Three thought experiments: How can Congress structurally reform the federal clerkship program?

What if Congress standardized the hiring process, imposed minimum qualifications, and converted term clerks to career clerks?

|The Volokh Conspiracy |

It is difficult to describe to non-lawyers how significant a federal clerkship is. When I began my first clerkship, several non-lawyer relatives were shocked. They thought I was taking a clerical job, and would be stamping papers and making copies for a year. But a federal clerkship–often the first job a lawyer will ever hold–may be the most important job a lawyer will ever hold. A clerkship provides formative experience at the front lines of litigation to a wide range of cases. A clerkship stamps your resume forever with an imprimatur of success. A clerkship invites you into a close-knit group of alumni who can help advance your career. A clerkship gives you a new prestige, as those aspiring for clerkships will come to depend on you for references. And a clerkship imposes something of a prior restraint: in order to maintain the mystique and allure of that coveted position, clerks may embellish the positive aspects of the position, and may have incentives to stay quiet about the negative aspects of the position.

I am familiar with all of these elements, both from my own experiences, and from my interactions with clerks from other chambers. I clerked for two-years on the U.S. District Court for the Western District of Pennsylvania for Judge Kim R. Gibson. And I clerked for one year with Judge Danny Boggs on the U.S. Court of Appeals for the Sixth Circuit. I described my clerkship process at some length in this article, which I wrote shortly before I began teaching.

What follows is a thought experiment. I don't necessarily endorse all of the ideas I advance. I think some of them are quite problematic. But my goal is to highlight how structural reforms by Congress can perhaps alleviate some of the significant problems facing the federal clerkship program.

Problems facing the federal clerkship program

The federal clerkship program faces several major problems, which share a common thread: due to the unique nature of the judiciary, the clerkship process is immune from the conventional rules of human resources that exist in all other fields. This disparity manifests itself on several levels. First, judges and their staff are not governed by the usual rules of employment discrimination. Second, due to the need for confidentiality, some judges require their staffs to take codes of silence about what happens in chambers. Third, unlike with virtually all other federal jobs, clerkship positions need not be publicly advertised, and the application process can be shrouded in secrecy.

Generally, in well-functioning chambers, these three issues are not problematic. Judges will comport themselves responsibly with their staff and fairly consider a wide range of applicants. But, often chambers are not well-functioning. First, some judges have abused their staff in unconscionable fashions. I do not know how common this treatment is, because, second, many judges maintain strict confidentiality policies that chill reporting of misconduct. Call it a judicial code of omerta.

And the third problem creates a cascade of perverse incentives. The hiring of federal law clerks is unlike any other federal civil service job I am aware of. Generally, all government jobs are advertised well in advance. There is a fixed hiring deadline, a standardized application protocol, and a rigorous screening process. Federal clerkships are different. There is no public deadline to apply for clerkships, and judges often employ ad hoc, or secretive processes. Indeed, the hiring of federal clerkship resembles a short-term political appointment within the executive branch. Perhaps that analogy is apt.

Often, the only way to know that a judge is actually hiring is to get a tip from special insiders: namely former clerks who serve as something of a screening committee. Indeed, some judges will only hire clerks that come up through this pipeline. As a result, these gatekeepers wield an inordinate amount of power. And often, these gatekeepers have an incentive to maintain the appeal of that clerkship. They also have an incentive to minimize any problems with the clerkship process to maintain this power. Olivia Warren testified that Harvard Law School took no action after she raised concerns about her clerkship with Judge Stephen Reinhardt. I do not know why Harvard took no action, but I suspect that elite institutions have a perverse incentive to keep the clerkship pipeline flowing.

Thought Experiment #1: Congress could standardize the clerkship hiring process

At various points, some judges have agreed to "hiring plans," in which they would wait until certain dates before interviewing and/or hiring applicants. But these rules are completely unenforceable. And they are routinely ignored, with impunity. Applicants who try to comply with the plan are left at a disadvantage. Applicants who disregard the plan–perhaps aided by inside information–can easily beat the system without any consequences. The current cartel plan will soon implode.

My co-blogger Will Baude offers some proposals to promote transparency:

All judges agree to publicly post, on Oscar or the equivalent, when they are hiring law clerks and how many positions they are trying to fill. They also agree to post when the clerkships are full.

Will's proposal is a step in the right direction. My first thought experiment goes further.

