Judges

Some Reluctant Skepticism About the New Law Clerk Hiring Plan

An important post by Professor Aaron Nielson asks whether the new law clerk hiring plan is broken, and worse than no plan at all.

|The Volokh Conspiracy |

As I'm sure many law-student and law-professor readers will know, the hiring of federal law clerks was once governed by a "hiring plan" designed to coordinate when judges would agree to consider law students—in part to avoid the slow race to hire earlier and earlier with less and less information about the applicants. (Some wags were known to call this a "cartel," but I will use the less loaded term, "plan.")

The hiring plan fell apart 5-10 years ago, but this year, some judges have been trying to get enough judges, circuits, and law schools to support a new hiring plan, which would basically require judges not to hire law students until after their second year of law school, and also require judges to give students 48 hours to decide whether to accept an offered clerkship.

As David Lat put it in a post on Above The Law last Spring: "the Plan has much to recommend it. But there's a classic "prisoner's dilemma" or collective action problem here…." Some circuits have formally adopted the plan, and several top law schools have taken measures to push students and faculty into following the plan. But how has it been working in practice?

I just read an important post by Professor Aaron Nielson expressing his misgivings with how the plan has been operating so far:

A Broken Plan is Worse Than No Plan.

No one thinks that all judges will follow the hiring plan. To the contrary, judges have told me in no uncertain terms that they are not following the plan. These are not empty words. A judge recently interviewed a student I know well; I confess, I was surprised when I heard the news because I did not know that this judge hired pre-2Ls. And as I report in the article, one judge — on a trip to Boston — told students to "apply early to judges in [her] circuit."

Thus, the working assumption in favor the new plan must be that a broken plan is better than no plan at all — i.e., that partial compliance is better than no compliance. But I fear that assumption is wrong. . . .

And so we come to the crux of the dispute: What is better — a plan that doesn't work or no plan at all? My sense is the latter. I applied for clerkships while the old plan was collapsing. It was unfair. Some students at schools with less robust clerkship cultures presumably trusted the plan because it looked authoritative; they missed out. Many better informed students knew that some judges hired early but did not know who those judges were, and students in the know weren't always keen on sharing that information. That also wasn't fair. Likewise, some but not all professors were willing to send letters before the deadline, which in effect treated similarly-situated students dissimilarly. And some judges may have penalized students for applying early by discounting their applications, even though students were simply trying to navigate a difficult situation with imperfect information.

The system should not be titled in favor of insiders. Unfortunately, with a plan in place, it is hard to know when judges are hiring. Soon enough, however, the students on the Yale Law Journal will know, if they don't have a pretty good idea already.

The D.C. Circuit's role in all of this is complicated. For a number of reasons (some good and some bad*), many students really want to clerk on it. So if the D.C. Circuit holds off on hiring, some students will not apply "early" to other circuits (while other students do). This will likely extend the life of the plan — although, to be sure, based on past experience, this anchoring effect likely will not be enough over the long run. To the extent that the D.C. Circuit extends the life of a broken plan, I am concerned.

And from later in the post:

It May Teach a Bad Lesson. I'm sympathetic to the D.C. Circuit's goal: hiring pre-2Ls is problematic. I've seen many students improve their academic performance during the 2L year. Plus, when hiring pre-2Ls, judges, I suspect, often use proxies for legal ability (such as which law school a student attends) instead of demonstrated legal ability. Likewise, I agree that students should have more time to work on writing samples. All of this supports a plan.

Here's the problem, however. Some judges disagree; they think hiring students after the 1L year is perfectly fine, at least sometimes. They also think — correctly, I suspect — that the plan benefits judges on the East and West Coasts at the expense of judges in the middle. Many of these judges aren't going to follow a plan. At the same time, in the past, some judges didn't follow the plan, but weren't keen on letting the world know that fact. Yet the plan looks very official and students are told by authority figures to follow it. The result is that students learn that only "gullible people" follow rules. That's not a good lesson to teach anyone, especially law students.

Hence, my reluctant conclusion: "If we can't have order, we can at least have transparency." Because it does not appear that there is an appetite to expend the resources necessary to create a working plan (which would require strong enforcement mechanisms), the best answer, although imperfect, is to back away altogether. I wish there was a better solution, but I just don't see a silver bullet here.

