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.