Bad Clerkship Behavior

BY ANDREA SAENZ

ANDREA SAENZ

EDITOR-IN-CHIEF

A long list of protections have been put in place by law schools and the National Association of Law Placement to allow students flexibility in their job searches. Among other things, NALP employers agree, under threat of beatings with firm logo-emblazoned umbrellas, to allow students to consider job offers for long periods of time, so as not to unduly pressure them. Firms must even allow students to hold one offer open for an entire school year while they search for a public interest job. These rules are thoughtful and considerate, and have helped reduce stress for many job-seeking students.

How unfortunate, then, that the clerkship offer season is still such a mess. The current calendar, which sets dates on which federal judges should call students for interviews, is all but ignored by many judges, including the most prestigious and the strongest “feeders” to the Supreme Court, as they jockey to hire the most impressive students. Data on this “early hiring” is ample in the updated clerkship survey released by Richard Posner, Christine Jolls, and others this July, and anecdotal tales of judges behaving badly can be found everywhere. It’s commonplace for staff of federal judges to call students one or two weeks before the official start date and calmly ask, “Do you mind coming out before the deadline?” Who in their right mind would say no?

Worse than the non-calendar reform, though, is the egregious use of exploding offers – job offers that expire in days, hours, or even minutes. This summer, the Wall Street Journal’s Law Blog collected a number of horror stories from former clerks, including a judge who called while the applicant was on a plane flight and left messages in the space of 35 minutes to offer a job and then rescind it, and a judge who canceled an interview when an applicant told her she wouldn’t be able to decide on an offer on the spot.

There is no way for this state of affairs to consistently allow for good matches between judges and clerks. With offers exploding faster and faster, students who weren’t lucky enough to schedule their first-choice judges first are often totally out of luck. The system is dysfunctional, seemingly to convenience judges who don’t want to wait or risk rejection. I have no idea why, if prestigious, filthy-rich law firm partners can abide by the NALP hiring constraints, or handle the blow of occasional rejection, federal judges are totally unable to. I guess it’s like the lyrics of that law school a cappella classic, “Appointed Forever”: “I’m a federal judge and I’m smarter than you/For all my life/ I can do whatever I want to do/ For all my life…”Last week, I talked to several clerkship-seekers who felt conflicted about their own role in this circus. For example, I heard people talk about using early interview offers as leverage against those judges they preferred who hadn’t called them yet, and then feeling a bit guilty about it. No one should feel bad about being put in that situation. If students knew that they could interview with multiple judges and not be rushed into a decision by the first judge or two they talk to, it wouldn’t be necessary.

Students in the midst of the process have little to no leverage. As David Lat told the Record in our Career Guide, “it may not be the place of a 3L to call out a federal judge for dubious conduct.” Indeed, I am writing this editorial largely because so many people feel that they can’t – and as a person who isn’t going through the clerkship process, I don’t mind biting a hand that isn’t feeding me. I also hope other participants in the process, especially law schools, can push for a calmer system that protects student sanity the way the NALP recruiting rules do.

On a related note, I was also dismayed to hear about the flap over taping Federal Courts classes last week for the benefit of the many students who were gone on clerkship interviews. Despite the request of Professor Richard Fallon, the administration initially refused to record classes, citing a policy that taping is only for medical, family, and religious reasons. Students were understandably frustrated, given that a large number of people who take Federal Courts do so entirely in order to prepare for clerkships. The thing that disturbed me most was that the school has no trouble canceling an entire week of classes to accommodate 2Ls on large firm callbacks in October; what was the problem here? It was a strangely bureaucratic moment for a school that prides itself on responsiveness to students.

Fortunately, the administration reversed their decision in time to record classes. If only the federal judiciary would similarly reconsider the stress-inducing effects of their actions.

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