Four Types of Supreme Court Punts

(1) Run out the clock, (2) improve field position, (3) special team forces a turnover, and (4) the fake punt.

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Very often a Supreme Court decision–especially from the shadow docket–is described as a "punt." I hesitate to use this phrase for popular press, because not everyone knows what a "punt" is. Law professors should try to avoid sports analogies–many students simply do not follow sports. Indeed, even people who are generally familiar with the "punt" from American football may not be familiar with why and how a punt is used. And the connection between a football punt and a Supreme Court punt is not always clear. Here, I will explain the punt for a person unfamiliar with sports. And I will break down Supreme Court punts into four categories: (1) run out the clock, (2) improve field position, (3) special team forces a turnover, and (4) the fake punt.

Let's start by describing the punt. Assume there is a football game between the Giants and Cowboys. At any given point during a game, a team can be on offense or on defense. When the Giants are on offense, the Cowboys are on defense. And when the Cowboys are on offense, the Giants are on defense. Our hypothetical game begins with the Giants on offense. An American football field is 100 yards in length. The Giants will try to advance the ball from one side of the field to the other. They can do so by throwing or running with the ball. (The specifics of how to throw or run are not important for this hypothetical). And the Cowboys, when on defense, will try to prevent the Giants from throwing or running the ball forward.

Teams have four tries, or downs to advance the ball ten yards. If the Giants can move the ball ten yards, the offensive unit will receive a new set of four downs. If the Giants can cover all 100 yards on the field, the offensive unit will score a touchdown, worth six points. Each end of the field is known as an end zone. But what happens if the Giants cannot move the ball ten yards after four downs? For example, what happens if the Giants' drive stalls at the ten-yard line? At that point, the Giants lose possession of the ball. The Cowboys will go on offense, and begin at the Giants' ten-yard line. And the Giants will play defense to prevent the Cowboys from advancing the ball. Now, the Cowboys will only have to move the ball ten yards to score a touchdown.

On fourth down, it is often very risky to pass the ball, or run with the ball. Instead, offensive units will usually try to execute one of two types of kicks. The first type of kick is known as a field goal attempt. Here, a kicker will try to kick the ball through a goal post. This U-shaped structure is located in both end zones at both ends of the 100-yard field. Kickers who can successfully kick the ball through the goal post will be rewarded with three points. If the kicker misses the goal, then the other team takes over on offense. The best professional kickers can make a field goal as long as sixty yards. In our hypothetical game, it would be impossible for the Giants kicker to kick a field goal from the ten-yard line. Instead, the Giants would choose the second type of kick, and the subject of this post: a punt.

With a punt, the kicker (known as the punter) kicks the ball towards the opposite end of the field. Usually, teams will punt on fourth down to avoid losing field position. In our hypothetical game, the Giants would probably punt the ball on fourth down from the ten-yard line. Let's say the Giants punter is able to kick the ball forty yards, so that the ball lands on the fifty-yard line. Then, the Cowboys offensive unit would receive the ball on the fifty-yard line. And, the Cowboys have to advance the ball fifty yards in order to score a touchdown.

Why would the Giants sacrifice with a punt on fourth down? Why not try to throw or run with the ball on fourth down? Perhaps on fourth down, the Giants could have gotten lucky, and picked up ten yards. Or the Giants could have thrown a long touchdown pass. A punt is a strategic move. The Giants made a calculation: the Cowboys are much less likely to score on a drive that begins at the fifty-yard line, than on a drive that begins on the ten-yard line. The Giants would rather sacrifice the benefit of a first down, to negate the risk of giving up a touchdown. For example, if the Giants have a very strong defensive unit, the Giants coach may be comfortable with this tradeoff. But what if the Giants have a very weak defensive unit? Or what if the game is about to conclude, and the Giants need to score a touchdown right away? Here, the coach may be willing to throw or run the ball  on fourth down–even if the failure to obtain a new set of downs means the Cowboys could obtain superior field position.

Now, back the Supreme Court. I think there are four types of Supreme Court punts.

