Response Essay: Temporal Variance, Hockey, and the Wartime Constitution

Abstract:     
In "Let 'em Play: A Study in the Jurisprudence of Sport," Professor Mitch Berman explores the concept of "temporal variance," the notion that sports officials should call infractions less strictly in the last, critical moments of a close match, in order to foster the public impression that the players themselves are responsible for the final outcome of the game.

Professor Berman relies on several major sports in support of his argument, though hockey is largely absent from his discussion. It seems to me that an analysis of rules and enforcement in this particular sport reveal the wide-ranging problematics of "temporal variance," both as an expectation in professional sports and as a guide for our legal system. More specifically, "temporal variance" undermines the consistency, reliability, impartiality, and integrity of sports, and such harms would necessarily follow any effort to transport "temporal variance" beyond sports arenas to broader social spaces and the courts of law. This essay also draws parallels between "temporal variance" and the common suggestion that the Constitution's requirements are silent in times of war. An examination of these wartime arguments also calls into question the propriety of "temporal variance" in the sports or legal realm.

Professor Berman should be commended for generating greater interest in understanding the relationship between sports and the law. The practical dangers of "temporal variance" must, however, be considered. This essay is an attempt to highlight these substantive harms and continue the important conversation started by Professor Berman's thoughtful article.

Number of Pages in PDF File: 9

Keywords: temporal variance, sports, hockey, NHL, law, constitution, wartime, consistency, deterrence

Accepted Paper Series