The Quickly Unraveling Clerkship Market

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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40 Responses

  1. John says:

    That is not true about Michigan. I am a student and the school strongly encourages us to adhere to the plan (i.e. recommenders would send out letters in the summer). Sure, they will still act as verbal recommenders to the prestigious judges, but you can’t seriously argue that other top schools don’t do that.

  2. Josh Wright says:

    Great picture! And excellent post Dave. A few things:

    You start off the post noting that it is “sad” that the plan is unraveling? I might buy it. And I understand the arguments that have been made — but you don’t ever say why the attempt to “discipline” and “centralize and control” the market for clerkships is a good thing? I’m not sure the right default presumption is that such a plan is good. The default presumption in antitrust, for example, is that this sort of coordination is a felony…so it strikes me some evidence is needed. Maybe there is some??? I haven’t followed closely. But Id love to know if there is good evidence that the plan has made the world a better place in some way.

    One more note. “Opting out” of the plan seems like an odd description for the practice of hiring practicing lawyers who are, as you note, not under the Plan in the first instance and thus one can hire them while in full compliance w. the plan. I think it is very interesting that more and more judges (I think you are right about this) are going the route of practicing lawyers — but it seems like a separate phenomenon to me. Again, is this good or bad? My default presumption here is that competition from the “active secondary market” is good if we are thinking about the quality of judicial output as the relevant market. But perhaps you’ve got something else in mind.

  3. current clerk says:

    Good riddance, I say. I know the old system had it’s flaws, but so did this one. The plan is falling apart because it doesn’t work for many if not most judges, lawyers, and students, not because of a lack of will.

  4. Dave Hoffman says:

    Hi John,
    Thanks for your comment. But I’m a little bit confused. Recommending professors under the plan are prohibited from sending out letters “in the summer,” and in fact can’t do so until last Tuesday. That’s true regardless of the judge’s prestige, and regardless of whether the recommendation comes from a top school or not. So if Michigan is, in fact, recommending people over the summer, then it is not complying with the plan. But maybe I’m misreading you?

    Josh – you are right that I got a little bit too judge-y. I’m not sure if it is a bad thing that the plan falls apart. I do know about what the world looked like without a plan – it was super stressful and judges felt that they were hiring without enough information. (http://online.wsj.com/public/resources/documents/posner.pdf)

    Ordinarily, it would seem odd to have a presumption that we ought to regulate a market. But you’ve got to admit that this is a bit of a special and odd case: it is government hiring but isn’t subject to the ordinary rules and procedures that prevent in-dealing; the position held is pretty important from a societal perspective but outputs are hard to analyze because of judge-masking of clerk work; the history suggests that neither potential clerks nor judges were satisfied with how decisions were made absent regulation.

  5. Summer Intern says:

    As a summer intern for a District Court judge this summmer, I saw several applications from Vanderbilt Law in chambers as early as mid-June.

  6. Dave;

    I have followed the unraveling of this market for a couple of years.

    It is clearly what Schelling called a multi-person dilemma game – where it is attractive for every a single person to go earlier than the the group, which cascades into a sup-optimal coordination. (I doubt very much in this case, penalties will get people out of the cascade – I suspect that the penalties simply encourage the cascade.)

    The “solution” is to have as many of these judges as possible play a negotiation game in which this cascading clearly becomes sub-optimal to them.

    This is probably only necessary and not sufficient.

  7. John says:

    Dave,

    Sorry, I mistyped. That “would” should be “won’t.” Profs won’t send out letters until after Labor Day. Very few, however, will call prestigious judges for top students. They have to, since all schools do it. But for the most part, profs won’t make calls or send letters until after Labor Day.

  8. Josh Wright says:

    Dave: its not so much the presumption of regulation versus non-regulation that strikes me as the issue. And I’m happy to grant that this is an odd market. But there are lots of those out there. There are plenty of markets in which we have competition with a backdrop of various rules and regulations — for better or worse — but it is quite the rare case where outright collusion is the favored policy response. Competitors are often unhappy with the stressful nature of competition.

  9. dave hoffman says:

    John,
    Thanks for the correction! Here’s another question: does Michican send out transcripts to those “prestigious judges” [only?] for “top students” before labor day?

  10. John says:

    Dave, no they do not. Students send judges copies, and judges willingly accept them. I should stress that a professor will initiate recommendations with a judge (by calling him/her) only rarely. Most of the time, the student will give the judge a list of references and the judge will call the professor, who will speak on the student’s behalf. I do know certain profs who have initiated contact with the judge, but these seem to be those that aren’t connected with Career Services in any way (they’re “going rogue” in a sense). I guarantee this happens at all schools. They have to do this or they wouldn’t place anybody in 2/9/DC.

