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Monday, August 24, 2015

Clerkship hiring and changing clerkships

Aaron Nielson (BYU) has published The Future of Federal Law Clerk Hiring (Marq. L. Rev.). The article traces the fall of the 2003 clerkship hiring plan and discusses some possible strategies and concerns in trying to get it under control. Definitely worth a read.

I want to focus on one feature of clerk hiring that Nielson discusses as a piece of the problem and of the search for a new hiring process: The increase in judges hiring only "experienced" clerks, clerks coming into chambers after several years doing something else. Sometimes it is another clerkship, which has long been the case and makes some sense for both judge and clerk. But more and more the "something else" is working at a law firm for a year or more, with the clerk not applying until she is well into practice. This trend seems to be increasing in recent years, particular on the Southern District of Florida, the district in which I live and where my students tend to look for federal clerkships.

But I believe this is an unfortunate trend.

First, as one of my colleagues pointed out, it puts the clerk in a bad spot in a number of ways. She must choose between a clerkship and continuing at a firm where she already has put in time and effort towards advancing. The firm may not be happy about losing a person into whom it has sunk time and money, even if only for a couple of years. Although the clerkship is a theoretical positive for the firm when the person returns (especially if it is a prestigious appellate clerkship), the partners are likely to be dubious that the person is going to come back. And the benefits of having a former clerk still might not be worth the costs of being down an associate in a very different legal economy. And even if she does return to the firm, there remains a risk that some will doubt her commitment.

This interaction has several effects. First, it may affect employment at the start--perhaps the firm will avoid even hiring someone knowing there is a chance she will be applying for--and taking--a clerkship within a year or two. There also is a financial disincentive for the person--it is easier to make (relatively low) law-clerk wages for a year right out of school than to make those wages after a year or two of higher law-firm wages. It also may have a disparate effect on women, as Nielson points out. Many women know that they may be taking time off at some point (perhaps soon) for one or more parental leaves, which has already been shown to negatively affect chances for partnership. That same person is going to be less willing to take additional time away from the firm to clerk, which would further damage partnership and advancement chances.

Second, and relatedly, there is a geographical constraint. It is a lot harder to look nationally for a clerskship once you have been ensconced in the professional world of one city for two or three years and potentially put down some roots. Looking everywhere in the country made sense when the clerkship was an extension of the already-itinerant experience of law school. This is more of a concern for students at top-tier law schools, but it remains an issue. And this again has disparate gender effects--women may be less able to pick up and move to a new city for a year, having already settled some place for a place for a couple of years.

Third, using experienced clerks changes the nature of the job. A clerkship is (was?) like a post-graduate fellowship--an extension of the legal education. It was an opportunity for a newly minted lawyer to spend a short period studying at the feet of an accomplished figure in the legal world--an extraordinary research assistantship--and gaining a particular perspective on the law. She then carried that extra education into a more-permanent job (which made her more attractive to those employers).* And the longstanding practice of stacking clerkships was more of the same--it was multiple fellowships. But that changes when the judge is hiring someone with genuine practice experience and knowledge. Such a clerk, who knows more than a recent graduate, may be of greater help to the judge in chambers. But she also becomes less of a mentee or student-trainee. So the question, I guess, is what do we (systemically or institutionally) want a clerkship to be.

* I recall a Prawfs post years ago--I cannot remember who wrote it--comparing working for Dr. Gregory House to clerking for a particularly nighmarish judge.

There always have been some judges who preferred (even insisted) on hiring someone out of a prior clerkship. But as more judges move to wanting that experience in their own clerks, that initial (no-experience-required) clerkship becomes harder to come by. That is why more clerks have to go to law firms first, triggering the concerns I mentioned above.

Another change in the nature of the job is the loss of the two-year district court clerkship. These were somewhat in decline when I clerked in the late '90s/early 00s and, from what I can tell, have continued to disappear. Back then, it was becoming harder to attract people because the opportunity cost ($150k starting salary in some markets, plus a $10k-$20k clerkship bonus) was too high. Now, it would be harder to attract people because someone who is already two or three years into their time at a firm is not interested in stepping away for two years. Nor is the firm likely to allow her to leave for two years. So a district judge wanting to appeal to the broadest applicant pool is not going to require a two-year commitment. But I would not have wanted to have left my district-court clerkship after one year; I needed and wanted two to get everything I could out of the experience.**

[**] Judge Leonard Garth of the Third Circuit (who also had been a district judge) once said that the ideal clerkship length is 18 months, so the question for the judge is whether to structure her clerkships for less than the ideal or more than the ideal. Judge Garth argued that a district court should do more than the ideal, because there is enough variety to justify the extra time without too much boredom setting in. I am not sure about the ideal point, but I do believe two years on the district court were essential.

