I Trust NFL Referees More Than I Trust Federal Judges

Or at least, I have more faith in their neutrality than I do in the neutrality of judges.

At the Volokh Conspiracy, over the weekend they were talking about the origins of the Judge-Umpire analogy famously raised by now-Chief Justice Roberts in his confirmation hearings. Roberts, of course, was trying to suggest that he was just a neutral arbiter, applying the rules as best he could. Many people understandably found this analogy to be simplistic, or silly, but Ilya Somin rightly notes that “umpring is more complex than some detractors of the metaphor realize.”

But after watching last night’s first preseason NFL game, I would go further than Somin: not only do I think that umpring and judging are a lot alike, but I think that these some of these similarities are in areas that do not refelct well on either judges or umpires, and that, when you compare NFL officials and judges, you have a lot more reason to trust the competence of NFL officials than those of judges. And that’s mainly because (unlike Somin) I think judges and umpires have similar incentives and that the incentives of NFL officials are better.

First, as Solmin suggests, judges and sports officials all have a great deal of discretion and in many contexts both routinely ignore the “letter of the law.” In addtiion to the examples he gives, it is routine for baseball umpries to ignore the “phantom double play” (also sometimes referred to as the neighborhood play): this is when second basemen and shortstops fail to touch second base when turning a double play, at least if they could have done so. (Where the throw to the player draws him off the bag, umpires will enforce the rule; here’s a Sports Illustrated article from 1981 discussing a numer of “cheats” in baseball). More subtly, exactly the same thing often happens with first basemen who pull their leg early: again, unless the throw has been the cause, umpires always ignore it. I am sure that each reader can come up with their own examples of how judges do exactly the same thing. When it comes to baseball, and judging for that matter, I actually think this can be a good thing. But I do not think that Chief Justice Roberts had this similarity in mind (and I very much doubt his supporters did).

Second, judges and umpires (or really, any set of sports officials) alter their behavior based on who is watching and reviewing them. The most glaring example of this in baseball has been the change in strike zones called by major league officials at the major league level as the result of the QuesTec system. When umpires knew that they were being evaluated on how well they called the rule book definition of a strike, they appeared to conform their behavior to the rule book, in particular we have seen a decline in pitches off the outside corner being called strikes.

More subtly, umpires’ calls of tag plays (and probably referees calls of block/charges in basketball) have almost certainly been changed by the availability of replay. It used to be the case that the ‘recieved widom’ was that if the ball beat the runner to the base on a steal, the runner was out, even if the tag was not made (so long as the failure to tag was not too obvious): from the perspective of the umpire, calling the runner safe would generate an argument where the umpire would have to explain why the runner is safe, whereas the only person in a position to complain about an out call was the runner, whose perspective everyone knew was biased. Replay, though, means that an out call here does lead to an argument, so the umprire has more incentive to get it right. Perhaps it is just my particular (and limited) experience, but I think judges behavior can vary tremendously based on the likelihoods that their decisions will be reviewed, either by the public or by higher courts.

Third, politics play a big role in who gets to officiate in any sport, just as it does with judges. Of course, the officials working in major sports leagues are very skilled; they could not survive if they were not. But that does not mean they are the best of the best: having the right connections can play a big role in who makes it to the majors in baseball and to the NBA, and who does not. Is it really a coincidence that Harry Wendelstedt’s son is a MLB umpire, that Brian Runge’s father and grandfather were major league umpires or that the Welke brothers are? Putting aside the problems with elected judges, even in a system of appointed judges (like the federal system), politics matters a lot in determining who gets to be a judge. This plays out at every level of the federal judiciary. Of course, I am not suggesting that federal judges are bad as a result; I am just dubious that the the importance of politics in appointment makes them better than they would be in a world where politics played a smaller role.

Fourth, officials in collegiate sports, no doubt like judges in some places, are often more connected to one of the teams (or parties) than the other. We are all used to major league sports officials, who are employed by the league, not the schools, and therefore have no facially apparent bias toward one team or the other. At the college level, though, that is often not the case. Officials are usually employees of a particular conference, not the NCAA, so in any game between teams in different conferences, there is the possibility of the officials favoring the team from their conference (this is somewhat lesslikely in Division I basketball, where many of the officials work for multiple conferences). This has presented a problem at times in college football (for instance, the controversy over the 2006 Oklahoma-Oregon game) and similarly, we see the connections between judges and the parties having worrisome effects, most notably in West Virginia. I don’t even need to get into the some of the issues with NBA referees and players that have come out as a result of the recent Tim Donaghy scandal. Back when major league baseball umpires worked for only one league, baseball tried to account for this with balanced umpiring crews for the World Series.

