Fans of American football are pretty much used to the instant replay by now. Suppose a receiver catches the ball in the end zone and is immediately hit. He bobbles the ball a bit before hitting the turf. The referee runs in from the sidelines and throws his arms into the air. Touchdown! Well, not so fast. The coach of the defense pulls a red flag from his sock and throws it on the ground in front of him, like Bolingbroke throwing down his gauntlet in Shakespeare. Suddenly the commentators calling the game, and me and my wife watching from home, start to sound like medieval metaphysicians. What does it mean to have control of the ball? What is the essence of a catch? We ponder such imponderables while the refs send the video to “New York,” where some oracle watches it and then gives a decision.

For a long time baseball didn’t have to put up with this nonsense. But about ten years ago, Major League Baseball allowed each manager to make one challenge per game, and the umps, as in football, await the word from “New York.” I’ve sometimes seen the umpire then announce the result to the crowd over the loudspeaker, like in football, which is ridiculous to me. But anyway, there were some plays that could not be reviewed, like checked swings, the infield fly rule, and most of all, balls and strikes. The umpire’s word on balls and strikes was final.

Now, we all know that some umpires are better than others. You can go online and watch some real doozies by umpires like the recently retired Angel Hernandez, sometimes called the worst umpire in baseball. Here’s a one-minute “highlight” reel.

We all want umps to make good calls, but the human factor, including the occasional error, is part of the game. And it’s not just that it provides entertainment, thought it can. Check out this epic rant from about five years ago by Yankees skipper Aaron Boone, who had just been evicted after some really terrible calls at the plate. I remember seeing Billy Martin run out of the dugout and kick dirt when he didn’t like a call when the Yankees used to come play the Indians at Cleveland Municipal Stadium.¹Here’s a classic example of Billy Martin kicking dirt and actually throwing dirt after a terrible call, but it’s not one I saw in person. Entertaining, and a part of the game and the culture of baseball.

It’s not just entertainment. Think about the top of the ninth inning, with the visitors up 12 to nothing. Even for the visiting team’s fans, not too fun to watch. There are two outs, but the pitcher has just walked two, and on a 1-2 count, the pitcher throws a pitch that is just off the corner of the plate. Yes, a ball is a ball and a strike is a strike. But you would have to be inhuman not to want the ump to put the pitcher out of his misery.²I recently read an article about automated systems calling balls and strikes that used an example like this one. I would credit the author if I could remember where I read it. Or think about the skill of the catcher who frames a pitch that might not, strictly speaking, be a strike but that looks really good after he’s done with it. Here’s a fun example from a little league game.

This season, in spring training, the Major Leagues are using the “Automated Ball-Strike System.” Under this rule, immediately after the umpire calls a ball or a strike, the batter, the pitcher, or the catcher can challenge the call, up to twice per game (but if the challenge succeeds, then the team challenging the call doesn’t “use up” one of the two challenges). Then “Hawk-Eye,” a computer system used in other sports, determines if the call was correct.

ABS does not replace the ump as the decisionmaker. It simply provides a means to challenge the ump’s call. There have been more radical suggestions. For example, several years ago, the Atlantic League, an independent league, had the umpires wear earpieces so they could hear the computer’s call on each pitch, though the umpire could still override the computer if he wished. And some have even proposed fully automating calling balls and strikes.

I am mostly a traditionalist in baseball matters, but not an absurd traditionalist. I like the pitch clock. Without the DH rule we would never have had Big Papi.³But interleague play was a terrible idea and we must never, ever let the “golden at-bat” come to be. I don’t like the ABS, but it won’t ruin the game. The ump still calls the balls and strikes, subject to a couple of challenges that must be made on the spot, without help, by the batter, the pitcher, or the catcher, and not by some math Ph.D. watching the game from the booth.

In case you haven’t guessed, I am not just writing about baseball. I’ve written recently about a proposal for an AI arbitrator, which would of course be much more radical than the ABS. It’s not just an appellate remedy for bad arbitral decisionmaking, it’s an outright replacement for the human arbitrator.

I’ve given some reasons for rejecting the “robot arbitrator” in my prior posts. Here, I want to focus on the baseball metaphor for dispute resolution. This is a common American metaphor, and it’s one that I think the proponents of Arbirus.ai share. Remember when John Roberts talked about “calling balls and strikes” at his confirmation hearing in the Senate? I think he meant something like, “I call ’em as I see ’em,” or, “I play it straight,” which is of course what any judge or arbitrator should do. But you can misread the Chief Justice to mean something like, “the process of decision is and should be mechanical,” which is a terrible model of how appellate decision-making works and, I suggest, also a terrible model of how any legal reasoning works. There are of course lots of cases where the law is clear and where the facts are not disputed. Those cases could be decided mechanically, but they are mostly not cases that should be in court, or in arbitration, in the first place.⁴Sometimes they must be, because a claimant in such a case needs an enforceable decision in order invoke the state’s mechanisms for collection. They are not the disputes that you want to develop a system of dispute resolution around.

But dispute resolution is also, like baseball, about more than just rules and correct outcomes. Dispute resolution is a part of our culture, like baseball is a part of our culture. It has social meaning, probably more so than baseball these days. I think an important part of what makes dispute resolution socially important and acceptable is the litigants’ opportunity to tell their stories to a human being and to receive that person’s human judgment. I’m not a sociologist. But I think the idea of at least one of the proponents of Arbitrus.ai, who must’ve taken a class on Augustine or Aquinas and who somehow got the idea that anyone opposed in principle to AIs replacing human judges or arbitrators has medieval ideas about “ensoulment,” is profoundly ignorant of how human institutions work. Just as someone who thinks you can replace the umpire with a computer doesn’t understand baseball at all.

• 1
  Here’s a classic example of Billy Martin kicking dirt and actually throwing dirt after a terrible call, but it’s not one I saw in person.
• 2
  I recently read an article about automated systems calling balls and strikes that used an example like this one. I would credit the author if I could remember where I read it.
• 3
  But interleague play was a terrible idea and we must never, ever let the “golden at-bat” come to be.
• 4
  Sometimes they must be, because a claimant in such a case needs an enforceable decision in order invoke the state’s mechanisms for collection.