Adam’s post about the differences between umpires and referees reminds me of a provocative article by Mitch Berman, “Let ‘em Play” A Study in the Jurisprudence of Sport, as well as these two recent blog posts by Dave Pozen, What Are The Rules of Soccer?, and The Rulification of Penalty Kicks. These pieces all explore the gap between the “law in the books” and the “law in action” in certain professional sports. Though the rules don’t say so, many of us expect the officials to systematically deviate from or underenforce the rules under certain conditions. The analogy to law is natural.
I hate to be a spoilsport, but reading these articles helped me understand what I always found so frustrating about watching, say, the NBA finals. I love basketball, and I live in Chicago, but I still think Michael Jordan should have been held to the same number of steps as everybody else on the court. And I don’t like watching the rules get suspended during the tense final quarter. I think we all agree that the players, not the refs, should be the center of the action during the climax of a game. But in my view by deviating from the duly promulgated rules, even to avoid enforcing them, the refs make their own judgment all too central.
Of course, these views probably will not surprise people who know me, since I am a formalist when it comes to judicial interpretation too. And it seems like I’m in a decided minority. But we shouldn’t take the system of referee discretion for granted.