The Federal Judicial Law Clerk Hiring Problem and the Modest March 1 Solution

Article excerpt

I. Introduction

In September 1993 the Judicial Conference of the United States unanimously adopted the following resolution.

The Judicial Conference recognizes as the Benchmark Starting Date for clerkship interviews March 1 of the year preceding the year in which the clerkship begins.(1)

As submitted to the Judicial Conference, the resolution contained the following explanatory note:

The Benchmark Starting Date is not meant to be binding. The Conference expects that judges will make a good faith effort not to interview candidates before that date, but special circumstances might sometimes call for an earlier interview. This Benchmark Starting Date will be made known to the law schools, with the suggestion that faculties be urged not to transmit letters of recommendation until approximately February 1, which is about the time when third semester grades are available. The suggestion will also be made that law schools advise students that they are not obliged to accept the first offer tendered (there being widespread confusion on this point).(2)

This modest "March 1 Solution" followed years of failed attempts to deal with a process that had seen federal judges hiring law clerks as early as October of their second year of law school. Hiring clerks early on in their law school careers overemphasized first-year grades, caused unnecessary disruption of classes, considerably increased the cost of travel for interviews, vastly raised the anxiety level for the students, and impaired the reputation of the federal judiciary.

The competition among judges to hire prime law clerks tended to push hiring dates earlier and earlier. By 1992, law students scrambled as early as September of their third semester to apply to judges rumored to be hiring. In the fall of 1993, in an attempt to arrest the advancing trend, the Judicial Conference adopted the March 1 Solution. After only one year in operation, it has been strongly endorsed by federal judges, law students, professors, and administrators. Although the Solution may not have been ideal in theory, in practice it was a success.

In order to understand why both judges and law schools should continue to support the March 1 Solution, we sketch the history of prior attempts to solve the law clerk hiring problem, all of which failed to achieve sufficient judicial support to provide lasting reform. We then examine why other approaches to the problem are inadequate and offer our recommendations for improving on the March 1 Solution.

II. A Few Pages of History(3)

Before the mid-1970's, the prevailing practice of federal judges was to select law clerks during the fall of their third year of law school. Gradually, the judges' hiring date crept earlier and earlier until most selections were made in the spring of the students, second year. Since the late 1970's, federal judges have made six separate attempts to reform this process.(4)

In 1978, law school deans succeeded in persuading the Association of American Law Schools to issue recommended guidelines for hiring, but most federal judges did not abide by them. In March 1983, the Judicial Conference requested that judges not consider applications before September 15 of the students' third year of law school; by the 1984 season, however, early hiring was rampant. Following a survey of judges, reactions to the September 15 benchmark, the Judicial Conference abandoned the experiment.

In 1986, Stephen G. Breyer, then a circuit judge on the U.S. Court of Appeals for the First Circuit, attempted to build a consensus for the 1986 season by urging federal appellate judges not to consider student applications before April 1.(5) A large number of judges responded favorably, both in writing and in actual practice. In 1987 and especially in 1988, however, the April 1 date was largely ignored, many of the judges interviewed and hired in March, and a few in February, of the students' second year. …