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Saturday, August 13, 2005

Quantifying (very unscientifically) the impact of law clerks

As the law clerk hiring season approaches, my thoughts turn from blogging as a medium to clerks as a medium.  I have already opined on clerks and the Supreme Court's agenda, but here my goal is to explore more generally the impact and influence law clerks have on judicial decision-making.

Of course, there has long been discussion in academic and popular literature of the impact and influence law clerks.   But, despite the trend toward empirical legal scholarship, I do not believe there have been any serious efforts to quantify the impact and influence that law clerks have on judicial decision-making.  Because I lack the skills to make a serious quantification effort, I thought I would try out this forum for a very unscientific approach:

On a scale of 1 to 10, what do you think is the impact and influence of law clerks on judicial decision-making?

On this scale, 1 represents little or no impact and influence (i.e., substantively it would not matter much if the clerks failed to show up most days) and 10 represents enormous impact and influence (i.e., substantively it would not matter much if the judge failed to show up most days).

Of course, the answer to this question is "it depends."  It depends on the court, the judge, the clerk, the case, etc.  But this answer is no fun; I want some numbers.  And to answer my own question first, I would score clerk impact and influence at about a 3.  As to particular outcomes (especially in important cases) , I think clerks only score a 1 or 2 on this impact/influence scale.   But as to setting agendas and developing jurisprudential nuances, I think clerks score perhaps as high as a 4 0r 5.  Put that together, and I get a 3 on my sophisticated clerk impact/influence scale.

Others?

Posted by Douglas A. Berman on August 13, 2005 at 04:25 PM in Housekeeping | Permalink

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Comments

I hate to say "it depends" even after your caveat, but it also depends upon what you mean by "influence." Even if clerks do not influence the outcomes of cases, they still have influence on the judge's workload. If there were no clerks, would judges decide cases more slowly? Write shorter opinions? Do less legal research? And would this, in turn, influence outcomes? It's hard to say.

Dan

Posted by: Daniel Solove | Aug 13, 2005 5:47:17 PM

Fair points, Dan, but still we want a number. If you think these workload issues are key to judicial output, I suppose you number might be higher than my 3.

Posted by: Doug B. | Aug 13, 2005 10:21:26 PM

The problem is that if we all have different definitions of "influence," any number signifying the degree of "influence" will be meaningless.

Posted by: Daniel Solove | Aug 13, 2005 10:43:21 PM

Party pooper!

Posted by: Doug B. | Aug 13, 2005 10:59:54 PM

As an appellate attorney, including death penalty cases, I never believed that the clerks exercised any influence (i.e. per your survey, "0"). I knew the judges, in oral argument I spoke with them and not to them, and I trusted them to read the record and the briefs. I suppose that it depends on the energy and integrity of the individual judge. I would hate to think that law clerks who got their jobs because they were not good enough to do mine could exercise judicial power over me.

Posted by: nk | Aug 14, 2005 12:11:54 AM

"I would hate to think that law clerks who got their jobs because they were not good enough to do mine could exercise judicial power over me."

Supreme Court clerks aren't good enough to do your job? Interesting.

Posted by: Jeff V. | Aug 14, 2005 3:00:03 AM

Jeff V.

All right, make it "trained" or "experienced" enough. I had worked almost two years as a clerk and more than one year in practice as an attorney before I made my first oral argument in a robbery/rape case and I was still supervised and helped by more experienced attorneys. The judges before whom I argued had decades of experience behind them. I have never appeared before the U.S. Supreme Court. I thought Mr. Barman's question was generally about the influence of law clerks.

Posted by: nk | Aug 14, 2005 8:51:43 AM

"I would hate to think that law clerks who got their jobs because they were not good enough to do mine could exercise judicial power over me."

I also take issue with this statement, even about clerks in general. There is a trend nationally toward more and more clerkships becoming career positions, more like "staff attorneys" working for judges. In that light, many clerks have enormous experience and, potentially, influence.

I'd rate influence, in my experience, as closer to a 5. But it does all depend on the individual judge and individual clerk and their relationship, experience, etc.

Posted by: Dan | Aug 14, 2005 9:30:11 AM

"I would hate to think that law clerks who got their jobs because they were not good enough to do mine could exercise judicial power over me."

I'll chime in with my objection to this statement as well.

First of all, whether or not the clerk could do the oral argument as well as Mr. Krites is wholly irrelevant to whether the clerk is smart enough -- or trusted enough by the judge, or wily enough, or whatever enough -- to offer a helpful or unique analysis of the case and, thereby, to influence the reasoning and/or outcome of the case.

Second, I don't know Mr. Krites, so he may very well be an exceptional appellate advocate. I do, however, know that in my three years in law school I observed moot court finals three separate times. I believe every oralist went on to a clerkship (mostly federal appellate clerkships, an impressive number to Supreme Court clerkships). Every year, the judges, who were a mix of federal appellate judges and, usually, a Supreme Court Justice, would preface their decision in the case by commenting on the quality of the oral arguments. They usually threw out words like "extraordinary" and "outstanding" and "superb." And, each year, the judges made a point to say something akin to the following: "These oral arguments were superior to the majority of arguments we hear in our courts." (Typically the statement came from a Circuit Judge and not the SCOTUS Justice.) Perhaps that was just stroking the egos of already quite self-confident ivy league law students, but I always had the impression that the judges were not engaging in hyperbole.

