Critical Basketball Studies

If legal realism simply means that the formalist view of law---in which judges’ subjective value judgments play no substantial part in deciding cases---is wrong, then all reasonable lawyers, judges and academics are legal realists now. However, there has long been a more radical form of legal realism, sometimes embraced by those who identified with the now-largely-defunct movement known as “critical legal studies,” which makes assertions like “in any case that reaches a court of last resort such as the U.S. Supreme Court, a plausible legal argument can be offered to justify a result favoring either party.”

Note the important qualification in this (admittedly made-up) quotation: The claim is not that all law is indeterminate, but that appellate decision making is guided by factors other than law.

Now consider the allegations that NBA referee Tim Donaghy bet on games that he officiated. Basketball fans have long recognized that much of the refereeing in the NBA is uneven if not arbitrary. Whether to call a charge, a block or no foul on any given play in the post seems almost completely within the discretion of the ref. Thus, it’s easy to see how Donaghy could have fixed games simply by calling fouls on the star player(s) of the team he hoped would lose (or fail to cover the spread). No one would be the wiser.

I have long been a critic of radical legal realism, and the Donaghy case is another example of what’s wrong with it. First, the radical legal realist exaggerates legal indeterminacy by focusing on cases in courts of last resort. There are many cases that don’t reach such courts because the answer to the legal question is perfectly obvious. Some results would be the equivalent of calling a foul on a player who is sitting on the bench doing nothing. Second, if the radical legal realist is right, then there’s nothing wrong with doing the equivalent of what Donaghy allegedly did. How can it be wrong to bend the rules when the rules are meaningless?

To be sure, the radical legal realist can say that what Donaghy allegedly did is the equivalent of a judge taking a bribe to rule for Jones even though he ruled the other way on identical facts in another case. By contrast, ideological judges can be consistent across cases even though they’re deciding according to ideology rather than law. But this response seems to me inadequate because the objection to crooked refereeing can be analogized at a higher level of generality. A judge who employs slippery slope arguments when they support liberal but not conservative results (or vice-versa), or who embraces federalism when it leads to conservative but not liberal outcomes (or vice-versa), must articulate some principled distinction among these cases, and often won’t be able to. That was, after all, the point of Herb Wechsler’s often-criticized but never-refuted argument for even-handed application of principles (under the misnomer “neutral principles”).