"I'm Not a Biologist": A Hayekian Perspective on the Judge's Implementation of Knowledge and the Unpire Analogy

Document Type

Article

Publication Title

Rutgers Journal of Law and Public Policy

Abstract

While the renowned metaphor of judges as umpires has continued to hold relevancy, it has continued to face scrutiny in recent years. Moreover, the metes and bounds of judges are still arguably ambiguous to this very day. As Justice Kagan put it, "because it wrongly implies that high-court judging 'is a kind of robotic enterprise ... that everything is clear cut."' This legal juxtaposition raises immense concerns about (a) the degree of knowledge necessary to play by the rules in a technologically advancing society, and (b) the roles and expectations of our justice system, especially within the Supreme Court of the United States (SCOTUS), which for years has become labeled as "anti-science." How can justices improve in applying the rules? How does one effectively interpret the rules and laws of a nation for the good of the people when society falls into a state of educational regression? Is there a way that SCOTUS can make better informed decisions? Overall, knowledge of the rules alone would not be enough. In answering these questions, I turn to renowned economist, F. A. Hayek, whose essays and presentations have gained recognition in legal scholarship. In summary, this article aims to address a few things through a Hayekian lens: (1) it will analyze the judge as umpire analogy and the fallacies therein; (2) it will uncover the degrees of knowledge applicable in both law and economics; and (3) provide judicial solutions and suggestions that will facilitate effective and efficient decision-making as society continues making scientific and technological advancements.

First Page

77

Last Page

102

Publication Date

Spring 2023

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