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Abstract

This Article extends the project of exploring the metaphor to the specific context of constitutional adjudication and change. It works from the understanding that both sports and constitutional law can be understood as “practices” in the philosophical sense, as “activities that are constituted by the convergent or overlapping understandings, expectations, and intentions of multiple participants.” The analysis is thus fundamentally comparative in nature. Conceiving of the operation of constitutional law in these terms, like any comparative analysis, helps to uncover and highlight certain of its features, including the ways in which its content is susceptible to change, only some of which occur in the formalistic ways easily accounted for by the umpire model. The approach is useful not only in providing a counter to the notion of the judge-as-umpire, but also in that it helps flesh out, supplement, and make more concrete a model of constitutional law that includes judicially implemented change.

The metaphor also operates as a caution. Figure-skating judges, after all, do not enjoy a sterling reputation for impartiality or incorruptibility. Recognition that judges in the legal system perform an analogous role— and one that is likewise heavily dependent on the good-faith application of an internalized cluster of norms and values—thus serves to highlight the need for attention to institutional legitimacy and invites consideration of ways in which that legitimacy might be preserved (or eroded). If the comparison reveals that some of the two worlds’ shared features play a significant part in the story of why figure-skating judging is regarded with suspicion, then we ought to carefully examine those features’ role in the legal system as well. This lesson is especially pertinent in the current environment of deep partisan division.

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