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Friday, September 23, 2011

What's Keeping Prawfs from Imitating Judges?

The NYT has a funny story today about this year's clerkship madness. Judge Kozinski fesses up to recruiting at birth, or something approximating it. A triumphant student still vomits from the stressful experience. All this raises many questions but here's one: why has the FAR process held up more against the threat of unraveling than the clerkship market? Is it simply because hiring for a multi-year position requires more due diligence? The judges would probably deny that--they'd likely argue that a year with a judge is more socially significant than a career where we're marginalized to reporting our views in the ostensibly irrelevant law reviews. I'm not sure why some talent markets unravel and others don't. Maybe the law schools are more inclined to see the benefits to hiring in a context where one isn't operating under hot emotions. What's your rank speculation?

Posted by Dan Markel on September 23, 2011 at 02:34 PM in Blogging, Dan Markel, Employment and Labor Law, Getting a Job on the Law Teaching Market, Law and Politics | Permalink


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The cost of trying to get ahead of the normal process seems pretty marginal for a judge looking to hire clerks. It seems like a law school trying to get ahead of the AALS/FAR process would face significant costs in identifying and interviewing the best candidates ahead of the curve. The AALS meat market offers a lot of efficiencies for those that participate. Spending a lot of money to opt out is only worth it if you end up hiring substantially better candidates. So far schools don't seem to think the economics make sense. That'd be my guess.

Posted by: James | Sep 23, 2011 2:47:59 PM

Several thoughts:
1. The ratio of open judge slots to students vying for a clerkship seems huge (according to the NYT, 380,000 for roughly 870 judges, some of whom will hire only 2 clerks). And unlike academic candidates, who compete in submarkets depending on their course and scholarly preferences, most of the top students are fungible. Barring a personality clash, a judge can choose from a broad array of students who have demonstrated sufficient ability to engage in legal analysis and write well. Judge XX will be well served regardless of whether he hires Joe from Harvard, or Susan from Yale or Jennifer from Northwestern or Hal from Michigan, etc etc.

2. Both judges and students have less to lose from a quick system that relies mostly on proxies and a single half-hour interview. Even if the clerk is not stellar, s/he probably is competent and will be gone in a year. (And even if the judge is nasty, the student can put the clerkship on the resume and move on to the next job). By contrast, no faculty wants to hire (much less fire) a poor scholar, lazy colleague or perennially weak teacher. So faculties have far more reason to take their time with candidates. And candidates also have more reason to take time interviewing faculties, particularly when lateral hiring slows down.

3. Am not sure how this plays out, but note that in the academic hiring world, schools at the top are often both hirers on one hand, and promoters and producers on the other. That is, NYU not only hires entry level candidates but it also promotes its own alums to other schools who are looking to hire. Accordingly, NYU/Harvard/Chicago etc are all somewhat more dependent on other schools whereas Judge Kozinski truly is a free agent. If I am right about this, then the top schools have incentives not to break ranks and hire early or engage in some of the nasty practices described in the NYT article (e.g., withdrawing an offer before someone even has the chance to listen to their cell phone).

Posted by: Miriam | Sep 23, 2011 3:31:02 PM

The ratio of applicants to judges is high, but it's not as high as that. 380,000 is the number of applications, not the number of applicants. When I was going through this process four years ago, I was advised to apply to around 100 judges. I would not be surprised if students now are applying to even more. If we assume that a judge hires an average of 2 clerks, that's 3,800 applicants for 1,740 positions.

Posted by: Hanah | Sep 23, 2011 3:50:19 PM

Unlike judges, schools have real difficulty committing to hires more than a year out. And unlike judges, schools can potentially hire (in future years) candidates whom they pass on the first time.

Posted by: James Grimmelmann | Sep 23, 2011 5:01:35 PM

Might the explanation be that the game for judges is different from the game for law schools: the offending judges care only about whether they get pedigreed clerks; whereas law schools care about pedigree only insofar as it predicts who will be productive scholars and good lecturers (a dubious connection at best).

To put it another way: a top student at a school ranked, say, 25th or an average student at a school ranked in the top 3 are--at best--only marginally different from the top student at the top-ranked school when it comes to writing bench memos or draft opinions. So the judges that are desperate to jump ahead of the herd must be seeking something else, and the most obvious candidate is that they want to be able to brag that they have the top student from the top school.

This is not to say that all judges care only about pedigree, just the shallow ones (Kozinski?) that have pushed the recruiting season earlier and earlier.

Posted by: Hmm | Sep 23, 2011 5:09:35 PM

This will teach me not to blog on the fly. Hanah, you are obviously correct that there are far fewer than 300,000 applicants, although I wonder if everyone applies, on average, to 100 judges.

Posted by: Miriam | Sep 23, 2011 6:27:59 PM

At least one part of the answer is the lateral market and the fact that academic hiring is a multiple-round game. A low-ranked school has much less incentive to make an early exploding offer to a candidate that would otherwise go to a higher-ranked school, since even if it initially succeeds the candidate would lateral to the higher-ranked school next year. A low-ranked judge who nabs a high-ranked clerk will keep the clerk for the entire relevant time horizon.

Posted by: TJ | Sep 23, 2011 6:39:54 PM

Sigh. What a ridiculously status-oriented profession we've chosen for ourselves.

Posted by: Kristen | Sep 23, 2011 8:23:45 PM

I certainly didn't send off 100 applications -- it was more in the 25-30 range. Though given my professional and family circumstances (long story short: I was looking for judges who seemed to like more experienced alums in a few cities we could move to temporarily), I was VERY selective about the judges. I got a handful of interviews and took the first offer given -- but even then it was nothing like the NYT piece suggested. He gave me two days to decide, and when I said I had another interview on the second day, he said he'd give me an extra day if I wanted to see how that turned out. (Though I did end up cancelling and calling back a couple of hours later.)

Also, keep in mind that those were OSCAR applications. Lots of judges require paper or email applications. Though it's probably unlikely that those paper/email apps come from people who aren't also sending in OSCAR ones.

Posted by: Recent clerk applicant | Sep 24, 2011 11:18:16 AM

I would guess that some elite schools could dispense with the AALS process and still hire whomever they wanted, but it would be a real risk for many third and fourth tier schools. Maybe a similar dynamic exists for federal judges. The judges whose names law students are likely to know (Easterbrook, Posner, Kozinski, etc.) could probably do whatever they wanted and still get the pick of students. I'm not sure that would be true for all federal judges though.

Posted by: Stuart Ford | Sep 24, 2011 12:09:02 PM

I guess I should point out that I didn't do a federal clerkship, so my thoughts are worth what you paid for them.

Posted by: Stuart Ford | Sep 24, 2011 12:09:56 PM

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