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FIFTEEN JUDGES FROM U.S. FEDERAL AND STATE COURTS and two more jurists from Canada and Ghana, respectively, convened at Duke Law in mid-May for their second session of studies in the Master of Judicial Studies pro­gram. Their curriculum over four weeks included rigorous courses on the use of foreign law in U.S. courts; administrative law, national security and foreign relations law; accuracy and error in the criminal justice process; and problems in self-regulation, all taught by Duke Law faculty scholars. Chief Judge Edward  Carnes of the U.S. Court of Appeals for the Eleventh Circuit and U.S. Supreme Court Associate Justice Antonin Scalia taught a master class on judicial writing.

The student-judges prepared for their capstone thesis projects through a course on research and design taught by Professors Jack Knight and Mitu Gulati, the faculty co-directors of the master’s program, and through the Judges’ Seminar, co-taught by Dean David F. Levi, Professor Francis McGovern, and Judge Lee Rosenthal of the U.S. District Court for the Southern District of Texas, along with distinguished guest lectur­ers. Having spent the first session of the Judges’ Seminar examining different aspects of judging that apply to state and federal courts, trial and appellate judges, and civil and criminal cases, the judges delved more deeply into some of the problems they identified, suggesting solutions for improvement, and contemplating the future for judges, lawyers, public court systems, and parallel private dispute resolution systems.

As they approached the end of their time in residence at Duke Law — and prepared to start on their thesis research — three members of the class sat down with Levi, the former chief U.S. district judge for the Eastern District of California, to reflect on their experience in the Master of Judicial Studies program as well as some of the critical issues facing the U.S. judicial system.

Dean Levi: What do you see from your own experience as the most pressing problems affecting or facing the courts, and how can law schools and professors be helpful to the courts?

Justice Guzman: I think one important overarching theme is protecting the legitimacy of the courts and our court system. The access-to-justice issues, for example — how do we, as leaders in the judicial system, address the needs of the under-served in our communities? How do we ensure that litigants in the criminal court system have access to highly qualified lawyers? And, how do we ensure our courts have interpreters that can help non-English-speaking folks?

Another issue is professionalism. As our profession changes, and as technology continues to advance, we face new challenges in maintaining and fostering professionalism. I read somewhere that a lawyer has taken to posting depositions on YouTube as a means of forcing settlements, if you will, from litigants. So as courts, how can we protect the legitimacy of the process and of the system, and what can we do as leaders in the judiciary to instill professionalism in every sense of the word?

Judge Pro: I agree with Eva’s concerns. In addition to the ever present issue of access, my view is understandably influenced by where I sit in the federal judiciary. I see the conditions over time becoming more difficult. Part of it is the resource limitation. We are suffering significant reductions in resources. And these are not limited to reductions of financial resources for staff and facilities and technology — those are awfully, awfully important and they’re very damaging over time to the fabric of the judiciary — but also the inability to obtain new judicial resources in a timely fashion. The very slow process of nomination and confirmation of new judges is taking its toll, and causing delay, which is also a factor of access to justice. It’s also pushing a great many litigants to alterna­tive dispute resolution.

It’s hard to make a value judgment about that — whether that’s a good thing or a bad thing, they make their own decisions. But I see it as a really difficult issue for us, and it plays into the issue of access to justice as well.

Justice Timmons-Goodson: Absolutely. The business of our courts and the mission of our courts continue to be justice. That has not changed. And money — two different ways of looking at it — presents what may become an insurmountable problem, if we are not careful.

On the one hand, a lack of money. That goes into what you said, Phil, about it affecting our courts, the lack of sufficient funding of our courts. It’s been said over time that justice delayed is justice denied, and with many of our jurisdictions we are experiencing criti­cal insufficiencies with regard to resources. We’ve all heard of courts having to reduce the number of hours in which they hold court, and that’s problematic. And so that works into Eva’s point about access to justice. If you have a case that’s not heard for a long time and you move over to alternative dispute resolution. Again, folks are delayed so they go over to the private source for justice. So that’s the problem that money is presenting on one hand.

Another problem is posed by the money that’s going into our judicial races. The problem is one of an overabundance of money, if you will. Again, it’s the corruptive, corrosive effect of large sums of money going into our judicial races. So I just see money as a problem.

Pro: Pat’s talking about an elective type of system and I was talking about an appointive system. But the failures or the difficulties are cor­rosive to both, I think, in terms of attracting people willing to under­go that process. Not that you won’t find people who desperately want to serve the public as judges in our federal or state courts. I hope that would never change.

