I’ve never liked the federal judicial clerkship cartel. Neither does my colleague Josh Wright.
Josh explains the economics of cartels. Here’s my perspective on the public choice dynamics of the clerkship cartel. The primary instigators and enforcers of the cartel have always been the professors at the elite law schools who recognize (perhaps implicitly) that the mad rush that occurs on the day that judges can start interviewing makes it more difficult for judges to do all but the most cursory reviewing and interviewing of candidate’s files before hiring. This reduction in information, in turn, forces judges to rely more on quality signals rather than direct experience of quality. Which means, not coincidentally, that judges are expected to rely more on school ranking, class rank, and professor recommendations as proxies for clerkship quality, rather than direct knowledge.
Of course, northeastern judges also like the cartel too because it reduces the information and deliberation for applicants as well and thereby also forces students to rely on proxies rather than direct experience. The land-grab nature of the rush at the opening date also provides a comparative advantage for judges are in areas that are easier to travel to, rather than those in more difficult to reach places.
Faculty at elite law schools like to rationalize the clerkship cartel as being more “orderly” and “rational”–by which they mean that they students that they think should get the “best” clerkships do in fact get them. I can see why they and certain judges prefer the cartel over free markets. But I frankly don’t understand why the other 165 law schools should be expected to help prop it up.
So rather than trying to “fix” a flawed idea, let’s let competition flourish.