Episode 47: Diane Pamela Wood
Judge on the United States Court of Appeals for the Seventh Circuit and a Senior Lecturer in Law at the University of Chicago Law School
01:00:53
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Show Notes
Diane P. Wood is a Circuit Judge of the United States Court of Appeals for the Seventh Circuit and a Senior Lecturer in Law at the University of Chicago Law School. She joins MC Sungaila to share how she went from wanting to be a comparative literature scholar to sitting on the bench. Judge Wood also shares the importance and the value of pro bono work not only for those in need but for lawyers who want to learn while serving and giving back to the community. Tune in to their discussion as Judge Wood offers advice for aspiring law students and lawyers on mentorship, legal writing, and finding the right area of law to pursue.
Relevant episode links:
United States Court of Appeals Seventh Circuit, Spillover, The Song of the Dodo
About Diane Pamela Wood:
Diane Pamela Wood
Judge, U.S. Court of Appeals for the Seventh Circuit
Nominated by William J. Clinton on March 31, 1995, to a seat vacated by William Joseph Bauer. Confirmed by the Senate on June 30, 1995, and received commission on June 30, 1995. Served as chief judge, 2013-2020.
Transcript
In this episode, I'm very happy to have join us on the show Judge Diane Wood of the United States Court of Appeals Seventh Circuit. Welcome, Judge Wood.
Thank you for having me.
I think you had such a varied career before joining the bench in terms of academia, working in high-level policy in the government, then, of course, serving a very distinguished career on the Court of Appeals. I wanted to start first with how you decided law was for you or that you decided to go to Law School. What intrigued you, to begin with?
Thank you. It's a funny answer because Law School was the last thing in the world on my mind when I started undergraduate school, at least at the University of Texas at Austin. I was going to be a Comparative Literature scholar. I was going to do other things, but I graduated from UT Austin. I was all set to go to graduate school that coming fall.
I happened to be working at Rice University in Houston that summer. It was a very interesting job working with a bunch of economists, political scientists and sociologists who were studying developing countries. The economies of developing countries, what worked, what gave a good income distribution, so I was a general research assistant for these professors. In the evenings, I would go over to the Rice Library and sit down and read the journals that publish comparative literature articles.
My heart began to sink as I read these articles. Not because they weren't interesting but because I thought they were for such a small audience. That not very many people were going to see them and it obviously was the result of very hard work on the part of the authors. Fundamentally, combining it with my daytime work, I realized it wasn't engaged enough with the real world for me.
What I wound up doing was I wound up withdrawing from the comparative literature program. I was going to go to their great surprise. I went back to Austin and took a few classes and things that I thought would be interesting because I already had my degree and talked to a lot of people. I vividly remember a dinner with one friend who said, “You need to go to Law School.” I thought, “I can't think of anything else to do, so fine.” I took the LSAT and I started Law School the next fall.
Honestly, on the first day I realized that I had made the right decision for myself. It was so interesting to see how law helps us all live together, somehow. We have to come up with answers. You can't say, “What an interesting question.” We need to live together productively, hopefully, peacefully, whatever field of law it may be. I credit some of the professors I had at UT. I certainly had some wonderful classmates who became my lifelong friends because I was back again in Austin. It was that realization that I wanted to be engaged with the world around me in some productive way that led me directly to law.
That's the aspect of law in the larger sense in terms of its problem solving, community building, as you said, peacemaking, at least in this sense of how do we all relate to each other and having the rule of law helps us have principles for living side by side. It does have a practical application, certainly. It's fortuitous that you went and read those articles and had that epiphany because otherwise, you would be going off to what you thought would have been your purpose.
It would have been a very different life unless I changed my mind or something, but it was quite different. As you say, people can do two things. They can structure their affairs in a way that will help us work together. Whether it's making a little company and having rules for who's doing what or family law or whatever it may be, the Law of Contracts. Also, when things don't go well, we're only human and they don't go well sometimes, it's a way of resolving those differences, hopefully, short of violence, short of something very unattractive.
It lends cohesion to society and some rules for how we're all going to get together. You're right. That has a practical component outside from the purely theoretical and academic. I had that similar feeling when I originally wanted to be a poet before I went to Law School. I first thought, “That's probably not going to be a good living. If I want to basically pay the rent, this is probably not the way to go.” Even more so when I took classes later in life, my early mid-career crisis or whatever saying, “Should I’ve originally done that? Should I have been a creative writer of some type?” I have the same thing that it doesn't have an immediate effect in the world that you can see, which we can when we're writing.
I didn't like who I was when I was doing that because I was way too alone and way too hermetically sealed. I was a different person when I did that work. I'm like, “No. Correct decision to begin with.” I like having an impact on the world. I like who I am better in this situation, but sometimes, you have to check it out and make sure before you carry on. That's something that resonates with me because I'm thinking, “I like writing that has an impact, a real-world impact,” which certainly you do at the appellate level, the Court of Appeals.
