Monday, October 18, 2010

Is the law clerk hiring regime on its last legs?

That's the question asked by an Oct 18 article in the National Law Journal. Clerkship scramble: The system for placing them with federal judges is breaking down by Karen Sloan. The article notes both that many judges are hiring law students as clerks earlier than the current guidelines allow, and also, interestingly, that an increasing number of judges are essentially hiring later, by hiring law grads rather than current law students.

"Are the Wild West days of federal clerk hiring back? That's what some law school administrators and judges fear. They worry that the voluntary system whereby federal judges wait until September of the 3L year to hire clerks is teetering. Judges are choosing clerks earlier in the year and are being inundated with applications as the legal job market narrows. And a trend toward hiring the already graduated means fewer positions are available for fresh law graduates.

"There has been a definite strain on the system over the past couple of years," said Sheila Driscoll, director of judicial clerkships at George Washington University Law School and the chairwoman of the National Association for Law Placement's (NALP) judicial clerkship section. "People are really worried that it's not going to last."

"Before 2003, judges hired clerks as early as they pleased. That's when two appellate judges persuaded most of their peers to agree to a voluntary plan that pushed federal clerk hiring back from the 2L year to September of the 3L year.

"The reform has outlasted many previous attempts to make the process orderly and fair, but the prevailing sense among placement officers and even judges is that more judges are jumping the gun. The Administrative Office of the U.S. Courts doesn't track which judges hire before September, but plenty of anecdotal evidence suggests that judges are picking clerks during the summer and earlier, leaving applicants to wonder about the fairness and transparency of the process. "
"Certain circuits openly acknowledge that most of their judges don't follow the plan — most notably the 4th, 5th, 10th and 11th circuits. The judges on the 4th Circuit voted several years ago to bypass the hiring plan altogether, said Chief Judge William Traxler Jr. "There was a long discussion and a division of opinion, but the majority did not want to go along with it," he said.

"One clerkship adviser at a top law school said that many judges are openly advertising their desire to receive applications as soon as 2L grades are available — a change from years past, when judges would solicit early applications less brazenly. The adviser did not want to be identified by name because the situation is delicate for law school administrators trying to give their students the best chance to land clerkships while still adhering to the official time line. Students, meanwhile, have to do more legwork to find out which judges are hiring and when.
"The hiring plan received a boost in 2005 with the introduction of the Online System for Clerkship Application and Review (OSCAR), which allows applicants and law schools to submit materials online and lets judges sort applications by specific criteria, such as school or grade-point average. The system will not release student applications to judges until the September kickoff date, which helps encourage compliance. Judge participation has climbed steadily since OSCAR's introduction, but there is no guarantee that judges who advertise positions on OSCAR will wait until September to make decisions.

"You can have a judge who only uses OSCAR for purposes of posting clerkship opportunities, but doesn't adhere to the schedule," said Judge Nicholas Garaufis, who sits on the U.S. District Court for the Eastern District of New York and chairs the judiciary's OSCAR working group. "That judge can reach out to applicants who send papers in the mail at any point."

"The frenzy places judges not in preferred cities on the East or West coasts in a tough spot — it's harder for students to make it to their chambers during the whirlwind interview period.

"Quite frankly, we just saw that other areas of the country were not following the plan," said Chief Judge Mary Beck Briscoe of the 10th Circuit. "By the time students would come out to the Midwest for interviews, the candidates with the highest credentials had already been hired."

"Briscoe recalled one candidate two years ago who was hired by another judge while literally in transit to an interview with her in Lawrence, Kan.

"The declining legal job market and the ease of applying with multiple judges through OSCAR have resulted in a dramatic increase in the number of applications. In 2009, OSCAR funneled 401,576 applications to judges — a 324% increase from the 94,693 applications received in 2005.

"With so many applications coming in, some law school career counselors and students worry that connections are playing an even bigger role in the process, as judges look for ways to cut through hundreds or even thousands of applicants. One judge in the Eastern District of Pennsylvania received 1,900 applications, said Melissa Lennon, assistant dean for career planning at Temple University James E. Beasley School of Law. "What is going to cut through 1,900 applications? Nothing but a phone call," she said.
"Another factor is that the rules don't cover applications from people who have already graduated — judges may hire them at any point. That's a real incentive to hire alumni instead of law students, according to judges and law school administrators. "I think some judges don't like the hiring frenzy that takes place on the first day they can interview 3Ls under the rules," said New York University School of Law Dean Richard Revesz. "A way to avoid that and still comply with the rules is to hire alumni."

"Plenty of judges are going that route. Although federal court administrators don't track the percentage of alumni and law student clerk hires, OSCAR data show that clerkship applications from alumni eclipsed those from law students in 2009 — a first.

"Harvard University clerkship adviser Kirsten Solberg said approximately one-third of Harvard's federal and state clerks are alumni. The shift has been rapid at Temple, where alumni make up about 40% of the school's clerks, compared to about 25% the previous year, Lennon said. "

My previous posts on the judicial clerk market are here. My papers on that market are here.

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