Punt #1: Punt to run out the clock

In our first hypothetical game, the score is Giants 7, Cowboys 6. There are five seconds left in the game. It is fourth down, and the Giants have the ball on their own 10 yard line. If the Giants decide to run the play, and fail to get a first down, the Cowboys would obtain possession, and could kick a game winning field goal. That play-call would be a nonstarter. Instead, the Giants would decide to punt the ball as far away as possible. The hope is that the kick itself takes five seconds, and by the time time the play finishes, the clock is at zero, and the game is over. Hopefully, the Cowboys, would not be able to recover the ball and score in that time. Here, the purpose of the punt is to run out the clock. But, it is possible that the punt is poorly executed, and there is still time left on the clock when the play concludes. And the Cowboys could manage to throw a Hail Mary touchdown pass, winning on the last play of the game.

The Supreme Court, too, can punt as a way to run out the clock. The Court followed this playbook in Danville Christian Academy v. Beshear. The Court held onto the case until the very last minute, and then declined to rule because the Governor's order was about to expire on its own terms. The Court denied the appeal, hoping the case would never come back.

Punt #2: Punt to recover the ball with less time on the clock, but better field position.

In our second hypothetical game, the score is Giants 6, Cowboys 7. There are two minutes left. It is fourth down, and the Giants have the ball on their own ten yard line. If the Giants decide to run the play, and fail to get a first down, the Cowboys would obtain possession, and could potentially run out the clock, and win the game. Instead, the Giants would punt the ball far away. And, hopefully, the Giants defense could prevent the Cowboys from obtaining a first down. And, hopefully, the Giants would regain possession with far better field possession, with some time left on the clock. And, hopefully, score with some time remaining on the clock.

The Supreme Court, too, can execute this type of punt. The Court followed this playbook in Trump v. New York (the census case). Here, the Court found that the case was not yet ripe. But, this controversy will almost certainly become ripe in the very near future. At that point, the Court would regain jurisdiction over the matter. And the Court could decide the case on much stronger grounds–where the specific facts are known. It is also possible that the Trump Administration will prove unable to actually implement the new rule. And the case will simply go away.

Punt #3: Kick the ball away, and hope your punt coverage team can force a turnover

In our third hypothetical game, the Giants punt the ball away. However, the Cowboy receiver drops the punt. Moments later, a member of Giants punt coverage team is able to recover the ball and score a touchdown. Here the punt coverage team was able to force a turnover. These plays are rare in football, but can quickly swing a game.

The Supreme Court can also execute this play. Now, the Justices do not have punt coverage teams. But they do have lower Courts. The Supreme Court may not wish to make a difficult ruling. But the Justices can return a case to a lower court, knowing full well how those judges would rule. For example, let's say a case arose from the Fifth Circuit, with a panel that includes three judges on President Trump's short list. The Court could simply vacate the decision, with minimal instructions, and let the court below finish the job.

Punt #4: The fake punt

In some games, a football team will line up their players as if there will be a punt. However, the formation is a decoy. Instead, the punter tries to run forward to obtain the first down. A fake punt is a very risky move. If the play fails, the other team will obtain possession with good field position. Even worse, if the punter drops the ball, the other team can pick up the fumble and score a touchdown.

The Supreme Court can also execute a fake punt. Here, the Justices ostensibly dismiss a case on some sort of jurisdictional ground. But there are some hints in the opinion that settle the merits question. Even though the instant case may not be resolved, the Court can still advance the law.

***

I hope this explanation was clear and easy to understand. If I missed any other examples, please feel free to email me. At some point, I'll publish this concept in a more formal setting, and welcome suggestions.

NEXT: Stand Your Ground (35 States) vs. Duty to Retreat (15 States)

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  1. My God, do I ever hate sports analogies. They’re seldom worth employing, and never if you have to explain them.

    1. Sometimes they can be used but….wow…this was overwrought and excessive, and could be explained far more simply.

      IE. to “punt” a decision, is to kick it down the road. This allows the decision to be dealt with at a later time, under potentially different circumstances. Done, end story.