That’s what I’m trying to do every case.
You're not just deciding the case for the parties. You are looking at a higher level is as you you've discussed.
I'm trying to be clear and trying to make everybody understand why something had to be resolved the way it was. First of all, it has to be resolved, but secondly, it matters. What was your reason? What was the support for it? How far is this room going to go? It's very important.
At least the framework for others and some guidance for others in terms of the outside rails for this particular rule and how it should be applied because you're setting standards and guidelines for people. Before you came to the bench, you had both an academic career in the law. Before that, you also worked for a couple of judges. In your clerkships, did that give you some sense that you liked what the courts were doing or what the judges were doing and that maybe someday you might like to be in that position as well?
I'll break that up into two parts. It certainly was a privilege that I couldn't even imagine. When I started Law School, I didn't know a thing about what people did who were in Law School. It was through my professors, my fellow students that I even learned about the whole idea of clerking, but I was fortunate to clerk for a wonderful judge on the Fifth Circuit, Irving Goldberg, whose chambers were in Dallas, but we sat in New Orleans usually a week out of each month.
There are different matches in law for different personalities.
I went on and clerked for Justice Harry Blackmun in Washington. A very different personality. Equally wonderful person. He’s so concerned about the magnitude of the job, the considerations, and the impact that virtually every word that comes out of the Supreme Court has on all. Not just Americans, but on people all over the world.
It was an amazing experience to have that work. Certainly, I learned a lot of law but learned a lot about the values that drive our system and how you explain it, what the job of a judge is. I don't think in my wildest dreams, at that time, I thought that I could be a judge. Obviously, not an Article Three judge anyway because you have to get the president to appoint you in the Senate to confirm you. I did see myself as a person with that set of political skills to do it.
On the other hand, leaving the Supreme Court then as now, it's a pretty good ticket. Lots of doors were opened and I took advantage of, as you said, lots of different avenues before I settled into an academic career, which is what I had thought I was going to do. I worked at the US Department of State's Office Department for a bit. I private practiced at Covington. I did start teaching at Georgetown, but lots of different things. Even while teaching at Chicago during the 1980s, I spent a little time working with appellate lawyers, helping them with Supreme Court briefs, helping them with other briefs. Especially in the field of anti-trust, which had been one of my specialties.
It's wonderful because, in the law, you can have so many different aspects to it, so many different parts of your career and tap into all of those different things, whether it’s academia or the bench or law practice.
There are different matches for different personalities. Somebody might be happier in an in-house situation where you’re part of an enterprise that's devoted to something, whatever it may be. A friend of mine was general counsel at Clorox for many years. She's an amazing lawyer. That's a major consumer products company and she got a lot of satisfaction out of doing that.
You might like the litigation scene. You might like something that's much more personal. My sister was a lawyer. She's now retired, but she enjoyed helping people do their estate planning and their wills. She was a certified mediator. She liked the one-on-one and the personal side of things. She was terrific at it. It’s different things. Whoever's reading, there's probably a spot for you somewhere.
I sometimes think in Law School, there's a certain path that's clearly available, but beyond that, you have to dig and ask people what it's like to have different kinds of practices. My hope here is that people won't be so difficult. They can listen to someone who does something that maybe they haven't thought of before and whether that's something they would be interested in. I can relate. It was a privilege to clerk, have that experience, and see how decisions are made, but I would never have thought that I admire my judges so much. I would never have been like, “Not in that league. I'm just here to help.”
People start talking to you. I moved to the University of Chicago Law School, where I do still teach and we'll be teaching even a little bit more after I take senior status. People got called on to serve on White House commissions and this and that. Through the decade of the ‘80s, people started thinking in a certain way, “Might I be a candidate for a judgeship?”
Politics being what they are, it probably wouldn't have been a regular Article Three judgeship, but there are some courts where the statutes require a political balance on the court, the same number of Democrats, same number of Republicans. The Court of International Trade is one of those. That happened to be an interest of mine. Even during the years of the Reagan administration and the George H.W. Bush administration, there was some talk of that to the point where I began to at least think about it.
In the meantime, I was enjoying my life as a law professor at the University of Chicago, which, then and now, is an amazing place. I was building my interest in international economic regulation and international anti-trust. I did a very important project for the organization for economic cooperation development, which is a Paris-based organization. The US is a member about what happens when there are mergers that touch 8 or 9 or 10 or 15 different countries.
How do we organize that? How do we create some legal certainty for the businesses involved? An English law professor and I put together a report for the OACD. I was like, “I'm having fun.” When President Clinton was elected, I thought, “This could happen, so maybe I'm going to think a little harder about it.”
It sounds like some are slowly growing over time in terms of the possibility of that because it is true. One of my friends who served on a state Supreme Court said, “The politics of getting a state judgeship is like a little P. Getting a judicial appointment at the federal level is like a big P.” There's a lot of politics in that.