I should close by saying that all of the concerns I am raising as a professor hoping to place students might have worked against me when I was the student/new lawyer looking to clerk. I started my first clerkship (on the EDPa) after one year at a law firm in Chicago. (Although I interviewed and was hired for the clerkship while still in school--this was when  judges interviewed in winter/spring 18 months before the clerkship would begin--so the judge was interviewing a current student and likely was not  thinking specifically that I would be coming to chambers with a small bit of practice experience). I interviewed and was hired for my second clerkship (on the Third Circuit) while I was eight months into my first one and the judge especially liked (although did not require) that I would come to chambers from a prior clerkship.

The law firm I worked at during that pre-clerking gap year had given me the offer in the fall of my 3L year following a summer associateship. Partners were not pleased when I told them I was going to be leaving to clerk--for another city, no less--after a year and were convinced I was not coming back. Of course, I knew by that point that I wanted to teach, so I was not as rooted in Chicago or the life of practice in Chicago as other attorneys might be; moving around for a clerkshipswas just a step in what I expected would be more moving around for academia. Nor was I concerned with whether the firm would want me back when I finished clerking.*** But if my goal had been private practice in Chicago, taking that two-year clerkship (to say nothing of pursuing a second clerkship on top of it) in a different city would have made a lot less sense professionally and personally.

[***] The firm dissolved eleven months after I left, so there would have been nothing to go back to in any event.

Posted by Howard Wasserman on August 24, 2015 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink

Comments

Thanks for the kind words. I agree that graduate hiring has problems, for the reasons you give. But student hiring has problems too, including favoring those who happen to do well as 1Ls at the most prestigious law schools. Hiring graduates gives talented students at other schools more opportunity to demonstrate ability, thus (sometimes) changing a judge's rough "expected value" calculation. I suspect that the best realistic outcome is something like we have now: some judges hiring students straight out of law school while others hiring graduates with a few years experience. But you are right to point out that graduate hiring is no silver bullet and those applying for clerkships need to think about these sorts of real-world concerns. (The demise of the two-year district court clerkship is something I haven't thought about.)

Posted by: Aaron Nielson | Aug 24, 2015 10:52:10 AM

It's unfortunate, perhaps, only from the perspective of law students. For those of us who practice, and for those of us who care about the administration of justice, it's a good thing. Students out of law school know very little. And while practicing for a couple of years hardly means your legal judgment has had time to sufficiently develop, someone with two years of practice experience is light years ahead of someone straight out of law school. (Of course, this is why judges prefer clerks with experience.) Many years ago, I clerked for an federal appellate judge when I had two years experience. I was pretty shocked at the gap between those who had worked a couple of years and those who had not -- both in terms of maturity and in terms of judgment. This would be less of a problem if judges didn't rely so much on clerks. But that's just not the reality of how the process goes. As you know, and as anyone who has clerked knows, a single clerk can have an immense amount of influence on how an opinion comes out.

So, I agree with you that this is (generally) bad for law students. But I also think this trend is a really good thing, given the importance of the judiciary.

Posted by: Anon | Aug 24, 2015 12:03:07 PM

Federal law clerks straight out of law school bring vigor and willingness to explore arguments. While it is of course true that lawyers with experience do bring the value of "experience" - after having clerked (out of law school) in the SDNY I believe that the only "real difference" in terms of experience comes after 7-10 years (or more) when you see what goes on at large firms, billing, clients, the politics of the game. The ONLY exception is for attorneys who worked 1 or 2 years for the United States Attorney office or Justice, SEC, etc where the particular experience is Federal which naturally will help. However, if its "general experience" even 2 or 3 years is not much more experience than new graduates in terms of making judgment calls. Finally, keep in mind that most Judges will look to the clerk for research ability and writing skills often telling the clerk he/she wants the motion dismissed, granted, etc so the clerk is not deciding as much as supporting the Judge's ruling.

Posted by: SDNYClerksClub | Aug 24, 2015 1:05:36 PM

It is my experience that intelligent, 'qualified' individuals, fresh from law school, are anything but a reliable source of advice. Incompetent? No. But the idea that a fresh faced graduate, from any school, is arguing a decisive point ex-parte is a touch frightening. The gravity of the situation requires expertise, not on-the-job training. In a similar manner, I suggest law clerks, like the judges they serve, require tempering.