(The post draws from a recent published exchange between Professor Nielson and Chief Judge Diane Wood.)

So far, my experiences with and conversations about the plan are unfortunately consistent with Professor Nielson's. Many judges appear to be following the plan for now; others are not. But it is remarkably hard to find out exactly what is happening, and that lack of transparency is made worse because of the various institutions imposing pressure to follow the plan. (For instance, the online clerkship application system (called OSCAR) forbids off-plan applications and requires those judges to proceed by word-of-mouth, and some schools do not make their clerkship resources available to off-plan students.)

I feel a little bad putting all of this in a blog post, because, as Professor Nielson writes: "there is a 'Heisenberg problem' — if those of us who worry about the plan state publicly that it probably won't work because judges aren't following it, it may lead to even more judges not following it." But as he also writes, "Even so, the truth is that some judges are not following the plan. And students deserve that information." I have heard enough private speculation about various aspects of the plan that I feel a duty to write something here.

Indeed, it is ironic that in a world where law school administrations are increasingly sophisticated about clerkship hiring, and where the internet makes transparent mass communication so cheap, some students are instead forced to rely so much on informal networks and word of mouth. (One could imagine an alternative, much milder reform plan, that simply required all judges to post all clerkship vacancies on the internet when they were hiring, which would do a lot on its own to level the field.)

I feel even more uncomfortable making the following observation, but in the spirit of that transparency: My sense is that the vast majority of the judges who are following the plan, and especially the ones who are proselytizing it, are the judges favored by more liberal applicants, and appointed by Democratic Presidents. The four chief judges who formed the "The Ad Hoc Committee on Law Clerk Hiring" were Chief Judges Merrick Garland, Robert Katzmann, Sidney Thomas, and Diane Wood. Meanwhile, the vast majority of the judges I know who have hired law clerks contrary to the plan have been the judges favored by more conservative applicants, and appointed by Republican Presidents. There is also a regional pattern, but one that tends to correlate with this one. And if you look at the Supreme Court Justices who have reportedly endorsed the plan the pattern seems to continue.

This is quite speculative, but this could well lead to a pattern in which the plan ends up kind of holding for half of the judiciary while the other half declines to adopt it. If many applicants tend to cluster along somewhat geographical and/or ideological lines, then this half-unraveling could turn out to be somewhat stable. But it would also make things very difficult for applicants who were eager to work for judges in both camps or many places, and I do not think it is a system anybody would actually advocate ex ante.

In the spirit of transparency, if others want to share information about clerkship hiring, feel free to use the comments, or to email me and I will try to post it if appropriate.

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  1. Hiring, in general, is often done on less-than-fully fair lines. Many jobs are filled without being announced at all, and sometimes a candidate will be hired for a job that doesn’t even exist.

    Some people are better at networking, some are less capable of networking. Networking is part of the job.

    On the other hand, government service is SUPPOSED to be bureaucratic (in, to the extent possible, the good aspects of the bureaucracy). Judges that hire early without considering the full array of candidates deprive themselves of the opportunity to hire some of the candidates. That means they spend less time in hiring, and have more time for mentorship and actual judging. But it sucks for the passed-over candidates.

    Short of handing off the system to a neutral third-party (like residency-matching for medical doctors), I don’t see much difference. People with connections do well, people without connections but with skill, talent and drive do well, and people lacking connections and either skill, talent, or drive do less well.

    1. Judicial clerkships are government jobs with respect to which the employers routinely engage in viewpoint-based and political discrimination in hiring, so far without meaningful consequence.

      This reflects poorly on the judges who engage in that discrimination, but it is not nearly the worst thing about most of those judges.

  2. Wow, with judges setting the example, private-sector companies can do this, too!

    They can agree on limits on who they hire, etc. – and it’s all judge-approved!

    1. Silly, anti-trust doesn’t apply to our lords.

      In the same way you can’t sue certain left wing justices who never hire blacks as clerks on a disparate impact theory.

    2. That’s sorta my thought… why exactly isn’t this a cartel, in the anti-trust sense?

      “were known to call this a “cartel,” but I will use the less loaded term, “plan.”

      1. “why exactly isn’t this a cartel, in the anti-trust sense?”

        I took antitrust from a professor who later became a federal district court judge.

