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Tuesday, August 05, 2008
More against the Judge-Umpire Analogy

Some recent discussion of the analogies between judges and umpires (or other sports officials) over the past few days at the Volokh Conspiracy (here, here, here, and here) and Erike Lilliquist at CoOp (here). Ilya Somin calls the analogy "a good shorthand way of emphasizing the judge's duty to set aside his policy preferences and be impartial between litigants."

I continue to believe that the analogy does not work. First, Ilya defends it as shorthand for decisional neutrality and impartiality, responding to a particular use of the analogy by Fifth Circuit Judge Jerry E. Smith (Ilya's former judge) to explain why judges should not call balls and strikes based on which team is his favorite. But while true, we do not need the analogy for that--it seems obvious that no decisionmaker should reach conclusions based on the identity of the parties rather than the applicable rules.

Second, my disagreement with the metaphor is not that umpiring is simple and obvious while judging is complex and demands interpretation. As Ilya and Erik (in an very detailed post) both point out, there are all sorts of ways in which sports officials exercise a lot of discretion. This is especially true of choices between enforcing rules as written or in a more practical manner grounded in the game's realities and evolution and in applicable "unwritten" (Common Law?) rules that have become part of the rule set (Erik uses examples of the "neighborhood rule" on tag plays and double plays in baseball). So the analogy really becomes "a judge is like an umpire/referee because both must make difficult decisions, often requiring the exercise of discretion and the accumulation of different legal authorities, and must develop an interpretive methodology for doing so." But if that is it, then the analogy again does no work. Why are sports officials particularly illustrative of this principle, as opposed to any other decision maker? I could say the same thing about my decision whether to give my daughter a time-out.

Ultimately, the analogy (at least as used by Chief Justice Roberts in his confirmation hearings, the most recent and well-known use) is based on a (deliberate, I think) oversimplication of umpiring--the notion that an umpire "simply" calls balls and strikes and it is obvious which is which--and an effort to make judging look similarly simple and straightforward. Thus, the analogy is worthless precisely because judging and umpiring are both complex, interpretive endeavors. The analogy is accurate but it serves no meaningful illustrative or rhetorical function.


I thought that an analogy worked if the reader/listener understood or appreciated the comparison. While I agree it may not be a perfect analogy, and it may be an oversimplified analogy, can you give the analogy some credit at all?

Anonymous Anonymous -- 8/05/2008 8:06 AM  

My problem is not that the analogy is imperfect or oversimplified; lots of useful analogies are (although much of the practice of law is about trying to make and trying knock down analogies). My problem is that the point the analogy is trying to make (judges should act like umpires and "simply" call balls and strikes) is wrong (because that is not what umpires do). And it is wrong in a way that seeks to gain certain rhetorical and political benefit. For that reason, no I cannot credit it.

Blogger Howard Wasserman -- 8/05/2008 1:24 PM  

There is no doubt on the politics part. Speaking of which, you could make the analogy that the politics of becoming a judge relate to the politics of becoming a Major League umpire. Then again, ....Oh well, maybe the BEST analogy would be that fantasy sports arbitrators are more like umpires?

Anonymous Anonymous -- 8/05/2008 1:29 PM  

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