      If you really want to go into it further “The origin of the word “punt” is from American football. And that’s it.

      1. How about …

        “delay in answering or taking action; equivocate.”

        If there had been some bizarre and snide remarks about CJ Roberts and a link to “Blue June,” this would be Peak Blackman.

        1. “kick it down the road” … that idea was the old urban street game,
          “kick the can”

        2. Both of those mean something rather different.

          To equivocate actually gives an answer, but it’s ambiguous or mixed. But a decision is given.

          To simply delay means that the decision stays with you, and you just haven’t decided, but can at any time. It doesn’t imply giving up on the decision

          A “punt” is an action on a decision that basically gives the decision to someone else or gives up on the decision until a later time. (A delay doesn’t do that, it’s a non-action, typically shorter term). That decision may come back to you, but in the meantime, it’s typically with another party. A punt often has connotations of “giving up for now, and potentially returning at a later time, often when conditions have changed”

          For example “A design decision to defer solving a problem, typically because one cannot define what is desirable sufficiently well to frame an algorithmic solution. “No way to know what the right form to dump the graph in is — we’ll punt that for now”

          1. “To equivocate actually gives an answer, but it’s ambiguous or mixed. But a decision is given.”

            Um, no? To equivocate is to avoid giving a deicision.

            “delay in answering or taking action; equivocate.”

            That is the dictionary definition of “punt” as used in the sense we are using it. Take it up with the dictionary folk. 😉

            1. Equivocate:
              “use ambiguous language so as to conceal the truth or avoid committing oneself.
              ““Not that we are aware of,” she equivocated””
              (Merriam Webster)

              verb (used without object), e·quiv·o·cat·ed, e·quiv·o·cat·ing.
              to use ambiguous or unclear expressions, usually to avoid commitment or in order to mislead; prevaricate or hedge:
              When asked directly for his position on disarmament, the candidate only equivocated.
              (Dictionary.com)

              It’s not avoiding giving a decision. It’s giving an ambigious, uncertain answer.

              1. Whatever, man. Argue your semantic case with the dictionaries you don’t understand.

      2. But the purpose of a punt is not to delay a decision. It is a decision. It’s a choice between trying to make the first down and giving up the ball by kicking it downfield.

        And while punting may help run out the clock, it’s not an inherent part of doing that.

        That the opponents may fumble the reception is just a (probabilistically) small bonus from punting, just likes the possiblilty of a bad snap or a blocked punt or a roughing penalty.

        1. In fact a team may still punt even while it is frantically trying to save as much time as possible. For instance when a team is down by 7 or less and has a 4th and 20 at the 50 with about 2 minutes left and 3 timeouts. The coach may decide his defense has a better chance at forcing a 3 and out, and get the ball back with about a minute left, than the offense would have on a 4th and 20.

          In fact punting is seldom about clock management, it’s about field position, whether there is 59 minutes left in the game, or just 3.

          1. Yeah. That was the weirdest one.

            I don’t think I’d ever refer to punting as “clock management.” Never ever.

            It’s about (as you correctly state) field position. Any time you could punt to get rid of the last X seconds of the game, you could also (anything other that 4th down) also kneel to run out the clock. And the only reason you’d punt on 4th instead of kneeling, going for it, or running around and taking the safety is because of … field position.

            1. To be fair, punting for clock management purposes is more likely than punting to force a turnover during the catch/return. It is apparently true that Adam Gase has been using this unorthodox strategy, but only after his initial strategy of alienating every member of the organization failed to bear fruit.

              1. Okay, but only in the sense that “punting because you are going to force a turnover” is something that only exists in the minds of Adam Gase and Josh Blackman!

                Adam Gase- he can’t even succeed at losing.

                1. Well, I don’t know about that, I’ve seen it in the past when a coach has a truly dominant defense, like say ’85 Bears, or 2014 Seahawks, punting to pin a team inside the 5 or 10 as an offensive strategy, where a safety, an interception, blocked punt, strip sack is much more than a remote possibility.

