Federal Courts and Nominations

New Law Clerk Hiring Plan Faces Familiar Defector Problems

The “move to push hiring until after law students’ second year is a vast improvement over the current situation in which law students often feel forced to apply right after their first year,” Brianne Gorod, chief counsel of the Constitutional Accountability Center, Washington, told Bloomberg Law in a Twitter direct message.

A new federal law clerk hiring plan offers benefits for everyone involved, but risks collapsing like a prior plan, court watchers told Bloomberg Law.

The pilot plan, which is voluntary for judges, provides that for students who began law school in 2017 or after, “the application and hiring process will not begin until after a law student’s second year.”

It also says that judges will keep clerkship offers “open for at least 48 hours, during which time the applicant will be free to interview with other judges.”

Many top judges currently consider and hire applicants immediately after their first year of law school, David Lat, founder of the Above The Law legal blog, told Bloomberg Law by telephone March 1.

The chief judges of the U.S. Courts of Appeals for the Second, Seventh, Ninth, and District of Columbia Circuits endorsed the plan in a Feb. 28 letter, and the D.C. Circuit officially adopted it the same day.

The “move to push hiring until after law students’ second year is a vast improvement over the current situation in which law students often feel forced to apply right after their first year,” Brianne Gorod, chief counsel of the Constitutional Accountability Center, Washington, told Bloomberg Law in a Twitter direct message.

However, the plan will “probably fall apart” due to a “collective action problem,” Lat said. As individual judges can benefit from defecting, it will be less palatable for other judges to adhere.

Regardless, participating “judges will reconsider their participation after June 2020,” the plan says.

More Time

Everyone “would be better off” under the plan because it would give applicants more time to gain information about clerkships, and give judges more information “about who the best candidates are,” Lat said. It would also relieve pressure on students who have recently finished their first year because that’s “a time when many may also be thinking about the requirements for joining a law review,” Tejas N. Narechania, a professor at the University of California at Berkeley Law School, told Bloomberg Law by Twitter direct message.

Those students would no longer have to rush to “try to find letters of recommendation from their 1L professors,” Narechania, who clerked for U.S. Supreme Court Justice Stephen G. Breyer and Seventh Circuit Chief Judge Diane P. Wood, said.

“This new plan also seems to offer the possibility of greater transparency in the clerkship hiring process, which should make for a fairer process for applicants,” Gorod said.

Collective Action Problem

Lat expects that “feeder judges,” whose clerks often proceed to the U.S. Supreme Court, will adhere most strictly to the plan. Over time, there are likely to be “slight erosions” by other judges who seize opportunities to pick off candidates outside of the plan, he said.

Non-feeder judges might have an incentive to hire anxious law students who have a “bird in the hand versus two in the bush” philosophy, Sean Marotta, a senior associate at Hogan Lovells, Washington, who focuses on appellate litigation, tweeted.

“The old plan collapsed gradually” after an increasing number of judges “just declined to adhere” to it, Lat, who wrote about the plan’s death in 2013 after the D.C. Circuit withdrew from it, said.

48 Hours

The 48-hour period for keeping a clerkship offer open is a “wise idea,” and “I hope that will become more of a norm,” Lat said.There are “cringe-inducing stories” about judges who offer a clerkship to candidates in chambers and ask them to decide on the spot, he said.

It’s a “big decision,” and candidates may wish to discuss the decision with significant others or have other factors to consider, he said.

Law Firm Effect

The plan could encourage judges to hire clerks who have already graduated and aren’t subject to the plan, Lat said.District court judges are already moving toward hiring more experienced attorneys, Hogan Lovells’s Marotta told Bloomberg Law by telephone.

District court clerkships tend to be more fast-paced and involve more judgment calls than appellate clerkships, making practicing attorneys attractive for such roles, he said.

Hiring experienced attorneys could affect law firms economically, Marotta said.

Clerkships “are always good for law firms,” he said.

But there can be a downside if attorneys temporarily leave firms after their first or second years of practice, which are traditionally the least profitable years for firms, to clerk during what would have been their more profitable years, he said.

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