Here’s the problem: once they have seen The Clone Wars, how do I avoid showing my children Episodes I-III? As a child, I loved the first three movies (Episodes IV-VI). Even now, I still enjoy watching them, and over the last six months, my two oldest children have become huge fans of them as well. But I have strenuously avoided showing them I-III, on the [...]]]> Soon, the new Star Wars movie, The Clone Wars will be out. (If you want to count down the time, join my children and watch the seconds pass by in breathless anticipation here.) There is little doubt that I will soon find myself in a theater with at least my two oldest children seeing the film.

Here’s the problem: once they have seen The Clone Wars, how do I avoid showing my children Episodes I-III? As a child, I loved the first three movies (Episodes IV-VI). Even now, I still enjoy watching them, and over the last six months, my two oldest children have become huge fans of them as well. But I have strenuously avoided showing them I-III, on the ground that they range from mediocre (at best) to awful. (As an aside, I saw Episode II with Dan, and I think it may have been the worst cinematic experiences of both of our lives.) Unfortunately, my understanding is that The Clone Wars is set between Episodes II & III, so they will have an even better case for their “need” to see the other Episodes. (They already have a good idea of what happens in these films, through books and friends.) And, to be honest, I suspect that they would actually like Episodes I-III, much for the same reasons that they love those Ewoks in Episode VI. George Lucas at least certainly still knows how to please his target demographic.

The question I have been struggling with is whether, after The Clone Wars, I should still refuse to show them Episodes I-III. Remember, my objection is artistic. They already know Anakin turns evil, etc., and frankly the incomprehensibility of the rest of the plot won’t bother them. Plus, while no doubt the violence should bother me, that’s a battle my wife and I lost long ago in this particular case. So should I show them these episodes, or am I right to shield them from what I deem to be a cinematic disaster?

At the Volokh Conspiracy, over the weekend they were talking about the origins of the Judge-Umpire analogy famously raised by now-Chief Justice Roberts in his confirmation hearings. Roberts, of course, was trying to suggest that he was just a neutral arbiter, applying the rules as best he could. Many people understandably found this analogy to be simplistic, or silly, but Ilya Somin rightly notes that “umpring is more complex than some detractors of the metaphor realize.”

But after watching last night’s first preseason NFL game, I would go further than Somin: not only do I think that umpring and judging are a lot alike, but I think [...]]]> Or at least, I have more faith in their neutrality than I do in the neutrality of judges.

At the Volokh Conspiracy, over the weekend they were talking about the origins of the Judge-Umpire analogy famously raised by now-Chief Justice Roberts in his confirmation hearings. Roberts, of course, was trying to suggest that he was just a neutral arbiter, applying the rules as best he could. Many people understandably found this analogy to be simplistic, or silly, but Ilya Somin rightly notes that “umpring is more complex than some detractors of the metaphor realize.”

But after watching last night’s first preseason NFL game, I would go further than Somin: not only do I think that umpring and judging are a lot alike, but I think that these some of these similarities are in areas that do not refelct well on either judges or umpires, and that, when you compare NFL officials and judges, you have a lot more reason to trust the competence of NFL officials than those of judges. And that’s mainly because (unlike Somin) I think judges and umpires have similar incentives and that the incentives of NFL officials are better.

First, as Solmin suggests, judges and sports officials all have a great deal of discretion and in many contexts both routinely ignore the “letter of the law.” In addtiion to the examples he gives, it is routine for baseball umpries to ignore the “phantom double play” (also sometimes referred to as the neighborhood play): this is when second basemen and shortstops fail to touch second base when turning a double play, at least if they could have done so. (Where the throw to the player draws him off the bag, umpires will enforce the rule; here’s a Sports Illustrated article from 1981 discussing a numer of “cheats” in baseball). More subtly, exactly the same thing often happens with first basemen who pull their leg early: again, unless the throw has been the cause, umpires always ignore it. I am sure that each reader can come up with their own examples of how judges do exactly the same thing. When it comes to baseball, and judging for that matter, I actually think this can be a good thing. But I do not think that Chief Justice Roberts had this similarity in mind (and I very much doubt his supporters did).

Second, judges and umpires (or really, any set of sports officials) alter their behavior based on who is watching and reviewing them. The most glaring example of this in baseball has been the change in strike zones called by major league officials at the major league level as the result of the QuesTec system. When umpires knew that they were being evaluated on how well they called the rule book definition of a strike, they appeared to conform their behavior to the rule book, in particular we have seen a decline in pitches off the outside corner being called strikes.

More subtly, umpires’ calls of tag plays (and probably referees calls of block/charges in basketball) have almost certainly been changed by the availability of replay. It used to be the case that the ‘recieved widom’ was that if the ball beat the runner to the base on a steal, the runner was out, even if the tag was not made (so long as the failure to tag was not too obvious): from the perspective of the umpire, calling the runner safe would generate an argument where the umpire would have to explain why the runner is safe, whereas the only person in a position to complain about an out call was the runner, whose perspective everyone knew was biased. Replay, though, means that an out call here does lead to an argument, so the umprire has more incentive to get it right. Perhaps it is just my particular (and limited) experience, but I think judges behavior can vary tremendously based on the likelihoods that their decisions will be reviewed, either by the public or by higher courts.

