Friday, February 1, 2013

The Federal Law Clerk Hiring Plan is Dead

About ten years ago, federal judges (the appellate ones, at least) got together and formulated a "law clerk hiring plan." This "hiring plan" was in response to what was perceived to be an "arms race": judges were hiring clerks sooner and sooner in their law school careers, because each judge had an incentive to snap up the best "talent" as quickly as possible. Thus, back when I was in law school (before the hiring plan was implemented) we started interviewing for clerkships in the fall of our second year—nearly two full years before we would actually report for duty.

The "hiring plan" was an agreement among the federal appellate judges not to interview law students until they were in their third year of law school. At the time, this agreement seemed inherently unstable since it was non-binding and unenforceable. What would happen to a judge who hired a second-year law student? Other than a dirty look or two, nothing.

It took longer than I thought it would, but it appears that the plan is now in the process of coming undone:
Judges have begun hiring earlier and earlier, deciding not to comply with the hiring plan. This has created a race to the bottom, where judges interview (and offer jobs to) applicants with less and less law school experience. One judge memorably proclaimed that he thinks the appropriate time to start recruiting is "at birth."
The final nail in the coffin of the hiring plan came yesterday, when the United States Court of Appeals for the D.C. Circuit, called by some the "second highest court in the land," announced that it was abandoning the hiring plan.
The core flaw in the hiring plan is the notion that a student's performance in the second year of law school will tell the judge something useful about a potential hire's qualifications for the job. The truth, however, is that judges learn 99.9% of what they need to know about potential clerks from their first year grades. All law students, after all, have already been to and graduated from college, so it is not as though second-year law students are lacking an ample paper trail. The ones who excel academically in their first year in law school are the ones who will excel academically in their second and third years. So there just isn't any good reason for judges to wait, except that it apparently "looks bad" to hire students when they've still got two years of law school left. It might make someone wonder, "Hey, if judges can already figure out who the best hires are, what is the point of these last two years of law school?" And these are dangerous thoughts.

One argument in favor of the hiring plan is that, back in those pre-plan days, there was a federal judge foolish enough to hire me. But that particular judge saw the end of the hiring plan coming even before it went into effect:
A cartel's flaw always lies in the fact that the lion's share of monopoly gains flow to those who first break the cartel grip and jump out ahead of their competitors. In this case, the first judge who violates the deal will get to nab the top students from the best schools -- and do so before fellow judges have a shot at them. Each of the previous plans has run aground here, and there's no reason to expect otherwise this time.
Perhaps there is an alternative suggestion: Why not try a little honest self-restraint? If a judge needs more information than can be developed in two semesters of law school to make a quality clerkship decision, why not wait as long as needed? If others need less time or information, so be it. There is a name for this alternative proposal: It's called a free market.

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