Chapter 4 of Who Gets What and Why, in the Milken Institute Review (with art work...)

The Milken Institute Review, Fourth Quarter 2015, has published an excerpt--Chapter 4--of Who Gets What and Why.  It comes with illustrations, which aren't in the original. The chapter is mostly about unraveling, and includes discussion of college football bowls, the market for law school graduates, and medical fellowships...and why Oklahomans are called "Sooners," and fraternity and sorority recruitment is called "rush."

Book Excerpt--Who Gets What and Why

Here's the introduction to the excerpt, by Peter Passell

"Alvin Roth, the author of this excerpt from Who Gets What – and Why,* won a Nobel in economics in 2012 for his work on the “the theory of stable allocations and the practice of market design.” I know, I know: that’s hardly an intro likely to induce you to dive right in. Most Nobels in economics, after all, are awarded for accomplishments that are too arcane for mere mortals to comprehend. And even the prize winners who do have something pressing to say to the public can rarely write their way out of that proverbial paper bag.

" But Roth and this book are spectacular exceptions. While he was really trained as a mathematician (his PhD is in a discipline called operations research), Roth’s vision has never strayed far from the practical. And he’s a natural-born writer to boot.

"Roth designs “matching markets,” where price alone can’t balance supply and demand – think of markets for everything from marriage to college admissions. Indeed, he’s even saved lives by helping to design an ingenious way to match more donated kidneys to needy patients.

"The chapter excerpted here will give you a taste of his fine mind and formidable ability to make complicated ideas comprehensible. — Peter Passell"
***********
See this earlier post with a video of the conversation about the book that Peter and I had in June: Peter Passell interviews me at the Milken Institute on Who Gets What — and Why: The New Economics of Matchmaking and Market Design


The rest of the book can be found at Amazon: http://www.amazon.com/Who-Gets-What-Why-Matchmaking/dp/0544291131 

Which law schools produce the highest percentage of clerks in Federal courts?

Clerkships, by law school, from U.S. News & World Report.

Federal Judicial Clerkship Rankings

School (name) (state)	2015 Best Law Schools rank	Percent of 2012 employed J.D. grads with federal judicial clerkships	Percent of 2012 employed J.D. grads with state and local judicial clerkships
Yale University(CT)	1	36.3%	3.3%
Stanford University (CA)	3	29.1%	2.9%
Harvard University (MA)	2	18.5%	4.4%
University of Chicago	4	15%	1.9%
Duke University(NC)	10	14.3%	6.9%
Vanderbilt University (TN)	16	12.6%	4.9%
University of Virginia	8	12.6%	6.2%
University of Notre Dame (IN)	26	11%	2.4%
University of Pennsylvania	7	10.6%	3.8%
University of Georgia	29	10.3%	7.2%
University of Alabama	23	10.1%	3.2%
University of Michigan—Ann Arbor (MI)	10	9.6%	3.7%
University of Texas—Austin	15	9%	3.2%
Columbia University (NY)	4	8.1%	0.9%
University of Southern California (Gould)	20	7.9%	0%
Cornell University (NY)	13	7.3%	2.8%
University of California—Berkeley	9	7.1%	2.4%
Northwestern University (IL)	12	7.1%	2.2%
Washington and Lee University(VA)	43	6.9%	13.8%
Emory University (GA)	19	6.6%	4.3%
Wake Forest University (NC)	31	6.6%	2.9%

Matching of cases to federal judges

From The Federal Judicial Center's page on How the Federal Courts Are Organized FAQ:

How are cases assigned to judges? 
Each court with more than one judge must determine a procedure for assigning cases to judges. Most district and bankruptcy courts use random assignment, which helps to ensure a fair distribution of cases and also prevents "judge shopping," or parties’ attempts to have their cases heard by the judge who they believe will act most favorably. Other courts assign cases by rotation, subject matter, or geographic division of the court. In courts of appeals, cases are usually assigned by random means to three-judge panels.

Some other interesting Qs and As:

What is an Article III judge?
The U.S. Supreme Court, the federal courts of appeals and district courts, and the U.S. Court of International Trade are established under Article III of the Constitution. Justices and judges of these courts, known as Article III judges, exercise what Article III calls "the judicial power of the United States."

Are there judges in the federal courts other than Article III judges?
Bankruptcy judges and magistrate judges conduct some of the proceedings held in federal courts. Bankruptcy judges handle almost all bankruptcy matters, in bankruptcy courts that are technically included in the district courts but function as separate entities. Magistrate judges carry out various responsibilities in the district courts and often help prepare the district judges’ cases for trial. They also may preside over criminal misdemeanor trials and may preside over civil trials when both parties agree to have the case heard by a magistrate judge instead of a district judge. Unlike district judges, bankruptcy and magistrate judges do not exercise "the judicial power of the United States" but perform duties delegated to them by district judges. The judges on the U.S. Court of Federal Claims are also not Article III judges. Their court is a special trial court that hears mostly claims for money damages in excess of $10,000 against the United States. With the approval of the Senate, the President appoints U.S. Court of Federal Claims judges for fifteen-year terms. 