Congress could, by law, establish a centralized process to hire law clerks. This system would not be voluntary. Law clerks who are not hired through this centralized process would not be eligible for federal service. Judges who violate the policy can be denied federal law clerks. Article III guarantees life tenure; it does not guarantee preferred staffing.

Congress would not need to start from scratch. The OSCAR system, with some modifications, will suffice. Congress could establish a reasonable protocol that roughly mirrors the hiring plan in effect when I graduated law school in 2009. First, applicants can submit applications to specific judges after their second year of law school is complete. (Not after 1L.) Second, judges can interview applicants over the summer and fall after the second year of law school. Third, offers cannot be made until (let's say) the first Monday in October.  This protocol would eliminate the insane process we live under now: judges are making offers to law students after their first semester of law school. Also, this process would eliminate many of the unique advantages bestowed by the institutional gatekeepers. Everyone would know what the deadlines are, and everyone would be able to apply.

Judges have attempted to self-regulate the hiring process for decades. And they have failed. Repeatedly. I see no problem with Congress intervening. Ultimately, judges would retain the power to decide who they hire. To be sure, judges have obligation to consider the huge swath of applications they receive. They can still hire their preferred applicants. But the process would at least offer the patina of neutrality.

I anticipate several objections to this proposal. First, some judges may argue that Congress should not be involved in the selection of law clerks. I disagree. Judicial independence only goes so far. Law clerks are federal civil servants. They are not political appointees. (Though some may fancy themselves in that fashion). Congress is well within its authority to intervene here–precisely because judges are unable to voluntarily coalesce around a fair hiring plan. We have a market failure, and Congress can fix it.

Second, some judges may object that this drawn-out hiring process will make it impossible to hire the best-and-the-brightest clerks. For the majority of law students, the idea of clerking for any federal judge is a dream. But for some judges, there is actually a competition for the top law students at elite law schools. The reason why some judges hire rising 2Ls is to prevent some other judge from snatching them up. Hiring the best and brightest is a badge of success for some judges, especially the so-called "SCOTUS feeders." Indeed, some students will have multiple circuit clerkships, as well a a Supreme Court clerkship lined up upon graduation.

My response: if all applicants are governed by the same standard, no one will be hired early. Every judge would have the same access to the top students. And judges would also have the benefit of 2L grades before making a decision.

Thought Experiment #2: Congress establishes criteria for hiring federal law clerks

In my experience, the majority of federal judges prefer to hire law clerks right out of law school. That is, clerks start working a few months after graduation. Generally, their only legal experience will have been a brief summer associate job after the second-year of law school. Perhaps they had a judicial internship. But for many law clerks, their first full-time job will be their clerkship. I've heard several defenses of this practice. Some judges say, "I want the clerks fresh so I can teach them." Other judges say, "I don't want to have to unteach them bad habits they've learned elsewhere." And so on.

I am really, really skeptical of both rationales. Judges, like professors, vastly overestimate their ability to teach. I know my limits. Most people arrive at graduate school with certain behaviors and tendencies, which are nearly impossible to break. The notion that any 3L is "fresh" is implausible. Moreover, students learn plenty of "bad habits" in law school. Indeed, legal practice can undo some of those habits. Every judge has specific nits: yes to oxford commas, no to split-infinitives, depart from the Bluebook for certain citations, etc. Judges can drill specific procedures, which any competent attorney can follow. But there is nothing special about those practices. Judges can impart other types of wisdom to young clerks, without regard to their "freshness."

Other judges prefer to hire law clerks with varying levels of experience. Some Circuit Court judges prefer, or perhaps require, a district court clerkship. (I think this option is prudent.) Other judges will hire people out of legal practice. And some judges maintain one or more career clerks. That is, clerks who are expected to work for several year. These clerks maintain continuity in chambers.

As it stands now, judges have unfettered discretion over their hires. What if Congress intervened here? Perhaps Congress could say that all law clerks must have at least (say) two years of post-law school experience. In that case, current law students couldn't even apply. Only those with the requisite experience could apply.

As things stand now, many law students who clerk have a law firm position waiting for them, in addition to a generous clerkship bonus. But under this proposal, the process would be inverted. Law students would have to work at a firm for two years, then take a break to clerk for a year, and come back. Presumably, firms would count that year-break towards the partnership track. And firms could still pay a clerkship bonus upon the associate's return.

