Instant Replay, Housing, and Bad Legalism
A Case for Less Lawyers Running Things
A reminder that the pontification book club resumes this Saturday, with Jen Palkha’s Recoding America. RSVP here if you are interested in attending, even if you have not read the book!
As many of you know, I am a big basketball fan. So it is no surprise that I spent more than a few late evenings over the recent month on my porch treadmill, enjoying the privilege of West Coast start times to watch the final minutes of various NCAA tournament games in the leadup to Florida’s championship win.
Putting aside my disappointment at the notable absence of my Virginia Cavaliers, there was a broad consensus that up until the final two rounds, this year’s NCAA tournament was frankly a little boring. There were fewer compelling upsets and competitive games; not only did the final four feature four #1 seeds, but even in the first two rounds, very few teams with seeds ranked 11 or below won.
This trend made it all the more salient to viewers (like me) that the handful of games that did make for compelling TV were often besmirched by endless instant replays, making their endings needlessly tedious. This trend was quantified earlier this year by college basketball analyst Ken Pomeroy, who showed that over the last four years (2021-2025), regular-season games had incrementally gotten longer every year:
Pomeroy found that increased replay reviews were the single most significant cause of longer games. While five minutes may sound trivial, Pomeroy notes that this increase feels longer to viewers because replay reviews are more likely in high-profile, competitive games that last longer than the average game.
We saw this in the tournament this year: The Wall Street Journal pointed out that in a second-round game between Arizona and Oregon, the last two minutes of game time lasted a full 25 minutes, primarily due to several pointless and extended reviews. One particularly frustrating example:
With 1:49 left, officials stopped the action to check an out of bounds whistle. The review lasted over 2½ minutes, even though the call seemed obvious to anyone watching on television. Then, just 30 seconds later, it was time to consult the replays once again to make sure the right team had the ball.
It is telling that the play in question was so inconsequential that it was cut from the highlight package. And this delay was not an aberration: it also took nearly 15 minutes for the Michigan-Wisconsin game in the Big 10 Final to play its final 77 seconds of game time.
Why do major basketball leagues insist on having so many instant replays? The answer is quite simple: Americans deeply value fairness in a competitive environment. As I have written before, American sports leagues have many more significant “safety nets” than European leagues do. This can create some perverse incentives for teams, but fans like the notion that the “little guy” has a fighting chance.
Because Americans value fairness, sports leagues feel pressured to get every call correct. When fans are polled, most favor the increased use of replay. This is certainly true for the most passionate fans of the teams playing the game. Every diehard sports fan can quickly recall a recent case where a terrible call has cost them a big game, and a feeling of being cheated can illicit passionate anger, even if from a small number of people. Widespread sports betting is also intensifying the pressure to make correct calls, as millions of dollars can be at stake with every whistle.
The problem with instant replay in sports is not that procedural fairness is unimportant; rather, the problem is that fairness is being implemented without consideration of the trade-offs involved. Injecting replay reviews always comes at the cost of time and entertainment, and as currently practiced, often maximizes fairness at the expense of entertainment. In some sports, like tennis, replay functions in a way that costs very little in terms of time or drama, so few fans complain. However, for most sports, replay reviews often make the game far less entertaining.
Basketball might be the game most harmed by replay. While football and baseball have natural breaks, basketball is a “flow” sport where action is meant to continue for many minutes before a break. In addition, basketball has some of the most challenging referee judgment calls, where determining how much contact an offensive player can absorb before being called for a foul is entirely subjective and varies significantly over time. And most importantly, basketball is a sport where the last few minutes of the game can be uniquely compelling due to the high-stakes scoring opportunities in close games. Replay kills this drama for the viewer, often for trivial matters.
The NCAA tournament was frustrating precisely because the NCAA allowed refs “unlimited” amounts of replay review in the last two minutes of a game, including for trivial matters like adjusting a few tenths of a second on the clock. No rational person would argue that changing the game clock from 3.7 to 3.8 sections is worth two minutes of the viewer's time or the loss of entertainment. Yet, it is standard operating procedure in the current environment.
We should not swing back in the other direction and abandon instant replay entirely. There are occasional bad calls that can be easily corrected, and having a mechanism to do so is worth it to hardcore fans. But we need significant changes. There should be a recognition that officiating will never be perfect, and the costs of making it perfect would be too high to bear. Despite the significant increase in reviews, the refs in the NCAA championship game still managed to badly miss an apparent goaltending call in a game decided by two points. You cannot “solve” this problem; you just need to make the tradeoffs more manageable.