        It isn’t an anti-trust violation because the buyer (the federal gov’t) is sovereign, and because the sellers don’t have market power.

        1. I don’t know about the criminal law, but I’d think Congress – if anyone – would be the body to “cartelize” judicial appointments – but I understand Congress left to individual federal courts a lot of discretion in hiring.

          The proper course, if they don’t like the autonomy Congress gave them, is to ask for Congress to set up a centralized judicial civil-service process, limit hiring to persons who pass the civil-service tests, confine appointments to a particular time of year, ban first-years from serving, etc., etc.

          1. “The proper course, if they don’t like the autonomy Congress gave them, is to ask for Congress to set up a centralized judicial civil-service process”

            Separation of powers. Congress can propose a Constitutional amendment, but attempts to tamper with the courts is not likely fruitful (I mean, even if you had a Congress that could accomplish things, which we do not.)

          2. Hospitals do an even more extreme version via the National Residence Matching Program. True, they eventually got congress to pass a law declaring it not to be an anti-trust violation but the wording of the law strongly suggests that congress doesn’t consider such agreements (when appropriately constructed) to be anti-trust violations.

            Indeed, it is even more clear in the case of clerkships since salaries are fixed and there is no real negotiating advantage they are giving up.

            https://www.law.cornell.edu/uscode/text/15/37b

  3. One could imagine an alternative, much milder reform plan, that simply required all judges to post all clerkship vacancies on the internet when they were hiring, which would do a lot on its own to level the field.

    Speaking from outside the legal profession, it is hard for me to see why this shouldn’t be the way things are done.

    1. ” it is hard for me to see why this shouldn’t be the way things are done.”

      Suppose you want to hire a position. The qualifications are such that most of the candidates will be qualified. Some candidates will definitely be better candidates, but all of them will meet the minimum required. Do you want to examine a small number of candidates, or a very, very large number?

      (The biggest qualification of the pre-degree law clerk is “does the judge get along with the clerk”. If the judge wants to hire the first person who meets this qualification, that’s what they’re going to do, whether they’ve picked this candidate from a field of 3 or a field of 300.)

      1. The biggest qualification of the pre-degree law clerk is “does the judge get along with the clerk”.

        I disagree.

        Two bigger factors: (1) nepotism or similar connections and (2) ideological reliability.

      2. Are you suggesting most judges hire people they personally know? If not aren’t interviews the best way to assess this? I don’t see how not publishing the vacancy helps achieve that goal at all.

        1. “Are you suggesting most judges hire people they personally know?”

          No. I’m suggesting that some judges would rather pick from a smaller list, and one way to get a smaller list is to not advertise the position. Then, the “insiders” who know how this judge operates, and people who really want to work for THIS judge try to ask for a clerkship “outside the system”, the judge interviews those candidates until a suitable match is found, and the position is filled before most anyone even knew there was an opportunity.
          This is how most jobs outside of public service are filled, if the employer can manage it.

  4. Alternate plan: Get rid of the inexperienced clerk hiring and hire permanent clerks thru the federal civil service system.

    Then we don’t have 99% of the clerks coming from 8-10 schools.

    1. Hmm, under your plan, do they end up hiring only credentialed lawyers as clerks or do they discover that under your plan, the only people who already have law degrees that are interested in Clerking are people looking to become judges rather than work as lawyers, and that there aren’t enough of those, so they end up hiring paralegals as clerks instead?

      1. >so they end up hiring paralegals as clerks instead?

        Assuming paralegals can do the work…it would be a win for tax payers. Lower pay grade and all that.

        That said, those inexperienced “judicial interns” are probably cheaper than experienced paralegals.

      2. Some 50% of JD’s work in fields outside of law. So your pool of candidates for post-JD clerks probably isn’t as thin as you think. But what would be wrong with hiring (qualified) paralegals for those clerkships?

        Personal note: when I still worked at a vocational college that trained, among other things, paralegals, one of the graduates landed a clerkship with the state supreme court.

        1. “But what would be wrong with hiring (qualified) paralegals for those clerkships?”

          Nothing.

      3. Many state courts have permanent clerks who are lawyers.

        DOJ and other government offices have little trouble attracting quality lawyers, federal courts should have none.

        Cal them a Staff Attorney rather than Clerk if you prefer.