There is. Except, of course, it's funny because the day after you're confirmed, you're supposed to erase all the politics from your mind, and as we all try to do, approach every case one at a time without any presuppositions about it. My colleagues and I do the best we can with that, but it was very interesting. One of the things I'll say and this is a piece of advice for anybody who thinks they want to go in this direction, is, first of all, don't underestimate your own networks of people.
When the day came that I realized there was a vacancy on the Seventh Circuit, I started thinking about that. I thought, “I know all sorts of people from this place and from another place.” In the meantime, when President Clinton was elected and Janet Reno became the Attorney General, I was invited by Anne Bingaman to be her international deputy. I was the deputy in the anti-trust division, a position which I agreed to do, even though it was fairly chaotic for my family, for appellate work, legal policy work and all of our international work, which was for me a dream job.
All your areas are so interesting.
Everything. It was a fabulous job. I so respected the people in the department. The career department of justice people were some of the finest lawyers I've ever known. It was a real privilege to work with them. At the meantime, all of a sudden, in the fall of 1994, I discovered that there was an Illinois vacancy on the Seventh Circuit. I'm there in Washington, commuting home to Chicago every weekend and thinking, “This is worth a shot.” You never know. There were some incredibly qualified people who were also interested in it, any of whom would have been a fine appointment. You have to be willing to take your bruises if you get them. It was very exciting.
It must have been amazing when you had that moment of like, “This is my opportunity. It's lined up with the experiences I have and where I am and the fit is right,” the presidential administration, all of that. It's still a leap of faith to do it and then persevere through what could be a very challenging appointment process. It still takes that extra courage to do it, especially now.
It's different at the Court of Appeals level and the federal system in most states than it is at the district court or the bankruptcy court or the magistrate court level. That's important to remember too. Taking it from the bottom up, if you will, the magistrate judges are chosen by the district court on a merit basis. There is an application process in virtually every district. That's a place where people should think of throwing their hat in the ring.
Fill out the application because it's often a stepping stone. The woman who's the chief judge now of the Federal District Court for the Northern District of Illinois, Rebecca Pallmeyer, began as a magistrate judge. She went from there to the district court and she's fantastic. She is the first woman ever to be chief judge of that court.
There's a merit process there. There's also a merit process where you file your applications. Watch out for the job postings for the bankruptcy courts. The bankruptcy judges are chosen by the Court of Appeals, not by the district court, and they serve the fourteen-year terms. They, too, are merit-based. They’ll be a committee of the Court of Appeals. It will go through a very rigorous interview process. I can think of a number of district court judges who were elevated from the bankruptcy judge positions.
That's an open door. Maybe you probably wouldn't make this mistake. Bankruptcy can be fascinating. It gives you a window into the entire workings of the economy. How do people work out these problems? Which debts are we going to prioritize? Which ones are we going to say, “You have to pay this no matter what?” Such as child support, for example, for an obvious public policy reason. Which one's less so?
Even if you might not have thought of yourself as a bankruptcy person, there's a lot there. The bankruptcy judges do a fantastic job. You then get to the district court. A lot of the senators in each state also have commissions that look at district court nominees. I can think of any number of people in district courts around the country that I know who, as you say, held their breath through in the application and thought, “Let's see.” Maybe they didn't get it the first time around. Maybe they got it the second time around. That's fine. You learn a lot about the process each time.
The Court of Appeals, ever since the Reagan administration, has been a little different. It's been done primarily out of the White House. The White House is going to listen to this in-state senators, but the White House is going to make its own decisions. This has been operated out of the White House counsel's office in most administrations since the ‘80s. You have to get everybody you know to write to the White House counsel and say, “I think Susie Smith would be perfect for the vacancy on the Sixth Circuit or whatever you're talking about.”
That's a good executive summary of the different ways to join the bench and the different roles that are there. I also thought of that. People might not realize, for example, like the bankruptcy judges and the magistrate judges, that there are positions that you apply for. The judges in various courts make those decisions and appointments. That's an interesting opportunity that I don't think that everyone even may understand how those decisions are made and who makes them.
It's a great position. The bankruptcy judges speak for themselves. The magistrate judges under the statutes that govern them, the Magistrate Judges Act is what it's called, not only do lots of pre-trial work on the civil side, but there's a provision that allows the parties to agree to let the magistrate judge resolve the whole case. They're holding jury trials. They're resolving things by bench trials. They are an essential part of the system. They're also doing arraignments of defendants. They are issuing search warrants. They see the good, the bad and the ugly.
As the courts get busier, too, then they get busier as well. Their jobs can broaden depending on how busy the district is. I had one of the wonderful lawyers, that magistrate judge that I know was on the show for that exact reason, that I thought, “I don't think people think about this. If they're thinking about becoming a judge, they might not think about magistrate judge positions or whether that's an option for them to consider.” The same thing with different states in the state appointments. Sometimes, it's elected positions like in Texas. It's all the way up to the Supreme court being elected. That’s a different elected.
