The Jurisprudence of the Coin Toss

I have spent a lot of time this Spring co-chairing an effort at Pitt to restructure some small parts of our curriculum.  Our labors have not yet borne fruit, but one theme – the notion that law students should learn more about alternative modes of dispute resolution (including but not limited to conventional forms of “ADR”) – means that my interest is piqued any time a coin is tossed to resolve a dispute.  And in the National Football League, that’s pretty often.

The NFL uses a coin flip to determine not only the order of battle at the start of a game, but also the order of battle at the start of overtime.  Does that favor the team that wins the toss?  The movement to reform overtime procedures is afoot again.

Coin tosses are used to determine draft order.

And a coin toss – a secret, unobserved coin toss – was used the other day at the NFL’s offices to determine whether the New York Giants or the New York Jets would have the right to host the first “home” game in the new “New York” (quotes in place because it’s actually New Jersey) football stadium.  The Jets lost the toss, or so they were told.

If a coin is tossed in Roger Goodell’s office and Woody Johnson didn’t see it, was the coin truly tossed? If it were tossed, how could Woody Johnson truly know that Roger Goodell didn’t use a coin with two (Giants) heads?

And in an era when the computing power that put a man on the moon in 1969 is available in a cheap device that I can hold in my hand and that can be networked to umpteen other related devices, why is anyone still using an actual coin?  It seems to me that transparency, fairness, and accountability — all of the things that Woody Johnson claims were missing in the Giants/Jets decision — could have been built into the decision easily, had the parties agreed to use something like the random.org Coin Flipper.