                  On the other hand even without a dominant defense, Gase maybe right that the other team having the ball is less likely to have a bad outcome than leaving it in the hands of the Jet’s offense.

                  1. “Well, I don’t know about that, I’ve seen it in the past when a coach has a truly dominant defense, like say ’85 Bears, or 2014 Seahawks, punting to pin a team inside the 5 or 10 as an offensive strategy, where a safety, an interception, blocked punt, strip sack is much more than a remote possibility.”

                    Um … even with the all time great defenses (’85/’86 Bears, ’02 Bucs, ’91 Eagles), punting wasn’t an offensive strategy. And you never, ever punted because you thought that punting would force a turnover (seriously, read what JB wrote … he is writing that you punt because you think that your punt coverage team can force a turnover, which is beyond stupid, given that you can fair catch … or just NOT CATCH the punt).

                    Great defensive teams were content to punt it away (the filed position game) instead of taking risks on offense.

            2. You can’t kneel to run out the clock on 4th down. If you kneel on 4th down it stops the clock for change of possession.

              But I get your meaning that punting itself is never a strategy to run out the clock. If you only have 5 seconds to kill on 4th down you have your QB can run around for long enough to run out the clock.

              And yeah, there’s no such thing as punting with the strategic intention of forcing a turnover. Sure, you hope for that on every punt but it’s not a thing you do differently in certain situations.

      3. “this was overwrought and excessive,”

        He is probably just working out the kinks before submitting it as a law review article.

        1. Please tell me that we will never see “Josh Blackman” and “kinks” in the same sentence.

      4. But it’s not. A “punt” is a small, flat bottomed boat, and I assure you, it’s meant that since before America had football. And the sports usage of the word began with rugby, not football.

        Anyway, I once nearly died of a sports analogy. I was on a long drive, listening to a book on tape to stay awake. Steven J. Gould’s “Wonderful Life”.

        He launched into a baseball analogy to illustrate a simple point in statistics which I grasped 30 seconds in, (Diversity as a consequence of expansion into an empty phase space.) and after a half hour of baseball trivia a rumble strip woke me just in time to save my life.

  2. What did I just read?

  3. C’mon man. I think even non footballers know what a punt is. Plus we need your provocative and thought inducing commentary, particularly on things like the latest John Eastman appeal to the Supreme Court to overturn the election.

    1. It was for Kirkland and Martinned, but mostly Kirkland.

      1. I enjoyed it. The future of right-wing legal academia is a joy to behold — if you’re not a clinger.

      2. I know enough about American Football to know that:
        a) There is no universe in which the Giants would be up against the Cowboys, short of a scenario where the Giants knock the Cowboys QB out of the game
        b) The rules of American Football are unfathomable and subject to random change from year to year
        c) American Football should never be used as a metaphor for anything.

  4. Ok, I stand corrected. This post is needed in a state like Texas where they do not play much football nor understand the game.

    1. “This post is needed in a state like Texas where they do not play much football nor understand the game.”

      Quoted again both for truth, and because it’s a great way to make fun of UT.

      1. loki,
        That is just wrong,
        Texas is so infected with football that even Friday night high school football is a big deal.

        1. Actually the real criticism is of finkel, who never has anything remotely correct to say.

          1. Maybe so, but at least capitalize my last name.

        2. Don Nico,

          If you didn’t see the humor in my post, then you clearly don’t know Texas football very well. 🙂

          1. I’ll accept that criticism

          2. Well it depends, are you talking about 11 man football, or Texas 6 man football?

            1. Sheesh. The entire purpose of my post was to make for of the Longhorns.

              “What do you call a school that has one television network and no college playoff appearances? UT, baby!”

  5. “Law professors should try to avoid sports analogies–many students simply do not follow sports. Indeed, even people who are generally familiar with the “punt” from American football may not be familiar with why and how a punt is used.”

    Au contraire, if you use as many sports analogies as possible, people will watch the sports, and hence do something more productive with their time.