Indeed, for many sports, it is actually worse than this, and I think worse for judges as well. That is because for non-revenue sports at the collegiate level, the officials are generally local ones. At least back in the early 90s (the time period I have the most information about), college baseball officials were “conference” employees in name only in the Pac-10 and other western conferences (I am pretty sure this was true elsewhere and that it was true for other non-revenue sports, but would be happy to be corrected). That was because the officials did not travel outside of their geographic region. So, for instance, umpries based in Los Angeles worked only USC and UCLA home games. Because the local teams were repeat players, and the evaluations of the local teams made the biggest difference to their future assignments, these officials had a large incentive to keep those teams happy. At a minimum, the repeat-player aspect of these interactions had to have a subconscious effect on the umpires. I have little doubt that judges are similarly influenced by exactly the same sort of repeat player problem, at least in some places.

My motivation for the title of the post is that I think NFL officials are actually better than judges on a number of these scores. For instance, NFL officials do not have the repeat-player problem. Furthermore, NFL officials are graded on all their calls, from every game, ensuring that the same calls are being made in all situations (and these days, they have to contend with the possibility of instant replay review on every call). And unlike federal judges and (to a certain extent) major league umpires, NFL officials are subject to the real possibility of termination for poor performance, something that cannot happen to Article III judges and rarely happens with major league umpires. As this LA Times article notes, between 2004 and 2007, there was actually more new Supreme Court justices than new (full-time, I assume) major league baseball umpires. In the NFL, on the other hand, turnover is more common. Because being a NFL official is so relentlessly competitive, the result is that (I think) NFL officials are more likely to get the call right than your typical judge (or umpire).

None of this meant to suggest that I think that judges are bad at what they do, or that they are corrupt. Nor am I unaware that NFL officials make mistakes; of course they do, and sometimes those mistakes are just plain dumb. What I am suggesting, though, is that when we compare NFL officials and federal judges, we have some reasons to suspect that NFL officials are likely to perform their jobs better than federal judges do.

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7 Responses

  1. bill says:

    I think you have perhaps made an unwitting argument against judicial independence — esp. in the contrast between umpires (strong union, job for life) and NFL refs (easily terminatable, weak union).

  2. A.J. Sutter says:

    1. It seems to me that the decisions to be made by NFL officials are of significantly less moment than those made by judges in courts of law. Also, the jurisprudence of NFL officials is civilian, i.e. code-based. Why is your comparison reasonable?

    2. Also, you don’t explain how one is to tell when a judge gets a call “right”. Since appellate panels are usually appointed in a politicized process, and en banc or SCOTUS reversals are reversing the decisions of panels, not individual judges, how do you set your criteria?

    3. Most important, what’s your suggestion for improving the quality of judiciary performance?

  3. Steve Lubet says:

    A Major League Baseball umpire or NFL referee would probably be fired if he went duck hunting with a player or owner (or even an equipment manager) in the middle of the season.

  4. “It seems to me that the decisions to be made by NFL officials are of significantly less moment than those made by judges in courts of law.”

    Perhaps you don’t follow football….

  5. A.J. Sutter says:

    You’re right, Michael, I don’t. Which is maybe a face-saving explanation for why I started with “It seems to me…” (alternative explanation being pomposity). And actually, with trends in ubiquitous surveillance being what they are, someday even judges and juries may have the benefit of instant replay. Though is there a mens rea requirement in football?

  6. Interesting read.

    AJ, most of the common calls in the NFL are “strict liability,” so to speak (off sides, false start, holding, etc.), but there are mens rea levels for many others that can either determine whether a foul occurred or the level of severity of the foul: intentional vs. incidental facemask; “neglectful” (foul) vs. incidental (no foul) contact on pass interference. Although they do not use the term, all personal foul and ejection calls essentially involve the official rendering judgment regarding the player’s “mens rea” in committing the personal foul. Same in baseball with, say, beanballs.

  7. Michael Lee says:

    No doubt about it. Judges decisions are based on many factors that would not fall under the banner, “standard of review.”

    I recently took over a case from a pro se whose case had been dismissed on a summary motion. The judge was livid that the pro se had not retained counsel before the opinion was rendered. (I brought a motion for reconsideration.) His irritation arose from the fact that his opinion was wrong, everybody knew it, and would probably now be reversed. Unfortunately, he simply couldn’t allow his friends (opposing counsels) to get beat by an uppity pro se.

    No one wants to look stupid but in this case, I am not sympathetic. Had hizzoner done the right thing in the first place, none of this would have happened. Instant Replay!!!