Umpires as legal realists

Abstract

During his confirmation hearings, then-judge John Roberts analogized the role of a judge 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. Like judges, umpires must rely on their experience, rather than logic, because the rules of baseball are sometimes 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. © 2012 American Political Science Association.