How many federal judges are there?Congress authorizes a set number of judge positions, or judgeships, for each court level. Since 1869, Congress has authorized 9 positions for the Supreme Court. It currently authorizes 179 court of appeals judgeships and 678 district court judgeships.(In 1950, there were only 65 court of appeals judgeships and 212 district court judgeships.) There are currently 352 bankruptcy judgeships and 551 full-time and part-time magistrate judgeships. It is rare that all judgeships are filled at any one time; judges die or retire, for example, causing vacancies until judges are appointed to replace them. In addition to judges occupying these judgeships, retired judges often continue to perform some judicial work.

And elsewhere on the site, this:

Law Clerks

The practice of hiring a recently graduated law student to serve as an in-chambers judicial assistant was pioneered by Horace Gray. Both as the chief justice of the Supreme Judicial Court of Massachusetts (1864–1881) and as an associate justice of the Supreme Court of the United States (1882–1902), Gray personally paid an assistant, whom he referred to as his “secretary.” Other justices of the Supreme Court followed the practice in the late-nineteenth and early-twentieth centuries. Although Congress in 1886 heeded the advice of the U.S. Attorney General that it pay for each of the justices to hire a stenographer “to assist in such clerical work as might be assigned to him,” it was not until 1919 that it provided funding for the hiring of legally trained assistants. To distinguish these assistants from the stenographers, Congress designated them as “law clerks.”

The early law clerks, most of whom were graduates of the Harvard Law School, conducted legal research, checked citations, and performed a wide range of personal and administrative tasks for their judges. Despite the concerns expressed by some members of the Judicial Conference that such assistance was unnecessary or that highly paid law school graduates were not needed to perform such tasks, Congress in 1930 provided funds for each circuit court of appeals judge to appoint a law clerk. Six years later, Congress authorized up to thirty-five district court judges to appoint law clerks, as long as the senior circuit judge of the circuit in which the district was located issued a certificate of need. A statute of 1945 lifted the restriction on the number of district court judges allowed to appoint a clerk. The certificate of need requirement continued until 1959, when Congress authorized judges to hire “necessary” law clerks subject to the limits of their chambers staff budgets and to the minimum law clerk salary provisions of the Judicial Salary Plan.

As federal judicial caseloads and budgets increased during the last four decades of the twentieth century, the number of law clerks retained by the judges of the federal courts rose steadily, though some judges have eschewed the practice of hiring short term law clerks in favor of “career” clerks, who are hired with the expectation that they will serve for a period of more than four years. Today’s law clerks typically perform quasi-judicial functions, such as preparing bench memoranda on legal issues and composing drafts of judicial opinions.

Further Reading:
Baier, Paul R. “The Law Clerks: Profile of an Institution,” Vanderbilt Law Review 26 (1973): 1125–77.
Newland, Chester A. “Personal Assistants to Supreme Court Justices: The Law Clerks,” Oregon Law Review 40 (1961): 299–317.
“Law Clerks: The Transformation of the Judiciary,” Long Term View: A Journal of Informed Opinion 3 (1995).

An unusual law clerk hire

Not every clerk is hired without any experience other than law school. This year, one clerk, Shon Hopwood, will be showing up at the D.C. Circuit Court of Appeals after (not right after) a lengthy prison term for bank robbery (after which he went to law school at the University of Washington ).

Here's a blog post on it (note the date, for those of you who have been following the unravelling of the law clerk market this year. I presume that Mr Hopwood will return this Fall to his third year of law school so that he's been hired before the recently-abandoned "official" Fall dates). The URL is too nice to hide the link behind text: http://legaltimes.typepad.com/blt/2013/08/shon-hopwoods-unique-career-in-the-law-has-taken-a-dramatic-new-turn-the-onetime-jailhouse-lawyer-who-served-time-in-federal.html

AUGUST 07, 2013

Unusual Law Clerk Hire for D.C. Circuit Judge Janice Rogers Brown

Shon Hopwood's unique career in the law has taken a dramatic new turn. The onetime jailhouse lawyer who served time in federal prison for robbing banks has been hired as a 2014 law clerk for Judge Janice Rogers Brown of the prestigious U.S. Court of Appeals for the D.C. Circuit.

"I'm amazed at the opportunities and second chances I have been given," said Hopwood Wednesday after returning home to Seattle from his interview with Brown on Monday. Hopwood said the judge offered him the job soon after the interview. "I quickly said yes."