        1. “Cal them a Staff Attorney rather than Clerk if you prefer.”

          Not directly comparable. Clerks don’t have to pass the bar exam (or whatever other entry mechanism the state bar association uses). People who have passed the bar exam can be clerks, but the job is different.

          1. We are talking about people who research for judges in the federal system. Currently called “clerks” in federal courts and hired for 1 or 2 years straight out of law school [usually] or for theSupremes, after a lower court clerkship.

            Clerk or staff attorney or research assistant or something else, they are just titles. The function is the same.

            I suggest changing the system so they are civil service hires assigned to help a judge. Obviously most new hires will be recent law grads but you could stay for 30 years and even serve several judges.

            1. “We are talking about people who research for judges in the federal system.”

              Duh.

              “Clerk or staff attorney or research assistant or something else, they are just titles.”

              Sure. But they’re titles that mean something, and “clerk” means what “clerk” does, and “staff attorney” does not mean what “clerk” does. Suddenly giving a title promotion for no good reason does… what, exactly?

              “I suggest changing the system so they are civil service hires assigned to help a judge”
              Other than making the application process take way longer, how does this help? WHO does it help?

    2. While I see the advantage of having *some* permanent clerks (or whatever you want to call them) I think there is an important benefit to the constant influx of new, recent law school graduates into the judge’s chambers: keeping judges in contact with recent legal ideas and thoughts as well as exposing them to novel perspectives.

      If you just pair up a lawyer with a judge and let them work together for 30 years there is more risk of ossification and it certainly won’t expose the judge to new ways of thinking about things.

      1. You also aren’t training any potential replacement judges.
        So you wind up, 30 or 40 years down the road, with a bunch of people whose idea of the work of judges that came exclusively from television programs.

  5. “The four chief judges who formed the “The Ad Hoc Committee on Law Clerk Hiring” were Chief Judges Merrick Garland…”

    Thank goodness he is keeping himself occupied!

    1. He’s the 10th most powerful judge in America in his current job. Of course he’s busy. BTW, Kavanaugh is next in seniority behind him, and would have become Chief of the DC Circuit had Garland been confirmed.

  6. There is definitely an option worse than both a broken plan and no plan at all.

    A good, effective, successful plan to enable insiders to bamboozle outsiders into not being competitive by leading them down an empty path is worse than either.

    Just as a police force that is good, effective and successful at being lookouts for criminals, running interference to protect grifters from angry citizens by taking advantage of their naive beliefs about police, is worse than both a bad police force and no police force at all.

    1. “A good, effective, successful plan to enable insiders to bamboozle outsiders into not being competitive by leading them down an empty path is worse than either.”

      It doesn’t make it any better if the insiders still get the jobs because they went to T1 schools. All the outsiders get is wasted time and dashed hopes either way.

      1. Lots of non-insiders go to T1 schools. If they even have legacy admissions at places like Harvard law it’s not a large fraction of the class and most of the people who get accepted are merely smart people who went to good undergrad programs not legal insiders or their spawn.

        I mean sure you won’t get into a T1 school if you grow up poor and without academic resources but once you insist on only hiring the most accomplished and brightest for clerkships you’ve already bitten that bullet.

        1. “Lots of non-insiders go to T1 schools.”

          Depending on how you define “insider”, this can range from no-brainer to nonsense.
          “Insiders” are people who have access to long-established networks. Like those, for example, that exist in the T1 law schools. Want to eventually work as a federal judge? Either go to a T1 school, or give up that dream.
          (What makes T1 schools T1 schools isn’t a better education. It’s being surrounded by people who scored higher on the LSAT than the people accepted at T2-T4 schools. Some people choose one of those other schools because it’s closer to home, or cheaper, or offers a cool specialization. But even though you learn the exact same stuff in as-close-to-the-exact-same-program-as-the- ABA-can-make-it program, where you went to school affects a couple of things fairly strongly, and the federal judiciary happens to be one of them.)

          1. Seriously? Your robofilter objects to having too many words hyphenated?

  7. This seems to me something that the Judicial Conference ought formally debate and decide upon, as part of which I would hope that Chief Justice Roberts would take a leading hand and put his prestige and institutional gravitas behind.