This change could have one salutary effect. As a general matter, law students who go immediately into clerkships are in vulnerable positions. Their performance in the clerkship may decide the fate of their careers. A good recommendation can put them on the track to stardom. A lukewarm recommendation can mire them in mediocrity. This dynamic creates perverse incentives for clerks to keep quiet about abuse for fear of retaliation. But clerks with several years of experience would have a different standing. They will already have begun working, and have made names for themselves. A positive recommendation from a judge will be a benefit, but they can still stand on their own two feet. Moreover, two years in legal practice may provide clerks with the support needed to speak up. That is, there will be less fear of retribution if they know there is a position, and network of support, behind them. I am familiar with instances where law clerks were fired in the middle of a term; it was very, very difficult for them to find employment under those circumstances. My first proposal would immediately alter the power dynamics within chambers, and eliminate many of the strictures that allow abuse to transpire.

The objection to this proposal are obvious. Why should Congress be able to set minimum qualifications for whom judges hire? The federal government routinely establishes minimum qualifications for certain civil service positions, including for attorney-advisors. Skim through the DOJ career page. Positions routinely require several years of experience.

Requiring two years of experience is a reasonable qualification. I don't think attorneys can be judged based on their 1L grades or 2L grades. Allowing more time to develop will ensure that judges have the best of the best. Indeed, students who may not have been able to attend the most elite law schools, or struggled during 1L, but distinguished themselves in practice, will perhaps be able to obtain clerkships that were previously unobtainable.

I can think of another foreseeable objection. Judges want to hire who they want to hire. And generally, judges are not told "no." I think this general acquiescence towards judges helps breed the mentality that can lead to abuse in chambers. Robes mask fallibility. Telling judges "no" everyone now and then will promote some humility–a much needed feature on the bench. Indeed, one of the ways that gatekeepers maintain their influence is to avoid criticizing judges. This dynamic is especially present among former Supreme Court clerks, who seek to maintain the institution's aura. I frankly have never had this issue. I don't aspire to become a gatekeeper, and have no hesitance to criticize judges, or anyone else for that matter. Life tenure, in my case at least, helps–though I was never bashful before tenure.

Though Experiment #3: Congress could convert some, or all, law clerk positions from term clerks to career clerks

As a general matter, district court judges can have four staff members: either three law clerks and one secretary, or two law clerks and two secretaries. And circuit judges have five staff members: either four law clerks and one secretary, or three law clerks and two secretaries. My general impression is that more recent appointees from the digital age prefer to have fewer secretaries. Both judges I clerked for chose to have two secretaries.

There are two types of law clerk positions. First, there are term clerks. These positions last one or two years, but no longer. The expectation is that term clerks will leave after their term concludes. Second, there are career clerks. These positions last indefinitely, until either the judge, or the clerk, decides to terminate the relationship. The expectation is that career clerks will stay on for many years.

Some judges will hire a career clerk in the place of a secretary, and assign him or her "clerical" duties. Other judges will assign certain types of matters to a career clerk: for example, prisoner and pro se cases. Some judges may share work equally with the career clerks, but I think that arrangement is an outlier.

Consider a third thought experiment. What if Congress converted some, or all law clerk positions to career clerk positions? This change would work well with my second proposal: requiring clerks to have more experience. Generally, students right out of law school would not be drawn to a multi-year position in the government with little potential for advancement. Rather, I think the career position would be attractive to attorneys who want a change in their practice.

Would the judiciary be improved if the clerks were not right out of law school? I have mixed views. Without question, this third proposal would remove the prestige. The clerkship would no longer be considered an elite position. Budding superstars would not want to devote several years of their life for a career position, while their peers shoot to the top of the profession. I'm not sure if this consequence is all bad. Law clerks wield an inordinate amount of power. Some judges allow clerks to write opinions with little supervision. I am nervous that a bunch of twenty-somethings are deciding important questions of law. Removing these applicants from the clerkship pool may have a salutary effect on the stable development of law.

But I am also aware that career clerks can have agendas, and, over time, can capture the courts. This concern is not trivial. When I clerked, the Sixth Circuit hired certain staff attorneys to write opinions for non-argued cases. I soon learned that some of these attorneys had agendas, and would slowly develop their own bodies of case law that they would cite, and expand upon in future orders. Of course these opinions were non-precedential. But sometimes litigants cite those arguments, and panels adopt them. Maybe having term clerks with a short time-horizon would be better than having career-clerks who could capture the courts. I'm mixed.

Conclusion

I offer these three thought experiments to stimulate discussion. I don't propose that Congress take any action soon. Some of these ideas are probably non-starters. Others may be feasible. I welcome comments, especially from clerks or judges–email is fine.

