Umpires as Legal Realists
Posted: 23 Jul 2010
Date Written: July 23, 2010
During his confirmation hearings, then-Judge John Roberts analogized the role of judges to the role of a baseball umpire. Roberts argued that umpires do not make the rules; they simply apply them. Legal scholars have criticized Roberts from a legal realist perspective because the analogy misconstrues the nature of judging as formalistic. I believe Roberts also misconstrued the nature of umpiring as formalistic. Umpires, like judges, are legal realists. Umpires must rely on their experience, rather than logic, because the rules of baseball are incomplete, indeterminate, and contradictory. On occasion, umpires even ignore the rulebook (justifiably). The judges-as-umpires analogy thus illustrates the differences between legal formalism and legal realism in a way that students can more easily understand.
Keywords: judge, umpire, analogy, baseball, Roberts
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