    1. It was a GREAT weekend for football!

      1. As a lifelong Giants fan, its never a great week for football. I still watch it though 🙂

        1. Two super bowls this century isn’t exactly Detroit Lions level of suffering, my friend. 😉

      2. Why? Did a lot of people take a brave stand against white supremacy (in a game dominated by black men) the police and take a knee or something?

        1. ????

          College Championships, Saturday and Sunday NFL games, and some ridiculously close and good games.

          Do you normally just look for parades to rain on?

          1. *psst…the ratings for the NFL and NBA are in the toilet for a reason. Hockey is doing just fine though. Why is that? Oh, that’s right, because sports are supposed to be an escape from politics, not an extension of them.

            1. ” Hockey is doing just fine though”

              Can the ratings of something no one watches or cares about go down?

              What is less than 0, Alex?

              1. The ratings of hockey have not declined, relative the the large declines of the NBA and NFL. Do you feel this way about women’s sports, which nobody watches either? Do you watch the WNBA with the 37 other people who do so across the county?

                If normal people that don’t pay attention to politics have to deal with political sports in order to enjoy them, why should you be able to enjoy talking about sports without someone bringing in politics? You’re a victim here…of the left success in politicizing everything.

                1. The victim here is someone who thinks hockey is germane to anything.

                  Go back to Canada and let real ‘Murikans talk about football without your nonsense, eh.

                  1. Ah, I must have struck closer to home than I thought. You’ve already gone to calling your position akin to “patriotism,” the last refuse of scoundrels.

                    So, how about those (does internet search for a WNBA team name because nobody knows them) LA Sparks this year, right?

                    1. Nerves? Hardly.

                      I just would rather enjoy discussing football with knowledgeable people that enjoy the game, like Aladdin’s Carpet, instead of having to engage with some no-nothing political troll.

                      Seriously, troll harder dude.

                    2. Oh, methinks you protest to much. If the troll (if that’s what you think, I am) doesn’t get a reaction, why, you just refuse to engage. So, logically, I must have struck a nerve as you tried quite poorly at some joking comeback. Sorry to break it to you. Looking glass self and all that.

                      So, bottom line, you can’t enjoy sports talk without politics. It’s not raining on any parade. Call it an intended consequence of liberal politicization of everything. Are you a liberal? Maybe you should rethink your liberalism if you are.

                    3. Naw, I’m just a lover of a good weekend of football who dislike pretentious and obnoxious little shites who interject themselvs where they aren’t wanted, and then attempt to cover up how badly they got owned by deflection.

                    4. In sports terms, I’ll just put this in my win column. Diogenes the Cynic 1, Loki (who must be a liberal) 0.

                      Good Game.

                    5. You obviously know as much about sports as Josh Blackman. Which is why you are incapable of discussing it.

                      It’s nice to see you continue to self-pwn.

                    6. Wait- I saw your comment below.

                      Are you going to quote some Oprah and Dr. Phil now?

                      Wow, you aren’t even a good troll, are you?

                    7. “Are you a liberal? Maybe you should rethink your liberalism if you are.”

                      Are you a conservative? If so, reconsider your bigotry and backwardness . . . or continue to be stomped by your betters in the culture war.

                      I’ll be happy either way, because I like stomping clingers in the culture war but also enjoy observing people renounce conservatism.

                      Carry on, clinger.

                  2. Loki,
                    Football is not germane to anything. Now if you were speaking about rugby–a real man’s game–that would be different.

                    1. Heh.

                      When I was young (which was some time ago) I knew a bunch of rugby players that played in a work league (an older league). The most common serious injury was a broken collarbone.

                      So yeah, that’s a serious sport. If you have Amazon Prime, the All-Blacks show is pretty good (IMO).

                      But given my background, I’m all about the football (American). I cannot wait for COVID to be over, because there is nothing like being in a stadium, rooting for your team, feeling the atmosphere.

                    2. Of the major team sports to watch in person football, IMO, is the worst.

                      First, if you are outdoors, the weather is likely to be bad. Then, the crowd jumps to its feet constantly, so you can’t see shit. Plus, in my experience – very limited I admit – there is not much in the way of socializing with random spectators seated near you.

