Advisory Opinions - The Spirit of Curling

Episode Date: August 23, 2021

Mitchell Berman, professor of law at the University of Pennsylvania’s Carey Law School, joins our hosts for a fascinating discussion on the jurisprudence of sports. In a wide-ranging discussion, David and Sarah adjudicate everything from how unwritten traditions are enforced in games to how robot umpires are changing the landscape. And of course, no sports law discussion would be complete without a dive into the Olympics. Show Notes: -The Jurisprudence of Sports by Mitchell Berman Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker, and we have got a very special pod today, a very, very special podcast today, one that I am particularly excited about because it is, this is probably the first podcast, Sarah, that is going to go all in on sports and law. And I can't wait. Do you want to introduce our guest? Absolutely. This is going to be the nerdiest sports conversation that you, listener, have ever been a part of. I'm just going to go out on a limb and say that. Our special, special guest today is Professor Mitchell Berman of the University of Pennsylvania. But before that, he was at the University of Texas, where he was the professor of one husband of the pod.

In fact, husband of the pod was one of his TAs and raved about him. So when I was talking to husband of the pod about what our fun nerd topic should be, uh, back in like March or April, he said, well, obviously you have to talk to professor Berman because he gave me an a, but also, uh, he has a textbook called the jurisprudence of sport, sports and games as legal systems. This is the coolest. He became nerd famous about 10 years ago for a conversation about instant replay. But we have that and so much more to talk about with him.

The jurisprudence of sport. Hold on to your nerd hats. Well, Professor Berman, welcome. Thanks. It's great to be here. So maybe we need to start big picture. Tell us about the jurisprudence of sport, because this is not sports law. This is like the opposite of sports law. Yeah, it's not sports law. I don't know if it's the opposite.

It'd be hard for me to figure out exactly what would cause it to be the opposite of sports law, but it's not the same thing. So I take sports law to involve the application of settled bodies of law, more or less settled bodies of law, to issues and disputes that arise in the field of sport. So sports law concerns the application of antitrust law or intellectual property law or tort law or the law of agency to problems that arise in sports. And that's all great, but I should tell your listeners it's not anything I know anything about. But what the jurisprudence of sport is, is comparative law. It's looking at sports as legal systems in their own right, as opposed to areas of human existence that are subject to regulation by municipal law.

So this is obvious to any fans of European-based sports. If you pick up the rulebook for soccer or rugby, it will say the laws of the game. So they're all called the laws. We don't call the rule book that governs football or baseball the laws, but still legal terminology is just under the surface. And in all respects, they're pretty clearly legal systems. They're governed by rules. They have the institutional apparatus that's familiar from legal systems. There are legislators, rulemakers, and independent arbitrators. And all the theoretical problems that arise in law can be found in sports. So I think it's interesting from a comparative law and legal theoretic perspective. sort of judicial review in sports. My husband and I talk about the standard of appellate review quite often when we're watching football. And this is how the instant replay thing comes up. Will you talk a little bit about the standards of review and how you kind of ended up as the expert on the law of instant replay? Boy, I wish I were the expert on it. It's nice of you to say

it. I don't think I am, but I can tell you how I got interested in it. Pretty much the way I got interested in all my sports problems. I'm a big sports fan and also a legal theorist. And as you said, sort of a nerdy one. So I'm watching sports and just legal questions arise. And one of them was, of course, concerning instant replay. So if you're a football fan, and you have been for a number of years, you know that for a long time, obviously you know that there's instant replay in football, as there is in many or most sports now.

And you know that there is a standard of review. And the standard of review in football used to be indisputable visual evidence. Now it's, I think, clear and obvious visual evidence, which I take to be essentially the same thing. The point is that it is a very, very deferential standard of review. It really entrenches the initial call on the field. And that's what broadcasters would mention all the time. They'd always say, well, it looks like they got that one wrong, maybe, but it's the 10 drunks in a bar standard, they often say, or 100 drunks. If you're not absolutely certain that they never said was, why? Why is there such a demanding standard? And I puzzled over it because the obvious consequence of such a demanding standard of appellate review is that we're going to get a lot more errors at the end of the day,

a lot more uncorrected errors than we would have if the standard were less deferential. So I noodled over that. And one of my first articles in the topic was raising questions and suggesting that maybe the standard should be less demanding. Well, some of the reasons were that it would delay the game, that it would undermine confidence in the officiators. But I mean, we don't, there is no comparable standard in the American legal system. We have like rational basis review,

which is pretty deferential, but it's not quite the same thing as just entrenching errors like in our criminal justice system, because we're worried you might lose confidence in the prosecutors. Well, there's clearly erroneous review and there's abuse of discretion. And it could be that either of them is defended at least partially on grounds of

preserving respect for the system. So something similar, not a standard of review exactly, but substantive standards of doctrines of constitutional law. Some of them are deferential, sort of Thayerian, right? So think about the rational basis part of the pre-Lopez commerce clause doctrine, which still to some extent exists, but it's very hard to know just what current commerce clause doctrine is. But the idea that there is some degree of rational basis deference there seems clear. And to some extent, that's justified on grounds of reducing friction among the branches or between the branches. But I agree with you. That's sort of the beginning of wisdom in the football realm, is to at least recognize the

consequences of having such a deferential standard of review. It is going to lead to more total errors. And then that invites the question that you were exploring, which is what, if anything, could be said on the other side to potentially justify that cost. But you don't even get to the justificatory stage if you don't recognize in the first instance that such a high standard does come with it,

a fairly obvious cost. So one of my questions, it's funny that we're having this conversation because just last night I was listening to a podcast calling for the abolition of review, especially in the NBA, where it disrupts the flow of the game much more. Basketball is a much faster moving game. Football, you have a natural pause in between each play. You're more used to stoppages. And one of the arguments was, look, mistakes are just part of it. I mean, they're just part of the game. Injuries are a part of the game. Player error is a part of the game. Mistakes are just a part of it. And it seems to me that when you're talking about this very steep standard of review, that's the NFL saying in the NFL context, yep, mistakes are part of the game, but not big mistakes once or twice a half. big mistakes once or twice a half. And it strikes me that that's not even half a loaf.

