According to a recent post on Concurring Opinions by Dave Hoffman (http://www.concurringopinions.com/archives/2010/09/the-quickly-unraveling-clerkship-market.html), the “law clerk hiring plan” is unraveling–fewer and fewer clerkships are being filled via this system. Dave highlights several reasons why this is occurring, but one observation that particularly caught my attention is that judges are increasingly hiring practicing lawyers (to whom the hiring plan explicitly does not apply) rather than 3Ls.
This absolutely seems to be the case. I saw it developing when I was clerking on the Second Circuit from 2005-06, and now that I direct a program at Pace that places students in judicial externships, I frequently hear from students that the law clerks with whom they are working have some previous practice experience (at least a year, if not more).
I can definitely understand why judges are interested in hiring clerks with practice experience. I myself clerked twice — for a district judge right after law school; and then for a circuit judge after having practiced at a law firm for two years in between — and I know that all of my previous experience helped make me a better clerk the second time around. What’s more, with the way things are in the legal market currently, it seems inevitable that increasing numbers of practicing attorneys will be applying for clerkships, making it easy for judges to fill their openings from these ranks. (That judges can feel completely free to make these hires on their own schedules, as opposed to through the “law clerk hiring plan,” probably — and understandably — makes it even more appealing.)
Is there any downside to this? It makes sense from several perspectives, but I still feel a little sad about the idea that clerkships right after law school are becoming an increasing rarity. It sounds corny, but clerking is a genuinely inspiring way to begin your career in the law (not to mention a great learning experience)–at least it was for me and many of my fellow law school graduates. So I can’t help feeling that something is being lost here, but I’m not sure what the answer is.
Posted by Emily Gold Waldman on September 12, 2010 at 10:42 PM
Comments
I did the same thing as the author of this post – district court clerkship, two years of practice, and then a circuit court clerkship. I was definitely a better clerk and attorney the second time around in every way – writing skills, analytical ability, even workplace demeanor.
My second judge is only willing to hire attorneys with 3+ years of practice experience, and based on my clerkship experiences, I agree with her reasoning. I agree that clerkships are a wonderful way to begin your career in the law, but I think that this consideration is outweighed by the benefits that experienced law clerks provide judges and the public.
Posted by: clerk2 | Sep 15, 2010 7:13:47 PM
I clerked on the Seventh Circuit 5 years out of law school (while I was on the teaching market) and had a wonderful experience. After many years of being specialized in IP, the clerkship gave me a chance to become a generalist again, and it helped me polish my writing skills. Howard noted that a clerkship can serve as an extension of law school; for me, it was like returning to school.
With regard to Sam’s comment that judges can help train new lawyers and help them find their way, I got that experience even though I had been out of school for so long. The judge I clerked was and still is a mentor. He is also a law professor, so he was able to help me navigate the teaching market and give me advice as a new professor.
I tell all of my students that if a clerkship doesn’t work out straight out of law school, to consider it a few years down the line. For me, a late clerkship was a fantastic way to transition into my new job.
Posted by: Sapna Kumar | Sep 15, 2010 11:03:41 AM
Twelve years ago, I clerked for three years following one year of practice, although not really by choice. The economic implication is that you got paid significantly more money than fellow, just-out-of-school clerks. The one year of practice experience brought a bump up in pay-grade (GS-11 to GS-12). Then a salary-matching plan (at least back then) moves you as high up in GS-12 as one could go to reach (or come close to) the law-firm salary. Career-wise, my law firm was suspicious that I ever was coming back when the clerkship was over (my clerkship was in a different city), but, of course, the clerkship allowed me to go in different directions.
One point of Emily’s that I would echo is the inspiration and enjoyment of starting a career in a clerkship. I saw the clerkship as an extension of law school–not only in the type of work we did with the Judge and the intellectual nature of it, but also in the shared experiences (social and professional) with fellow clerks of similar age and experience.
Of course, one question is the degree of change. I would expect that these “experienced” clerks are people still fairly fresh (1-2 years) out of law school. So maybe the experience is not *that* different.
Posted by: Howard Wasserman | Sep 13, 2010 10:27:20 PM
I think that this is a horrible trend, IF it happening at the District Court level and throughout the country. (If it’s just at the Court of Appeals level, and just in the very few biggest cities, I wouldn’t care nearly so much.)
I understand that it would be “better” from many judges’ perspective to have clerks who already have some years of practice – they can do a better job on some tasks, sure.
But what would be lost – again if this is a widespread practice including Dist. Cts. – is the understanding that the judge’s interests in efficient production are not the main interests at stake. At least when and where I started off – Dist. Ct. clerkship, N.D. Ala., 1989 – the judges knew that, by hiring clerks out of school and training them and helping them find their way into the local bar (in a sector that was right for each clerk), the judges were doing a service for the clerks and for the legal community. Maybe that’s a quaint notion that doesn’t exist in most places anymore – the legal community – but it really did at that time, and does still in some places at least.
Posted by: Sam Heldman | Sep 13, 2010 12:13:35 PM
What are the economic/career implications for first practicing and then clerking as opposed to first clerking?
Posted by: Shag from Brookline | Sep 13, 2010 9:33:05 AM
Historically, the benefit of having a new graduate clerk or a permanent clerk is that you don’t have to worry about conflicts involving your clerk’s work at their law firm.
Posted by: Anon | Sep 13, 2010 1:31:20 AM
i can’t weigh in on whether experience makes a better clerk, but it sure is incredibly frustrating for a recent graduate to try to compete with such a candidate.
Posted by: Taiyyaba Qureshi | Sep 12, 2010 11:42:07 PM
I agree that it’s a good thing for the law: Clerks with practical experience tend to do a better job than those without. The only downside is that it’s probably more ideal from the perspective of recent graduates to clerk first. But on the whole I think that’s a big net positive, as the former is much more important than the latter.
Posted by: Orin Kerr | Sep 12, 2010 11:11:03 PM