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Tuesday, August 25, 2009
Instant Replay and Appellate Review

Chad Oldfather (Marquette) and Matthew Fernholz (J.D. Candidate at Marquette) have posted Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review to SSRN. The paper considers analogies and distinctions between replay review (for which I have expressed my distaste) and judicial appeals. Here is the abstract:

During his confirmation hearings, Chief Justice John Roberts famously likened the judicial role to that of a baseball umpire. The increased prevalence of video evidence makes it likely that judges will find another sporting analogue for their role – that of the instant replay official in the NFL. (Indeed, many have already done so.) This Essay explores the analogy. In so doing it seeks not only to consider its appropriateness in a narrow sense (much as many commentators considered the appropriateness of the Chief Justice’s analogy), but also to conduct something of a comparative analysis and thereby to use it as a vehicle for illustrating some general characteristics of a process of decisional review.


Replay officials consider additional evidence that is then weighed by to determine if it clearly provides a different result.

New evidence is rarely a factor in appellate decisions, and all but unheard of in civil appeals.

The bulk of appellate decisions fall into two groups.
1 Determining if the correct rules were applied.
2. Determining if the rules were applied correctly.

In sports it would be like a coach appealing a decision on whether the receiver made a catch based on the fact that that official was caught off-guard and was behind the receiver when he caught the ball heading out-of-bounds and therefore did not have a view of whether possession was gained before going out-of-bounds. In football replay can review the video and weigh the evidence to see if it appears the catch was made, you do not appeal the poor mechanics of the official.

A judge who applies the correct rules in the correct manner is granted wide latitude regarding his interpretation of the facts on appeal but can be over-turned.

In football if a game official erroneously believes a pass was tipped and the defensive back slams into the receiver before the ball arrives and no pass interference is called, that play cannot be reviewed. He applied the wrong rule (no pass interference can occur after the first touching of a pass) but there is no appeal.

Blogger Mark F -- 8/26/2009 9:24 AM  

how bad is it for a coach to receive cash from a slush fund?

Anonymous Anonymous -- 8/30/2009 8:07 PM  

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