Well, no, actually. The thing US people (not the rest of the world's people) call "football" mimicks a very narrow range of social complexity: the infantry part.

In addition to finding the "facts"- was a catch made, where should the ball be spotted, etc., football referees are also responsible for routinely penalizing players and teams. We can use refereeing in football to see formalism at work.

Indeed.

You haven't explained what problem it is. If a "bad call" results in an innocent man's being executed, or a conman's keeping the victim's money, the problem is the human cost of injustice. Why does it make any difference who wins a game, or by how much? Are you concerned about injustice to the gamblers? The fans?

It appears to me that you are confusing your Cohens. Why it logically follows that if unlimited X would be unbearable, minimal X is optimal, or even "a relief," I have not the slightest idea.

Yet discretion persists. Pundits often state that holding could be called on every play if referees so chose. This may be an exaggeration, but it's quite likely that sticking to the letter of the law would make games unwatchable.

Presumably that "unwatchability," which from my point of view would neither be greater than the current degree of the same attribute nor a serious problem, would be responded to. The game would evolve into one in which there were more holding without the rule (becoming more like unwatchable rugby) or less under a more stringent rule (like unwatchable "touch football" or unwatchable soccer). That would allow people who have to keep watching something to continue narcotizing. Formalisms are not invulnerable to the processes of social reorganization in service of unconscious motivations.

What will be guaranteed not to evolve under capitalism or any other despotism is the end of the watched game, and its replacement by people actually playing, or watching people in their community peacefully, unviolently, play. (Of course, in the military borderlands—where there's plenty of capital punishment, but no white man has ever been executed for killing a Mexican, for example—watching children play the game mimicking infantry combat under the Friday night lights will be almost as important as going to Church on Sunday. Et in Panem circenses.)

Fans and pundits commonly believe that officials should and do become more lax about calling penalties near the end of games. Different officiating crews call penalties at different rates, while NFL teams include information about officials in their scouting reports. When it comes to winning, the personality of the judge matters.

When it comes to winning when whatever you're winning doesn't matter. When it comes to winning justice from the raw material of social confrontation, it's the character of the judge that matters.

Precisely backwards. People do not make most decisions or judge most actions (by many orders of magnitude) based on law, because law is (by orders of magnitude) weaker than the primary means of social control.

If Johnson had just one foot inbounds, no NFL fan would claim he caught the ball, even though college football only requires one foot inbounds. What constitutes a catch in the NFL is defined by the rules of the NFL, not the rules of college football or any other league. Fans are aware of this and first react to a sideline catch by checking to see if both feet remained inbounds. Yet we remain convinced that Calvin Johnson caught the ball and the referees stole a win by sticking to the letter of the law. Mechanical application of the law does not remove judicial decision makers from the scrutiny of crowds.

I presume your point here is that people have watched this football game who will never read Chapter 10 of part V of Aristotle's Nicomachean Ethics will at least be able to appreciate the existence of the concept of equity that you don't actually describe or explain. I would hope it isn't your point that you've never read Aristotle and don't intend to be able to take your own thoughts out of the opiate of TV sports and into some clearer stream.

If you were going to try to explain something about formalism to the person whose primary metaphors are based on the addictive absorption of TV advertising wrapped around refereed pseudo-combat, the best way to do so would be to explain equity, and distinguish it from the referee's tending to edge his calls over time in favor of the team owned by a man he'd like a job with earning a million a year when he gets ready to retire. Or who supports social causes in whose justice the referee deeply believes. Or whom the referee secretly and unrequitedly loves. That should appeal to the tabloid sensibility.

But wouldn't it be better to teach people about Aristotle? Then it might be possible to understand the medieval English stuff we called "equity" that became the Chancellor's "rationalized" jurisprudence under Nottingham that was so hotly disapproved of by British North Americans before the American Revolution and so stoutly defended by Joseph Story under attack by the admirers of Andrew Jackson that was so savagely satirized by Charles Dickens that desegregated the United States. Learning about the history of equity in western civilization opens new avenues of thinking in every direction.

Whereas when the "football" game is over, you have a bunch of steroid-poisoned workers and a smaller bunch of pathetic, 1%ers with a coterie of sleazebag management lawyers who keep unsuccessfully trying to buy an antitrust exemption from a Senate that rolls over for everybody else, because they think they have too much competition and too little power over their workers as it is.

This is your brain on drugs. Is irony cool?

