Legal Formalism and Tim Donaghy

Michael Dorf and I seem to share an interest in what sports rules and their enforcement can tell us about legal rules and their enforcement in society at large. Only Mike does it better, as a constitutional theorist of the highest order. His latest missive examines the differences among formalism, realism, and radical realism (critical legal studies) and how the Tim Donaghy scandal reveals defects with radical legal realism.

I want to take off on two points about legal formalism, based on an interesting piece in the new Sports Illustrated. Based on interviews with an anonymous retired NBA referee, the story suggests that Donaghy called fouls "by the book," meaning he called a lot of them--Donaghy-led crews twice ranked in the top-5 in fouls-called-per-game (apparently, there only are statistics on calls-per-crew, not calls-per-ref). Donaghy particularly called fouls on the bumping, grinding, and jockeying in the low post and away from the ball, where other refs often warn the players to keep it clean a few times before blowing the whistle. As the retired ref put it, "[T]here are ways to use common sense to tell players to knock stuff off. ­Instead, Donaghy would blow his whistle on all of it." The result is a lot more fouls, a lot more free throws (teams get into the bonus more quickly), and a lot more scoring in Donaghy-officiated games, making it more likely that the final score will exceed the over/under line (the story says that 60 % of Donaghy games hit the "over").

In other words, Donaghy was more of a legal formalist than other referees. He enforced the rules strictly as written, blowing the whistle on a large amount of contact. He often did so by focusing solely on what the text of the rulebook required, without regard to the spirit, intent, or purpose of the rules, which was to keep games moving and flowing and to allow players to play (a spirit that other refs might take into account by warning players about the jockeying first). Ironically, this legal formalism could have facilitated the misconduct of which Donaghy is accused. This style makes it both more likely that an official could influence games in this way (he is going to call a lot of fouls anyway, so it just takes it up a small notch) and more difficult to discover if he was trying to rig games (did he call a lot of fouls for illegitimate purposes or was he just calling his normal game?). More ironically, his formalism made Donaghy one of the better-regarded officials within NBA offices, even as players, coaches, and other refs disliked him and his style.

The article raises a second point that ties into legal rule making. The retired ref states that "one guy can really influence the flow of a game because other refs try to get on the same page, and suddenly everybody is calling everything."

Recent scholarship has examined differences in the way case are decided by single-member courts (trial court, where one judge decides everything) as opposed to multi-member courts (such as appellate and reviewing courts, where one judge must convince one and perhaps as many as four of her colleagues to decide anything). NBA officiating crews operate as a combination of the two. There are three members of the "court" but most decisions can be made by just one member. In theory, each member could call her own game and bend the game to her style. But the reality is that members instead read one another and try to call games consistently and uniformly with one another; this affords players and coaches maximum predictability as to how a game is going to go and allows them to play accordingly. So Donaghy's formalism potentially brings out similar formalism in his crew mates and makes the game as a whole a more formalist affair.

The analogy that comes to mind is individual judges within one federal judicial district, where each judge hears and decides her own cases as a single-member court. The decision of one judge is not binding precedent on any other judge on the court. But it is persuasive authority; judges often respect the interpretations and decisions of other judges on the court, partly in the name of uniformity, consistency, and predictability of the law within the district, allowing the public to better know what the law requires. Again, one formalist judge can influence other judges to be similarly formalist.

More nefariously: It is possible that Donaghy's officiating partners unwittingly and unknowingly facilitated his scheme by bringing their calls into line with his.

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