Zelinsky on the Federal Law Clerk Hiring Crisis
posted by Danielle Citron
My colleague Aaron Zelinsky, who is visiting with University of Maryland School of Law before heading off to the Supreme Court to clerk, has written an incisive post at the Huffington Post on the federal judiciary’s failure to stick to the hiring plan, the troubles defection causes, and his recommendation for what we ought to do about it. The entire post is here. For a bit of his wisdom:
So what’s to be done?
If judges are serious about creating a new plan to fix this race to the bottom, there’s an easy solution: use the old plan. The old plan worked just fine. It only had one problem; it was voluntary, so it unraveled. The solution is simple: make the plan mandatory.
Remember the story of Odysseus, who wanted to hear the song of the Sirens but was worried that doing so would cause him to sail too close to the rocks and wreck his ship? To get around the problem he had his crew tie him to the mast.
The judicial branch tried this solution with the old hiring plan, but they made a critical mistake: Odysseus didn’t tie himself to the mast. He had his crew do it. That way he couldn’t get the knots undone. Otherwise, tying yourself up is about as useful as putting that piece of chocolate cake in the back of the refrigerator. Sure, it helps for about ten minutes, but then you open the door, move the mayonnaise to the side, and there it is.
Instead of voluntary compliance, the judicial branch should ask someone else to tie them to the mast. In the context of our constitutional system, the term of art for this is one you may remember from middle school civics: the separation of powers.
Congress has the power of the purse. It allocates funds for building courthouses, keeping the lights on, and employing staff. For instance, law clerks are employed under 28 U.S.C. 752 (for district courts) and 28 U.S.C. 712 (for circuit courts). If the judiciary really wants to fix the hiring plan, then judges should request that Congress condition salaries for law clerks upon them being hired in compliance with the judicial hiring plan. In other words, if you don’t play by the rules, you don’t have law clerks.
But wait, isn’t that unconstitutional? Nope. The Constitution prevents Congress from lowering the salaries of federal judges, but says nothing about their staff (anyways, such a law could be written to apply only to those hired in the future, not those already employed). And Congress isn’t infringing on the judicial power in any way – this law does not effect how judges make use of their clerks, just the timing of how they hire them. And it would leave the actual formation of the plan up to the judiciary.
Federal judges could ask Congress to make the hiring plan mandatory via a proposal from a special judicial working group, or even in Chief Justice Roberts’s year end report to Congress. And they should. A new, mandatory plan would be fairer for less-advantaged law students and late-bloomers, more efficient for federal judges, and maybe even better for you.
February 1, 2013 at 9:57 am
Posted in: Blogging, Constitutional Law, Courts, Interviews
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Responses (11)
Joshua - February 1, 2013 at 10:57 am
Great plan. This way, all of those unpaid clerkships will go to even more upper-class students who can afford not to be paid for a year and aren’t saddled with hundreds of thousands of dollars in student-loan debt! I guess Mr. Zelinsky has a slightly different definition of “fair” than me.
Steve M - February 1, 2013 at 6:41 pm
Joshua’s comment hits the nail on the head. Like VAPs and fellowships, the most prestigious clerkships would essentially be unavailable to those of us who paid for law school and do not come from an affluent background.
Brett Bellmore - February 2, 2013 at 8:46 am
“At a minimum, this privileges students who do well in the first semester or two of law school over those who take a little while longer to “get it.”"
And what exactly is the problem with ‘privileging’ those who do well academically?
I just don’t see a “crisis” here.
Howard Wasserman - February 2, 2013 at 10:41 am
Brett: Because you’re not necessarily doing that; you may only be privileging someone who did very well in 1L year. Two students may end up in exactly the same place academically, but Student A did great 1st year and dropped off, while Student B did fine the first year (say, well enough to make Law Review) and really well the next two years. But when hiring is based only on 1L grades (for a job two or more years down the line), Student B, although he certainly “d[id] well academically”, is going to fall through the cracks. BTW, that not only tilts the balance for the students, it also is somewhat unwise for judges truly looking to hire the top law *graduates*.
BTW, Joshua: I assume you were using hyperbole when you described clerkships as “unpaid”.
Brett Bellmore - February 3, 2013 at 8:24 am
“Necessarily” is a pretty high hurdle to pass. I would suggest that, while someone doing well in their first year won’t necessarily do as well in their second, and somebody doing badly in their first year won’t necessarily have trouble in their second, that is “the way to bet”.
Joshua - February 4, 2013 at 1:58 pm
Prof. Wasserman,
I don’t believe the term “unpaid” is hyperbolic. The core of Prof. Zelinsky’s proposal is for Congress to defund those clerks hired off-plan. That would mean that they are unpaid for the work they would perform as law clerks.
I suppose it could be argued that many law firms would give those unpaid clerks bonuses of tens of thousands of dollars once they get to the end of that rainbow, and in that sense they are not truly “unpaid,” but those are essentially signing bonuses for what amount to “high draft picks.” While those clerks are working for their judges under Prof. Zelinsky’s proposal, they would not be getting a salary for their work. I believe that comports with both the connotation and denotation of the term “unpaid.”