                      Not a great experience.

                    3. I gotta tell you Bernard- go to a good college or high school game (pro games are rarely as good in person as on TV, unfortunately).

                      The passion, the crowds, the pageantry? It’s the best.

      3. I know! Liverpool won 7-0 while Spurs lost. What’s not to love?

        https://www.theguardian.com/football/2020/dec/19/x

  6. Other analogies:

    Quick kick: grant, vacate, and remand prior to merits briefings.

    Dropkick: punt but with the possibility that the parties may take the hint and settle, thereby allowing the Court to score some points.

    Free kick: punt in a situation where the rules require a punt, such as where someone brings a truly moot or unripe case before the Court.

    Pooch punt: deliberately punting in a way that will avoid an overbroad opinion in a case.

    1. Punt, pass and kick: the program for grade schoolers to tour the Supreme Court building.

      1. The Hail Mary- the petition for cert that alleges a mere misapplication of the law that is accepted.

        The Extra Point- the solo Thomas Dissent.

        The Field Goal- the three justice dissent.

  7. A good article. Sad that there are so many ways the SC gets out of doing their job.

  8. Josh’s need to explain things in he-man masculine terms branches into a different direction today.

    1. Does masculinity bother you? (Not that Prof. Blackman is masculine per se).

      1. “Does masculinity bother you?”

        faux masculinity should not be mistaken for actual masculinity

        1. “You do you,” as Oprah and Dr. Phil might say. But apparently captcrisis doesn’t like masculinity, or at least answering questions about it.

    2. I’m the last person to defend Prof. Blackman, but I’m not really sure what you’re referring to here.

  9. “then declined to rule because the Governor’s order was about to expire on its own term”

    The order doesn’t expire until January…

  10. Wow, Josh! What a man.
    Now why don’t you describe how often the word “scrum” is misused in the American press and by VC comenters.

  11. Maybe we could define a punt in football as the team on offense voluntarily giving up the ball at a much further distance from its goal in the hope that the resulting defensive position will be more advantageous than its current offensive position.

    The rest – turnovers and whatnot – are lagniappes.

    That’s wordy, but not five paragraphs. Improvements welcome.

    I don’t think that’s quite what the court is doing in any of Blackman’s examples.

    1. 4th down is a key aspect of punting as football strategy, and I think there are analogies between punting on 4th down and some forms of SCOTUS punts. Indeed, that’s what the word really arises out of.

      1. “Indeed, that’s what the word really arises out of.”

        Hard to say; a quick look indicates that the use (in terms of deferring action) goes back to at least 1972, where it’s used in the New York Times without any further explanation in that sense, so it must have been common enough usage then to not require a long Josh Blackman article.

      2. “4th down is a key aspect of punting as football strategy”

        If you are punting on not-4th down, it isn’t called a punt, it’s called a “quick kick”.

    2. bernard,
      What can you expect from a guy from a tier 5 law school?

    3. In rugby kicking for touch has the same function, except that it has the merit of being the choice of the player in the moment, rather than something the coach told the team to do before the commercial break.

  12. I thought this post may have been written by Elizabeth “Watch me Drink a Beer Like You Commoners” Warren.

    In my experience, 90% of Americans understand sports analogies to the extent that it is viewed as a “norm” in areas of public policy. Three strikes laws are a good example. Where did public policy architects come up with the idea you should get 3 major felonies before we put you away for life? Besides the fact that 3 sounds reasonable, linking it to the idea a batter gets three swings at the ball (absent foul balls) before having to give the next guy a chance was a huge motivator.

    There is no need to treat sports analogies like a foreign language. If anything it makes the author seem pompous and disconnected.

    1. “There is no need to treat sports analogies like a foreign language.”

      Unless, of course, they are. There’s a reason American politicians don’t explain their proposals in cricket terms.

      1. Cricket is not a sport. It is is an occasion to drink and socialize.

        1. That may well be the first time ever that I’ve agreed with you. Or rather, cricket is definitely a sport, and a very difficult one at that, but it’s definitely also an occasion to drink and socialise. (With an “s”.)

