Judicial Decision Making

Volume 8 • Issue 3 • March/April 2022
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Judging Systems

A conversation with David F. Levi

David Wilkins, faculty director of the Harvard Law School Center on the Legal Profession, recently sat down with David F. Levi, the Levi Family Research Professor of Law and Judicial Studies and director of the Bolch Judicial Institute at Duke Law School, to talk about the judicial profession.

David B. Wilkins: I want to start with this wonderful institute that you’ve created. Could you talk a little bit about why you started it, and what its purpose is, and what you and your colleagues are studying?

David F. Levi: This is great timing because just last week, we gave the 2022 Bolch Prize for the Rule of Law to Judge J. Clifford Wallace. You probably know Cliff by reputation. What probably not everyone knows is that he has been an incredible worker tilling in the fields of the rule of law. He’s been to more than 70 countries to consult with judges as an expert in judicial administration. At our celebration, the chief justices of Uganda, of Pakistan, of Malaysia, of Singapore, all spoke about how helpful Cliff has been to them over the years. Justice Kennedy sent a letter in which he recounted a story about going to Bangkok on judicial business, and he asked the cab driver, “What is that beautiful building over there?” The cab driver said, “Oh, that’s the Clifford Wallace Institute for Judicial Training.”

The Bolch Judicial Institute is not primarily interested in doctrine. We are focused on how judicial systems actually work.

I tell the story because it makes concrete what we’re trying to do. The Bolch Judicial Institute of Duke Law School is a rule of law institute. Part of what we do is to recognize threats to the rule of law and also opportunities to protect, preserve, and promote the rule of law here in the United States, as well as internationally. It’s a field of study—and it’s a field for action. It’s an area in which you can bring scholarship and research to bear on modern problems.

The Institute has three general areas of interest. One is the judiciary as an institution, as well as judicial decision making. How do judges decide cases, and how are the courts organized to deliver justice? Second, we study the rule of law, with a particular international focus. The third is what technology is likely to do to judging and judiciaries in general. We’ve been offering a law and tech educational program with the Federal Judicial Center for judges. We’re interested, for instance, in the possibilities of AI judging, and how technology can help make the system more efficient and more accessible.

This is not an institute that’s primarily interested in doctrine. We are focused on how judicial systems actually work. Now, that can involve doctrine, because doctrinal decisions have consequences for the system and for the people that use the system. But I think scholars have come to realize that how systems work is key. Yes, anybody who gets into a courtroom should be treated fairly, and the law should be fair, and the judges should be experts in the application of law. But so many Americans and people around the world can’t even get into a courtroom or access the legal help they need.

If empirical work is done really, really well, when you read it, you say, “I knew that.”

Wilkins: Well, David, it’s such an important project. I want to touch on pretty much all the things that you said and tie them a little bit to some of the things that we talk about in this issue. As you know, the lead story of the issue is written by my colleague Holger Spamann. He’s very interested in the first piece you said, which is judicial decision making. How do judges decide cases? And in particular, whether or not it’s different—both doctrinally and systemically—particularly between common law and civil law. What he finds, as you saw in the piece, is that there’s actually more differences between the way judges operate within common law jurisdictions—between India and the United States—than there is between the United States and France, a civil law jurisdiction. As somebody thinking about judicial decision making, did any of that surprise you?

Levi: It thrilled me. Usually, if empirical work is done really, really well, when you read it, you say, “I knew that.” Of course, you didn’t really know it, but it rings true! I don’t claim to be an expert in this field, but some comparativists believe these systems actually are converging. The common law system used to be, genuinely, a purely common law system. There was very little statutory law; it was mostly judge-made law. That’s not true anymore. It hasn’t been true for a very long time—probably close to 50 years or so. But since the New Deal era and World War II, there’s just been a lot of statute in this country. So that’s not the primary difference any longer. I think the same thing, to some extent, has happened in the civil law countries. Their statutes are subject to interpretation. The very fact that it’s statutory law doesn’t mean that there won’t be a common law that develops around the statute.

