Law clerks at the Supreme Court

Some guest Volokh Conspirators have an interesting post on the history of law clerks at the Supreme Court: Disenclerking the Supreme Court.

"During this period [1940's], some Justices seem to have forged closer bonds with their clerks than with their colleagues on the Court. A Frankfurter comment is noteworthy in this regard: “They are, as it were, my junior partners—junior only in years. In the realm of the mind there is no hierarchy. I take them fully into my confidence so that the relation is free and easy.” Law clerks made perfect colleagues, it seems, or at least better colleagues than the other Justices.
In the 1960s, Associate Justices still had only two clerks each, but a rising flood of petitions and appeals soon led most Justices to hire a third. In 1972, Justice Powell requested an additional clerk, pleading his own lack of background in criminal and constitutional law. Soon, they were all entitled to have four clerks.
The importance of the clerks over the past few decades is highlighted by J. Harvie Wilkinson’s comment that “Justice Powell often said that the selection of his clerks was among the most important decisions he made during a term.” It is nowadays taken for granted that clerks play a large role in the opinion-writing process. One Justice reportedly told a clerk who asked for elaborate guidance in drafting an opinion, “If I had wanted someone to write down my thoughts, I would have hired a scrivener.”


They cite their sources: "...we rely heavily on Todd C. Peppers, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Clerks (2006), and Artemus Ward & David Weiden, Sorcerers’ Apprentices: 100 Years of Law Clerks at the Unite States Supreme Court (2006)."


Here are some papers on the market for law clerks, which is one of the best places to observe exploding offers.

In this recession year, there are unusually many applicants for appellate clerkships, and the ABA Journal reports Deluged with Clerkship Apps, Some Federal Judges Don’t Look at All of Them
" Although the Online System for Clerkship Application and Review allows judges to sort applications by characteristics such as law school and law journal experience, a number of judges prefer to look only at applications from individuals who come recommended by others they know or review mailed applications only..."
"Slightly more than 400,000 applications were made for 1,244 clerkships, according to the Administrative Office of the U.S. Courts. However, many applicants submitted dozens of applications."

Federal Judges Law Clerk Hiring

Today, the day after Labor Day, as law students begin their third and final year of law school, is the time when Federal judges are supposed to begin hiring their law clerks for next year. (A clerkship, particularly with an appellate court judge, is a very career enhancing first job for a new law grad.)

While the very beginning of the third year of law school might seem early to be sorting out the plum jobs, in fact it is quite late by the historical standards of this market. Over the last few decades, hiring has periodically unraveled back well into the second year of law school. And so, not for the first time, judges are trying to restrain themselves. Here's the current plan and it's key dates: Federal Judges Law Clerk Hiring Plan with Critical Dates .

Tuesday, Sept. 8 is the "first date when applications may be received." Judges are then supposed to wait until Friday Sept. 11 before contacting candidates to schedule interviews, and to wait until the following Thursday, Sept. 17, before actually conducting any interviews or making any offers. Offers, often exploding offers that must be answered immediately, can be made at the interview, and so much of the market is over by the end of the first day. (Yesterday's post included my favorite exploding offers story.)

One more thing. Judges cheat. (My coauthors tell me I'm not supposed to say that, rather, some judges do not comply with the guidelines.) So a nonnegligible part of the market is over before it's supposed to be over. Some part of the market may even be over before it's supposed to have begun. In our 2007 Chicago Law Review article The New Market for Federal Judicial Law Clerks, a third of the judges acknowledged that they cheated. But for the time being they were largely cheating by only a few days, so that the Labor Day focal point has remained.

The law blogs are full of contemporary reports about this year's market. See e.g. Getting Your Clerkship Before Labor Day? It's Not Just for Graduates Anymore and Clerkship Application Season: Open Thread

There are also some blogs that will post news in real time, including when particular judges have begun to hire, and when they finish. They open a window on the amount of "non-compliance." See Law Clerk Addict, and Clerkship Notification Blog .

The situation well before the current attempt to organize the clerkship market is described here: Federal Court Clerkships in Roth, A.E. and X. Xing, "Jumping the Gun: Imperfections and Institutions Related to the Timing of Market Transactions," American Economic Review, 84, September, 1994, 992-1044

The more proximate history of the market before the current attempt is here:
Avery, Christopher, Christine Jolls, Richard A. Posner, and Alvin E. Roth, "The Market for Federal Judicial Law Clerks" University of Chicago Law Review, 68, 3, Summer, 2001, 793-902.(online at SSRN)

The just-prior attempt to organize the market is described here, and investigated experimentally:
Haruvy, Ernan, Alvin E. Roth, and M. Utku Unver, “The Dynamics of Law Clerk Matching: An Experimental and Computational Investigation of Proposals for Reform of the Market,” Journal of Economic Dynamics and Control, 30, 3 , March 2006, Pages 457-486. (With appendices and experimental instructions here.)

And the early experience with the current market organization is described here (with lots of illustrative quotes from clerkship applicants).
Avery, Christopher, Jolls, Christine, Posner, Richard A. and Roth, Alvin E., "The New Market for Federal Judicial Law Clerks" . University of Chicago Law Review, 74, Spring 2007, 447-486.

Law clerks for Massachusetts courts

One consequence of the poor economy is that Massachusetts courts have reneged on offers of judicial clerkships made to new law graduates. There is a proposal to fill these positions instead, for free, with other new law graduates who have been put on half pay and had their start dates delayed by Massachusetts law firms.
Law firms may provide clerks for courts: Proposal raises ethical issues

There is some concern that having employees of law firms clerking for judges might involve impropriety or its appearance. The proposed solution strikes me as unworkable:

"But because the issue raised ethical concerns, Mulligan recently asked the committee for its opinion about a special “double blind’’ arrangement.
The Flaschner Judicial Institute, which provides continuing education to state judges, would deal with the law firms that supply the interns. Judges and court officials would have no contact with the donating firms, and the firms would be instructed not to identify the interns on their websites. The interns would be barred from disclosing which firms are paying their stipends.
On June 8, the SJC’s ethics committee approved the arrangement, emphasizing that the clerks must keep the identity of their law firms secret even from the judges they are working for.
“Structuring the program in such a way that the law firms’ involvement is unknown not only to the public but also to the judges who will be ‘employing’ the volunteer interns will negate any impression that those law firms are in a special position to influence the judge,’’ said the committee’s opinion, which was reported last week by Massachusetts Lawyers Weekly.
“I give Chief Justice Mulligan credit for making the best of a very bad situation, and it appears that the double-blind method of hiring will protect the integrity of the court and eliminate appearances of impropriety,’’ said David W. White Jr., a former president of the Massachusetts Bar Association who worked as a Superior Court law clerk in the mid-1980s.
Still, the arrangement, which requires clerks to recuse themselves from participating in cases involving their firms without identifying the conflict of interest, is “really going to test the willpower of the volunteer clerks,’’ White said."

Here is some background on the perenially troubled market for law clerks, and here is some (now dated) background on the market for new associates at large law firms, from Roth and Xing (1994).