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New Penn Law professor Mitchell Berman discusses the surprising ties between instant replay and legal theory

October 27, 2014

New faculty member Mitchell Berman is the Leon Meltzer Professor of Law.
New faculty member Mitchell Berman is the Leon Meltzer Professor of Law.
New faculty member Mitchell Berman talks about constitutional interpretation, how the NFL’s instant replay system illustrates important tenants of legal theory, and his impressions of Penn Law and Philadelphia.

This year, Mitchell Berman joined the Penn Law faculty as the Leon Meltzer Professor of Law. Previously, Berman was the Richard Dale Endowed Chair in Law, Professor of Philosophy, and Co-Chair of the Law and Philosophy Program at the University of Texas at Austin.

Penn Law sat down with Professor Berman to talk about constitutional interpretation, how the NFL’s instant replay system illustrates important tenants of legal theory, and his impressions of Penn Law and Philadelphia.

Penn Law: Would you mind talking about your current work?

Mitchell Berman: I work in three fields mostly: constitutional theory, philosophy of criminal law, and what I call the jurisprudence of sport. I’m working in all of those fields at present, so I’ve got papers at various stages in all of them. 

In constitutional theory, for example, I’m interested in exploring what are generally called theories of constitutional interpretation. These days, that topic tends to reduce, more or less, to the debate about originalism. Either you are for originalism or against it.  You’re an originalist or not an originalist. And it seems to me that the way the debate has been conceptualized for a long time is a little infelicitous — not as perspicuous as it could be. 

I, along with a co-author, Kevin Toh, have been arguing in a couple of recent papers that, really, the question isn’t how ought somebody do such-and-such. The question really is: what determines the content of our law? Is there constitutional law out there that judges are trying to discover? And if so, what gives the constitutional law that we have the content that it has? What are the ultimate determinants, or constituents, of legal norms? 

And in criminal law theory, mostly these days, I’m working in retributivism. There are two main approaches to justifying criminal punishment: retributivism and consequentialism. These are things that first-year law students learn in their first year criminal law class. Consequentialists justify punishment in terms of or by reference to the good consequences that punishment is reasonably expected to bring about. Most of it would be deterrence of other criminal actions by the actor himself, or by others. And retributivists think, to a first approximation, that punishment is justified by reference to the wrongdoer’s desert. That is, that wrongdoers deserve to be punished, or deserve to suffer, or something along those lines.

I am exploring retributivist justifications for punishment.  Most particularly, because retributivism rests upon desert, and because desert is among the most mysterious of our normative concepts, I’m trying to understand what desert is, or what its normative functions are.

PL: Can you talk a bit about the jurisprudence of sport? 

MB: Sure. The jurisprudence of sport is best understood, I think, in contrast to sports law. Sports law is roughly the regulation of sports by law. Sport is a domain of our lives.  And law regulates many domains of our ordinary existence; sport is one of them. So, sports law is mostly made up of antitrust, contract law, labor law — bodies of law that bear upon the business of sports. Mostly, a course in sports law is going to be applied commercial law, broadly understood. 

The jurisprudence of sport isn’t about the regulation of sports by law, but rather is about taking seriously sports as legal systems in their own right. Organized sports, like the NFL, Major League Baseball, FIFA, are legal systems that regulate behavior by means of general rules laid out in advance, with the same basic institutional trappings that are familiar from ordinary legal systems. There are the rule-making bodies; there are the disinterested, unbiased, professional adjudicators; there are often levels of review. 

The jurisprudence of sport can be thought of as a branch of comparative law. The basic idea is, like in any comparative inquiry, that we can learn things that might not be apparent to us by seeing comparisons and contrasts, similarities and dissimilarities, across different institutions that have enough similarity to make the contrast informative.

Consider standards of proof — epistemic standards. Legal theorists have spent a lot of time thinking through what the ingredients or the considerations are that make one type of standard of proof, in a particular context, preferable to another. So ordinarily, of course, the default standard of proof in Anglo-American criminal law is the more likely than not standard, or the preponderance of the evidence standard. 