I had a very interesting conversation with a woman who had been on the Indiana Supreme Court. Indiana has a very complicated system but suffice to say, she'd been elected to the job. This was a long time ago. It's probably been like the late ‘90s that we had the conversation. It was her feeling at the time that the possibility of election was more open for traditional outsiders, whether it be women, people of color, than the tightly-knit commissioned type systems where it was the old boy's network. Perhaps an emphasis on the word boys. Maybe those networks are opening up now. It might depend on the state you're talking about, I certainly wouldn't want to say, but she thought there was a real opportunity for a go-getter woman such as she was. She did win the seat to do good through election.
That's what I've noticed in some of the jurisdictions. A friend of mine was an appellate lawyer in Ohio and ran for a Court of Appeals seat there. She's like, “I have no idea whether I would have been appointed if it were an appointment situation, but I had an opportunity because it was an elected position.”
I still think that continues to be true, depending on where you are. Even in places where there are a lot of appointments, there still are sometimes opportunities. Even in California, we’re having our election and there are fifteen judicial openings on the trial court that are subject to election because the governor didn't appoint in those positions. It's a very unique circumstance that has to happen for that to happen. The array of people and their experiences who are running for those, that's an opening for people who might not be one of the traditional candidates for a commission.
That's a very pragmatic way of thinking about if you want to join the bench, what does it require for that? In terms of, are you running for election or are you doing an appointment and who's doing the appointing? Thinking about that in terms of a likelihood of having a good shot at it and then putting your name in the hat and seeing what happens.
I'm not saying they're the right people or the wrong people, but if you have somehow got the organizational ability to add on to your money-earning efforts, whatever they may be, your general counsel's office, your law firm, your professorship, get out there and work with community organizations. Get out there and work with the bar. Be a person who people know. It's worthwhile work to do anyway. It's fun to be involved in that thing, but it also means that you're not a perfect stranger if you do, all of a sudden, show up and say, “I'm interested in being a judge.”
Being a judge is a matter of public service and wanting to serve the community. I think by doing other methods of service, you're demonstrating that I didn't suddenly wake up and decide I wanted to serve in some way. I've always been doing it in other ways and things where I have passion for. The second part of that is that, “You look familiar to people,” because they've seen you around.
The legal services corporation estimates that it can help out only about one in five of the people who qualify for it because they just don't have the money.
If you are in a position where say, the American Bar Association or your local bar association is going to evaluate your qualifications, you want to say, “This isn't the first time I've ever heard of a lawsuit. I've been involved in a panel of work. I’ve been involved in the following trial work. I know my way around.”
They will be evaluating for that qualified, well-qualified, all of that in terms of your experiences as well. It's not whether you're familiar with them but what your experiences are also. It's always a good idea for lawyers to get out of their hallways or their office anyway, to get to meet other people. Maybe you even get to learn about other practices or other places to practice that you might not have considered and maybe you'll make a different decision there too.
I think having a greater number of people that you know that your part of that community in a greater way is helpful all around to your career but is an important component for the bench because that's certainly something I've seen. A lot of judges here in California were state bar presidents or whatever. They were very involved in the profession and it didn't suddenly come upon them one day that they wanted to do something like that.
The work can be very meaningful because one of the great places, in fact, we need lawyers to do this is in the underserved populations, which are shockingly vast. The legal services corporation estimates that it can help out only about 1 in 5 of the people who qualify for its positions because they don't have the money. They don't have the people. We depend on this volunteer service that we're talking about by lawyers. Even more, I have thought for a long time, what we need is for lawyers to be able to supervise groups of non-lawyers. The example I give is somebody who's having a problem with their landlord. Maybe the sink needs fixing. It's been dripping and there's water on the floor. It's becoming a problem.
You don't necessarily need a lawyer to fix that problem. You might need somebody with enough self-confidence to pick up the phone, call the landlord, and say, “Cut it out. Get a plumber over here now because maybe the heat's been off and it's a more serious situation than a trippy sink.” You could have a lawyer saying, “If that's all you're trying to do, give her deposit back. She moved out three months ago. There's nothing wrong with the apartment.” You can harness lots of people to help out to supervise advocates in that situation. The lawyers who wind up looking at judicial service are often people who have also spent some time trying to make sure the doors are open for everybody who needs help.
Pro bono service in various ways and ensuring access to justice, all of that is, I think, unique to our profession and we all feel called to do some of that. Some of us more than others, but still, that's part of the deal. We care about this.
We are in a very privileged position and gatekeepers. You need to make sure you're holding the door open.
Some appellate courts, I'll say in California, are trying to bridge that gap to some degree in terms of having self-help clinics. The Court of Appeals is where lawyers cannot necessarily represent people but at least help them through the procedural aspects of their case so they can at least get it to the point where the court can see it on the merits and decide it. It was shocking to me how wide-ranging you're talking about who needs that help.
