From Judge to Dean: Reflections on the Bench and the Academy

• Author: David F.Levi
• Position: Dean and Professor of Law, Duke University School of Law
• Pages: 913-922

Dean and Professor of Law, Duke University School of Law. Previously, Chief Judge of the United States District Court for the Eastern District of California. The Author thanks the Louisiana Law Review for soliciting this essay and the accompanying piece by LSU Law Chancellor Jack Weiss.

This essay is based on a Law Day talk given to the Albuquerque Bar Association on May 1, 2008.

Page 913

In July of 2007, having served nearly seventeen years as a United States District Judge with chambers in Sacramento, California, I moved to Durham, North Carolina, to become the fourteenth dean of the Duke University Law School. I would concede that in the grand scheme of things such a transition must be deemed unremarkable. Lawyers have become soldiers, presidents, artists, and inn keepers. Judges have left the bench to do much the same. Nonetheless, in the somewhat closed worlds of the federal bench and the legal academy, at a time when the two worlds have seemed to drift apart, such a shift in careers may have seemed surprising. And the surprise was from two points of view: it was surprising that a federal judge would leave a position of such prestige, importance, and security, and it was equally surprising that one of the great law schools in the world would contemplate a judge as its next dean. In this Essay, I take the opportunity to reflect on a few of the everyday aspects of this transition, pointing out some of the differences and similarities in the life of the judge and the life of the legal academic. But my ultimate goal is to take a step back and explore whether there might be some unifying theme within which we might see the roles of the judge and the dean as in harmony with some greater purpose and as part of some greater tradition.

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. Of course, the first question has been what people should call me. At first, some students, many alumni, and even some faculty, would call me "Judge" or "Your Honor." Apparently "Judge" trumps "Dean" even within the law school. But because I was no longer a judge and not retired, I discouraged this practice. I no longer have the responsibility and burdens of a judgeship, and I no longer need constant reminding that I must maintain a certain detachment in aid of my office. After two years, hardly anyone calls me "Judge" anymore. Admittedly, there are times, such as Page 914 during faculty meetings, when I would not mind the occasional "Your Honor." But now most people call me "David," and that is as refreshing as it was startling for the first year or so.

I also vhae been learning a new language. Judges do not like jargon probably because generalist judges have to cover so many areas of the law that they cannot keep track of abbreviations and various kinds of shorthand. Also, judges tend to be suspicious of terms that may cover a multitude of possible meanings and whose use, therefore, may result in ambiguity or imprecision leading to confusion. Nor is there any slang unique to judicial officers. But in a university and a law school there is a tendency to take up certain kinds of expressions and formulations. For example, I hear people at Duke University 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! More common in a law school is the use of terms drawn from other disciplines such as economics and sociology. Law professors and students speak effortlessly of "moral hazard," "endowment or network effects," "path dependence," and so on. Norms are "sticky" or not; causal explanations are "thick" or "thin." Imagine my consternation when I learned that a thick explanation is not necessarily more persuasive than a thin one.

I have noticed other differences between life on the bench and life in a law school. One is the intensely competitive atmosphere in which the top law schools exist. The law schools are in constant, sometimes fierce, competition for students and faculty, for opportunities and rankings. The current downturn in university endowments has given us a brief reprieve from some of the pressures generated by deans with endowment revenue to spend. But that pressure undoubtedly will reassert itself in the next year or two as endowments recover and faculty members across the country who are mobile, accomplished, and productive begin to test the free-agency waters once again.

This kind of competition is just unknown to the courts. Individual judges might be said to compete with one another for advancement, attention, or law clerks, but competition among courts as units for cases or recognition is virtually unheard of. Perhaps some would consider the federal courts to be in competition with the state courts or with private dispute resolution systems, but there is such an abundance of cases that this competition has not been of much importance.¹ To the extent that Page 915 some competition exists in the judiciary, it does not drive institutional decision-making, budgeting, and judicial performance in any significant way. And there is no analogue yet within the judiciary to the free-agency phenomenon that has crept into so many areas of life, including law school hiring. Perhaps the market eventually will provide an answer to the low pay suffered by federal judges when the state or even international courts try to pick off federal judicial superstars in the prime of their judicial careers, but that day has not yet arrived.

The law schools, by contrast, are in constant competition for students and faculty. The rankings have intensified this competition, particularly for...