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					THE GOOD LOOK: HOW COLLEGE FOOTBALL REFEREES CONSTRUCT AND ACHIEVE JUDICIAL IMPARTIALITY (Version prepared for Maxwell School Law and Policy Workshop, October 7, 2005) Lief H. Carter Professor of Political Science The Colorado College Refereeing a Quidditch match was once a task for only the bravest witches and wizards…. In Britain, Quidditch referees are selected by the Department of Magical Games and Sports. They have to take rigorous flying tests and an exacting written examination on the rules of Quidditch and prove, through a series of intensive trials, that they will not jinx or curse offensive players even under severe pressure. ----Kennilworthy Whisp, Quidditch Through the Ages (pp. 30-31) Nobody ever went to a ballgame to see the umpire. ----Judge John Roberts THE CONTEXT This paper is part of a larger project titled “Liberal Politics as Play.” The larger project, in skeletal form, argues that: IF we assume that the highest end of liberal political arrangements is to minimize human (primarily male) aggression, violence, and brutality toward other humans; and IF, following Rorty (1999) and others, we assume an antiessentialist, realist, pragmatic philosophical stance, in which political philosophy can only hope to impact everyday practice if it speaks through the everyday vulgar languages that create and define ordinary shared political and social experiences; THEN it follows that we academics who hope to serve the peacemaking agenda must start by identifying situations in which human conflicts, in practice, remain peaceful and avoid the well-documented tendency of higher primates, including humans, to escalate conflict into intra-species brutality. (Wrangham and Peterson, 1996) The project asserts that ordinary people do construct and experience organized sports and games in just this way. Organized sports and games pit humans against one another in zero sum conflicts. But unlike the escalation into violence associated with religious and tribal conflict, winners and losers may congratulate each other, and maybe share a beer, when the conflict ends. This form of play, following Neale (1969), can be seen not as a trivial diversion, secondary to what “really” matters in life, but as one of the most praiseworthy and civilizing social achievements of the last few centuries. The larger project thus asserts that if democratic political institutions and practices reached no

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higher ethical and jurisprudential level than that reached by good competitive sports and games, they would reach the liberal goal more effectively than they now do. The project suggests that many features of democratic politics and conflict management ARE quite obviously structured as competitive play. The adversary contests of common-law legal systems and democratic political “races” obviously include many of the elements of organized games: Four of the more important elements of a good sport or game are: 1. Players enter the contest knowing they may lose. The Yankees ought not enter a World Series defined, by themselves or others, as entitled to win any more than ought the Republicans or Democrats enter a presidential election year feeling entitled to win. 2. Games entail high degrees of formal and substantive equality. Professional sports leagues engage in a kind of affirmative action through revenue sharing and draft pick policies that work to keep the play competitive and its outcome uncertain. Criminal procedure in theory presumes innocence and provides adequate criminal defense counsel. In electioneering, as in legal contests, the persistence of unequal financial resources among contesting parties is deeply troublesome. 3. Good games are transparent to players and spectators alike. Here political practice falls well short of athletic practice. 4. Impartial umpires and/or referees superintend the play, and the players routinely treat their decisions as final. This paper addresses the last of these four elements. A post-Bush v. Gore email exchange with my father, a man ever skeptical about the capacity of human beings to act rationally and justly, went something like this: Pop: I don‟t understand why you are getting so upset about the Supreme Court making a political decision. Nobody is impartial. That‟s just life. Lief: Wait a minute. Being impartial may not be as easy as falling off a log, but we see it all the time. Professors can be and usually are impartial when they grade, and sports umpires and referees get calls “right” nearly all the time. Impartiality just means that people make judgments about others within a contested framework without caring which side wins. Both the framework (like grading rules or the rules of football) and the judgments made within it don‟t predetermine who wins and loses. The impartial judge doesn‟t gear a call or a ruling to who wins or loses because she doesn‟t care about who wins or loses the contest. She cares about something else. I have published elsewhere the reasons for my conclusion that the Supreme Court in Bush v. Gore did not judge impartially by this simple definition (Carter and Burke, 2001) and