I mean, do you take a position on sort of the underlying merit of the whole enterprise, or are you more analyzing, you know, the, the, the, and you're analyzing your, in your analysis of the consequence, has it made you take a strong position on the underlying merit of the whole enterprise? Yeah, that's a great question. Generally speaking, I'm not in the merits business. I don't go to that many, to that many bottom line conclusions. I'm more interested in identifying interesting puzzles and then mapping out ways of thinking about it. And as Sarah mentioned from the beginning, I've got a casebook out. Actually, it's not a casebook. It's a textbook because it doesn't have many cases. But the idea of it is to try to introduce students, both law students and undergrads, to legal systems and legal reasoning through material that's going to be much more familiar to them. So instead of starting them out with having to give them the substance that they

don't know, here's what tort law is all about. We can marshal their pre-existing knowledge to have them thinking about these questions. So David, you rightly identified there are trade-offs, and that's what we would want students to be able to think about. Okay. So here's a question of error. How concerned are we about errors? How concerned are we about accuracy and getting things right? It seems like we place significant value on that, generally speaking, but that's not the only thing that matters. So in the legal system, we have only one stage of appellate review as of right. Why not more?

Well, because the legal system has made some sort of compromise among different sorts of values, the value of accuracy, but also the value of settlement and moving on with one's life and the cost of reducing costs of dispute resolution. reducing costs of dispute resolution. So to identify the various sorts of considerations are in play, and then to try to figure out what we can say about these different considerations, to what extent can we advance the ball, and to what extent do we get to a place of irreducible subjectivity and value choice? So it could just be we've done whatever analysis we could do, but you place a greater weight on finality than I do relative to accuracy. And then we might come to a realization that there's little we can say to advance the analytic ball, and it just comes to

sort of a bedrock difference in value. And where we can see what we can think through and where we can see that they're just sort of value choices is, I think, really important for lawyers and law students. There's a catch-all in our criminal justice system where there will be certain things that aren't reviewable or the standard of review may be whatever it is. But at the end of the day, there's a standard of a shocks the conscience. Something can be so egregious that even if it is otherwise not reviewable or anything else, if it just shocks the conscience, we say that that then violates due process, this sort of a net that sits below everything else. And my husband wanted me to ask you, do you think the 2018 NFC championship,

no call between the saints and the Rams should have created a shocks, the conscience type system within the NFL so that that no call on pass interference would have been reviewed and then given it to the saints who would have gone on to win the Super Bowl, presumably in his mind. Because, by the way, I should mention Drew Brees, you know, went to the, or sorry, was from Texas, went to Westlake High School and then went to Purdue. And that means a lot to him, a Purdue grad. Was he also a Westlake grad? He was not. I just, he lived in Texas. And so he like has extra affinity for, for Drew.

Okay. Um, well, I think there's something to that. It was a, it was an outrageous call or missed call at the end of the day, exceptions like that in sports probably don't work all that well. Certainly a lot of people in New Orleans would agree with Scott on that. It did have an impact. It had a big impact because it did provoke the NFL to introduce an experiment with instant replay for pass interference, which I think is a really, really interesting problem. Oh, boy. And that turned out not to be a very successful experiment, so they ditched it.

So it did have that impact, but you're right. It didn't have any impact for the Saints. Another case like that is the imperfect game in baseball with Armando Galarraga, who on his last at-bat, the Detroit Tigers pitcher from, say, 10 years ago, where he had a perfect game after 26 batters. And the 27th batter hit a grounder to the infield. He was thrown out at first, but the first base umpire, James Joyce, mistakenly called the runner safe, thereby ruining what was this guy's hit for immortality. And it was clearly a mistake, clearly an error on that call. And this is an interesting mistaken call, because unlike the Saints case, this was a mistaken call that could be reversed after the fact, because if it had been called correctly in the New Orleans game, probably the Saints would have

won, but there would have been counterfactual ambiguity. We don't know what would have happened in the Detroit Tigers' imperfect game. We know what would have happened had the call been made correctly. And it went up on appeal to Bud Selig, commissioner of baseball, and he said, I'll just, I think Bud Selig was the commissioner. Then he said, I just love it. Let the court of popular opinion show that it was a perfect game, but we're not going to change it. And that was quite an extreme case. So I think it's going to be hard to see how they could have a system that would lead to that reversal. I shouldn't say hard to see how they could, but whether on balance they should, I'm less certain. But there is something quite like it that people don't know about it in the NFL rules. In the NFL rules, they have a rule that provides something like that, sort of a

rule of equity or a safety net, as you put it, for when things really get messed up and there's a lacuna in the rules that don't properly address it. It didn't apply to this circumstance, but for a violation by a team or a player, there is a provision that allows the referee to award any remedy that they think appropriate, including a score. So that is quite unusual, right? There was a number of years ago, Mike Tomlin, head coach for the Steelers, put his foot out to trip a player from an opposing team. I remember that. Yeah. I'm a Steelers fan and that wasn't so good, but that's the type of case where, where the ref could have said for this violation, we're just

going to award a touchdown to the opposing team i don't know how often something like that has happened i haven't found any records of it but that is an interesting rule that most people don't know about it yet you know so i i want to i want to dive uh deep into a comparison between the unwritten rules of sport and customary international law. Okay. So, you know, in international law, you'll have treaty law. That's, you know, when a nation enters into a binding compact with another nation or set of nations, and it's interpreted very much like you'd interpret a statute. There's words on a page.

