« A Changing Vantage Point | Main | Effective v. Enforceable »

Wednesday, November 16, 2022

Why Not Just Do a Better Job of Outsourcing?

Sasha Volokh, expanding on a quote he gave in a short piece in the Washington Post, offers some reasonable thoughts on the question of educational diversity and Supreme Court clerkships. He poses the question as follows: "Given all that, what should a hiring judge do, who is busy, has a huge pile of resumes to go through, and has very limited information? Is there enough of a correlation between law school ranking and likely clerkship quality that judges should use the law school ranking as a strong factor in their decisionmaking?" He concludes that "[I]t's a not unreasonable preference for U.S. Supreme Court Justices who are busy and have to make decisions based on very incomplete information; I might well do the same if I were a Supreme Court Justice."

As I said, this is reasonable. I am more inclined to mild agreement than to disagreement. But it doesn't seem sufficient--and the more I think about it, the more insufficient it seems. I would have thought that to the extent that we value educational diversity in Supreme Court clerkships--and I do, although I'm not sure how terribly important it is who gets to serve as a Supreme Court clerk--the answer to the question, how do I get there despite the competing demands on my time, would be the same answer we give in other situations where a decision-maker has limited time: to delegate or outsource, or delegate or outsource more, with that goal in mind. 

I have in mind a few different kinds of outsourcing. As Sasha notes, the preference for an extraordinarily narrow and rather parochial band of law students does not hold as strongly on the federal circuit and district courts or on the state courts. And he also notes that the Justices are presumably looking for "the standard characteristics that judges value in clerks: better able to read and understand a lot of complex law stuff, better able to write clearly and persuasively, etc." Fair enough. Doing well at a prestigious and competitive law school is an okay proxy for standard characteristic that judges value in clerks.

As it turns out, though, doing well as a clerk--in other words, actually displaying characteristics as an actual clerk that an actual judge values highly--is an even better way of identifying the presence of characteristics that judges value in clerks. The justices already outsource a good deal of their clerk-selection work, as well as training, to other judges. It is well within their power to outsource even more. And if they value educational diversity but value their time more, they are free to tell judges who would like to see their clerks going on to spend a year working at the Court that they, the justices, want those clerks to come from a wider range of schools, and without any loss in quality. It's true that by way of further economizing on time, some justices rely on particular "feeder" judges. The justices are similarly free to tell those feeder judges that if they want to continue "feeding," they had better work harder to find law clerks from a wider range of schools who are excellent, or train them into excellence. Presumably some of those feeder judges will be willing to do so, for the sake of advancing their clerks, maintaining their prestige and relationships, or for other reasons--including that they agree with the sentiment and, given the push, would be happy to work harder to see it happen. If not, as Bud White would point out, there will be ten more judges willing to take their place as feeders.  

Lower court judges are not the only source to outsource to. To the extent that the current justices use clerkship selection committees, they are free to demand of those committees that they seek and find the best possible prospective clerks who have graduated from somewhere outside the usual-suspect schools, at whatever additional cost in time and effort, and provide further grooming if and as necessary. Most justices used to wholly delegate their clerkship selection, and managed to find perfectly serviceable clerks. They relied, to be sure, on Harvard or Yale professors selecting Harvard or Yale students. But the justices now have more clerks who end up teaching in a wider range of schools--and the students they recommend will, unlike many of that earlier generation of clerks, have already gone through substantial training in judicial chambers elsewhere. In any event, it doesn't matter where the people to whom they delegate clerkship selection are teaching, if they are teaching at all. It just matters that they be instructed to increase their time and effort in order to find suitable prospects somewhere other than the usual 10 or so schools. If that means making a lot of calls to colleagues at other schools or traipsing around the country, so be it. That's not the justice's problem.   

Doing well as a law clerk is, as I said, a pretty darn good way to spot someone who has the characteristics of would do well as a law clerk on the Supreme Court, and a more accurate way than just looking for someone who did well at a usual-suspect law school. That is one reason the justices don't just pick clerks fresh out of law school anymore. Really, in looking for their clerks from among the ranks of people who have already clerked, they are delegating two things: search costs, and training costs. We might also say of this trend that they are outsourcing to time: rather than reducing their search costs by looking to a particular school, or in addition to doing that, they are reducing those search costs, and reducing the error costs that result from "incomplete information," by looking to candidates who have already had to hone and demonstrate their legal skills by doing actual legal work. But there are still other ways of spotting prospects, other qualifications or experiences, that are more accurate than just looking at law school performance.