    I’m a May 1980 graduate who clerked on the Fifth Circuit from September 1980 through August 1981. Back then, the unwritten rule was to withhold clerkship selections until the mid-spring of the students’ 2L years ? roughly when many leading law journals’ outgoing 3L editors were choosing their successors from the 2L class behind them, based on those 2Ls’ law review work, typically including the completion of those 2Ls’ publication-quality casenote or comment. Those typically became writing samples for the clerkship applications, and were an excellent basis for judges to confirm and compare their applicants’ writing abilities, which is much more directly relevant to a good judicial clerk’s qualifications than even his first three semesters’ grades.

    Objectively, that’s the sweet spot ? the point at which there aren’t likely to be many more significant academic credentials added, meaning the set of relevant data is essentially complete. Surely judges would be doing themselves collectively a favor, at the expense only of those individual judges inclined to gamble by making decisions on a less fulsome record.

    1. But is it a gamble, if 90%+ of the candidates are capable of doing the work?

      1. That’s a fair point, Mr. Pollock: Given the candidate pool at this level, the odds in this gamble are highly stacked.

        1. I haven’t clerked for a federal judge. I was working full time when I started law school, and I kept that job. But the work of being a law clerk (as represented to me) is such that legal judgment either is not or is very rarely called for (which is why the work can be done by persons not admitted to the bar) and historically amounts to what we now call “paralegal” in the private sector. It’s tedious work (take this brief and verify all the citations are accurate) but could be done by anyone who knows how a law library works (or has an account with Lexis or West).

  8. FWIW, Mr. Baude, I agree with you 100% that in this instance, the broken plan is much, much worse than no plan at all. For those misled, it amounts to a hoax, in fact, and for that reason alone, I can reassure you that you’re doing the right thing by bringing attention to this problem. I encourage you and like-minded critics to publicize this controversy much more widely and aggressively. It may shame a few judges, but IMHO they frankly need shaming, because they’re perpetuating a sort of tragedy of the commons, aren’t they?

  9. I’m confused as to why there is limited buy in. Sure, you can gain a *relative* advantage over your colleagues by making offers to 1L’s and snapping them up before your colleagues get a chance to hire them but literally everyone is worse off if everyone starts competing for the 1L’s.

    I guess I’m surprised that many federal judges are willing to (implicitly) take the position: Hey, I realize it would be better for the judiciary as a whole and the students we hire if we all agreed to wait to hire until 2nd year of law school but I can get slightly better clerks if I defect and hire early so screw that!

  10. Also is there a reason to have such a limited hiring plan? Why not go the full distance like the medical internship matching system and have applicants rank all the judges they are willing to work for and judges rank their preferred clerk applicants and let the algorithm spit out the (obligatory) matching. That way there is no pressure for the market to unravel or to force decisions in 48 hours.

    I mean that’s the economically best solution and it’s not technically hard to implement do so why not?

    1. “Why not go the full distance like the medical internship matching system and have applicants rank all the judges they are willing to work for and judges rank their preferred clerk applicants”

      This would require that judges become familiar enough with all the candidates’ work to rank them, which takes time and effort which could be used for judging.
      Also, some judges would learn just how far down the candidates’ lists they actually are.

  11. A question, for Mr. Baude or anyone else whose experience, even second-hand and observed, is more recent than my own (which petered out in the early 1990s, after which I was no longer involved in BigLaw recruiting programs):

    In my day (law school class of 1980), the protocol for applicants was that we were expected to say “Yes” immediately upon receiving an offer: “Don’t apply to anyone you’d be unwilling to say ‘yes’ to immediately,” I was told by several well-connected “feeder” professors at Texas Law who were agreeing to serve as my references by permission.

    The implicit message from these professors was: “Yes, this benefits the judges by preventing applicants from playing offerors off against one another, but I approve of it, so going along with it is part of the price of my taking the trouble to be a reference for you.”

    From this proposed new plan’s “require[ment that] judges … give students 48 hours to decide whether to accept an offered clerkship,” however, I infer that norm has eroded.

    Mr. Gerdes’ comment references the national medical residency match system, which likewise imposes such a condition: Applicants affirm that they will indeed accept the resulting offer, if any, so long as it comes from a school to which they’ve applied, even if they’re disappointed that it’s not one they ranked highly. The results still include surprises and some brutal disappointments, but there don’t seem to be many complaints later about the process or its fairness.

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