Kevin Walsh:
I’m Kevin Walsh, Knights of Columbus professor of law and the Catholic tradition at the Catholic University of America’s Columbus School of Law. I’m pleased to host a discussion today with Professor Chad Oldfather, professor of law at the Marquette University School of Law. I encourage you to visit his faculty bio at the Marquette Law website to get a sense of his professional accomplishments and personal outlook, I cannot do it justice but I thought I’d ask Professor Oldfather at least to vouch for its truthfulness. Is everything on that bio true?
Chad Oldfather:
Everything is true including the quote I attribute to my mother.
Kevin Walsh:
Yes, yes. So, you’ll have to go look that up but I thought it was very lawyerly of you to give a statement of fact or, I don’t know, it’s a statement but to attribute the authority so that someone who is judging that can decide based on the authority and every mother is an authority on the handsomeness of her son-
Chad Oldfather:
Indeed.
Kevin Walsh:
… so this is good. Well, Professor Oldfather is the author of many scholarly publications including the book we are here to discuss today, Judges, Judging and Judgment: Character, Wisdom and Humility in a Polarized World. This discussion’s being held as part of the project on judicial virtues at the Columbus School of Law which is housed within the Center for the Constitution and the Catholic Intellectual Tradition or CIT. So, for our CIT events, we typically open with a prayer and let’s do the same for this virtual event.
Father, Son, Holy Spirit. Lead us, Lord, in Your path that we may enter into Your truth. Glad in our hearts that we may fear Your name. Amen. Father, Son, Holy Spirit.
Okay. Well, this book Judges, Judging and Judgment, how did it come about? How did it grow out of your day job? I didn’t go into all the things on your bio but I thought that this … How did this book come about?
Chad Oldfather:
Sure. Like a lot of things, the path was more meandering, at least in retrospect, than one might think but I think … So, I’ve been at this, teaching law for two decades plus at this point and most of the scholarly work I’ve done over that time has been in some way tied to think about it as judicial decision making, judicial behavior, something along those lines. And meanwhile, for most of that time, I’ve taught a class called Judging and the Judicial Process that has taken a number of forms. It began as a seminar and, as true of a lot of seminars, was really meant as a way to augment, in some ways, my scholarly interests.
So, the mission was really to study courts and judges and judicial institutions and processes from, really, every perspective I could come up with and really from start to finish starting with what is it that courts are for, what functions are courts designed to serve, what roles do they serve, what might the ideal of judicial behavior look like, what are some of the features of human nature and human institutions in the world that we live in more generally that keep us from realizing that ideal, how does the system try to account for those very human shortcomings via process, via method, via institutional design and so forth.
And fairly early on, after a few years of teaching the class, I had this idea that, all right, I was compiling this broad array of materials from a lot of different disciplines, law certainly but also psychology, political science, economics, philosophy, and that I wanted to publish it. And I was initially thinking in the nature of a treatise-like publication but other projects kept coming up, my attention was drawn elsewhere and, meanwhile, as I’d kept teaching the class, I developed this sense that, really, the most important part of the equation wasn’t so much the what or the how as it was the who. Meaning, if we don’t have the right person with the right characteristics and habits of mind in the role, none of the rest of it really matters, that there’s a certain fundamental expectation of what judges are supposed to bring to their role that maybe matters most of all.
So, I finally had a thesis, I guess, an organizing principle for all of this and then the stars lined up in the sense that I got asked to teach that class in both the spring and fall semesters of a single calendar year, that fall semester was a bit of a switch up and it led to some opening up of time in the summer in between them and I thought, all right, now’s the time. I’m going to put together a book proposal, I did it, it got accepted and this is what resulted from it. So, it’s one of those stories of a long-planned thing, finally through happenstance, actually coming to be.
Kevin Walsh:
Well, that is wonderful. What was the name or what is the name of the course or has it changed over time as you’ve done it? So, the book is Judges, Judging and Judgment, that really captures the who, right-
Chad Oldfather:
Right.
Kevin Walsh:
… and the activity of judging and the judgment as a this is what judges need is judgment but I’m guessing that’s not the name of the course.