Levi: Let’s assume that the conditions you point to are not going to change. There are not going to be significant new resources. Judges are going to continue to be elected in some fashion. Congress and the Senate and the president are going to continue to fight over nomina­tions and appropriations. Hypothetically accept that it’s not changing any time soon. What do we do? Are there any good alternatives out there to expand the capacity of the system?

Guzman: Not all states elect their judges. Many don’t. And some have moved from systems of selecting their judges through election to retention elections. I think it’s important for judges to continue the dialogue to educate the public and to really raise public awareness about the judiciary, about the various methods of selecting judges, and to continue to raise awareness even in the bar about the impact of money, about the financing of elections. But if you are a judge in a system with elected judges, then you need to exercise this rule of law value — this norm — to protect the independence and the legitimacy of the courts. The judges themselves have to decide how they’re going to fit in to a system of elected judges. And it is important for the judge to always be concerned about the rule of law values that guide how we conduct ourselves as judges. We can’t take the money out of the system but we can change how we react to the money in the system.

Timmons-Goodson:  In North Carolina we’ve long had elections and I don’t expect the people to relinquish that right to elect judges.  What I was trying to highlight are the huge sums of money that have suddenly come into judicial races. Such has not always been the case.  It results from changes in the law and procedure.

Levi: So that could change back. You’re making some good distinctions. There’s a distinction between having a restrained electoral system and a wide open, highly partisan, and expensive electoral system. And there is a difference between a retention election and one where the initial selection of the judge is by election. What other issues concern you?

Timmons-Goodson: There’s a great deal of anecdotal evidence that tells us that while, at one point, the poor could not afford legal ser­vices, now the rising costs of legal services are such that many within our middle class cannot afford access. That is something that we are going to have to address as a profession. And how we do that I don’t know, but I know that there are an awful lot of young lawyers com­ing out of school with a lot of debt and no jobs. And then you have a large number of individuals — middle-class individuals — who need legal services but cannot afford the hourly rate that’s currently being offered. Perhaps a resolution can come there. You have a demand and something can be done there.

Pro: Let me take it from the angle of the federal courts under the hypothetical that you pose, and it might not be hypothetical, it may be the reality, David. This is not something that’s just happened, it’s hap­pened over a period of time, and so if you’re dealt a bucket of lemons you make lemonade. You do the best that you can. For a long time we tried to do more with less. There were efficiencies that we would try to garner throughout the federal judiciary under the rubric of what’s called cost containment, consolidation, sharing administrative resources between the components of the judiciary. And these were things that worked: new uses of technology, the electronic case filing system, and the efficiencies that come with that which I think did allow us to do more with less.

However, you reach a point, inevitably, when you’re going to do less with less — when you simply don’t have the courtrooms, the judges, the staff to process the cases. But it does force us to be inno­vative in a variety of ways. One example, surely, is the continued evolution of the magistrate judges system. The reliance on adjuncts, components of the judiciary that don’t require the Article III nomi­nation and confirmation process, can be used and expanded very fruitfully. Currently in some districts they’re being used to conduct court-annexed alternative dispute resolution in Title VII cases, pris­oner cases, the ubiquitous settlement conferences, naturally, and drug courts, which are something to try and siphon off some of the criminal cases that might find their way into the court. As a former assistant U.S. attorney, I recognize that it may have an impact on the cases that are brought, how they’re triaged, which cases are going to be brought in the federal courts on the criminal side, just as it has an impact on the cases that parties elect to bring civilly. They divert to private ADR or maybe some sort of administrative avenue that’s available to them.

So I think there are things that we can all look to within our own shop and see how we can perhaps be more efficient. We really have no alternative.

Another aspect is reliance on our senior judge cadre. Now I’m a relatively new senior judge and I had illusions that I’d have a lot of spare time. And I find all of a sudden that there’s a lot going on. There’s a natural pressure, I think, on any of us, not to leave our active colleagues in the lurch, so you continue to do it. And you rely on that to a degree. But you can’t rely on that indefinitely. It’s an aging judicia­ry, and if we can’t fill judicial vacancies, it becomes more problematic.

Levi: There does seem to be a point — Pat’s point — about a mis­match or a problem in the marketplace: You have young lawyers from some of the schools — not Duke, I am quick to say — who don’t have enough to do, or don’t have jobs, and then you have a lot of senior lawyers who probably will retire in their early 60s and who are tre­mendous advocates and mentors and probably would volunteer to sit pro tem in the state courts and try a civil case. And then we have this unmet need for lawyers and judges.  If we could find out how to use these resources to address the need, might we make an impact on the problem of access and delay?

Pro: That is an area that I think needs to be explored more fully, not only by the courts. Perhaps the law schools could provide an interesting bridge.

