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Response Essay: Temporal Variance, Hockey, and the Wartime Constitution

In “Let ‘Em Play”: A Study in the Jurisprudence of Sport, Professor Mitchell Berman offers a thoughtful and engaging defense of the concept of temporal variance, the notion that “some rules of some sports should be enforced less strictly toward the end of close matches.”   In support of his position, Professor Berman draws on various professional sports, including tennis, basketball, and baseball.  Largely absent as a source of information or subject of the overall discussion is hockey, a sport with which Professor Berman acknowledges he is less familiar.

As it happens, I am a dedicated fan of hockey  and, coincidentally, this sport seems to expose problems with temporal variance.  Also, the idea that rules in sports should be enforced less strictly at certain moments of matches is not unlike the recurring and contemporary contention that the Constitution should not be strictly observed in times of war.   As it happens, I am also a professor of constitutional law with expertise  and experience  on the judicial enforcement of the Constitution in the post-9/11 context.  The purpose of this response is to address my concerns with temporal variance, which stem from my appreciation for the enforcement of rules in hockey and for the role of the courts in wartime settings.  These concerns may counsel the reader to reconsider the merits of temporal variance as a preferred or justifiable practice in sports or law.

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