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  1. Any of these methods would be preferable to the current system, an Ivy monopoly and already privileged students just getting a future judge credential.

    1. Yeah. I suspect there’s some liberal-conservative agreement on this one.

      And just more generally, I am glad Prof. Blackman is thinking outside the box here.

  2. Typo, I think: “Some career clerks may share work equally with the career clerks”.

  3. Solutions looking for a problem?

    1. The OP sets out some of the problems at the beginning of the post. The inability to enforce HR rules such as anti-harassment, because nobody wants to rock the “feeder” boat, is by itself a significant problem, as we saw with both Kozinski and Reinhardt.

    2. There’s also some discussion on Prawfsblawg about Perry Dane’s new article on Law Clerks and Jurisprudence discussing issues with the clerking process. (And another post discussing problems with the Supreme Court line as well.)

      1. Fun fact: if you Google “Perry Dane” a top result is a link to his Federalist Society page, including a speaking gig he did with Josh Blackman in November. Dane’s article on clerkships was mentioned in a blog post by Paul Horowitz. If you Google “Paul Horowitz” a top result is a link to his Federalist Society page.

        We’re doing it guys! let’s get #FixJudicialClerkships(DefintelyNotIdeological) trending

        1. Do you know some other fun facts about Perry Dane? Dane served as a law clerk for Judge David Bazelon, a prominent liberal judge, and Justice William J. Brennan, another liberal jurist.

          And more fun facts. Dane’s Federalist Society page lists Dane as a “Contributor.” According to the website, “[t]he people listed as Contributors have spoken or otherwise participated in Federalist Society events, publications, or multimedia presentations. A person’s appearance on this list does not imply any other endorsement or relationship between the person and the Federalist Society.” Now I know you’ll just claim that the Federalist Society is lying, but among other “Contributors” are Stephen Breyer and Sonia Sotomayer. Or maybe the Federalist Society really is trying to pack the Supreme Court and you’ve just uncovered their dastardly plot.

          Even more fun facts. The internet is just full of fun facts about Perry Dane. Perry Dane occassionally posts on Religious Left Law, which “brings together progressives from various faith traditions to discuss religion, law, politics, and/or culture.”

          Of course, none of those fun facts suggest Perry Dane is a conservative. That’s the problem with trying to let Google do your thinking for you.

        2. Gosh, that hashtag doesn’t seem to be catching on.

  4. The reason judges want elite law students is genuinely because these kids are the cream of the crop. Does the law school admissions process perfectly sort kids by intelligence into schools by level of prestige? Ofc not tests are very predictive but not perfect and you have all sorts of things like affirmative action ‘holistic’ criteria etc.
    Do judges who narrowly select from t3 miss some gems? Ofc. But focusing on elite schools is an efficient selection method.

    Would be funny to see judges’ chambers opened up to disparate impact lawsuits for their clerk selection methods, however.

    1. The reason judges want elite law students is genuinely because these kids are the cream of the crop.

      I’ve had the privilege of working with lawyers, students, and academics from across the intellectual and academic spectrum. In my experience there is no significant difference between an average Ivy League lawyer (or clerk) and an average University of Oklahoma lawyer.

      The best lawyers might attend Harvard, but that doesn’t mean all Harvard lawyers are similarly qualified.

      1. So then why do you think the average Ivy League lawyer did better in college and better on the LSATs than the average Oklahoma lawyer, if there’s no significant difference?

  5. The problem Blackman is addressing is explicitly pointed out in an article by Bonica et al. “The Political Ideology of Law Clerks.” 2016. American Law and Economics Review 19(1): 96-128.

    After examining the “ideolog[ies] of 8,331 individuals that completed federal district, circuit, or Supreme Court clerkships,” the authors conclude that “although substantial variation in clerk ideology exists by subpopulations – clerks generally skew to the left of the ideological spectrum.”

    Whatever the current system is, it’s allowing an element of the judiciary to tilt left. That is bad. It should tilt right. Therefore, the current system needs to change. But, before it can change the issue of clerkships needs to be placed on the political agenda in a manner that appears devoid of ideological content. Some blog posts about general unfairness, transparency, and general efficiency, can help the cause. Blackman has the right idea here, but more blog posts (and definitely tweets) by more legal scholars is definitely encouraged. If you or your loved ones care about our judiciary, please #FixJudicialClerkships(DefintelyNotIdeological)

    1. “although substantial variation in clerk ideology exists by subpopulations – clerks generally skew to the left of the ideological spectrum.”