  11. Anonymous says:

    Duke sent personal emails to certain 4th Circuit judges highlighting students before the plan. No recommendations were sent, but the professors were available to speak on behalf of the students. Duke is not the only one guilty of this practice, however. Applications were received all summer from students all throughout the country.

  12. Anon says:

    As a recent clerk, I think the hiring plan has made one lasting change to the market even if the plan itself ceases to be strictly enforced: many judges have come to prefer hiring clerks with a year or two of post-law school experience not only for the convenience of being able to hire early, but because those clerks come better prepared for the job than do clerks fresh out of law school. I think we’re seeing a clerkship increasingly become something you do a year or two out of school, and I don’t expect that trend to change even if the hiring plan is ultimately cast aside. That’s good, because it means that the absurdity of hiring rising 2Ls for post-law school clerkships is unlikely to return; at most, courts may move to interviewing and hiring law students over the summer before their 3L year.

  13. current COA clerk says:

    I am currently a clerk for one of the more selective federal court of appeals judges. We received 3L applications this summer, as early as May (predating my tenure), with letters of recommendation from professors, from Yale, Harvard, Stanford, Virginia, Michigan, Northwestern, and I believe NYU and CLS (I would have to check as to those two). Quite a few lower ranked schools did the same.

    As some of the other commenters note, there seem to be a very large number of well-qualified alumni on the clerkship market. My judge, like many of those on this circuit, is already done hiring. Some of the 11-12 hires are 3Ls.

    One thing the post above does not speak to, but in my mind should, is the surprising incidence of hiring for 2 years out–i.e., hiring right now for 12-13. A quick look at OSCAR and some time spent investigating the non-OSCAR hiring will reveal that a great many 12-13 clerks have already been hired.

  14. Jay says:

    It’s not only the 4th Circuit; almost no 11th Circuit spots, and no more than half on the 5th, get filled “on the plan.” This leads to the situation where the spots on those circuits largely go to in-the-know students from southern schools, or with some connection to the area/judge, long before the hiring plan release date.

    In most cases where supposedly plan-following schools are being reported for “violating” the plan, I suspect the case is simply that some people are more ambitious than others, and understand they can’t take their official school line seriously if they want certain clerkships. So they rely on personal connections with profs (rather than the clerkship office) to get their applications/letters filed when they want them to be. At my (plan-following) school, there was no real effort made to force compliance by faculty, few of whom seemed to really know or care about the details. The clerkship office just refused to provide any assistance if you were applying earlier, and issued a lot of vague but unenforceable threats about what would happen if you did so. This was 3 years ago, so I’m sure the situation is even more ridiculous now.

  15. anonymous says:

    How is this not a combination, contract or combination in restraint of trade?

    This sounds like a cartel arrangement that would not be allowed in any other market.

  16. ox says:

    The claim that the 4th Circuit has abandoned the plan is false. It is true that a number of judges in CA4 have hired early (and have done so for years), but there is no systematic or official statement by the Circuit. And at least a handful of judges have not violated the plan by hiring 3Ls, at least not before the applications arrived according to the Plan’s schedule. There might be some unraveling as to the “reading week,” but I wouldn’t equate that with wholesale abandonment.

  17. Jay says:

    Ox– Of course there is no “systematic or official statement by the Circuit.” I don’t think that’s what anyone thinks is meant by a statement like “circuit x has largely abandoned the plan.” That hardly means the plan is in good standing in the 4th Circuit or anywhere else.

    anon– I’m no antitrust expert, but I think it’s not a cartel because hiring and placing law clerks isn’t an industry or “trade” that can be “restrained.”

  18. ox says:

    Jay — the claim above is this: “Certain circuits -the 4th in particular- simply decided to opt out of the plan altogether, and have largely finished hiring.”

    This implied the circuit made a collective decision to opt-out, or at least that there was widespread defection by the judges — and both claims are simply false. After some checking, it’s even false to say that a majority of the judges in CA4 opted out. We could work our way through the list of judges, but I count at least 8 (and possibly as many as 10) of 12 who have not hired 3Ls off plan. Many have certainly hired alumni (leaving few position left for current 3Ls), but that is not in violation of the Plan. One or two may have hired 3Ls very recently, after applications went out — again, not wholesale abandonment. Do you have evidence to the contrary?

