Law Students: Ask The Right Questions Before Clerking
A clerkship should be positive, not just tolerable. No one should willingly endure a taxing clerkship for the prestige.
You want to clerk? Great! I encourage you to consider clerking. How will you avoid judges who mistreat their clerks? Law schools tell students to “do their research” about judges before applying. But what research are you going to do, when so little information about judges is available to students?
This school year, I used this framing during law school programming with more than 20 schools as part of The Legal Accountability Project’s (LAP) “Fixing Our Clerkship System” tour. LAP aims to correct injustices that I personally experienced as a student at Washington University in St. Louis School of Law applying for clerkships; a D.C. Superior Court law clerk experiencing mistreatment and unsure where to turn for help; and a former clerk participating in the formal judicial complaint process. These include a lack of transparency in the clerkship application process that causes too many law clerks to enter unsafe or unsupportive work environments because they lack information about judges, as well as a lack of accountability for judges who mistreat their clerks.
I’ve spent the past year speaking with law school deans and clerkship directors, law students, law clerks, and judges about judicial accountability and resources to help law students identify beneficial clerkship experiences. I typically ask law schools and judges how they think law students obtain information about judges before applying for clerkships, and whether they think information about judges who mistreat their clerks is shared with students. LAP’s initiatives focus on law schools because they are the ideal vectors for change, considering their central roles in the clerkship process. Clerkships are law schools’ purview: every school can and should be an ally to help ensure positive clerkship experiences, increase diversity in the applicant pool, and foster safe judicial work environments.
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Every law school is different. Some have robust resources to help students obtain clerkships — multiple career services professionals dedicated to this goal, impressive alumni networks, and frequent programming. Others have fewer. Regardless of a law school’s ranking or resources, every law student deserves to know the truth about clerkships. Law students and alumni universally convey that clerkship applicants lack access to information about judges. No law school does enough to protect students and alumni against workplace mistreatment, although some do better than others. Every school has room to improve. It is time to raise the bar on clerkship advising by increasing transparency in the application process, increasing efficiency of information-sharing, and increasing equity in access to basic information among law students at different schools — and within the same school.
No law school has a monopoly on information about judges: no one knows about all the judges. Yet every school has a ceiling on the number of judges they can keep track of. This depends on who alumni have clerked for in the past, as well as their willingness to share information with their alma maters — and with prospective clerks — about their experiences. Law clerks who experienced mistreatment are notoriously unwilling to tell their law schools about this, meaning law schools’ information is incomplete. LAP aims to reduce uncertainty among law students, who routinely describe the clerkship application process as “opaque,” “confusing,” and “a black box,” by rectifying information asymmetries.
Clerkship messaging and programming are one-sided. Information-sharing between law school administrators and students is inefficient and incomplete. Most law schools’ messaging around clerkships is uniformly positive: law clerks will develop lifelong mentor/mentee relationships with the judges for whom they clerk. The position will confer only professional benefits. Even a “difficult” clerkship experience is “worth it” for the disproportionate professional gains.
Law schools hesitate to discuss the potential downsides of clerking, fearing it will dissuade students from pursuing these coveted positions — thereby diminishing the clerkship statistics they report publicly, which fuel public perception of schools’ prestige and help them attract the best applicants and professors. Yet it must be acknowledged that some judges mistreat their clerks. There is an enormous power disparity between fresh-out-of-law-school clerks and life-tenured federal judges that makes it incredibly difficult to speak up about mistreatment. The federal judiciary is exempt from Title VII of the Civil Rights Act of 1964, meaning law clerks lack workplace protections. Judges are rarely disciplined. These powerful employers can exert significant influence over their former clerks’ lives, careers, and reputations, long after the clerkship has ended. A judge can be an excellent jurist and a poor manager — yet judges are running small workplaces, charged with the important responsibility of shaping the next generation of attorneys.
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Some career services professionals are unwilling to ask law clerk alumni whether they were mistreated. For schools that conduct post-clerkship surveys, the tone of the surveys is often, “You had a positive clerkship experience, right?” Several balked at my suggestion that they should explicitly ask law clerks whether they experienced gender discrimination, harassment, or retaliation. Law students told me that when they raised concerns about mistreatment during clerkship programming, some clerkship directors evaded the questions. Administrators have told me, “We’re blessed to work with only good judges. All our alumni have positive clerkship experiences!” And, “Harassment is not happening in judicial chambers. It’s just women adjusting to their first jobs.” And, “It is our official policy not to warn students about judges who mistreat their clerks.” Several said they actively dissuade law clerks who experienced mistreatment from writing anything negative about judges in post-clerkship surveys. More than one admitted they withhold negative information about judges from students. One clerkship director told students that I want to “end clerkships,” and another still refuses to speak with me, after substantial outreach with assistance from students and faculty.