In our country, the best example of this is the Sherman antitrust law, which is a statute. But it is subject to a huge amount of judicial interpretation as to what is an unreasonable restraint of trade. This occurs even with a statute as articulated and reticulated as the copyright statute. For example, the American Law Institute—of which I’m president—is now doing a restatement of the copyright law in this country because the statute, in many of its sections, is so vague or general that it has invited, in effect, judicial gloss. There’s been an extraordinary amount of very interesting and good judicial writing on this topic.

So, perhaps the systems are converging. What Holger shows, and which I think is so creative, is that if you’re a judge in one system or another system, you may very well approach a legal problem in similar ways. I think that’s fascinating, and conceivably, it has some real-world consequences.

With the LL.M. program, we were trying to bridge whatever gap there is between the academy and the judiciary.

There was a time when Professor Mitu Gulati and I found ourselves consulting with someone looking to set up a law program in Dubai. He wanted to know what we thought of the common law system and the civil law system, and which one we preferred, and why we preferred it. You know that there are lots of countries around the world that are creating independent arbitration courts. One of their questions is should this be a common law court or should it be more like a civil court? Given the work that Holger’s done, I can imagine that people who are thinking about these things will find this very revealing and important.

Wilkins: That connects to another thing you talked about—thinking about the system of judging and judges as part of a system. Part of that is around training. One of the interesting differences between civil law and common law is judges have a different kind of training. In the civil law tradition, it starts much earlier. One of the things I find so interesting about your program is that you’ve set up this LL.M. program for judges. Could you talk a little bit about why you did that, why you thought our system really could benefit from it, and what’s the purpose of that program?

Levi: I think it’s fair to say there were three main purposes. First, because we are interested in judicial decision making and in how judiciaries run, we thought that having a master’s program, where judges would be expected to do original research on these very issues, would be important to the broader field. Because judges would be very well placed to do this kind of research and because they understand the systems in which they operate, we would be getting valuable scholarship. We were also trying to bridge whatever gap there is between the academy and the judiciary. Other people have commented on this, but we thought this was one way to have an open conversation between judges and academics, where judges could advance the state of our understanding of judging and judiciaries.

The second goal relates to our identity as an educational institution. We thought it would be extremely valuable to help judges understand the scholarship around the ways in which they judge, whether it related specifically to the judiciary or just our understanding of law in general. They are, in effect, going back to law school. There have been significant developments in the academy over the last 30 years or so. Many of the judges are in the middle of their careers. It’s been a long time since they’ve engaged in serious academic study. Academic work has become more interdisciplinary, more quantitative, more empirical, and more forbidding to people who don’t live in that world. So trying to make that accessible and available to judges, we thought that was important. I will say they love it. We hear that all the time. I get notes from alumni who will say, “In ways that it’s hard to express, I know today I am a better judge than I was before I went to this program.”

This culture of neutrality amongst judges—of unbiased decision making—is so important, and it’s not to be taken for granted.

The third goal is to create and uphold a judicial culture in this country, and ultimately around the world. That’s a big goal. But at the most modest level, the idea is that you’re going to learn things here that will make you a better judge—a more self-aware judge. There’s a community of judges that we want to make more palpable. Wherever you are, whether you are civil law, whether you are common law, whether you are in a commercial court or criminal court, whether you’re in Bangladesh or you’re in Miami Beach, there’s an occupation and a culture of judging that is shared. Bringing these groups together is so important to us. So far, we’ve had two international judges in each class—10 in total—and we hope to have more.

This culture of neutrality—of unbiased decision making—is so important, and it’s not to be taken for granted. Many people, regretfully, think judges actually decide cases politically, because they can come up with arguments where you could go either way on an issue. They assume that what the judge does is consult his or her own preferences to decide cases. That’s not what good judges do. Look at this last election. There were 70 or so cases around the country challenging—on quite bogus grounds—the outcome of the election. There’s not a single court in our country that entertained these cases that were utterly lacking in merit. They disposed of them very quickly. It didn’t matter whether the judge was a Democrat or a Republican or an Independent. Didn’t matter whether state court or federal court. That is a reflection, I think, on the fact that we do have a strong judicial culture in this country, and core to that culture is that judges take seriously their oath to “faithfully and impartially” discharge their duties. It’s so important, I think, that we spread this word and that we try to preserve this judicial culture.

