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What Troy Polamalu Can Teach Us About the Law

11:01 AM, Oct 30, 2011 • By WILLIAM C. MARRA
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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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