Clerkship programming, with the exception of LAP’s events — which at some schools was co-sponsored by career services, the clerkships office, or the faculty clerkship committee — also continues to be overwhelmingly positive, rather than realistic. Law schools often invite law clerk alumni to campus to talk about their positive clerkship experiences. Programming with judges is a high priority, because it creates clerkship pipelines for students.
Some of the best feedback I received from law school administrators about LAP’s events is that LAP changed the messaging and programming around clerkships on their campuses. I often hear that LAP’s programming is valuable, informative, and engaging. I’ve been told that LAP’s Centralized Clerkships Database, which democratizes information about judges and clerkship experiences, solves an enormous problem in the clerkship application process — and the legal profession generally. Whether you believe mistreatment is pervasive or an isolated problem in the judiciary, we can agree that transparency benefits both law students and judges, that increasing diversity in the legal profession starts with diversifying clerkship hires, and that democratizing information increases equity for historically marginalized groups.
When the messaging around clerkships is uniformly positive, law students lack a critical perspective. As a result, many law students do not know the right questions to ask about clerkships. Law schools encourage students to “do their research” about judges by reaching out to current or former clerks to discuss the clerkship experience. As we enter another clerkship application cycle, here are some questions to consider asking current and former clerks:
- How does the judge provide feedback?
- How much time do you spend with the judge?
- What were your hours? How often were you asked to work outside of business hours — either arriving early, staying late, or working on the weekends?
- Did you communicate with the judge outside of business hours? How and how often?
- What is the judge’s relationship like with their current clerks?
- Did anyone leave before the end of their scheduled clerkship period?
- Has the judge ever fired a clerk?
- Does the judge hire diverse clerks?
- What were your favorite and least favorite tasks and why?
- If the judge was unhappy with your work, how did they convey that?
- How does the judge treat interns and judicial assistants?
- How does the judge treat attorneys and litigants who appear before the court?
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These are not the only questions to ask before applying, or interviewing for, a clerkship. But they are intended to elucidate candid information about chambers culture. Law students may struggle to find someone to ask, because former law clerks do not always share the unvarnished truth with students who contact them. That’s one reason why LAP created a Clerkships Database with a variety of information students need to know about clerkships. We should empower every student who wants to clerk to make an informed decision. Knowledge is power.
Clerking is an excellent career opportunity for many new attorneys — or attorneys looking to make a career pivot. Aspiring trial attorneys get a crash course in trial lawyering from the lawyers who appear before the court. They also learn about judicial decision-making, so they can craft better arguments. They hone their research and writing skills. Yet aspiring law clerks must be mindful about who they clerk for: law students do not have that luxury. Importantly, a clerkship should be positive, not just tolerable. No one should willingly endure a taxing clerkship for the prestige.
The lifelong mentor/mentee or familial judge/clerk relationship framing is unnecessary. Perhaps you’ll clerk for a judge from whom you’ll seek advice throughout your career. But if you don’t, that’s okay. A clerkship is a job like any other — one where you spend a year or two learning and honing your skills before moving on to your next opportunity.
Law schools’ and law firms’ clerkship framing — as a necessary check box or a gold star — does a disservice to law clerks. It suggests that, if you had a less-than-positive experience, you did something wrong. By deifying judges, our profession sends a message to law clerks that they should keep their heads down and stay silent in the face of mistreatment.
If you are a clerk who experienced workplace mistreatment, you are not alone. You do not deserve to be mistreated. Mistreatment says everything about the judge’s poor character, and nothing about your character. You should speak up and advocate for yourself. Judges — the most powerful members of our profession — should act as if they are above reproach in their interactions with clerks. And those who do not, should be held accountable.
After LAP’s events, several female professors and administrators told me that their messaging prepares law students, particularly historically marginalized groups, “for the profession that is.” I wish they would stop. They should use their platforms to improve the profession. By sharing my own negative clerkship experience in order to advocate for change, I aim to help law students create the legal profession that should be, by empowering them to demand safer workplaces, as well as increased transparency and equity in the clerkship application process and legal profession generally. Transparency and accountability benefit everyone — law students, law schools, law clerks, judges — and in this way, the entire legal profession. Law students and new attorneys demanding change will power this movement. Everyone — whether you clerked or not — can help lay the groundwork for transformational progress by encouraging law schools to make necessary fixes. A better judiciary creates a better society, and change starts on law school campuses.