Third, politics play a big role in who gets to officiate in any sport, just as it does with judges. Of course, the officials working in major sports leagues are very skilled; they could not survive if they were not. But that does not mean they are the best of the best: having the right connections can play a big role in who makes it to the majors in baseball and to the NBA, and who does not. Is it really a coincidence that Harry Wendelstedt’s son is a MLB umpire, that Brian Runge’s father and grandfather were major league umpires or that the Welke brothers are? Putting aside the problems with elected judges, even in a system of appointed judges (like the federal system), politics matters a lot in determining who gets to be a judge. This plays out at every level of the federal judiciary. Of course, I am not suggesting that federal judges are bad as a result; I am just dubious that the the importance of politics in appointment makes them better than they would be in a world where politics played a smaller role.

Fourth, officials in collegiate sports, no doubt like judges in some places, are often more connected to one of the teams (or parties) than the other. We are all used to major league sports officials, who are employed by the league, not the schools, and therefore have no facially apparent bias toward one team or the other. At the college level, though, that is often not the case. Officials are usually employees of a particular conference, not the NCAA, so in any game between teams in different conferences, there is the possibility of the officials favoring the team from their conference (this is somewhat lesslikely in Division I basketball, where many of the officials work for multiple conferences). This has presented a problem at times in college football (for instance, the controversy over the 2006 Oklahoma-Oregon game) and similarly, we see the connections between judges and the parties having worrisome effects, most notably in West Virginia. I don’t even need to get into the some of the issues with NBA referees and players that have come out as a result of the recent Tim Donaghy scandal. Back when major league baseball umpires worked for only one league, baseball tried to account for this with balanced umpiring crews for the World Series.

Indeed, for many sports, it is actually worse than this, and I think worse for judges as well. That is because for non-revenue sports at the collegiate level, the officials are generally local ones. At least back in the early 90s (the time period I have the most information about), college baseball officials were “conference” employees in name only in the Pac-10 and other western conferences (I am pretty sure this was true elsewhere and that it was true for other non-revenue sports, but would be happy to be corrected). That was because the officials did not travel outside of their geographic region. So, for instance, umpries based in Los Angeles worked only USC and UCLA home games. Because the local teams were repeat players, and the evaluations of the local teams made the biggest difference to their future assignments, these officials had a large incentive to keep those teams happy. At a minimum, the repeat-player aspect of these interactions had to have a subconscious effect on the umpires. I have little doubt that judges are similarly influenced by exactly the same sort of repeat player problem, at least in some places.

My motivation for the title of the post is that I think NFL officials are actually better than judges on a number of these scores. For instance, NFL officials do not have the repeat-player problem. Furthermore, NFL officials are graded on all their calls, from every game, ensuring that the same calls are being made in all situations (and these days, they have to contend with the possibility of instant replay review on every call). And unlike federal judges and (to a certain extent) major league umpires, NFL officials are subject to the real possibility of termination for poor performance, something that cannot happen to Article III judges and rarely happens with major league umpires. As this LA Times article notes, between 2004 and 2007, there was actually more new Supreme Court justices than new (full-time, I assume) major league baseball umpires. In the NFL, on the other hand, turnover is more common. Because being a NFL official is so relentlessly competitive, the result is that (I think) NFL officials are more likely to get the call right than your typical judge (or umpire).

None of this meant to suggest that I think that judges are bad at what they do, or that they are corrupt. Nor am I unaware that NFL officials make mistakes; of course they do, and sometimes those mistakes are just plain dumb. What I am suggesting, though, is that when we compare NFL officials and federal judges, we have some reasons to suspect that NFL officials are likely to perform their jobs better than federal judges do.

I thought I would start my blogging career by talking about something I at least now a little about: jury instructions and how they relate to the way in which juries actually evaluate [...]]]> First, I would like to thank Dan Solove and his co-bloggers for inviting me to visit. I’ve been slow getting started. Blogging, at least for me it appears, seems to be a bit like my scholarship: it tends to go to the bottom of the list of things to do when administrative tasks pop-up. As an Associate Dean, I’ve actually found that the summers in many ways can be busier than much of the rest of the year, much to my disappointment, which explains why I have been initially silent.

I thought I would start my blogging career by talking about something I at least now a little about: jury instructions and how they relate to the way in which juries actually evaluate the infomration in front of them. The New Jersey Supreme Court last week decided State v. Ingram, a fascinating (well, at least to me) case about jury instructions. The intermediate court of appeals had reversed Ingram’s conviction for First-Degree Felony Murder and other related crimes on the ground that the trial court had erroneously instructed the jury as to the relationship between the mens rea required for accomplice liability and lesser-included offenses. The Supreme Court overturned this decision, but nonetheless affirmed the reversal of the conviction on the ground that the trial court had erroneoulsy given a “flight” instruction. It turns out that Ingram had shown up for a status conference two days before jury selection, but did not show up again. At the status conference, Ingram had learned for the first time that one of his co-defendants had pled guilty and would testify against him at trial.