In most small business owners and people who have exhausted whatever funds they had for the lawyer and the trial court, but they certainly don't have anything left for the Court of Appeal, it impacted me. I kept thinking, “I think I know who's going to show up for these.” I was constantly surprised about the range of people and what their circumstances were like, “I'm glad we have this that we can help.” Some of these people may not qualify for public interest help to have a lawyer help pro bono, but at least we can help them with the procedural parts here.
We've done something similar at the trial court, the district court level. We've developed forms both online and paper. I worry a little bit about over-reliance on the internet because of the digital divide. Maybe I need someone to have their phone that they're trying to file a lawsuit on. It's not enough, but you can help them with this. I'm trying to think whether it's New York City, but they have what they call navigators.
I was going to say the court navigators.
They will say, “This is the form you need and you fill it in. I'm not going to write it for you,” but it focuses the attention. I've seen so many pro se filings and people don't know what to tell you. They don't know what's relevant, what isn't, so they put it all out there. Having the forms helps focus.
I see the same things I do. I teach in a ninth circuit clinic and I do a lot of asylum immigration cases. There's a lot of that where everyone says, “There's all this stuff and it doesn't make any sense.” I'm like, “If somebody asks them, tell me your story.” You're going to tell the whole story. It may not be linear, but it's all there. I understand how it came out that way.
Good for you. I'm glad to hear that they need help.
There's so much. There are so many cases too. The courts need help.
The courts need help and the chilling fact is the correlation between having a lawyer and having some positive outcome is very high. If you don't have a lawyer, a lot of the time, you get lost in the system. You get removed. Whatever euphemism we want to use. If you do have a lawyer, somebody is going to be there. Not for everybody, but you'll be there with a professional eye to say, “This is what's going to work for you.”
It's a good pro bono program that the Ninth Circuit has. It’s very robust in terms of the cases.
They're very proud of it.
We're not the first. It's quite extensive, but then they also have a separate set of cases for the Law School clinics, which are also supervised by experienced attorneys. It's all issues where they say, “There could be something here. We don't know if it's a winner, but there could be something here and we'd like some help to let us know whether there's something here.” We know we're digging into everything.
It's nice to help the court out in that way. They're very interesting cases. It's a great opportunity for the students. Everything all around is good, but yes. They're very proud of the pro bono program because it's so robust. There are so many cases every year. I have the same heart with regard to pro bono work and the service we should be doing as the lawyers as well. I want to have a question for you in terms of anti-trust and that area that you got into. How is it that you chose that? What did you find interesting about that?
It's an accident. The summer after my second year of Law School, I was a summer associate at Covington in Washington. I got there and they were very serious about this program. They worked very hard to get good projects, even though, obviously, a summer associate isn't going to be there all that long. I remember sitting down with one of the lawyers who was involved in a very big anti-trust case they had.
He said, “What we need you to do is to study the law in anti-trust of attempt to monopolize, then go through the record because we have this case on remand from the Ninth Circuit and the district court. Tell us everything that you think our client did that might qualify as an attempt to monopolize.” It’s internal work product, etc. As I was leaving the room, he said, “By the way, nobody has the faintest idea what attempts to monopolize are.” I said, “Okay.”
That sounds very open-ended.
I had not had an anti-trust class yet. Off I went to the library in the firm and pulled whatever I could off the shelves to start figuring out what attempts to monopolize was. I read up on that and wound up over the course of the summer writing them some immense 75-page memo going through with citations to the record. It was everything that the client had done that was legally questionable, let's say, but you can always say with attempts to monopolize with some rare exceptions.
You can always say, “This was good hard competition and just because we won and we're the big firm doesn't mean we did anything wrong because the law doesn't prohibit bigness alone.” Been true forever. On the other hand, the dirty tricks types of things that they were doing, coming in and moving all the bottles off one corner and making them so that it was hard for people to see in the grocery store and stuff like that, it's maybe not so great.
Anyhow, I had it all there but in the course of reading up on it and talking to these terrific lawyers thought, “This is so interesting,” because you read the background cases. One of them may be about the aluminum industry and the next one is about security systems. The next one is about the transmission of electricity someplace and the next one is about patents and the next one is about bleach and the next one is about whatever.
I got the sense of the whole sweep of the economy. I went back home to Austin and took the anti-trust class in my last semester of Law School. From not the regular person who taught it but from somebody who eventually was one of the most distinguished anti-trust lawyers in the country, Steve Susman. Also, an amazing trial lawyer.
Tragically, he’s somebody we lost to COVID, which was a shock. Steve was the type who would ride his bicycle from Houston up to Austin and back again, which is 150 miles a piece. He did everything. In any event, I continued to be very interested. It had a couple of interesting anti-trust cases on the Fifth Circuit.
It happened to be a big year for anti-trust the year I clerked at the Supreme Court. When I was at the State Department, I was doing some very interesting things comparing the competition laws of the US to those of Europe. There's a lot more that can be said about that now, but it was in its infancy. When I went back to Covington, I picked up again with this same case, which wasn't over yet.