And then there's something called customary international law that's really established. It's an international legal regime established by the customs, by the practices of the nations. And one thing that strikes me when you watch, and I think I see it more in baseball and basketball maybe than football, is the unwritten rules of the sport loom quite large. Baseball and basketball, maybe even football, as the unwritten rules of the sport, loom quite large. Baseball has a series of traditions that it seems like the umpires will defer to in some cases. Basketball, it seems like the referees actually enforce some of these unwritten traditions. There's such a thing as a veteran's call or a superstar's call, or that you have to earn your place in the league before you're going to get that call. I don't know if you've seen this phenomenon, but is this something that you've taken a look at to sort of the customary law of

sport as well as the written law of sport? Oh, yeah, absolutely. You're right. Informal norms are a big part of legal systems, most legal systems, including our legal system. And we're often unaware of what those informal norms are until they come under pressure. And then we say, wait a second, you can't really do that. And then you realize, well, it's not so clear that you can't so long as we're enforcing only the written norms. But informal norms in sports are a very big deal. Ooh, what should I say about them? I don't know, ask me a question that calls for an intelligent answer.

But yeah, there it is. I would say one of the really interesting examples going back into the 80s and 90s was the evolution of the way that referees called Michael Jordan. If you remember early on in the bad boy Pistons era, he was brutalized. He was brutalized. Then by the end of his career, it was difficult to touch him. And that's sort of a classic. And the rules of the game, although the league would say we're going to put more emphasis on hand-checking or whatnot,

but to me, that sort of evolution in one guy was an interesting evolution in how the norms of the sport paid him greater deference and homage. Well, so superstar treatment is something discussed in the book, certainly. I haven't written on it otherwise in the book, and I'm not sure what I have to say about it. But I think it's really interesting from a lot of perspectives. One thing is that is a norm that the officials don't cop to adhere to. So there's just disagreement with respect to superstar treatment. Some of it is epistemic. So there's a famous story about Ted Williams in baseball. It's told in lots of different ways, but basically the catcher complains about Ted Williams has a famously good eye and he's at bat.

But Ted Williams has a famously good eye and he's at bat. And a pitch comes in. It's called a ball by the home plate umpire. And the catcher says, basically, that looks like a strike, doesn't it? Another one comes in and it's called a ball. The catcher complains. And the umpire says, Mr. Williams will let you know when it's a strike. So the thought is that this is epistemic deference. Here, the umpire is in the position of fact-finding.

He has to find a particular fact, and he can draw upon the implicit testimony of a good eyewitness. So that's an interesting type of superstar treatment. Not the type you're thinking about, of course. There the refs deny it, but I'm not in a position to either affirm or deny it. Other areas of informal norms that they certainly adhere to concern in basketball, traveling. Refs have been quite clear that if you want to know where traveling is, don't look at the rule book. That's just going to mislead you.

Of course, what's the strike zone? For years and years, everyone knew, including the umpires that they were, that the law and the books and the law in action differed substantially. Makeup calls is someplace where there may be informal norms in play. Another really interesting case, I think, and you'll like this, David, as a basketball fan, case, I think, and you'll like this, David, as a basketball fan, is whistle swallowing. This was actually the first article I wrote on the topic right before I wrote on Instant Replay. So I mentioned I'm a sports fan. I watch sports and questions arise like, why, what can be said, what, if anything, can be said in favor of the practice of swallowing the whistle at crunch time, not enforcing ticky-tack fouls toward the end of close contests?

That seems like something which pretty clearly is part of the informal norms of various games. And it's an interesting puzzle. I think many sports fans would agree that,ively it is part of the practice. Clearly, off-ball fouls are called less strictly in crunch time in basketball. I think that's an empirical claim, but I think most basketball insiders would agree with it. That raises a normative question. Should that be? Is there anything that could be said in favor of that practice? And what could be said against that practice is pretty obvious. Rule of law values, equality, treating likes alike. You're

going to call a foul at time T1, you call it time T10. But I think many people have this niggling sense that actually there may be something to be said in favor of a practice of whistle swallowing. So I wrote an article exploring whether anything could be said in favor, and I think that it is, in fact, justifiable in a limited circumstance. So that's another case of informal norms that might be the type of thing you have in mind. I'm not sure. It's such a norm that I think fans, as a rule, are now outraged when there's not whistle swallowing at the end. There's a let them play ethos.

And one thing I do need to back up, and for all the Michael Jordan folks out there, I know he was still guarded more physically in 1998 than we allow people to guard now. So let me revise. He was brutalized in his early career. By the end of his career, he was able to shove Byron Russell out of the way

before a game-winning shot in 1998. So let me just dive into that pool. So, Professor, we just finished the Olympics, and we knew we were going to have you on the pod. So I was watching the Olympics with a certain amount of, A, I have no idea what the rules of some of these games are, but because of my extreme patriotism, I'm yelling at the refs in various sports, having no clue whether they're right or wrong. I'm curious your experience watching the Olympics, if you've already gone through the rule books of all of these weird

sports that we don't particularly lionize here in the United States, and whether that sort of, if the Olympics are your Super Bowl, is that in terms of all of these legal systems on display at once on so many different channels. You are so right. First, I should set your mind at ease. No, I don't know the rules of all these sports. Jurisprudence of sport is sort of a sidelight. I do other things as well. So I'm less expert on the rules of all these sports than perhaps I should be. But I know a fair bit of them, and it's a quite complicated system. It's a complicated system because of the involvement, the interaction of a number of different regulatory bodies. So you might know that