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will not rehash that argument here. Nor will I review why the presence of impartial umpires, whose presence converts a dyadic conflict into a triadic relationship, seems so plausibly necessary to the conduct of peaceful conflict management and resolution (Shapiro, 1981). Rather, this paper outlines why my father‟s skepticism is unwarranted. Using the example of sports officiating, this paper argues that people can and do judge impartially. The question is the extent to which legal and political structures in practice create contexts for doing so. This paper concludes that Americans do not construct a context for judicial impartiality as well as they could. If law judges are to play the role of impartial umpires (without which appeals to “the rule of law” are at best rank hypocrisy), their reward system must be depoliticized. This paper makes specific suggestions, for example that judges should not be elected, nor should they depend for their job security and reward on the popularity of their decisions. However, the paper also suggests that the lessons my sports officials teach will not neatly transfer to the politicized judicial world in the United States. THE PROJECT I spent the first weekend in March of 2001 at Chicago‟s O‟Hare Marriott and, a block down the street, at the Big 10 Conference‟s headquarters, sitting in on the winter meeting of the top supervisory referees in NCAA college football. I concluded from my two days observing their sessions and conversing with them off-hours and at meals that these men take impartiality, fairness, and a concern for human safety as unequivocal and unambiguous givens. These values are so deeply embedded that, having prepared in advance four pages of questions to distribute to the supervisors to “seed” my informal conversations, I threw them in the trash after my first informal meeting with the group. (As a follower of Rorty, I should have known better!)1
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Methodological Note: From its conception, this has been an ethnographic project, more Clifford Geertz than George Gallup. I did not, that is, prepare a questionnaire that I expected the officials to complete and return to me. I merely thought that it might stimulate interesting conversational comments. In retrospect, my prepared questions weren‟t irrelevant. Rather, they were naïve and/or obvious. For example, I asked a few men to describe situations where they consciously “used their discretion.” But it soon became clear that they never think of themselves as automatons. Much of their satisfaction with their work comes from the continuous alertness and involvement in the game that their work requires. “Discretion” turned out not to mean much to them. I had also included the question “How do you rise in the ranks? How much is advancement determined by ability, skill, accuracy, and professionalism? To what degree, if at all, do people get ahead by “playing politics” within officiating organizations? Does the cream rise to the top?” This paper shows why my “subjects” confidently believe that the cream does rise to the top. Of course they could all be collectively deluded, or collectively eager to mislead me. My data are not hard enough to falsify any position conclusively. However, I am confident that my presence had no significant impact on their agenda or their exchanges during the meetings. Candor and typical American male humor abounded. A few men, proud of their traditions and accomplishments, seemed pleased that an egghead academic thought he had something to learn from them. Most seemed to take my presence and questions as a minor and insignificant wrinkle on the ordinary pattern of their meetings. I did, during the last meeting session on Sunday morning, give a 15 presentation to the entire group in which I described some of the features of my “Liberal Politics as Play” project, and their piece in it. The group disbanded hurriedly after this session, so virtually all my “data gathering” occurred before I gave my presentation. Finally, I did not tape the meetings. I spent my time seated to one side (behind the taker of the minutes) taking continuous notes. All quotations in this paper are reconstructions from my notes. I reconstructed these conversations in the form presented here in the 10 days following the meetings. Many phrases are word for word. Readers can judge for themselves whether these quotes ring true.

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This section of the paper summarizes my “field notes” and does not try to extract any jurisprudential lessons. To do so would sacrifice the texture and color of the experience. Subsequent sections will extract some lessons. Readers who have no prior experience with or knowledge of the game of football may find some of this material opaque, but I trust these notes will support the generalizations I draw even for such readers. The Meeting Each National Collegiate Athletic Association football conference employs, as independent contractors, a number of men who officiate football games in that conference. These men usually train, travel and lodge, and work games together as teams for a season. (A few women have risen in the ranks of high school officiating, but few if any has yet broken into college officiating or professional officiating in the National Football League.) One man works as “supervisor” for each conference. These supervisors meet twice a year. The 30 people I met and observed in Chicago (24 supervisors and 6 guests, including myself) superintend big Division I conferences like the SEC and the Big 10, and little ones like the Rocky Mountain conference. The guests included the head of NFL officiating, his assistant, the personnel director in charge of screening and hiring NFL officials, and the wife of the meeting organizer, David Parry, who took the minutes. David Parry, a former Big 10 supervisor, now holds the post of “National Coordinator of Football Supervisors” for all NCAA football. He organizes the winter and summer supervisor meetings and chaired this meeting. Parry, who once hosted a series of Allstate Insurance TV spots entitled “You Make the Call,” is a legend in the world of football officiating. When the post was created and he then announced his interest in it, all other applicants withdrew their names, since he is, by easy consensus, the best in the business. The agenda for the day and a half contained 38 substantive items. Some of these items (“updating the directory” and “fee/mileage” calculations) received 5 minute slots. Fifteen minute slots addressed such topics as “XFL Officiating” and “NFL/College Scouting.” (The NFL employs, again as independent contractors, 47 people who scout those officials in college games who have applied to officiate in the NFL.) Longer sessions, though never as long as an hour, presented for close scrutiny and often spirited discussion a series of blurry game videos of good and bad calls. One session, “Personal Fouls/Offensive Holding (44 plays) got 30 minutes. “Celebration, Taunts, Drawing Attention to Oneself” got 20 minutes. These film reviews were the heart of the conference. David Parry‟s selection of clips portrayed many “bad calls” but portrayed at least as many “good calls” in ambiguous situations, which communicated pride in and appreciation for the excellence officials achieve in their craft. Many video clips explored the inevitable ambiguities, e.g., the distinction between “legal helmet contact while tackling” and “illegal helmet contact by butting,” that the supervisors discussed in order to reach consensus on the best call in the circumstances.