That's one of the things that are long-running.
I was hooked. It was fascinating. When I went to Chicago to teach full-time, I taught the basic anti-trust class, but I also often taught a seminar in comparative anti-trust comparing the USA and the European Union anti-trust laws. I'm giving a keynote speech in Portugal for a group called the Association of Competition Law Scholars. It's going to be meeting up in Porto in the Northern part of the country about exactly that. It’s about the spread of anti-trust around the world.
Beautiful setting.
Mentorship begins in law school.
I have no complaints about the setting.
Lovely place. That'll be lovely no matter how the conference goes.
The woman who is the president of it now is a friend of mine, which is why I got roped in.
The globalization or the movement to have a lot of principles that have originated in American law continues. I can think of class actions and aggregate litigation being 1 of those 2.
I did a one-week course in the Hague for the Hague Academy of International Law on the extra territorial application of regulatory laws, which is what it was called. I looked at anti-trust laws, securities regulations, export controls, privacy laws such as the European, general data, and protection regulations. I looked at some of these procedural things you're talking about. I took that course and I expanded it a bit. I taught a two-week class right before COVID hit. It was in December of 2019 in Haifa in Israel.
I'm thinking of getting that course into shape and teaching it at the University of Chicago. It's going to take me a little while more to work on the materials, but it's fascinating. All of the things I mentioned deal with topics that do not respect international boundary lines and privacy. It is when we listen. It requires a different way of thinking about these things.
I served on the Rand Advisory Board with Deborah Hensler at Standford. Do you know Deborah?
I know Deborah, of course.
She's very interested in these kinds of issues. She's great at thinking about these issues both from an academic standpoint but also a practical standpoint in terms of what's happening now and how we can give some clarity to what's going on, some understanding of what's happening because it impacts where you would bring a case and how you would bring a case.
What are the rules you're supposed to be following? Are you supposed to get permission from everybody the way Europeans think? Is a default opt-out okay, which we lived with much longer? Are we going to have races to the top or races to the bottom? It's tough.
Also, it could be in many places all at once and governed by all these different procedural rules and so, how do those all fit together too?
It’s like the companies like to rip their hair out.
Aside from that, I was like, “It's on all fronts with all different kinds of standards and different substantive laws, as well as the procedural. It's something else.” It's very interesting. You could think about not that long ago when the US was the only place for class actions or aggregate litigation. That is not the case anymore.
The AOI had a very interesting aggregate litigation project that I was one of the advisors for it.
I was going to say I thought you were with Judge Quill as well. Was she involved in that too?
Yes. We probably have a huge network of common friends.
Also, she's on the Rand board too, but I know she's interested in those issues that prompted AOI.
Fabulous adviser. Always made good comments. Always does.
That's been my experience. She's brilliant. It's great. To have her experience as a trial judge saying, “I've dealt with these kinds of cases.”
It makes a big difference.
To think outside the box, how can we make this manageable for the courts, the parties and everybody, knowing what I've experienced with the tools I have now? What else can we do? It's interesting. I find those interesting to you that the legal questions are not just the US questions. They have reverberations everywhere.
The problems are common. We shouldn't be shocked by that. There are other sophisticated, wealthy market-based economies out there, and so, no big surprise. They have a need to resolve things in some rational common way, which is what led to class actions.
It's helpful to have a convening of people from all of the jurisdictions dealing with these to share ideas or best practices. Sometimes when you're in one system, you think, “This is the only way it can or should be done.” They say, “No, here's this other way.” You can have that exchange. Overall, it’s positive. Judge Lee Rosenthal also is involved in that discussion.
I know. My husband was my co-clerk with Judge Goldberg. I’ve known him undoubtedly longer than you have.
I was like, “That's a very small world.” That's so funny. She also has great ideas along the lines.
She’s fantastic. She's going to step down as Chief Judge of the Southern District of Texas at some point, but Lee always has ten things on not the back burner but on the front burner.
I was going to say I don't expect that will make a significant difference in everything that she's doing.
She stood all of it, so that's a great thing.
I've learned from her. I interviewed her for the show as well. I hadn't realized that she was also on the Federal Rules Committee. One of the judges I clerked for was the first woman chair.
I didn't chair it, but I was on the committee for six years. It’s one of the great committees.
That's what Judge Dolly used to say. You can have such an impact on things in terms of the rules overall. It's a satisfying role to have.
People work very hard. I call it the skeleton. It's the backbone, whatever you want to say, of the entire system. Procedures guide us to get these things done in a rational way. We certainly try to make them responsive to today's world.
Be prepared and keep the sentences short. Be organized, be flexible so that you can move from one argument to another because you don't know what each of the three judges on the panel is going to be interested in. You've got to have it all fully integrated into your mind.
I want to ask you a little bit, too, in terms of mentoring and sponsorship and things like that. I know a lot of newer lawyers say, “I hear I need a mentor or it'd be helpful to have a mentor.” What does that look like? How do you get one of those? What does it look like to you? I'm sure you're paying it forward to others as well.
