Archive | Law Clerks

BYU Law Professor Aaron Nielson has an excellent National Law Journal column on the collapse of the federal judicial law clerk hiring cartel:

Law students everywhere, be warned — the Federal Judges Law Clerk Hiring Plan is dead. If you want a clerkship, don’t think you can wait until the fall of your 3L year to apply. You can’t. To maximize your chance of getting hired, you should apply much earlier. The U.S. Court of Appeals for the D.C. Circuit’s announcement last week that its judges will not follow the plan is the coup de grace, confirming what insiders have known for years: the plan does not work. Applicants can’t count on judges to follow it. The “graduate loophole” means there are fewer slots for students. And instead of curbing “exploding offers,” the plan encourages them. Students, law schools and judges alike should be thankful that this failed experiment is finally coming to an end….

Considering the plan’s real-world effects, and not just its lofty aspirations, no one should mourn the plan’s passing. All the good intentions in the world won’t make it work. The system before the plan was not perfect, but at least it was honest. No one had to hide, and everyone played by the same rules. The D.C. Circuit is exactly right — if we can’t have order, we can at least have transparency. Until the last vestiges of the plan are gone, however, law students everywhere, be warned.

For the reasons Nielson indicates, the collapse of this cartel is a positive development. In addition to the points he makes against it, there is the fact that the cartel gave an undesirable advantage to judges on the East Coast. Because of the extremely compressed nature of the hiring season, applicants could more easily interview with the [...]

Jonathan links below to Adam Liptak’s front-page New York Times article on the ideology of law clerks, and Jason Mazzone’s critique of it. Echoing the point at the end of Mazzone’s critique, I think the ideology of law clerks roughly matches that of the Justices because the Justices are trying to solve the principal-agent problem. As Wikipedia explains:

In political science and economics, the problem of motivating a party to act on behalf of another is known as ‘the principal–agent problem’. The principal–agent problem arises when a principal compensates an agent for performing certain acts that are useful to the principal and costly to the agent, and where there are elements of the performance that are costly to observe. This is the case to some extent for all contracts that are written in a world of information asymmetry, uncertainty and risk. Here, principals do not know enough about whether (or to what extent) a contract has been satisfied. The solution to this information problem — closely related to the moral hazard problem — is to ensure the provision of appropriate incentives so agents act in the way principals wish.

Supreme Court Justices solve the principal/agent problem by tending to hire law clerks who generally agree with their bosses’ views of the law. That agreement gives the Justices more confidence that their law clerks will be faithful agents without the Justices having to engage in costly monitoring of law clerk performance.

I think this happens roughly equally among the liberal and conservative Justices. The data Liptak presents misses this a bit by suggesting that the trend is more pronounced among the conservative Justices. Justice Thomas has never hired a clerk who worked for a Democratically-nominated circuit judge, Liptak notes. In contrast, Justice Breyer hires clerks who worked for [...]