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After a simple hospitality gathering on Friday night (where the only alcohol was a 12-pack of Coors Light, and it was hardly touched), the sessions ran from 8:00 to 5:00 Saturday and 8:00 to 11:30 a.m. Sunday. Each session ended either on time or a bit early. These men instinctively know clocks. Selection The path to becoming a college football official starts on middle school and high school playing fields. “You get hold of a copy of the rules, take a test, pay your $25 fee to the organization, and start trying to hustle up some games,” Dave Parry told me. But to move into Division One NCAA football is light years away. As a rule of thumb, an applicant must have had ten years of experience as a high school referee. Most supervisors vet applicants not unlike an FBI background check. Supervisors will ask enough questions of enough people to assure themselves that an applicant has no history of womanizing, alcohol abuse (which may explain the virtually untouched Coors Light in the hospitality suite), or gambling. Some supervisors insist on reviewing an applicant‟s credit history. Many of the supervisors at this meeting are fully retired from their regular jobs. (One reported to me being independently wealthy.) They work as supervisors for an average pay of $20,000 to $25,000 a year. However, nearly all active referees hold regular full-time jobs teaching, selling sports equipment, and so on. One supervisor is a senior personnel officer for New York State. Training Virtually all training happens on the job and in clinics. At least one supervisor organizes a preseason week-long clinic for his men, but this is not standard practice. If they are lucky, their league will reimburse them for the expenses of attending clinics, but most men pay the expenses of attending the clinics out of their own pockets. Some supervisors insist on physical endurance training during the clinics, but most clinics involve watching those endless, often blurry videos of good and bad calls. Supervisors share tapes. All officials take a pre-season test every year, which is designed, in part like a bar exam, to make sure they are aware of the latest rulings and consensus conclusions about how to apply “the philosophy” (see below) to the tough calls, or “tweeners,” as these men called them. One official has produced a CD Rom containing all the rules, supplemented with illustrations and video clips of ambiguous situations. Transparency Officiating, like the game itself, is transparent to press and public, and this transparency powerfully shapes accountability. Every game is videotaped. With slow motion and stop action features, the game is, for officials, players, and coaches, infinitely transparent. Every officiating team or “crew” files, mostly on the net, a “foul report” at the end of every game. Supervisors read the reports of every game in their conference every week with great care. These reports give the supervisors material to fend off angry

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coaches. They also become one of the many data sources for evaluating the performance of every official. Parry said, “Our referees get downgraded if they just turn in a report saying „personal foul‟ and leave out „striking‟ or „kicking‟ or „butting.‟” During the week each crew reviews its game videos from the prior Saturday. More important, each conference supervisor reviews the videos of every game in his conference every week and evaluates every member of the officiating team weekly. The supervisor‟s evaluation “upgrades” or “gives points to” officials who make tough calls well, who move well to maintain “the good look,” and who avoid making technical calls. The supervisor downgrades officials who make “bad” calls, who make “nit-picky” calls for borderline infractions, who miss calls altogether, or who fail to move to maintain “the good look.” The supervisor will attend one game per week in person (or two—at least one conference flies its supervisor by private jet from an afternoon game to a night game). A technical assistant or “TA” watches every other game in the league and reports to the supervisor. Each football coach also files a report each week evaluating each member of the officiating team. Everything is measured. John Adams, the dean of the NCAA football rules committee, reported to the group that the 2000 season recorded an average of one fight in every 65 games, which was a statistically significant decrease from the previous year. He concluded that the league‟s new rules against fighting clearly had the intended impact. Typical statistical findings include: (1) The number of total points per game rises by 5 points every decade. (2) The national ratio of touchdowns to field goals is 3.3 to 1. (3) When overtime begins with a coin toss, the toss winner wins the game two thirds of the time in Division IA, but less than half the time in Div IAA. (4) Passing accounted for 58% of all yardage in the 2000 season, but passing also slows the game down. Rewards and Punishments At the end of the year the conference supervisor will have rank-ordered every official in the conference. The rank order is determined by a combination of the plus and minus points that the supervisor evaluation assigns to each official each week. Coaches‟ evaluations are given 1/8th the value of that of the supervisor. Highly scored officials increase their chances of becoming crew chiefs, landing post-season games, and moving up to the NFL. A top college official can justifiably aspire to officiate a Super Bowl before he retires. Poorly scored officials have no such opportunities, and may not be rehired. But money is not the object. As in the case of rewards, so punishments are intrinsic. He who makes an unambiguously bad call is instantly disgraced. He who consistently falls near the bottom of the rank ordering will probably go back to officiating high school sports voluntarily. Coaches have a major voice in judging the quality of officiating, but they do not have formal authority to choose who does and does not work. David Parry told me, “A typical coach will send me tapes of maybe 60 plays a year where he complains about the

