Umpiring Redux

Lawrence Solum lsolum at gmail.com
Tue Sep 13 06:59:10 PDT 2005


Frank writes, "I think you can measure unde[r]determinacy."

I wonder what "how much variance" means.  At one level, the outcome of
a case an appellate case can be defined by a binary--affirm/reverse
framework.  At another level, the outcome includes the rule announced
by the opinion--but rules cannot be quantified, with rare exceptions. 
At another level, the outcome is the change in the whole system
produced by the decision--again, it is difficult to conceptualize what
would count as quantification.  Of course, outcomes could be "coded"
in some arbitrary way, but to suppose that the ability to code equates
with the ability to quantify would be to make a serious conceptual
mistake.

On 9/13/05, Frank Cross <crossf at mail.utexas.edu> wrote:
> 
> I think you can measure undeterminacy, though it has not yet been well done.
> For example, take a standard, or a rule, take a scenario and see how much
> variance in outcomes you get from adjudicators of various backgrounds.  You
> can get a little of this from the judicial databases, but it really wants
> experiments.
> 
> Mark, I suspect, was just giving us his imprecise "ballpark" estimate
> 
> 
> At 08:04 AM 9/13/2005, Lawrence Solum wrote:
> >Mark writes, "the rules of baseball and football are just as
> >indeterminate as the first amendment".
> >
> >This strikes me an analytically imprecise.  First, in neither case are
> >the rules actually "indeterminate."  Rather, the rules that govern the
> >first amendment and sports are "underdeterminate."  No one thinks that
> >kicking a player repeatedly when he is down is NOT unnecessary
> >roughness.  No one thinks that a statute prohibiting the advocacy of
> >the election of Democrats to Congress--given roughly the current
> >context--could possibly be consistent with the first amendment.
> >
> >Second, the notion of "just as indeterminate" is well defined.  What
> >does it mean to say that one rule is "just as indeterminate" as
> >another rule.  Rules can be compared in various ways--some rules are
> >more rule-like, others more standard-like.  Somre rules are ambiguous;
> >others lack ambiguity.  Some rules are general and abstract; others
> >are particular and concrete.  One rule can be more vague than another.
> >  But the claim that one rule is "just as indeterminate" as another has
> >no well defined meaning that I can see.
> >
> >Larry
> >
> >On 9/13/05, rjlipkin at aol.com <rjlipkin at aol.com> wrote:
> > >
> > >        There's a difference between "unnecessary roughness" and "equal
> > > protection". Interpetation and judgment are required for both. But the
> > > degree is clearly (contextually) limited in the first case, and only at
> > best
> > > arguably limited in the second.  More important, there's no institutional
> > > question of whether the umpire in football should strictly scrutinize the
> > > rule or defer to the rule makers.
> > >
> > >        But even if Mark is absolutely and irrefutably correct about the
> > > rules of sports, the consequences for Judge Roberts are more significant
> > > than were Mark wrong. If Mark is right, Judge Roberts is not offering
> > us any
> > > different model of judicial decision making at all by invoking the judge as
> > > an umpire. In this case, indeterminacy, or as I prefer "relative
> > > indeterminacy" is endemic and the role of an umpire doesn't depict any
> > > distinct model of decision-making whatsoever.
> > >
> > > Bobby
> > >
> > > Robert Justin Lipkin
> > > Professor of Law
> > > Widener University School of Law
> > > Delaware
> > >
> > > -----Original Message-----
> > > From: Mark Graber <MGRABER at gvpt.umd.edu>
> > > To: RJLipkin at aol.com; CONLAWPROF at lists.ucla.edu
> > > Sent: Tue, 13 Sep 2005 08:10:02 -0400
> > > Subject: Umpiring Redux
> > >
> > > As too many people on this list may know to their distress, I wrote a
> >piece
> > > in ConComm about a decade ago asserting that, as a semi
> >professional sports
> > > official, it turns out that the rules of baseball
> >and football are just as
> > > indeterminate as the first amendment. Consider
> >for example how determinate
> > > is the football ban on "unnecessary
> >roughness." Of course, three strikes and
> > > you are out. And if the
> >government violates the First Amendment, you cannot
> > > be convicted. But
> >what is a strike is contested as is what is a violation of
> > > the first
> >amendment.
> >
> >The shameless plug is: Graber, Mark A., Law and Sports
> > > Officiating: A
> >Misunderstood and Justly Neglected Relationship," 16
> > > Constitutional
> >Commentary 293(1999).
> >
> >MAG
> >
> > >>> <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
> >
> >philosoph
> >_______________________________________________
> >To
> > > post, send message to Conlawprof at lists.ucla.edu
> >To subscribe, unsubscribe,
> > > change options, or get password, see
> > >
> >http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> >Please
> > > note that messages sent to this large list cannot be viewed as private.
> > >
> >Anyone can subscribe to the list and read messages that are posted; people
> > > can
> >read the Web archives; and list members can (rightly or wrongly)
> > > forward the
> >messages to others.
> > >
> > > _______________________________________________
> > > To post, send message to Conlawprof at lists.ucla.edu
> > > To subscribe, unsubscribe, change options, or get password, see
> > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > >
> > > Please note that messages sent to this large list cannot be viewed as
> > > private.  Anyone can subscribe to the list and read messages that are
> > > posted; people can read the Web archives; and list members can (rightly or
> > > wrongly) forward the messages to others.
> > >
> > >
> >
> >
> >--
> >Lawrence Solum
> >John E. Cribbet Professor of Law
> >University of Illinois College of Law
> >504 East Pennsylvania Avenue
> >Champaign, IL  61820-6909
> >217.244.3960
> >lsolum at gmail.com
> >http://lsolum.blogspot.com
> >_______________________________________________
> >To post, send message to Conlawprof at lists.ucla.edu
> >To subscribe, unsubscribe, change options, or get password, see
> >http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> >Please note that messages sent to this large list cannot be viewed as
> >private.  Anyone can subscribe to the list and read messages that are
> >posted; people can read the Web archives; and list members can (rightly or
> >wrongly) forward the messages to others.
> 
> **********************************************************
> 
> Frank Cross
> McCombs School of Business
> The University of Texas at Austin
> 1 University Station B6000
> Austin, TX 78712-1178
> 
> 


-- 
Lawrence Solum
John E. Cribbet Professor of Law
University of Illinois College of Law
504 East Pennsylvania Avenue
Champaign, IL  61820-6909
217.244.3960
lsolum at gmail.com
http://lsolum.blogspot.com


More information about the Conlawprof mailing list