Beware to fancy law firm partners on Wall Street, on Washington’s Pennsylvania Avenue, and in downtown Boston, Chicago, Los Angeles and Philadelphia. This Friday, you should expect even less work than on a normal languid summer Friday from brilliant rising third-year Harvard Law School summer associates. Friday, June 28, is the first date on which many judges will consider 3L students for coveted federal clerkships. The firestorm that Friday’s schedule promises to ignite will eclipse the seasonal withering heat and humidity, but partners who remain calm and flexible will reap benefits.
In April, the working group judges of OSCAR (Online System for Clerkship Application and Review) — a secure, user-friendly online resource that facilitates law clerk hiring — designated June 28, instead of late summer, as the benchmark. The group made this Friday the crucial time for all clerkship matters: the initial date when federal judges can receive applications, conduct interviews and tender offers. The group’s decision apparently was a last-ditch effort to salvage the flagging Federal Law Clerk Hiring Plan, which had operated rather effectively since its 2003 institution. The earlier plan had relied on the Tuesday following Labor Day as the time when students first submitted, and judges received, applications. Judges concomitantly were to delay one week before scheduling interviews and then wait another week before holding interviews.
The 2003 plan functioned relatively well over the ensuing decade for most students and judges. However, increasing numbers of appellate judges eschewed the plan. Indeed, on January 29 of this year, the D.C. Circuit posted a notice that all members “will hire law clerks at such times as each individual judge determines to be appropriate,” explaining “the plan is [apparently] no longer working. The statement expressly recognized what had long been occurring in circuit employment but apparently sparked a hiring frenzy among district judges.
Identifying exactly what happened after the D.C. Circuit abandoned the plan is difficult because much relevant information is anecdotal or not publicly available. Myriad variations exist among, and within, the 13 appeals and 94 district courts, and 1,300 judges, while applicants have diversely responded. Many circuit judges apparently proceeded apace, ignoring the plan and hiring whenever they chose. Numbers of district judges also defected. For example, most D.C. District Court judges seemed to have hired clerks by April. Moreover, relatively few judges have provided clear notice of the procedures that they adopted.
However, numerous judges respected the plan, and some courts and judges were transparent, posting comprehensive notice on OSCAR or court websites. The Southern District of New York was exemplary. The court posted on its website “Law Clerk Hiring Information,” which included practices judges use. Some explained that they would accept applications any time and use rolling review but would not interview or hire until June 28.
What exactly will happen on Friday is anybody’s guess. As one astute observer waggishly put it, the single date for applications, interviews and offers might foster an “utterly shambolic process, a mad scramble for talent full of hastily conducted interviews, exploding offers and questionable” applicant and judge conduct. If practice before the 2003 plan’s institution is any guide, Friday could witness madcap student dashes among judges’ chambers in the same courthouse and even among metropolitan areas in close proximity; interviews that proceed quickly yet inform neither judges nor students; and the extension of offers on the spot with expectations that applicants will immediately accept.
Big law partners should take heed but not be alarmed. Sacrificing one summer Friday’s work product will pay huge future dividends. Those overachieving summer associates who capture clerkships will be better lawyers for it. The clerks will learn much about how the federal courts actually operate, while they acquire friends and mentors for life, who exercise the enormous power and influence that Article III bestows. Given the complex, substantial caseloads that most judges carry, the future associates will learn to think more deeply about knotty questions of federal law and grow accustomed to working nights and weekends. So, partners kick back and relax. Enjoy Friday’s hiring frenzy. The stampede can only help your bottom line.
Carl Tobias is the Williams Chair in Law at the University of Richmond School of Law.