      The spectrum of what ? The population of law students ? Or the population as a whole ?

      Even if law students are generally to the left of the general population, and the population of clerks skews to the left of the population of law students, it may be that the more conservative law students want to get stuck in to earning megabucks from Galactic Poluteco Corp right away and are less interested clerkships.

  6. Nothing about the issue of conservatives — especially strident right-wingers — being much more likely to be hired as law clerks (because most law students are not conservative but judges are disproportionately conservative and conservative judges tend to hire conservative clerks)? Nothing about a ‘Heterodox This’ or ‘Unfair That?’

    Carry on, clingers.

  7. So, a few comments.

    Law Clerks (as in the temporary positions you’re talking about) are analogous to residencies or fellowships in Medicine, or postdoctoral scholarships in the the sciences. They are designed to promote further training (not necessarily teaching, but training) and exposure to the law, while providing real world expertise and a source of help for the judges from young, energetic, motivated people. They are also designed to provide context for close supervision of new law students in order for the judge to gain an appreciation for their work ethic, ambition, ability, and so on, and to be able to pass that on in a recommendation. Lastly, it provides another social connection for law students in the wider world.

    So, in regards to your proposal.

    1. A public posting may work. Residencies and fellowships for medicine largely utilize this. Postdoctoral fellowships often do.

    Full, centralized Congressional control would likely be counterproductive. The Federal Civil Jobs service is notoriously bureaucratic, cumbersome, and prone to abuse. It would end up being hurting more than helping, with those “in the know” getting the jobs, and those “hicks” who aren’t in the know, but who just decide to e-mail or mail their resume everywhere being left out, and/or missing some obscure point they “should’ve known”.

    2. The rationale is less about “teaching” and more about understanding, as well as the recommendation process. Moving to qualifications like you cite would undermine a lot of the use the system has.

    3. Again, this is a bad idea, because it eliminates why these temporary law clerks really exist.

    1. Law Clerks (as in the temporary positions you’re talking about) are analogous to residencies or fellowships in Medicine, or postdoctoral scholarships in the the sciences. They are designed to promote further training

      No. Completely wrong.

      Full, centralized Congressional control would likely be counterproductive. The Federal Civil Jobs service is notoriously bureaucratic, cumbersome, and prone to abuse. It would end up being hurting more than helping, with those “in the know” getting the jobs, and those “hicks” who aren’t in the know, but who just decide to e-mail or mail their resume everywhere being left out, and/or missing some obscure point they “should’ve known”.

      No. That’s the current system.

      1. Must disageee – Clerk ships at the District Ct level are absolutely for further training. The Judges do not expect their clerks to be able to write opinions without substantial guidance. Most opinions are process, motion practice and coordinating the courtroom. It is rare today for Dist Cts to write lengthy substantive opinions. Cir Ct clerk ships expect the clerk to be able to draft opinions after getting guidance from the Court as to the desired outcome. Closer to jobs than training. I agree that SOCTUS Clerks have to be a differetn animal altogether and the Justice should have free reign in who they hire. These clerks must be compatiable with the jurisprudence of the Justice. Elana Kagan doesnt need some Thomas clerk and vice versa. They can debate at the Justice level.

        There is zero reason at the District Ct level clerk ships cannot be filled like medical residencies, apply and disperse. We would do well to have a wide array of schools and students at the Dis Ct level to make the actual practice better informed and trained.

        Cir Cts are more competitive ( Like a fellowship) and SOCTUS clerks should be hired under what ever process the Justice wants.

        1. Must disageee – Clerk ships at the District Ct level are absolutely for further training. The Judges do not expect their clerks to be able to write opinions without substantial guidance.

          You misunderstand what I’m saying. Of course clerks get training as part of their clerkships; indeed, people get training at any job they start. But the purpose of the clerkship isn’t training. In contrast, residency is part of medical education. While I am not an expert on the medical field, my understanding is that in most jurisdictions in the U.S. in order to get one’s medical license one must serve as a resident. The same of course is not true for judicial clerkships, and only a tiny fraction of lawyers have ever served as clerks; you’re fully qualified (at least from a licensing perspective) to be a lawyer the minute you finish law school and pass the bar.

