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these situations, what the law demands depends on what the legal decision maker believes about the choices made. You will lose your tort suit if the judge or jury believes that your choice to put your head in the way of the ball or ax was more blameworthy than the choice of those who failed to protect you from those risks. You will win your old job back if the jury would recognize that your choice to resign was made under undue pressure. You will be acquitted of murder if the jury believes your bad choice of leaving your child in your car is understandable, if horribly tragic. The accused will be convicted of rape if the jury believes his choice to continue the encounter after you said “no” was blameworthy, given the specifics of the situation. The guru will be convicted if the jury feels his authority vitiated the free will of those in the sweat lodge.

In each situation, there is indeed law to apply. You must act with due care. You must abide by contracts. You may not cause the death of another. Sex without consent is rape. But the actual implication of the law—has there been a tort? is the contract valid? should someone be punished?—is not clear until we know a lot more about the situation. The law has substance only in its application.

Every time politicians talk about judges—especially when the president has nominated someone to the Supreme Court—it seems we are reminded that judges are not to “make law.” But law is made each time it is applied, since (in most cases) there is no way to articulate what the contours of the legal requirement are without reference to the immediate situation. Judges make law all the time, and so do juries.

One might think that this lack of clarity in the law is a defect, and sometimes it is. If ambiguity arises because of ham-fisted legislative drafting, failure of foresight, or political unwillingness to make the difficult regulatory choices, then lack of clarity is indeed a legal flaw. It is also a serious problem if judges use vagueness to impose their own prejudice onto the parties. But forcing judges and juries to listen to stories in order to make choices about the choices that other people have made is a fundamental purpose of law.

The law’s vagueness can have surprising benefits. Gray areas force legal decision makers to look at the nuances and particularities of situation before issuing legal edicts or making determinations of blame.

3.

Let’s get back to umpires.

The story of Jim Joyce and Armando Galarraga is an example of how even experts make flawed decisions, and how we all need a dose of humility in responding to the mistakes of others. But there is a more famous use of umpires as metaphors, and it relates to the clarity or ambiguity of law.

When John Roberts was nominated by President George W. Bush to be chief justice of the United States, he began his confirmation hearings by saying he wanted to be an umpire. “Judges are like umpires. Umpires don’t make the rules; they apply them . . . And I will remember that it’s my job to call balls and strikes and not to pitch or bat.”17

Roberts, by all accounts, is a very intelligent man. (Once, when he was an attorney, I watched him argue a very complicated case about admiralty law before the Supreme Court. He argued without notes, even quoting the applicable statute from memory when he was asked about it.) But the metaphor of judge as umpire is jaw-droppingly simplistic. Precision in the law is the exception, not the rule.

When the law demands situational judging, it is not particularly enlightening to compare a judge’s work to that of an umpire. A judge should be impartial, to be sure, like an umpire. But judicial judgment is immensely more complex than umpiring judgment. Calling balls and strikes is relatively straightforward, and one thing every baseball player knows is that you cannot argue balls and strikes. There is no quicker way to ejection. But the very purpose of law is to hear arguments, to contextualize the application of law by hearing stories and making the bad choice choice.

Four years after Roberts