Debate Over De Novo Review of Instant Replay Decisions Continues

Duke Law Professor Joseph Blocher’s argument that NFL instant replay reviews should reconsider on-field calls de novo has resulted in an extensive debate. The Wall Street Journal law blog has a list of various links here. I endorsed Blocher’s argument in this post. There has also been a response by Josh Patashnik of the New Republic, which the WSJ survey didn’t include.

I still maintain, along with Blocher, that de novo review would increase the accuracy of calls at little or no cost to other important objectives. Some of the critics claim that instant replay calls aren’t likely to be any more accurate than those made on the field. This strikes me as extremely unlikely. An official in the instant replay booth can review the play from several different angles over the course of a minute. By contrast, an on-field call must often be made based on a split second glance. Even the best referees will sometimes have trouble figuring out exactly what happened. Moreover, as Blocher points out in his response to the critics, the NFL can certainly install more and better cameras in order to increase the accuracy of instant replay decisions still further. I am also unpersuaded by arguments that switching to de novo review would somehow undermine respect for NFL officials or lead to a breakdown of player discipline. Everyone already knows that NFL referees, like all sports officials, sometimes make mistakes; certainly the players and coaches know it. If anything, reducing the incidence of mistakes should increase respect for the system by both fans and players. And, as I noted in my original post, switching to de novo review won’t make games appreciably longer by increasing the number of instant replay challenges issued by coaches, since the rules give each coach only two challenges per game.

Finally, I am not persuaded by Patashnik’s interesting argument that fans who believe their team has been victimized by an incorrect call will feel greater anguish if the call is an instant replay overturning of an on-field decision, applying de novo review:

Suppose a very close call goes against your team on the field, is challenged, and is upheld because the evidence is inconclusive, even if you think you have a slightly better claim. That’s annoying, but you can chalk it up to the ordinary difficulties of making close calls–something all sports fans are used to having to deal with–and at least you don’t feel like you got totally ripped off….

But suppose instead a very close call goes for your team on the field, is challenged, and is overturned even though the video evidence is inconclusive. That outcome, I think, would cause most fans significantly more anguish than the first scenario described above. In part, this is because of settled expectations–once the call goes for you on the field, you begin to internalize the outcome, and the loss of that benefit exceeds in magnitude the gain in utility you would get by having a marginal call reversed to go in your favor. But perhaps more important, by reversing the outcome, it draws attention to the arbitrariness of the call in the first place. If, after such thorough examination, the call is reversed to go against you even though it’s not clear that’s the right outcome, you feel cheated in a new way: the exhaustive legal process has affirmatively placed its seal of approval on the arbitrariness. That’s something unique, and something most sports fans aren’t used to dealing with [it]…

In my view, concerns about the exact nature of the process are only a tiny fraction of the pain fans feel when they think a bad call has gone against them. In any event, I think any small increase in hurt feelings is likely to be outweighed by increases in the accuracy of calls – to say nothing of the joy of the fans whose team wins the instant replay challenge.