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Federal appellate judges spend a lot of their time interpreting rules made by other branches of government. But when it comes to working out their own rules for recruiting law clerks, they have made a complete mess of the process. The issue is timing. Clerks used to be selected in the third year of law school. These days, judges are jumping the gun in a race to snag the best candidates. In some cases, prestigious clerkships that can launch a career are going to students on the basis of their first-year grades. “We’ve moved back the hiring process to a point where everyone agrees that it makes no sense,” says Judge Harry Edwards of the U.S. Court of Appeals for the D.C. Circuit. “The system has broken down.” Last week Edwards unveiled a reform plan endorsed by all the members of his court and then circulated it to federal appellate judges around the country. Edwards’ formula: All judges should agree to take a year off from selecting future clerks and, from then on, limit their selections to third-year students. The Edwards plan appears to be picking up support among influential academics and judges. But of course, federal judges don’t like to be told what to do, even by one of their own. In fact, this is at least the seventh attempt in the last two decades to solve what some see as a nearly insoluble dilemma. Some jurists and observers see the problem as a matter of market forces. Stanford Law School professor Deborah Rhode, a former circuit court and U.S. Supreme Court clerk, says the clerkship question is what economists call a “group action problem.” “Everyone would be better off with a later deadline, as long as everyone sticks to it,” she says. “But no specific person wants to take that step, so everyone is worse off.” Rhode, who has served as president of the American Association of Law Schools, knows that any plan is essentially unenforceable and suggests that jurists will have to use the informal sanction of “shaming” to keep each other in line. “The law schools can’t do it. The individual students can’t do it,” says Rhode. “The judges have to exercise some reputational sanctions on their colleagues. If they made it professionally unacceptable to buck the system, you’d have only a few renegades, and we could live with a few renegades.” Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals, himself a magnet for law review editors seeking clerkships, wrote in an exhaustive article in the University of Chicago Law Review earlier this year that “the problem is stubborn, intractable; this is plain as a matter of theory and as a matter of experience.” Posner, joined by three other authors in “The Market for Federal Judicial Law Clerks,” concluded that even if all the judges got together and decided that they won’t make offers before a specified date, “it is virtually impossible to prevent defections.” The article pointed to many such instances in the past. One appellate judge who has pretty much announced his intention to be a renegade is the 9th U.S. Circuit Court of Appeals’ Stephen Trott, who sits in Boise, Idaho. “Whenever they propose a solution, I always reply that I decline to participate in any combination in restraint of trade,” says Trott. “The only thing worse than an unmanaged economy is a managed economy. I’ll do what I want, when I want to.” SHOWING SOME PATIENCE Edwards doesn’t guarantee that his plan will be cheat-proof, but he says it has obvious appeal and wide backing. “We’re a very diverse group of judges here in the D.C. Circuit,” he says, “and we all agree that it makes sense. We hope it persuades our colleagues.” Edwards also thinks the very fact that the hiring process has gone so far out of kilter will persuade most of his peers to adopt his plan and stick with it. “A few years ago, we were hiring in the spring of the second year. Now, we have gone to a point where we thought we’d never go,” says Edwards, who recently ended his seven-year term as the court’s chief judge. Edwards’ plan, outlined in a two-page memorandum he sent out Dec. 4, would operate over a two-year period. Since clerks for the 2003-04 year have already been selected from this year’s second-year law students, the next academic year — 2002-03 — would become a transition year in which judges do no hiring whatsoever. Then, in the fall of 2003, the judges would start hiring clerks again for the 2004-05 year — but they would look only at that year’s third-year students. In each succeeding year, only third-years would be hired, starting in the fall. “I read a letter by [3rd U.S. Circuit Court of Appeals Chief Judge] Edward Becker,” Edwards says. “I said to myself, ‘There’s a simple solution. We’ve just got to skip a year.’ And I decided that the only shot we’d have to get this done is if a single circuit decides, as a circuit, to endorse this.” Becker wrote his extraordinarily candid letter Nov. 5 to Fern Smith, the director of the Federal Judicial Center, a federal agency that promotes improvements in the administration of the federal courts. “A few years ago, most of us thought the world was going to hell in a handbasket when some judges started hiring in December and January of the second year, but now the hiring has fast-forwarded to September!” Becker wrote. “Those of us who are doing this are driven by the market, but in our heart we know that it is ridiculous to be hiring so early. Indeed, I think that we ought to be ashamed of ourselves.” Becker, who has been trying to solve the clerkship dilemma for a decade, asked Smith to air the issues at an already scheduled meeting of the Federal Judicial Center in October 2002. Becker says Edwards’ proposal is a “brilliant” stroke and that he will do whatever he can to promote it. The problem with Edwards’ solution, as with any proposal of its type, is, of course, making it stick. There is no way to impose mandatory restraints on federal judges, whose independence is enshrined in the Constitution. Even the chief judge of a circuit can’t do that. The most recent, and ultimately unsuccessful, effort to resolve the problem came from the Judicial Conference, the formal governing body of federal judges. It lasted five years before meeting an ignominious demise. In 1993, the conference passed a resolution urging judges not to make any offers before March 1 of the student’s third year. By 1998, the system had fallen apart, and the conference repealed the policy, noting that it was “not an accurate reflection of the practice in the courts.” Karen Redmond, a spokeswoman for the conference, says the conference is now out of the date-setting business. As Edwards’ proposal made its way to chief judges across the nation, it began to gather support. The plan does not offer specifics on how it would be implemented, other than by a consensus of all or nearly all judges. “I am supportive, and I am not aware of anyone in my circuit who disagrees,” says 4th U.S. Circuit Court of Appeals Chief Judge J. Harvie Wilkinson III. “The momentum may finally be there that wasn’t there before to achieve this.” Says Chief Judge Carolyn Dineen King of the 5th U.S. Circuit Court of Appeals, “It’s a sound proposal. Particularly when you think about a place like Yale Law School, which doesn’t grade students in the first semester, you only have one semester to look at. That distorts the applicant pool.” A 2001 law graduate now clerking on the D.C. Circuit disagrees with this assessment. “There’s little that’s wrong with the system,” says this clerk, who requests anonymity. “I think early selection benefits students from a variety of schools who have excellent credentials after their first year. It leads to the hiring of a good many students who otherwise wouldn’t be hired. Judges are making rational decisions on the basis of the available information.” Trott of the 9th Circuit says the supposed problem — that judges break the rules in order to go after the top students from the top schools — shouldn’t really be a problem. “I get more than half my clerks from Montana, Idaho, Arizona, Minnesota — places like that,” he says. “And they are terrific clerks. The D.C. Circuit started the problem years ago by thinking that if you don’t have Harvard Law Review students, you don’t have good clerks.” Susan Low Bloch, a Georgetown University Law Center professor and former head of the clerkship committee there, says judges, not law schools, have the upper hand. “It was our perception one year that we adhered to a guideline [regarding the timing of clerkship offers] and that other schools did not, and our students were hurt by that,” she says. “So in the following year, we just told our students, ‘Don’t wait.’ “ Columbia Law School Vice Dean Michael Dorf recalls that one year, no recommendations were supposed to go out to judges until after March 1. “So then the judges started calling law professors, and I got a call from a judge saying, ‘I know you can’t make a recommendation, but what do you think about this student?’ And I knew that if I didn’t answer, the next person he’d call would be my colleague at Harvard or Yale,” Dorf says. “In this situation, you can only hold the fort by harming your own students, and I can’t do that.” As Dorf puts it: “This is like the well-known problem of cheating on a cartel. We know from simple economics that cartels tend to break down.”

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