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Wednesday, March 10, 2010
More on Judges and Umpires

Mike's post flagging Aaron Zelinsky's excellent essay on the judge-umpire analogy gives me the chance for some shameless promotion:

At the Law and Society Association Annual Meeting in May in Chicago, I will be part of a roundtable on Judges as Umpires, Umpires as Judges: Rethinking the Metaphor. Participants include myself and Aaron, along with Mark Graber (Maryland Law), Neil Siegel (Duke Law and Political Science), Mitchell Berman (Texas Law), and Bruce Weber (journalist and author of As They See 'Em: A Fan's Travels in the Land of Umpires). Topics will include the judge-umpire analogy (including discussion of Aaron's arguments), the nature of judging and sports officiating, and the adjudicative nature of instant replay--all issues near to my heart.

And, to answer Mike's question: I would argue that the President (alone or in conjunction with Congress) is the commissioner, while federal judges (including the SCOTUS Justices) are the umpires. Part of the problem I have come to have with the analogy is it conflates constitutional with statutory adjudication and decisionmaking. The President and Congress make statutory law that courts are expected to interpret and construe (consistent with congressional intent) and apply, just as the Commissioner makes the rules of baseball for the umpires to apply.


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