Legal Formalism, Institutional Norms, and the Morality of Basketball

Virginia Sports and Entertainment Law Journal, Vol. 8, pp. 34-67, 2008

33 Pages Posted: 5 Jun 2008 Last revised: 7 Aug 2016

See all articles by Jonathan Yovel

Jonathan Yovel

NYU School of Law - Straus Institute for the Advanced Study of Law and Justice; University of Haifa - Faculty of Law; Yale Law School

Date Written: March 18, 2009

Abstract

How is basketball like law? In its dependence on rules, interpretation, the symbolic ritualization of violence, the coordination of competition, requirement of the appearance of fairness, both real-time and appellate adjudication, its public visibility and central role in the organization of collective action -- this article, cluing into a series of contemporary jurisprudential controversies, identifies a series of core normative modalities shared by law and sports as forms of institutional practice.

Using case studies from the NBA and NCAA, as well as international competition and federal cases that involved challenges to disciplinary and other rulings, it makes the critical argument that strict formalism is a mirage in understanding the normative complexities of sports -- as those of law -- and argues that the role of rules in sports can be understood only as expressions of constitutive and expressive institutional norms (in this context, those of athletic competition).

The article then organizes those according to four categories and shows how this interpretation of the internal normativity of sports is superior to other positions prevalent in scholarship, the media, and public opinion. This framework also shows that a series of previous decisions by courts as well as NBA governing bodies have failed to realize the relation between sport as a rule-governed practice and its broader normative appeal and commitment (critique includes decisions in the case of the Suns-Spurs 2007, Knicks 1997, Kings-Lakers 2003 and others).

Keywords: Law and Sports, Interpretation, Courts, NBA, Sportsmanship, Economic analysis of sports law, Social analysis of sports law, Legal Formalism, Norms, Institutional norms

JEL Classification: K10, K12, K19, K22, K30, K39

Suggested Citation

Yovel, Jonathan, Legal Formalism, Institutional Norms, and the Morality of Basketball (March 18, 2009). Virginia Sports and Entertainment Law Journal, Vol. 8, pp. 34-67, 2008. Available at SSRN: https://ssrn.com/abstract=1140734

Jonathan Yovel (Contact Author)

NYU School of Law - Straus Institute for the Advanced Study of Law and Justice ( email )

New York
United States

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905
Israel

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203.435.5911 (Phone)

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