Wednesday, July 25, 2007
Judges, Clerks, Honor, and the Market
Today's WSJ Blog has a post discussing a new paper by Christopher Avery, Christine Jolls, Richard Posner, and Alvin Roth, The New Market for Federal Judicial Law Clerks. This follow-up study concludes that, despite the strictures of the current regime for law clerk hiring, there has been "a level of interviewing and offering of positions prior to the specified start dates that we find surprisingly high." It also finds that judges a frequent judicial use of exploding offers. All this is familiar to our readers, I'm sure, but the study puts things in a stark light, and the quotes and anecdotes are also worth reading. The WSJ quotes this survey respondent:
"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."
Of course, the whole issue has been debated to death. There are certainly judges who view the clerk hiring process as a market and resist any effort at coordination. I think the study rightly focuses, though, on the fact that many judges purport to support the current process, and yet violate it, or depart from its spirit while nominally obeying the letter. And I think the authors of the study rightly say that although no judge is obliged to follow the guidelines, "the operation of the current law clerk market presents moral issues as well." Some judges who depart from the current system do so openly and out of principle. Others don't follow it, or exploit things like exploding offers, not out of principle, but simply because they can. If we call "honor" that quality of acting within the spirit and letter of rules that don't officially bind us, then I think we can call some of these judges dishonorable.
I offer no solutions here, and welcome comments and anecdotes. A couple of thoughts, though. First, we should recognize that the web of complicity includes, on occasion, professors and schools who find ways of collaborating with judges to work around the system. Second, we might ask whether a legislated solution to the problem (if it is a problem) is necessary, appropriate, or constitutional. Third, we certainly should encourage web sites and other forums that quite publicly name judges who depart from the guidelines.
Fourth, while it is unfair to put the burden on the students themselves -- although some of them doubtless are also complicit in working around the system -- we might conclude that, for those judges who seek to take advantage of their position to corner the market on clerks, or to put clerk candidates in untenable positions through exploding offers, there is nothing wrong with having the market bite back at them. Judges aren't gods, and (in theory) are as subject to the Golden Rule as anyone else. I find it difficult to say that a student who is pressured into an attempt by a judge to secure an interview at the earliest date by working outside the guidelines, or who is confronted by a tactical short-fuse offer, is acting badly if she accepts the first judge's offer and then rescinds her acceptance when given an offer by a later (and better?) judge. Nature, red in tooth and claw, cuts both ways.
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Having taken the survey and seen the draft paper, I'm disappointed that the authors mostly conflate two different timing problems: when in students' law school careers they interview, and when during the calendar year judges interview. The anecdotal evidence I've seen is that judges are increasingly willing to jump the gun on the calendar year by hiring students who have already graduated from law school. Those students, since they're not in school, are no longer covered by the hiring plan. The result is that the market unwinds during the year, with more and more summer interviews, but that students in law school don't yet have widespread opportunities to jump the gun. (It also adds a LOT of stress to the application process for 3Ls, because they see a market in which many judges have completed hiring, so that there are fewer clerkship slots open to 3Ls.) The paper doesn't really try to disentangle how much unwinding is of this sort, and how much is of the Bad kind, in which students start applying earlier and earlier in law school. Unwinding involving hiring grads could be a comparatively stable system, in which judges have enough information about potential clerks to make decisions, but are constrained in their hiring by the distance they and the potential clerks are willing to commit into the future.
Posted by: James Grimmelmann | Jul 25, 2007 4:10:35 PM
Great post, Paul. I agree with your conclusion that clerkship candidates given exploding offers should in turn feel free to accept a better offer that comes along later. (Efficient breach, indeed!) But let me push the argument a bit: what if a law school Dean makes an exploding offer for an entry-level teaching job, in order to land a candidate that might receive more attractive offers subsequently? Should the job candidate in this case similarly accept the offer, then rescind that acceptance when a better offer, from a school without exploding deadlines, comes along? I suspect the answer is yes, for precisely the reasons you laid out in the clerkship context. And yet to even suggest as much borders on heresy in most academic corridors. What, if anything, gives?
Posted by: Anon. | Jul 26, 2007 1:02:25 AM
But there's an asymmetry. Judges have no fear of students, but students are very afraid of judges. I think a student would fear getting a "black mark" from a judge if she rescinds her acceptance of the Judge's offer, a black mark that will stick to her throughout her legal career.
Posted by: Anthony D'Amato | Jul 26, 2007 1:21:44 AM
Rescinding an offer is not the same thing as rescinding an acceptance. The latter is a breach of contract, a serious transgression. The former is not. Also, a student's acceptance induces justifiable reliance on the part of a judge (a judge will likely say no to the next best candidate, who will then likely be unavailable later). A judge's offer does not induce justifiable reliance (it's not reasonable for a student to say no to a less desirable judge before saying yes to a more desirable one).
So, the asymmetry is not just that students rescinding their acceptances are afraid of judges while judges rescinding their offers are not afraid of students. The asymmetry is that students rescinding their acceptances are in fact doing something very wrong, while judges rescinding their offers are not.
By the way, I've seen some truly awful behavior in chambers, so I am no apologist for judges. But Paul's solution is no good either.
Posted by: anon lawprof | Jul 26, 2007 2:39:02 AM
Thanks for the comments thus far. I'd hoped I might also spark some anecdotes about the current system, but I'm happy with the folks who have written in.
I agree with Tony that there is an imbalance of power here, and said in my post that it is not fair to place the burden of disciplining judges who treat the process as a market and abuse their market power within it. Of course a student will be concerned about leaving a bad taste in the mouth of the first judge, and about what that judge will do in discouraging others to hire the clerk -- if not other judges, then other employers. I still, in my heart of hearts, would like to see more students leverage what little power they have, with respect to that category of judges who treat the hiring process as a kind of ongoing seigneurial right, to spurn as well as be spurned.
On that point, anon lawprof also points out another asymmetry -- between rescinding an offer and rescinding a confirmation. My disagreement lies, I think, in his turning different levels of gravity of harm in legal terms into one of different levels of moral wrongdoing. Whatever might generally be the case in other circumstances, I think it is less true that a student is "doing something very wrong" when she considers herself less honor-bound to treat as a serious commitment one that was achieved outside the guidelines and by the abuse of that very same imbalance of power I discussed above: in conditions in which "commitment" is at least lightly coerced. She is acting cynically -- she is Holmes throwing over the Harvard Law School for the Mass. SJC -- but is also responding in kind in some ways. Anon's distinction between offer and acceptance does carry some weight with me, though.
One response to anon lawprof would be to modify my purely hypothetical suggestion somewhat and say that students should feel morally free to shop their offers up the chain and look for better judges, regardless of how interested they've told the judge they are in him or her in particular -- free, in other words, to use the only little power they have and string along judges who are abusive of the system. Of course, that's why judges have exploding offers. So maybe I could have just ended the post with, "the system stinks." But I did want to focus a little on how students should feel free to respond to what I am deeming, in some circumstances, unfortunate if not flatly dishonorable judicial conduct.
And I commend James's comment to everyone. It adds whole new wrinkles to the discussion.
Posted by: Paul Horwitz | Jul 26, 2007 8:37:35 AM