What Troy Polamalu Can Teach Us About the Law
11:01 AM, Oct 30, 2011 • By WILLIAM C. MARRA
When Pittsburgh Steelers safety Troy Polamalu suffered concussion-like symptoms in a recent NFL game, he did what any decent husband might do: He walked to the sideline and called his wife Theodora to tell her he was fine. Polamalu, like so many football players, has a long history of concussions, so surely his wife would have been relieved to hear from her husband.
In response, NFL commissioner Roger Goodell fined Polamalu $10,000 for violating an NFL rule prohibiting “the use of cellular phones . . . and other electronic equipment . . . in club-controlled areas, including . . . sidelines.”
Goodell has been almost universally criticized for his decision to fine Polamalu. Steelers head coach Mike Tomlin said Goodell’s decision lacked “common sense.” AOL columnist David Steele likened Goodell to a “deranged game-show host” for strictly applying the “letter of the law.” And Pittsburgh sports columnist Josh Yohe tweeted: “Goodell is a joke.”
By calling his wife, Polamalu certainly violated the letter of the NFL’s law, which contains a blanket prohibition against in-game cell phone use. Thus the problem, if there is one, with Goodell’s decision must be that he allowed the “letter of the law” (its text) to trump the “spirit of the law” (its purpose). Polamalu should not be fined, the argument must go, because the rule wasn’t really intended to apply to this case.
This tracks an important legal debate that has demanded considerable attention from the Supreme Court: When a statute’s text conflicts with its apparent purpose, which should govern?
There is an increasing consensus on the Supreme Court today that when the text of a statute is clear, the text governs, and there is no need to inquire into the statute’s purpose. In short, the Supreme Court today would probably side with Goodell.
This was not always the case. In the 1892 case of Church of the Holy Trinity v. United States, the Supreme Court held that a statute banning contracts to import foreigners “to perform labor or service of any kind” did not proscribe a contract to import a religious minister into the United States. The Court conceded that the contract was prohibited under the letter of the law, because a priest performs “labor or service of any kind.” But Justice David Brewer, writing for a unanimous Court, held that the spirit should trump the letter because it “is a familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers.” The Court held that the spirit of the statute was to apply only to manual labors, and so the Court allowed the religious contract.
But the modern Court is much more likely to apply the clear text of a rule like the NFL’s cell phone ban. A century after Justice Brewer wrote his paean to the spirit of the law, Justice Antonin Scalia, also writing for a unanimous Supreme Court, held in the 1998 case Pennsylvania Department of Corrections v. Yeskey that “in the context of an unambiguous statutory text,” arguments related to purpose or spirit are simply “irrelevant.”
Two developments in the law have driven this shift. The first is textualism, a mode of statutory interpretation that favors a statute’s semantic meaning over the perceived intent of Congress. Textualists argue that because laws are the product of messy legislative compromise, it is incoherent to assert that there is any single or discernable intent of a statute. Courts best respect the legislative compromise by applying a statute according to the terms and level of generality at which it was enacted. When a statute sets forth a rule (a binding directive: “no cell phone use on the sidelines”), it should be treated as a rule; when it sets forth a standard (an invitation to judicial balancing: “no cell phone use unless cell phone use is reasonable considering all the circumstances”), it should be treated as a standard.
Textualism assumes the Constitution’s separation of powers and bicameralism and presentment procedures, which are absent from the NFL, where Goodell plays both Moses and Solomon, lawgiver and judge. Yet NFL owners and players presumably request the promulgation of the League’s ‘statutes’ for a reason, namely because they expect those statutes to be followed. Further, the NFL statutes are formulated and vetted by many different individuals within the commissioner’s office, so textualism’s assumption that there is no single legislative intent could be mapped on to the NFL. Under these assumptions, textualism advises that Goodell will be most faithful to the product of the lawmaking process by adhering to statutory text. Because the NFL’s legislative process produced an inflexible rule against cell phone use, Goodell should respect the rulemaking process and adhere to the rule.
The second and related development in the law is a renewed preference for rules over standards—and hence an increased comfort with interpreting provisions like the NFL’s cell phone ban as rules, as opposed to converting them to standards. Whereas textualism is rooted in a descriptive assessment of how the legislative process works, the preference for rules over standards is a normative argument for how the corpus juris ought to look.
The standards approach has its virtues. A flexible standard allows a judge or NFL commissioner to more effectively dispense justice on a case-by-case basis, perhaps here by not fining Polamalu. Inflexible rules have a hard time accommodating those cases where applying the letter just seems wrong. This is “always a problem with trying to have a rule that applies to everybody,” Goodell conceded this week.
But in most cases, including with the NFL’s cell phone ban, the benefits of rules outweigh their costs. Rules promote equal treatment of like cases, the cardinal virtue of a just legal system. A rule ensures that all cases that fall within the ambit of the text are treated alike—for example, any player who uses a cell phone in-game is fined, whether he uses it to tweet, Google an NFL rule, or chat with his wife.
Standards, by contrast, entrust these matters to the discretion of the judge or commissioner. This leads to a series of difficult questions. If Goodell permits Polamalu’s call, must he also permit a player to phone his fiancée, or brother, or friend? What if the player suffered a leg injury rather than a concussion? What if the player texted or emailed rather than called? And so on. There is no easy way to draw a line between these different situations.
Rules are also more predictable in their application than standards, because rules comprise ex ante directives, whereas statutes rely on ex post evaluations of conduct. Thus rules better allow individuals to structure their conduct to avoid running afoul of the law: A rule clearly tells a player that he may not tweet to his brother that his leg injury is not so bad, whereas a standard can often do no better than, “tweet at your own risk.” And rules are more administrable than standards, and do not require difficult and time consuming judicial inquiries, such as into whether an injury was really severe enough to warrant a phone call home.
Finally, rules help check against arbitrary governance. As Justice Scalia has written, “Only by announcing rules do we hedge ourselves in.” AP sports columnist Tim Dahlberg complained that by fining Polamalu, Goodell was “enforcing [the law] in such an arbitrary manner.” To the contrary, the standards approach is more prone to arbitrary governance because it substantially increases the judge or commissioner’s power to enforce the law according to his liking. By binding our decision-makers, rules help ensure that government—be it America’s or the NFL’s—is “a government of laws and not of men.”
William C. Marra is a student at Harvard Law School.
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