I’ve been reading a series of posts titled “Let ‘em Play” by guest-blogger Mitch Berman at The Volokh Conspiracy. Professor Berman starts with a general proposal that we can examine the rules-regimes within sports to enhance our discussion and understanding of society’s legal frameworks. In this series he specifically considers the practice of calling fouls less rigidly at certain critical times of the contest–such as the closing minutes of the basketball game–a phenomenon Berman labels “temporal variance.” He suggests two rationale for temporal variance: 1) the relative impact of a penalty is contextual, and the imposition of some penalties (say, free throws) for some infractions (a “touch” foul) at some times (the last few seconds of a tied game) can be out of proportion with the overarching goal of the rules regime (an aesthetically compelling athletic contest); and 2) ignoring some enforcement opportunities can bring out a truer showing of the core athletic standard of the sport.

I can’t agree with all of Berman’s conclusions. For example, his blog posts did not differentiate the utterly distinct moral implications of rules enforcement criteria in a game versus in life–you can always walk away from a crooked game, but you should not be required to re-locate to a society that will fairly apply its laws to you; a citizen has a moral right to equal protection and due process, a power forward does not. The ultimate stakeholders in a sport are the spectators, but in society, the interests of the “players” are paramount.

But even with my brief digression, above, you can hopefully see the advantage of Berman’s approach, even as a differential comparison of sport and society. One of his stated motives stood out for me above the rest (perhaps especially now, as we wait to see if Washington can overcome politics to find a solution to the debt ceiling crisis). Wrote Berman, “

[O]ur judgments and intuitions about certain practices–such as, to take the present topic, the propriety of context-variant enforcement of rules–are less likely in the sports courts than in the courts of law to be colored or tainted by possibly distracting substantive value commitments and preferences.”

Amen, Brother Berman.