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Thursday, May 03, 2018

"Clerking for Grown-Ups"

I very much enjoyed writing this paper, and I hope the few people who read it enjoy it as well. It is partly a tribute to my former boss, Ed Carnes, current Chief Judge of the United States Court of Appeals for the Eleventh Circuit, for whom I clerked in 1998-1999. It is part of a tribute to him in the latest issue of the Alabama Law Review, on the occasion of his twenty-fifth anniversary on the bench. (The issue also includes some terrific papers resulting from a Law Review Symposium on Harper Lee.) But it is largely a reflection on clerking and the clerkship culture, and its influence on the wider legal, and legal academic, culture. In its own clumsy way, it is an effort to use the tribute format not for the standard (and, for the reasons I offer in the essay, perilous) encomium, but to engage in useful and critical reflections about a particular judge and about American legal culture more generally. Having praised that approach to judicial tributes here, I had no choice but to adopt it myself. Here is the abstract:

This essay is in part a tribute to my former boss, Chief Judge Ed Carnes of the Eleventh Circuit, for whom I clerked in 1998-1999. But it is largely a reflection on clerking and the clerkship culture itself, and the effects of that culture on the wider legal, and legal academic, culture in the United States.

The tributes by former clerks to judges that appear in the pages of law reviews are most likely to celebrate the judge as a heroic figure, and to exalt judges who: 1) cultivate a familial rather than a more formal and mundane relationship with their law clerks; 2) engage in judging as a "mission," seeking to advance particular (generally politically tinged) values in law and viewing other judges or courts as obstacles to that mission; and 3) treat their clerks as junior or even full partners in that mission. Law clerks who find that their clerkship is actually more mundane or workaday in its nature, that their judge does not cultivate a familial relationship with them, and that his or her vision of the judicial job is not "mission"-oriented may find that reality disappointing. Even if these workaday relationships are the norm, they are less likely to fill the law reviews than the romantic and familial vision of clerking. That vision has tremendous visibility and influence in the legal, and legal academic, culture. One reason for this may be that such judges are more likely to select for individuals who are skilled at seeking out, cultivating, and serving powerful mentors, that these clerkships are more likely to culminate in elite positions in the legal profession and academy, and that this process and vision then perpetuates itself.

In this essay, I argue that whatever rewards this romanticized vision offers, it has dangers too. It breeds a sense of lifelong clerkship, in which much of one's career, including a career in legal academia, is spent writing apologia for one's own judge or a particular kind of judge and thinking from the perspective of the judge or law clerk. Even if the work that results from that perspective is excellent, it may be immature. The American clerkship culture is one of hero-worship. It encourages an enduring adolescence and risks a failure to achieve full adulthood and independence. At its worst, it is unhealthy--for the clerks, for the professionals they become, for the judges themselves, and for the wider legal and legal academic culture. (It may also be true that "familial" clerkships have particular dangers, both for the clerks and for the judges who cultivate such relationships.) For developing a measured, independent, adult perspective on law and judging, there is much to be said for the more unsung clerkship: the clerkship in which the job is "just" a job, not a romantic mission or battle for justice; in which the relationship with one's judge is a "mere" professional employment relationship, not a familial one; and in which one receives a good education in the law but not conscious cultivation as a lifelong ally or acolyte.

It's shorter than the average law review article (a low bar, admittedly), if longer than any "tribute" has any right to be. I hope you will enjoy it just the same. There is much to disagree with in it, no doubt, but I hope it also provides some cause for useful reflection and discussion.     

Posted by Paul Horwitz on May 3, 2018 at 09:18 AM in Paul Horwitz | Permalink

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