Jan 7 2020

MA Appellate Practice and Procedure Bulletin January 2020

The Disagreeable and the Law: “Pulling the Goalie”

Author, journalist and public speaker extraordinaire, Malcolm Gladwell, in a recent Revisionist History podcast entitled “the Rules of Life,” talks of life rule number one: “Pulling the Goalie.” Indeed, we find out, it is the only rule. Gladwell, of course, was referring to the traditional practice in hockey to take the goaltender off the ice for an extra skater when losing and where there is only a few minutes or seconds left in the game. The intent is to create a better chance of scoring a goal. To do so at any other time is unheard of and unpopular.  Gladwell, drawing upon a rather obscure research paper found on the Social Science Research Network SSRN,[1] a website devoted to scholarly research that Gladwell refers to as “nerd Google,” goes on to explain that if the purpose is to try to win the game statistically and through mathematical modeling teams should pull the goalie much earlier than in the waning seconds or minutes left. The numbers, in fact, say 6 minutes and 11 seconds to be precise and if trailing by one goal. If trailing by more than one goal, statistics, data and modeling dictate that it would be even sooner than that. But no one does it and it is the reasoning or justification for not doing so that is so intriguing to Gladwell.

While Gladwell’s analysis is more nuanced, the message includes the recognition that “people blame you if you try something new and it goes wrong and they don’t blame you if you rely on conventional wisdom and it goes wrong.” Losing 2-1 even though you pulled the goalie in the waning seconds or minutes is perceived as justified and reasonable while pulling the goalie with 6 or more minutes left and losing 4-1 is deemed questionable; bad coaching and ruining a good or interesting game. Since coaches are rewarded for being perceived as good coaches, they make decisions serving that goal rather than doing everything they can to win.

Reduced to essentials, it is proffered that anyone who cares too much about the view and opinions of others will make decisions and judgments that are most likely to lead to being perceived as doing the “expected” thing which may well be divorced from doing what is the “right” thing. There is the strong tendency to minimize our chances of being blamed then maximize our chances of success. It is suggested that society makes it harder and harder to be disagreeable; to make judgments and decisions without concern for the approval of others. According to Gladwell, being disagreeable is not a temperament it is a choice. He, at once, recognizes that it is a trait that resides across a spectrum in that “if you don’t care one iota what your peers think of you, you are essentially a sociopath” and yet it can also be “a precondition for doing things that are extraordinary.”

In the profession of law including appellate practice and decision-making one may question whether being “disagreeable” and “pulling the goalie” has any true place. After all, the law is steeped in established procedure and process as well as such important and venerable principles as stare decisis and the separation of powers.  The importance of clarity, collegiality and consensus in appellate decision making, in turn, also would seem to militate against any appreciable application of Gladwell’s “disagreeable.”

To be sure, I may be forcing the issue but it seems that there has always been a place for the disagreeable and “pulling the goalie” in law and legal reasoning. The “Brandeis Brief”[2] comes to mind and certainly the dissenting opinion which, while more scarce in recent times, is by definition “disagreeable.” A dissent, when deliberate and thoughtful, serves important purposes such as enhancing transparency, re-affirming the independence of the judiciary and its members and particularly the dissenting judges’ individual dignity and conscience. A dissent both challenges and enhances the majority opinion as it sets out a view with which the majority must address. It fuels public thought and potential debate and otherwise bucks the inherent and felt pressure to conform and is certainly the exception among the compelling forces of clarity and consensus. In no uncertain terms, the dissenting opinion is a version of Gladwell’s disagreeable; the pulling of the goalie.

This notion of “the disagreeable” and “pulling the goalie” may, in turn, not be limited to dissents but be an inherent attribute in judicial decision making in general. Indeed, even absent outright dissent, collegiality demands that appellate judges challenge each other’s views without reservation. Fundamentally, it also arises anytime an appellate court must do the unpopular or contrary to the “home crowd”[3] sentiment including having to either depart from or honor precedent in hard cases or, in other cases, involving conflicting policy, defer to the elected legislature despite what might be a seemingly grievous injustice or shortcoming.  It may well be as well that some of the more seminal appellate decisions, upon examination and in context of time, will be found to have at least a tincture of disagreeableness in its bones.

In the end, judging requires independence, fidelity to the law and legal reasoning, and the sanctity and uniqueness of every person, individual case and specific facts that comprise the dispute before the court. If judicial decision making is confined and dictated by the specific facts of the particular dispute and the application of the applicable law to those facts; is open and transparent to the parties and the public; is made with the firm understanding and acceptance of the limits of judicial authority and the sanctity of the separation of powers; and, as such, rendered uninfluenced by the perceived views or approval of others, then there has been a timely and necessary “pulling of the goalie.”  
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[1]  Clifford S. Asness & Aaron Brown, Pulling the Goalie: Hockey and Investment Decisions, SSRN (October 1, 2018).

[2]  The Brandeis Brief was submitted to the Supreme Court in 1907 and is regarded as the first in United States legal history to rely more on a compilation of scientific information and social science than on legal citations.See Muller v. Oregon, 208 U.S. 412 (1908)(involved the constitutionality of limiting hours for female laundry workers).

[3]   Edward F. Hennessey, Excellent Judges at 21 (Flaschner Judicial Institute 1997)(referencing 1980 speech by Chief Justice Rehnquist-a good judge “must strive constantly to do what is legally right, all the more so when the result is not the one that Congress, the president, or the home crowd wants”).

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