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Monday, October 10, 2022

Overdetermined at 22

Criticisms of Judge Ho's so-called boycott of Yale students for clerkships seem to me somehow unnecessary, because the thing itself is so obviously wrong. But I think it's worthwhile emphasizing two points made in this post by Jack Goldsmith, because it makes points seen less often elsewhere and in doing so makes larger points about the American law school--and law school commentary--universe. Goldsmith writes, in part:

Ho's boycott, if successful, will unfairly hurt conservative students at Yale even though it only applies prospectively....[T]he proposal would still punish conservative students who attend Yale but who were not aware before choosing a law school about the adverse implications for a clerkship years later. It would also punish those students who come to law school without well-formed views about judicial philosophy and over the course of law school develop a conservative judicial disposition.

Quite right, on both points. In reverse order: 1) The average law entering law student is in the neighborhood of 22-24. Many law students enter their first year straight from an undergraduate degree, or with a year or two of work in between. Meanwhile, despite the occasional effort to push back, the clerkship decision--both to apply and to select the clerk--is pushed back ever further. Of course many students have a "politics" and for some of them a good portion of their life has been formed around those politics. But it should hardly be assumed that most students of this age have a fully formed politics, or that those politics are firm, or indeed that they have much of a politics at all. To select for a "liberal" or "conservative" law student of that young age is to over-select those who are highly committed or highly shallow--or, and perhaps even most likely, both. Correspondingly, it under-selects for those who have other interests besides politics, or have not formed a deep set of politics and are wise enough to know it. It also arguably under-selects for those prospective clerks whose primary interest in the law is in the law, as a deep and involving subject of its own, and not in the law as a vehicle for the achievement of their (quite possibly shallow, inexperienced, and underdeveloped) politics and a further credential on the road to party apparatchik status.

2) No doubt Yale and other elite schools, more than most law schools, are populated by students who already know what they're doing--who already have plenty of advice and lore and inside baseball under their belts. Among other things, they knew enough to apply to Yale, notwithstanding the cost of the education and the costs involved in moving. (See "hierarchy, reproduction of.") Many prospective or entering law students do not. They might be brilliant and full of promise. But they do not know the extent to which one's choice of law school matters and how--that it affects one's clerkship prospects, job opportunities at certain kinds of firms, prospects as a law professor, and so on. Perhaps they are first-generation college students, or first-generation law students. Perhaps they aren't but simply aren't fully acculturated into our somewhat bizarre educational ecosystem. Surely even some of those who end up at Yale either do not know when they select from among law schools that they might want to clerk, or why they might benefit from clerking, or even that this is an option. It's certainly true for many law students in many places. Nor, even if they have such an interest, do they yet know how to go about it and what things they might want on their resume in order to enable to make judges to make shallow judgments about that student's "politics." 

Judges are free to decide that they are not interested in students in either of these piles and would rather economize or eliminate risks by ordering someone ready-made, who at 22 already has an allegedly fully formed politics, an allegedly fully formed legal politics on top of that (since the two need not be precisely the same), and on top of this already has a full stock of appropriate connections and social and cultural capital. Based on a couple of decades of experience with my students at various sorts of law schools, I cannot help but think that judges who go this route are both missing an enormous number of great potential clerks, and risking over-selection of the kinds of clerks who are assuredly "bright" but might or might not match some of these others in depth of interest in the law, in wisdom, in commitment, and in the capacity for growth and to be surprised in and by life. 

What strikes me particularly is the "them that's got shall get" aspect of the conventional approach and of Ho's unfortunate contribution to it. (It is hardly limited to clerkships, of course. Even among those who already have a fair amount of cultural capital, things like fellowships which now act as a primary route to teaching, serve to funnel more inside information to a small number of people who already knew to apply for fellowships. They enhance the qualities of those fellows, up to a point--not all the accepted lore and advice in these communities, it seems to me, is good or accurate--but also further concentrate that information, and that then exacerbates the credentialism, risk-aversion, and conventionality of law school hiring.) The Internet, where Ho's announcement has drawn the most attention, democratizes all this to a degree. But my overall sense is still that Ho's announcement was a piece of inside baseball, retailed to the kinds of listeners and media sites where and for whom inside baseball is already common, to be consumed and enjoyed (with outrage being one form of enjoyment) by those who are already into inside baseball. I think Ho's speech, and any resulting actions, are more likely to achieve nothing at all than anything in particular. But if they did, the losers would be the folks Goldsmith is referring to: those who might contribute to any judge, including conservative ones, and to the work of the courts altogether, despite--or because of--the fact that at 22, they don't already have an off-the-rack politics and set of ambitions, or knowledge about how to signal it with the appropriate shorthand. 

Posted by Paul Horwitz on October 10, 2022 at 02:22 PM in Paul Horwitz | Permalink

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