This is not to say that I look down upon judges who decide to take it upon themselves to become mentors. One hopes such judges remain ever cognizant of their students' limitations. But, I'm puzzled why judges should be *expected* to assume the role of mentor for a tiny fraction of a fraction of law grads.

Posted by: Glenn | Aug 24, 2015 1:22:05 PM

I clerked for a USDC judge who wouldn't hire clerks with less than two years of experience, and he usually had someone on hand with 5+ (and occasionally 10+ -- one of his new incoming clerks is a partner at a V20 firm) years. I didn't, and I don't think my colleagues did, think that choosing an alumni clerkship put anyone in a "tough spot." Some of us were using the clerkship to move from one type of employer to another (frequently private practice to the government, but at least in one case I know of, the reverse). Some of us were midlevel or seniorish associates who -- to the best of my knowledge, accurately! -- evaluated that a clerkship would not hurt our standing within the firm if we wanted to return.

So we got the benefit of having a relatively cushy stepping stone (or timeout), and at decent pay -- the federal pay scale is around $90k with two years of experience in most major cities, and $120k in NYC and SF. And the judge got the benefit of having experienced lawyers help him with his work.

Posted by: Former alum clerk | Aug 24, 2015 1:35:57 PM

It is also important to point out in this discussion that many public interest jobs and fellowships both in the government and for non-profits either explicitly or de facto require a federal clerkship, and so the trend toward alum clerks makes it even more difficult for public interest students to begin their legal career working in the public interest. As a corollary, the incentive structure for current law students (which is already heavily skewed toward biglaw) will only further increase the attractiveness of starting one's legal career in biglaw work directly after law school.

Posted by: Alum | Aug 24, 2015 3:22:02 PM

I don't understand a couple of these points.

If it doesn't make sense given a person's goals to clerk, she won't clerk. Presumably someone else will. I don't really see how you can say it's bad for the clerk, when those who get the job are those that specifically try to get a clerkship.

Similarly, how in the world would employers determine who has a high chance of applying for a clerkship in a couple of years, in order to discriminate against her upfront?

The upshot of some of these complaints seem to be "I have someone in mind, and given these changes she probably won't want clerk." But it is hard to see that as problematic. Judges clearly think they are getting better clerks, the people getting the clerkship are happy to be getting them -- what's the problem?

To the extent this is a pipeline problem, that's just one more reason the legal profession shouldn't be so obsessed with prestige that the wrong resume acts absolute barrier to entry for entire swaths of it.

Posted by: brad | Aug 24, 2015 5:58:40 PM

"Such a clerk, who knows more than a recent graduate, may be of greater help to the judge in chambers. But she also becomes less of a mentee or student-trainee."

Having experience enhances the learning experience, it doesn't detract from it. Rather than looking back years later and realizing "ohh, now I see why I was learning that!" the clerk can understand what they're learning in real time.

Posted by: Derek Tokaz | Aug 25, 2015 8:25:48 AM

I disagree that this is an unfortunate trend.

My judge typically hired one law clerk straight from law school and one law clerk with at least a few years of practice experience. I was the "experienced" clerk during my year, so I am biased, but it seemed to work well.

Clerking after a few years of practicing is actually easier for some than clerking straight out of law school would be. Personally, I was in a much better financial position after a few years in BigLaw, and better able to give up the extra income. Also, many clerking positions pay significantly more for clerks with practice experience than for those straight out of law school.

As to the post-clerking options, at least some law firms encourage their associates to clerk, keep an open door for them to return, give them a significant bonus if they do return, and give them partnership credit.

Finally, and probably most importantly, I think I was a much better clerk with a few years of practice experience under my belt than I would have been straight out of law school. (I also think I learned more in the process.)

All of that said, I don't think hiring clerks straight from law school should be eliminated, for many of the reasons you mention.

Posted by: Haskell Murray | Aug 25, 2015 9:07:32 AM

It was me, it was me, I wrote the thing about House. http://prawfsblawg.blogs.com/prawfsblawg/2009/03/is-working-for-house-like-clerking.html

Posted by: Jay Wexler | Aug 25, 2015 9:36:03 AM

And that's why we're planning on having you back later this year.

Posted by: Howard Wasserman | Aug 25, 2015 9:50:31 AM

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