Zelinsky on the Federal Law Clerk Hiring Crisis

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11 Responses

  1. Joshua says:

    Great plan. This way, all of those unpaid clerkships will go to even more upper-class students who can afford not to be paid for a year and aren’t saddled with hundreds of thousands of dollars in student-loan debt! I guess Mr. Zelinsky has a slightly different definition of “fair” than me.

  2. Steve M says:

    Joshua’s comment hits the nail on the head. Like VAPs and fellowships, the most prestigious clerkships would essentially be unavailable to those of us who paid for law school and do not come from an affluent background.

  3. Brett Bellmore says:

    “At a minimum, this privileges students who do well in the first semester or two of law school over those who take a little while longer to “get it.””

    And what exactly is the problem with ‘privileging’ those who do well academically?

    I just don’t see a “crisis” here.

  4. Howard Wasserman says:

    Brett: Because you’re not necessarily doing that; you may only be privileging someone who did very well in 1L year. Two students may end up in exactly the same place academically, but Student A did great 1st year and dropped off, while Student B did fine the first year (say, well enough to make Law Review) and really well the next two years. But when hiring is based only on 1L grades (for a job two or more years down the line), Student B, although he certainly “d[id] well academically”, is going to fall through the cracks. BTW, that not only tilts the balance for the students, it also is somewhat unwise for judges truly looking to hire the top law *graduates*.

    BTW, Joshua: I assume you were using hyperbole when you described clerkships as “unpaid”.

  5. Brett Bellmore says:

    “Necessarily” is a pretty high hurdle to pass. I would suggest that, while someone doing well in their first year won’t necessarily do as well in their second, and somebody doing badly in their first year won’t necessarily have trouble in their second, that is “the way to bet”.

  6. Joshua says:

    Prof. Wasserman,

    I don’t believe the term “unpaid” is hyperbolic. The core of Prof. Zelinsky’s proposal is for Congress to defund those clerks hired off-plan. That would mean that they are unpaid for the work they would perform as law clerks.

    I suppose it could be argued that many law firms would give those unpaid clerks bonuses of tens of thousands of dollars once they get to the end of that rainbow, and in that sense they are not truly “unpaid,” but those are essentially signing bonuses for what amount to “high draft picks.” While those clerks are working for their judges under Prof. Zelinsky’s proposal, they would not be getting a salary for their work. I believe that comports with both the connotation and denotation of the term “unpaid.”

    Many judges don’t care what their clerks are paid. They care about getting the best brains they can and putting out the best work product possible. Their duty is to the law and to the country–not in making law students’ lives as pleasant and rewarding as possible. Judges from Breyer (then-judge Stephen–not his brother–and anyone who quibbles about that label with him should look at Article III and relax) to Kozinski have been quoted out there on this topic for decades.

    There are plenty of affluent students from schools just like those that Prof. Zelinsky attended who (1) don’t have student-loan debt, (2) can afford to take what would amount to an extremely prestigious internship for a year, and then (3) work at a great law firm that will reward their year of hardship with an extremely generous clerkship bonus.

    Finally, for the last couple of years, there has been a restriction similar to Prof. Zelinsky’s on federal judges from the contiguous 48 states. Those federal judges’ clerks who are not American citizens may not draw a salary. Lo and behold, while I was a law clerk two years ago, I heard multiple stories of judges who took it upon themselves to “hire” clerks who fit that bill.

    It’s not that I don’t agree with Prof. Zelinsky’s aim to tie judges to the hiring plan. When I applied as a 3L, I got screwed by sticking to the rules and timelines. I also agree with you, Prof. Wasserman, that judges hiring clerks too early in law school is unwise. The point that I’m making is that Prof. Zelinsky’s proposal will, like many “reforms” that the legal academy have put forth, ultimately backfire in the real world and will primarily reward those persons who are miraculously the most similar to themselves.

  7. Aaron Zelinsky says:

    I don’t think the predicted doom and gloom – that the most sought-after judges will get free labor and hire early – will come to pass.

    First, those individuals wouldn’t be “clerks,” hired under 28 U.S.C. 712 and 752. They would be volunteers. For example, see http://www.flsd.uscourts.gov/?page_id=269 (“Law Clerks are paid employees of the U. S. Courts. All unpaid individuals who volunteer their time are considered interns.”). As long as the Supreme Court maintains a policy that its clerks must complete a federal clerkship (as opposed to an unpaid federal internship) before clerking for the Court, then no “feeder judge” will want to opt for the unpaid model, because no clerk with a shot at the Court will want to be a volunteer intern for him or her.

    Second, my proposal provides an incentive to stop the plan unraveling from the bottom up by creating a clear disincentive to go off plan. Right now, a judge who hires off plan is equally attractive to a student as an on-plan judge. In other words, there is no difference in the quality of clerk an off-plan judge attracts. If my proposal were implemented, then an off-plan judge would be $70,000 (give or take – figuring on a clerkship salary plus the cost of health care) less attractive to a potential student than an on-plan judge. This means that for similarly situated judges, the optimal strategy would be to remain on plan. (Of course, this doesn’t do away with the concern completely – the guarantee of having an unpaid internship rather than the risk of receiving a paid clerkship is worth something, but I doubt it’s worth $70,000). The key is to change the incentive structure to make staying on plan the dominant strategy for similarly situated judges. That’s how to discourage unraveling.

  8. Joshua says:

    Prof. Zelinsky,

    First, although it might be shocking to say on this site, not everyone actually wants a U.S. Supreme Court clerkship. And I’m not too sure if the statements on one district court site are authoritative with regard to the many other districts and circuit courts across the country. Bottom line: there are many, many lucrative federal clerkships that have little “feeder” connections to the U.S. Supreme Court but can still be extremely attractive on the job market. Clerkships in the most litigious federal districts come to mind, as do bankruptcy clerkships in Delaware and the Southern District of New York.

    Second, although your proposal obviously alters the incentive structure and calculus that some judges and clerkship applicants will have, you’re still ignoring the practical reality that many large law firms will pay a clerkship bonus to mitigate or entirely offset that point of your proposal. Now, I will grant you that this argument of mine is ignoring the time value of money, but this reasoning applies to any deferred-benefit and/or prestigious-placement decision, such as college or law school itself.

  9. Aaron Zelinsky says:


    I agree that not everyone wants a Supreme Court clerkship. But at least one subset of relatively sought-after judges would likely stick with the plan. As for the district court — agreed that’s not authoratative. But the problem could be easily fixed by a clear statement by the Court accompanying the legislation that they would only hire those with circuit court clerkships. I don’t know the last time the Court had a clerk who didn’t have a circuit court clerkship first, but I would guess it’s decades.

    2. I disagree about the law firm bonuses. In order to properly offset this effect, the firms would have to pay extra bonuses to those who worked for free (otherwise there’s still a pay gap — a clerk could get paid to work and get a bonus afterward or work for free and get a bonus).

  10. jt says:

    It used to be the case 4-5 years ago that federal agencies were/are prohibited from accepting volunteers except for those who enrolled in an educational program while serving as a volunteer. One a person has graduated, she can no longer volunteer. I don’t know if the same prohibition applies to the judicial bracnch, but it certainly should – lest companies or law firms fund law clerks and thus put a thumb on the scale

  11. Joshua says:

    I know for a fact that multiple US Attorneys offices were openly soliciting for lawyers to work for free a few years back. Guess they didn’t know about that prohibition.