Thankfully, it appears that next year there will be reform, with the NCAA moving to a coach’s challenge system. Setting some hard limits on the number of replay reviews should help move things in the right direction. I would also like to see hard limits on the time spent reviewing calls. If you cannot see enough evidence to overturn a call in 30 seconds, it probably wasn’t that bad, and referees should simply default to the call on the floor and move on.
If the NCAA does this, I suspect fans will embrace it. While fans often say on surveys that they want more replay, they do not actively enjoy watching games with extensive replay. Social sciences frequently discuss the difference between “stated preferences,” which refer to how people respond to surveys, and “revealed preferences,” which refer to how they actually behave in the real world. For instance, if you asked me if I ate healthy food, I might say “yes,” but if you looked at my credit card transaction history, you would see that my “revealed” preference is taking my kids to Chick-fil-A. Likewise, soccer fans in Sweden and Norway have decided that seeing instant replay in action spoils the joy of the game and are now actively campaigning against it. Fans care about calls being correct, but not if replays make their game experience markedly inferior.
There has been a lot of attention in recent years to reflecting on modern America’s flagging “state capacity,” which is a formal way of describing how effective a government is at implementing its stated goals. If a government sets out to build roads, how quickly and cost-effectively does it build roads? If a government believes that hiring more qualified teachers will improve the educational outcomes of low-income children, how well can they find and hire those teachers?
Once you start thinking about this, you begin to see it everywhere. In many policy domains, outcomes have diverged significantly from goals. There are many possible causes for this, but one common reason is that the government process has become obsessed with fairness and avoiding mistakes, losing sight of the trade-offs between speed and efficiency that this focus creates. This is similar to how instant replay fails when sports leagues start to think that the impossible goal of getting every call correct outweighs the need to ensure that sporting events are entertaining for fans.
Consider approving new housing projects. As readers of this blog know, Los Angeles has a crisis that is a result of not building enough homes for decades. While this fact is still controversial to some, it is far less contested than it was when I first moved here 11 years ago. The City itself acknowledges in its official documents that it needs to build hundreds of thousands of homes quickly to prevent worse housing problems.
Speed in housing approvals is essential for home building. As I documented on this blog, in 2023, Los Angeles saw a boom in 100% affordable housing developments proposed by for-profit developers after Mayor Karen Bass issued an executive order that expedited the approval of these projects. As I showed in that series, this boomlet had multiple causes, but getting certain on the timeframe for approving housing was necessary to make these affordable projects financially feasible.
More sophisticated research has also found similar results. Economists Stuart Gabriel and Edward Kung recently attempted to quantify the impact of slow timelines on housing projections in Los Angeles from 2010 to 2022. Their model estimated that if the city of Los Angeles reduced the time it took to approve housing by 25%, the amount of housing produced would increase by a whopping 33%! And if those approval times were cut by 50%, the city would have seen 76% more housing! In a housing crisis, almost doubled housing production would be a considerable improvement over the status quo!
As it currently stands in most cities, the housing approval process is optimized to ensure that the “right” housing is built. This process aims to create fairness by ensuring that every project receives sufficient input from key stakeholders, to prevent “bad” housing projects. One can imagine situations where having checks to prevent “bad” projects might be helpful, such as if a project were proposed to tear down the Getty Villa Museum and replace it with a mansion. But in reality, day to day, many of the housing projects that get opposed are simply examples of well-resourced special interests gumming up the process to their benefit. An extended review process gives the wealthiest neighborhoods veto power over new housing and gives special interest groups leverage to bargain for concessions.
Consider Lorena Plaza in Boyle Heights, where an affordable housing project filling a vacant lot was delayed for 18 years before finally opening in April 2025. About half of that delay was caused by two actors with an agenda. First, the local city council member, Jose Huziar (now serving a 13-year federal prison sentence for extorting developers for bribes), wanted concessions from the developer and would not approve the project until he got them. Then, the owner of a local market neighboring the vacant lot decided to sue to stop the project under the California Environmental Quality Act (CEQA). The lawsuit proved to be meritless and was eventually dismissed. Still, the case took nearly five years to play out, even after the market’s owner died, because his children felt compelled to honor his legacy by fighting to stop housing from being built next door.
Now, if you ask voters point-blank, almost certainly their stated preference is to have more power to influence whether housing projects are built in their neighborhoods. But voters are demonstrating that they dislike the consequences of slow housing approval timelines, as evidenced by the large number of people leaving California due to the high cost of housing. I suspect that if voters understood just how much a lengthy approval process costs them, they would be much more interested in lower-cost housing than they are in giving input on the shape and size of new housing in their neighborhood.