the International Olympic Committee has certain responsibility over the Olympics as a whole. And they create certain rules, but they also give lots of, they delegate lots of authority to the independent sports federations. So on many matters, the individual federation can make the rules within the space that the IOC rules allow for. One good example is doping. Another is whether you can play for a different nation than a nation you initially played for. Things like this. Some of those rules are set at the independent federation level. And then there's a question of what federation should the IOC identify as the federation that's going to be in control of particular sports. So there are lots of different wrinkles. That said, I do think that substantively there are a huge number of fascinating questions on the Olympics. I watched less of it this year

than I ever have because of the time difference. When you wake up in the morning and you find out who won, it does take some of the pleasure of watching out of it. That said, there are all sorts of interesting questions. So one of the most interesting questions, I think, and one of the big questions in the jurisprudence of sport right now concerns the involvement of transgender and intersex athletes in categories of competition identified for women. That is a huge issue, and that's one that we saw playing out a little bit in the Olympics. There are always questions of amateurism who rely on the Olympics. I think that's an interesting question both for the Olympics Olympics and of course, college sports right now. Questions about, let's say tie breaking.

So there was in the Olympics, I'm forgetting what sport was it where there was a tie and. Yeah. Yeah. And the, and the guys, uh, they're like, do you want to do that? I think it was either the long jump or high jump or whatever it was. And they were like, do you want to do that? Do you want to do the tie breaker? And they're like, do we have to? And they were like, no. And they were like, yeah, no, we'll both take gold. Thank you. Yeah, yeah, exactly. They thought, what is this, a trick question? We can both be assured gold right now or not. So that's really quite interesting. Tiebreaking, I think, is a fascinating question in sports. In the Winter Olympics, a few cycles back, there was a tie in women's downhill skiing. And that was an interesting question because

it could have been broken, unlike in the high jump that you mentioned. They already jumped, they made the same level, and then they both missed at a higher level. the same level, and then they both missed at a higher level. So a question in downhill skiing, how many decimal places should you record scores times and how many places should you go in an effort to break a time? So two skiers were tied to the hundredths place of the second, were tied to the hundredths place of the second, but the sport actually measured and recorded, but did not report the time to the 10,000th place. So these two women both got gold and nobody out in the world knows

whether one of them was faster to the thousandth place, let alone the 10,000th place. So that's an interesting question of tie-breaking. That was a question that arose during these Olympics, how should you break ties? But yeah, I'm always interested in watching sports, learning the rules, and finding out what are the interesting problems that arise in that sport. Okay. But when it comes to the Olympics, or any sport, actually, that you've looked into that's not, you know, football, basketball, baseball, are there weird rules out there, like, that have some equivalent in our legal system or no equivalent in our legal system? All right. That's a good one too. Yes. There are lots of weird rules out there. Now, which ones can I bring quickly to mind? That's the tougher one. Oh, here's an interesting rule. There's something called the spirit of curling.

Oh, you have no idea how happy it's making me that this is a curling reference. I'm obsessed with curling. And in fact, was spent a lot of last night texting with our USA gold medal winning curling coach. So yes, please tell me. Seriously? Yes, yes. Oh, yeah. Coach Phil. So yes, tell me everything about the spirit of curling. Well, I'll tell you everything I know about the spirit of curling. That's a very different matter. So I think once in general, I think what sportsmanship is and what cheating is are fascinating questions. In curling, they have a provision called the spirit of curling, and I'm trying to find it. Okay, here it is. This, as you know, is promulgated by the World Curling Federation. By the way, for listeners, what's amazing here is that, like, I just asked this random question. He didn't move from his desk. He had it within arm's reach, the spirit of curling rule. Please, professor,

continue. Well, it's in the book. That's why I've got the book at arm's reach. So if you ask me something in the book, I might have it. Otherwise, I don't know. It says, curling is a game of skill and traditions. A shot well executed is a delight to see. And so too, it is a fine thing to observe the time-honored traditions of curling being applied in the true spirit of the game. Curlers play to win, but never to humble their opponents. A true curler would prefer to lose rather than win unfairly. No curler ever deliberately breaks a rule of the game or any of its traditions. This, and it goes on, this spirit should influence both the interpretation and application of the rules of the game, and also the conduct of all participants on and off the ice. This spirit should influence the interpretation and application of the rules of the game.

game. Really interesting because we in ordinary law often find a conflict between what we call the letter or spirit of the rule or the text and the purpose. There are various different ways of getting at this difference, but we're all very familiar with it. And it's a hard question that jurisprudential schools differ on regarding to what extent officiators are authorized or required or permitted to take into account purposive or spirit-based considerations. In some way, this is the chief conflict between originalism as practiced by, let's say right now, Justice Alito and the textualism that Justice Gorsuch practices. Justice Gorsuch does not want to take into account the spirit of curling. And Justice Alito says, how can you possibly read the rulebook without the spirit of curling?

