summer Olympics

By Lisa McElroy

It’s August, and that means that it’s time for two big events:  the start of fall classes and, once every four years, the summer Olympics.

For me, at least, they go together like peanut butter and jelly.

That’s because most beginning law students come to law school interested in doing justice.  Somewhere along the way, they learn that there’s this tricky thing called “law” that sometimes (at least to them) gets in the way.

And so in the first week of classes, I teach new students that the Olympics provide us with the perfect example of how law and justice can intersect – and diverge.

On the first day of law school, I ask students to think back to the Summer Games of 2004 (when many of our current students were – gulp – just starting high school, not law school), Athens, and the men’s all-around gymnastics competition.  Paul Hamm, a petite, muscular college star from Wisconsin, was heavily favored to win gold.  And win gold he did – although according to many, he really didn’t.

That was where Yang Tae Young  (“Yang,” as Koreans’ surnames precede their given names) came in. 

Yang, a South Korean superstar, would have scored higher than Paul Hamm, except that the judges made a scoring error, resulting in his winning bronze. 

Fair?  You be the judge.  Here’s why it happened.

In 2004, as gymnastics was then scored, a “10” was the highest possible “start value.”  Essentially, that meant that the harder a gymnast’s routine, the higher score he could potentially earn.  Also in the rules?  Any score dispute had to be raised before a gymnast moved on to the next apparatus (for example, after completing a parallel bars routine, but before the group moved to the pommel horse).

Yang’s parallel bars routine was exceptionally difficult, and the judges should have given him a start value of “10.”  They made a mistake, however, and scored his routine out of “9.9.”  That might seem like a small mistake, but in gymnastics, every tenth of a point counts.  In fact, in Yang’s case, the tenth mattered so much that when the final all-around scores were calculated, Yang had won the bronze medal, not the gold as he would have according to proper scoring.  After the competition, all officials – including the competition judges, the Federation of International Gymnastics (“FIG”), and the USOC – agreed that the scoring had been incorrect and that Yang should have won over Hamm (and the silver medalist). 

The problem?  Yang and his coaches did not protest until sometime around the medal ceremony, long after the parallel bars rotation was complete and Yang had moved on to the next apparatus.  In other words, Hamm won gold because of a technicality, not because he was the best gymnast.

Immediately, there was an outcry across the world.  Koreans, Americans, and the FIG called for Hamm to give up his gold to Yang voluntarily, saying that the Olympics were about sportsmanship and that a good sport would recognize the true winner.  Hamm, however, refused (and the USOC backed him up), saying that sports are about rules, he followed the rules, and so he won fair and square.  Hamm was called a bad sport, and Yang was called a Korean national hero.  And yet, at the end of the day, Hamm went down in history as a gold medal winner, and Yang did not. 

Every fall, I tell 1L’s about the Hamm/Yang controversy and ask them, “What do you think should have happened?  Should Wheaties have put Hamm on the box – General Mills refused – or should Hamm have gone down in disgrace?  Should Yang have gotten the $20,000 that the Korean Olympic Committee eventually awarded him, saying that he really did win the gold?  Why?”

Their answers inevitably revolve around the age-old concepts of law and justice.

Should the “law” have prevailed in the 2004 men’s gymnastics all-around competition?  Even though there was a rule about the timing of protests, should it have been waived in this very clear instance of error?  If not, why not?  Perhaps because waiving the rule this time would have set precedent for questioning the rule every time, creating an untenable slippery slope?  Perhaps because, in sports, there is a real interest in finality of results?  Perhaps because good sportsmanship, like Hamm said, involves following rules, without which sports would be anarchy? 

Or should “justice” have prevailed? After all, the best gymnast came in third.  Because of what some would say was rigidity on the part of the USOC, Yang did not win the ultimate prize in his sport, something for which he’d worked his whole life. 

But then we have to ask: is consistent application of rules – the law – is in and of itself just?

Think the Yang/Hamm controversy was an isolated incident, never to be repeated?  Nope.  Fast forward to June, 2010, when Armando Galarraga of the Detroit Tigers was one out away from being the 21st pitcher in major league baseball history to throw a perfect game – but the umpire incorrectly called the last batter “safe” on first.  Instant replay showed that batter to be out.  The problem?  Yep, a baseball rule – one saying that instant replay could not be used to override umpire calls. 

That law/justice dichotomy is a tricky thing – if, in fact, it is a dichotomy.  As Oliver Wendell Holmes and Judge Learned Hand are reported to have said on the occasion of Holmes’ appointment to the United States Supreme Court, “Do justice, sir.” “That is not my job.  My job is to apply the law.”   Was Holmes right?  Should the law always control, I ask my students?  Or was Holmes’s view of “Equal Justice Under Law” too rigid?

And so we brainstorm about legal, not athletic, examples of the law/justice divergence (or intersection, depending on how you look at it).  How about when a landlord throws a family with children out in the middle of winter, all because they haven’t paid their rent?  How about when a criminal defendant goes free because the police search was unconstitutional?  How about when a woman is a victim of domestic violence and obtains a restraining order against her ex-husband, but the police fail to enforce the order, and the ex-husband kidnaps and murders her three children?    How about when a mother - trying to protect her daughter from the girl’s father, who is accused of sexually molesting the child - is sent to prison and serves two years for contempt of court because she refuses to comply with a visitation order, released only after Congress passes a bill specifically aimed at her situation? 

To some, these are miscarriages of justice of Olympic proportions.  And to some, these decisions are just, because they comply with the law.  And our role as professors?  It’s our job throughout the school year – beginning in that very first week -  to guide our students in seeing that every situation can be judged on the equities, every legal dispute has two sides.  Sometimes both sides can make good legal arguments, and sometimes both sides can argue that their way of looking at the facts is the just way.  Our job as lawyers?  It’s to ferret out these arguments and apply them on behalf of our clients. 

Let the games begin.