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call. And 90% of the time the complaints are on the money because the coaches know they need to keep their credibility.” The pay for officiating a game ranges from under $100/game in the smallest conferences to the $1000 in Division I. (One of the agenda items rallied support to have official pay raised on a scale approaching $1500 in bowl games. “Hell, a lot is on the line in those games. I don‟t mind getting 800 bucks for a cupcake game in the Pac 10 where you know the score will be 49-0 by the half. But in a bowl game ya gotta really concentrate every second.”) Officials at bowl games expect some small gift along with their check—a watch, a cell phone—and occasionally a coach will give something to every official at the end of a season. They appreciate the perks, but the stakes are small. “You know, the Gator Bowl used to be great, but now they‟ve gotten cheap. We didn‟t even get a decent hotel.” “Yeah, but the Cotton Bowl is always good, and that new, what is it, GMAC Bowl in Mobile? Hell, even the WIVES got watches!” But my question “Has anyone ever offered you a bribe?” met with such astonished looks when I first posed it that I quickly stopped asking the question. I first took the startled look that this question provoked as an indication of some piety, or perhaps defensiveness. But on reflection, I think their reaction may have a simpler explanation: It may be so structurally difficult for a single individual on an officiating team of officials to throw a game, given the transparency of the situation, that my asking the question may merely have marked me as a football tyro. The most intriguing aspect of the incentive system is that quite obviously nobody is in the business for the money. David Parry, who is to his peers the Michael Jordan of officials, makes $50,000 a year as national coordinator. He, like many officials, is a retired public school teacher. The Rocky Mountain coordinator reported to the group his rough calculation that he made 45 cents an hour, and added that he loved the work so much that he would gladly pay the conference 45 cents an hour for the privilege of continuing in that role. Even officials who work Division I conference games and can make $1000 per game think that with pre-season training, attending clinics, and travel time, they make $10-$20 an hour. With one exception (the supervisor of officiating in the now defunct XFL), everyone I chatted with gave intrinsic reasons for doing the job, with “love of the game” dominating their talk. Beneath their love of the game, I suspect these men love their discipline, their craft, the drive to master detail, and the challenge to excel in the application of the mastered tools and lessons to the “raw clay” of the game. I listened in on a 10 minute spirited conversation during the hospitality gathering in which three men debated the benefits and costs of different flag throwing techniques. Some throw the flag straight to the ground. (“I want it on the ground fast so it looks decisive.”) Some throw high. (“I don‟t mean bring down rain, but I want everybody to see it.”) And some throw outward from their bodies as a compromise. (“I don‟t want to be provocative about it.”) It was the sort of conversation that only people who love the details of what they do would bother to have.

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Above all, these are competitive men, people with a love of competitive sports who naturally carry the zest for contending with fate and excelling in the eyes of one another into their work. Except for those, mainly in the plains and Rocky Mountain west, where distance and travel time make it impossible, most officials want to “move up,” and they compete with each other to do so. They routinely relish the opportunities for “exposure” by working “big” games. To be asked to work a Super Bowl is a source of immense pride. The Ordinary Politics of Officiating I asked several men to describe the aggravations, the things they don‟t like about their work. None seemed personally bothered by crowd abuse. “You get used to that early on or you wouldn‟t be here.” Only frustrations with arrangements and mechanics came up. There is no parking space for the crew when it arrives. The band won‟t get off the field at the end of halftime. Someone forgets to hand out the paychecks before the game starts, as is customary. Supervisors bear the brunt of complaints when a questionable call seems to the losing coach to have cost his team a game. Crews rotate within the conference, with the goal that no man or crew will work the same game more than two years in a row. Hence coaches focus their various lobbying efforts on their league‟s supervisor. David Parry: “We missed a call in the Illinois-Michigan game last year that probably cost Illinois the game. We got 400 faxes, mostly from fans. The Big 10 supervisor got 21 hate phone calls to his home. One of the officials involved in the call told me that at school the next Monday his seven year old son‟s teacher came up to the kid‟s desk, pounded it, and said, „Your father doesn‟t deserve to live after making that call.‟” Another commented: “If our guy had blown that close call in the national championship game, our fax machines would still be running and that guy would live in infamy in the officiating world.” David‟s wife, Patricia Parry, reported once getting a phone call at their home from an assistant coach calling on a cell phone two minutes after a game had ended (she had taped the TV broadcast for her husband) to complain about a call. Nearly all officials tell stories of coaches who in the heat of anger have said, “You‟ll never work for me again!”2
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This paragraph obviously raises an issue of critical importance to my larger project. Can my claim that structured sports and games embody non-violent methods of conflict resolution stand up in light of the angry threat of the sportsfan teacher? Are not sports, and particularly boxing and ice hockey, just one step removed from warfare? These and related questions fall beyond the scope of this paper, but they are so important that I must make three points here. First, my argument assumes, with Wrangham and Peterson, that male aggression and violence is a biological property of the species. (The philosophical position I have embraced for this essay‟s purposes, anti-essentialist realism, is sometimes called “biologism.”) From this perspective, the claim that sports and games avoid violence could be deemed more, not less credible, because, being so close to warfare, it may satisfy the biological impulse that causes rape and homicide just short of those actualities. We might call this the “innoculative” theory of sports and games. There is little doubt that groups engaging in “gratuitous cruelty” do so enthusiastically and find slaughter an exhilarating and exciting event. (Wrangham and Peterson, p. 70.) Game players report experiencing the same kind of thrill. Second, we must keep our perspective. Liberalism hopes to prevent the mass mutual slaughter of the Hutus and Tutsis, of Serbs and Albanians, of Jews and Palestinians, and, on a smaller scale of Branch Davidians and U.S. government agents. Actual players in games rarely behave like rabid fans, like the desk-pounding teacher, or young-punk soccer fans in Europe. And rabid fans rarely behave like the Serbs or the Tutsis or their counterparts. Third, perhaps the teacher-fan‟s silly outburst described above may, like many a shout to “Kill the ump!”, reflect how desperately people, and particularly losers, depend on the belief that the victory and the loss were “fair.” For reasons that the larger project develops fully, subjects who perceive themselves to be hurt by injustice, bias, and unfairness seem biologically “wired” to react with