          1. Part of the issue here is you didn’t comprehend the comparison being made.

            A group of three items (Medical residencies, Medical fellowships, and postdoctoral fellowships) were used analogous positions. So, a little 4th grade reading comprehension would synthesize how these three positions are alike. They involve the following.
            1. Temporary, paid positions
            2. Are designed for new students shortly after they graduate
            3. Are tremendously useful on people’s resumes, and are typically used to get farther ahead in the profession
            4. further on the job training of people new to the profession

            What you’ve done is taken one item of the three (The Medical residency’s typical requirement for a medical license), and comparing it in isolation to the law clerking. Of course, the other two items on the list (The postdoctoral and medical fellowship) don’t share this requirement. Which is why your comparison is in error.

            Now is a clerkship required to practice law? No. Is a clerkship required to be a judge? No. Were the vast majority of current judges law clerks at some time their past. Absolutely.

      2. Ah, if it isn’t our favorite troll, with short responses, trying to look smarter than he is.

        “No. Completely wrong.”

        I see… there’s completely no training in these clerkships? Students just go off to them, and get zero on-the-job training or experience at all? And I suppose you’re also now an expert at what postdoctoral fellowships are like, as are medical fellowships and residencies, and what they entail? You’ve already been contradicted once below, I think that’s enough.

        “No. That’s the current system.”

        This actually merits further explanation about the system. Right now, what happens is law students apply to a bunch of clerkships, all over the nation, for their summer years (whether it be 1L, 2L or 3L). Not all do, but many. Sometimes these positions are advertised. Sometimes they aren’t, and instead, a quiet system is entailed for people the judge wants instead. Resumes and CVs go out, interviews are made, and people are selected based on who the judge wants.

        Now, let me tell you a dirty little secret about the federal civil service hiring process. For the lower level positions, it’s generally pretty open. But for the upper level, more highly desired positions…it’s not. The people who are posting these jobs already know who they want 80% of the time. They’ve got their man or woman. But, they have to post the position, by law. But they’re still going to pick their man or woman. So, you get a posting for a position that isn’t really open. You’ve lost before you’ve started.

        So, as opposed to the “apply, interview, job offer” process we have now, you would have “Post job, Apply, Fill out skill chart (make sure you pick “5” for everything, even if it’s not really true, otherwise you’ll be automatically cut), Fill out “official” resume (Make sure you match every single key word, otherwise you’ll automatically be cut), have a second resume that’s actually readable, send that resume too, and then the judge looks at them, picks who he wants to interview anyway, and brings in people. But the job offer takes a lot longer too…..

        1. I see… there’s completely no training in these clerkships? Students just go off to them, and get zero on-the-job training or experience at all?

          Of course not. What kind of dumb question is that? Students get training if they join a law firm out of law school too. (It’s hard to think of any field in which a newly-minted graduate doesn’t get on the job training from his or her first employer.) But that training is to enable them to do the job the way the employer wants them to; it’s not educational in nature.

          And I suppose you’re also now an expert at what postdoctoral fellowships are like, as are medical fellowships and residencies, and what they entail?

          Indeed, I am not. But as I mentioned above, those are part of the medical education. Judicial clerkships are not. Which is why doctors have to complete their residencies, while lawyers do not need to complete clerkships.

          1. “Of course not. What kind of dumb question is that? ”

            It’s the kind of dumb question that is designed to point out what an idiotic response “No completely wrong” is to the concept that these provide clerkships provide training. Because it was an idiotic response.

  8. Maybe Congress could impose on judicial opinions the same standards as on scholarly papers – list anyone who helped research or write the opinion.

    1. Eddy,
      Yours is a foolish suggestions that many high impact scientific & technical journals are explicitly moving away from.

      Have a look at Elsevier’s form
      https://www.elsevier.com/authors/journal-authors/policies-and-ethics/credit-author-statement

      Other publishers have a very similar approach

  9. First, judges and their staff are not governed by the usual rules of employment discrimination. Second, due to the need for confidentiality, some judges require their staffs to take codes of silence about what happens in chambers. Third, unlike with virtually all other federal jobs, clerkship positions need not be publicly advertised, and the application process can be shrouded in secrecy.

    I understand the second point, though I don’t see why it should apply to matters other than actual work on cases.

    As to the first and third, I don’t understand why judges ought to be exempt from normal rules governing hiring and employment practices.

    1. If the taxpayer pays for the position, some degree of transparency in the hiring process should be insisted on. (#1 and #3)

  10. What’s interesting about this series of posts is an acknowledgement, in a libertarian blog, that markets can fail, and when they do, government intervention may be preferable. Unfettered competition can lead to behavior that is in nobody’s interests yet people feel trapped into doing lest others get short-term competitive advantage.

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