Well, I think I might need a ruling from Professor Berman. You might need to put on your Judge Berman hat because I have curled once in my life and I fear I violated the spirit of curling. I had one clutch, do you call it curl, throw, whatever, where I sent the rock down the ice. In a key moment it sealed the victory for my team and what I did immediately after was kind of slowly run across the ice, slide in front of the team that had just beaten making imitating machine gun motions like I was gunning them all down as sort of a taunting exercise. Does that, Judge Berman, violate the spirit of curling in your view? I think it's going to be a tough one for you. I'm not sure you're going to be invited back to the briar. The briar is the big Canadian competition. Now, it does say at various points,

a true curler would thus and such. And I think you do have an out there. I think you're not a true curler. You're just you're just playing one. Oh, I do think on Sarah's question that that Justice Gorsuch is a by the rules. Let's not look at the spirit, Justice. I guess. One of us hasn't read the Bostick opinion, so I don't know. the Bostick opinion. So I don't think that's the great example of the, I think the Bostick opinion is exactly what comes to mind. That is pure textualism. You are only looking at the word. Yeah, that's not textualism at all. That's nonsense textualism. I have an article coming out actually, a co-authored article on Boston. Uh, provocative title. Yes. Boston was bogus. Um, uh, so that's, that's coauthored with my, Oh, you're going to like this, or at least your husband will. This is coauthored with Guha Krishnamurti, who was a TA that I had,

I think either right before or right after, uh, Scott Keller, the great Guha Krishnamurti and the great Scott Keller. So he and I co-authored an article that's coming out in the Notre Dame Law Review. And our claim there is that as far as textualism goes, Alito was right. And whatever Justice Gorsuch was doing, which substantively I quasi-applaud, was intellectualism. I mean, his but-for analysis was for the birds. But if you want to hear more about that, you can have me back on when I'm wearing my either constitutional law hat or something similar. I just think after this conversation, you probably need to drop a footnote. You're not having me back. You need to drop a footnote in your article that talks about the spirit of curling now

and really explain how Justice Gorsuch maybe was not in the spirit of curling. Well, I hope the editors of the Notre Dame Law Review are listening because right now I'm in the process of cutting 6,000 words. I don't see another new footnote coming in. And it was my fault for getting it too long. So it's not on them, but maybe they'll agree to 6,100 words so I can put in the spirit of curling. Yes. So the spirit of curling really, it's amazing, right?

It is saying, in effect, the spirit here is adjudicable. It should influence the interpretation and application of the rules. And then cases arose where it didn't seem to happen. I could give you, I could tell you about some of those cases, which are pretty interesting. Yes. Give us one. Give us one. Yeah.

I mean, I'll give you, I'll give you one. There is a rule in curling that says if your opponent's rock hits yours, if it sort of touches it, there are various remedies that can be imposed. You can remove the touchstone and replace all stones that were displaced. You can leave all of them where they are. You can place the stones where it's reasonable to anticipate they would have gone if not touched. I'm sorry, this is a moving stone. If you touch the moving stone with the brush. And there was a tradition. Remember, the Spearing of Curling says you stick to not only the rules and the spirit, but the brush. And there was a tradition. Remember, the spearing of curling says

you stick to not only the rules and the spirit, but the traditions. And there was a tradition which says if a brush or sweeper touches a stone, but it makes no difference at all, you just lump it. You just lump it. And in this episode,

a Canadian, the captain of the team is called the Skip, and the Canadian Skip, Rachel Homan, against a Danish team, when the situation arose, decided to impose the severe remedy of removing the stone, I think it was. And traditionalists were aghast. They all were clear about the empirics, that this made no impact, and clear about the tradition. Therefore, you just lump it. And the officials, I think, had the authority to overrule that. And they didn't. And that caused a lot of consternation in our neighbor to the north, because they are adherents of the spirit of curling and fair play. Interestingly, that could happen in American law in lots of contexts. There is something, as you know, I don't have to tell you this, in Hawaiian law, there is the spirit of aloha,

which is much the same. And it talks about the aloha spirit is the coordination of mind and heart within each person. It brings each person to themselves and goes on and on. The spirit of aloha was the working philosophy of native Hawaiians. In exercising their power, this is from the statutes of Hawaii, in exercising their power on behalf of the people and in fulfillment of their responsibilities, obligations, and service to the people, the legislature, governor, lieutenant governor, etc., etc.,

judges, justices, may contemplate and reside with the life force and give consideration to the aloha spirit. It's a little interesting whether there is real possibility to make legally binding the obligations, basically the rule of equity. Introduce equity to leaven the law, and sports sometimes have those. They are followed much more often, as you would guess, at a sub-professional, sub-elite level. When the stakes rise, the behavior seems to fall out of conformity with the spirit of the rules. We see that in ultimate frisbee right now, or ultimate. So that's a sport which has really prided itself on not having officials and in self-officiating

and adhering to the spirit of the game. And as things get more competitive, you introduce officials and then things become very rule-like. You see that as well, a lot of people think, in the practice of law. So talk about informal norms. In the practice of law, law as a profession, you think of a lot of practitioners adhering more to the spirit, not engaged in burdensome discovery,

for example. Practicing litigators can multiply over and over more than I can the types of examples of behavior, abusive behavior, which is permitted under the rules, but wouldn't be undertaken by people who are trying to adhere to the spirit of it. Those are some informal norms, and informal norms come under great pressure when a couple of things happen. One is when you have greater heterogeneity of the players. So it's a lot easier in hockey to adhere to the informal norms when everyone who came to the NFL came through Canadian youth hockey. They were all acculturated in the same norms and traditions. Much easier to know what these unwritten norms are. It's hard to know sometimes what unwritten norms are.

So when you get greater heterogeneity of participants who are coming from different sub-communities, and when the stakes rise, when a billion dollars turns on the lawsuit, you might be less inclined to be, if you'll excuse the gender term here, but he has some historical accuracy, gentlemanly with respect to the practice of law. So questions about the formal rules and what the informal norms are that govern our behavior within the regulatory space that's created by the formal structure are, I think, hugely important. I think they're hugely important, of course, in national politics at this time. We found out in recent years, things don't go so well when those informal norms, which are the glue to the system,

are not norms that parties from different perspectives can continue to adhere to. So informal norms are really important. Not sensing a lot of a spirit of aloha in DC these days. Yeah, that's part of our job. It is interesting though, when you talk about the informal norms, the legal profession, I can remember when I was a very young attorney working at a firm in Manhattan

and one of the attorneys I was working with was a former federal judge. I remember him calling me in on a Saturday to work with him on a letter to opposing counsel. And the purpose of the letter was to complain to her about her, quote, contumacious behavior. And I did not even know what the word contumacious meant at the time. But it was an entire letter not appealing to her violation of any rule at all of the federal rules of civil procedure,

the local rules of court, the substance, nothing. It was just to accuse her at length of violating these sort of informal norms. And we wrote it and sent it. And as soon as it hit her desk, she was outraged to be accused of violating these informal norms.

