Chad Oldfather (Marquette) and Matthew Fernholz (J.D. Candidate at Marquette) have posted Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review to SSRN. The paper considers analogies and distinctions between replay review (for which I have expressed my distaste) and judicial appeals. Here is the abstract:
During his confirmation hearings, Chief Justice John Roberts famously likened the judicial role to that of a baseball umpire. The increased prevalence of video evidence makes it likely that judges will find another sporting analogue for their role – that of the instant replay official in the NFL. (Indeed, many have already done so.) This Essay explores the analogy. In so doing it seeks not only to consider its appropriateness in a narrow sense (much as many commentators considered the appropriateness of the Chief Justice’s analogy), but also to conduct something of a comparative analysis and thereby to use it as a vehicle for illustrating some general characteristics of a process of decisional review.
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