Instant Replay in the Nfl As a Process of Appellate
COMPARATIVE PROCEDURE ON A SUNDAY AFTERNOON: I NSTANT REPLAY IN THE NFL AS A PROCESS OF APPELLATE REVIEW C HAD M. OLDFATHER* M ATTHEW M. FERNHOLZ** “In the NFL, coaches’ challenges, which trigger replays, contribute to the sense that a game consists of about seven minutes of action . encrusted with three hours of pageantry, hoopla, and instant-replay litigation.” —George Will1 INTRODUCTION The use of sport as a metaphor for aspects of the legal process has a long history. Over a century ago Roscoe Pound decried the “sporting theory of justice” in his momentous speech to the American Bar Association.2 More recently, Chief Justice Roberts famously likened the judicial role to that of a baseball umpire.3 The instinct to draw parallels between law and sport is understandable. The litigation process, in particular, has adversaries, winners, and losers, and bears other resemblances to various games. Not surprisingly, this extends to football. Lawyers,45 judges, and * Associate Professor, Marquette University Law School. Fan, Minnesota Vikings. Thanks to Howard Wasserman for comments on an earlier draft and to Josh Byers for invaluable research assistance. ** J.D. Candidate, 2010, Marquette University Law School. Fan, Chicago Bears. 1. George Will, The End of the Umpire? Foul!, CHI. TRIB., June 19, 2008, at C27. 2. Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 29 REP. A.B.A. 395, 404 (1906), reprinted in 35 F.R.D. 273, 281 (1964). 3. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before S.
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