This Essay provides at least a limited defense of some parts of the umpire analogy and ultimately suggests that this analogy may tell us something important about the more general role of courts in the United States. This Essay proceeds in four parts. Part II explores in more depth what those making the umpire analogy appear to mean. At its heart, the analogy principally has been used to address the substantive decision making of judges. This Part will explain that there is more to the analogy than such a narrow decisional focus suggests. Part III builds on Part II. It explains non-decision making similarities between umpires and judges. This Part suggests that the analogy is more complex than is apparent if one only views it through the lens of decision making. It also explores how these non-decisional similarities can be useful in understanding the role of the judiciary in our constitutional system. Part IV of the Essay turns to the analogy as applied to decision making specifically. It is here that the debate has raged. Part IV argues that the analogy provides some important insight into the decisional role of judges. Part V returns to the broader theme of this symposium. It explains how the umpire analogy informs a consideration of the appropriate role of a judge in American constitutional democracy. It acknowledges the dangers inherent in the use of this particular analogy, but ultimately concludes that the risks are worth taking.
Michael P. Allen, A Limited Defense of (at Least Some of) the Umpire Analogy, 32 SEATTLE U. L. REV. 525 (2009).