    If the overwhelming majority of the judges in the circuit haven’t hired 3Ls off-plan, then the statement above is false. Unless there is evidence showing early hiring of 3Ls by more than a couple judges, I think the statement should be corrected or retracted.

  19. ox says:

    A correction — I overlooked a recent CA4 appointment in my counting. That would make the number of non-defectors something like 9-11 of 13.

  20. ox says:

    Also, to anticipate a possible reply, I don’t think hiring alumni is the same as “opting out” of the Plan, or defecting/cheating on the rules of the Plan. The Plan explicitly allows for alumni hiring. The significant increase in the practice of hiring graduates may have been an unintended or perverse consequences of the Plan (and it may be a good reason to abandon the Plan), but it does not contravene its explicit terms.

    If hiring graduates is “opting out,” then we should extend the same description to hiring career clerks. In which case, many judges in CA4 (and in many other circuits) have always been “off-plan.”

    The real issue here is early hiring of 3Ls in violation of the judges’ agreement, and the claim above suggests more of this is happening than is actually the case, at least for the one circuit that is explicitly named.

  21. Dave Hoffman says:

    Ox – thanks for this information. Can you give us a sense (since you have information) of the number of judges **who hire law students** who comply with the hiring plan versus those who do not? I agree with you completely that hiring graduates is neither here nor there. Also, it isn’t “cheating” or “violating” the agreement for a circuit judge to hire when they want. It’s a voluntary system, and they aren’t bound to do a thing. The question is for law students. If you are applying to the 4th circuit, does it make sense to wait until September to send your application in? Every person at various career planning offices who has written me about this has said that the 4th circuit is not on the plan – the judges hire when they want. But you seem to know different, and it’s great that you are willing to talk about it so that students can make smart decisions.

  22. Ted says:

    Several CA4 judges simply do not hire students, thus they should be left out of the calculus entirely–not as following the plan and not as breaking it. Agee is one such example, as on OSCAR he comes right out and says he requires prior experience. I believe there are others that take this approach as well. So Dave is correct that the denominator should be the # of judges who hire 3Ls.

    As for the numerator, we can safely put Chief Judge Traxler, Judge Wilkinson, Judge Niemeyer, Judge Motz, and Judge King in the group that hires 3Ls before appointed plan date for interviews. Several of the other CA4 judges are so new that they do not have a track record one way or the other, and should–in my view–be excluded from the calculus (e.g., Wynn, Keenan, Davis). That leaves Judges Duncan, Gregory, Michael, and Shedd. Shedd may be one of the alumni-only judges or one of the early movers as to 3Ls, as this entry suggests: http://www.lawclerkaddict.com/appellate/fourthcircuit/shedd
    (“Judge Shedd is done per OSCAR. No positions until 2011 “at the earliest,” posted 8/28/09).

    So by my calculation, at least 5 or 6 of the 9 CA4 judges who (1) have more than 1 year on the court and (2) hire 3Ls do so pre-plan. That constitutes a clear majority of the relevant pool of judges.

  23. Ted says:

    Also, Dave, the graph you lead with is a little misleading, as it suggests that large schools, such as Harvard Law, are comparatively better at placing clerkship candidates than smaller schools, such as Yale law. A graphic depicting per capita placement would make more sense, at least as a compliment to the current image.

  24. ox says:

    I disagree with Ted’s numbers. First, he’s wrong about Traxler and Motz. Traxler has career clerks, and Motz may move early, but not before applications arrive on Plan. I’m less sure about King, but he’s been hiring mostly graduates as well.

    Second, Agee and Keenan are both hiring only graduates for two-year clerkships (which is not Plan-related but rather follows from their practice on the Virginia Supreme Court). To my knowledge, Davis did not break the plan this year, and was on plan as a district court judge in Maryland. I agree that there is no information about Wynn.

    If we’re counting, that’s still 8-9 of 12, who are not obviously defecting from the Plan by hiring 3Ls early. But I would add: even if those numbers are off by 2 or 3, still half of the judges in CA4 are clearly not hiring 3Ls early. So it remains false to say that the “4th in particular- simply decided to opt out of the plan altogether” — unless by “4th” you mean the 2 or 3 judges who are clear early movers.

    If your question is: how many positions in CA4 are available to students who mail applications on plan, I’d say less than a handful across the circuit. But for most 3Ls, sending applications early won’t help. The judges who are moving early to hire 3Ls are selecting from a very small pool, and the rest are hiring graduates. When you take away all the career clerks and graduates, there just aren’t that many jobs left in what has been, until recently, a relatively small circuit.

