Aaron Zelinsky (Yale Law School) has posted The Supreme Court (of Baseball) (Yale Law Journal Online, Vol. 121, p. 143, 2011) on SSRN. Here is the abstract:
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At his 2005 confirmation hearing, Chief Justice Roberts explained that he viewed the job of a Supreme Court Justice as similar to that of an umpire. In a 2010 essay, I traced the history of the judge-umpire analogy from 1888 to the present and found that the judge-umpire analogy was originally intended to apply to trial court judges and was advanced as a model to be rejected. In place of the judge-umpire analogy, I proposed that a Supreme Court Justice is more appropriately analogized to the Commissioner of Baseball. This Essay reinforces the Justice Commissioner analogy in two ways. First, it traces the Justice Commissioner analogy back over a century, finding that the Commissioner of Baseball has been compared to the Supreme Court since the Office of the Commissioner was created. This is no coincidence, since both Justices and Commissioners play the same structural roles in their respective systems. Second, this Essay illustrates the similarity of Justices and Commissioners through nine paired case studies where Justices and Commissioners have, in their respective capacities, (1) provided guidance, (2) refrained from error correction, (3) undertaken rule-making, (4) exercised counter-majoritarian powers, (5) provided explanations for their decisions, (6) protected the fundamental values of their respective institutions, (7) employed special masters for fact-specific inquiries, (8) decided on statutes of limitations, and (9) exercised finality.