Salvaging the 2013 Federal Law Clerk Hiring season.

• Author: Tobias, Carl

Ten years ago, the judiciary instituted the Federal Law Clerk Hiring Plan, (1) an employment system meant to regularize hiring in which most circuit and district court jurists voluntarily participated. Throughout the succeeding decade, this process operated effectively for innumerable trial judges, but functioned less well for appellate jurists. In early 2013, the U.S. Court of Appeals for the District of Columbia Circuit revealed that all its members "will hire law clerks at such times as each individual judge determines to be appropriate," concomitantly explaining "the plan is [apparently] no longer working." (2) With these statements, the D.C. Circuit explicitly acknowledged what had been the reality for the last decade regarding much court of appeals employment. However, the notice sparked a critical hiring frenzy among district jurists.

Because that phenomenon of early district court hires may eviscerate the 2003 Hiring Plan, which substantially reduced the complications that had acutely infected the process since the 1980s, this problematic development merits review. I initially detail the clerk hiring process' relatively checkered history, ascertaining previous endeavors to improve the clerkship scheme lacked efficacy, although the practices formulated in 2003 were successful. The piece next scrutinizes the present season, detecting that certain actions by jurists closely resemble troubling elements of measures in place before. Finding the plan's imminent collapse essentially imposes disadvantages on law students that eclipse its benefits and finding no alternative regimen preferable, I suggest that districts and members remain committed to the procedures that have served applicants, legal education, courts and jurists well for ten years.

1. A BRIEF HISTORY OF THE HIRING PLAN

   Between 1985 and 2002, hiring grew more chaotic. The process steadily accelerated, while increasing numbers of judges engaged in cutthroat and unseemly competition for applicants whom they considered the best and the brightest. (3) Judges premised clerk employment on limited information and, thus, could even have selected people with deficient legal, research and drafting capabilities or nominal interpersonal skills. (4) To combat perceived deficiencies with the employment process, preeminent jurists of the thirteen appeals courts, whom Third Circuit Chief Judge Edward Becker and D.C. Circuit Judge Harry Edwards assembled, crafted a novel hiring plan that appeared in a March 2002 report. (5) The system placed a 2002 voluntary moratorium upon recruitment, while it encouraged jurists to interview and employ law clerks beginning their fifth semester in the next year and the future. (6) The plan that emerged, capitalized on the Tuesday following Labor Day as the benchmark when students could first proffer, and courts receive, applications. Judges, correspondingly, were to delay one week before routinely scheduling possible interviews to commence seven days later, after which members could grant offers.

   Those practices remedied the signature difficulties, which plagued law clerk hiring some twenty years, rectifying or ameliorating concerns that prior approaches entailed. For instance, the pre-2003 approach deleteriously affected students not located in metropolitan centers, principally on the Eastern Seaboard, where proximity facilitated travel among chambers, seeming to benefit numerous applicants and jurists in the areas.

   The 2003 plan clearly advantaged certain students, professors, and schools. For example, this permitted students two complete years in which they acquired and demonstrated competence and reviewed promising career options. (7) The scheme provided application and interviewing procedures that were less disruptive of routine operations, notably classes, as students could easily arrange multiple potential clerkship interviews across locales. The solution provided jurists four semesters' academic performance on which to depend when hiring clerks. Vast numbers of trial level jurists strongly respected the plan, but their appellate counterparts decreasingly honored this alternative. (8)

2. THE 2013 SEASON

   Several factors complicate efforts to identify exactly what happened after the D.C. Circuit announced tribunal judges would cease following the plan. Most relevant information is difficult to collect, evaluate and synthesize, primarily because it seems to not be publicly available, and much of the remaining applicable material is anecdotal. There correspondingly are myriad complex variations among, and within, the country's educational institutions that help students and the ninety-four federal courts and 1300 jurists, while applicants have diversely responded. However, I offer a descriptive catalog of recent hiring approaches essentially by relying upon accessible current information. (9)

   Numerous prospective clerks appeared unclear about how to seek clerkships after the D.C. Circuit posting; as they had only commenced their fourth semesters, most were assuming time-intensive editorial...