1/ I have recently learned some things that convince me more than ever that the so-called “federal clerkship hiring plan” is broken, or worse. Earlier threads here, , and here,
2/ A few years ago an ad hoc committee of federal judges sought to reform the clerkship market. Judges on the plan pledged not to hire (or even contact) law students until summer after 2L year. Some law schools sought to limit faculty recommendations during the 2-year period.
3/ The ostensible goal was to stop judges from hiring earlier and earlier, and to create a more orderly process based on more info about student performance. But the plan never really worked. (I limit myself to discussing federal court of appeals judges.)
4/ Many judges, mostly conservative ones, did not go on the (voluntary) plan. For the last two years, off-plan judges have hired early, before summer 2L. So many students have gotten clerkships before summer 2L, despite the plan and the soft ban on teacher recs.
5/ But law students who want to clerk for on-plan judges—mainly, progressive judges in coastal circuits and CA7—have had to wait. 2Ls get their chance to apply, finally, this summer. But when they do they are going to be in for a very rude awakening.
6/ The rude awakening is that there aren’t a whole lot of slots for 2021 clerkships. One reason, just noted, is that off-plan judges have already hired for 2021 and some have hired beyond.
7/ Another reason: Having pledged not to hire students in the class of 2021 for 2021 clerkships until summer 2020, ***many on-plan judges went ahead and filled some (and for some judges all) of the 2021 clerkship slots with other students (3Ls, grads, etc.)***
8/ This practice is consistent with the letter of the plan, which only banned the hiring of students before 2L summer. The plan did not prohibit judges from hiring 3Ls and graduates, or from hiring years in advance. The plan only affected students before summer 2L.
9/ But the practice of many on-plan judges filling 2021 slots (and beyond) before current 2Ls get a shot for those slots seems in tension with the aims of the plan, which were to make the clerkship process more orderly and fair for current students.
10/ These students waited while their classmates received clerkships with off-plan judges. But since many on-plan judges also filled 2021 and beyond slots, students who waited now have a shrunken pool of slots from which to choose. That seems neither orderly nor fair.
11/ Amazingly, some of the judges on the ad hoc committee who organized the plan and who have been leading the charge on it have also at the same time filled many of their slots for the 2021 clerkship year.
12/ When 2L students who followed the plan figure out that relatively few slots for 2021 clerkships remain, they will be super-disappointed—with on-plan judges who made them wait but then filled 2021 (and beyond) slots; and w/ law schools that went along with the regime.
13/ The problems w/ the plan are exacerbated by the fact that top students increasingly do 2-3 clerkships, and (same point) judges are increasingly hiring students with prior clerkship experience. This further shrinks the pool for students looking for a first clerkship.
14/ As I have said before, these trends are especially bad for progressive students who want to work for progressive judges. These students are chasing a shrinking pool of slots in a shrinking pool of progressive judges. See
15/ There are all sorts of other interesting distributional consequences of the plan: asymmetrical impacts among top tier schools and between top and next-tier schools, etc. No time now to explain that.
16/ But here is a prediction: The negative consequences of the plan for 2L students who waited, and future students, will become so apparent by summer’s end that “the plan” will not survive the summer.
17/ When the plan collapses, the after-party will be a bigger mess. Students will scramble for slots many years after graduation, and judges will hire further and further in advance, further exacerbating the problem they set out to fix.
18/ The basic problem is that many judges cannot discipline themselves in hiring. They hire earlier and earlier, and for slots further and further out.
19/ The plan sought to make the students and law schools fix the problem for the judges on the law school supply side. But the judges—I speak generally--still could not control themselves on the hiring side.
20/ Final note: I encourage my students to think outside the narrow so-called elite federal circuits and judges. There are literally many hundreds of great judges & clerkships, state and federal, district and appellate, and specialized federal. I urge students to look broadly.
