I am at a transition point in my life as a lawyer, having served as a United States District Judge for nearly 17 years and now, as of 5 months ago, a new law school dean at Duke. I thought I would take this opportunity to reflect on a few aspects of this transition, but also to try to understand whether there is some unifying theme.
A few years ago the New Yorker magazine had a cartoon that showed a hedgehog sitting alone at a bar with a drink in hand. The hedgehog says to the bartender: “The fox knows many things but the hedgehog knows one big thing. Want to hear it?” The cartoonist was apparently a student of the classics because this line about the fox and the hedgehog first appeared in a poem by a classical Greek poet and then became the basis of Isaiah Berlin’s famous essay on Tolstoy in which he divided writers and thinkers into foxes, who see the world as complex and variegated, and hedgehogs, who see the world through one defining idea or perception.
This morning I am going to address you first as a fox and then as a hedgehog. There is one big thing that I mean to share with you today, if you want to hear it, but I won’t ruin the surprise just yet.
Let us go back to the transition from judge to dean, from the world of the courts and the bar to the world of the scholar and the student. There are commonalities and there are differences.
Of course, the first issue is what should people call me. The judges in the room will be very glad to know that students and even some faculty, and many lawyer-alumni, still want to call me “judge,” presumably on the view that this is the more prestigious title. Apparently “judge” trumps “dean” even within the law school. But the judges here will also appreciate that I do not let anyone call me “judge” or “your honor” now, because I am no longer a judge. I no longer have that responsibility and honor, and I no longer need constant reminding that I must maintain a certain detachment in aid of my office. Most people call me David and that is as refreshing as it is startling.
There is also a new language for me to learn. For example, I hear people at Duke speak of Duke’s “convening power.” This has an almost religious overtone. Apparently, “convening power” is the power to cause persons to attend a meeting at a certain time and place. I know “convening power.” I used to have it.
There is talk about “moral hazard.” One would think that a “moral hazard” would describe some ethical issue perhaps one that is partially obscured or difficult to recognize. This would be incorrect. A moral hazard consists of behavior that is altered when someone else bears the cost. At the Law School, the main moral hazard is all of the free food that is available and the hazard is to the waistline.
This suggests another difference between the Law School and the courts. Like other private employers the Law School takes pains to keep its employees happy. We had a discussion the other day of whether the Law School should buy Java Rama or Starbucks coffee for the staff. While it is genuinely an honor to work for the people of this nation, as an employer, the United States is definitely not of the sensitive, new-age variety. It is inconceivable to imagine such a discussion about coffee for the staff of a United States courthouse. I think that is too bad.
One of the best parts of being dean is to meet so many law students, and one of the best parts of being a trial judge is to meet so many members of the public in jury selection. It was always inspiring to me to hear the brief life stories of average Americans, to understand how so many of them dealt so nobly with adversity, and to sense the seriousness of purpose they brought to the task of being a juror. It filled me with optimism and even awe. And I have had the same feelings of wonder in my dealings with Duke Law Students. They are smart, astonishingly so, but they are also nice and idealistic. They want to make the world a better place, and they are not ashamed to say so.
Two months ago, three students asked to meet me. They wanted to discuss an idea that they had for a Judicial Institute at Duke Law School. I thought it was a very good idea, but I was interested in what had moved them to come to me. “Well,” they said, “we were thinking about your deanship and how to build on the fact that you were a judge.” I don’t know about you, but I don’t think that I was very concerned as a law student about my dean’s deanship. These students are altruistic and they demonstrate leadership.
Leadership is another area of difference between dean and judge. I was Chief Judge of the busiest federal district in the federal system, with two large courthouses 3 hours apart from one another. Yet the opportunities for leadership were rather limited. Some of you may have heard the joke that being a Chief Judge in the federal system is a little like being the groundskeeper in a cemetery: there are many people below you but it isn’t clear that any of them are listening. There is more than a little truth to this. Of course, there are opportunities for leadership in local bench bar activities and within committees of the judicial conference. But the day to day work of a judge involves more what one would call management rather than leadership. It is not the role of the judge to lead the lawyers and parties in a litigation, and I think most of us would be critical of a judge who saw each litigation as an opportunity to exert leadership over the case or over the development of the law.
A law school, on the other hand, and as I have come to learn, thrives on leadership. Notwithstanding the talk about “herding cats,” and the similarity of the terms of employment as between life tenured faculty and life tenured judges, there is no real comparison when it comes to leadership. As dean I am expected to think about the future of the legal profession and legal education, and I am expected to lead the Law School community so that we meet the changing, dynamic world of law practice and law scholarship. This is a very great responsibility and it is also interesting and engaging. Perhaps there should be the same opportunities for leadership within the judiciary. There should be opportunities to think about trends in litigation and how our civil and criminal justice systems can be improved. Unfortunately, these opportunities are limited. Moreover, the topics are so infused with political and policy questions that it is difficult for a judge to become very involved without some sense of unease.
Some of you are probably thinking that while it might be wonderful to have the luxury of considering the future of legal scholarship and the future of law practice, most of my time must be taken up by fundraising. During the dean search process, I was asked whether as a judge, I had any experience in fundraising. It was a trick question and I gave a trick answer. I answered “yes.” It was a trick question because federal judges may not directly or indirectly have anything to do with fundraising. I answered “yes” because in settlement conferences, and perhaps in some other settings, like fee awards, judges ask parties and lawyers to put in more money or take out less. They raise funds and they do so on the basis of reasons. Sometimes those reasons are technical: the Judge makes a calculation or a prediction about the case. But often the reasons are social -- to repair or restore a relationship.
