Order In The Court, Order In The Court: The Law Clerk Hiring Plan Returns!

- Order In The Court, Order In The Court: The Law Clerk Hiring Plan Returns!

Since the D.C. Circuit put the final nail in the coffin of the Law Clerk Hiring Plan back in 2013, the law clerk hiring process has been… shambolic. Judges have been hiring clerks at all sorts of times. Hiring starts as early as the end of 1L year — especially for certain highly desirable clerkships (often with Supreme Court “feeder judges” — and goes all the way up to lawyers several years out of law school. (Cf. The 40-Year-Old SCOTUS Clerk.)

Over the years, the pendulum has swung back and forth between coordination and chaos in law clerk hiring. It now seems to be swinging back towards coordination, with the announcement yesterday of a new Law Clerk Hiring Plan. I learned about the news last night from Adam Liptak’s (great) Twitter feed (and have been tweeting about it ever since). Now the full Plan is up on OSCAR, the law clerk hiring website.

The Plan is a two-year pilot plan, seeking voluntary participation from judges (who can reconsider their participation after June 2020 if they do subscribe). The Plan’s core provision: for students who started law school in 2017 (i.e., current 1Ls) and subsequent classes, the clerkship application and hiring process won’t start until after completion of the 2L year. Under the terms of the Plan, “judges will not seek or accept formal or informal clerkship applications, seek or accept formal or informal recommendations, conduct formal or informal interviews, or make formal or informal offers” before a specified date in June of each year. (I’ve posted the full announcement, which includes the first day of “open season” in June 2019 and June 2020, on the next page.)

I like the timetable laid out in the Plan. It makes much more sense to hire law clerks after they have at least two full years of law school under their belt. Under the timetable of the Plan, judges will have more information about candidates — two years of grades as opposed to one, leadership positions on student organizations (including law review), more detailed recommendations (from professors who know the students better) — and candidates will have a better sense of what they’re looking for in a clerkship and a judge. After completing two years of law school, students are more likely to know whether they’re interested in trial or appellate work, whether they want to do civil or criminal work, and where they’d like to start their career — all relevant factors for picking a clerkship and a judge (e.g., if you want to be a federal prosecutor in Chicago, you might be especially interested in clerking for a judge who once was an assistant U.S. attorney in the Northern District of Illinois).

Another thing I like about the Plan: the ban on so-called “exploding offers.” I’ve heard of stories of a judge making a clerk an offer on the spot and then waiting for the student to respond — which puts a tremendous amount of pressure on a 25-year-old kid being stared down by a powerful, life-tenured judge. Accepting a clerkship is a big decision, which a candidate might want to make after talking to a spouse, a significant other, or family, and giving someone 48 hours to think it over is the right and classy thing to do.

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So the Plan has much to recommend it. But there’s a classic “prisoner’s dilemma” or collective action problem here — everyone will benefit if everyone (or almost everyone) follows the Plan, but individual judges can get an advantage for themselves by moving even just slightly ahead of the Plan timetable to hire the “best” clerks.[1] This is basically what has undone the Plan in years past.

Will the Plan have more success this time around? Here’s what Professor Carl Tobias of the University of Richmond, an expert analyst of the federal judiciary, shared with me:

The critical question is the number of federal judges who will agree to follow the new plan. It fell apart in 2013 when the D.C. Circuit announced it would not honor it. The best chance of success would be for that court’s judges to agree to follow the plan, or for the plan to get support from other leading appeals courts, like the Second, Fifth, Seventh, and Ninth Circuits.

It would be more effective if entire courts would sign on, but Article III judges are notoriously independent. This is a short-term pilot, so the AO [Administrative Office of the U.S. Courts] will assess after a few years and make suggestions. It all depends on the judges — and that is why leaders like Chief Judges Garland (D.C. Cir.), Katzmann (2d Cir.), Wood (7th Cir.), and Thomas (9th Cir.) could be critical to success. Remember it was [the late Third Circuit Judge Ed] Becker and Justice Stephen Breyer who jumpstarted the “new” plan in the 1990s.

