The Future of Federal Law Clerking

Abstract

The market for federal law clerks has been upended. Beginning in 2003, the Federal Judges Law Clerk Hiring Plan was implemented to regulate clerkship hiring. According to the Plan, a judge could not interview or hire a potential law clerk before the beginning of the applicant’s third year of law school. The Plan, however, never worked well, constantly got worse, and has now officially collapsed. Across the country, clerkship hiring once again regularly occurs during the second year of law school. This Article addresses the rise and inevitable fall of the Plan. In particular, it submits that the Plan never had a realistic chance of success because coordinated action in a competitive market is difficult to maintain, especially without an effective enforcement mechanism to punish noncompliance. Here, the Plan collapsed because its enforcement mechanism was far too weak. And the reason why the Plan did not have a more effective enforcement mechanism was no accident: any mechanism that could work would require judges to give up too much. Against that backdrop, this Article explains what clerkship hiring will likely look like in the future. Importantly, given the steep costs of an effective enforcement mechanism, this Article contends that it is unlikely that a new hiring plan will be adopted. This is especially true because modern trends are already beginning to mitigate the concerns associated with an unregulated clerkship market