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I suspect the debate over whether judges are like baseball umpires is as old as baseball itself, but here’s an early example I came across on Westlaw:

A well-known English judge, watching village children drawing up rules for their cricket team for the year, said they were showing him how the common law of England was made. I venture to think that this view is not quite correct. The common law was no set of rules purposely drawn up for the governance of the community but rather a set of customs which evolved into form in the course of years. Now and then, indeed, the sovereign power intervened to modify the old rule or prescribe others; but in most cases where the judge was called on to give a decision he was not like the umpire at cricket or baseball, sent to his body of formal and fixed rules to find out what should govern and to decide according to the rule prescribed; he was rather like the friendly arbitrator deciding according to what he considered the requirements of decent neighborhood, that is “the customs of the country”-Sittlichkeit, if you will. Every time he made a decision, he made the custom more definite. He did not, indeed, affect to lay down any new rule or to govern himself by any but the existing sense of the community-that is, what was just and right in the particular case, bearing in mind the customs which were followed and which fixed rights and duties, more or less indefinitely indeed, but nevertheless fixed them. But every time, he used his own sense of what was just and right in the particular case.

William Renwick Riddell, Common Law and Common Sense, 27 Yale L. J. 993, 995-996 (1918) (emphasis added).

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    6 Comments

    1. Arkady says:

      The anecdote reminded me of how Wittgenstein was said to have come to one of the central ideas of his later philosophy. He was watching a soccer game one day, and it occurred to him that in our use of language we play games.

      October 28, 2009, 7:15 pm

    2. Helene Edwards says:

      In reality judges are like brush-clearers. I once had a judge tell me, on the record, that he was granting the defendant’s summary judgment motion because, “this file’s getting awfully thick.”

      October 28, 2009, 7:30 pm

    3. Guest44 says:

      I came across this Posner quote earlier this week.

      The defendants did not mention their concern about settlement pressures until the oral argument of this appeal, so we should consider whether the argument is waived and we therefore cannot consider it. If a party fails to present a ground for reversal, the appeals court will not supply it; this is the doctrine of waiver. Hartmann v. Prudential Ins. Co., 9 F.3d 1207, 1214 (7th Cir.1993); United States v. Rodriguez, 888 F.2d 519, 524 (7th Cir.1989); Bonds v. Coca-Cola Co., 806 F.2d 1324, 1328 (7th Cir.1986). The doctrine is not that if the party fails to offer a particular reason for its position, the court cannot consider that reason. Transcraft, Inc. v. Galvin, Stalmack, Kirschner & Clark, 39 F.3d 812, 820 (7th Cir.1994). Were that the rule, the role of an appellate court would be confined to weighing the reasons, pro and con a particular ground, that the parties happened to proffer. Appellate consideration so truncated could not produce durable rules to guide decision in future cases; judicial opinions would be impoverished if all they did were call balls and strikes. The defendants here properly asserted as the basis for mandamus the two necessary conditions: irreparable harm and clear violation of right. For obvious reasons they did not point out in support of the first condition that if mandamus is denied they will be forced to settle–for such an acknowledgment would greatly weaken them in any settlement negotiations. We should be realistic about what is feasible to put in a public brief.

      In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995).

      October 28, 2009, 8:03 pm

    4. 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

    5. Andrew Hyman says:

      Did you know that there’s a Major League Baseball Constitution?

      I suspect that many people would not be terribly upset if umpires were given authority to tweak the rules a little bit, with proper notice before the game starts, subject to rejection of the tweaks by the coach of either team.

      What people would be terribly upset about would be if an umpire starts to “infer” phony rules from the MLB Constitution, or if an umpire effectively tells the Commissioner and the coaches and the owners to go to hell when they interpret the rules differently from how the umpire interprets them, or when they try to modify one of the umpire’s tweaks.

      October 29, 2009, 11:41 am

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      December 2, 2009, 7:41 pm