****************

Here's an August 26 story from the NY Times: Taking a Second Chance, and Running With It

The D.C. Circuit Rules that the Law Clerk Hiring Plan is History

Notice Regarding Law Clerk Hiring By D.C. Circuit Judges for the 2014-2015 Term

Although the judges of this circuit would uniformly prefer to continue hiring law clerks pursuant to the Federal Law Clerk Hiring Plan, it has become apparent that the plan is no longer working. Because participation in the plan is voluntary, a significant percentage of all United States circuit judges must agree to follow it if it is to work appropriately. During the past few years, a significant and increasing number of circuit judges around the country have hired in advance of the plan’s interview and offer dates, and it is likely that they will continue to do so. As a result, continued adherence to the plan is no longer fair and equitable to either students or judges.

We stand ready to work with the judges of the other circuits to develop an appropriate successor to the current plan. In the meantime, however, the judges of this circuit will hire law clerks at such times as each individual judge determines to be appropriate. We have agreed that none of us will give “exploding offers,” that is, offers that expire if not accepted immediately. Rather, when a judge of this circuit gives a candidate an offer, the candidate will have a reasonable time to consider the offer and interview with other judges before accepting or declining. Additional practices applicable to individual judges may be found on the judges’ OSCAR pages.

• Online System for Clerkship Application and Review (OSCAR)

******************

See these previous posts for an account of its (unexpectedly long) death throes: http://marketdesigner.blogspot.com/search/label/clerks 

Another year of the judicial clerkship market: maybe the last one under the current system?

Another year, more bad behavior by judges hiring clerks: Judges Compete for Law Clerks on a Lawless Terrain. (Banning cell phones in courthouses is clearly cruel and unusual punishment for law students on the clerkship job market...)

"Based on rules that were intended to curtail shenanigans, judges hiring for the 2012 season were supposed to begin interviewing third-year law students no earlier than Thursday, Sept. 15 at 10 a.m. But somehow, at the federal courthouse in downtown Manhattan, most of the interviews — and job offers— had already concluded by 9:45 a.m.

"Indeed, hoping to leapfrog their peers, most judges actually began interviewing hours (if not days or months) earlier. Many made so-called exploding offers, forcing candidates to accept or decline a job offer on the spot (and it’s a “Godfather”-style offer: one they can’t really refuse). Some judges extended offers by phone, which is even more nerve-racking for students because cellphones are not allowed at many courthouses. At the Manhattan courthouse, anxious young applicants in stiff new shoes were darting in and out of the building all day, checking and rechecking their phones with the security guard, just so they could listen to their voice mail between interviews.


"They had, after all, heard the warning tale of an unlucky student from the year before, who didn’t answer the phone because he was on a flight to another interview. The story ends with two voice mails: the first offering a job, and the second revoking it."
*********

Here's a version of that latter story that emerged from interviews we summarized in our 2007 paper:
“I received the offer via voicemail while I was in flight to my second interview. The judge actually left three messages.
First, to make the offer.
Second, to tell me that I should respond soon.
Third, to rescind the offer.
It was a 35 minute flight.”

• 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)
• 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.

Will this be the last year that judges, law students, and law schools nominally adhere to the regime of post Labor Day dates?

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.

Education as a filter--for Supreme Court justices

Yale, Harvard Law Taking Over Supreme Court

"In a new paper, Patrick J. Glen, an adjunct professor at Georgetown University Law Center, researched the legal educations of Supreme Court justices through time and found a curious pattern."

...

"However you categorize Justice Ginsburg’s pedigree, one fact would still be guaranteed by Ms. Kagan’s confirmation: For the first time in history, every sitting Supreme Court justice will have graduated from an Ivy League law school.

Mr. Glen writes, “Kagan will take the place not only of the last remaining Protestant on the Court, but also of its last non-Ivy League hold-out—the Chicago educated Justice John Paul Stevens (Northwestern Law School).”

So in some respects, the court has gotten a little more diverse over the years, with Congress confirming more racial minorities and women. But perhaps that just reflects the changing admissions processes at the nation’s top two law schools."

In this story covering her swearing in, the Times' Peter Baker writes
"Arguably, Justice Kagan made a mark from the moment she took the oaths on Saturday. She is the third woman on the current court, joining Justices Ruth Bader Ginsburg and Sonia Sotomayor. She is also the fifth justice born after World War II, making that group a majority, and she brings down the average age on the court to 64, from nearly 69. And she is the first person since William H. Rehnquist, 38 years ago, to join the court without experience as a judge.
If her installation added diversity in some ways, though, it reinforced the court’s lack of it in other areas. Her addition means the court now includes neither Protestants nor anyone without an Ivy League background. Justice Kagan joins two other Jewish justices and six Catholics. She is the sixth justice to have studied at Harvard Law School (although Justice Ginsburg later transferred to and graduated from Columbia Law School); the other three graduated from Yale Law School. And she is the fourth justice to have grown up in New York City." 

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).