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"Want Your Opinions Questioned or Reversed? Hire a Yale Clerk":

That's the title of a paper that Royce de Rohan Barondes has posted on SSRN. Here's the abstract:

This paper analyzes the relationship between the law schools attended by non-permanent judicial clerks and the frequencies of two adverse signals assigned by Shepard's to their judges' opinions: either a negative (warning) signal (roughly equivalent to reversal) or a signal indicating the opinion's validity has been questioned. Using a sample of 12,966 opinions written by 95 federal district court judges, the portion of a judge's non-permanent clerks from Yale Law School is found to be positively related to the likelihood the opinion will have a negative (warning) or questioned signal, which is statistically significant at the 1% level. There is a negative relationship between the average reputation of the law schools a judge's clerks attended (better reputations being numerically higher) and the likelihood of his or her opinion having a negative or questioned signal, although that relationship is statistically significant in only some contexts.

As a Yale Law alum, I wish I could say that the paper's findings don't ring true. Alas, I cannot.

George Weiss (mail) (www):
i guess this is becuase lower pecking order students consider themselves following the law and higher ranked as those making it.

good reminder that we, in the judicial branch, are all following it when we can and making it only when we have to.
4.18.2008 5:54pm
Wayne Jarvis:
Interesting. But what does it mean? I would suspect that many to most of the top-notch (and maybe a lot of medium notch) Yale grads obtain appellate clerkships. Maybe this just means that a high achiever from a lower ranked school will become a better clerk than a middle-of-the-road grad at a higher ranked school. Would that surprise anyone?
4.18.2008 5:56pm
Adam J:
I don't think it's very surprising that clerks from better schools tend to perform less well on average. I think federal judges overvalue school prestige &undervalue school performance (as does just about everyone else). District judges tend to get lower performing students from the top schools- since the better students tend to go for the more prestigious appellate positions. Hopefully this article will lead to judges becoming more willing to consider well performing students from less prestigious schools.
4.18.2008 5:58pm
OrinKerr:
The results sounds plausible, but the methodology of the study seems off: If I'm not mistaken, it assumes that the district court judges who hire Yalies are just like the district court judges who don't, and that therefore that difference are due to the clerks rather than the judges themselves. Seems like a very weak assumption. It seems more likely that there is a relationship between the kinds of trial judges who don't mind being reversed and the kinds of trial judges who like to hire Yalies.
4.18.2008 6:02pm
Christopher M (mail):
It's a little strange to assume that causality runs in the direction implied by the title of the paper. Isn't it much more likely that those judges with high reversal rates (because they push the boundaries of the law, or because they're left-leaning in a right-leaning appellate environment, or whatever) tend to be the same judges who want to (or who can) hire Yale law clerks?
4.18.2008 6:03pm
Adam J:
OrinKerr- Is your assumption any less weak? I agree though, whether there's any real causality too this correlation is yet to be determined.
4.18.2008 6:11pm
Another Former Clerk (mail):
Clerks don't get reversed. JUDGES GET REVERSED.
I agree with Christopher M. It seems rediculous to attribute causality on this one. Judges who tend to push boundaries and, for better or worse, "make law," tend to also be higher profile (thinking of Reinhardt and Kozinski on the appellate level here....) and thus draw Yalies. Those judges also tend to get reversed more often because they're putting themselves out on the line more often. The clerk just happens to be there.
4.18.2008 6:12pm
Observer:
I wonder if the relationship still holds once one takes out the 9th Circuit from the equation.
4.18.2008 6:13pm
Clerk (non-Yale):
One piece of methodology that hasn't been noted (on this thread, anyway), is the assigning of significance to a Lexis/Westlaw "signal indicating the opinion's validity has been questioned." Granted, a red flag usually means an opinion's authority is substantially diminished. But a yellow flag? They give those things out like candy!

Once you get more than 10 or 20 citations to your opinion, it becomes more and more likely that someone will distinguish your opinion on the facts, explain what you didn't hold, or otherwise reach a different result without actually questioning the result in your case. Any of these type of citations, though they do not really question "the opinion's validity," appears to be sufficient to garner a yellow flag. (I am referring mostly to Westlaw, as that is what I am more familiar with; my sense is that Lexis is the same.) Indeed, if an opinion lacks a yellow flag, it usually (though not always) means that relatively few courts have cited it.

Thus, the data reviewed here merely indicate merely that the judges in question get more citations. This could be because they tend to make a point of writing opinions (rather than orders) in interesting cases. It could also be because the same reputational value that draws clerk applicants from "elite" schools also encourages other judges to cite their cases. (As opposed to the appellate courts, judges in the district courts, where other district court opinions are not binding, commonly include the author of an opinion when citing it, particularly if the author possesses a known expertise in the law or a general reputation for wisdom.)

