Law and Sports Officiating: A Misunderstood and Justly Neglected Relationship
Graber, Mark A., Constitutional Commentary
Ronald Dworkin insisted in Taking Rights Seriously that "[r]ules are applicable in an all-or-nothing fashion."(1) "This all-or-nothing," he continued,
is seen most plainly if we look at the way rules operate, not in law, but in some enterprise they dominate--a game, for example. In baseball, a rule provides that if the batter has had three strikes, he is out. An official cannot consistently acknowledge that this is an accurate statement of a baseball rule, and decide that a batter who has had three strikes is not out.(2)
Although other themes of that work received some scholarly attention, Dworkin's attempt to initiate a law and sports officiating movement fell flat. Interdisciplinary studies were the rage of the legal academy during the 1980s. Nevertheless, no law professor publicly maintained that lawyers could learn anything about the law from reading the collected works of Ron Luciano(3) or watching ESPN. When Dworkin revised his theory of law in 1986, he abandoned athletics altogether for the more ethereal pastures of law and literary interpretation.(4)
Dworkin did have one potential disciple during the late 1970s. As a young graduate student paying my way through school refereeing high school basketball, soccer and softball games, I frequently thought about the relationships between law and sports officiating. Driving to and from my various officiating assignments, I mentally outlined the seminal article on the subject. The first part would be a devastating analysis clearly demonstrating that the great constitutional theorist Ronald Dworkin knew nothing about sports officiating. Unfortunately, the second part always proved more difficult. I could never think of any aspect of refereeing relevant to the study of the law. The project was soon abandoned.
Several law review essays published during the early 1990s renewed my interest in law and sports officiating. John Hart Ely mentioned that he had often "thought about trying to elaborate the metaphor between constitutional interpretation and jazz improvisation."(5) Ely failed to "writ[e] this up" only because "it was never clear what anyone was supposed to learn from it about either constitutional theory jazz."(6) Unbeknownst to Ely, Sanford Levinson and Jack Balkin were writing a serious paper on law and music. Both Levinson and Balkin admitted that they were not "member[s] of the musicological scholarly community to which one ordinarily looks for `authoritative' pronouncements."(7) Still, they asked readers to consider: "Why would one believe that one must be an `expert' in an area in order to have interesting things to say?"(8) I was inspired by their article to rethink my reluctance to inaugurate a law and sports officiating movement. If lawyers could learn from musicians, why not sports officials? Besides, unlike Levinson and Balkin, I might be regarded as a "suitably certified expert"(9) in both disciplines I would be writing about.
My original insight still seems correct. My experiences doing more than one thousand little league, college intramural, middle school, high school and (rarely) college varsity games will not teach law professors anything new about the law, or at least about the legal questions law professors have traditionally asked.
Nevertheless, an analysis of Dworkin's ill-fated foray into law and sports officiating may cast some light on the problems that more numerous legal forays into other non-legal fields confront. Law professors writing essays on law and any other subject on which they are not "suitably certified experts" have repeated and will continue to repeat Dworkin's most salient mistakes. Casual legal interlopers into other disciplines risk making bald assertions that serious scholars in the non-legal field recognize as flatly wrong, if not downright silly. Scholarly mechanisms for identifying error, weak in academic law to begin with, are particularly weak when law reviews consider the merits of non-legal scholarly assertions. …