The “Dear Fellow Judges” message tweeted by Adam Liptak last night comes from these four chief judges, so that’s one factor in its favor. If applicants know that many (or all) judges on the D.C., Second, Seventh, and Ninth Circuits are following the Plan, many applicants, especially top applicants, will wait and hold out for the big prizes — even if it means giving up the opportunity to clerk for a different circuit court.

Furthermore, the Plan enjoy support from some leading law schools. From the message sent to the Yale Law School community by Dean Heather Gerken (also posted in full on the next page):

The just-announced law clerk hiring plan calls for an end to the practice of considering clerkship candidates before the end of their second year of law school. This new plan has tremendous advantages for students and makes great sense from the judges’ point of view as well. We have all recognized the tremendous pressure that has been put needlessly on our students, particularly in the first year, by this accelerated clerkship hiring schedule. This plan allows for students, faculty, and hiring judges to have the much-needed time to acquire the information they need to make these important decisions.

I have been working with Dean Trevor Morrison of NYU Law School, along with a number of other deans, to support the judges carrying this initiative forward. We now have an opportunity to support the judges’ determined effort to reform a process that has gotten badly out of hand. To that end, I have strongly urged the faculty to decline to write letters of recommendation or to make phone calls on behalf of any of our students applying for judicial clerkships until the date specified in the hiring plan.

So will the Plan succeed? Here are my predictions (which I also shared with Patrick Gregory of Bloomberg Law).

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1. Initially the Plan will enjoy some traction, especially if there’s strong support from judges on the four circuits whose chief judges support it. Participation will be especially strong on the D.C. and Second Circuits, which in the past have been the leaders in Plan compliance.

2. The Ninth Circuit is a tougher nut to crack. Chief Judge Sidney Thomas is well liked and well respected by his colleagues, so he could get decent participation if he leans on them — but the Ninth is a huge court, and many of its judges feel disadvantaged by their West Coast location. In years past, many top applicants would spend the first day of the “open season” in D.C., New York, or both, meaning that judges in Los Angeles or San Francisco would get shortchanged. So the West Coast judges would hire ahead of the Plan to avoid the problem of top applicants from top (often East Coast) schools making them second priority.

3. The Plan will carry the greatest sway at the “high end” of the clerkship market — the most coveted clerkships, often with feeder judges, and the most desirable candidates, top students at top schools. It will have fewer adherents outside of these elite precincts.

4. Also, as in years past, many judges will opt out of the mad scramble of the first few days of open season under the Plan, instead choosing to hire experienced clerks, i.e., law school graduates (since grads are not governed by the Plan). This become a trend the last time the Plan was in effect, and many judges who initially tried the practice to avoid the insanity discovered that they actually liked having clerks with experience (whether in a firm, another clerkship, or elsewhere).

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5. The Plan will have enough adherents to be relevant for a few years — the two years of the pilot program, and maybe some time after that. But over time, individual judges will defect, either openly, by withdrawing from the Plan officially, or on the sly, by interacting informally with top candidates.

This happened under the last Plan — a judge would have coffee with a top applicant before open season, then call her afterwards and say “I was very, very, very impressed by you, and you’re just the type of person I hire as a law clerk” — which is why the latest version commits judges to not “seek or accept formal or informal clerkship applications, seek or accept formal or informal recommendations, conduct formal or informal interviews, or make formal or informal offers” before the first day of open season.

But can anyone stop a judge from having coffee with a top law student? Or from taking a call from a former clerk turned law professor who wants to rave about a star student? Especially when there’s no enforcement mechanism?

6. After a few years, we’ll be back to where we started. Chaos will reign once again. Judges will get annoyed.

Some of them will come up with a new Law Clerk Hiring Plan — and the cycle will begin anew….

(Flip to the next page to read (1) the official announcement of the Federal Law Clerk Hiring Pilot Plan and (2) Dean Heather Gerken’s message to the Yale Law School community.)

[1] When it comes to clerkship applicants and law clerks, I use the term “best” advisedly. See my Twitter exchange with former Sixth Circuit clerk Ian Millhiser:

Federal Law Clerk Hiring Pilot [OSCAR]
New Law Clerk Hiring Plan Faces Familiar Defector Problems [Bloomberg Law]

Earlier: The Law Clerk Hiring Plan: Really, Really Dead Now

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David Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com. Be Sociable, Share!

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