Chad Oldfather:
Right. The course is Judging and the Judicial Process which, at this point, there’s just inertia associated with it, that’s how it’s in the course catalog and I suppose I could change it but I really do range a little bit beyond the book. This past semester was the first time I taught the class using this book as the primary source material, we covered some other things as well along the way by way of supplementation but it served well, honestly, and I don’t know what to attribute this to but it was one of the best semesters I’ve ever had teaching just in terms of enthusiastic class participation and so forth. And it was a Monday, Wednesday at 3:30 class of upper class students and my thinking is, oh, that’s not a good time of day to get energetic class participation and they were wonderful so fingers crossed that it happens again.
Kevin Walsh:
Well, I know we’re to talk about your book but now I’m intrigued as a fellow law professor here, how do you grade a course that’s based on this book? And maybe that’ll give us a chance because some of the things about, say, virtues, for example, there’s aspects that can be taught, there’s aspects that are acquired but, of course, I doubt that you are measuring students for their progress in virtue over time. There’s a certain amount of knowledge, I imagine you need some intellectual virtues to thrive in this class but, from a law student, law professor relationship that’s in the end mediated by grades, how do you … What are your teaching goals and how’s that then reflected in the assessment?
Chad Oldfather:
Yeah, no, it’s a great question and it’s definitely not a traditional law school exam, there are no issue spotters on this one and I’ve changed that over the years. When it was a seminar, of course, it involved a more traditional paper requirement and then, as it changed from a seminar into what we call a general enrollment class with an exam, it’s become more of what I would characterize as the classic liberal arts college exam in some respects where I used to … And I used to encourage students to, I suppose, call it have a take and sometimes I would find a somewhat provocative quote usually from some judge writing extra judicially, occasionally from an opinion and invite them to react, drawing upon the materials that we covered in class, tell me what you think, whether you like it, you don’t like it, whatever.
And it’s still a lot along those lines, some of it is just designed to be tell me what, tell me that you understood some basic concepts here. We’ve covered a lot of fundamental concepts in law across these various disciplines, just tell me that you’ve internalized those ideas and then there’s still space for the take having. And I do hate being restricted to the curve when it comes to grading these things because it does feel like a little bit contrary to the spirit of the class in some ways but there’s not much I can do about that, unfortunately.
Kevin Walsh:
Well, I’d have to guess that some of your provocative quotes would come from Oliver Wendell Holmes, Jr. perhaps or Richard Posner, those would be the ones where I go to for a react kind of thing. Although I suppose you could have … One of the quotes I’m most interested in by John Marshall is where he says the judicial power has no existence, that it just … We have no will and that doesn’t seem right to me but it does seem like the kind of thing that could draw forth an interesting reflection or set of reflections from students given what you cover in the book.
Chad Oldfather:
Yeah, yeah, no, and there’s no shortage of quotes and I’m sure I’ve drawn on Holmes and I’m sure I’ve drawn on Posner from time to time, not Marshall. I’ve also found … You’ll find these collections of … A couple years ago, I found a book called Blindfolds Off, I don’t remember who put it together but it’s this series of interviews of federal district judges about their decision making and attempting to get them to open up and be candid about what all goes into their processes. And you do find in there sometimes judges talking often in the context of deciding specific cases, making these statements that are like, “Oh, that’s interesting and that’s worthy of some thought, let me put it out there and see what I get.” And I won’t be able to cite to you anything specific off the top of my head but I certainly do remember that book as a valid source of stuff.
Kevin Walsh:
Well, one of the reasons I was interested in how you teach it and how you assess it is because there’s something that comes from the title of the book. So, the subtitle is Character, Wisdom and Humility in a Polarized World and that presents some challenges for teaching, for learning. And particularly, I think the polarized world part of the title, it refers to aspects of this time we’re in that I think call out for the need for timelessly valuable traits that judges should have and that gets to practical wisdom and intellectual or epistemological humility which is … Those are the two characteristics that, as we progress toward the end of the book, you say this is what needs to be cultivated.
And I guess the question that I have is, in what sense are the book’s arguments tied to perennial truths about the particular kind of social animals we are, that we need judges and there’s a standard, as you talk about, a standard triad, a structure that judges fit into and, across time, they need to have certain characteristics, at the same time, it’s incredibly interdisciplinary. You’re citing social psychology, you’re citing sociology, you have a whole bunch of disciplines and so, in some sense, it’s informed by the latest. And how much of the book’s arguments are tied to, we might think of perennial truth and how much is tied to this, more current things? I know you can’t put a number on it or something like that but maybe one way of thinking about it is, if we were having the same conversation with Professor Oldfather the fifth 150 years from now, maybe 180, who knows, we maybe live longer, how might the book’s prescriptions be invalidated or validated by [inaudible 00:13:49]?
