The Volokh Conspiracy

BYU Law Professor Aaron Nielson has an excellent National Law Journal column on the collapse of the federal judicial law clerk hiring cartel:

Law students everywhere, be warned — the Federal Judges Law Clerk Hiring Plan is dead. If you want a clerkship, don’t think you can wait until the fall of your 3L year to apply. You can’t. To maximize your chance of getting hired, you should apply much earlier. The U.S. Court of Appeals for the D.C. Circuit’s announcement last week that its judges will not follow the plan is the coup de grace, confirming what insiders have known for years: the plan does not work. Applicants can’t count on judges to follow it. The “graduate loophole” means there are fewer slots for students. And instead of curbing “exploding offers,” the plan encourages them. Students, law schools and judges alike should be thankful that this failed experiment is finally coming to an end....

Considering the plan’s real-world effects, and not just its lofty aspirations, no one should mourn the plan’s passing. All the good intentions in the world won’t make it work. The system before the plan was not perfect, but at least it was honest. No one had to hide, and everyone played by the same rules. The D.C. Circuit is exactly right — if we can’t have order, we can at least have transparency. Until the last vestiges of the plan are gone, however, law students everywhere, be warned.

For the reasons Nielson indicates, the collapse of this cartel is a positive development. In addition to the points he makes against it, there is the fact that the cartel gave an undesirable advantage to judges on the East Coast. Because of the extremely compressed nature of the hiring season, applicants could more easily interview with the large number of judges concentrated there than with those spread out over other parts of the country. The resulting time-pressure also makes it difficult for judges to study all the applications that come in at all closely, thereby advantaging applicants from the most highly-ranked law schools, since sorting by school is a quick and dirty way to cut down the number of applications that the judge and his staff have to closely scrutinize.

These and other distortions created by the cartel damaged the public interest as well as those of law students and non-East Coast judges. It is better for the public if top law clerks are spread more evenly around the country as opposed to concentrated on the East Coast (law clerks play a crucial role in drafting judicial opinions, many of which become important precedents). It’s also desirable if judges have more opportunity to study the applications and make more accurate choices. Other things equal, increasing the quality of clerks should improve the quality of judicial opinions. At the trial court level, it might also improve the quality of trial management.

Several previous law clerk hiring cartels have collapsed for much the same reason as this one over the last 25 years. But history suggests that the judges will likely try again in a few years. We’ll have to see if the next iteration of this idea is any better than the last. So far, despite the good intentions of many of the idea’s supporters and developers, it has not had a good track record.

NOTE: Aaron Nielson, co-blogger Todd Zywicki, and I are all former clerks of Fifth Circuit Judge Jerry E. Smith, a longtime critic of the law clerk hiring cartel system, and the questionable practices associated with it, such as “exploding offers.” Todd gave his thoughts on the cartel in this 2010 post.

Judge Smith criticized a previous iteration of the cartel in this 2003 interview:

The current hiring plan, proposed by a group of resourceful, well-intentioned judges, will fail, sooner or later, because a “one size fits all” scheme isn’t suited to the diverse body of federal judges in the various circuits....

Any plan with tightly defined deadlines benefits mostly the judges in the I-95 corridor between Boston and Richmond, where students can schedule a large number of interviews in a compacted period of time. A system without deadlines is the best market, because it recognizes the geographical and personal differences among judges, law schools, and students, and affords the greatest opportunity for judges and applicants to evaluate each other.

The drafters of the proposed plan candidly recognize their failure to eliminate the very worst element of the present law clerk hiring system, which is the “exploding offer,” whereby an applicant is given no time, or only a day or so, to accept a judge’s offer. I don’t give exploding offers, because they are unfair to the applicants. I want anyone applying to me to take whatever time he or she needs to explore other options before deciding to accept my offer. Exploding offers are largely (but not exclusively) a product of judicial ego; there are too many judges who can’t stand the thought that an applicant would hesitate before accepting his or her offer. That offensive element of the present system needs to be abolished.

As Nielson points out in his op ed, the incentive to give “exploding offers” is exacerbated by the cartel.

UPDATE: It turns out that the plan criticized by Judge Smith in 2003 was an early version of the present cartel, rather than a completely separate one. I apologize for the error.

Jonathan links below to Adam Liptak’s front-page New York Times article on the ideology of law clerks, and Jason Mazzone’s critique of it. Echoing the point at the end of Mazzone’s critique, I think the ideology of law clerks roughly matches that of the Justices because the Justices are trying to solve the principal-agent problem. As Wikipedia explains:

In political science and economics, the problem of motivating a party to act on behalf of another is known as ‘the principal–agent problem’. The principal–agent problem arises when a principal compensates an agent for performing certain acts that are useful to the principal and costly to the agent, and where there are elements of the performance that are costly to observe. This is the case to some extent for all contracts that are written in a world of information asymmetry, uncertainty and risk. Here, principals do not know enough about whether (or to what extent) a contract has been satisfied. The solution to this information problem — closely related to the moral hazard problem — is to ensure the provision of appropriate incentives so agents act in the way principals wish.

Supreme Court Justices solve the principal/agent problem by tending to hire law clerks who generally agree with their bosses’ views of the law. That agreement gives the Justices more confidence that their law clerks will be faithful agents without the Justices having to engage in costly monitoring of law clerk performance.

I think this happens roughly equally among the liberal and conservative Justices. The data Liptak presents misses this a bit by suggesting that the trend is more pronounced among the conservative Justices. Justice Thomas has never hired a clerk who worked for a Democratically-nominated circuit judge, Liptak notes. In contrast, Justice Breyer hires clerks who worked for GOP-nominated circuit judges on a regular basis. The numbers are accurate, but in my view, they don’t reflect a greater willingness among liberal Justices to hire conservative clerks than conservative Justices have to hire liberal clerks. Rather, I think the numbers reflect the fact that the pool of today’s circuit court law clerks is considerably to the left of the pool of today’s circuit court judges.

Consider the dynamic. Because the pool of potential circuit clerks is more liberal than the pool of existing circuit court judges, ideological mixes between clerk and judges tend to be one-way. Specifically, it is common for many GOP-nominated circuit court judges to hire liberal clerks. After all, most of the applicants out there are liberal. Even if you slightly prefer conservative candidates, you’re likely to end up with lots of liberal clerks given the pool. In contrast, it is rare for a Democratically-nominated circuit court judge to hire a conservative clerk. (Not unheard of, but rare.) If you’re a Democratically-appointed circuit judge, and you slightly prefer liberal clerk candidates, you’ll find you have tons of qualified liberal applicants to choose from.

This dynamic then leads to the chart we see in the Liptak article with conservative Justices hiring almost exclusively from GOP-nominated circuit court chambers while liberal Justices have a more mixed record. If you’re a conservative Justice, you’ll find ideological matches only in the ranks of alumni of GOP-appointed circuit court judges. On the other hand, if you’re a liberal Justice, you’ll find ideological matches among the alumni of both Democratically-appointed circuit court judges and some GOP-appointed circuit court judges. To put some names on it, a liberal Justice can hire lots of Boudin clerks, and an occasional Kozinski clerk or Wilkinson clerk, without hiring a clerk who is actually conservative.

Finally, I should point out that all of this discussion is of course very much oversimplified. Terms like “liberal” and “conservative” are blunt and often misleading labels. Each Justice, and each clerk, has a wide range of views that often are hard to classify. Still, I think the oversimplification at least leads to some helpful generalizations, even if it’s important not to look at the problem with too simple a lens.