Am I Right?

How to live ethically

Do Umpires Call Them As They Are or As They See Them?

Biases play a role in sports and in the courts.

The first home plate umpire says, “I call them as they are.” The second says, “I call them as I see them.” The third says, “They ain’t nothing until I call them.”

The last umpire is obviously correct: the umpire’s call is final, at least with balls and strikes. As for the dispute between the first and second umpires, most umpires will stick with the first statement. They believe they are objective callers of reality.

But a new study by two business school professors, Jerry Kim and Brayden King, shows otherwise. Their evidence (more than 7,000 pitches over more than 300,000 at bats) found that professional umpires made 17 percent more errors in favor of All-Star pitchers as compared to pitchers who had never been selected for an All-Star game. This was after adjusted for factors such as home field advantage and whether the pitcher or hitter was lefty or righty.

Umpires deny the validity of the study, just as soccer referees deny they favor the home team. A study by Peter Dawson published in the Journal of Royal Statistical Society Series A analyzed more than 2,500 English Premiership matches and found that more penalty cards were given against away teams.

The studies prove what fans and players have long contended: umpires and refs are biased. This doesn’t mean that umpires aren’t telling the truth when they deny the allegations. They believe they are objective. The fact is that they don’t call them as they are but call them as they see them. And what is seen comes through a number of factors beyond the umpires’ awareness.

Context shapes what we experience and what we experience shapes what we believe to be the unadorned facts.

This is sports, after all. But certainly it isn’t true when it comes to the court system. Or is it?

Adam Glyn, of Harvard, and Maya Sen, of University of Rochester, in “Identifying Judicial Empathy: Does Having Daughters Cause Judges to Rule for Women’s Issues?” (American Journal of Political Science) contend that justices are also subject to unconscious biases that get expressed in their court decisions. They looked at U.S. Courts of Appeals judges and found that “conditional on the number of children a judge has, judges with daughters consistently vote in a more feminist fashion on gender issues than judges who have only sons. This result survives a number of robustness tests and appears to be driven primarily by Republican judges. More broadly, this result demonstrates that personal experiences influence how judges make decisions, and this is the first article to show that empathy may indeed be a component in how judges decide cases.”

Judges, like refs and umpires, will insist they are free from biases. While good umpires and good judges will strive to be objective, it is impossible for them not to inject a subjective bias.

Sporting events have introduced instant replays to correct for some of the incorrect calls. And the court system relies upon layers of appeal but even this is insufficient if the judges largely share the same backgrounds and experiences.

The corrective for the courts is for the bench to reflect the diversity of the population. It isn’t enough to find the best judges but to find the best judges from varied backgrounds. The race, ethnicity, sex and religion of the judges color their decisions, whether they admit it or not. Only a diverse court gets close to correcting for the unwitting biases.

Arthur Dobrin, D.S.W., teaches applied ethics at Hofstra University. He is the author, coauthor, and editor of more than twenty books.

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