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Coaches regularly call supervisors not only to complain about an official but to ask for advisory opinions about a new play they might try or about a suspicious play they have seen in their upcoming opponent‟s videos and scouting reports. The general practice is to give advisory opinions on the condition that the official will report the substance of the conversation to the opposing team‟s coach. The conferees spent a good deal of time complaining about, and suggesting cures for, the individually short but cumulatively long delay-factors caused by live commercial TV coverage. The group proposed a requirement that broadcasters take a commercial time out whenever an injury on the field leads to a time out. The “Philosophy” It is a common saying among officials in all organized sports that officiating is the only business in which “perfect judgment is expected at the start, with steady improvement thereafter.”3 But in what does perfection consist? As one man put it, “It all comes down to making the right call.” Equalizing calls, that is, trying to compensate or correct for the damage done by a bad call earlier in the game, is absolute anathema. “That‟s worse than making the wrong call to begin with!” But what is “the right call?” Both in personal conversations with me and in the discussions in their meeting sessions, my “subjects” repeatedly described the decision process in terms that did not remotely resemble mechanical jurisprudence. These men know that the rightness of every call, no matter how clear the rule or visible the infraction, depends on the context, and they articulated this deep knowledge by repeatedly invoking “the philosophy.” (In this they confirmed the jurisprudential conclusions I have reached in the course of my academic career, but there was no point in conveying my personal delight on this score to them.) The philosophy is straightforward. Officials should make calls for the “good of the game.” (See Hutchinson, 2000) That is, they should make calls that: 1. Keep the game under control. 2. Minimize the chance of personal injury. (“Quarterbacks get injured too often. I say we get rid of the intentional grounding rule and just say that any incomplete forward pass is just that. Hell, they lose the down, and these are almost always judgment calls anyway.”)

impulsive brutality. (Alert readers may justly ask at this point why the position I stake out in this note is not itself essentialist. I‟m confident that it isn‟t, but the tedious philosophical explanation would take us too far from this paper‟s main theme to state here.)
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Quoted from “Entry Level Referee Training Course,” CD-Rom distributed by The United States Soccer Federation. The background “wallpaper” for every page of this CD-Rom consists of the eastern and western hemispheres presented on two soccer balls underscored with the expression, in cursive, “For the Good of the Game.”

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3. Keep the game moving so as to maintain spectator enjoyment, stay within allotted TV time, and end a one-sided game as quickly as possible. (“Do you ever lighten up in, say, the 4th quarter when one side is ahead, say, 42-3?” I asked. “Sure. Everybody just wants to get the hell out of there. But if everybody and his grandmother has seen the infraction, or if it‟s a matter of personal safety, of course we call it.”) 4. Let the players play, i.e., don‟t get in the way of good play. “Letting the players play” has two interesting components. First, the philosophy means that officials should avoid applying rules literally or technically when doing so would interfere with play. Second, in ambiguous call situations (the “tweeners”), the call should go in favor of furthering the competition. These “philosophical” distinctions are sometimes surprisingly nuanced. In cases where one cannot tell if a fumble happened before a runner‟s knee touched the ground, a fumble, not a downed ball, should be called. And a lateral beyond the line of scrimmage should be counted as a lateral unless it is unambiguously “forward.” But an incomplete side pass behind the line of scrimmage should be counted as forward unless it is unambiguously thrown “backwards,” even though, contrary to the first two rulings, this third one DOES stop the play via a incomplete call rather than continue it via a fumble call. The distinction lies in the fact that an incomplete passes are routine parts of play. To change the routine of the game by calling an ambiguously directed pass “backward” introduces a condition that the players may not understand how to play. The effective official thus values, and works to achieve, great perception, great concentration, and keen common sense about context. Impartiality, integrity, and the philosophical commitment to “the good of the game” are not mantras that officials keep exhorting themselves and each other to honor. They are by-products of the concrete experiences built from the thousands of narrative moments of good calls, bad calls, disputes, and their consequences. Officials take these values for granted the same way commercial airline pilots take safety for granted. Officials do not resort to morals or philosophy in an academic sense at all. (Only three of the men I encountered seemed the slightest bit interested in my academic reasons for joining them.) I encountered none of the appreciation, found more frequently in academic inquiry, of consistency for consistency‟s sake in the abstract. One venerable supervisor in a Division I conference told me that, among other things, he has his men sign a “no-gambling” contract. The appearance of impartiality is so critical that he discourages them from even visiting on vacation a location where gambling occurs. The same man also cheerfully reported to me that in his younger days officiating basketball games, he always kept a few quarters in his pocket. If the arena police did not act to remove a disruptive spectator, he would surreptitiously drop a quarter to the floor, then make a show of picking it up, taking it to the security guard, and say, “that guy just threw this at me.” “That guy was gone, no questions asked!” The possible formal inconsistency never occurred to him. The philosophy, backed by common sense (If this group has a mantra, it is “Use common sense.”), easily reconciled the apparent

