Political Football Application vs Appropriation of the Law


James Madison in Federalist 10 defines faction “as a number of people amounting to a majority or minority of the whole who are united by a common passion or emotion that is adverse to the rights of other citizens or to the aggregate interests of the community” There is almost nowhere one goes in these times that fierce political debate is not the order of the day. With that in mind, I set out two weeks ago to find a model to study faction that was not grounded in politics.

I found it by studying college football fans who certainly meet Madison’s definition of faction. Madison also stated that “the most frivolous of causes can move men to faction”. Did Madison foresee college football game days? Talk about prescience and human nature never changing!

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I set up a study where I divided fans based on the teams they were rooting for. We used two games Ohio State/ Michigan and Army/ Navy. Faction is only one of the words used to describe these fans. Raved is another. They describe each other using a whole different vernacular. In each game, we went to a bar and divided fans into two groups of twelve people each.

We then asked the fans to judge the 1st 12 disputed calls in each game and each call had to have a replay available to discuss. What would be reviewed at the time of the call and then in the fan out brief after the game. Most of the calls were pass interference, spotting the ball for a 1st down or touchdown, or offensive or defensive holding.

People who don’t follow football should know that even the experts, coaches, referees and the players themselves cannot agree what the definitions that support and define any of these calls really means. This would be analogous to legal definitions of “Obstruction of Congress” or “Abuse of Power”. Or what about “Quid Pro Quo”? Try asking three legal academics what “high crimes and misdemeanors” mean. “It depends on what is — is”? Means?

The results of our study was interesting. About 90% of the time fans supported a referee’s decision in favor of their own team at the time of the call. During the out briefs these numbers changed significantly, but only on the evaluations of the fans whose teams won the game. For example, if Navy won the game the Navy fans would change their position on the call almost 50% of the time at the out brief, but the Army “faction” that lost the game never changed their position on a controversial call that was detrimental to their team. Kind of like the winning attorney giving a judge a good review but the losing side feeling that the trial wasn’t “fair “whatever fair is. The reasons for this could be many but let me just suggest a couple Army fans are stubborn. Army fans drink too much and can’t remember how they 1st voted the 1st time they saw the penalty called. Army fans themselves are prone to faction—just kidding.

So how can this inform us about our irrational politics of today? Everyone is familiar with the words in our Declaration of Independence “that all men are created equal and they are endowed by their creator with certain inalienable rights”, but few remember the next line about “the consent of the governed”.

At the center of our political debate today is the same process that occurs at a bar between different team’s factions. The end result of the appropriation of a rule of law or a legal text that justifies its’ own means results in a process that legal scholars on the left have stressed gives meaning to any legal text or law that is not imminent or is inherent in the text. Changes over space and time and the life experience of the interpreter is what determines meaning. This is “appropriation” of legal meaning and not “application” of the law.

This is how lawyers make a living by arguing meaning from their own “modern” point of view. The extreme argument, in this case, would completely do away with precedent and “stare decisis”. It turns legal arguments “before the bar” into the same arguments between Army and Navy factions—that are arguments at the bar.

Appropriation and application of the law or the rules of the game are very different processes Appropriation is diaphanous and is less subject to constraint and consistency. By “CONSENTING” to a process of application, standardization and consistency are more likely to be the end result isn’t that what the guys “before the bar” want—or is that at the bar? Too many games this month. Go Buckeyes! Go Navy! By the way, could you believe the blown pass interference call at the end of the 3rd Qtr. of the Ohio State game?

Disclosure: The data reviewed in this paper was not “peered reviewed”. It was retrospective. There were no “Test groups”. There were no previous studies that would enable any “meta-analysis”. It has not been considered for publication by a reputable scientific journal. Basically it was all made up.

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