* Associate Professor, Marquette University Law School. Fan, Minnesota Vikings. Thanksto Howard Wasserman for comments on an earlier draft and to Josh Byers for invaluable researchassistance.** 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 ofthe United States: Hearing Before S. Comm. on the Judiciary, 109th Cong. 55 (2005) (statementof John G. Roberts) [hereinafter Roberts Statement] (“Judges are like umpires. Umpires don’t makethe rules, they apply them. The role of an umpire and a judge is critical. They make sure everybodyplays 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: AnUmpireal View, 123 U. PA. L. REV. 1031, 1033 (1975). For a critique, see Chad M. Oldfather, TheHidden Ball: A Substantive Critique of Baseball Metaphors in Judicial Opinions, 27 CONN. L.REV. 17, 42-46 (1994) [hereinafter Oldfather, The Hidden Ball].4 . See, e.g., Waugh v. Williams Cos., Inc. Long Term Disability Plan, 323 F. App’x 681,684 n.2 (10th Cir. 2009) (noting claimant’s contention “that the level of deference a court shouldgive a plan administrator’s decision is the same deference that a football official reviewing aninstant replay in a booth should give to a call made by the on-the-field official”).5 . See, e.g., Finnsugar Bioproducts, Inc. v. Amalgamated Sugar Co., 244 F. Supp. 2d 890,893 (N.D. Ill. 2002) (“Even under the more relaxed rules that govern pro football, however, theCourt notes that Finnsugar would have exhausted its opportunities for further review of this issueCOMPARATIVE PROCEDURE ON A SUNDAY AFTERNOON:I NSTANT REPLAY IN THE NFL AS A PROCESSOF APPELLATE REVIEWC HAD M. OLDFATHER*M ATTHEW M. FERNHOLZ**“In the NFL, coaches’ challenges, which trigger replays, contribute tothe sense that a game consists of about seven minutes of action . . .encrusted with three hours of pageantry, hoopla, and instant-replaylitigation.”—George Will1INTRODUCTIONThe use of sport as a metaphor for aspects of the legal process has a longhistory. Over a century ago Roscoe Pound decried the “sporting theory ofjustice” in his momentous speech to the American Bar Association. More2recently, Chief Justice Roberts famously likened the judicial role to that of abaseball umpire. The instinct to draw parallels between law and sport is3understandable. The litigation process, in particular, has adversaries, winners,and losers, and bears other resemblances to various games. Not surprisingly, this extends to football. Lawyers, judges, and4546 INDIANA LAW REVIEW [Vol. 43:45long ago.”); United States v. Eckhoff, 23 M.J. 875, 881 (N.M. C.M.R. 1987) (Cassel, J.,concurring) (“For while the decisions in the appellate process are similar to those made in decidingthe application of rules in a professional football game (well-matched and well-trained teams withplenty of expert assistance and the type of action which can be played and considered in discreteperiods with the availability of the instant video replay), the trial judge is more like the referee ina youth basketball game where the motion is continuous, the players of varying degrees of abilityand training, and there is no way to examine and reexamine each call; there is no need for us to addto the already present needless and distracting heckling.”), judgment rev’d in part, 27 M.J. 142(C.M.A. 1988); Johnson v. Frazier, 787 A.2d 433, 436 (Pa. Super. Ct. 2001) (“Like an instantreplay challenge in professional football, the appeal was made before the next play began; thechallenge must be resolved before another play may be validly run. ‘After further review,’ we findthe call on the field must be reversed.”); Vaccaro v. Joyce, 593 N.Y.S.2d 913, 916 (Sup. Ct. 1991)(“[T]he problem, as frequently occurs in many sporting events, is whether primacy is to be givento correctness or to finality. A football official may rule that, in accordance with his interpretationof the rules as to when the ball is dead a touchdown has not been scored, and even though replayson the next day show that his call and his interpretation of the rules was clearly incorrect, onceeverybody has gone home the game is over and the result stands.”).6. 203 F.3d 477 (7th Cir. 2000).7 . Id. at 479 (footnote omitted); see also NFL Players Ass’n v. Pro-Football, Inc., 857 F.Supp. 71, 72 (D.D.C. 1994) (“The parties normally rely upon an arbitrator to act as a referee whendisputes arise, but in this particular case, the Court is forced to don a black and white striped shirtand interpret the rules by which the parties have agreed to be bound.”), vacated in part on reh’g,79 F.3d 1215 (D.C. Cir. 1996).commentators have noticed and drawn upon the similarities between appellatereview and instant replay review in the National Football League (NFL). Onesenses delight, for example, in Seventh Circuit Judge Terrence Evans’ opinionfor the court reversing a ruling of then-Chief Judge Richard Posner (who hadbeen sitting as a district judge by designation) in Bankcard America, Inc. v.Universal Bancard Systems, Inc. The opinion began:6Football fans know the sickening feeling: your team scores a bigtouchdown but then a penalty flag is tossed, wiping out the play.Universal Bancard Systems, Inc. knows that feeling firsthand afterseeing not one, but two big touchdowns called back. The referee whowaved off the first—a $7.8 million verdict—and then the second—a $4.1million jury verdict after a second trial—was the Honorable Richard A.Posner, the circuit’s chief judge who in this case was wearing, bydesignation, the robe of a district judge. Like the instant replay official,we now review the decisions of our colleague—using the voluminousrecord rather than a television monitor and recognizing that our reviewin 1999 of a case that began in 1993 is a far cry from instant.7Indeed, one state bar association president exhorted his colleagues to use replayreview as a teachable moment, part of “our platform for discussing how thesystem of justice really works