Chad Oldfather:
Yeah, it’s a great question because I do think a lot of it is timeless. In an important sense, everything I cover seems to me to be related to this set of questions that have been coming up for as long as humanity has been thinking about these things. And certainly, as long as anyone’s been writing down what people have thought about these things, what does it mean to be a good person, ultimately, is the question. But certainly questions about good character in general in the context of judging, the notion that judges are human and, therefore, susceptible to all of our systematic human fallibilities, those are pretty timeless as well.
And so, in that sense, I certainly was confronted with the fact that I’m tackling questions that people have been dealing with for ages and that, in a fundamental sense, I’m not saying anything that anyone hasn’t said before. But there are, as you suggest, recent aspects to it and I think that one of the contributions that I make is a contribution of synthesis, of drawing together all of these recent developments whether they be developments in research, whether they be developments in prescriptive philosophizing and so forth.
So, I think, turning to some of those recent things, one of the arguments I make is that the system has long-implicitly recognized the fact that judges are human, that that isn’t something … We often think of that as being this insight that the realists had and that, before that, it didn’t exist and I don’t think that’s quite right. I think that, not only is it the case that judges and commentators talked about the same sorts of factors well before the realists showed up, but that the very design of the system reflects a concern with these fallibilities, that the adversarial process is designed in some ways to make sure that judges get the information that they need and are exposed to both sides of a controversy. The expectation that judges provide written justifications for their decisions can be viewed as another check on thought, another way to make sure that these decisions are grounded in the sorts of authorities and ideas that they ought to be. Stare decisis certainly is another doctrine that is meant to keep judges from wandering off out into the wilderness on their own and getting lost, it gives them guideposts to follow.
So, that stuff is both timeless but, also, I don’t know that anyone has quite said these features of the system are a recognition of human fallibility and then I go from there to point out that I think lots of features of the system have changed in ways that have led to the weakening of these sorts of mechanisms. When I joined the legal academy over 20, almost 25 years ago, there was this great concern amongst a preceding generation of judges and scholars about what was, in the appellate courts at least, referred to as the crisis of volume, that appellate caseloads had, from 1960 till the late ’90s into the 2000s, had exploded and judges had greater caseloads, less time to devote to individual cases and decision making so we had the rise of unpublished opinions, delegation of writing of opinions, all those sorts of things and people were very concerned about this, this was a crisis, that was the word that was used. And now we’ve all just become accustomed to the fact that, well, that’s just how the system works now and any sense of crisis has mostly disappeared with that generation of judges and scholars.
But I think the changes, and it’s hard to quantify them, it’s hard to pin down exactly what they were, but I think those changes existed and persist. I think things like the automation of legal research and the influence of algorithms have changed the nature of law in ways that we’re only really beginning to recognize and AI, of course, is going to bring further changes that are difficult to anticipate. You got phenomenon like managerial judging. And so, in all, there’s this distancing of individual judges from the historical work of judging and I think that has all led to a weakening of the traditional constraints, led to an opening up of the possibility that the very human influences that we’re all susceptible to, cognitive biases and motivated reasoning and so forth, can creep in. And then I think there are more atmospheric changes. I think that, as a society, we have come to rely very heavily on the tangible and the quantifiable, that there’s this sense, and this is a generalization of course, but a sense that, if we can’t reduce a problem to data or a formula, then somehow it’s not real.
And in law I think this manifests itself or is at least conducive to the rise of originalism and textualism as methods because I think part of the claim that you often see in conjunction with those methods is, look, if you’re not basing your judgments on express words, on the text, on something tangible, you’re just making things up. And I resist that idea because I think there is a role for, if we call it knowhow, if we call it what Carla Wellen used, the label situation sense, I think there’s something real to that. I think that, as we gain experience, we gain knowledge of how to do things that is not fully articulable. And here too, I’m echoing other people, in lots of ways my book is recapitulating arguments that Anthony Kronman made in The Lost Lawyer 30 years ago at this point so, certainly, there’s a lot there that has been said before. Something I’ve discovered since in a project I’ve been working on that I wish I had known about when I was writing the book is I’ve been digging in more into some sociology and the shift from what Peter Laslett called the face-to-face society where in …
And partly this resonates with me because I grew up in a very small community, I grew up in a community where everyone knew everyone as a whole person and our interactions were not with somebody we knew just in a particular context but somebody who we knew in all of the contexts of their lives and vice versa and that used to characterize much of the world and now characterizes basically none of the world. And as we’ve moved away from that, from what the sociologists, the German sociologists at least call gemeinschaft into what they call gesellschaft or from community into society, we have to rely on these other things and I think that too has pushed us away from this sense that we can have knowledge that is not fully articulable. So, that was a bit of a meandering answer but I think it’s all both timeless and updateable.