Like this was a very, very, very big deal to her to be accused of violating these informal norms. And I think, you know, Scott's the one who's litigating day by day right now, but in a lot of sectors of American law, those informal norms still prevail a bit. Maybe not as much as they did, but they still prevail a bit. Can I jump tracks for a minute and go down a separate line of inquiry? And by the way, legendary producer Caleb, I think Spirit of Curling has

got to be the name of this podcast. Obviously. Yeah. And the name of if I ever own a boat or anything that I get to name, you know, like my next kid. Like, yeah, yeah. That would be a great name for a boat. The Spirit of, that's fantastic. All right. So, Professor, is there, amongst the major American sports, is there a jurisprudence, is one or more of them have a jurisprudence that you think is in greater degree of reform or need of reform than others? If you're looking at the major american sports are you seeing any holes developed in their uh written in common law or is there a because one of the

things that i'm thinking and just to circle back to our instant replay issues i think instant replay has con has isn't backed out of control in the nba um but is there a is there a jurisprudence of an American sport that you find lacking? Hmm. I'll give you some defects of the sports as I see them, rather than an overall judgment about which sport is in most need of reform. One thing is time, certainly. Baseball sees that, of course. They've got to figure out how to speed up their game to meet current tastes. And they're playing with all sorts of things, changing the way extra innings go, for example. Basketball's main problem might be the way games end the the sort of the constant delay toward the end of a game really destroys the dramatic tension so all of the fouling and and play stoppage i think is one of the the main problems facing basketball.

But I'd be interested to know what you think as a basketball guy. I think instant replay is a problem for all sports. I think that once the genie, there's no putting the genie back in the bottle. It's really sort of intolerable for big mistakes to happen, like the New Orleans Saints example that Sarah mentioned earlier, where the world is watching in super slow-mo and high definition and can tell that there was a big screw-up, but the sport has no way to fix it. That's probably not tolerable. On the other hand, the way we're going about instant replay right now is really weak. And it's really weak for a reason that you touched upon, David, or is suggested by a question you raised earlier, but I didn't dial back to. I didn't pick up on it.

I'm happy to now. You said that there really should be instant replay for big mistakes, blunders, or something like that. I don't know just what word you used, but you're referring to whoppers, big errors. But that's not what instant replay is used for. Instant replay is used for ferreting out those mistakes, which on review from multiple angles in high definition and super slow-mo, we can tell we're mistaken. And that's not the same thing as seeing what was a big mistake. It could be that we can tell clearly there was a mistake, but nonetheless, it was a very minor mistake.

The player's little toe was on the line. We can tell that clear as day, so it was a mistake, but it wasn't a big mistake. A big mistake is the no call in the pass interference in the Saints game. A big mistake is the Vinny Testaverde touchdown call against the Seahawks with the Jets years and years ago. People remember that. There are things like that, and those have to be corrected. The problem with instant replay is they're focused on error correction as opposed to what I call blunder correction. So it should be much quicker. It should be, can you tell, looking at this quickly, that there was a mistake? If you can tell quickly they got it wrong, that's what we want to fix.

Everything doesn't have to be perfect. And I think sports in general have to be more sensitive than they are now to the cost they're incurring in the coin of dramatic tension. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my

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Use code ADVISORY at checkout to save. Terms and conditions apply. Possibly bad idea incoming. Okay. Because one of the things that I have a big complaint about in instant replay is when you do the slow-mo high def review,

it completely distorts the real-time, like there's a real-time decision made in real speed. And what if your instant replay review is only done in real time? In other words, what you're doing is you're only reviewing the play in normal speed, normal time, reviewing the play in normal speed, normal time, rather than this slow-down, high-def review. And then, therefore, you're going to... The blunder standard is going to be...

You're going to have a de facto blunder standard then. Possibly bad idea? Possibly bad idea? My guess is it's probably a little un-nuanced. I mean, it's obviously a little un-nuanced. I mean, it's obviously a little un-nuanced. You recognize that. But maybe it calls for a little more nuance. I'm not sure that categorically no slow-mo is correct, but I'm not sure that it isn't. Because I do think that that's the line, the avenue of thought that I think is promising. Separating blunders

from mirror mistakes. Think about in an analogy here is in baseball. So an error for a fielder is a mistake. It's not just getting something wrong that they had the capacity to get right, but rather falling short of the normal standard of play that we call upon for the players. You could have thrown it a little faster and you would have made the play, but you didn't. It could have been a little quicker in getting to it. That's not an error. So it may be that what we should be trying to do is error correction in the baseball sense, as opposed to mere mistake correction. And if we think that's right, then there's a separate question about just what the procedures should be that are best tailored to that goal. And it could be no super slow-mo. I'm just not sure,

but I wouldn't rule it out out of hand. So speaking of baseball, one of the minor leagues is trying some new rules. And one of them is that they will not have an umpire calling balls and strikes. The computer will do that. It'll be a camera AI system calling balls and strikes. The ump will still be there to A, announce what the computer tells it, and B, like a ball hitting a player, for instance, stuff like that, throwing the bat, things that are not balls and strikes. But I found myself very torn about this because on the one hand, in a legal system, if we were to sort of be behind the veil, so to speak, you would want to minimize errors entirely. But in a sports system, I don't know that that's actually the goal to all the things we've been

talking about. No, sometimes you'd rather play go faster, even if that introduces some errors, for instance. But in this case, it's not going to slow it down. It's going to be more accurate. I'm having trouble articulating why there's something about that that I am slightly uneasy with. Yeah, you're right to have difficulty articulating what you're uneasy with, because there's no good reason to be uneasy about it. In my view, in my view. There's a humanist to sports. In my view, in my view. There's a humanness to sports.