In criminal law, though, we have a more demanding standard of proof — beyond a reasonable doubt. And there are reasons for that. Legal theorists have thought through, in a systematic fashion, what the considerations are that favor one type of standard of proof over another. Standards of proof, when they apply, not to a first-order decision, but to the review of a first-order decision, are called standards of review, or appellate standards. In our law, generally speaking, legal decisions made by a trial court are reviewed de novo.  Factual decisions are reviewed by a more deferential standard — clear and convincing evidence, or clearly erroneous standards. That gives more deference to the initial decision-maker. 

Well, these things arise in other legal systems too, like legal systems of sports. In the NFL, for example, we have instant replay. Instant replay is a form of appellate review.  Functionally, it is much like appellate review in other systems. And it has a particular appellate standard that goes with it: Indisputable visual evidence. The reviewer is instructed to let the decision that is initially made — here a functional equivalent to a decision made by a trial court or a jury — stand unless there is indisputable visual evidence to overturn it. That is an incredibly demanding standard. In other words, incredibly deferential to the initial decision. To put it in a nutshell, such a demanding standard is predictably going to lead to more total errors than a less deferential standard, something like de novo review.

In short, then, instant replay in football serves as a vehicle for teaching students more about appellate standards, or epistemic standards.  We can explore why it is that football has such a demanding standard. And we can deploy tools that we have learned in the legal context and apply them to the sport context and perhaps come up with cogent arguments for changing the standard. 

Sometimes we are going to be able to draw upon our understandings as legal scholars and legal students — students of law — to propose reforms that are going to improve some particular aspect of a practice in sport. But sometimes, we are going to go the opposite way and we are going to draw upon settled practices and wisdom that arises in the sport domain to generate powerful proposals for reform of some legal practices. That’s what the jurisprudence of sport is about: an effort to understand sports better through the lens of ordinary law, and an effort to understand ordinary law better through the lens of familiar (and unfamiliar) sports.

PL: What have your impressions been after about three months here at Penn Law and in Philadelphia? 

MB: Well, so far, I am just thrilled to be here. When my wife and I were starting to think about possibly leaving Texas, a place where we had been for 16 years, we were only going to leave if we found another home that would be really attractive to us.

So, pretty quickly, Penn rose to the top of our wish list. For me, it’s an incredibly attractive faculty. It’s very interdisciplinary. It has a long tradition of respecting and nurturing interdisciplinarity while at the same time being very deeply grounded in law. A large number of my colleagues are very, very active with the bar. And I think everyone here cares about training students in the law. So that combination of being serious about the law, while also being serious about interdisciplinarity is, I think, unusual and highly attractive. 

And it has proven to be a very collegial environment so far. The entire community — staff, faculty, and students — strike me as happy people who get along. It seems like it’s not a divisive environment. My students have been great — smart, eager, interesting.  And my colleagues have been very welcoming to me and my family. 

PL: Are there any particular plans or aspirations for the future? 

MB: Well, I am working on a book — a textbook — for the jurisprudence of sport. I teach this course, but it’s not taught anyplace else right now. So I am creating a book.  And that’s a long project. I hope to get students involved in helping me shape this. I will be teaching the course in the spring, but the materials are still only in beta mode.  

And I hope to contribute positively to our existing Institute for Law and Philosophy. This place — the Law School itself and the university more generally — is so strong in legal philosophy; it’s really an embarrassment of riches. The depth and range of philosophical expertise on this faculty is quite remarkable. Stephen Perry, Claire Finkelstein, Anita Allen, Bill Ewald — all these folks are JD-PhDs. But in addition, a large number of people without advanced philosophy degrees, have very significant philosophical interest and sophistication — people like Stephen Morse and Leo Katz and Shyam Balganesh, and I’m sure I’m missing lots of other people. And in addition to the law school itself, you’ve got great people in the philosophy department (Sam Freeman, Alex Guerrero, KC Tan, for example), and still more over at Wharton in the legal studies department — folks such as Amy Sepinwall and Nico Cornell. And again, these are just some of the people who come immediately to mind. I think we have the people and resources here, very possibly, to provide the single strongest program in law and philosophy in the country.