A Proposed Study To Measure Law Clerk Influence
posted by Dave Hoffman
Judge food.
Citation studies as a proxy for judicial quality are all the rage. I concur with Larry that the effort spent often seems disproportionate to the result. Selection is the culprit here, not just academic modesty: it’s hard to imagine that any truly dramatic effects of judicial character, or legal rule, would not be washed away by parties’ ability to settle strategically.
Exogenous shocks open windows – of limited scope – which may help us penetrate this fog. There’s one ongoing today that I think could in several years allow us to test one of the most important, but obscure, questions about judicial performance. Although there have been a few studies about the usage, hiring, and quality of law clerks, I haven’t seen work that really convinces me that clerks change judicial performance (rather than match it). That question of influence is pretty important for all kinds of reasons — not least because if law clerks were really influencing their judges, we might want to spend a little bit more time thinking about their roles, ethics, hiring, etc.
So what’s the shock? I think that the period of 2008-2011 will prove, in retrospect, to be bumper years for clerk quality. Anecdotally, I’ve heard that the clerkship market has never been more competitive: Yale grads have been encouraged to take state court clerkships (the horror); judges in popular jurisdictions are receiving literally four to five thousand applications per clerk year; individuals who before might have taken firm jobs are instead throwing their hats in the ring; magistrate judges are taking clerks previously destined for district judges; alumni in practice for five years are going back into the clerk market and competing with fresh-faced 3Ls. As an organ of the government, the judiciary simply eats better brains when the economy stinks.
Assuming the effect is real (which we could test by looking at placement statistics), I’d propose that eight to ten years from now – in 2018 or thereabouts – we test whether opinions arising from this bumper-clerk period are cited at a higher rate than opinions from the ordinary market periods immediately preceding and following. The hypothesis would be that if clerks influence judges to write better opinions, better clerks will produce to more citable opinions. Notably, we can’t perform this same analysis on the effect of past recessions, as (1) they reportedly didn’t have the same effects on the clerkship market; and (2) opinion collection practices were really sporadic before 1995. It’s 2018 or bust. Mitu et al., I call dibs!
October 7, 2009 at 8:34 am
Posted in: Behavioral Law and Economics, Economic Analysis of Law, Empirical Analysis of Law, Sociology of Law
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Responses (12)
Orin Kerr - October 7, 2009 at 11:30 am
“better clerks will produce to more citable opinions.”
Why?
My understanding of the assumed link between judicial citations and the quality of judges (a tenuous link, in my view) is that judges with the best reputations among the judiciary will be cited more often, and the judges with the worst reputations among fellow judges will be cited less often. But no one knows who the clerks are, so that wouldn’t work. Or am I wrong about the theory about why better judges are cited more? That’s certainly possible.
Dave Hoffman - October 7, 2009 at 11:38 am
Orin,
Sure, reputation matters! But it’s my impression that citation studies are based on the idea that reputation results from quality judging: tightly reasoned and clear opinions, produced often. But this is an empirical question that this study could hypothetically answer: if you are right, we wouldn’t see an effect; if I am, we should.
Greg Weston - October 7, 2009 at 4:15 pm
Judges often cite the cases used by the parties in their briefs, who in turn cite cases that support their position most clearly.
These are not always the cases that are “the best” by an objective standard.
For example, you might like an older Supreme Court rule that is still good law but now has a few exceptions or nuances. As an advocate you then cite to recent district and circuit cases that restate the older holding without mentioning the nuances.
On another note, there are so many important areas of the law where good economic analysis is lacking that its disappointing to hear that law and econ people are wasting their time with “citation studies as a proxy for judicial quality.”
Besides being, as Orin Kerr suggests, methodologically suspect, even if we could come up with non-suspect proxies for judicial quality, what exactly is the public benefit to that? Allowing the creation of judicial versions of fantasy baseball?
