Aaron Zelinsky of Yale Law School has just posted on SSRN a draft of his forthcoming piece in Yale Law Journal Online titled “The Justice as Commissioner: Benching the Judge-Umpire Analogy“. It’s an excellent read. Zelinsky traces the judicial history of the judge-umpire analogy since 1886, concluding that it was intended for trial court judges, and meant as a model to be rejected because of an umpire’s passivity. In its place, Zelinsky proposes that Supreme Court Justices are properly analogous to Commissioners of Baseball, since both provide interpretive guidance to subordinates, undertake extended deliberation, take countermajoritarian action, and wield substantial rulemaking power.

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