One, unsurprisingly, is actually practicing law. Nor is it surprising that justices have realized this and have increasingly hired law clerks who have practiced law for a few years, or even practiced and then taught law for a few years. (It's not surprising for a second reason, which is that the phenomenon also reflects the increasing bureaucratization, professionalization, and depersonalization of the judicial system. Judges are welcome to talk about the chambers "family" and such stuff. But the judicial system is indeed a very large system, chambers are not families or hereditary fiefdoms but miniature firms, and judges should--and their actions en masse suggest that they increasingly do--act accordingly. That means hiring lawyers to serve as special-assistant junior lawyers to the justice.) It is easier and more reliable to say of someone who has performed exceedingly well at an appellate firm or in the Solicitor General's office that she has the "characteristics" of an excellent appellate law clerk than to say it of someone who did super-well in her first year of law school. That's true even if the excellent appellate lawyer graduated from Podunk U and the first-year student excelled at one of the usual-suspect schools. So another option for justices who value educational diversity is to use their ample knowledge of and relationships with law firms and government legal offices that specialize in the kinds of skills they're looking for, urging those employers to talent-spot from a wider range of schools and pass along their best young prospects.

Sasha's reasonable opening premise is that justices rely on a small number of schools because they have limited time and incomplete information. It's clear that judges are already using a variety of means, such as insisting on prior clerkships and looking at prospects with a longer amount of actual legal experience, to reduce the "incomplete information" problem. And we might also view all of this as a form of reducing search costs--specifically, reducing them by making other people, such as feeder judges and law firms, put in the time and work of finding and training the folks who eventually end up spending a year or two on First Street. My suggestions involve giving new search criteria to lower court judges, clerkship selection committees, and legal employers, and insisting that they maintain the same quality level but look more widely. I am thus also suggesting that all these delegates be given a more demanding and time-consuming job than the one they currently do. But I'm not sure why this is a problem. Or, to be more accurate, I'm not sure why it's my problem, or the justices' problem. They are apparently already quite content to ask others to work hard on their behalf. Asking others to work even harder on their behalf does not seem like much of a stretch, especially in light of the fact that many of those people might agree with the goal of enhancing educational diversity in the Supreme Court clerkship population. Indeed, as is often the case with bureaucratic institutions--and this is essentially what we're talking about here--those subordinates might be eager to increase clerkship educational diversity, and welcome the instruction from the delegating justice to do so, even if that entails additional work. Sometimes the reason something doesn't happen in an institution is that everyone wants it to happen and is willing to work harder to see it happen, but everyone is waiting for a first mover. 

But let's say that's not the case. Let's say the justice's delegates would rather look only at usual-suspect schools, or would rather not incur additional search costs. Let's say the justice wants educational diversity but, to do so, is going to have to make others suffer more, lose more time given over to the task of ensuring it, and perhaps even lose some of her own already-limited time and have a more unpleasant life as a justice. My answer is roughly the same: So what? The burden on those delegates sure ain't my problem, and it doesn't seem like much to suffer for the pleasure and privilege of serving as a delegate. In some cases, it's a burden the delegate ought to be taking on anyway. Elite law firms or government offices, for instance, may prefer to look at only a few schools when hiring, but I think that's a lousy preference and they should be pushed to alter it. Just as institutional clients are increasingly demanding that law firms hire and staff their cases for diversity, and in doing so may alter those firms' hiring practices despite settled and perhaps lazy habits, so the justices' insistence on educational diversity in the serious-prospect clerk pool can do the same--for firms, for elite government legal offices, and for lower court judges, especially those "feeder" judges who enjoy holding and passing along the keys to the kingdom. As for the justices themselves, if the reason judges run to Harvard and Yale for their clerks is to save time in a crowded schedule, one answer to that dilemma is: spend more time looking more broadly, suffer a more inconvenient life accordingly, and perhaps burn out more quickly. Being a Supreme Court justice is not supposed to be a pleasant job and certainly ought not be a lifetime job. And there's always another bus pulling in to the station.