Ultimately, I do not think the end goal should be zero community input, but rather community input that focuses on different questions —ones that community members are better equipped to answer than whether a housing project is “good” or “bad.” But planners will only have time to ask better questions when they stop spending so much time on the discretionary approval of individual housing projects.
It's not a coincidence that there is one particular domain in American life where investing long amounts of time in an extended review is common: the American legal system. American law has always placed a high value on creating a rigid and fair process, rooted in common law traditions, and amplified by rights codified in the American Bill of Rights. This process was designed to be inefficient in the service of protecting the rights of the innocent. And I agree that in a legal context, due process rights are vital. Decisions made in a criminal trial or a dispute over ownership have generational impacts, so having a process optimized around fairness makes a lot of sense.
The problem is that lawyers dominate the ranks of lawmakers, especially in Democratic states. Ezra Klein illustrates this in his recent book Abundance (emphasis mine):
America is unusually legalistic. It always has been. In 1835, Alexis de Tocqueville wrote, “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” What was true then is truer now. America has twice as many lawyers per capita as Germany and four times as many as France. Much of this energy is now devoted to suing the government. In 1967, there were 3 cases per 100,000 Americans directed at enforcing federal laws. By 1976, there were 13. By 2014, there were 40.
Klein goes on to cite law professor Nicholas Bagley on the sheer dominance of lawyers in American political life:
Though they make up less than 1 percent of the population, lawyers currently constitute more than one-third of the House of Representatives and more than half the Senate. Fully half of the last ten presidents were lawyers, as are more than a third of the officials now serving in the states as governor, lieutenant governor, and secretary of state.
Klein points out this is especially bad on the Democratic side of the aisle:
In the Democratic Party, every presidential and vice presidential nominee from Walter Mondale to Kamala Harris attended law school (Tim Walz, in this respect, was an almost radical break with tradition).
Klein closes the passage out by saying:
There is nothing wrong with lawyers. There might be something wrong with a country or a political system that needs so many of them and that makes them so central to its operations. That might be a system so consumed trying to balance its manifold interests that it can no longer perceive what is in the public’s interest.
When you make legal training the default training for a political career, you make legal thinking the default thinking in politics. And legal thinking centers around statutory language and commitment to process, not results and outcomes.
It should be evident that what works in the courtroom does not necessarily work in other contexts. Successful businesses do not operate like a legal system, simply because nothing would ever get done. Strategic decisions, while often subject to wide-ranging feedback and input, are not decided by jury panels or councils. Frequently, strategic decisions are made in private rooms with a handful of executives, precisely so that conversations about trade-offs can occur with frankness and honesty. Low-level employees cannot demand to see transcripts from those meetings. Objections to those decisions are heard in well-functioning organizations, but no judge stops all forward action until an “appeal” can be heard.
Yet, public agencies are required to make decisions in precisely these ways, with complete transparency, the ability for dissenters to slow down or stop the decision-making process, and other exceptionally inefficient processes, all in the name of fairness. And we should not be surprised, given how many of their bosses (our elected officials) are actively mapping their legal background onto government processes.
And of course, this makes very little sense. The government has a monopoly on force and law, and should incorporate more “legalistic” thinking into its process than a private company should. But nowhere in the Bill of Rights are neighbors objecting to their neighbor building an apartment, or their local transit agency building a subway, given the same legal rights as a criminal defendant. But this absurd right is precisely what California has codified, mainly at the behest of creative lawyers and sympathetic judges interpreting laws like CEQA.
To circle back to where we started, I find it fascinating that the current NBA commissioner, Adam Silver, is a former lawyer. His initiatives, including significantly increasing instant replay and trying to ensure that players have a greater voice in league decision-making, have certainly had their upsides. The league has had no major labor disputes, lockouts, or strikes, and Silver has largely insulated it from accusations of corruption related to the rise of sports gambling. Journalists have often praised him for fairness and transparency. Yet, during his tenure, NBA viewership has continued to decline, and it's frequently unclear which of Silver’s reforms aimed at fairness have actually increased the enjoyment of watching a game.
It's high time to rethink processes that idealize perfect decision-making, while turning sporting events into unwatchable affairs and housing into a luxury good. It would be far wiser to trust real-time human judgment, stomach the occasional missed call, and let people get on with their lives, debating far more critical matters.