I certainly try to. I would say it begins in Law School. Most Law Schools that I know of, certainly at the University of Chicago, the professors are happy to get to know you. The reason they are professors is because they enjoy teaching and the stimulation that you get from the students. It's so invigorating and fun to get to know them. Take that extra time, have a cup of tea or coffee or whatever it is you'd like to have and chat. Do a paper for somebody. Make the relationship happen because it's easier for the student to go to the professor than for the professor to troll around the room and find everybody.
Over the years, I’ve gotten to know so many students at the Law School who go on then to clerkships. They go on to jobs in different places. I try to keep up with them. Some more closely than others. Once you're at affirm, the same thing. My daughter is a lawyer. She's in the capital habeas unit in Dallas at this point. Her clients are on death row in Texas.
When she was at a major law firm, she would just pop into somebody's office. Have a conversation with somebody you're working with and build and let the mentorship grow in a natural way. Don't pop in five minutes before you need a letter where the only thing you could do is write a letter that sounds like the resumé. Get to know the person. I think that’s very important. For me, I have my law clerks, who I adore. They're part of my extended family.
I have such confidence in their ability to move into pretty much anything you could imagine. They have done that over the years. I have some of them who were federal judges. I have some of them who are tenured members at Stanford. I have some of them who are in many other very fine Law Schools around the country that partners in firms. They're doing amazing public interest work. To be able, as each step comes along, to give them a little boost is a wonderful thing.
It is nice having a clerkship relationship with judges is that's one where you learn so much to begin with formatively about how to be a lawyer from the judge that you work with. You also know that you have someone who has your back and is willing to be a sounding board for you all the way through your career. There's nothing like that knowing that.
It's so helpful. Having been helped that way back in the day by my own judges, it's impossible to describe how helpful it is. It gets you going. You can get discouraged. You can say, “We've seen this issue twenty times,” but there's this bright young person who's saying, “No, but maybe we can do it this way. I think it's so great.” “Thank you.”
There's like a sense of renewal from the other clerks coming through every year, even though there's still a lot of learning curve in the beginning for everyone. I think the overall upside of that is so much greater.
I like the learning curve part. It's positive as far as I'm concerned.
I think where I learned how to be a lawyer and practice law was in my clerkships.
The only funny thing about that is I remember after I left my clerkships and I was at Covington. I'd written some background memo for one of the first cases they had assigned me to and the partner called me into his office. He said, “It’s been great. Everything's fine, except it's too objective. You've written this as though you're the court.” Point taken, fair enough.
There is that transition that you need to go through after being on the law clerk that you're like, “That's not my role. I'm advocating for a particular side. You need to adjust that.”
It was funny. What was very nice about it was that it was a perfectly appropriate criticism.
It's common. It happens. I wanted to close. Usually, I ask a few lightning-round questions if you're ready to go. One would be, what about appellate brief writings? What's your top tip for advocates appearing in your court?
It's going to be a two-part question. Be prepared and keep the sentences short. Be organized, be flexible so that you can move from one argument to another because you don't know what each of the three judges on the panel is going to be interested in. You've got to have it all fully integrated into your mind.
People don't realize how extensive the preparation is for arguments so that you're able to do that, that you're nimble. Which talent would you most like to have but don't?
My oldest daughter has the talent of never ever forgetting a name and a face. I don't know how she does it. She's done it since she was two inches high and I wish I were better at that.
That's an amazing talent, isn't it? It makes everybody feel so good.
She remembers people from everywhere. We were sitting at O'Hare Airport one day and this person walked by and she immediately said, “That's Mr. So-and-so, who was at my school three years ago.” Completely out of context. She just remembers.
Out of context thing can throw it away. It can throw you off, so being able to do that, that is an inherent talent. As you said, from a very young age, she was able to do this. What trait do you most deplore in yourself and in others?
It’s hard to say. I probably always try to do too much. It can get overloaded. You would think by this age, I would have learned, but apparently, I'm not going to.
No, I think that's how some people are built.
I think so. I'll put it in a positive sense. I appreciate anybody who can be genuine. I don't need somebody to put on a deferential face, let's say. I wish that people would be genuine.
Who are your favorite writers? They can be legal or non-legal.
That's a tough question. Certainly, of the legal writers, I was just extolling him. Justice Robert Jackson, I think, had such an amazing skill for capturing important points in beautiful prose. I would love to write the way he does. In terms of non-fiction writing of that's not law, it's hard to say. One of my friends, David Quammen, is a superb writer. He writes scientific things. He lives out in Montana and has had all literary prizes. He wrote a book called Spillover even before the Ebola, The Song of the Dodo. He's an amazing writer. Fiction, I like everybody. I enjoy reading, in general, if I can keep my eyes open at the end of the day.
I like all variety of things as well. I think that good writing is good writing. It's always enjoyable to read whatever the genre.
