Sometimes what everybody thinks about the law is more important than what the law itself says. I think that’s what’s happened with net neutrality. It’s become a kind of norm of behavior, what you can and can’t appropriately do with the Internet. It’s got to be open.
(Fun tidbits from the profile that gunners and legal nerds will appreciate — specifically, how to land a Supreme Court clerkship with a weak grade in a 1L core class — after the jump.)
On his way to becoming an academic superstar and public intellectual, Tim Wu clerked for Judge Richard Posner and Justice Stephen Breyer. He landed these clerkships despite an imperfect transcript, as we’ve previously noted:
Professor Tim Wu got a B in Property Law. When interviewing for a Supreme Court clerkship, Stephen Breyer commented “appears that you know nothing about property.” He received the clerkship and now teaches intellectual property for a living.
But before you start thinking you’re going to parlay your B grades into a SCOTUS clerkship, ask yourself: do you have a powerful recommender who can make up for the weak grades? From the Times profile:
[Professor Larry] Lessig said he recognized that Mr. Wu was “unusually gifted” and helped arrange two clerkships for him [one with Judge Richard Posner and one with Justice Stephen Breyer].
Several years later, Mr. Lessig recommended that another student receive the same clerkships, and she did. Her name is Kathryn Judge. She is also a Columbia law professor and Mr. Wu’s wife.
So yes, if the brilliant Professor Lessig thinks you are “unusually gifted,” then maybe you have a shot at top-shelf clerkships with less than stellar grades. Otherwise, good luck to you. This reminded me a bit of how SCOTUS clerks were picked back in the olden days: Professor Felix Frankfurter identified Harvard Law School’s brightest young men — yes, they were pretty much all men — and sent them on to his pals on the Court.
Here’s another example of weak grades being overcome by a strong recommender. Elena Kagan got a B in criminal law and B-minus in torts, but thanks to a strong recommendation from Professor Frank Michelman, she got a clerkship with Justice Thurgood Marshall in the end.
Back to Tim Wu. Here’s how the Times describes his clerkships:
For one year, Mr. Wu worked for Richard A. Posner, a federal appellate court judge, influential University of Chicago law professor, prolific author and blogger. “Richard Posner is a kind of law demigod,” Mr. Wu said. “He didn’t really need a clerk. He wrote everything on his own. But he wanted someone to be his critic — to match wits with him intellectually, to fight with him and tell him why he was wrong.”
In 1999 and 2000, Mr. Wu served as a clerk to Justice Stephen G. Breyer of the Supreme Court. There he played a different role. Justice Breyer’s law clerks, Mr. Wu said, were expected to find out what the other justices were contemplating. “One of Breyer’s favorite things was to ask, ‘What does Sandra think?,’ ” referring to Sandra Day O’Connor, who was often the pivotal vote until she retired in 2006. “He believed he had a big job trying to defend the middle ground in the court — to form a caucus of reasonable adults.”
I share Professor Josh Blackman’s reaction to the Times write-up:
I love how Posner is described as a “law demigod,” yet there are no adjectives about Breyer. Oh well. Though I do find fascinating what Justice Breyer asked of his clerks [in terms of inter-chambers politicking].
If only we knew what Sandra thought. Now we need to figure out what Tony thinks!
Indeed. Here is one takeaway from Adam Liptak’s very interesting article over the weekend about political polarization at the Court: Justice Kennedy, by casting the deciding vote in so many 5-4 cases, holds the keys to the kingdom underneath his robes.
Defending the Open Internet [New York Times via Morning Docket]
Larry Lessig “helped arrange two clerkships” for Tim Wu [Josh Blackman’s Blog]
The Polarized Court [New York Times via Morning Docket]