Levi: Maybe we could have our own little court system here. Some of our alums who have retired could come back to sit as volunteer judges. Obviously we’d have to have the agreement of the parties and it would probably only work for civil cases.

Pro: Look at the clinical programs. There are lots of areas where law students and soon to be young lawyers have some mentoring oppor­tunities, not only through faculty but also adjunct faculty who are those very practicing lawyers that you’re talking about. To the extent that you could develop programs that utilize some of those underused experienced lawyers to team up with your students or your recent graduates, I think that that’s one thing that might be very construc­tive and worth exploring.

Levi: What else do you think the schools can do?

Guzman: I think a great start is creating this world-class LLM pro­gram to help the judiciary understand the most pressing issues facing the profession, to engage in dialogue with colleagues from all over the world, and to really think about what we can do. You mentioned earlier the problems that will always be with us — the money, the limited resources. But I think just being in this setting and engaging in the dialogue and hearing from experts across a spectrum of fields really expands our knowledge base, and we can take that back home and examine the challenges in our own jurisdictions from a differ­ent perspective. And it’s a perspective gleaned from many hours of engaging dialogue and lectures.

Levi: It’s thrilling for me to hear that. I think judges need opportuni­ties for reflection and they often don’t get it.

Pro: That’s one of the reasons I signed up for this program: to keep myself challenged and energized and excited about what I was doing after so many years. So this program at Duke was made to order for someone like me and so many of my colleagues, I think, and fills a very important gap. You have to pause for reflection. With the tech­nology we have, I’m still able to do my work each day. I’ll go back and be on the phone in a little while with my staff back home, and I conducted some hearings by phone yesterday so I am able to keep up. This opportunity to have the exchanges we’ve had now for two terms at Duke is simply invaluable in terms of putting what we do, what we’ve done, and what we’re going to do, in perspective.

Timmons-Goodson: Dean, I think that Duke has hit on just a tre­mendous notion and model. This two-year program is wonderful. But might there be something short of two years, as well, that you might be able to craft that will be a real benefit to states, picking up on Phil’s notion of being able to reflect. It seems to me that states should want a program that will permit their experienced judges reflective time and a bit of respite so as to recharge their batteries that will [thus] allow them to stay around longer. You know, you train judges and then some of them, sometimes just due to burnout, leave.

Anyway, I think you’ve hit on something and you just need to keep on thinking. There are a lot of benefits and other avenues that will stem from this. I think you would be able to render a very valuable service to the state and federal judiciary.

Pro: I’d add one thing to that — it’s a pet subject of mine — and that’s law-related education. I know Justice O’Connor, of course, is so active in this area and I have been since I was in law school. It’s a subject that I think gets too little attention, not only by the bar and certainly by the judiciary, but also in our schools, unfortunately. We depend on the support of the public to be an independent judiciary. It’s essential to maintaining a democracy and the rule of law. And when we have a public that’s so uninformed about the legal system, it’s very easy for them to pick up the popular cudgel that it’s partisan and it’s “Rs” and “Ds” and that’s a simplistic explanation. They do not fully understand the role that the judiciary, whether it’s elected or appointed, serves in our republic. We need to continually work on that.

Levi: Tell me what you’re thinking about for your master’s dissertation.

Guzman: Part of the purpose of this session was to get us to think seriously about our thesis topic. Jack and Mitu have done an excellent job of really making us think and reflect on this baseline idea that we have, and on developing it.

I have really been intrigued with the behavioral models and the judicial decision-making models and how much has been published on the subject. The public has perceptions about what we do as judg­es, we self-report about what we think we do as judges, and the stud­ies suggest what others think we do as judges. And looking at that, I’ve decided to engage with the behavioral models.

Given that women now comprise about 30 percent of the judiciary — the ’70s saw some women holding judgeships, the ’80s really was a sea change, if you will, for the number of women in the profession. Here we are, 30-40 years later — how do women judges approach the issue of judicial opinion writing? A lot of the research has focused on outcomes. They look at an outcome in a case and they draw conclu­sions about ideology or any other number of variables. But I think that what is more telling about what actually happens in the case is the judicial opinion. So I will be examining judicial opinions from three different courts and looking at whether there are any gender influences. Do women write separately more? Do they write separate­ly more frequently or less frequently when they sit on mixed-gender panels? I believe this research will be helpful to the dialogue because I think it may push back on some of the behavioral models. My thesis is currently in the very rough stages, but I find the subject fascinating and I’m going to engage with it.

Another thing that a lot of us are doing is interviewing other judg­es. Perhaps we are uniquely situated to have access to other judges and to have a more forthcoming dialogue. I’m anticipating that the interviews themselves will really inform the judicial decision-making models and, perhaps, again, push back on expectations. We’ve all dis­cussed getting interviews to support our theses.