I certainly believe that. I don't believe in the concept of good legal writing. I work hard at my writing to make sure it says what I want it to say. It doesn't have a lot of unnecessary fillers that it tells a tale that people will understand and get the context of what the case is all about and is respectful to the litigants. I don't disapprove of putting all sorts of puns in your opinion, movie names, or whatever. It's important to be respectful of people.
People have come to you with their problem that you're supposed to solve. For what in life do you feel most grateful?
That certainly has to be my family. I've got my three children. I've got my three stepchildren. I have what I call my two and a half grandchildren on my side. Two granddaughters and two to be joined, if all goes well, by a grandson. That's been a joy and I've got three step-grandchildren from my husband's side of the family. He's a remarkable person, so family's got to be it.
What a full set of generations. It's a whole different thing to have the grandchildren.
It is amazing.
Given the choice of anyone in the world, who would you invite as a dinner guest? It could be more than one person if you'd like.
You could have an oboe or you could have a violin, or you could have a cello or whatever you want playing, but it's not the piece until everyone's working together.
The tough thing about that is do you go with politics? Do you go with writers? Does it have to be somebody living?
No, it doesn’t have to be someone living either, so that makes it even harder.
There've been such interesting people that I've met through my work with the American Academy of Arts and Sciences that I could put a staple together. Whether it's Bob Rosner, who's an amazing nuclear physicist, or the late Tony Morrison, who was there, or Ken Burns, who honestly, you could probably sit there for months and talk to him about what he's learned, documentaries, artists. John Lithgow is somebody that I've enjoyed getting to know and so admire. Those are a few.
I forgot about the American Academy of Arts. I forgot that you were also in that and that's wonderful.
Very enriching and the institution goes back to 1780, formed by John Adams, James Bowden, and other patriots.
I can think there are a couple of other members of AOI who are also in that academy. I was thinking that's the only other place where I've known quite a few people to have that intersection with the academy and that's neat. I also think it's so neat, like you were saying, to have all the different disciplines together, what you can learn from.
It is. Natasha Trethewey is a poet. She is amazing and thinks of ways to get poetry out and get people engaged with it. You learn so much being around people like that.
I was involved in the Tufts Poetry prizes out here with Claremont Graduate University and also with RedHeaded press, which publishes a lot of independent press. Published a lot of poetry as well. It's always interesting to be involved in those and to meet all of either up-and-coming or mid-career pilots with the Tufts prizes Award. I think that if Tretheway was a judge or she's involved with RedHeaded Press and would have been a judge for the Tufts prizes at some point. Last question, what is your motto? If you have one.
When I was a very little girl, it was, “I'll do it myself,” but it probably is, “I can do it.”
What is the context for that in terms of how you would respond?
I was the middle child. I have an older sister and a younger brother and somebody would be, “Can I help you do this?” I’m like, “No. I can do this myself.” One other thing I will say aside from I can do it. You haven't mentioned it, the one of the big parts of my life is being an amateur musician. I had an oboe concert with my orchestra and I've just joined a woodwind quintet. It's fun and challenging to play with other people and make music and use your whole self in a different way. Music is the best.
I'm a big fan and supporter of opera and symphony, so I believe in that. I can sing, certainly not at an opera level. I've never developed my instrument talent very much, so I respect you for having done that and maintaining that level for so long.
It's an important thing. I would take some time to sacrifice, but it's very important.
I have some friends who do that. In fact, out here in Los Angeles, there's an entirely made up of lawyers and judges, a symphony, a chorus, all kinds of people committed to that, which is nice. It's so hard to do that on top of everything else that you're doing in the law and as a judge and to keep that high level of performances. That's something else, but that's because you love it too. It does something for you. I’m so proud of you.
It’s because I love it. I would never do it otherwise. It’s one of those, go eat your green beans.
What does that provide to you that other things don't?
First of all, the beauty of the music to work and to be able to produce it and the technical challenges. The mic and there are always some spots that I've got to work on to mount smoothly and the feeling of achievement to get them to work to cooperate. The fact that you're making something with a group of other people, no one of you alone is a piece. It's everybody. We did a concert that focused on Mozart music. You could have an oboe, a violin, a cello, or whatever you want playing, but it's not the piece until everyone's working together. I find that so inspiring and satisfying.
I've had that discussion with our conductor and orchestra leader out here. His per perception of how he thinks about leadership and teamwork and the whole group, “That's how you create the piece. Everyone has to be moving together, doing their utmost themselves. It’s not a symphony until everyone’s there.” It's a unique perspective on leadership from that role as well. A certain sense of humility from it, I think that he has too. It’s much greater than your yourself to get this done.
It’s not all about you.
It is nice and causes you to remember and think of other people. In this case, I can't do this alone. You need others to create that. Thank you so much, Judge Wood, for joining the show and having such a wide-ranging discussion, given all of your interests and talents and wonderful work on the bench as well.
Thank you. It was my pleasure. Good luck.
Thank you.