  25. Ted says:

    I suppose we will have to agree to disagree re: Motz. My data, which comes on very good authority, points one way, and yours points another.

    But I do think you obfuscate the point somewhat. By your own concession, of the CA4 judges that hire 3Ls, most hire early. And I do think that going to all-alumni hiring, while not technically a plan violation, is an opt-out of sorts. So really I don’t see what is so wrong about Dave’s post.

    More broadly, look at the Ninth, Tenth,or Eleventh Circuits. Ox, do you maintain that judges on these circuits have not abandoned the plan en masse, as to 3L applicants?

  26. Ox says:

    There’s no obfuscation — this is just a matter of stipulating what counts as (1) violating the terms of the Plan (where “violating” just means not following the terms voluntarily), and (2) “opting out” of it. On my view, (1) judges can follow the Plan and hire graduates under its explicit terms, and (2) they don’t “opt out” by hiring graduates, which is consistent with the Plan.

    The Plan was created to prevent the hiring of law students from creeping back to the point where very little information was available about them, at least with respect to their performance in law school. Hiring graduates/alumni does not compromise that specific underlying purpose. In fact, judges who hire graduates are, in many cases, hiring law students who are applying after 5 or 6 semesters, rather than after 3 or 4. It may be a perverse consequence of the Plan in that no one fully expected this result, but it’s also consistent with at least some of the Plan’s ambitions. (Though, for what it’s worth, I think the Plan is a failure, and that there are serious costs to hiring law students for the year, or two, after their graduation.)

    My point above was fairly simple: if the claim is that CA4 has “simply decided to opt out of the plan altogether,” I just don’t think that’s accurate. Most of the judges on CA4 abide by the explicit terms of the Plan, which allows them to hire graduates and career clerks (who are, after all, graduates who remain in the job more than one or two years). If you want to stipulate that “opting out” includes hiring graduates, that’s fine. But there is no breach of any voluntary agreement, and no “unraveling” of that agreement by judges who do not hire 3Ls early. So I think it makes sense to distinguish these cases.

    I don’t have fixed numbers on CA9, 10, and 11. In CA9, some judges are hiring early, but many are clearly on Plan and hiring 3Ls (or graduates) according to it. I know for a fact that the same is true for at least a handful of judges in CA11, though it’s also clear that many have defected.

    This shouldn’t be surprising. Judges in parts of CA9, 10, 11 have strong incentives to defect because it’s difficult for students to reach them under the terms of the Plan. Judges in San Francisco and LA have little incentive, but judges in AK, AZ, OR, WA, etc., don’t get the benefit. The same goes for NY and DC on the east coast, as compared with judges in parts of CA3 and CA4. The mystery is why more judges haven’t already defected in, say, CA5 and CA6. Or put another way: Why has it taken so long for the Plan to unravel to the extent Dave suggests above?

    One answer is clearly the availability of very qualified graduates. The bad economy has helped judges in this regard. But even so, it’s hard to see why judges who are clearly disadvantaged by the Plan have stayed with it. For some, I think it’s a matter of integrity and a protest against the system’s failure. For others, my sense is that they know that, even after all the defectors have moved, there are still going to be plenty of qualified candidates out there — 3Ls and graduates alike. They just aren’t in it for the rat race. And good for them.

  27. Anonymous says:

    Few, if any, judges on the Tenth Circuit follow the hiring plan. Judge McConnell did but he resigned.

  28. Anon. says:

    Another thing to bear in mind is that just because a judge technically hires “on-plan” doesn’t actually mean that they’re acting consistent with the plan’s substance or objectives. In CADC, for example, some judges make contact with potential clerks over the summer, make their decisions in advance, then do their hiring the morning of the first day that interviews can be held. They just don’t formally interview or hire 3Ls early.

  29. Anon. again says:

    Not that the CADC practices are new or surprising to anyone who follows clerkship hiring closely. But then neither is the disintegration of the hiring plan. I take Ox’s point that many judges on CA4 are acting contrary to the plan’s restrictions. But if we’re at the point when very few judges are hiring 3Ls meaningfully on-plan, is it really the plan that’s doing the work anymore?

  30. Ox says:

    My main criticism of the Plan is not that judges are defecting from it. It’s that they’re hiring graduates in increasingly large numbers. That changes the nature of a clerkship, and it’s disruptive for the careers of many law students. The Plan was not intended to have this effect, at least not on a large scale.

    The question is (as it always is): What’s the alternative? If the options are (1) a Plan with some defectors + some 3L hiring + pervasive hiring of graduates, and (2) no Plan with hiring as early as 2 semesters (or earlier?) of grades, it might be difficult to know.

