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From Ezra R. Thayer, Judicial Legislation: Its Legitimate Function in the Development of the Common Law, 5 Harv. L. Rev. 172, 198-99 (1891), an article that begins with “The phrase ‘judicial legislation’ carries on its face the notion of judicial usurpation,” and that aims to rebut that assumption:

[Mr. Carter] likens the judge to the referee of an athletic contest, each being, as he says, an expert chosen to declare the customs of the game. The illustration is an unfortunate one; for whatever may be true of the judge, nothing could be more untrue of the referee. In any form of athletic sports which is at all developed, the customs of the game are fixed with absolute rigidity. So far as it becomes desirable to change them, they are changed from time to time by persons in authority. In a whole season of professional base-ball there are few cases in which the least doubt arises as to these rules, and such cases are decided by the umpire merely because he is the most convenient person to appeal to. So far as these rare disputes go the umpire might be dispensed with altogether. The players could easily reserve the point for the higher board which in any event ultimately decides it, and continue the game. The real duty of the umpire is to decide pure questions of fact, — whether A or B first reached a certain point,w hether the ball was caught or dropped, etc. He is a jury, not a judge. If he were a judge, and if the illustration were apt, it would be fatal to Mr. Carter’s argument, for base-ball football, and prize-fighting are instances of perfect and successful codification. The conditions of the game make a code possible, and indeed necessary.

Ezra Thayer was apparently the son of the noted Harvard Law School professor James Bradley Thayer, and eventually himself Dean of Harvard Law School.

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    7 Comments

    1. TNeloms says:

      Orin got served!

      October 28, 2009, 7:42 pm

    2. Orin Kerr says:

      Yeah, but I’ll be you’ll be impressed when I find a citation to the judge-as-umpire before the game of baseball was invented.

      October 28, 2009, 7:47 pm

    3. Arkady says:

      Does this work for Orin:

      Again, we may argue that the duty of the judge as umpire is to decide what is just, and therefore he must ask where justice lies, and not what this or that document means. And that it is impossible to pervert justice by fraud or by force, since it is founded on nature, but a party to a contract may be the victim of either fraud or force. Moreover, we must see if the contract contravenes either universal law or any written law of our own or another country; and also if it contradicts any other previous or subsequent contract; arguing that the subsequent is the binding contract, or else that the previous one was right and the subsequent one fraudulent — whichever way suits us. Further, we must consider the question of utility, noting whether the contract is against the interest of the judges or not; and so on — these arguments are as obvious as the others.

      Aristotle, Rhetoric, 1376b

      October 28, 2009, 8:12 pm

    4. jcm says:

      In La Relazione al Re ( 1940), Calamandrei , one of the top jurist of Italy that would be member of the constitutional assembly, said that the judge can not be a passive referee . The Civil Code was supposed to be an expression of fascist ideology so the judge was supposed to be active and the Code abandoned the dispositive principle, nemo iudex sine actore. The judge as soccer referee was supposed to be an expression of classic (real) liberalism
      BTW: you will hope the Judges as umpires to be better than those working in the postseason ( and game 163)

      October 28, 2009, 9:16 pm

    5. TNeloms says:

      jcm:
      BTW:you will hope the Judges asumpires to be better than those working in thepostseason ( and game 163)

      It’s really time they expanded the use of instant replay in the justice system.

      October 29, 2009, 12:38 am

    6. Josh Blackman says:

      The Judge-As-Umpire Debate in 1787!

      Elbridge Gerry: “We should be without an Umpire to decide controversies and must be at the mercy of events.” 1 Farrand 515 (July 2, 1787).

      October 29, 2009, 1:03 am

    7. Eugene Volokh says:

      Josh Blackman: “Umpire” as a term for a sort of judge was pretty well-established in the 1700s, and perhaps even before.

      October 29, 2009, 12:28 pm