100 Geo. L.J. Online 1 (2011-2012)

handle is hein.journals/gljon101 and id is 1 raw text is: Response Essay: Temporal Variance, Hockey, and the Wartime
Constitution
DAWINDER S. SIDHU*
TABLE OF CONTENTS
IN T R O D U C T IO N   ................................................................................................................................  1
I.  TEM PORAL  V ARIANCE  AND  H OCKEY  ........................................................................................... 2
II. TEMPORAL VARIANCE AND THE WARTIME CONSTITUTION .................................................... 6
C O N CLU D IN G  T H O U G H T S  ..............................................................................................................  7
INTRODUCTION
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.,2 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 hockey4 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.5 As it happens, I
am also a professor of constitutional law with expertise6 and experience7 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
* Assistant Professor of Law, University of New Mexico School of Law. © 2011, Dawinder S. Sidhu. My thanks to
Paul Stewart for sharing with me his insights and experiences for purposes of this essay, and to the staff of The
Georgetown Law Journal for their helpful comments and assistance.
1 Mitchell N. Berman, Let 'Em Play: A Study in the Jurisprudence of Sport, 99 GEO.L.J. 1325 (2011).
2Id. at 1327.
3 See id. at 1352 n.78. Throughout this essay, references to hockey should be interpreted to mean professional
ice hockey.
4 For example, my family and I have had season tickets for almost two decades to two professional hockey teams,
and I generally watch, on average, over one hundred games per season on television.
5 See, e.g., Richard A. Posner, NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY 6
(2006).
6 My representative articles in this area include Dawinder S. Sidhu, Shadowing the Flag: Extending the Habeas
Writ Beyond Guantinamo, 20 WM. & MARY BILL RTS. J. (forthcoming 2011), Dawinder S. Sidhu, First Korematsu
and Now Ashcroft v. Iqbal: The Latest Chapter in the Wartime Supreme Court's Disregard for Claims of
Discrimination, 58 BUFF. L. REV. 419 (2010), and DAWINDER S. SIDHU & NEHA SINGH GOHIL, CIVIL RIGHTS IN
WARTIME: THE POST-9/11 SIKH EXPERIENCE (2009).
7 For example, I have been lead counsel for amici in Padilla v. Yoo, No. 09-16478 (9th Cir. filed July 9, 2009), Al
Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

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