This week I have been trying to catch up on some tasks that have been on my list since early in the semester. One has been to post some of my recent papers on SSRN. To this end, I have just put up Color Commentators of the Bench, which may be of interest to certain Situationist readers. The abstract appears below:
Featuring prominently in the last four sets of Supreme Court confirmation hearings, the judge-as-umpire analogy has become the dominant frame for understanding the role of the Justice and may also now act as a significant constraint on judicial behavior. Strong criticisms from legal academics and journalists attacking the realism of the analogy have had little destabilizing effect. This Essay argues that the best hope for shifting the public conception of the work of a Justice is to offer a counter analogy that draws from an equally intuitive and familiar context, while also capturing the core essence of Supreme Court adjudication—the particular process of creative interpretation and explanation. The metaphor of the Justice as color commentator in the press box not only meets these criteria, but also makes explicit that judges are not robotic, objective arbiters. Moreover, in exposing the myth of judicial rationality and neutrality bolstered by the umpire analogy, the commentator alternative provides the possibility of helping Justices to better control for their biases and reducing damaging episodes of cognitive illiberalism. As further evidence of the appropriateness and robustness of the commentator analogy, the Essay concludes by demonstrating how sports commentating can be critiqued employing the precise implements developed by legal scholars to analyze judicial decision making.
To download a copy of the entire paper, click here.
For a sample of related Situationist posts, see “I’m Objective, You’re Biased,”