From Professor to Judge

Factors of critical significance to judges are often less important to law professors, and vice versa

By Debra A. Livingston

Winter 2010

Shortly after becoming a judge, I was invited to speak at the annual Columbia Law Review banquet, held on March 27, 2008, in honor of the 107th volume of the Review. This invitation gave me the opportunity to reflect on my transition from academia to the bench. This is a distillation of my remarks.

There is a difference of perspective between judges and law professors—between those charged with the responsibility of decision and those charged with critiquing, understanding, or explaining the decisions. And this results in different points of emphasis—in different views, perhaps, about what is important and what is relatively less important in the consideration of legal matters. So let me identify, if I can, three common sense ideas that have proven extremely important to me in my early days on the bench, but that are not always held in high regard in the law schools.

Idea number one: Legal language matters, whether it is the text of a statute, or the words of a regulation.

A substantial number of my academic colleagues—not so many at Columbia, perhaps, but a lot around the country—would find this proposition troubling, if not outright scandalous. The focus of much legal scholarship is precisely on demonstrating the indeterminacy of language and the inability of a text to say what it means and mean what it says. This habit of thought is sometimes associated with the political left among academics. But I’m not sure that’s right. The focus on indeterminacy may be just what law professors do.

Consider Professor Easterbrook’s famous argument—not one he endorsed, but one he elaborated—for the indeterminacy of the provision in the Constitution that the president must be at least 35: “When the Constitution says that the president must be 35 years old, we cannot be certain whether it means 35 as the number of revolutions of the world around the sun, as a percentage of average life expectancy (so that the Constitution now has age 50 as a minimum), or as a minimum number of years after puberty (so the minimum now is 30 or so). Each of these treatments has some rational set of reasons, goals, values, and the like to recommend it. If the meaning of language depends on a community of understanding among readers, none is ‘right.’”

Law professors—even Professor Easterbrook—spend a lot of time demonstrating for us the ways in which words aren’t clear and don’t control. And maybe there’s a simple enough reason for this fixation: No one ever became famous as a scholar by pointing out that the text of a statute cleanly answered some question at hand.

The experience of judges, I think, is different. The text does decide an awful lot of cases. And, frankly, these are the cases that judges often like best—where Congress has provided a clear answer so that the judge knows what to do. For judges and for lawyers, the text matters, as arguments begin and often end there. Law professors have a big appetite for that last morsel of indeterminacy in a seemingly clear text. Judges and lawyers, less so.

The second idea: The standard of review matters. A noted administrative law scholar once said that the standard of review is like the core of a seedless grape—there’s nothing there.Terms like clear error or abuse of discretion are just the words the judge employs in explaining the result he or she otherwise wants to reach. But that’s just wrong, from the perspective of the person who must decide the case. To the judge charged with the responsibility of decision, the standard of review means an awful lot. And it should.

Take Chevron—that textbook administrative law case that holds that when the text of a statute is ambiguous or silent on the question at hand, the court should defer to the agency, so long as the agency’s interpretation of the statute is reasonable. Chevron is extraordinarily important to the judge charged with decision in an agency matter. I just finished saying words decide cases. But we know this isn’t always true. There are hard cases. There are judgment calls to be made. In these cases, it matters a lot who bears the burden of persuasion and how heavy that burden is. It matters who gets to decide.

Finally, there’s the case or controversy requirement. Now, to the law professor—and I’m perfectly serious about this—the case or controversy requirement can be thought of as something of a nuisance. The professor wants to rethink the landscape in an area of law. The case may be a necessary part of the equation, but for many academics that’s a little unfortunate, to be perfectly frank.

This, too, is just not true for the judge. It makes a difference that you’re deciding a concrete dispute between real parties. That reality sharpens and focuses the judicial senses, especially the sense of responsibility. What judges do—and what lawyers do—is not abstract, but immediate, with real consequences for real people.

Let me explain this distinction another way. I think almost all professors will tell you that one of the most serious intellectual challenges they face is deciding on an agenda. Many an academic career has suffered from unwise judgments about what to focus on.

The challenge is different for a judge. Next year the judges on my court will each sit about 45 days apiece, and will also decide a large number of appeals on the non-argument calendar. That translates roughly to about 370 to 400 appeals per judge, each year. More than 65 percent of these cases will probably be decided by summary order, but the rest will require published opinions. The challenge for the judge on a busy court like this is in allocating time among these many and varied matters, so that the difficult cases get their due without sacrificing the time needed to decide the simpler matters well, and on a timely basis. The case or controversy requirement sets my agenda.

So what’s my bottom line? I’ve certainly loved my life as a law professor, and I still do. It’s a job that gives you the freedom to think about law in the abstract, and surrounded by law students who are thinking about some of the issues for the first time, with all the excitement that comes from that.

My first year on the bench has been an extraordinary experience for me in a different way. I leave for work in the morning feeling very happy to have this new set of responsibilities and this new set of challenges. Although putting it this way may sound mundane, I like the task of working out the ways in which laws framed by others resolve the concrete disputes that come before courts. To me, this feels like an extremely rewarding and very consequential way to make a living.

This essay was reprinted from the recently published Sesquicentennial Essays of the Faculty of Columbia Law School.