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Wednesday, March 14, 2007
On the Limits of Analogies Between Baseball and the Law

I love baseball. And I love law. And I like judges and lawyers who share those twin passions. But the repetitive analogies between umpiring and judging are getting old and inaccurate very quickly.

The latest comes from Justice Samuel Alito (UNRELATED ASIDE: When Alito was a judge on the United States Court of Appeals for the Third Circuit and I was a law clerk for a judge on that court, Alito swore my co-clerks and me onto the bar). Anyway, Justice Alito was in St. Petersburg, recently to throw out the first pitch at a Devil Rays-Phillies game (Alito is a life-long Phillies fan, but donned a D-Rays jersey). Rick Garnett has the photo and story here. And I agree, Rick: Alito has pretty good form.

But the story describes Alito giving a talk at a dinner while he was there and saying the following:

One of the things I am asked is if I believe in a living Constitution," Alito said in his speech, referring to a thought that the Constitution can reflect the times. "Umpires face this very same problem. For example, do we want a living strike zone?"

These analogies do not work and they must stop.

First, whether a legal rule should or will "live" depends to some extent on the nature of that rule. There is not much interpretative life in:

"The STRIKE ZONE is that area over home plate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the hollow beneath the knee cap."

There is inevitably and necessarily more life (with the attendant evolution and change) to interpreting and applying broad, amorphous principles or ideas such as "the freedom of speech" or "cruel and unusual punishment."

Second, we do have a living strike zone. If you don't believe me, watch a baseball game from the 1970s or 1980s on ESPN Classic. Pitches at the letters were routinely called strikes, as were pitches slightly below the knees (what was then called a "National League Strike"). Neither one is ever called a strike now. True, the strike zone was lowered slightly in 1988. But rarely is any pitch above the belt called a strike nowadays.

Third, the fact that there were differences between National and American League strike zones tells us that some "life" was present. Back in the 70s and 80s, AL umpires used large exterior balloon chest protectors, which required them to stand more upright--allowing them to see the high pitch more easily than the low pitch. NL umpires wore chest protectors under their shirts, allowing them to crouch lower and thus better see the low strike.

Fourth, even with uniform equipment, no two strike zones are exactly the same simply because no two umpires are exactly the same. There will be slight variations in each umpire's crouch or the angle of her head or her position behind the plate. Such differences produce variations in how each umpire sees a given pitch and thus how each umpire calls a given pitch--what each strike zone looks like.

The point is that umpiring, particularly balls and strikes, is not a perfectly objective determination. Of course, neither is judging the meaning of the First Amendment.

So, on second thought, perhaps the analogy between judging and umpiring works. Just in the precise opposite direction from what Justice Alito was trying to suggest.


Not only are the umpires' strike zones different, so are the players' strike zones. The example I often use is this: while the width of the strike zone is the same, the height is different player-to-player. Randy Johnson's (6'10") zone starts higher, ends higher, and is larger vertically, than the zone of someone like Kirby Puckett (5'8"). Their stances at the plate also make quite a difference, too.

Anonymous Anonymous -- 3/15/2007 1:54 AM  

How about this for a baseball analogy?

The umpire only resembles a judge when a judge is sitting on a bench trial. The rest of the time the umpire is more like the jury.

The umpire takes the evidence presented. Applies the rules (law) as he has had them explained to him, to what he's seen and makes a decision. An umpire is almost always a trier of fact, not law. Only in weird situations where a decision has to be made by determining which rule applies is he a trier of law.

My favorite rules story comes from the NHL. A puck split in half, one portion landed in the goal, the other portion missed. If any part of a puck crosses into the goal, it is a score. The referee ruled that when the puck split it no longer met the definition of a puck, so no goal because the portion that crossed in was no longer a puck. That is being a trier of law and it doesn't happen often in sports.

Blogger Mark F -- 3/15/2007 9:42 AM  

The point is that umpiring, particularly balls and strikes, is not a perfectly objective determination

Of course, it could be if baseball would join the 21st Century and allow Questrec are some other computerized caling of balls and strikes.

Blogger James -- 3/15/2007 12:40 PM  


That is a great point, one that too-often gets lost in throwing this analogy out for the benefit of a non-legal public. It can be a bit more complicated because in most constitutional cases (which is where the analogy most-often gets used) the facts are uncontested and the question is what a constitutional provision allows or not. But in general I like this notion and I think it gets to the heart of why the "we follow the rule book" does not work at any meaningful level.


First, no sport relies entirely on a computerized system to make calls and entirely removes the human element and I have never heard of a proposal to do so in any sport. QuesTec is an evaluative system--how are the umpires doing as compared with the computer's supposedly more accurate call?

Second, I am not sure QuesTec makes things more OBJECTIVE in the sense of uniform from ump to ump. Calling balls and strikes necessarily depends on physical positioning and perception--depending on where and how one is positioned, what once perceives may change. That is as true of a computer or camera as a person--its position, its calibration (or whatever) affects how it "sees." And if the machine at Wrigley is positioned even slightly differently from the machine at Busch, the resulting strike zone may be quite different.

Blogger Howard Wasserman -- 3/15/2007 7:46 PM  

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