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INSTANT REPLAY IN THE NFL AS A PROCESS OF APPELLATE REVIEW



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COMPARATIVE PROCEDURE ON A SUNDAY AFTERNOON INSTANT REPLAY IN THE NFL AS A PROCESS OF APPELLATE REVIEW CHAD M OLDFATHER MATTHEW 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 4 judges 5 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 Comm on the Judiciary 109th Cong 55 2005 statement of John G Roberts hereinafter Roberts Statement Judges are like umpires Umpires don t make the rules they apply them The role of an umpire and a judge is critical They make sure everybody plays by the rules but it is a limited role Nobody ever went to a ball game to see the umpire The metaphor predates Chief Justice Roberts See Marvin E Frankel The Search for Truth An Umpireal View 123 U PA L REV 1031 1033 1975



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