Kevin Walsh:
Right. So, you mentioned the Kronman book, that’s heavily Aristotelian, right-
Chad Oldfather:
Right.
Kevin Walsh:
… and a virtue ethics that … And maybe it’s been accused of being nostalgic for maybe a time that never was or what have you but at least the characteristics of phronesis or practical wisdom and the idea that these are embodied in people whose lives experience experiences as lawyers, and he talks about the lawyer statesman model, that things have changed such that those characteristics don’t develop in the same way, they just haven’t been given the same setting. So, I think the way that you pointed to the mixture of changeless, so there’s human nature but human society changes and, of course, we’re social creatures and that doesn’t change but the … Because we’re social creatures and because society changes, then the way that this particular function changes.
I’m reminded a little bit of when you talked about where you grew up of going to traffic court with one of my children, I won’t out him or her as the one, but you go to traffic court and, look, what are you going to say? But we were advised to bring a report card, for example, it’s just interesting and I’m not sure that should matter to judging. But if you think about, in some ways, what’s the goal of speed limits, we don’t have the speed limits, we don’t follow them exactly, this is a jurisprudential question of what is the law of speeding and how do we … So, I think there are ways in which some of the face-to-face things still happen or we think about due process in connection with AI, it’s not a notice and an opportunity to be processed, right?
Chad Oldfather:
Right, yeah.
Kevin Walsh:
It’s to be heard and they can’t hear, they have no senses.
Chad Oldfather:
Yeah.
Kevin Walsh:
So, your book, it’s fascinating to me to think about the timelessness versus the time change that’s why [inaudible 00:24:15].
Chad Oldfather:
Yeah. And I think too that it really does … Another piece of it is reflected in, as you alluded to, changes in the profession and I feel like I caught the tail end of this in practice. And I was at a firm in Minneapolis which, at the time I started, was a … It wasn’t a Minneapolis only firm but it was clearly a Minneapolis centered firm and that’s where the client base was and the senior generation of lawyers there clearly had joined the firm under a different social contract, so to speak, than was the case with later lawyers. There was a real sense that, when you signed up as a lawyer at Faegre & Benson in that earlier generation, you were there for life if you wanted to be and that you would take your place at this institution that served as an advisor to other local institutions and that there was this very small world in which that role would be valued both for its ability to get things done but also for its ability to say you can’t do that or that’s a bad idea.
And now it seems like it’s … And I’ve kept in touch with … Many of my close friends are still there and it’s changed, it’s much more of a transactional model of lawyer-client relations than used to be the case and I don’t think you can ever recover that past but I think something valuable was lost.
Kevin Walsh:
Well, I want to ask about … Building on this timelessness versus changing question, you end the book in an unusually provocative way for an author. So, you think, especially a law professor and a interdisciplinary book, you have something to prove to the other people in these other disciplines and to the general public that you have actually integrated, synthesized things fairly, that you, although not yourself a sociologist, not yourself a psychologist, that you have fairly represented their work and things and all of that.
And that would tend, I think, towards a confidence in the thesis and what your prescriptions, every law thing ends with some prescriptions and yet you say, you end this way and this is after building up to the case for practical wisdom and epistemological or intellectual humility and here we are at the end and think, okay, plot twist or not at a fundamental level, now I’m quoting, “At a fundamental level then, my views are tentatively held and subject to revision as I believe should be a core feature of all people’s but especially judges’ beliefs but I could of course be wrong,” the end.
So, I’d ask why you thought that was the best way to end because it left me hanging in a sense but then I thought, well, if I ask that, it would show that I didn’t do the reading in some sense because it’s a missing the forest for this one tree here. So, I guess I’ll ask not why but what advantages and disadvantages from … I’m asking the author, did you have an … Ending the book on that note, because it’s deliberate and I’m sure someone pushed you at some point to say, “Don’t end that way,” and you said, “No, I’m going to,” but I could be wrong about that.