I should be clear that none of this is an assault on Sasha's position. His views are, as I said in my very first sentence, reasonable. He may, for all I know, agree with most or all of what I've suggested here. And conversely, despite everything I've suggested here, I understand and, in a rather abstract way, agree with the general proposition that it is reasonable--or, as he rightly puts it, "not unreasonable"--for a justice to economize on time and compensate for incomplete information by relying on the usual-suspect schools in selecting law clerks. I just don't think that's enough, and as I think about it, it seems to me nowhere near enough. For one thing, as I've suggested and as we all know, judges already don't consider that sufficient and already do more than look at where their clerk prospects went to school. And the kinds of things they do look at or insist on, such as proven skill as a law clerk and, increasingly, proven skill as a law clerk and practicing lawyer, suggests that they already recognize the rather substantial space between "not unreasonable" and "a good and sufficient idea." Indeed, it's quite possible that those criteria now do most of the heavy lifting in clerkship selection, with the prospective's law clerk just serving as a very rough and imprecise first cull of the applicant pool. The less work the school does in actually sorting the pool for quality and suitability, the less reason there is to think of it as being anything more than "not unreasonable" at best, and the more reason there is--if we value educational diversity in law clerks--to use other measures of culling the pool, even if those measures involve giving different instructions to one's delegates and insisting that they do more work. Those delegates have plenty of incentives to do the extra work, may themselves believe that the goal of educational diversity among the Court's law clerks is worth incurring that extra burden, and certainly have plenty of competitors who would be willing to take their place even if substantial labor were involved. 

Of course two or three things are possible in explaining why this doesn't happen more. One is that judges, like everyone else, may be acting "not unreasonably" but also lazily, relying on custom and habit whether it comports with their normative preferences or not and whether or not the custom and habit make all that much sense.

Another is that the justices may not especially want or care about educational diversity among their law clerks. Some justices clearly and explicitly do, but most may not. That is perhaps understandable, given that the justices themselves are selected from among an extremely narrow band of law schools, for reasons that honestly don't make much sense politically or even practically. One reason for that, in turn, might be that although elected officials with law degrees are themselves likely to come from a broader range of schools, their top staff, who are charged with finding prospective justices, may come disproportionately from the usual-suspect schools and, whatever their ostensible political views, make usual-suspect elitist assumptions about credentials and clubbability, and about talent and where to find it. As is usually the case with the reproduction of hierarchy, the old TV-commercial phrase "You're soaking in it now" seems appropriate. Perhaps they care about it enough to pay lip service to it, including by insisting that the only reason they turn to the old standbys so often is to save on time and ensure consistent quality. But there are lots of things to do about that, many of which they already do, and they could indeed always spend more time and suffer a little more for it--or make their delegates do so, at little or no cost to their own time. So it may be the case that they care about educational diversity a little--but not much, and not enough to do much about it. Some candor about this, from the justices or their delegates, might be refreshing. The phrase "my conduct with respect to educational diversity among my law clerks is not unreasonable" is perfectly consistent, given the scope of a phrase like "not unreasonable," with "I really can't be bothered to do more." It's human, unattractive, and honest. 

A third possibility is that whatever lip service the justices, or others, pay to the idea that terrific law clerks can come from many law schools, or perhaps any law school in the country, they do not actually believe it. They may sincerely believe that those two, or five, or ten law schools are not only the best law schools in the country, but also the sole repository of the best law students in the country. They may sincerely believe it, but not openly believe it. It is relatively rare to find someone like Justice Scalia, who said when asked about this, "By and large,...I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest." (Note his enjoyable distinction between having the best students and actually being the best schools for training lawyers.) But it may be that many people do in fact agree with Scalia, including most of the current justices--and many others off the Court, including the many judges, professors, and others who participate in or influence the system of clerk and judicial selection. 