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contradiction between the no gambling contract and the quarter dropping ploy. The concrete ethic of “the good of the game” directly drives this common sense. The average age of this racially diverse group must have been at least 50. They were unreflectively sexist. David Parry, whose wife, Patricia, took the minutes of the meeting, refused to let my wife observe. My hunch is that he personally had no problem with it but knew the group might be suspicious and inhibited in the presence of a female stranger. When I asked a black supervisor his thoughts about the female place kicker who sued Duke for being dismissed from the team before the season started in spite of her strong kicking record in practice, he responded, “Of course Duke should never have let that woman kicker even try out. You can‟t expect a woman to tackle a runner. What if she got hurt? Think of the lawsuits.” At the same time a group at lunch expressed nothing but admiration for a woman who has risen to the top rank of high school officials in Arizona. The men seemed to accept as inevitable that a qualified woman would, before too much longer, make it into college football. Some Specific Discussions To add to the texture and color of my experience, here are some specific excerpts from conversations. --“We‟re all lax about the 20 minute half-time. If we really want to keep the time of the game under control, we‟ve gotta get the bands off and the teams on right when the 20 minutes ends. But how do you enforce it?” “Well you can always tell the home team coach that you‟re going to rag him [i.e., penalize him] for delay of game if his team isn‟t on the field.” “Yeah, but the visiting coach out of reciprocity is going to decline the penalty.” “That‟s OK. At least we start sending the message that we are serious about time management.” --“We had a situation where the 25 second clock malfunctioned and the official reset the game clock as well as the 25 second clock. But in a situation like that the game clock keeps running until time is called. This actually happened on a windy day, right at the end of the third quarter, and resetting the game clock forced a team to punt into the wind instead of with the wind, and it was a close game. That mistake might have made a difference.” --“We called a close holding on this play, but when you look at the video, you see the runner was already way past the hold on the way to a touchdown. I think that‟s too technical.” --The positioning for each official in virtually every play situation is choreographed precisely in advance to maximize “the good look.” Supervisors routinely “downgrade” an official if the game video reveals he has moved improperly, even when no call was missed as a consequence. For example: “Jim, how many steps do you have your line judges take after the snap?” “I tell „em to take two easy slide steps back until they have read pass or run.” “I tell „em one.” “But I‟ve started to see plays designed to use the

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back judge as a screen. We may need to be a little more creative about position there.” “I think whenever the ball is inside the three yard line the side judges have to come off the sideline and take about three steps in.” --“You know, if we‟re trying to shorten the game, we waste a lot of time by following the old rule of announcing the final call on a penalty from the middle of the field. We do a lot of unnecessary walking back and forth. Especially when we‟re miked, that walking back and forth is just a waste of time.” --“In that Illinois game we had this situation where the quarterback, after he had thrown the ball, got the “bull in the ring” treatment from five defenders. They just surrounded him and roughed him up a bit. But the ball was 40 yards away. I don‟t think we have any rule to cover that.” --“You know in televised games it wouldn‟t be that hard, if the team reps in the booth agreed, to have somebody send us a signal when the TV replay clearly shows what happened. We could save some time that way.” And some comments during the video clips of good and bad calls: --“Now here‟s a long backward fumble, and the scramble goes on forever before the fumbling team recovers. But then the official stops the clock. I downgraded him for that. It‟s just 3rd and 50, or whatever it was, but you don‟t stop the clock.” --“On this clip you will see that the QB is hit on the one yard line and driven back into the end zone. As he‟s going down he throws the ball from the end zone in the vicinity of an eligible receiver. This is one of those „tweeners.‟ If he hadn‟t thrown, we wouldn‟t call a safety because his forward progress stopped at the one. Then he did throw out of the end zone, but we rightly called it as an incomplete pass [to an eligible receiver]. Good call. It‟s not exactly logical, but we want to let him throw if he can but not call the safety.” --“Now here‟s a really unusual situation. Watch this. On second down the offense tries to sneak a quick kick. The ball goes straight up in the air and lands behind the line. Now watch what happens. Nobody knows what to do. No player is willing to touch the ball. The official rightly calls dead ball when the ball comes to rest. But until then he could have called “live ball.” At this point a lengthy animated discussion ensued about whether the offensive team retained possession on 3rd down. Most men, to their chagrin, could not remember.