  13. “This U-shaped structure is located in both end zones at both ends of the 100-yard field.”

    Football goalposts are either shaped like an “H” or shaped like a “Y”. well, not strictly a “Y” but more like:
    I I
    I I
    ——
    I
    I

    1. Thanks for the edit. Fixed it right up.

  14. A moment in sports history. Decades ago, some fb coaches found punting on 3rd down advantageous. Presumably, some deep inner understanding of football predating statistical analysis – and long yardage plays – whispered sweet do nothings into well seasoned ears. I wonder, would a math major or the coach’s wife have questioned the strategy.

    1. They did.

      The idea, I think, was that the “quick kick” would take the defenders by surprise. They would not have a receiver back so the field position improvement would be much more than could be obtained by a 4th down punt.

      Since the strategy has been abandoned I suppose it was a loser.

      There is some sort of statistical argument that teams should go for it on 4th down more often than they do. I’m not enough of a fan to know what effect that has had, or whether it’s right.

      1. Statistically, if you can make the 1st-down yardage, you should definitely go for it on 4th down, and if you can’t make the 1st-down yardage, you should not.

        The challenge is knowing in advance whether or not you can get the yardage you need. Sometimes the coach’s decision to go for it is made by the signal they want to send… either to their own team “I know you can do this!”… or to the other team “you guys can’t stop us”… or of course a decision to punt says the opposite. Punting is the safe choice that never cost a coach a job.

  15. I am pleased to discover (having read the prior comments) that my own reaction was not atypical. As I read Josh’s post, my brain was going, “Why was this written? Not only a *really* labored effort to shoe legal analysis into a sports metaphor, but a painfully protracted explanation of “punt.”

    I totally challenge the premise. Not only is there nothing wrong with using sports metaphors in legal and non-legal discourse, it’s insulting to assume ignorance (really, continued ignorance) on the part of your audience. That’s a slam-dunk case. The judge threw us a curve ball. When opposing counsel throws a tough question your way; you’ve gotta volley it right back at her.

    Of course–of course!!–there will be times, and there will be people, who do not get the reference. Presumably, they will ask someone what that means, they will be told, and their vocabulary will be all the richer going forward. “It ain’t over till the fat lady sings.” Well, that made no sense to me as a 10-year-old. My mom explained that it comes from opera, where it’s a (false) cliche that the opera will not end till, well, that fat lady belts one out.

    [Exception: If your audience is filled with people whom you know will not get your reference, then it’s a dick move to include it, just like it would be if you threw in a bunch of fancy and super-obscure vocabulary, just to confuse your listeners/readers.]

    But I digress. (Hell, Josh can waste my time with pointless OPs, so I feel entitled to do the same with my comment.) While reading his OP, for some reason my mind immediately went to the part in “Hitchhiker’s Guide” where the poet Grunthos the Flatulent insisted on reciting, “Ode to a Small Lump of Green Putty I Found in My Armpit One Midsummer Morning.” I didn’t gnaw off one of my own legs to escape Josh’s post. But I came close a few times.

    1. Indeed, I’d say that these “metaphors” are so common this they’re barely metaphors at all any more. I’d certainly be very surprised if there’s a significant population among consumers of the “popular press” or among law students (with typical sloppiness, Prof. Blackman contradicts himself in the span of two sentences about his intended audience) that have any trouble understanding what someone means when they say the Court punted, even if they don’t recognize it as a football metaphor (whether gridiron, Association, or rugby).

      In addition to being completely unnecessary, the post 1. Isn’t particularly accurate about football strategy; 2. Isn’t particularly accurate about the Supreme Court; and 3. Doesn’t really succeed in drawing an effective parallel between the two putative kinds of punting in any of the four examples.

      1. Other than that, Mrs. Lincoln; how’d you like the play?

      2. I don’t have any views on the legal analysis. Or on the analysis of the metaphor. But the explanation of the rules of American football reaffirmed my conviction that what you did to the noble game of union rugby was a crime against humanity.

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