Chad Oldfather:
Yeah, nobody pushed me that I can recall.
Kevin Walsh:
Okay. So, there you go, I revise my belief.
Chad Oldfather:
It’s a great question. I think I will give partial credit for inspiration to Cardozo, I don’t think this is how … Well, I know because I checked this morning. It’s not how he ends his book The Judicial Process and I’m not sure exactly where it appears in there off the top of my head but it includes this sentence. If this seems a weak and inconclusive summary, I am not sure the fault is mine and I like the spirit of that. But the point of it is, because one of the main things I’m advocating in the book is intellectual humility, skepticism about the nature and correctness of one’s knowledge which doesn’t mean institutional diffidence, it doesn’t mean you can’t hold strongly held conclusions, it does mean something like just be careful, be careful because there are all sorts of ways in which we can be let astray. We’ve all got blind spots and the thing about blind spots is you can’t see them so you don’t know you have them and so, there’s this inherent, I don’t know, contradiction, I suppose, in being a strident advocate of intellectual humility and so it’s meant to capture that.
And I do want to reflect for a minute on another one of those chance encounters that I think was part of the story of the book which is … I don’t remember how I found it but I’m going to hold it up, a little product placement here. Nathan Ballantyne’s book Knowing Our Limits, he’s a philosopher, he was at Fordham at the time he wrote the book, he’s at Arizona State now which is this relatively recent book that pulls apart how we know … It’s a work of epistemology and, ultimately, this book that explores and advocates for intellectual humility, epistemology done in a way that’s sensitive to all of our fallibilities, a lot of drawing on psychological work, the Dunning-Kruger effect which I think most of us are familiar with, he draws on a lot of work that David Dunning has done with various colleagues and develops this idea of, and I think this is the part that most struck me, of what he calls epistemic trespassing which is being an expert in one field and then crossing over into a different field and assuming that your expertise transfers.
And I thought to myself as I was reading that, well, this is what judges have to do all the time. The judges are confronted with, because they’re generalists almost all of them, by nature they’re confronted with these problems that take them outside of the bounds of their expertise. Now, of course, that depends on what is judicial expertise, what is it, there are big questions that are bound up in that that I try to touch on in the book but this book influenced me a lot. And I hadn’t remembered this but I looked just this morning and his last sentence is I try to keep an open mind. So, there is something, I guess, to the spirit of making an argument in favor of intellectual humility that compels somebody to qualify it at the end. Strikingly, and I just got my pile of exams from this semester’s class, there are 50 of them and I haven’t read through all the essays but I did notice in going through them that … And this wasn’t something I emphasized during the semester at all but a good number of them have as their last sentence but I could be wrong.
Kevin Walsh:
Well, they love it. Yeah, that is fascinating. And I guess they’re inviting you to say, “Well, not completely.”
Chad Oldfather:
Right.
Kevin Walsh:
That’s interesting. Yeah, it’s striking. I do think that there is a sense that you’re taking on a lot by writing a book about character, wisdom and humility in a polarized world, there is an obligation as the author of a book with that subtitle to at least show self-awareness and that is helpful to stick with you. Something that was prompted by your answer made me want to circle back to this question of specialized courts because you had … The chapter right before you end is specialized courts and methodology and you mentioned earlier methodology and I do think that there is a broader shift perhaps. And I don’t know that originalism or textualism, that I’d single them out as better or worse in this respect of methodologizing judging, there’s other methodologies and those have their limits as compared with, say, jurisprudence as a way of thinking about what you’re doing.
But putting aside methodology, what do you say about specialized courts? Because I do think, to the extent that the main argument of the book goes through, I think, generally, generalist courts have to be good because of the experience-based learning that comes with the growth in the virtue of practical wisdom. But I know you identify some good things and bad things so can you just say a little bit about how to think about specialized courts in your book on judgment?
Chad Oldfather:
Sure, yeah, and I am of two minds about specialized courts. I do think, as you just suggested, that there are values of generality and partly that has to do with the sense that there maybe is some, whether it’s wisdom, whether it’s expertise, whether a different label is the right label, something that is general to judging. There’s a Holmes quote, something to the effect of, “Every day I get this new case and I’m terrified but then, ultimately, I walk up to the line and pull the hide and it’s the same old donkey of a question of law underneath,” which is just suggesting that, look, there are certain moves that exist in law and they’re ultimately … We come to learn them and we come to learn how to deal with them and I think there’s a lot to that.
