Clerkships, Federal Judges, Job Searches

The Current State Of Clerkship Hiring: 5 Points Worth Noting

If you're interested in clerking or in helping someone else land a coveted clerkship, here's some information you should know.

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In terms of law firm hiring, attendees at last week’s big NALP conference in Chicago expressed optimism. Law school career-services folks celebrated the improving entry-level market, while legal recruiters rejoiced in the robust lateral market.

But that’s for the private sector. What about government? Specifically, what can we say about the current state of clerkship hiring?

I attended two interesting panels at NALP on the subject, one focused on how early clerkship hiring affects summer associate programs and on-campus recruiting, and one focused on OSCAR, the online system designed to streamline the clerkship application process. Here are five takeways from the discussions.

1. So-called “gap years” are becoming increasingly common — and this creates complications.

As an unintended consequence of the demise of the Law Clerk Hiring Plan, it’s becoming more and more common for clerks to have a “gap year” or two, or time in between when they graduate from law school and when they clerk. This marks a departure from the traditional (and in some ways more logical) model of graduating law school, clerking, and then going to a firm.

It’s quite common for clerks to spend their gap year(s) at law firms, often the law firms where they spent their 2L summers that then invited them to return as full-time associates. Some judges like this arrangement because clerks then arrive in chambers with a year or two (or more) of practice under their belts.

But firms are less keen on gap years, for a variety of reasons. First, having someone who comes to the firm for just a year or two can be troublesome from a staffing perspective; just as someone is getting familiar with a matter and becoming an important part of a team, they leave to go clerk. Second, it can create issues in terms of professional development, interrupting the natural progression of tasks and experiences for junior to midlevel associates. Third, about half of associates who leave to clerk do not return to their firms — which frustrates the firms, considering how much they invest in developing junior lawyers (and how associates don’t become really profitable to the firm until a few years into their careers).

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These problems are by no means insurmountable. But firms, young lawyers, and law clerks should be mindful of these issues and proactive about addressing them.

2. It would be nice if firms and judges could reach some sort of accommodation on these matters — but don’t hold your breath.

Some of the law firm folks in the room, waxing nostalgic for the days of the hiring plan and the traditional model of clerking and then going to a firm, said it would be nice if firms and judges could have a dialogue about the current state of affairs and perhaps reach some new accord. But most acknowledged that this would be unlikely. Many judges like the new system, which gives them clerks with experience, and some judges are even expressly requiring their clerks to arrive with work experience.

And as we know from the days of the hiring plan and how it was often not followed — recall that it was merely voluntary — forcing life-tenured federal judges to follow a rigid hiring timetable is like herding the proverbial cats.

3. For prospective clerks who are going to or already at firms, once you’ve accepted a clerkship, honesty is the best policy.

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If you accept a clerkship offer before you start working at a firm or during your time at a firm, how quickly should you let your employer know? Sometimes future clerks delay in telling their firms because they fear that their firms will not take the news well or will place them on undesirable matters (because the firms know they will be leaving).

But honesty is the best policy; it’s the fair thing to do regarding your employer. And ethical issues play into the picture. After you accept a clerkship with a judge, you shouldn’t be working on any cases pending before that judge. Your employer needs to know about your future clerkship so you can be walled off from such matters.

4. Happy Birthday, OSCAR!

The Online System for Clerkship Application and Review, aka “OSCAR,” recently celebrated its tenth anniversary. The number of judges using OSCAR has grown greatly during this period, from 388 judges in 2005 to 1,722 judges in 2014.

And this shouldn’t be shocking: OSCAR makes the clerk hiring process so much easier, in so many ways. It’s a bit like online dating: judges can use OSCAR to pull up specific types of candidates (e.g., with certain grades), to sort by certain criteria (e.g., membership on law review), and to focus their review on a selected subset of applicants. (Here at Above the Law, we are not exactly surprised to learn of the internet’s power to improve a process.)

5. Clerkship applications are stabilizing in the wake of the Great Recession.

One thing that’s neat about OSCAR is how it generates data that can be used for looking at the clerkship hiring process as a whole. Here are some data points about the total number of people applying for clerkships through OSCAR:

2005 – 4,902
2009 – 10,721 (all-time high)
2014 – 8,673

And here are some data points about the total number of clerkship applications submitted through OSCAR:

2005 – 94,693
2009 – 388,550 (all-time high)
2014 – 147,234

It’s not shocking that the all-time highs for both figures came during the Great Recession. As the economy has improved and law firms have picked up hiring, fewer law students and young lawyers are seeing clerkships as lifeboats.

I asked the panelists, including Judge Timothy Burgess (D. Alaska), whether they’ve seen a notable decline in the quality of the applicant pool over these past few years. The panelists said no. In fact, Marilyn Drees of Yale said one judge told her that he’s getting fewer applications but of a higher average quality.

Judge Burgess agreed. When it comes to aspiring judicial law clerks, he said, “There are still so many outstanding applicants.”

(Flip to the next page for detailed panel descriptions, including the names and affiliations of the panelists.)

2015 Annual Education Conference [National Association for Law Placement (NALP)]

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