Five judges visited the Law School during winter and spring quarters as part of the new Distinguished Visiting Jurists program, in which judges offer students and faculty up-close insights into their decision-making processes.
During the visits, each judge gave a lunch talk to the Law School community, participated in a Sidebar: Conversations with the Bench workshop featuring candid discussions of faculty scholarship and its utility for the work that judges do, and met with faculty members for dinner.
The program was started to “bring the best judges in the country to campus so they can interact with students and faculty,” said Professor Lior Strahilevitz, who organized the series, which was sponsored by the Coase-Sandor Institute for Law and Economics. “Judges reinforce, supplement, and challenge what students get in the classroom, and the judges get to speak to some of the best soon-to-be lawyers in the country. We’ve learned a great deal from the judges this year, and we hope they have learned from us as well.” The program will continue next year.
Joshua Ackerman, ’13, called the program “fantastic,” and said that “these are probably the best lunch talks we’ve had. It demystifies the experience of interacting with a judge, and helps students to get comfortable asking questions in front of them.”
Esther Lifshitz, ’14, agreed. “It’s always exciting for law students to get a better understanding of their ultimate bosses, the people they’re going to have to answer to as lawyers.”
The five judges who visited in 2013 were:
- Judge Thomas L. Ambro, Third Circuit: Ambro talked with students about the value of professionalism in the law and shared a slew of practical tips on how to be a true professional. He told students to find a mentor, not to be driven by their egos, and to acquire a sense of history. He told them to be skeptical but not cynical, and to remember that the case is about the client, and not the lawyer. Professionalism is “the thing that, if you achieve it, makes you a better lawyer, makes you more trusted, and the system ultimately benefits,” he said. Ambro illustrated his points with stories from his career and those of his friends and colleagues. Later in his visit, Ambro critiqued a new bankruptcy paper by Professors Douglas Baird and Tony Casey, which touched on the bankruptcy code’s treatment of credit-bidding, an issue at the center of one of his famous opinions.
- Judge Thomas B. Griffith, District of Columbia Circuit: Griffith, who was formerly Senate Legal Counsel, the chief legal officer of the U.S. Senate, spoke to students about the importance of giving “muscular powers of inquiry” to Congress, and the role of courts in trying to settle disputes between the legislative and executive branches. He talked about the disparities between 1974’s Senate Select Committee on Presidential Campaign Activities v. Nixon, in which the D.C. Circuit said President Richard Nixon didn’t have to turn over the Watergate tapes to the Senate, and U.S. v. Nixon, also decided in 1974, in which the Supreme Court said a special prosecutor had a right to the tapes. During his subsequent Sidebar workshop, Griffith responded to a new paper by Professor Aziz Huq on the application of the political question doctrine to the president’s authority to remove administrative agency officials.
- Judge Gary Feinerman, U.S. District Court for the Northern District of Illinois: Feinerman spoke to students about sentencing guidelines for federal judges and their evolution over the years. Before 1984, he explained, judges had wide discretion in sentencing. Then, with the creation of the U.S. Sentencing Commission by Congress, guidelines were established that made sentencing more a practice of reading a chart than making an actual judgment. (Feinerman shared copies of the guideline chart with students, and took them through deciding a mock sentence based on factors such as prior convictions and seriousness of offense.) Judges didn’t have to worry about being subjective, because the objective guidelines tied their hands, Feinerman said. Then, with U.S. v. Booker in 2005, the guidelines were made advisory, not mandatory. Now, in a post-Booker world, “The judge has to weigh a variety of factors that are unquantifiable,” Feinerman said. Feinerman’s Sidebar commentary focused on a new empirical paper by Professor William Hubbard, which evaluates the effects of the cases Bell Atlantic v. Twombly and Ashcroft v. Iqbal on the behavior of district court judges.
- Judge Reena Raggi, Second Circuit: Raggi, a former district judge, also discussed sentencing and sentencing reform. She told the audience that sentencing is not a task judges find enjoyable. “Sentencing is the hardest thing a judge does,” she said, adding that a judge must combine both objective measures and more “human” ones. She advocated for trusting district judges to use their best judgment in deciding just sentences. “The pre-guideline days weren’t so bad,” she said. “For almost 200 years, we got along without sentencing guidelines.” The guidelines brought comfort to district judges, who had to make very narrow sentencing decisions, but “I’m not sure this is the kind of comfort we should find comforting. I think it’s important someone take responsibility for liberty-depriving sentences.” Raggi has also been involved in redistricting and was part of the three-judge panel that redrew district boundaries in New York state. She drew heavily on these experiences in responding to Professor Nicholas Stephanopoulos’s paper on using territorial community as a key factor in redistricting decisions.
- Judge Robert Sack, Second Circuit: Sack spoke with students about the use of common law methodology in the Second Circuit. The Constitution’s meaning is determined through the common law method of following precedent, Sack explained. He argued that a lower court that hears a case should not write “we hold” in the opinion, even though this has become commonplace. It’s up to subsequent courts, on appeal, to examine earlier decisions and determine what is a holding and what is dicta. The legal principle of stare decisis, which calls on judges to respect prior decisions as precedent, is an important tool for limiting judicial lawmaking, Sack added. “We must be content to decide cases without purporting to create law beyond them.” Later that afternoon, Sack evaluated and responded to Professor David Strauss’s recent book, The Living Constitution, which advocates a common law constitutionalist approach to interpretation.
Faculty who had the chance to work through their ideas with the Distinguished Visiting Jurists during the Sidebar workshops had uniformly positive reactions to the experience. “It was tremendously illuminating to hear how a sitting judge on the D.C. Circuit, the federal court most often confronted with the legal issue I was analyzing, thought about the issue,” Huq said. “Judge Griffith’s acute observations and careful analysis helped my thinking on the topic greatly.”
Hubbard said of his interaction with Feinerman: “When one writes a paper that seeks to use empirical data to understand what is really going on in the federal district courts, there is nothing better than hearing a federal district court judge’s thoughts on the paper. I think that connecting quantitative data with the first-hand accounts of judges lends greater credence to both, and hopefully advances our understanding of how Supreme Court precedents affect cases throughout the court system.”