The Roberts' Court

[RJLipkin at aol.com]

In a message dated 9/13/2005 9:56:22 AM Eastern Standard Time,  
srbagenstos at wulaw.wustl.edu writes:

Is the  balk rule determinate?  Catcher's  interference?



First, there's a difference  between the meaning of a rule and its 
application. A strike is a pitch that is  over the plate within the strike zone (chest 
to knees?). It's not the umpire's  job to reinterpret, modify, redefine, and so 
forth the rule as one  on some occasions to permit the ball to be two inches 
from the  plate but not permit it on other occasions. Whether some pitch 
actually is in  the strike is the application of the rule and of course may involve 
 judgment.
 
        Second, and more  important, my point is that if baseball rules are 
determinate, then short  of an ideal Thayerian Court which I think is 
impossible, the Roberts' Court 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. 
 
        Either way the model of a  judge as an umpire is either impossible or 
disingenuous.
 
Bobby
 
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
Delaware
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