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.

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.