Totally get it. Yeah, exactly. So people say that if you don't have things to argue about, one thing around the water pool, if you guys remember the days when people met up with colleagues in the office around the water pool, it might happen again. Who knows? Maybe. People say the good thing is to argue about the calls last night. And I guess I just think, nah, you're right.

There's a human element. And if we were really in danger of losing the human element, then I'd be with you. I just don't think that we are. I think that here we want to get things right, probably. I think in other contexts, there are clear tradeoffs. Accuracy versus delay. I can see the value of non-delay, the value of having umpires mistakenly making calls, making calls in error. So the world can see as a model, human failing or something.

We've got plenty of models of that. There's no danger. There's no danger that if we get automated calls of balls and strikes, there won't be enough in baseball to see human frailty, to see human failure, including imperial failing. So I think really what it is, is status quo bias. I think that we tend to think, yeah, this is the way it is, and that's the way it should be. But I think it will change. I'll bet on this one. Ten years from now in the major leagues, calls on balls and strikes will be made by an automated system. And our children will wonder about how it could have been that it took so long for us to change that. I have it on the cover of my textbook, which your listeners can't hear, but you guys can see it. It's really a great cover, I think. Great photo. And in the cover, since your listeners can't see

it, it's got a picture of Jackie Robinson talking to an umpire, a quite well-known umpire, whose name escapes me, Al Barlick, I think, about a play. He was called out at second, and they were talking about it. And you can see up in the corner a glove, a baseball glove on the base pass. And you might be puzzled about that. Why is there a glove on the base pass? Is that Jackie's glove? Of course, it wasn't Jackie's glove because he was a base runner. It used to be that fielders just left their balls in the field, their gloves on the field when they went in to the dugout. It's not that the opponent was using their glove. Why did they do that? Who knows? But here's some of the consequences. One thing is, it was a fun thing to do because then opponents

would put stuff in the glove. So Phil Rizzuto was, I think, famously phobic about either snakes or frogs or something like this. So opponents would stick a frog in his glove. But sometimes the ball would get caught in it. An oddly weird ball, but on a weird play, the batted ball can hit a glove or get stuck in or take an odd bounce. Why don't you just bring the gloves in? It wasn't until 1954 or 1956, I can't recall which, when MLB passed a rule and says, hey, take your glove off the field with you. Two years later, everyone wondered, so when you see this photo, you think, really? Why did they let them just leave their gloves on the field? And I think that's going to be the same thing with changing to automated calls of balls and strikes. We'll wonder why it was around for so

long. You have a good point because if we had that system now where we had 100% accuracy and then you said, hey, Sarah, the minor leagues are trying this new thing where we're going to have a human do it instead. So that way only 80% of the calls will actually be accurate. I'd be like, why are we doing that? I love that thought experiment. That's the right way to think about it. Think about it. If we change it, can you imagine someone saying, hey, why don't we do it this other way? I'm going to incorporate that, Sarah. That's interesting. And I do think you're right. It's status quo bias because the first thing I thought about was when I was growing up watching baseball, which is sort of how everybody freezes baseball in the point where they first walked down the runway of a stadium and they first saw the field.

So whatever baseball was like then, that's baseball. It's such a tradition-bound sport. And when I was growing up, the umpires were much more part of the action. I mean, there was even an umpire who wrote an autobiography because he was so famous for his balls and strike calls and his larger than life personality. And you would even listen on, you know, I'd listen to every Cincinnati Reds game on the radio and they would talk about, well, so-and-so is behind the plate today and he's got a low strike zone and so-and-so is behind the plate today and their strike zone's a little bit higher, you know. And so you would have this analysis of the umpire strike zone and there was not an

analysis of the strike zone it was the umpire strike zone and that was just part of the game to me and you would watch these umpires and it's part of the skill of the players because you needed to know who was you know umping that day and know that your strike zone needed. So I guess that's part of my humanness argument is that it was actually a skill that baseball players currently still have is needing to know where that strike zone is per person. To your point, though, not based on the rule book, but based on this very human element of it. I can already predict the comments on this episode are going to light up over this issue. I know, I know. People are going to like it.

Wait, so I have another question on Olympic records. So in Tokyo this year, a bunch of new Olympic records were set, and the reason is not because we've gotten faster, better, stronger,

but actually because, for instance, they made the track bouncier. How are we going to deal with that and saying who's the fastest of all time or who's the whatever of all time when we're having these external, to me, it's almost like the ball and strike zone thing, right? There's some external scientific help. Record keeping is surprisingly interesting, I think. Lots of sports have encountered just that problem. So the most famous, of course, is the apocryphal asterisk in the MLB record book for Roger Marris' 61 home runs in 1961. I say apocryphal because there actually is no asterisk in the book, but it did say achieved over 162 games as opposed to Babe Ruth, who achieved over 154, something like that. So more home runs, of course, is clearly a function of number of games played.

