A Market-based Solution to the Judicial Clerkship Selection Process

Abstract

For many years, federal judges and others have labored to reform judicial clerkship hiring so judges might conduct a dignified, collegial, and efficient selection process. To date, however, these reform efforts have had little success. This Article endeavors to forge a solution to the problems endemic to the current judicial clerkship hiring process: lack of collegiality, cut-throat hiring methods, lack of efficiency, and hiring based on inadequate information about candidates. Part I of this Article explores the historical problems in the clerkship hiring process, reviews previously attempted but failed efforts at reform, and identifies problems with such approaches. Part II discusses key impediments to reforming the existing system, including discord in the judiciary and transaction costs, reviews these impediments during a recent hiring season, and finally suggests a behavioral explanation for these barriers to reform. Part III analyzes and critiques proposed solutions to the present process and chronicles their practical and theoretical failures. Part IV proposes a free-market system better able to withstand the failings of previous efforts and employs game theory and other economic concepts to show how the proposed system may provide a lasting solution to past and to present judicial clerkship hiring problems