The NFL and the Limits of Legal Formalism

-- By ShakedSivan - 17 Feb 2012

Recent Supreme Court confirmation hearings featured the metaphor of judges acting as umpires calling "balls and strikes." John Roberts famously used this metaphor during his hearing as the ideal judges that should aspire to. Elena Kagan was asked about the "balls and strikes" language during her confirmation hearing. While endorsing certain aspects of the metaphor -"judges have to be neutral and realize they are not the most important people in our democratic government"- she emphasized its limits while endorsing some traditional notions of jurisprudence. Law, she said, is not a robotic enterprise, but "it's law all the way." In making decisions, judges incorporate precedent, text, structure, history, "law and only law."

What can we learn about jurisprudence from actual umpires? It is useful to analyze the metaphor in a slightly different context. Football, like baseball, is a sport with a self-contained set of rules that are generally precise, and the rules are enforced by officials on the field but made by someone else. Football involves more moving parts and thus is somewhat closer to mimicking the incredible complexity of society. In addition to finding the "facts"- was a catch made, where should the ball be spotted, etc., football referees are also responsible for routinely penalizing players and teams. We can use refereeing in football to see formalism at work.

The Problem of Fallible Fact Finders

In Courts on Trial," Jerome Frank argues that two factors make subjectivity unavoidable in judicial decision-making. The first is the fallibility of the witnesses and the second is the fallibility of the fact finders, who are "fallible witnesses of the fallible witnesses." NFL referees have the privilege of serving as the witness and the fact finder. They are tasked with making snap decisions about plays occurring at full speed. They are well trained and generally athletic, but not full-time officials. Indeed, one of the most notoriously long-winded (though respected by coaches) referees, Ed Hochuli, works as a lawyer when not officiating. Though NFL referees are presumably the best people available for the job, the limits of human ability dictate the inevitability of officiating mistakes. In sports, the "right call" is generally discernable and objective. The decision-making process, however, is subjective and fraught with error. Unfortunately, I could not find a study of the percentage of calls missed in the NFL, but every fan can recall any number of such mistakes. In baseball, one study suggested that umpires are wrong 14.4 percent of the time.

Discretion is Unavoidable

Jerome Frank writes that there are two types of discretion: rule discretion and fact discretion. He focuses mainly on fact discretion and criticizes Cardozo for ignoring the same. Frank's example of "fact discretion" is choosing to believe one witness rather than another. This only comes up in football in the context of the head official choosing among competing accounts from other referees. Rules in football are generally not vague, either. If one accepts that unlimited discretion would be unbearable, as Morris Cohen proposed, then a system designed to reduce discretion as much as possible would be a relief.

Yet discretion persists. Pundits often state that holding could be called on every play if referees so chose. This may be an exaggeration, but it's quite likely that sticking to the letter of the law would make games unwatchable. Fans and pundits commonly believe that officials should and do become more lax about calling penalties near the end of games. Different officiating crews call penalties at different rates, while NFL teams include information about officials in their scouting reports. When it comes to winning, the personality of the judge matters.

Do You Believe in Catches?

With a clear rulebook, and the frequent use of instant replay to go over decisive plays, there will often be little disagreement as to any legal question (the R) or the facts (the F) in Frank's calculation. Even in such situations, enormous controversies can erupt over officiating decisions. In the second week of the 2010 regular season, Detroit receiver Calvin Johnson caught a go-ahead touchdown catch with less than 30 seconds left in the game. Johnson leaped over the Chicago defender, secured the ball, and half his body seemed to touch the ground before he went out of bound (in the NFL, only two feet have to be inbounds for a completion to count). The closest referee signaled a touchdown and Detroit fans and players burst into celebration. However, the officials recanted. They determined that Johnson did not maintain control of the ball after he went to the ground. He did not complete the "process" of the catch. The officials maintained this decision after using video replay; there was no factual dispute. "How can that not be a touchdown?" became a common refrain after the game. The Huffington Post asked, "Was it a catch, or were the referees right?"

The answer is yes. It appeared to be a catch on first glance to virtually anyone familiar with the NFL. It continued to look like a catch after repeated replays. According to the rulebook, the referees were correct, but many if not most fans believed Detroit was robbed of a victory on a technicality. "Law is a weak form of social control" because people do not make most decisions or judge most acts based on law. If Johnson had just one foot inbounds, no NFL fan would claim he caught the ball, even though college football only requires one foot inbounds. What constitutes a catch in the NFL is defined by the rules of the NFL, not the rules of college football or any other league. Fans are aware of this and first react to a sideline catch by checking to see if both feet remained inbounds. Yet we remain convinced that Calvin Johnson caught the ball and the referees stole a win by sticking to the letter of the law. Mechanical application of the law does not remove judicial decision makers from the scrutiny of crowds.