Many judges don’t care what their clerks are paid. They care about getting the best brains they can and putting out the best work product possible. Their duty is to the law and to the country–not in making law students’ lives as pleasant and rewarding as possible. Judges from Breyer (then-judge Stephen–not his brother–and anyone who quibbles about that label with him should look at Article III and relax) to Kozinski have been quoted out there on this topic for decades.
There are plenty of affluent students from schools just like those that Prof. Zelinsky attended who (1) don’t have student-loan debt, (2) can afford to take what would amount to an extremely prestigious internship for a year, and then (3) work at a great law firm that will reward their year of hardship with an extremely generous clerkship bonus.
Finally, for the last couple of years, there has been a restriction similar to Prof. Zelinsky’s on federal judges from the contiguous 48 states. Those federal judges’ clerks who are not American citizens may not draw a salary. Lo and behold, while I was a law clerk two years ago, I heard multiple stories of judges who took it upon themselves to “hire” clerks who fit that bill.
It’s not that I don’t agree with Prof. Zelinsky’s aim to tie judges to the hiring plan. When I applied as a 3L, I got screwed by sticking to the rules and timelines. I also agree with you, Prof. Wasserman, that judges hiring clerks too early in law school is unwise. The point that I’m making is that Prof. Zelinsky’s proposal will, like many “reforms” that the legal academy have put forth, ultimately backfire in the real world and will primarily reward those persons who are miraculously the most similar to themselves.
Aaron Zelinsky - February 5, 2013 at 9:06 am
I don’t think the predicted doom and gloom – that the most sought-after judges will get free labor and hire early – will come to pass.
First, those individuals wouldn’t be “clerks,” hired under 28 U.S.C. 712 and 752. They would be volunteers. For example, see http://www.flsd.uscourts.gov/?page_id=269 (“Law Clerks are paid employees of the U. S. Courts. All unpaid individuals who volunteer their time are considered interns.”). As long as the Supreme Court maintains a policy that its clerks must complete a federal clerkship (as opposed to an unpaid federal internship) before clerking for the Court, then no “feeder judge” will want to opt for the unpaid model, because no clerk with a shot at the Court will want to be a volunteer intern for him or her.
Second, my proposal provides an incentive to stop the plan unraveling from the bottom up by creating a clear disincentive to go off plan. Right now, a judge who hires off plan is equally attractive to a student as an on-plan judge. In other words, there is no difference in the quality of clerk an off-plan judge attracts. If my proposal were implemented, then an off-plan judge would be $70,000 (give or take – figuring on a clerkship salary plus the cost of health care) less attractive to a potential student than an on-plan judge. This means that for similarly situated judges, the optimal strategy would be to remain on plan. (Of course, this doesn’t do away with the concern completely – the guarantee of having an unpaid internship rather than the risk of receiving a paid clerkship is worth something, but I doubt it’s worth $70,000). The key is to change the incentive structure to make staying on plan the dominant strategy for similarly situated judges. That’s how to discourage unraveling.
Joshua - February 5, 2013 at 6:24 pm
Prof. Zelinsky,
First, although it might be shocking to say on this site, not everyone actually wants a U.S. Supreme Court clerkship. And I’m not too sure if the statements on one district court site are authoritative with regard to the many other districts and circuit courts across the country. Bottom line: there are many, many lucrative federal clerkships that have little “feeder” connections to the U.S. Supreme Court but can still be extremely attractive on the job market. Clerkships in the most litigious federal districts come to mind, as do bankruptcy clerkships in Delaware and the Southern District of New York.
Second, although your proposal obviously alters the incentive structure and calculus that some judges and clerkship applicants will have, you’re still ignoring the practical reality that many large law firms will pay a clerkship bonus to mitigate or entirely offset that point of your proposal. Now, I will grant you that this argument of mine is ignoring the time value of money, but this reasoning applies to any deferred-benefit and/or prestigious-placement decision, such as college or law school itself.
Aaron Zelinsky - February 5, 2013 at 8:10 pm
Joshua,
I agree that not everyone wants a Supreme Court clerkship. But at least one subset of relatively sought-after judges would likely stick with the plan. As for the district court — agreed that’s not authoratative. But the problem could be easily fixed by a clear statement by the Court accompanying the legislation that they would only hire those with circuit court clerkships. I don’t know the last time the Court had a clerk who didn’t have a circuit court clerkship first, but I would guess it’s decades.
2. I disagree about the law firm bonuses. In order to properly offset this effect, the firms would have to pay extra bonuses to those who worked for free (otherwise there’s still a pay gap — a clerk could get paid to work and get a bonus afterward or work for free and get a bonus).
jt - February 7, 2013 at 10:08 am
It used to be the case 4-5 years ago that federal agencies were/are prohibited from accepting volunteers except for those who enrolled in an educational program while serving as a volunteer. One a person has graduated, she can no longer volunteer. I don’t know if the same prohibition applies to the judicial bracnch, but it certainly should – lest companies or law firms fund law clerks and thus put a thumb on the scale
Joshua - February 7, 2013 at 11:27 am
I know for a fact that multiple US Attorneys offices were openly soliciting for lawyers to work for free a few years back. Guess they didn’t know about that prohibition.
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