Law students everywhere, be warned the Federal Judges Law Clerk Hiring Plan is dead. If you want a clerkship, don’t think you can wait until the fall of your 3L year to apply. You can’t. To maximize your chance of getting hired, you should apply much earlier. The U.S. Court of Appeals for the D.C. Circuit’s announcement last month that its judges will not follow the plan is the coup de grâce, confirming what insiders have known for years: The plan does not work. Applicants can’t count on judges to follow it. The "graduate loophole" means there are fewer slots for students. And instead of curbing "exploding offers," the plan encourages them. Students, law schools and judges alike should be thankful that this failed experiment is finally coming to an end.
The plan’s aspirations were noble. Proponents believed that by pushing back the clerkship hiring date in a coordinated fashion, order could be brought to a chaotic process, and the jarring spectacle of future clerks being hired before the second year of law school would end. But the power of positive thinking cannot change the fact that the plan has always been doomed to failure. Viewed through an antitrust lens, the problem is apparent: The idea that coordination will hold in a judiciary with hundreds of competing chambers, limited transparency and no real enforcement mechanism is hope divorced from reason. Like a cartel with too many players, the plan unravels because the temptation to hire early is just too strong.
