The Judge-as-Umpire Debate, 118 Years Ago

From Ezra R. Thayer, Judicial Legislation: Its Legitimate Function in the Development of the Common Law, 5 Harv. L. Rev. 172, 198-99 (1891), an article that begins with “The phrase ‘judicial legislation’ carries on its face the notion of judicial usurpation,” and that aims to rebut that assumption:

[Mr. Carter] likens the judge to the referee of an athletic contest, each being, as he says, an expert chosen to declare the customs of the game. The illustration is an unfortunate one; for whatever may be true of the judge, nothing could be more untrue of the referee. In any form of athletic sports which is at all developed, the customs of the game are fixed with absolute rigidity. So far as it becomes desirable to change them, they are changed from time to time by persons in authority. In a whole season of professional base-ball there are few cases in which the least doubt arises as to these rules, and such cases are decided by the umpire merely because he is the most convenient person to appeal to. So far as these rare disputes go the umpire might be dispensed with altogether. The players could easily reserve the point for the higher board which in any event ultimately decides it, and continue the game. The real duty of the umpire is to decide pure questions of fact, — whether A or B first reached a certain point,w hether the ball was caught or dropped, etc. He is a jury, not a judge. If he were a judge, and if the illustration were apt, it would be fatal to Mr. Carter’s argument, for base-ball football, and prize-fighting are instances of perfect and successful codification. The conditions of the game make a code possible, and indeed necessary.

Ezra Thayer was apparently the son of the noted Harvard Law School professor James Bradley Thayer, and eventually himself Dean of Harvard Law School.