Setting aside whether the clerk got his or her job "because" he or she wasn't "good" enough to be an appellate advocate, which seems really silly (can you imagine a circuit court judge thinking, "Well, I'm so relieved that Joe/Jolene isn't good enough to be an appellate advocate, so I can hire him/her"), it is also probably grossly inaccurate in a good number of instances even to suggest the clerks couldn't do the job despite their supposed lack of "experience" or "training."

By the way, in all but random fashion, my experience in federal district courts leads me to conclude that clerks have only about a 2.5 level of influence on substantive matters (perhaps higher on non-dispositive matters, like discovery disputes).

Posted by: Jamie | Aug 14, 2005 11:01:20 AM

"I would hate to think that law clerks who got their jobs because they were not good enough to do mine could exercise judicial power over me."

If you'd hate to think that, imagine why most *judges* got their job.

Posted by: Kelly S. | Aug 14, 2005 11:13:53 AM

For judges who draft their own opinions, I think somewhere around 2. For judges who rely heavily on clerks to draft opinions, I think somewhere around 4. Clerks have little impact on the outcome of any particular case (I would put it at around 2); but if they are drafting, they do have a great deal of impact upon the way the case gets to the agreed-upon resolution, and therefore the development of the law more generally.

At the same time, the significant caveat is that it depends very much not only on who drafts the opinion, but also what kind of case it is, the relationship between the clerk and the judge, the judge's general opinion-writing philosophy (does she want to be a minimalist, or does she want to write a major exposition of the law?), the kind of court, and so forth.

So I think the proper range is anywhere from 1-6. How's that for scientific?

Posted by: Hillel Levin | Aug 14, 2005 11:27:31 AM

"If you'd hate to think that, imagine why most *judges* got their job."

Wow.

Posted by: Jeff V. | Aug 14, 2005 4:53:58 PM

I apologize guys, for sounding so arrogant and pompous. I really did not mean to. I was a clerk and I never thought I got the respect I deserved. My moot court professor was a staff attorney for our federal circuit court of appeals and he taught me a lot (one thing in particular, to distinguish softball questions from adversarial questions). I should have taken more time to phrase my comment better. I still do insist, though, that conscientious judges are very mindful of the record and of their own "record" and do not let their clerks influence them.

Posted by: nk | Aug 14, 2005 7:11:38 PM

P.S. After twenty-three years, from the dim recesses of my memory, I remember that the magistrates and staff attorneys were responsible for translating pro-se petitions into litigable cases. So I apologize one more time and change my vote. In pro-se cases, including 1983 and habeas corpus petitions, I imagine that law clerks exercise substantial influence. But I do not promise that I will think before I comment here again.

Posted by: nk | Aug 14, 2005 9:00:43 PM

"And, each year, the judges made a point to say something akin to the following: "These oral arguments were superior to the majority of arguments we hear in our courts."

At least someone hasn't read this article. Anyhow, I think clerks have too much influence, but in a bad way. They put in horrible dicta or imprecisely state legal rules. It's frustrating to have the opposing counsel argue that some stray language in, say, a civil rights case has changed the law. Clerks sometimes get a little keypad-happy and insert dicta that muddy a specialists' understanding of the law.

I'm sure everyone here who has a deep knowledge of some area of the law scratches his or her head and says: "Well, that's not really the right way to say the rule." Much confusion in the law results from having law clerks writing opinions.

Posted by: George of the (Legal) Jungle | Aug 14, 2005 11:22:21 PM

George,

Are you sure that judges are any better? Judges are generalists, too. Maybe the stray comment was by a judge, not a clerk.

Posted by: Kelly S. | Aug 14, 2005 11:38:07 PM

In "sexy" cases, especially constitutional ones, clerks are probably around a 2. But the more complex or regulatory the case, the more influence the clerk has, unless the judge happens to have come from that field prior to taking the bench. My experience in appellate cases involving difficult statutory or (especially) regulatory issues was that clerks made a HUGE difference and wielded great power. The less interesting the matter, the more power held by the clerks. For example, in any case where FERC is a party, I'd say clerks are at about a 6 (or higher).

Posted by: SG | Aug 15, 2005 2:00:32 PM

It laregly depends on the judge. For example, I seriously doubt that Judge Posner's clerks have much influence in his chambers, or Judge Easterbrook's for that matter. Both men pen their own opinions, and both have distinct writing styles.

But in the vast majority of chambers, the clerks do a great deal of the heavy lifting. The judge and panel may have chosen the outcome, but the underlying reasoning matters greatly--and that's where the influence of a clerk plays out.

I also think it matters greatly whether the clerk and judge share the same judicial philosophy. If they do, and the judge comes to trust the clerk's judgment, then that clerk can have an even greater degree of influence with a judge.

On a scale of 1-10, I'd measure the impact and influence of law clerks on the judicial decision-making process at a 7.

Posted by: Feddie | Aug 18, 2005 7:35:18 PM

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