The Roberts' Court [Rule-Making/Application Analogies]

[James Maule]

The analogy to baseball rules is not, as you point out, the best for the
point Roberts is trying to make, because those rules are pretty much
objective and mechanical (bringing speculation that technological
devices could replace umpires (or in another context, raising the
question of whether artificial intelligence systems could replace
judges)). In contrast, some of the rules of football involve the
*judgment* and *discretion* of the officials; for example, unnecessary
roughness. The only analogue that quickly comes to mind in baseball is
the umpires' decision (after the game has started) to stop action or
call a game on account of rain.

The theory of those rules, of course, breaks down in practice (as
happens quite often with law). Whether an official correctly spots the
ball, or calls a strike, is not so much a matter of the official or
umpire changing the rules as struggling to apply them. The analogy is
probably a trial judge "on the spot" hearsay exception decision rather
than the more measured and more slowly paced appellate or Supreme Court
decision making process.

Sometimes the rules make no sense, and in baseball and football, the
official has no choice but to apply the rule. That can lead to a league
review of rules, with input from officials, but officials cannot (and
usually do not) unilaterally change the rules.

However, sometimes the rules don't provide an answer and the game must
continue, so the officials or umpire must make a decision. Such was the
case before the "clear field if you see lightning" rule was adopted.

Roberts chose the wrong sport for his analogy. Choosing the correct
analogy in teaching is very important; if it works, the point gets made,
but if it doesn't work, confusion abounds. Not that choice of analogy
should be determinative, but perhaps we'll see some questioning about
the analogy between rule-making and rule-application in sports and
rule-making and rule-application in law.

Jim Maule

>>> <RJLipkin at aol.com> 9/13/2005 7:04:12 AM >>>
Judge Roberts strikes me as  a decent, affable man. I'm troubled about

whether is model of judicial decision  making--is either viable or if
he tries to be 
committed to it whether he  will be able to keep an "open mind." The
rules of 
baseball and football are  almost always as determinate as language can
be. 
Three strikes and you're  out.  In American football, four downs and
you 
relinquish possession of the  football. There are no "rules" in these
sports, at 
least as far as I am aware,  that are comparable to such fairly
indeterminate 
provisions as "due  process," "equal protection," or "privileges and
immunities," 
or if they  are they are not the ordinary rules umpires daily apply.
Though 
umpires  must exercise judgment--was that a ball or a
strike?--typically the 
rules are  fairly self-evident. An umpire's reasoning doesn't include
such 
musings as "In  this situation, will I be giving better effect to the
entirety of 
the rules if I  permit this batter to have four strikes?" Something
more than 
the application of  rules is required of Justices on anyone's judicial

philosophy.
 
        If that's right, the  Roberts' Courts will either be an ideal 
Thayerian court--which, in my own view  is impossible for a variety of
reasons--or it 
will be a Court that under the  guise of rule following and judicial 
restraint will read its policy  preferences into the Constitution just
as every Court 
has done. Perhaps then  there will be a greater responsiveness to
suggestions 
to impose greater external  checks on the Court.
 
Bobby
 
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
Delaware