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Monday, May 13, 2013

Honoring Judge Jane Roth

Image1 Last Friday, the Third Circuit unveiled a portrait of Judge Jane R. Roth, which also doubled as a clerk reunion (which I, unfortunately, missed on account of travel SNAFUs at Miami's airport Friday morning). Judge Roth was appointed to the District of Delaware in 1985, elevated to the Third Circuit in 1991, and took Senior status in 2006. I clerked for her in 2000-01.

In the exchange of emails that lead up to the event, I was struck by the number of former clerks who went into teaching--by my count (and I apologize if I missed anyone--I am going by "edu" email addresses), there are 13 law professors (including GuestPrawfs Chad Oldfather and Miriam Baer), one anthropology professor who teaches in both a law school and Anthro department, and one professor of medicine. Judge Roth has had 78 total clerks (including the three clerking for her right now), so that means 75 former clerks, 15 of whom (20 %) went into teaching. This struck me as a lot, although I could be wrong. Judge Roth was never a full-time academic, so she is not necessarily a judge whom a clerk with clear academic aspirations would target (beyond being incredibly smart and a great judge). We talk a lot about feeder judges to SCOTUS; it would be interesting to identify feeder judges to the academy, particularly by separating out those judges whose clerks go on to teach without stopping off at SCOTUS (so we are not conflating SCOTUS feeders with academy feeders).

The run-up to the ceremony also reminded me that my fascination with the jurisdiction/merits divide was, if not born, certainly nurtured during this clerkship. One of my favorite cases of that tern was Powell v. Ridge, which arose out of a lawsuit alleging that the state system for funding education violated Title VI. Several state legislators intervened as defendants, then asserted legislative immunity from having to respond to discovery; when the district court denied immunity, the legislators sought to immediately appeal under the collateral order doctrine. The majority held there was no appellate jurisdiction because the immunity the legislators were asserting did not exist. Judge Roth concurred in the judgment, agreeing that the asserted immunity did not exist, but insisting (sound familiar?) that this went not to the court's appellate jurisdiction, but to the substance of the asserted defense. Instead, she argued, we had appellate jurisdiction because the asserted immunity was "legislative" (which is immediately appealable under the C/O/D), but the district court was right to reject the immunity.

Update: I received an email from one of Judge Roth's 2024-15 clerks, who hopes to go into academia. He said his teaching aspirations came up during his interview with the judge and she talked about the number of clerks who have gone into teaching. So she is aware of the trend and uses it as a selling point for the clerkship.

Posted by Howard Wasserman on May 13, 2013 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink


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Interesting question, Howard. I would guess the trend reflects the judge's own interests, as Miriam suggests: A federal circuit judge can offer clerkships to applicants who seem to have interests in academia (based on resume indicators such as student notes, articles, RA positions, graduate degrees, etc).

Posted by: Orin Kerr | May 14, 2013 12:34:46 AM

Howard--you undercounted. I know of at least one other who doesn't use an .edu address. I'll second Miriam's statement that clerking for Judge Roth was one of the best and most collaborative work experiences I have ever had. I've been very proud to be able to send my own students to her as clerks.

Posted by: Adam Levitin | May 13, 2013 8:39:24 PM

We missed you Howard. It was a wonderful ceremony and Judge Roth is as sharp as ever. In addition to academics, there were many public servants in the audience (of mostly former clerks), most of whom had positions within various federal agencies. There were also several firm partners present (including one of my co-clerks).

As is probably the case for many judges, Judge Roth's selection of clerks reflects her own interests, which are wide-ranging and diverse. They also reflect her desire to bring together clerks with different viewpoints and backgrounds. My two co-clerks and I hailed from different states, different law schools, and had already had different work experiences by the time we set foot in Judge Roth's chambers. It was one of the best -- and most collaborative -- work experiences I ever had.

Posted by: Miriam Baer | May 13, 2013 4:47:23 PM

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