Michael Patrick Allen (Stetson University – College of Law) has posted A Limited Defense of (at Least Some of) the Umpire Analogy (Seattle University Law Review, Vol. 32, 2009) on SSRN. Here is the abstract:
This Essay is part of a symposium in the Seattle University Law Review concerning the proper role of the judiciary in American government. In it, I provide a partial defense of the analogy between a judge and an umpire, a topic recently reignited in connection with the confirmation hearings of John Roberts to be the Chief Justice of the United States. The Essay first explores the ways in which this analogy is useful in comparing the non-decisional roles of judges and umpires. It then turns to the similarities in decision-making between these two actors. After canvassing these similarities, as well as acknowledging both the limitations of and dangers inherent in the analogy, the Essay ultimately concludes that the comparison has some important utility in understanding the role of judges in American constitutional democracy.