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Thursday, October 12, 2006
Referees, Judges, Mistakes, and Do-Overs

I have been fascinated by the reaction to the officiating errors in last month's Oklahoma-Oregon game. The refs blew two calls late in the game that helped lead to Oregon's win--1)Allowing Oregon's recovery of its onside kick that did not travel ten yards (and the replay official failed to overturn the call, although it showed pretty clearly on the replay); 2) On the same possssion, calling pass interference on Oklahoma on a pass that was tipped at the line of scrimmage.

Two things came out of the controversy. First, the Pac-10 suspended the officiating crew for one week and the replay official (a veteran official who received death threats -- not protected expression, by the way--from Oklahoma fans) took a leave for the remainder of the season. Second, Oklahoma's President argued that the game should not count as a loss for his team, because of the officiating mistakes.

I think both of these tell us things about judges and the judicial system.

As to the first, this is why there is so much debate of late about "judicial independence." And this is why the Constitution provides federal judges with tenure during "good behaviour" (which, in practice, means life tenure) and a guaranteed salary. The idea is that judges should not be sanctioned for making what they believe in good faith to be the proper decision in particular cases. Even if the judge was, in some objective sense, "wrong" (which is more determinate in sports than in law). We do not want the specter of punishment hanging over officials' heads. Mistakes happen. But we want them to continue to make their best, most fearless decisions without concern for personal consequences if they are wrong. That only makes judges hesitant--and more likely to err.

But the Pac-10 did what many leagues and conferences are doing more frequently. The office, having had two days to review a video multiple times, can determine that an official's spur-of-the-moment decision was wrong. And, under pressure from fans and teams--who had the chance to review the same video--feel compelled to take some action to show that mistakes will not be tolerated. But I wonder how effective this is in preventing future mistakes.

As to the second, one of the things the judicial system favors is finality--once a case is resolved (through all layers of appeal, etc.) it is over. We will not reopen or let a party out of a final judgment, except in rare circumstances. Rule 60 of the Federal Rules of Civil Procedure sets out limited (and time-bound) grounds for reopening and getting relief from a final judgment. Those grounds do not include that the court "got it wrong." This is especially true where the issue the court got wrong was not the end decision, but an earlier decision (for example, a decision excluding a piece of evidence) leading up to (and perhaps causing) that end result.

But this is what Oklahoma's President is asking for. His argument is that the officials made incorrect decisions on a couple of plays during the game , resulting in his team losing (a result that likely would not have occurred absent those mistakes). Therefore, his team should be relieved from the final judgment and not have it count as a loss. That is not something the judicial system would recognize, at least in the context of a civil action.


I've never been a fan of call review by instant replay. Officials are as much a part of any sporting event as the athletes; quarterbacks throw interceptions, pitchers throw wild pitches, nobody is challenging those plays. Mistakes are an integral part of the human experience. Sports are a part of that experience; we should accept mistakes and get on with the game!

Blogger gblakney -- 10/13/2006 11:49 AM  

Some random thoughts:

I think Judges do get sanctioned when they get it "wrong." They get overturned on appeal. Talk to any trial or appellate judge, and they'll tell you - being overturned is punishment to them.

Also, insofar as punishment preventing further mistakes - I think this is probably more analogous to criminal law rather than civil, in that sometimes punishment is the point, whether or not the punishment deters further incidents. Plus, it makes those who were "wronged" feel better. Which I guess falls under retribution, another idea borrowed from the criminal arena.

Blogger curlygc -- 10/13/2006 4:12 PM  


First, once a judge's decision becomes final (at whatever point that is), the case is over. So while a judge can be reversed on appeal, if there is no appeal, the case ends and the judge's rulings stand. Since there is no process of "appeal" of a football game that undoes the outcome, the judgment is "final" when the clock shows 0:00. Baseball has a limited appeals process, but it does not apply to judgment calls.

Second, while I know judges do not want to get reversed, reversal on appeal does not in any way compare with being suspended or removed from the job. Under a scheme of an independent judiciary,j udges expect to occasionally be reversed on appeal once in a whie; they do not expect to lose their judgeship.

Blogger Howard Wasserman -- 10/13/2006 4:24 PM  

Professor Wasserman:
Excellent points. This is why you're the law professor, and I am a county attorney who graduated solidly in the middle of my class.

I guess my point, for what it's worth, is that in my perhaps limited and provincial experience, judges are hesitant and they do err, because they are afraid of getting overturned - which they see as a punishment when it occurs.

But rarely if ever do they lose their jobs, which is your point and I get that.

Blogger curlygc -- 10/13/2006 4:56 PM  

One last point, related to what curlygc said.

One thing that makes sports different is that a decision can be, in an objective sense, wrong. The replay showed that the ball was touched on the onside kick before it traveled 10 yards and the officials' decision otherwise therefore was incorrect in every sense.

But the same is not necessarily true with law. The fact that a trial court judge's decision is reversed on appeal does not necessarily mean the judge was wrong. It only means the appellate court had a different view. That view controls because one view has to prevail (the old adage about the Supreme Court: "We are not final because we are infallible; we are infalllible because we are final.") But that does not mean the trial court judge's decision was not the "better" approach.

I know many a trial court judge who still believes her decision was correct, no matter what the higher court says.

Blogger Howard Wasserman -- 10/13/2006 8:19 PM  

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