The Legitimacy Crisis in Federal Law Clerk Hiring

This week, law professors are encouraged to call federal judges and ask them to pull from an enormous pile of clerkship candidates particular students whose merits might be otherwise obscured.  (Applications were delivered Tuesday to those Judges who are still “on plan“, and interviewing calls are supposed to go out Friday.) Unfortunately, the plan has entirely fallen apart, as wealthy law schools now are more than willing to package applications in the spring and summer.  This unravelling, long-predicted in some quarters, has two pernicious consequences – apart from encouraging judges to take applicants earlier in their law school careers, and consequently increasing the importance of first-year grades.

  1. A re-emphasis on the importance of private and expensive networks of information about what judges are up to. When judges hire at different dates, it becomes crucially important to have sources inside the courthouse who know the scoop – former clerks, for example. This will tend to make it harder for applicants from poorer and less established law schools to break into the clerkship market.  (Indirectly, this becomes yet another subsidy for wealthy schools.)
  2. Because some judges don’t particularly enjoy the competitive scrum, the death of the plan will accelerate the trend to hire either permanent clerks or clerks from practice. This is,variously:
    • Bad for current law students;
    • Good for associates in practice who want to make a move;
    • Good for researchers who will be able to collect more expansive data about law clerk influence;
    • Bad for those who fear that law clerks already have too much influence – the more experienced the clerk, the more likely that his or her views are influencing the judge’s decision;
    • Bad for the budget, as more experienced clerks are more expensive.  (Federal judges clearly don’t directly bear the costs of hiring more expensive clerks.)

The class, race, and gender effects insular hiring networks are well-known in general.  Basically: when it’s all-but-impossible to figure out how to get a job, only people who don’t need the job get it.

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3 Responses

  1. Scott says:

    I’m puzzled by the claim that clerks with a couple of years of practice will have more influence on their judges. Students fresh out of good law schools are cocky know-it-alls who think their job is to influence their judges. Good junior associates understand how to please clients and bosses.

    If anything I’d fear that experienced clerks will be too eager to toady – or will mistake the professional ethic of serving the client for the different ethic of serving the judge, sometimes by providing resistance.

    Plus, ceteris paribus, the older the clerk, the more likely s/he has dependents, which produces risk aversion.

  2. James says:

    As a career law clerk for a federal district judge, I am not a disinterested party here. However, you failed to note the possibility that people with more experience might actually be better law clerks than people straight out of law school. You may believe that law school teaches people how to do effective legal analysis and writing, but it is my experience that this is usually not the case, at least not at the level required to be an effective law clerk. And law school only very rarely gives students the tools (analytic and otherwise) to deal with the heavy workloads faced by law clerks in the busiest districts and on the Ninth Circuit, which has far more work per judge than the other circuits.

  3. Dave Hoffman says:

    I think it’s entirely plausible (even probable) that experienced lawyers make “better” law clerks. That should have gone in the pro column.