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350 Chapter 15
(a) Dworkin writes: ‘Denny Martinez never filed an opinion.’ 19 Denny
Martinez was a famous pitcher for the Boston Red Sox who denied that any
given pitch had a ‘theory’ behind it. Thus, the practice of baseball and the
practice of judging – according to Dworkin – could not be more different.
(b) Fish offers this reply: ‘Meaning I take it that Martinez’s resistance to theory
[on Dworkin’s view] ... can be explained by the fact that the activity [Martinez]
is engaged in is not a reflective one, as opposed say, to the activity of lawyering ...’ 20
(c) Fish then continues his assault on Dworkin’s position: ‘In Dworkin’s view
this distinction marks a hierarchy in which the reflective practitioner is
superior, even morally superior, to the practitioner who just goes about his
business. Indeed, so committed is Dworkin to this valorisation of the
reflective temperament . . . that he finds it in places he has just declared it
absent.’ 21
(e) Dworkin contends: ‘Even in baseball ... theory has more to do with
practice than Fish acknowledges. The last player who hit .400, fifty years ago,
was the greatest hitter of modern times, and he built a theory before every
pitch.’ 22
(f) Fish responds: ‘Now I yield to no one in my admiration for Ted Williams, who
has been my idol since boyhood ... But the fact that Williams was a student of
hitting and wrote a much admired book on the subject ... does not mean either
that his exploits are the product of his analyses or that players ... less inclined to
technical ruminations on their art were lesser performers. Williams himself
testifies to the absence between theory and practice when he reports the view of
another “thinking man’s” hitter, Ty Cobb. “Ty Cobb ... used to say the direction of
the stride depended on where the pitch was – inside pitch, you bail out a little;
outside you’d move toward the plate”. Of Cobb’s analysis Williams says flatly,
“This is wrong because it is impossible”, and then goes on to explain that given
the distance between pitcher and batter, the speed of the ball, “you the batter
have already made your stride before you know [consciously] where the ball will
be or what it will be”. What this means is that Cobb, possessor of the highest
lifetime batting average in baseball history (.367), did not understand – theoretically
that is – what he was nevertheless doing better than anyone else who ever played the
game ... Later in the book Williams calls Cobb the smartest hitter of all and we
must assume that his intelligence ... had nothing to do with his theoretical skills,
which were, as Williams has demonstrated, deficient ... What was the content of
the intelligence Williams so much admires: ... “thinking it out, learning the
situations, knowing your opponent, and most important, knowing yourself ”...
The point becomes clear when Williams declares that “guessing or anticipating
goes hand in hand with proper thinking” ... The smart hitter, in short, pays
attention ...’ 23
19 R Dworkin ‘Pragmatism, right answers and true banality’ in M Brint & W Weaver (eds)
Pragmatism in law and society (1991) 359 368.
20
S Fish ‘Almost pragmatism: The jurisprudence of Richard Posner, Richard Rorty and
Ronald Dworkin in Fish (n 18 above) 200 228.
21 As above.
22
Dworkin (n 19 above) 382.
23 Fish (n 20 above) 229. Perhaps Professor Fish would do well to watch the Brad Pitt
movie Moneyball (2011) – or he could read the book – to see how statistics radically
altered the manner in which baseball players are assessed and how teams are
constructed. The answer: By statistics that rely upon complex algorithms.