Wilkins: I want to touch on the last piece you said, which some people might view as an even bigger threat to our understanding of judging and judicial independence than those who want to manipulate our justice systems. And that is technology. Everything from predictive analytics—using AI to try to predict what Judge Levi will say—to the opposite, which is people arguing that we should use AI to decide cases. I know this is a major focus of what you’re doing in the Institute. How are you approaching that, both thinking about it yourself as a scholar and also helping judges to think about what is inevitably coming in one way or another? The French may try to ban it, but that doesn’t seem to be very successful. How are you thinking about that?

Levi: It’s such a complex topic. One basic goal we have is to make judges aware that there is this thing called judicial analytics. Most judges don’t know this. They don’t realize how much is out there about them, and they don’t realize how sophisticated law firms and litigants are, and that when judges get involved in a case, actually the lawyers know more about their historical practices that can be demonstrated statistically than they themselves know. Judges don’t actually know how often they have ruled in favor of a certain type of party on a motion to dismiss. They don’t know that. But the lawyers do. And it’s only going to become more sophisticated.

How do judges deal with criticism? In my opinion, judges should be criticized. They should be accountable.

I think it’s useful for judges to know that many litigants have this data. What’s complicated is that you don’t want judges to be overawed by that. You don’t actually want them to be influenced by it. The best example of this would be, say, in criminal sentencing. You don’t want a judge to be curating their sentences. You don’t want them to say, “Oh, gee, I’m going to sentence five people. Let me check my stats. Oh, it shows that I’m a standard deviation above what everybody else in my circuit is. I want to bring myself down, so today is a get-out-of-jail-free day.” Or the reverse, where judges are criticized—and in the state system, thrown out of office—because they are viewed as too lenient. That’ll be the real concern. Will judges start looking at their stats to see if their sentences as a group are more lenient than the median and then be influenced by that to raise their sentences? That could be quite unfair to individual defendants.

There’s a worry about judicial independence, and that’s an important topic for our Institute. How do judges deal with criticism? In my opinion, judges should be criticized. They should be accountable. We don’t want to tell them, “Oh, you should ignore the criticism.” On the other hand, you don’t want judges, as I say, curating their record or taking into consideration what the public will think of them in any particular decision.

At the opposite extreme, there’s a phenomenon of AI judging. The Chinese are putting millions, billions of dollars into this. China has a gigantic population, and they have a system that can’t keep up with the number of lawsuits. Can we go into a judicial metaverse? We know that, to a lesser degree, this is happening already with small disputes, like consumer disputes. eBay, for example, has a web-based program. (For more on online dispute resolution and eBay, see “Separating the People from the Problem.”)

When you think about these things, one should think about access to justice. If you can get a dispute resolution process that is pretty good—maybe it’s not the Cadillac, it’s not the gold standard—but it doesn’t cost very much, and people without lawyers can understand it, can engage in it, and will feel fairly treated no matter the outcome, that’s a win. We need that, because the alternative is what we have been seeing in this country, which is vast inequality. For example, in eviction cases, people don’t show up because they can’t get a day off work, or they can’t get childcare, or they can’t get public transportation. Whatever it is, it is very hard to get down to court. They don’t think they’re going to prevail anyway, and so they do not appear and without them there to oppose, in five minutes, they’re evicted.

What we learned in COVID, which is really one of the startling things, is that the courts actually could pivot quickly and let people appear by phone or Zoom. And in these eviction cases, people appeared. And when they told their side of the story, it changed these proceedings dramatically. They often prevailed.

I think the question, ultimately, is what gives normal everyday Americans, and others from around the world, confidence in their court system?