The decision is interesting to me for two inter-related reasons. First, it is by no means clear to me that the instruction actually used really added anything to what the jury would have assumed anyway; in other words, real jurors were likely to draw exactly the inference that the supposedly erroneous instruction told them they could draw. Second, even if the instruction had some impact, I am not sure that it made a big difference in the outcome (although I think this point is more contestable). I’ll explain both of these points after the jump.

As to the instruction itself, here is what the trial court said: “Now, with respect to [defendant], the State alleges that [he] purposely failed to appear at this trial in order to avoid conviction. The question of whether [defendant] purposely failed to appear at this trial in order to avoid conviction is another question of fact for you to determine. You should understand that mere absence from a trial doesn’t in and of itself establish that the defendant purposely failed to appear in order to avoid conviction. If you find that the defendant, fearing that he would be convicted of the charges contained in the indictment, purposely failed to appear at this trial, then you may consider whether his failure to appear together with all the other evidence in this case is an indication or any proof of his consciousness of guilt. But keep in mind that failure to appear may only be considered as evidence of consciousness of guilt if you determine that the defendant’s purpose in failing to appear was to avoid conviction for the offenses charged in the indictment and not for any other purpose. It is for you to decide whether or not the evidence of failure to appear shows a consciousness of guilt and the weight to be given to such evidence in light of all the other evidence in the case.” (As an aside, the prosecutor also argued this point to the jury. But I do not think the prosecutorial argument is in any way critical, because I think that the argument would have been fine if the instruction had been fine.)

The New Jersey Supreme Court found that this was error, because there was no evidence, beyond Ingram’s mere absence, that his absence was prompted by consciousness of guilt. That sounds good, except that the instruction does not require the jury to find that he had fled out of consciousness of guilt, just that they could do so if they thought they facts demonstrated this. What the New Jersey Supreme Court was really saying, of course, is that mere absence is never enough from which to infer flight out of consciousness of guilt: indeed, the court explcitly says that Ingram’s absence, without other evidence, “is probative of little.”

Here’s the rub with that assertion, though. Well before the jury instructions, indeed right at the beginning of the trial, the jury had sent the judge a note asking where Ingram was. At that point in time, the judge instructed the jury that they should ignore Ingram’s absence. But in reality, how likely is that? The jury knew Ingram was not there, and the members of the jury (or anyone else, for that matter), I think, could really only draw one of three conclusions: (a) Ingram had fled out of consciousness of guilt (or at least consciousness that he was likely to be convicted); (b) he was absent because of some sort of emergency (say medical or family) or (c) he was waiving his right to appear for reasons that had nothing to do with his guilt or innocence (perhaps he was protesting perceived injustices). If the jury members gave it any thought, (b) is pretty unlikely, because if that was the case, the jury would reasonable (and correctly) assume that the trial would have been delayed so Ingram could attend. That just leaves (a)& (c), and there does not appear to have been a suggestion that there was any reason to suspect Ingram was merely waiving his right to appear. Thus, the jury on its own was likely to draw conclusion (a), and the instruction (and related prosecutorial argument) only served to confirm what they would have assumed. What’s more, it seems that their conculsion was correct and that his absence was likely to be at least more likely than not to point toward his guilt.

The problem, I think, is that the New Jersey Supreme Court has too cramped a vision of what information is before the jury at the trial. (This is a point that Ron Allen (Northwestern), among others, has been most vigorous in arguing in recent years.) The jury members all come in with their knowledge about the world and their own ways of processing information that is presented to them. The information presented by jury instructions (and even by formal testimony) may only be a minor part of the total amount of information the jury is using to decide a case. Here, Ingram’s absence in court was information that the jury had, and they were likely to process that information in a way that was adverse to Ingram, regardless of what the trial court said. By focusing too narrowly on the jury instruction, the New Jersey Supreme Court has an artificially narrow view of what is going on at the trial.

Even if you think that the jury instruction (and related prosecutorial argument) did effect the jury in a way that was adverse to Ingram, and that drawing an adverse inference to Ingram was unjustified, there still is the problem of whether the instruction changed the result. The Supreme Court points to the fact that another co-defendant of Ingram (Moore) did appear at trial and was acquitted, despite the fact that there was evidence that Moore was more intimately involved in the crime than Ingram. That’s true, except on the face of the opinion there is one big difference between Ingram and Moore: Ingram had confessed to the police his involvement (although he denied knowing that there was going to be a robbery or a homicide) and Moore did not; I could be wrong about this, but there is nothing I see in the opinion indicating Moore had confessed. Ingram’s admission of invlovement in the crime (along with the mere fact of his absence) it seems to me is a much more likely source of his conviction than the instruction to the jury or the prosecutor’s argument. What Ingram gets is a complete do-over on the trial, even though he is the one who decided to flee. It strikes me that this is a bit of an odd result.