Academia in Judicial View

Law students and professors may be asking the wrong questions about what judges do, and the two sides may be talking past each other—a realization that struck First Circuit Court of Appeals Judge David Barron when he left academia for the judiciary in May 2014.

“There’s a difference between what learning law and doing law actually is,” Barron said during a recent visit to the Law School as part of the Edward H. Levi Distinguished Visiting Jurist program. “The way that academics talk about judges and the way that it feels to be a judge are very different.”

In his talk, “The Transition from Law Professor to Judge,” the former Harvard law professor discussed various aspects of judging, including what surprised him in the process of becoming a judge, the differences between the two roles, and how the practice of judging differs from the way academics and others describe it.

Academics tend to want to demystify judges by imposing a theoretical framework, he said—but judges need to focus on the facts and law specific to each case, not on a particular kind of jurisprudence.

“You are confronted by a lot of people who expect our judges to try and decide it [a certain] way,” he said. But “ultimately, [a judge] is there to decide a case between two sides in a particular dispute … and to try to work through it for them.”

He added: “There is a lot of legal literature I find useful, but in the end, it’s not very helpful to know that text should trump or that purpose should be given its weight.”

Scholarship, he said, is most helpful in giving a vocabulary to what he’s doing as he interprets a statute. “The steps of that interpretation manifest themselves as steps because of my familiarity with that set of debates,” he said.

In the end, it is important to acknowledge why academics and judges don’t always see things the same way, he said. They have different missions, each with an important role to play in the legal system: professors examine theories, while judges settle disputes.

Barron also described academia as being much more isolating than the judiciary, at least while working on an article. “No one cares about your article before it’s published,” he said.

As a judge, you at least have clerks, and there’s a norm of making sure that none of the judges on the panel are excluded from any conversations about the case at hand. What’s more, appellate judging involves deep collaboration. Coming to the judiciary, Barron was pleased to discover how enjoyable and efficient it was to write opinions with other judges.

“These opinions get produced seamlessly, in the thousands, year after year,” he said.

But judging also involves working with the same people over a long period of time, while law school can mean a few hundred fresh faces each fall. Academia also gave Barron unique opportunities that judging doesn’t.

“Articles academics write have a potential of much more influence over time than a particular appellate decision,” he said. “Teachers can have an enormous impact on students, too.”

Daniel Sullivan, ’18, appreciated the new perspectives that Barron introduced in his talk.

“Our education ultimately comes from professors and from judges. I really enjoyed hearing Judge Barron discussing the way these two paths complement each other, while being honest about the gulf between them,” Sullivan said. “It’s a view that we don’t get in our classes, and I think that having multiple perspectives is a really valuable tool for an aspiring lawyer.”

For Barron, responsibility has been at the core of his work as a judge. He finished his talk by reiterating his appreciation for the sense of collegiality present in the judiciary, and the tradition of giving everyone in front of him the chance to persuade him.

“You’re aware that ‘judge’ is a title you didn’t invent,” he said. “Your job is to honor the tradition in your way as best you can.”