    I’ll bet that option (1) is better for law students who aren’t at top-5 or top-10 schools, and it’s better for students who actually want to practice law. It benefits students at lower ranked schools and students at higher ranked schools who need some time to find their place in the law.

    If the Plan fails and hiring of law students creeps backwards, I also wonder what effect that will have on students at schools that don’t grade in the first year. They won’t have grades, and they might not also have very strong connections yet to faculty — with no time to do research, writing, etc.

    Thoughts?

  31. Ted says:

    I’ll echo anon’s pointre: CADC hiring. I know of two situations this summer in which a highly qualified 3L candidate had an early interview offer from a solid non-CADC judge and was instructed by faculty recommenders not to take the interview, on the basis of assurances from a CADC judge.

    In fact, one could argue that CADC abuses the plan more than any other court of appeals, since on the one hand it outwardly appears to follow the plan, but on the other informally fills most of those supposedly open slots far before September.

  32. ox says:

    Very risky to pass interviews based on “assurances”. Maybe Ted can let us know how it works out for those students. I’ve seen some rather predictable and unfortunate outcomes based on similar situations. My sense is that many CADC judges interview a group of students who have reasonable assurances of getting an interview, but not necessarily of getting positions. And then it’s a matter of how the interviews go.

  33. BDG says:

    On whether the agreement violates the Sherman Act, see 78 Colo. L. Rev. 147. Also, the authors (in 2007) predict the great unraveling.

  34. ox says:

    Not much of a prediction, given that it had happened twice before. Again, what’s interesting is that it lasted as long as it did. What explains that?

  35. UChicago 3L says:

    Almost the entire 7th Circuit, with the exception of Sykes, Williams, and possibly Cudahy and Bauer, is off plan. Posner, Easterbrook, Williams, Hamilton, and the other Indiana-based circuit judges all hired months ago.

  36. Ryan says:

    It is sort of true about Michigan–I work for a federal judge and we got calls and packets from the school during the *spring*–they claim that because their school has a summer start program, those who were in the summer program should be able to send clerkship applications early.

  37. SagatAdon says:

    Perhaps that’s why judges have been receiving threats lately: http://lawblog.legalmatch.com/2010/09/08/has-there-been-an-increase-in-threats-against-judges/

    Bitter law students looking hate rejection, after all…

  38. Mark says:

    One thing that I often think gets left out of the equation in these discussions is the role played by current clerks. I am interning for a federal judge now (disclosure I am a deferred associate), and the clerks, while obeying the plan, did all the leg work in reviewing the applications. This was done to ensure that all applications were reviewed, which I generally support. However, what this also led to was a preference for Ivies and similarly situated schools. Top students from say, my law school, a top 25 ranked school, didn’t get much if any attention. So the nepotism runs deeper than a simple plan versus no-plan dichotomy. Clerks often but not always come from a certain echelon of schools, and they have friends who are still at those schools. Or they know of people through alumni networks. In a competitive pool, these applicants get a leg up. Does that prejudice those excellent students who didn’t happen to go to the “right” school? You bet. And there is no evidence, based on my experience, that these students who become clerks are any better prepared or more intelligent. In fact, it may be arguable that the entire clerkship system, based primarily on hiring 3Ls, is one only one of nepotism and not merit.

  39. John says:

    Mark, the reason people go to top schools and spend hundreds of thousands of dollars in tuition money is for more opportunities to clerk. That’s just the way it is. And let’s face it, sometimes it’s hard to tell whether a candidate from a lower ranked school with a stellar GPA is as talented as someone from a higher-ranked school with a good GPA. Transfer performance at new schools is evidence of this: sometimes a person who is #1 at a lower ranked school end up doing just as well at their top 10 school and sometimes that person ends up at median. There’s no clear way to tell. In my view, students from lower ranked schools place well in federal clerkships.

  40. Ted says:

    To tie up a loose end from the comments above, Ox is incorrect about the Fourth Circuit. The National Law Journal had this to say in an article on the “clerkship scramble” a few weeks ago:

    “Certain circuits openly acknowledge that most of their judges don’t follow the plan — most notably the 4th, 5th, 10th and 11th circuits. The judges on the 4th Circuit voted several years ago to bypass the hiring plan altogether, said Chief Judge William Traxler Jr. ‘There was a long discussion and a division of opinion, but the majority did not want to go along with it,’ he said”

    See http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202473438279&slreturn=1&hbxlogin=1.