Last year, the law clerk application process was chaotic — perhaps even more chaotic than usual. The disarray even made the pages of the New York Times.

One of the driving factors behind the chaos was the growing number of judges who do not follow the Law Clerk Hiring Plan (hereinafter “the Plan”). Of course, the Plan is entirely voluntary, as certain judges like to emphasize. But following it — at least by a critical mass of judges, especially feeder judges on the Second Circuit and the D.C. Circuit — can provide some measure of order to an otherwise shambolic process.

This year, look for the disorder to grow. At least two top law schools are not following the Plan….

Last Friday, the Clerkship Scramble reported on Georgetown University Law Center’s decision to exit the Plan. Here’s an excerpt from a message that GULC sent out shortly before Memorial Day weekend, on May 25 (the full email is reprinted on the next page of this post):

We recently learned that some of our peer schools are submitting students’ applications for judicial clerkships in advance of deadlines established by the federal law clerk hiring plan. Because we want to ensure that our students have full access to federal judicial clerkship opportunities for the 2013-2014 term, we are adding a June 11 mailing for rising 3Ls (4Es), in addition to the late summer (“first”) mailing. Please note, this mailing was originally designated as the pre-first mailing for alumni and state court applicants, scheduled for June 26.

(As you may recall, law school alumni and state court applicants are not covered by the Plan, which relates to current law students applying for federal clerkships.)

We reached out to Georgetown for comment. A spokesperson issued this statement: “We are following the Federal Law Clerk Hiring Plan for those judges who have indicated that they are participating in that plan. However, in the wake of other law schools’ decisions to accommodate judges who are hiring off plan, we have decided it is in the best interest of our students to do the same.”

Deferring to the judiciary is generally a safe approach in the legal profession. If a school knows that a given judge isn’t following the (entirely voluntary) Plan, the school might as well cooperate, right?

Which “other law schools” are not following the Plan? Here’s what Clerkship Scramble wrote:

Georgetown’s move is framed as a response to misbehavior — or at least, strategic behavior — by “peer schools.” Harvard is often mentioned as one of the guilty parties. But Harvard and most other schools have maintained a veneer of compliance thus far, even if they have turned a blind eye towards faculty efforts to circumvent the Plan on a case-by-case basis.

Actually, Harvard Law School is still following the Plan; unlike Georgetown, it is not conducting a summer mailing of clerkship materials. A few days after the GULC email, on May 29, Dean Martha Minow sent out an email setting forth Harvard’s policy (the full memo is also reprinted in full on the next page):

Harvard institutionally will take the following course of action:

As previously planned and announced, the School will collect and submit student applications and faculty recommendations for receipt by federal judges on September 4, as specified in the Plan.

Faculty approached by students who are applying on their own to non-complying judges may exercise discretion in deciding how to support such students.

Richard Posner (left) and Alex Kozinski: these judges wait for no plan.

This is also a reasonable response to a difficult situation. Harvard is trying to put its institutional weight behind the Plan by adhering to the September 4 date for distribution of application materials. But if HLS students apply independently to judges who do not follow the (voluntary) Plan, and if faculty members decide to support the clerkship candidacies of such students, the school won’t conduct a witch hunt to punish them.

So who is the “peer school[]” that departed first from the Plan? We’ve spoken to a few career services officers at leading law schools in the course of reporting this story, and word on the street is that it was Stanford Law School. Stanford supposedly started sending out application packets back in March of this year. (We have reached out to SLS but have not yet heard back.)

With respect to the clerkship hiring process, there is a prisoner’s dilemma of sorts going on here. If everyone (or almost everyone) followed the Plan, clerkship hiring would be more orderly and more sane. But because there are benefits, to individual judges and to individual schools, of non-cooperation, such non-cooperation is to be expected.

And what authority could require cooperation? It’s not clear. As my colleague Elie Mystal observed to me this morning, the clerkship scramble provides “yet another indication that law schools have no regulators. They are operating in a world where each one of them is doing whatever it can, and nobody can stop them.” (See also this morning’s story about Cooley Law School.)

The lack of regulation exists on both the employer and employee sides of this labor market. The Plan is voluntary as to judges, and there is no real mechanism for forcing them to follow it. As a general rule, the only people who get to boss around federal judges are… other federal judges. (And no, an appeals court can’t mandamus a district judge for hiring her law clerks outside of the Plan.)

(On a prior post, a commenter suggested that Congress could use its power of the purse to “base funding of law clerks in accordance with hiring with the Plan. If you hire with the Plan, you get funding for your clerk. If you don’t, you don’t get funding (i.e., no clerk).” It’s an interesting idea, although I don’t see it happening anytime soon. I also wonder if separation-of-powers issues might eventually arise if Congress starts meddling too much with the internal operations of the judicial branch.)

There have been all sorts of solutions proposed for the law clerk hiring mess, and a number of academic studies of the subject (like this paper, or this one). But my guess is that this sector of the legal job market, despite the impressive credentials of the participants, will end up just like every other sector: everyone will just keep muddling along, hoping that things somehow get better but lacking any plan for improving them.

You can check out the Georgetown and Harvard Law emails, as well as links to related stories, on the next page.


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