Tuesday, January 20, 2015

A Sports Reminder From Jay Bilas About Human Nature in Law and Regulation

I was watching the Michigan State-Iowa basketball game a couple weeks ago, and commentator Jay Bilas noted his view (which he has stated previously) that the lane violation rule is wrong. I am teaching Sports Law and an Energy Law Seminar this semester, so (naturally) I linked his comments to a broader framework. 

So start, here's the current rule.  Basketball for dummies explains

Lane violation: This rule applies to both offense and defense. When a player attempts a free throw, none of the players lined up along the free throw lane may enter the lane until the ball leaves the shooter's hands. If a defensive player jumps into the lane early, the shooter receives another shot if his shot misses. An offensive player entering the lane too early nullifies the shot if it is made.

Bilas argues that a defensive lane violation should result in the ball being awarded to shooter's team instead of another attempt at the free throw for the shooter.  His rationale is, "The advantage to be gained going in early is on the rebound, not the shot. Give the ball to the non-violating team." This is probably right, though a player might enter the lane early to distract the shooter, too.  I suppose one could award a reshot for a lane violation if the ball is not live (e.g., the violation occurs on the first freethrow of a two-shot foul), and award the ball to the shooter's team on a missed live ball.  

I think there is some merit to Bilas's argument, but I think there's a practical reason the rule remains as it is: the penalty is not too harsh, making it something referees are willing to call.  A favorite quote of mine comes from Ben Franklin, who once warned, "Laws too gentle are seldom obeyed; too severe, seldom executed."   

Here, I think Bilas is probably right on the penalty-incentive link, but the rule he proposes may prove too severe for lane violations to be called as willingly as they are today.  In addition, practically speaking, if the shooter makes the free throw anyway, the shooter's team would still need to get the ball after a lane violation, if the punishment is really about discincentivizing cheating for a rebound.  This could be the rule, and it might be right, too, but that would make the penalty even more severe, making referees even less likely to make the call. (You could, I suppose, give the shooter's team a choice -- the the point or the ball -- but that gets messy.)  

I used the Ben Franklin quote in my article from a few years back, Choosing a Better Path: The Misguided Appeal of Increased Criminal Liability after Deepwater Horizon, which was  published in the William & Mary Environmental Law and Policy Review (available here). In the article, I argued that increased criminal liability for energy company employees was not likely to be any more effective in preventing disasters like the blowout of BP oil well in the Gulf of Mexico because the likelihood of actually sending people to jail is highly unlikely.

I still believe this is true in a many contexts.  It's not to say we should not have harsh penalties for certain behaviors, but we need to be sure the laws or rules are more than justifiable.  We also need to be sure they will be executed in a manner that the laws or rules serve the actual purpose for which they were designed.  

To be clear, we also need to be sure that the penalties are not so gentle that no one will follow the rule.  In the energy and business sector, I am of the mind that we regularly err on both sides -- some rules are too gentle and others too severe.  Sports can be that way, too, though we often don't even know the penalty for certain acts like, say, allegedly deflating a few footballs.  

As for lane violations, though, I think the rule has the balance right, even if there is a justification for a harsher rule.  

https://lawprofessors.typepad.com/business_law/2015/01/a-sports-reminder-from-jay-bilas-about-human-nature-in-law-and-regulation.html

Joshua P. Fershee, Securities Regulation, Sports | Permalink

Comments

Nice observations here, Josh. One could easily map your ideas to other constructs to broaden and deepen the analysis. For example, as I read your post, I kept thinking about which policy interest or theory of punishment the rule-makers were operating under. The analysis you provide responds to questions that apply in other rule-based contexts. Did the rule-makers mean to compensate the wronged team for something it lost, or punish the wrongfully acting team? And if they had a punitive objective, did the rule-makers desire to deter specifically or generally, exact retribution, . . . . Well, you know what I mean.

All of this illustrates the principle that systems of rules have a lot in common--an observation made by oh-so-many over oh-so-many years. Sorry for making it again. But your post does a nice job of pointing out relevant issues.

Can I take your class? :>)

Posted by: joanheminway | Jan 20, 2015 11:17:22 AM

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