Those things change all the time. In football, we're going to 17 games. We used to have 14. What about before the color line was broken? Babe Ruth didn't have to bat against African-American pitchers. Million things change. Another huge controversy about record keeping, and it goes back to the Olympics, so you'll like this, is, of course, the buoyant swimsuits that were used in Beijing that led to explosion of new records

because these new suits let people swim faster because it increased their buoyancy so there was a big question about what do you do with these records what do you do when you hit a peak where the records go up and then they come down because now you've ruled out the those suits or what happens when they go up in a stepwise function because of these changes. Sports deal with it in very different ways. I don't know what the good solution is because there really is no way of normalizing to a single point in time, I don't think. Lots of sports do lots of interesting things about it. So I'll just give you a flavor of some of the ways they do it.

Decathlon is really interesting in how decathlon scores its events. You can imagine how you aggregate the scores from 10 different events is an incredibly interesting problem. They are running events and throwing events. Some things are measured in time. Some are measured in distance. You obviously can't just add them up. What they do is they've created a system that is designed to try to accommodate historical performances. So their formula tries to adjust and keep things in line so that you're able to make reasonable

trans-temporal comparisons. In sport, there are sports where people are competing against each other, like team sports, baseball, basketball, football. There, there's not so much of a danger by and large because everything that you do is, your performance is a function of the ability of the people you're competing against, unlike in things like running events, jumping events, throwing events, which are just you against yourself. And therefore, if the materials change, you can have very, very different results. I mentioned decathlon. What was the other one I wanted to mention? The judge sports, artistic sports is quite interesting in this respect. So people, it used to be that in gymnastics, you're the perfect 10. You couldn't get more perfect than the perfect 10. Now they've

got a very different system. And some defenders of that system think that it will enable, will facilitate better trans-temporal comparison. So you're going to be better able to say, ah, Simone Biles is better than Olga Corbett because of thus and such, whereas under a perfect 10 system, you wouldn't be able to. But lots of interesting questions about record-keeping, halls of fame, how we address records. All right. Thank you so much for your time today. I do have one final question. At least when I was in law school, the basketball games between law students were pretty famous for causing just a record number of injuries because people were so aggressive and violent and fouling one another on the basketball court, in part perhaps due to lack of skill,

a measure of lack of skill matched with enormous competitiveness. So I'm curious whether your students who take jurisprudence of sport are do you think more sportsman like after uh taking your class do you think they're nicer on the court and do you ever go play sports with your students as part of your jurisprudence of sport course well take the last one uh first no and i think frankly just among the three of us, I think they're a little scared. You guys can see me. I'm sort of an imposing, why are you laughing? An imposing physical presence. They play a lot of basketball, but they'd be embarrassed to be schooled by an old guy like me. Right, right.

Now, they do fight night. I'm trying to get in on fight night. Is this like Penn Law Fight Club? Yeah, yeah. It's Penn Law against Wharton. And we kick some serious backside in that, I like to say. That's not true, but I like to say it. So there's fight night. So here's actually one thing that does come through my sports class. They're interested in getting help on writing

rules for Fight Night and for the bowling league. Interesting. You'll appreciate this. Bowling league. So many sports, many law schools might have bowling league. I don't know whether your law school did. Bowling is one of the sports that use handicaps. Bowling is also interesting from a record-keeping perspective, by the way, because you can't get better than 300. So you want to be able to shoot for more. So bowling, their records are like best performance in 28 games in a row to try to make it interesting. But it does have handicaps, which is quite interesting because it raises the problem. Handicaps work when you've got lots of competition over years. But just for a law school season, to set the handicap is based on people's performance in a short period of time. And there's

a worry of sandbagging. So a good bowler will go and gutter ball it, get a great handicap, and then when the real games come on, watch out. So how to create a scoring rule for teams in a law school bowling league to ensure adequate participation? You want lots of people to participate. And you want it to be fun, but you do want it to be competitive. And you want to address this problem of sandbagging is something that we put into the book as an exercise. One thing we have in the book is a bunch of exercises. And one came from a student said, hey, Professor Berman, can you help us out in figuring out what would be a good way of creating these rules for the bowling league to address the problem of sandbagging? And I very smartly said, no, I have no idea, but users of the book might. So let's put it in as an exercise and see if we can get examples. And the other thing that they care about is for fight night, an interesting question that goes to something I mentioned earlier, and you guys had the good

judgment not to touch that one, which was transgender and intersex athletes competing as and against women. So an interesting question for fight night, you can imagine, is what types of rules do the students want, if any, to address the participation of intersex and transgender athletes, which takes on greater pressure or relevancy or concern in a combat sport than it might in a running sport. So that's something that we do talk about in class, and I'm always eager for people to bring those to me. But I hope that some of them will listen to this and then they'll challenge me to a sport. Of course, I think that chess is a sport and some people don't. So that would be my preferred option. Well, Professor, this has been a treat.

Thank you so much for joining us. And I just want to say about intramural basketball. I don't know if I can't I can't remember if I've told advisory opinions listeners this story, but I was a casualty of intramural basketball injuries in law school. the lane he was about uh 6 2 6 3 about 2 30 240 i was not and um i woke up in his lap i was knocked out cold i woke up in his lap looking up at him and i'll never forget the words that came right out of his mouth you okay there little? I was not okay. I had a broken nose, just for the record. But yeah, so intramural basketball, it can get rough. It can get rough. Okay, I appreciate the tip.

I'll steer clear of that. This has been a great blast for me. I really, really appreciate you having me on. I appreciate Scott suggesting it. And thanks so much. It's been a lot of fun. Oh, yeah, it was fantastic. And listeners, we will be back. We're still in August. We're still going to have some special podcasts. But please rate us on Apple Podcasts. Please subscribe on Apple Podcasts and check out thedispatch.com. And we will talk to you next time.