A Proposed Study To Measure Law Clerk Influence
Citation studies as a proxy for judicial quality are all the rage. I concur with Larry that the effort spent often seems disproportionate to the result. Selection is the culprit here, not just academic modesty: it’s hard to imagine that any truly dramatic effects of judicial character, or legal rule, would not be washed away by parties’ ability to settle strategically.
Exogenous shocks open windows – of limited scope – which may help us penetrate this fog. There’s one ongoing today that I think could in several years allow us to test one of the most important, but obscure, questions about judicial performance. Although there have been a few studies about the usage, hiring, and quality of law clerks, I haven’t seen work that really convinces me that clerks change judicial performance (rather than match it). That question of influence is pretty important for all kinds of reasons — not least because if law clerks were really influencing their judges, we might want to spend a little bit more time thinking about their roles, ethics, hiring, etc.
So what’s the shock? I think that the period of 2008-2011 will prove, in retrospect, to be bumper years for clerk quality. Anecdotally, I’ve heard that the clerkship market has never been more competitive: Yale grads have been encouraged to take state court clerkships (the horror); judges in popular jurisdictions are receiving literally four to five thousand applications per clerk year; individuals who before might have taken firm jobs are instead throwing their hats in the ring; magistrate judges are taking clerks previously destined for district judges; alumni in practice for five years are going back into the clerk market and competing with fresh-faced 3Ls. As an organ of the government, the judiciary simply eats better brains when the economy stinks.
Assuming the effect is real (which we could test by looking at placement statistics), I’d propose that eight to ten years from now – in 2018 or thereabouts – we test whether opinions arising from this bumper-clerk period are cited at a higher rate than opinions from the ordinary market periods immediately preceding and following. The hypothesis would be that if clerks influence judges to write better opinions, better clerks will produce to more citable opinions. Notably, we can’t perform this same analysis on the effect of past recessions, as (1) they reportedly didn’t have the same effects on the clerkship market; and (2) opinion collection practices were really sporadic before 1995. It’s 2018 or bust. Mitu et al., I call dibs!