I think there’s a lot too to the idea that, because law is ultimately this general thing for the public, for us all to live under, that there is value in having it funnelled through generalists as an almost enforced translation into something like a common language because one of the dangers of specialization is you get this fragmentation of knowledge and things become balkanized to an extent that becomes unfortunate and then you create boundary problems between the disciplines and so forth. On the other hand, there are efficiency gains, undoubtedly, there are efficiency gains that come with having, particularly in very technical areas of the law, judges who are familiar with those areas being the ones who are assigned primary responsibility for them. So, I don’t think specialization is an answer to all of our problems but it seems to me an answer to some of them.
Kevin Walsh:
To some, right. And so, I wanted to ask about … So, this comes into two judges who’ve influenced you in ways as this comes through in the book and it occurs to me in thinking about specialized courts that one of them was a judge on a specialized court and then another is the judge you clerked for, Judge Jane Roth, and that’s who you dedicate the book to. And that’s a big deal to dedicate the book to the judge you clerked for, I guess it was a good clerkship experience.
Chad Oldfather:
Yeah.
Kevin Walsh:
And my question there is what insights into law and adjudication did you get from Judge Roth that the embodied practical wisdom or what have you that, this far down the road and having had all these other experiences in the legal profession in different ways, you dedicate the book to Judge Roth. What are some lessons that you [inaudible 00:37:54]?
Chad Oldfather:
Yeah. So, I think there’s … My sense is that there’s an inevitable almost imprinting process that takes place with any young professional and their first boss, so to speak, because you’re confronted with someone who … The knowledge differential is just so great that, inevitably, they will seem incredibly impressive simply because they seem to know so much and the young lawyer or whatever will never imagine that they will ever achieve that level of knowledge so there’s a certain awe, I think, that’s built in structurally to the relationship. And as well for me, I didn’t come from, as I mentioned, I came from a very small town, very much a farming community, I didn’t know any lawyers, there were no lawyers in my family, I was first generation student and law student all the way through. And so, for me to have this experience working not only with a federal judge but one who happened to be married to a United States Senator and getting to know them as humans and as really fundamentally decent human beings was a very valuable experience for me and they were just tremendous models for, I think, how to be professionals, how to be partners in a marriage, just how to be people, they were both absolutely wonderful people.
And I was, of course, a young law graduate and you know how it is, you do well in law school and you got all these law firms telling you that you’re great and all that sort of thing and so I was full of big ideas and she would patiently entertain them and then in effect say hold your horses because the world is more complicated than that and did it in this … She was always open to listening. It wasn’t one of those clerkships where there was this, okay, well, we’ve got oral arguments the next day, we’re going to essentially hold a seminar as we all prepare, it wasn’t that sort of arrangement at all but she was very open to hearing our perspectives and responding to them in an appropriate way.
And it’s one of those things … So, I distinctly remember thinking at the time I’m not sure I’ll ever have a job as good as this one ever again in my life. Happy to say that the one I’m in right now is probably better but I still did treasure that time as a clerk. And then you gain appreciation over time too that she was not any kind of movement judge, she didn’t adhere to any particular school of thought, she didn’t think of herself in that way, she wasn’t adherent of no ism of any sort, just a judge, being a judge in, really, what I think is the fullest sense of that word.
And one of the things that was heartening for me to find out as I was doing all of this interdisciplinary research on practical wisdom was to learn that there were some researchers who attempted to find out who are wise judges. And they did a survey, they sent a survey out to some large number of lawyers asking who do you identify as judges who are wise and there were, I don’t know, let’s say 15 to 20 judges that surfaced through this. And she was one of them which didn’t surprise me, certainly delighted me and so you just take that example with you and I don’t think I could have had a better example of how to be a lawyer and a human being than she was.
Kevin Walsh:
That’s beautiful. I think the … I did not appreciate the connection with a Senator Roth so I gather then is this … So, you might say then that the lessons learned, they compounded over time and, when you went to write the book, you could withdraw them and it wasn’t impacting.
Chad Oldfather:
Yeah, indeed, indeed.
Kevin Walsh:
Is that the Roth that you’re talking about?
Chad Oldfather:
Yeah, yeah. No, that’s exactly right.