Summary: The Dog Not Barking Readers who at this point grant that football officials judge impartially might well raise the following objection: Doesn‟t the immense difference between the physical

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specificity of football rules (the specific “time and space” quality of sports rules) and the far more amorphous, ambiguous, and mutually contradictory rules of law, explain why football officials judge impartially? The response must begin with the fact that my supervisors did not talk in those terms. Instead, their talk seemed surprisingly unrelated to the rules nearly all the time. They would presumably agree with Stanley Fish when he wrote (1984, p. 1330): Of course there will eventually come a time when the novice player (like the novice judge) will no longer have to ask questions; but it will not be because the rules have finally been made sufficiently explicit to cover all cases, but because explicitness will have been rendered unnecessary by a kind of knowledge that informs rules rather than follows from them. They might also agree with Hutchinson (2000, p. 288) that “the test of good judging is less about getting it right than about doing it well.” My supervisors seem intuitively to know, as Hutchinson continues, “that the limits and standards of being a good judge are the limits and standards of being a good game player.” Like the exhortation in the U.S. Soccer Federation‟ referee training course (fn 3 above), my supervisors consistently focused on the nature of the “good of the game.”4 And of course, even if there is a difference in the specificity of rules (and the continuum of generality-specificity of the rules across all sports and all areas of law is probably about the same for both), it is equally easy to favor one side partially, if one wishes to do so, within a framework of clear or of unclear rules.

APPLICATIONS TO JUDICIAL PRACTICE IN THE UNITED STATES Imagine the following thought experiment. Suppose football officials: --Got the job only because they knew a coach who had the power to name them to become an official. --Were presumed, merely because they once played football, to know how to officiate without taking any initial or continuing tests or clinics. --Got the job by the vote of coaches in a contested election, where coaches disagreed on the philosophy of the game and tried to get “their men,” people who shared their style of play, to become officials so as to increase a particular “coach party‟s” chances to win games at the expense of the other “coach party.” (Suppose also that coaches on different sides made campaign contributions to the officials they hoped to elect and re-elect.) --In the most important bowl games were often appointed from outside the ranks of trained officials for political reasons.

4

Cf. Hutchinson, who states that adjudication at its best “amounts to a contingent understanding of what it means to play the game.”, p. 37, emphasis in original.

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--Depended on continued employment as officials for their medical insurance, retirement funding, and daily bread. --Were not routinely scrutinized by senior and more experienced officials who marked their performance up and down, or reviewed by coaches. --Had no ongoing personal interaction with the construction of the rules, either by giving advisory opinions to coaches or by working hand in hand with rules committees. --Were not reviewed by peers who shamed them for making bad calls. --Did not consistently relish their work. --Did not work as teams and therefore lacked immediate support groups and positive feedback systems. --Shared no common philosophy that valued their role and gave them specific guidance in “hard cases.” Now substitute judges for sports officials in this list. Merit selection and peer review of specific judicial performances do not consistently drive judicial reputations, advancement, and success. Most judicial work is not transparent to an attentive public. Elected and politically appointed judges may associate their personal financial security with “taking the right side” politically. Judges do not consistently learn and share a common (and common sense) philosophy of their enterprise within which they can collectively compete with each other to achieve excellence. Of course they could do so. Legal reasoning closely mirrors football officials‟ “philosophy.” But judges are not consistently motivated to engage legal reasoning, even though legal reasoning is the craft of the rule of law. Thus my father‟s skepticism—the conviction that the human mind is not wired to make impartial judgments—is misplaced. The human brain is not the problem. Both partiality and impartiality seem determined by the specific structures of rewards and punishments in which people judge. NCAA football referees operate in a world that rewards them for making judgments that do not depend on a concern with who wins and loses. The exercise I just outlined describes a hypothetical system in which sports officials might well behave partially. To the extent this exercise describes the American judiciary, the model suggests that breakdowns in impartiality, like that seen in Bush v. Gore would occur periodically.

CONSTRUCTING IMPARTIALITY Let me preface this paper‟s final section with a reminder. What I have called my anti-essentialist, realist, pragmatist philosophical approach holds that no formal definition

