Houston Sometimes we find surprising light in dark corners. At least, that’s how I felt reading a kind of weird conversation between two, seemingly random, people as an op-ed in the New York Times. It turned out this was a kind of bizarre experiment of sorts from one of their opinion writers, Charlie Warzel, and a member of their editorial board, Sarah Jeong. Ostensibly, the piece was about the fact that YouTube, in announcing that they were bouncing various videos off of their wildly popular site, owned by Google, was spectacularly unqualified to act as both judge and jury on such matters.
Who could argue? The interesting part was a remarkably clear explication by Jeong of what she called a classic lesson from law school about the difficulty in determining rules versus standards. She embarked on this riff noting that the YouTube problem with consistency and response about its new policies was the fact that they were obviously written by lawyers. Here’s her explication:
Most laws are a mix of rules and standards. Rules are rigid, and the most rigid are referred to as “bright line” rules because they’re so straightforward to interpret: If you steal a loaf of bread, your hand gets chopped off. A standard is more flexible. There are multistep tests and the weighing of various factors. First Amendment law, for instance, has a lot of standards in it. The problem with the bright-line rules is that they often lead to injustice because they’re not flexible enough. On the face of it, it seems like standards should be better, right? But standards are harder to enforce, so you’re more likely to get delays in the courts and inconsistency in decisions. So, the vaguer and more flexible a law is, the more it takes into account the totality of the circumstances, the more it’s actually likely to lead to injustice. Additionally, standards become harder to predict, so there’s a social uncertainty about what’s acceptable and what’s not. There’s a reason the most-watched Supreme Court cases involve standards.
This explanation of “legal theory,” as she called it, was interesting because we had been to a baseball game the Houston Astros, the closest Major League team we could see as our “home” team, and the Baltimore Orioles. There’s hardly a better example of a rules-and-laws bound environment than baseball. It works though because it is not only transparent, which something like YouTube is not, because everyone can see the play, but it also has a way to handle the fact that like social media, everyone has an opinion. What makes it work is not simply the fact that players and coaches participating in the game have been schooled on the rules forever, but the fact that there are umpires. Like them or not, they are the unquestioned guardians of the sport, and they make immediate decisions, and there is no question that their decisions will prevail, even if questioned later.
There is almost universal agreement that something like YouTube has to be regulated, but sport officiating might be a model worth examining in light of all of this. There would need to be referees or umpires whose decisions were respected and followed, even if there a review or appeal process. They would have to be independent and the “rules,” would have to be transparent and well-known to all participants. The op-ed folks worry about YouTube being compromised by its “influencers,” but they are still lesser stars in the firmament than sports figures making gazillions, who may get a break from time to time, but no, despite their whining like James Harden and Chris Paul, in a recent series, they still know they have to follow the rules and live by them, if they are going to play ball.
Think about it. The models available from the sports world might work a lot better than the mess we live with that comes from law schools.