Kevin Walsh:
Oh, interesting, interesting. Well, the other judge I alluded to was a judge on the US Court of Appeals for the Federal Circuit and now I don’t know if this is … Is it Judge Meyer or Judge Mayer but, if it’s Meyer, then, okay, or Judge Mayer, both have interesting double meanings, I suppose.
Chad Oldfather:
Yeah.
Kevin Walsh:
But he was a judge on the federal circuit and you write in your acknowledgements that this book’s origin and, in an important sense, my entire career in legal academia both date back to a seminar entitled The Judicial Process that was taught by this judge on the US Court of Appeals for the Federal Circuit, I found that remarkable. And I just thought I’d ask you to perhaps elaborate on the seminar, that one, and then a little bit on the trajectory to justify that statement in a way that … Not prove it but I think law students, for example, taking your class might find that striking as well at the outset even they go … And then get all the way to the end and quote that. So, yeah, can you say a little bit about that seminar and, yeah, its influence?
Chad Oldfather:
Yeah, yeah. So, the book that that seminar used was by, I think even at that time, Senior Third Circuit Judge Ruggero Aldisert-
Kevin Walsh:
Aldisert, yeah.
Chad Oldfather:
Yeah, called The Judicial Process and it was this book that covered a lot of the same territory that my class does, the nature of law, judges as lawmakers, statutory construction, the rule of intuition, subjective influences on decision making, opinion writing, precedent and so on. And so, we covered a lot of the same ground, I can’t say that I necessarily in some conscious way retained a lot of the knowledge that we went through. I certainly kept the book and drew on the book especially early on in my career for inspiration but I think the influence was, in some degrees, largely beneath the surface but it did … How did it lead to my career? It certainly sparked the interest in the topic in general, more tangibly, we wrote papers as part of that class and the requirement for the paper was it has to have something to do with the subject matter of the class.
Somehow or other, I decided to write a paper on the use of baseball metaphors in judicial opinions which led me to stumble on this small literature about metaphors and their function, not only in the law, there had been a couple of articles written but also in literary theory and so forth. And I wrote that paper and then, while I was clerking, I was like, “Well, let’s see if I can get it published.” And so, I sent it out and it ended up getting published in the Connecticut Law Review and I think having that publication on my resume when it came time to look for this job certainly helped. So, I think, if I hadn’t done that, I would’ve had one less publication, I may not have found any job as a law professor. So, that’s the story there.
Kevin Walsh:
Well, nice. Yeah, you maybe hit it out of the park, I suppose, with that and have, in some ways, rounded the bases and now you’re home-
Chad Oldfather:
Yes. People still cite it too which is amazing.
Kevin Walsh:
Oh, that’s really neat, that’s really neat. Well, I do want to ask a little bit more about legal education because this is a book … So, it’s interdisciplinary, it gives a lot of information and draws on studies and, at the end, as with a lot of legal scholarship or interdisciplinary scholarship related to law, it has some prescriptions. And to me it provokes the question of, yeah, how do we do a better job in law schools, how do we do a better job in the profession with being aware now after reading the book of the changes, of the different kinds of influences that are undermining some shared values as well as potentially other opportunities. So, you offer four things and I’ll give the short version and maybe we can talk about them.
So, one is adjust existing mechanisms for channeling judicial behavior. So, this goes back to you have multiple chapters about internal and external effects or mechanisms on channeling judicial behavior. So, that’s one, so the focus is on judicial behavior. One is on legal education, so reforming legal education in ways that focus on the professional formation of practically wise lawyers. So, we’ve got the judges and their environment, we’ve got the legal education and then the third one is about reorienting or reinvigorating norms within the profession so the bar can better respond essentially and paraphrasing here. But the public wants standard judges, they have a good sense of what a good judge is and it’s not one that’s readily identifiable with some subset of the profession or elite members of the profession. So, reorienting or reinvigorating norms and then the last is judicial selection, improving that.
And a lot of these are controversial in different ways and you mostly are identifying some places to look, showing that you know some of those limits of things that have been tried for judicial selection but I thought I’d ask about legal education since we’re both law professors. What can and should we be doing better? What reforms to legal education do you recommend?