One of the other areas that’s of great interest, particularly to academics, is that artificial intelligence algorithms are often very complex and difficult to understand. That’s number one. Number two is sometimes they are proprietary. What you don’t want is to have judges saying, “I put it in the computer, and the computer tells me to give you 10 years.” Then it turns out that the computer has decided that men of a certain age are a much bigger risk than, let’s say, women of a certain age—and, as a judge, I didn’t even know that sort of bias was coded into the system. That’s a problem. The courts have very quickly identified this as a problem. Scholars have as well. I think we’ll get on top of that, and I think it’s solvable.

But I think the question, ultimately, is what gives normal everyday Americans, and others from around the world, confidence in their court system? Do they need to go to a beautiful courthouse? Do they need to see a person in a robe who is holding themselves up as a neutral? How important is that? I think it is important, but is it always important? I think that’s the question for us to answer. I don’t think we know the answer yet, but this COVID experiment has been huge and really interesting. That’s one of the things that we’ve been quite focused on.

Wilkins: David, listen, you’ve been so thoughtful. My last question actually builds on the last thing you said, which is we know that judges are important. We’re all living through a moment in which we’re thinking about that issue, with the recent Supreme Court nomination. I love the fact that you always ask your podcast guests who your judicial hero is. I guess I’d love to turn that around and ask you about that, and maybe use that as a way to reflect on your own extraordinary journey into this. Because you yourself were a judge. You were a lawyer appearing before a judge, both on the government side and on the private side. You’ve been a law school dean training lawyers to appear before judges and future judges. Now, you’re running a judicial institute. As you think about your own trajectory and your own career, and your own heroes, I wonder if you’d just reflect a little bit about that for our readers.

At age 39, I was on the district court. I can remember I would ask myself, “What would Justice Powell do in a situation like this?”

Levi: Well, this won’t surprise you, because you and I clerked on the Supreme Court in the same year, although for different justices. I clerked for Justice Powell, and you clerked for Justice Marshall. Justice Powell had a very large effect on me, but the reason probably was not so much his approach to the law, although I was certainly affected by that, but it was more just the way he treated other people and his approach to life that I found very inspirational and quite helpful to me. I found myself, at the young age of 35, a U.S. attorney in charge of a large U.S. attorney’s office. It was only five years after I clerked for the justice! At age 39, I was on the district court. I can remember in those years, I often would ask myself, “What would Justice Powell do in a situation like this?” He was such a gentleman of the old school. Those qualities are super important. A gentleman of the old school, in my thinking, is somebody who treats everybody with respect, is very slow to anger, and is not quick to make judgments, and listens. That’s the way the justice was.

I just found that to be so important for me, because when we’re starting out, and particularly when we’re young, the blood runs a little hotter maybe than later in life. It’s easy to get drawn into angry exchanges. I really avoided that, I think both as a prosecutor and as a judge. So he was a great influence on me.

Wilkins: It’s been an honor to have been your friend ever since then. Justice Powell was such a great gentleman to us, as law clerks, and to Justice Marshall, who was always incredibly fond of him. That is a lesson, I think, for all of us. I look forward to the chance to continue this conversation. You have studied judges. I’ve studied lawyers. That’s a conversation that continues to need to happen.

 


David F. Levi is the Levi Family Professor of Law and Judicial Studies and director of the Bolch Judicial Institute. Levi was previously the James B. Duke and Benjamin N. Duke Dean of the School of Law. The 14th dean of Duke Law School, he served from 2007 to 2018. Prior to his appointment, he was the Chief U.S. District Judge for the Eastern District of California with chambers in Sacramento. He was appointed U.S. Attorney by the then president Ronald Reagan in 1986 and a U.S. district judge by then then president George H. W. Bush in 1990.

David B. Wilkins is the Lester Kissel Professor of Law at Harvard Law School, vice dean for Global Initiatives on the Legal Profession, and faculty director of the Center on the Legal Profession.

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Judicial Decision Making Volume 8 • Issue 3 • March/April 2022

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