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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.

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The Yale Clerk Effect:

I just read the paper that Stuart just noted; I'm not econometrician enough to tell whether the analysis is sound, but I'd love to hear from those who are.

Note, though, that even if the statistical analysis is correct (which it might be), this still doesn't tell us why this effect is present (as the paper makes clear). One possible reason, which the paper points to, is the conventional wisdom that Yale students learn a lot of theory but not a lot of doctrine.

But there are other possible reasons. For instance, perhaps Yale has such an excellent reputation that Yalies who are relatively far down in the class get more clerkships than comparably ranked students at comparable quality schools. (I have indeed heard that this is the case, though I have no hard data on the subject except for this appellate clerk data.)

Say, for instance, that the Yale district court clerks generally come from the 25th to 75th percentile at Yale, and on average represent the 50th percentile. But say the Harvard district court clerks on average represent the 55th to 85th percentile at Harvard, and on average represent the 70th percentile. And say the Yale and Harvard student bodies are on average comparably good (or perhaps even that Yale is on average better, but only by a little), so that the people at the 50th percentile at Yale are a little less good at legal analysis than the people at the 70th percentile at Harvard.

The higher reversal rate associated with Yale clerks may then just reflect the lower average quality of Yale clerks, not the lower average quality of Yale graduates or of a Yale education. And this lower quality would flow from the school's reputation exceeding its actual merits (even if its merits are very great).

Likewise, the paper itself points to some other possible explanations, for instance "a grading system that is not sufficiently partitioned to allow judges to identify the quality of applicants": "Officially, there's a system of honors, pass, low pass and fail, but three-quarters or more of the class gets a pass, and professors rarely give out low passes ...." That too would be a way in which the average quality of Yale clerks might be lower than the average quality of other clerks (if it is), even though the average quality of the entire Yale class might be as good or better as that of other schools' classes.

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The Yale Cause or the Yale Effect?: Maybe I'm just missing something, but isn't the most likely explanation for the apparent link between hiring Yale Law clerks and getting questioned or reversed that the trial judges who don't care much about getting reversed also are unusually likely to hire Yale Law clerks?

  This is anecdotal, but my sense is that a pretty specific group of trial judges regularly hires Yalies, and that these judges are unusually likely to see themselves as pathbreaking judges who chafe against what the appellate courts tell them to do. If their politics line up correctly, Yale students will often see these judges as heroes of the law and want to clerk for them in part because they "push the limits of the law" (a.k.a. make stuff up that seems cool) in ways that often lead to reversal.

  If I'm right about that, hiring Yale clerks will be a consequence of being reversal-prone rather than a cause of it. That doesn't mean that Yale graduates will be as good at identifying and following the law as graduates of other schools. But I'm not sure this paper sheds light on that question given the likely direction of causation.
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Yale Lawprof John Donohue Responds About the Supposed "Yale Clerk Effect":

A long and interesting post at Balkinization.

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

We blogged about this paper (with some skepticism) this Spring, and also linked to a critique by Yale lawprof and leading empirical scholar John Donahue. A couple of weeks ago Donohue withdrew some parts of his critique, but retained other parts; the revised post is here. I thought I'd therefore note this for the sake of completeness and accuracy, and in case some of our readers continue to be interested in this topic.

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