Law school fundraising is not very different, actually it is easier because instead of fear of the unknown, the dominant emotion in a settlement conference, the dominant emotion in fundraising is loyalty, idealism, and a desire to be part of something bigger than oneself. And it connects back to leadership because in our society philanthropy is an opportunity for leadership. Alumni and others can become part of both meeting and shaping the future of our profession and of legal scholarship by the funds they give. And they can make the critical difference in the lives of aspiring young lawyers who later will make that difference for someone else.
The fox in me has two other points to make about the transition from judge to dean before I turn into a hedgehog. The first is to note how competitive law schools are with one another. This is just unknown to the courts. Perhaps there is a sense in which the federal courts are in competition with the state courts or with private dispute resolution systems, but there are so many cases that this competition is not salient. I suppose individual judges might compete with one another for advancement, but competition among courts for cases, personnel, prestige, or recognition is unheard of. The law schools, on the other hand, are in ruthless, intense competition for top students and faculty.
Second, I have been struck by how much smaller the world of our domestic courts looks from the outside. In part, this is because of the incredible growth of the international law field. Our law school, like our peers, now offers many courses in international and comparative law. We offer a JD/LLM in international law to American students and we offer an LLM degree to foreign students. These are large programs accounting for nearly one third of our student body. Our international law curriculum addresses legal issues that may never come before American courts but may be disposed of by the WTO or by international arbitration or through other international tribunals. This new focus surely echoes the globalization of the world’s economies, the internationalization of our large law firms in our major cities, and perhaps to some extent the shift of capital markets and business from the United States to other locations. While it is probably true that our domestic courts see more transnational work now than before, in general this trend takes legal work into other tribunals and venues outside of the United States. It was entirely unexpected to me that my perspective would become more international by leaving the bench and becoming a dean, but I think this has been the case.
I promised at the beginning that I would give you one big idea, if you wanted to hear it.
Now that I have left the judiciary, what stands out most to me about this experience of having been a judge is the wonderful quality of the other judges that I came to know. Despite threats of violence, a loss of personal privacy, increased bureaucracy, reduced resources, and a growing income disparity, the federal judiciary is still a remarkably capable, thoughtful, and dedicated group of men and women.
I am speaking now not only of my own colleagues in the eastern district of California and the Ninth Circuit, but also of the many federal judges whom I have come to know and have had the privilege of working with over the years on national committees. Indeed, I will go even further. Although I have never sat on the state court bench, I know, have worked with, and have reviewed and relied upon the opinions of a good many state court judges. I will include that body of judges in my words of praise. In this country we have a remarkably capable, thoughtful, and independent judiciary. Our incorruptible judiciary is one of the jewels in the crown of our democracy and is a foundation on which our economy, social cohesion, and political system rest.
If you agree with my assessment of the quality of our judges, then we have something to explain. How is this possible and how did it come to pass?
It certainly does not get explained by the pay or the conditions of service. I think it would be difficult to argue that our most accomplished litigators around the nation are eager to leave practice and join the bench, although there are some who do.
Nor can it be explained by the wisdom of the various appointing authorities. Although I feel a great debt of gratitude to the first President Bush for appointing me in 1990, it also would be difficult to argue that the appointing process only seeks out the most capable among us. This is a political process and while there may be an overlap between those lawyers who have political appeal and those who have merit, the correspondence is less than exact. This is not to say that the various selection committees are for naught or that the voters who elect judges do so without regard to their ability or that political engagement and experience by lawyers is unrelated to the judicial craft. Any of these factors or selection mechanisms might explain why this or that judicial officer is distinguished, but it does not offer a particularly persuasive explanation for why our judges are almost uniformly of the highest caliber.
For this explanation, I suggest that we must look elsewhere.
I identify three reasons:
First and foremost the Bar. The Bar from whence our judges are drawn has strong traditions and high expectations of the judiciary. The ideal of the neutral, dedicated, fair, scholarly jurist is deeply embedded in our legal heritage. In ways that are subtle and not so subtle the bar keeps this ideal before the judiciary and insists that our judges strive to achieve it. But more than this, the experience of being a lawyer in this country, of being part of a learned profession is elevating and prepares for further service all members of the bar who take their oaths seriously.
Second, our concept of due process and fair procedure. The legal process itself, the adversary system, the drama of the courtroom, the clash of ideas and interpretations, the right that every party has to be heard, the power of advocacy, all of these things put the judge in a role that requires diligence, judgment, objectivity, and reason. Participation in such a process for the judge, but also for the lawyer, is simply transforming.
Finally, there is our faith. As lawyers and judges we share a strong faith in the rule of law and equal justice under law. We think our future as a nation depends on this faith. I believe that it is from this mysterious alchemy that very good lawyers become very good judges, calling upon the better angels of their nature, forming a judiciary of remarkable importance and quality, rooted in the bar and drawing daily sustenance from it.
So the big idea is just this. Whether as dean or as judge or advocate or counsel, all of us in this room have the privilege and responsibility of being members of a learned profession. There is no wall between the academy and the profession or between the bar and the judiciary. Because of our training, our experience, and our powerful legal culture, all of us are and should be ready to assume new roles within the profession.
Much has been given to us and much is fairly expected.
It is wonderful for me that in my new job I may play some small part in the training of the next generation of learned lawyers, some of whom, one day soon, will be seated where you are.
You have been more than patient. It has been a pleasure and an honor to be with you today. Thank you.