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From the Judicial Clerkship Files: Putting it in Perspective - Understanding the History of the Timing Issue and Making Lemonade

Debra M. Strauss, Associate Professor of Business Law at Fairfield University, offers helpful tips for landing a judicial clerkship.

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You may be panicking now that that Federal Law Clerk Hiring Plan appears to be in its state of demise. But this is not the first effort or the last to put some control on the timing of judicial clerkship applications! That’s why I gave the entire historical context in my book—Behind the Bench: The Guide to Judicial Clerkships—knowing that the “new” timing guidelines might not endure but would be likely to suffer the same fate as previous initiatives. To help you understand where we are now, it is important to know a bit of the background that preceded the latest Federal Law Clerk Hiring Plan. In addition, here’s some valuable advice I gave students the last time there were no timing guidelines to make the best of the situation—strategies you can use now to make lemonade out of the lemons.

1. Previous Attempts to Control the Chaos

Before the mid–1970s, the prevailing practice was to select law clerks during the fall of their third year of law school, but gradually this deadline began to advance. When I was a second-year student at Yale Law School in 1985, we went away on spring break and, when we returned, had an emergency meeting and were told the starting deadline had been moved to the week before! You can imagine the panic that ensued as I applied with the others in a late frenzy, but this was my lucky entry into the world of clerkships. By 1992, the period for the clerkship applications had eroded even further to the fall of the second year of law school. This early timing was publicly criticized as premature and disadvantageous both for students and for judges because students had such limited opportunity to develop a record of grades and experiences such as Moot Court, law journals and the like.

Along the way, several reform efforts from individuals and groups of judges attempted to counter this trend but with only limited results. The most successful of these earlier initiatives took place when I had returned to Yale Law School as Director of Judicial Clerkships. In September 1993, the Judicial Conference, the judges’ national policy-making arm, issued guidelines that established March 1 as the benchmark starting date for law clerk interviews and asked faculty not to transmit letters of recommendation until February 1; in response, the law schools directed their second year students not to send applications to judges before that date. However, this resolution was not binding on the judges and eventually it faltered, with increasing numbers of judges ignoring the timing guidelines; the process deteriorated into confusion and chaos. In the fall of 1998, the Judicial Conference officially rescinded these guidelines, although some judges and courts made individual efforts to retain the February/March dates. Despite notable proposals from some individual judges in their courts, hiring again slid forward to as early as September or the summer before the second year of law school, as much as two years in advance of the clerkships.

2. Federal Law Clerk Hiring Plan

Then along came the plan which most recent and current law students have experienced in applying for judicial clerkships. Begun in March 2002 as an ambitious scheme from Judge Harry Edwards of the D.C. Circuit and Chief Judge Becker of the Third Circuit through an Ad Hoc Committee of Federal Appellate Judges, the original Federal Law Clerk Hiring Plan included a moratorium on law clerk hiring during the fall of 2002 and an agreement that hiring thereafter would be of law students in the fall of their third rather than second year and law graduates. Although not technically binding on the judges, the Federal Law Clerk Hiring Plan managed to succeed for ten years in holding back the majority of law clerk hiring to third year students in the early fall—the day after labor day for opening of applications, with interviews to be scheduled and held soon thereafter—thus staying the market demand forces that would ultimately push it earlier. Note that students who had already graduated were never covered by the plan; they could submit their applications and be hired at any time.

This current plan has reached the end of its lifespan according to many sources, most notably when the D.C. Circuit Court of Appeals in February 2013 announced its judges were no longer adhering to it. The OSCAR Working Group judges, who most recently took on the administration of the plan, announced in April that they had decided to move up the first date when applications may be received from third-year applicants (Class of 2014) from August 19, 2013 to June 28, 2013 and “revert to a single date to receive applications, schedule and conduct interviews, and make clerkship offers.” The latest development in the saga—as of Nov. 4, 2013—is that OSCAR has just been delinked from the Federal Law Clerk Hiring Plan, meaning that second year applicants may now apply online any time and the judges have been asked to add their own individual hiring preferences. In addition, the OSCAR Working Group will consider at their annual November meeting making OSCAR available to first year students! Although viewed by many as defunct, the administrators still have not officially thrown in the towel on the plan as a whole, but the judges will be reviewing it at the November 25 meeting and any changes will be posted thereafter. Moreover, there will be individual judges and courts who will continue to follow its timeline.

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3. Making Lemonade

Now that we have established that this state of affairs is not unprecedented—and that the sky is not falling—let’s reassess the next course of action for clerkship applicants. Out of the current climate of questionable at best timing guidelines, additional strategies for students can be crafted. In this way, we can “make lemonade” out of those frustrating lemons that are forces beyond our control, and empower applicants to adjust and adapt to the circumstances with better chances of success. Here is a set of tips comprising what I call the “wave” theory:

• Check each individual judge’s application dates, requirements, and procedures. This information may be listed on OSCAR but, if not, check the hard copy resources at your law school and listed in my book. You can also call the judge’s chambers, now more than before, due to these circumstances of uncertainty.

• List the deadlines of the judges and courts. Do continuing research for all judges for which you are interested in applying and send in your applications sequentially.

• Apply in waves. Most likely the most competitive courts and judges, individually as well as by circuit and district, post early dates, but many others will have a later timeline. Thus you may have more flexibility both in getting several chances and in the types of judges and courts.

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• Be flexible as to type of judge and type of court. Typically later judges will include Magistrate judges and specialty federal courts such as Tax, International, Federal Circuit, and Bankruptcy. Newly appointed judges will also hire their clerks outside of the traditional pattern as soon as they are confirmed.

• Maybe a state court is right for you. State courts may post dates as early as fall or spring of the second year, and as late as fall of the third year of law school for a clerkship directly after graduation. Vestiges remain of the original Judicial Conference guidelines, in that many states modeled their timing after the old federal deadlines. As a result, there is a complete variety of timing by state that affords many opportunities for sequential waves of applications.

• Consider alternate types of clerkships. In addition to the traditional “elbow” clerks for an individual judge, other clerkship positions tend to hire much later in the season, even well into the third year of law school. These include Staff Attorney positions for the circuit courts and the district courts, Pro Se Clerks, and Motion Clerks, who do specialized clerkship functions for groups of judges or the court as a whole.

• Apply for future clerkship terms. This means keeping in contact with your professors and career services office about your continuing interest in applying for a clerkship in the future, including whatever opportunities may come into their radar. As your final wave, this would involve applying later in your third year of law school—or even after law school—for a clerkships that may begin after you have been out of law school for a year or more. Your chances may increase with another year of law school to develop a stronger academic record, significant law school activities, and another summer or year of professional work experience. As more people have been discovering in this increasing trend, a clerkship is worth waiting for and will benefit your career in the long-term, even if you wait a little longer for the right one and follow a less traditional order of employment options.

When viewed from the “wave” perspective, a less structured, extended clerkship application process can actually transform different timing deadlines into more opportunities!

Debra M. Strauss is Professor of Business Law at Charles F. Dolan School of Business, Fairfield University; B.A., Cornell University; J.D., Yale Law School. A former federal law clerk for the Chief Judge of the U.S. District Court for the S.D.N.Y. as well as a frequent speaker at law schools and judicial conferences, she is the author of the book, Behind the Bench: The Guide to Judicial Clerkships (affiliate link), 2nd edition (West Academic Publishing 2017), and the website, www.judicialclerkships.com.

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