Several prominent judges, like Richard Posner (left) and Alex Kozinski (right), hire 'off-plan.'

Over the weekend, we mentioned a very interesting New York Times article on the chaotic state of the clerkship application process, and said we’d have more to say about it later. Well, now is later, quite a bit later — so let’s discuss.

The piece — by Catherine Rampell, who has written about the legal world before — paints a depressing picture of a dysfunctional system. Rampell reports that the clerkship process “has become a frenzied free-for-all, with the arbiters of justice undermining each other at every turn to snatch up the best talent.”

Let’s look at the reasons behind this, and discuss whether the process can be fixed….

In our clerkship application season open thread, we set forth the timetable for the official law clerk hiring plan for 2011. As the Times article explains, however, not everything went according to plan this year:

Based on rules that were intended to curtail shenanigans, judges hiring for the 2012 season were supposed to begin interviewing third-year law students no earlier than Thursday, Sept. 15 at 10 a.m. But somehow, at the federal courthouse in downtown Manhattan, most of the interviews — and job offers— had already concluded by 9:45 a.m.

Indeed, hoping to leapfrog their peers, most judges actually began interviewing hours (if not days or months) earlier. Many made so-called exploding offers, forcing candidates to accept or decline a job offer on the spot (and it’s a “Godfather”-style offer: one they can’t really refuse). Some judges extended offers by phone, which is even more nerve-racking for students because cellphones are not allowed at many courthouses. At the Manhattan courthouse, anxious young applicants in stiff new shoes were darting in and out of the building all day, checking and rechecking their phones with the security guard, just so they could listen to their voice mail between interviews.

And that was in Manhattan, S.D.N.Y. and the Second Circuit, which come closer to following the plan than many other courts. Many judges in other parts of the country finished the 2012 law clerk hiring months ago. For example:

“I’m not into cartels or collective action or things like that,” says Alex Kozinski, chief judge of the Court of Appeals for the Ninth Circuit in San Francisco, who has vocally criticized efforts to regulate the recruiting process. So when does he start recruiting? “At birth,” he says.

And Chief Judge Kozinski isn’t the only superstar of the federal judiciary who doesn’t stick to the given timetable:

“I tried to follow the system, waiting until Labor Day or whenever it was to accept applications,” said Richard Posner, a judge on the Court of Appeals for the Seventh Circuit in Chicago who said he now hires “off-plan.” “I made appointments to interview several people. Then one by one they called up and canceled their interviews because they had accepted offers before we were even supposed to start interviewing.”

Judges are the last people you’d expect to find in a prisoner’s dilemma, but this is exactly what the situation looks like. And part of the reason they’re in this dilemma is, in fact, because they are federal judges — i.e., not easily bossed around. As the Times notes, “there are no sanctions for breaking the rules; federal judges have lifetime tenure unless they commit an impeachable offense, and recruiting clearly is not a crime.”

As Rampell explains in a related blog post:

The problem is that there’s no external enforcement mechanism for this system. Judges have lifetime appointments, and breaking a clerkship recruiting rule doesn’t come with any sanctions the way breaking an N.C.A.A. recruiting rule does. So once one person starts cheating, there’s a strong temptation for others to cheat, too.

“It kind of goes in waves, like financial regulation,” said David Lat, a former clerk and now managing editor of Above The Law, a Web site on legal affairs that has followed the ebbs and flows of the clerkship hiring plan over the years. “The judges try to tighten up the process with some strict rules. In the early years people adhere to it, and then as time goes on fewer and fewer people follow it, since there’s more incentive to cheat, and the whole thing descends into chaos. Then there’s a renewed attempt to tighten things up, until it all descends into chaos all over again.”

Right now, we seem to be in the chaos part of the cycle. It’s not clear that there’s a better design out there, though, that would fix the system and end the cycle. Any ideas?

So, readers, any thoughts? Various solutions have been proposed in the past. See, for example, this paper by Professor George Priest of Yale Law School, outlining some of the options (including a system similar to the one used for matching medical school students with residencies).

At the end of the day, though, the problem isn’t coming up with rules; judges are pretty good at that. The problem is one of enforcement — an area where judges don’t have quite as much experience.

When Judges Break Their Own Rules [Economix / New York Times]
Judges Compete for Law Clerks on a Lawless Terrain [New York Times]

Earlier: Quote of the Day: The Early Bird Gets the Worm
Federal Law Clerks: No Pay Raise for You!
Clerkship Application Season: Open Thread


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