Goddamn you, @Kenny F'ing Powers
. I’m sure you know perfectly well that if I haven’t posted in this thread it’s because I’ve studiously avoiding the ick and the evil of this shit. But noooooo…
Fine. Here’s your treat:
There is an extensive literature on judicial decision making (in and out of court, including legalistic and quasi-legalistic regimes) that shows that judges (like, judges - judges but also people in general in repeat play juridical roles) make decisions strategically. And judges have admitted as such.
What that means is that a judge doesn’t necessarily choose the outcome of their own absolute preference, but the outcome closest to it that actually occur, that will stick. Which is to say: Make a decision that will have enough support from the other actors required for the decision to stand. This could mean moderating an opinion on a multi-person bench to gain enough votes to make it binding, or optimizing it so that the judge gets as much as they want without it being superseded by a legislature (i.e. if it’s too extreme, a majority of the legislature just passes a law to get by it, whereas a more moderate decision doesn’t get that majority, so it stands), or optimizing it so an actor or actors with appellate authority won’t overturn it.
This makes intuitive sense: Judges want their decisions to stand, both to get outcomes—and future outcomes—that they find proper or desirable, and also to reinforce their legitimacy in the system which being overturned all the time would erode. This in no way means that they necessarily ignore the law or the rules, but rather that they behave strategically within the system in pursuing what they think is right and proper.
Viewed through this lens, we would expect Judge Robinson to choose an outcome within the range of outcomes that she finds acceptable, but that she also would anticipate as being acceptable to the other parties that could overrule and / or subvert it. In this vein, there’s no real point in making a decision that would be overturned by Goodell or which she thinks would be overturned by the courts should Watson file suit against it, except to “make a statement,” and judges are almost genetically predisposed against doing that except in the most extreme of circumstances (I learned that experiences can change your genes from anti-vaxers and Spider-Man.) and by which I mean usually not even extreme circumstances of facts but of thoroughly unjust processes or abuse thereof.
Which, if course, is what #deflategate was really about
. The parties involved weren’t playing for justice, they were playing for rules, i.e. what would the rules for future plays of the game be? Which is why factual truth was functionally incidental to the whole thing. And the NFL won on them having final say, which is what they wanted. And if the NFLPA wanted that changed, they’d have to pay for it in concessions in the new CBA. Which they did, but the NFL ate the NFLPA’s lunch again
on this, as the NFLPA got a neutral arbiter instead of some league stooge, so that looks
like it would be better, but, given strategic decision making on the part of people in juridical roles, it’s only marginally better, because the decision making will still occur in the strategic context of which other actors in the system can overrule the decision.
In this case, that context is 1) Goodell’s ability to choose whatever the fuck he wants (though obviously “image” and “optics” would / could be a factor); and 2) Watson’s ability to sue.
So let’s posit that Judge Watson would want a harsh sentence. If it’s harsher than Goodell will accept, then it’s overturned and she has accomplished nothing and looks like a tool or impotent or whatever. If Goodell doesn’t overturn and Watson sues… well, I’m not doing the research for that, but Robinson probably has some good idea of possible outcomes; those outcomes, though, while normally should hinge on process considerations, because one of those process considerations here is the disparate treatment of such (alleged) offenses as the Houston Dickheads have faced, then substantive outcomes becomes a consideration for the courts, which becomes the structure for Robinson’s decision making.
So while Judge Robinson is the “neutral decision-maker” that the NFLPA bargained for, even though she has the gravitas of a judge, the reality of judicial decision making is such that that decision making is constrained within a system the dominant consideration of which is the Commissioner having final say.
As such, in cases where the League’s Interests and Justice might be what we mortals perceive to be at logger-heads, strategically speaking within the operational constraints of the juridical regime, the ability of the neutral decision-maker—even operating under the assumption that they are, in fact, neutral—to effect justice, be it harshness or leniency, is functionally capped by the expectations of what the decision-maker thinks will be acceptable to the arbiter of final say, which in this case would be Goodell.
Therefore, under the new regime established by the 2020 CBA, if we were to assume that Robinson thinks that the outcome should be harsh but believes that Goodell doesn’t want it to be, strategically, it makes sense for her to choose the harshest outcome that would not be overturned by Goodell and not challenged by Watson in Court.
So the decision-maker here is likely only to choose an outcome within the “plausibility structure” of what would be acceptable to the other actors, though she might well choose an outcome as far to the extreme as would be accepted by them… unless she wants to make a stink, which judges rarely do.
So the new CBA makes a difference in that it doesn’t have an actual NFL toadie making the initial decisions, but an understanding of how such legal(istic) regimes, as the one established by the CBA, work, it’s not as different as it might seem in terms of serving the intersts of The League
from the previous regime, except now they have a bona fide
judge to give the system the imprimatur of legitimacy.
So yeah, the system is still bullshit and if I had to bet, we’ll see so soon, though I will be more than pleased to be surprised. Are you fucking happy now, @Kenny F'ing Powers
? I feel gross now. I guess I needed to shower before heading to PT anyway…