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1/ A few reflections on the distributional consequences of the “Federal Law Clerk Hiring Plan” announced in February 2018. The plan was a two-year “pilot program” and was voluntary in the sense that only participating judges were bound by it.
2/ The plan was designed in part to check the increasing tendency of federal judges to hire law clerks too early—after one year of law school, and sometimes before then.
3/ The plan’s primary directive was that participating judges would not consider students for clerkships until the summer at the end of their second year of law school, when the student would have two years of grades.
4/ Thus, for students who entered law school in 2017, participating judges agreed not to seek or accept clerkship applications, or recommendations, or to conduct interviews, or to make offers, before June 17, 2019.
5/ One huge loophole in the plan is that while students must wait until 2L summer to apply for clerkships with judges on the plan, judges on the plan can at any time hire 3Ls or law school graduates for the slots that 1Ls and 2Ls are waiting for.
6/ Many judges on the plan have taken advantage of this loophole to hire clerks for future years. So too have some off-plan judges. This means fewer clerkship slots, and maybe many fewer slots, in future years for current students.
7/ The problem of a shrinking number of clerkship slots due to early judicial hiring is exacerbated by the trend of judges hiring students who already have one clerkship. I.e., students are increasingly doing two and three clerkships at the sub-Supreme Court level.
8/ The multiple clerkship trend favors top students at top schools, and crowds out a lot of students who would otherwise get a clerkship. I.e., as more students do multiple clerkships, there are fewer slots for students seeking a first one.
9/ So two factors are pushing in the direction of a shrinking pool of available clerkships for current students: more and more judges are hiring further into the future, and more and more students are doing more than lower court clerkship.
10/ There is also a different distributional effect that tracks judicial ideology. In my experience, most federal judges, especially federal appellate judges, hire based on a rough ideological match with students.
11/ I.e. conservative judges tend to hire Fed Soc, progressive judges tend to hire ACS. This trend, combined with the others, especially hurts progressive students.
12/ First, at least for now, the pool of progressive federal judges is shrinking and the pool of conservative federal judges is growing. Second, most law school students are progressive and not conservative.
13/ Thus, more and more progressive students are chasing fewer and fewer progressive judgeships.
14/ Progressive students are disadvantaged in another way. A (much) higher percentage of progressive judges are on the plan than are conservative judges.
15/ This means that, in general, conservative students can apply to the growing pool of conservative judges earlier and thus with more time and flexibility to find a clerkship as the number of slots (for different reasons, along different dimensions) shrink.
16/ By contrast, the majority progressive students have less flexibility. They must, in general, wait until second year to apply for clerkships that, for independent reasons noted above, are shrinking in number.
17/ I doubt these distributional consequences are what the framers of the hiring plan had in mind.
18/ There are surely other distributional consequences—for example, among law schools. But only the ones above am I pretty confident about.
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