Chad Oldfather:
Yeah, I think … And I’ll answer it by stepping back a little bit and I think saying that … Obviously, remedying polarization in society is too big a problem to know how to crack and so part of what I’m suggesting is that we attempt to do it in the profession because I think it’s at least a more limited universe and we can probably find within the profession a set of ideals that we can collectively accept related to the rule of law primarily. And that part of how we do that is by our process of legal education that is … I’m now not remembering who this quote is from but I quote somewhere in the book the idea that, look, the law is a product of judges and judges are who the law schools make them because judges come out of law schools. We provide the initial exposure, we create the sense of norms and so some of that, I think, relates to character formation work that’s increasingly taking place in law schools that is involving … Some of it is just amplifying work that might be traditionally associated with legal ethics classes but giving it not so much of a code-based approach and more of a full embodiment in what does it mean to live as a lawyer in an appropriate ethical way.
And two, I think related to that is really attempting to create a culture that doesn’t encourage this retreat into opposing camps because, certainly, an experience here and I think it’s probably the case at a lot of law schools, is we find that our students are hesitant now to voice positions that they think might be controversial in class because of fear of alienating some of their classmates. And there is a tension there too because, as we’re forming them professionally, we deliver this message during orientation that, look, these people, look to your left, look to your right, it’s not that one of them isn’t going to be gone in a couple years, it’s that one of them is going to be, at least one of them is going to be a colleague in some meaningful sense of that term for the rest of your professional life so you have to get along with one another, you have to treat one another well. And I think in a world where that can easily be taken as, well, therefore, I shouldn’t say anything that they might find offensive, there’s this stifling of the exchange of views and I think people tend to then retreat to their own camps to say what they’re thinking rather than saying it in class to one another.
And so, some of it is just attempting to foster this atmosphere of communication but also just trying to find common ground that we all believe in the rule of law, we should because that’s what we’re here to do. And so, I think that’s a piece of it, I think as well there’s become this tendency in law to engage in the culture of celebrity with respect to Supreme Court justices especially, I find that troubling both as a phenomenon in general but also as something that we should encourage by emphasizing it in law. I think maybe the best judges tend to be the ones that nobody’s heard of because they’re focused on doing their jobs rather than creating a reputation. So, it’s small things like that and I do feel a bit like I could or should have said more concrete about what we should be doing next but those are hard questions and, in some ways, I think the important thing is to start having a conversation because I’m not sure what the answers are to all of those questions.
Kevin Walsh:
Well, you’ve been very, how to put it, admirably … I don’t know. Why isn’t the answer everyone should take your class? I don’t know what the … So, the idea is, well, listen, that’s why I wrote this book and people should read it and they should take my class. I do want to ask, why do you think … So, why do you think 50 students signed up? Because as you look at, if you’re a law student, there’s something you want from law school, there’s multiple things you want from law school. Well, one of them is to pass the bar, absolutely, to be a member of this profession but that’s a bare minimum in some sense. You also maybe want some things that you can only get in law school that you can’t get in the profession. It seems though that there’s something you’re offering in this book and in this class that students are finding valuable that perhaps they’re not getting in their other classes.
And while I understand you don’t want to toot your own horn or go against some of the virtues that are there, I do think, actually, there’s something coming from you to be said for the book, for the approach you take. And maybe the way to ask it is not why should more students take your class or more professors offer a course of this sort but why do students want this, what do they get?
Chad Oldfather:
Yeah. Well, one answer is that we have a distribution requirement that includes that they take a perspectives class and this is a perspectives class so it is a way to meet a requirement in that sense.
Kevin Walsh:
Yup.
Chad Oldfather:
But I do think that there is a hunger to talk about and think about these sorts of things and it’s in the students. I’ve been surprised, I won’t say the book has exactly set the world on fire in the ways that I might have dreamed about in the same way that I dream about what happens when I buy a lottery ticket but, nonetheless, I’ve been surprised by the number of judges who have said, including one, I just got an invitation to speak to an entire state’s judiciary about the book and the judge who extended the invitation said it scratched an itch that I’ve had and that a lot of my colleagues have been feeling as well. And so, I think that’s it, I think that there is something about this topic and set of topics that the world we live in right now has really teed up and I think we should be thinking about these things and, whether I’m an especially effective messenger of the ideas, I’m not sure but I think the ideas are good.
Kevin Walsh:
Well, one thing I’ve taken away from this is knowing our limits and the virtues of limits as well and I think that’s probably a good place to end in terms of our time so thank you very much for this conversation. And for those of you who are listening at double speed or triple speed or what have you, this is it. Thank you for listening in on our conversation and, for more discussions of this sort, I encourage you to visit the CIT website at cit.catholic.edu. Thank you.
Chad Oldfather:
Thank you very much.