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of “justice” or “rights” can lead, deductively, to conclusions that have any hope of improving legal and judicial practices. I believe, with Rorty, that the core of postHegelian Western political philosophy makes such hopes unrealistic. Readers who object that my approach neglects “rights talk” (The NCAA supervisors never engaged in “rights talk” any more abstract than the uncontested belief that players should not get hurt.), will not accept the argument of this paper. I do not naively believe that the parallels between sports and politics describe some “essence” that will somehow transfer automatically into political and legal life if “we just get our thinking right.” My argument goes no further than the claim that many cultures have constructed language practices called sports and games. When we observe these practices, we observe that conflict does not escalate. Opponents “don‟t take it personally.”5 If common vulgar rhetorics, rather than academic abstractions, shape ordinary political life, it seems to me that the language of sports and games is that common jurisprudential language that achieves liberalism‟s peacemaking goal. If I took a conventional positivist, structural-functional, approach to this project, I could at this point conclude: A. We should not elect judges. Appointments to the most powerful and politically sensitive judicial positions might, as in Germany (Kommers, 1997), require consensus choices in legislatures. We would not necessarily adopt a separate training track for judges as do many civil law countries, but law schools would require basic training in adjudication of all law students and would provide a concentration in adjudication. B. All judicial proceedings should be televised, or at least video taped for review. Litigating attorneys would be expected to evaluate judicial effectiveness, and local bar associations would engage in regular job performance reviews. C. Both the mandatory adjudication training in law school and clinical training for beginning judges would emphasize legal reasoning and, beyond legal reasoning, the centrality of impartiality in an open democratic game. D. Most law students would, early in their personal careers, opt for the judicial track and expect to rise in it, based on merit, for the remainder of their careers. (Sports officiating has its own network and support system. The National Association of Sports Officials includes officials in all sports at all levels. It operates independently of the sports leagues and conferences. NASO publishes its own magazine, Referee, offers insurance and other benefit packages, and distributes through its magazine and website specific advice. See www.naso.org.) Given that, unlike referees, judges make their living adjudicating, their salaries and benefits should be generous enough at all levels to make the drive to advance a function of the competitive desire to excel in the craft of judging itself.

5

Aronson (2000) describes a meeting in a Tallahassee café on December 8, 2000 between contending attorneys Barry Richard (Bush) and David Boies (Gore) “deep in discussion—about their respective twin sons.”

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E. Judges would, at their discretion, give non-binding advisory opinions both to litigants and to policy makers. But of course this paper adopts not a positivist approach but a Rortyan pragmatic approach. From that perspective, the prescriptions I have just listed, although I would not call them “wrong,” are merely academic. As Stanley Fish (1994, 1999) ubiquitously argues, such prescriptions can do no more than contribute to the linguistic community of the academy. To understand how the sport of football has come to construct impartiality, we must above all understand how these people experience officiating. In their world, “love of the game” dominates. Officials have developed their own community, their own network of friends and heroes and stories and debates about style, all anchored in an irresistible desire to face challenges and to master a craft. In a sense they have developed their own cohesive tribe. They themselves want to “win,” but their tribal world is constructed in such a way that impartiality and winning equate. They know that the game they love cannot exist unless they commit fully to mastering their craft. None of this motivation requires them to develop a theory of impartiality, or even much consciousness of it. Impartiality simply emerges out of the commitment to the craft, and that commitment is, above all, fascinating and fun. In a nutshell, officiating is itself play, not work. (Neale, 1969, pp. 21-27.) It is not clear that academics have much to say about the social construction of the fascination and fun of play. Our failure is more than a bit strange, since academics parallel football officials in some interesting ways. What motivates us as researchers and teachers is presumably not the money but the drive to master our craft, “get things right” in the eyes of our peers and our students, and thus reinforce the good of our knowledge game. In any event, as Neale (1969, esp. chapter 4) insists, the fascination and fun of play necessarily engages the sacred, and the sacred does not easily lend itself to academic dissection. That said, we do have evidence, e.g., in the lives of Sir Thomas More and Benjamin Cardozo, that people can love the law. And we have constructed democratic politics as a game. Indeed, given the collapse of essentialist epistemologies, democracy has no other choice. If the five U.S. Supreme Court Justices had, in Bush v. Gore, understood Plato (LAWS, vii, 803), “What, then, is the right way of living? Life must be lived as play, playing certain games, making certain sacrifices….”, they might reflexively have let the players play and stayed out of their way. In practice, of course, judges would not need to know Plato any better than football officials do. But they would have to love the rule of law as much as officials love football. It is discouraging that American political culture, far from loving the rule of law, widely condemns politics and politicians as shallow and corrupt. I suspect the community of political educators, which has substituted positivism for civic education in the last half-century, bears some responsibility for the current state of affairs. Unfortunately, it is not clear that we in the academy can offer any meaningful remedies unless we ourselves become more playful.

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REFERENCES Aronson, Peter, “Lawyers of the Year: Teams Bush and Gore.” The National Law Journal, December 20, 2000. Carter, Lief, and Thomas Burke, Reason in Law, 6th ed. New York: Longman, 2001. Fish, Stanley, “Fish v. Fiss.” 36 Stanford Law Review 1325, 1984, Fish, Stanley, There‟s No Such Thing as Free Speech, and It‟s a Good Thing, Too. Oxford: Oxford University Press, 1994 Fish, Stanley, The Trouble with Principle. Cambridge, MA: Harvard University Press, 1999 Hutchinson, Allan C., It‟s All in the Game. Durham, N.C.: Duke University Press, 2000. Kommers, Donald, The Constitutional Jurisprudence of the Federal German Republic. Durham, N.C.: Duke University Press, 1997. Neale, Robert, In Praise of Play. New York: Harper and Row, 1969. Rorty, Richard, Philosophy and Social Hope. London: Penguin Books, 1999 Shapiro, Martin, Courts: A Comparative and Political Analysis. Chicago: Chicago University Press, 1981. Wrangham, Richard, and Dale Peterson, Demonic Males: Apes and the Origins of Human Violence. Boston: Houghton Mifflin Co., 1996

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