Most of us, at least outside the top ten schools, have said countless times that our best students are at least the equal of the best law students anywhere in the country. One reason we say this is because we think it's true, having seen how terrific these students are; I have taught at six different law schools, with widely varying student bodies and US News or other rankings, and think it's true, although in my experience, it's also true that what we might think of as the law-related social capital of those best students does indeed vary between schools. Another reason we say it is that it's encouraging to the students, diplomatic to our colleagues and others, and just plain prudent to say so. But it's far from clear to me that our revealed preferences are consistent with these kinds of statements and beliefs. And the justices' actions, for the most part, are not consistent with them either. Sasha, with an assist from Scalia, suggests a reason why one might think otherwise: the top schools are able to admit the students with the best metrics, everyone cares about those metrics and thinks they have real descriptive and predictive value (despite whatever they may say to the contrary), and then those best students are thrown into competition with each other and the very best emerge from that competition. It is, in particular, the competition between and consequent sorting among those high-metric students that does the work, with maybe a little law-teaching making a small contribution and a lot of law-exam grading making a very large one. (I am sure the faculty at top-ten schools will be glad and proud to know that, on this view, the primary and overwhelming contribution they make to what one of those schools calls "mak[ing] an impact in the world at large" and Justice O'Connor called "the path to leadership" is...grading exams.) The top student at second-tier school X may be absolutely extraordinary. But she didn't have those metrics, and so is not that great; or she had the metrics but not the competition, and so...is not that great.

Scalia aside, not many people say this. Although he initially frames the question in terms of economizing on time and dealing with incomplete information, and despite saying that he has had "Supreme-Court-quality students here at Emory," which is not exactly a bottom-of-the-barrel school in any event, Sasha does say something like this in his quote in the Post story, in which he says, "I really would trust an A-student at Harvard or Yale more than I would trust an A-student at Emory to be a Supreme Court clerk." Quotes may be taken out of context, but he says something similar in his post: "[I]f you look at a Harvard student and a lower-down-school student with identical credentials on paper, including identical grades or class ranks, identical-sounding recommendations, etc.[,] the Harvard A student is likely to be a better clerkship hire." These statements aren't just about search or information costs, it seems to me. (They are also not relevant to Supreme Court clerkships, it also seems to me, because at that stage you are already looking at more indicative information, such as how they performed for a lower court judge or in practice. At that point, they are being observed by an experienced judge or practicing lawyer and directly compared to other clerks and young lawyers from that and other years, including clerks and lawyers from the usual-suspect schools.) In any event, whatever they might say about the not-unreasonableness of sticking with a few schools because of time constraints, relatively few people would say that the top students at those schools are just better than the top students other than those at about ten out of some 200 law schools, full stop. 

Perhaps that's because not many people actually believe it. But I think the number of judges, law professors, and other gatekeepers who do believe it is a good deal larger than the number who say it. If we leave out the question of "law-related social capital," especially in light of the fact that at the Supreme Court clerkship stage the social capital gap has narrowed because we're talking about prospects who have started amassing that capital as clerks or in practice, I think it's not true. But the flip side of my earlier doubt about how important it is who gets to serve as a Supreme Court clerk is that I doubt it it would hurt the sound development of the law if the person clerking there got her A's at Emory, or Alabama, or a great many other schools, rather than Harvard, especially in light of whatever else they've done since graduating. I think it would be good for the Court and the justices, and a good in itself, if they did indeed do a better job of looking more widely and achieving greater educational diversity in their clerk hires. And given the interconnectedness of the legal system and its credentialist hierarchy, I think it would also redound to the benefit of better, smarter, and fairer hiring by lower court judges and by elite law firms and government legal departments. (And perhaps, eventually, deus volent, by law school faculty hiring committees.) Personally, I don't particularly care if it means the justices have to work harder, spend more time, and take more risks. But given the enormous amount they already outsource and the ease with which they can make educational diversity, with any additional costs imposed on their delegates and not themselves, I can't see why they don't do a better job on this without incurring much of cost or risk. Unless they either don't care, or have what at that point, given all the other and more reliable inputs, would be a far less rational preference for usual-suspect graduates. Which is not "not unreasonable." 


Posted by Paul Horwitz on November 16, 2022 at 12:45 PM in Paul Horwitz | Permalink


The comments to this entry are closed.