Obviously, this study is throwing red meat to folks whose pre-existing sensibilities will be either confirmed or outraged by the suggestion that Yale grads infect judicial chambers with unprincipled, loosey-goosey "if it feels right, do it" lawmaking. But I really wonder if a study can tell us anything useful when it is based on the little yellow flags in commercial databases---a demonstrably and wildly overbroad indicator of whether an opinion has legitimately been "questioned".
4.18.2008 8:00pm
Clerk (non-Yale):
Okay, I just skimmed the paper (I know, duh, I should have done that before posting). I had forgotten that Lexis has a signal called "caution" that is more equivalent to the semi-useless Westlaw yellow flag. Apparently, the study does not rely on the "caution" signal, but only the two more serious Lexis signals.

Perhaps, then, much of my lengthy previous post is really stupid. I still think, though, that it is worth noting that a higher reversal/questioning rate could simply reflect that a judge is more likely to wrestle with difficult issues in published opinions, rather than reaching the same result in an unpublished order that will attract less attention from the court of appeals and/or other courts...
4.18.2008 8:15pm
with all due respect ...:
Why, out of all possible subjects that one could write about, does the author spend his time trying to "prove" that Yale grads are not as smart as people think they are? He got his J.D. 23 years ago. You would think that the chip would have fallen off his shoulder by now.
4.18.2008 10:43pm
Royce Barondes (mail):
To With All Due Respect:

Underlying your post is a thoughtful question. Perhaps I can provide a thoughtful answer.

It seems to me of interest to persons who study our judicial system to understand whether judicial clerks influence judicial outcomes (and one might also be interested in the extent to which various courses of study influence one's preparation to practice law). A question arises how one could measure that. Let me provide my answer: If we can find that characteristics of judicial clerks matter, that necessarily implies that clerks matter. So, this paper investigates whether a particular characteristic of clerks--the schools they attended--matters. The last sentence of the penultimate paragraph of the paper notes this: "That result supports the more general hypothesis that clerks themselves matter."

I have been a co-author of other empirical work that proceeds using a similar approach. That paper examines whether law firms can influence the scope of disclosure in IPOs (one might argue that law firms are captives of their clients and are ineffective in acting as "gatekeepers") by examining the relationship between IPO pricing and the quality of the lawyers. See Barondes, Nyce &Sanger, Law Firm Prestige and Performance in IPOs: Underwriters' Counsel as Gatekeeper or Turnstile, pre-publication version at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=481983.

In my experience, a significant aspect of formulating empirical legal scholarship is the structuring of a test for which one can assemble the relevant data and create a testable hypothesis. Legal research--doing that--is a creative activity. This paper is the ultimate product of the way I conceived-of for testing that issue.

This paper is the product of "research", meaning I did not know what the outcome would actually be until the estimations were prepared. I have a number of research topics I can investigate. The question arises what I should pursue in the limited time I have available. Before I undertook the process of extracting the pertinent data from over 12,000 cases, which I personally did, I needed to have an appropriate level of confidence that the prospects of success were likely worth the effort. I thought the anecdotal evidence that I had heard was sufficient to support my undertaking that effort. I note that a main post on this blog states, "As a Yale Law alum, I wish I could say that the paper's findings don't ring true. Alas, I cannot." It is not entirely surprising to me that such a post has been made. I suppose the audience for the paper is the ultimate judge of whether this investigation was worth my effort.

To be clear, the paper does not say that Yale Law School graduates are not smart. The paper does not purport to express any view on the intelligence of students at a particular school. Rather, my view would be that it is not entirely appropriate to expect that graduates would know a lot about a particular type of matter where their school says it emphasizes other matters.
4.19.2008 12:11am
Mikey NTH (mail):
My experience is annecdotal. I law clerked for a state judge who had an all-felony docket. I drafted the orders and opinions. We had planty to do with our docket, we did not need to have things coming back to be done over. I was very careful to get the facts of the instant case correctly, to spot the issues, and then find the case law that spoke directly to the issues, selecting those cases that had a similar fact pattern to the case before the court. I tried to avoid cases that had been yellow-flagged or red-flagged, but when I used those cases I took care to address that the flagging was for an issue that the case wasn't being cited for.

I may have been an arrogant puppy, but I wasn't going to challenge the appeals courts or the supreme courts just because the result wasn't what I wanted. What I wanted was irrelevant, what the judge I worked for wanted to do was apply the law as it was. If it was to be changed, that was up to someone else. He was rarely overturned on appeal.

The problem may be that some people are too clever by half and let that leak into the opinion and order of the court. I questioned the wisdom (and sanity) of certain upper-court decisions, but I never drafted anything that didn't adhere to the decisions that were on record.

Not a Yale graduate, just a state law school.
4.19.2008 2:28pm

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