Levi: I think it’s definitely true that you’re in a great position to interview other judges. I bet you will get access and much more infor­mative answers because they trust you and because they know you understand what it is like to be in their robes.

Pro: I’m working on something that is delicate, per se, but feeds into something we talked about earlier in terms of the future — particu­larly a future without particular resources — and that is the magis­trate judges system.

There is precious little written, in academia, on the magistrate judges system. It didn’t exist until the Federal Magistrates Act of 1968. I’ve written on it previously, back in the mid-’90s when I chaired the committee for the judicial conference that oversees that system. But I wanted to take a deeper look at how that system has progressed. It’s an evolution becoming a revolution, in essence. Is there an optimum model for the utilization of magistrate judges? The growth in the number of consent proceedings that occur before the magistrate judges and the way those are occurring and perhaps why and where they’re being utilized in that fashion. The method of selec­tion of magistrate judges and bankruptcy judges is quite a bit differ­ent from that of the Article III judiciary.

None of the behavioral studies, even the most recent ones, take a serious look at the trial courts, let alone the magistrate judges within the trial courts. They’ll just mention them in a footnote, in passing, saying, “This needs further study.” I think the analysis thus far has been pretty shallow. I’d like to add to that and maybe provoke interest. After all, nearly 20 percent of the Article III judiciary is comprised of former magistrate judges. There are 167 former magistrate judges now or recently serving as Article III judges.

So I’m looking at whether there is an optimum model, given that all of these changes are taking place. Intuitively I’m expecting the answer would be “no.” There needs to be flexibility in utilization of magistrates, given the divergent needs of the 94 districts and the structure of the magistrate judges’ system which at its core includes that language from back in 1968 allowing assignment of such addi­tional duties as are not inconsistent with the Constitution of the United States. But there are things that could be looked at that would improve their utilization.

I’m also considering examining the issue of the aging judge. It’s a topic that needs to be on the table in the judiciary. People need to start confronting and dealing with it, or we’re going to have more dif­ficulties. And it’s a very delicate issue.

If we, as a judiciary, don’t address it in a constructive and com­passionate way, we invite it being addressed by our colleagues in a separate branch. They will not do it as smoothly or as well or as com­passionately or as thoughtfully as we will ourselves. And it’s not just about the judge. It’s really about, again, the institution of the judiciary and public confidence.

Levi: These are important issues. Pat?

Timmons-Goodson: Dean, my biggest challenge has been select­ing a topic. There is so much of interest to me. I’m not sure this is where I’ll end up, but I’ve started looking at decision-making on state courts of last resort, specifically with a focus on pragmatism.

State courts of last resort or state supreme courts are established by state constitutions and are the final arbiters of state law, and quite often it falls to them to address policy issues and questions. If they do that, might there be an argument to be made that they are judging pragmatically as they sit around the table and talk about consequenc­es and implications for the future? That sure is fascinating to me. How is it that I’m going to establish that, I’m not quite sure. You’re not in the conference room when the judges discuss their decisions. The only eye or window we have into judicial decision-making is the opinions. So can an argument be made that they demonstrate prag­matism or pragmatic judging?

Guzman: A great source might be the amicus briefs, and even the lawyers’ briefs that are filed on issues that tend to raise serious ques­tions about how this rule will play out and the policy underlying the rule. And do the opinions track or express the arguments [in those briefs]? Sometimes they do. I know when we’re dealing with some tough issues — environmental issues, issues relating to water in Texas, for example — we do get a lot of amicus briefs and they do make those arguments. They want us to consider them. And so to what extent can you glean from the opinions things that align with the amicus briefs?

Timmons-Goodson: What’s fascinating to me is law. When you say, “the law,” that you are deciding “the law,” you can look at it narrowly or you can look at it broadly. And I think that state supreme courts, because that’s my focus, we’re often called upon to look at it broadly.

Levi: It would be very interesting to know if on balance state supreme courts take a different approach to judging than federal appellate judges or even U.S. Supreme Court justices.

Pro: Again, David, you are to be commended on this program.

Guzman: I think a defining feature of this program is the depth and the quality of the instruction. The fact that we got to hear from two U.S. Supreme Court justices — I’m thinking about my own background and I’m think­ing, “You’re in class, and Justice Scalia is your instructor,” and the rigor that’s associated with it. Whether you realize it or not, you’re forcing us to go deep into the doctrines and deep into the cases and deep into the philosophical aspect of judging.

Levi: Thank you all. It is going to be happy day when I get to award you your degree and welcome you into the ranks of the Duke Law alumni community. This program would not be so exciting and so successful without the caliber and ded­ication of this first class of remarkable judges. Thank you.