Dave Hoffman - October 7, 2009 at 5:02 pm
As for the general question of “why citation studies”, I guess an answer is “to avoid ridiculous debates about whether
SandraSonia Sotomayor was smart enough to be on the court.”I tend to think that citation studies are of limited value in most circumstances, although a few really have really been eye-opening (in particular, this one.)
But this post really isn’t about citation studies as an end in themselves. Rather, I proposed a way to get a handle on clerk influence, which has a pretty clear public benefit beyond fantasy clerkball.
Jeff - October 7, 2009 at 5:36 pm
Who is Sandra Sotomayor?
Dave Hoffman - October 7, 2009 at 5:47 pm
HA! A mash-up of my mom’s name and Sonia’s. I’ll make the correction.
Ira by way of Jeff - October 8, 2009 at 8:01 am
The premise of this article was clearly written by an elitist ivy leaguer. As an initial matter, new graduates, even from good schools, often know very little, and good jurists often publish good opinions despite, rather than because of, their clerks. And many of the attorneys who have been practicing before going back for clerkships may be going back because they were not particularly successful attorneys while in practice.
Further, the blogger erroneously assumes that “better” opinions are more often cited than “bad” opinions, without taking into account that badly reasoned opinions are often cited more often, if only because each party will brief an issue, and one side will need to cite cases in support of its position. As a result, Courts often need to address those incorrect opinions in its decision. Accordingly, any citation study would have to account for the treatment of the cited cases.
More to the point, any study could not determine how the Judge and his clerks arrived at its opinion, including which clerk (if any) worked on a particular opinion. For example, if a judge hires 3 clerks, one each from Harvard, Yale, and Eastern Montana Law, nobody will ever know which clerks contributed (and the extent of such contribution) to the opinion unless the judge give the clerks by-lines.
In short, the premise for any such study is flawed.
Karen Anne Quinlan - October 8, 2009 at 8:42 am
After 19 years in private practice, and the year after making $780,000, I took a state trial court research attorney position. I now live in an agricultural preserve and ride my bike to work past cows and crops. And get to read my work in the newspaper, and do not have to talk to lawyers ever. They were happy to get me and it is a sweet life.
NG - October 8, 2009 at 8:43 am
I’m a current clerk. These speculated changes do not, I think, exist at the court of appeals level. In my own experience the students clerking for circuit judges have plenty of private sector job options. The economy hasn’t affected our decision for why we should clerk or for how long. I doubt that me or my peers are of any higher quality than the clerks that came a year or two before us.
Mitch - October 8, 2009 at 10:41 am
It might be helpful to understand that not all law clerks are alike. There are law clerks who are fresh out of law school, others that have returned after a couple of years in private practice, and then there are career law clerks who have been with their particular judge for years. To blanketly state that law clerks do not have influence over judicial performance is too broad brushed a conclusion considering the varying types of law clerks out there. Perhaps those freash out of law school have measurably less influence than those returning from private practice, and the latter even less than career law clerks.
bone - October 8, 2009 at 1:53 pm
The proposed study won’t show anything. Think about clerk hiring at the court of appeals level, for example. Most appellate judges hire the same “type” or “mix” of clerks every year. For example, some like all 3Ls; or a mix of a career clerk, a 3L, and a district court clerk or law firm lawyer, or something like that.
The fact that there’s a flood of applciations for each “slot,” e.g., law firm lawyers applying or that sort of thing won’t make a bit of difference, in my experience. There have always been top law firm applicants, now there are more of them. 50% of “top 14″ law review members applied before, now it’s 75%. Twenty good applicants for each slot are quite enough; having 200 just means more paper to throw away.
Having said all that. . . I do think there are “more qualified” people working as Mag clerks or in the state systems now.
Further, as anyone involved in the hiring process knows, there’s really no way to tell (among the highly qualified applicants) which ones will really produce the best work.
dave hoffman - October 8, 2009 at 1:56 pm
If it’s correct that appellate courts clerks next year aren’t better qualified than those last year (given the lag, that’s the right time frame), then the study gains the advantage of a control group to test against judge-clerk combos at traditionally less competitive locations.
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