Will’s proposal to reform the clerkship hiring plan is modest. Not modest in the fun satire sense. Modest in the sense that it would be a small, reasonable fix that would probably make things a little better. But it wouldn’t prevent students from going through years of unnecessary stress trying to figure out how to get a clerkship.
Before trying to identify solutions to current state of the world, it’s worth laying out the problems that lead clerkship plans to unravel. I think there are four of them.
Scarcity. The judges perceive that there is a supply side constraint on the kinds of students they want as clerks. For instance, we know there is huge ideological sorting in the clerkship process, and the share of law students that are conservative is smaller than the share of judges that are conservative. So conservative judges feel rushed to hire the “good” students before they all have clerkships.
Declining Marginal Value of Grades. Each semester of grades that a student has provides more data points about their intellectual ability. But the marginal value of additional grades decreases over time. Many judges have decided they are willing to gamble that, although they have less information, that they’d get better clerks if they strike early instead of waiting for more data.
Judges’ Inability to Bind Themselves. Judges can’t bind themselves to a plan because the judges that deviate face no sanctions from doing so. They don’t lose out on applicants, hiring slots, or anything else they might care about.
Clerkship Placement is a Zero Sum Game. Schools are better off if they place more students in clerkships, and they know that any clerkship their students don’t get will go to a student from another school. So they can’t credibly commit to punishing students or judges that fail to comply with any plan.
So how do we fix the clerkship market? Solve any one of these problems. For instance, judges would feel less pressure to jump the gun if we could increase the supply of students they wanted as clerks (or, even less plausibly, if we figure out a way to de-politicalize the legal profession so the judges are equally interested in hiring all good students).
Judges would also be more likely to wait to hire students if we reformed the way we evaluated law students to make our grades more reliable. It’s a mistake that law schools never place the blame for judges not caring about the grades we produce on ourselves. We could certainly do a better job if we were to analyze our process of evaluating students and find ways to improve it. Because, if our methods of sorting students were more reliable, judges and firms would be more willing to wait for that sorting process to play out.
But the best solutions all involve solving problems (3) and (4). We need a way to ensure that there are consequences — imposed at either the demand side (e.g. the judiciary) or the supply side (e.g. law schools) — for violations. Without that, it’s tough to imagine any plan working for very long.
That said, perhaps the demands placed on judges from Will’s proposal would be small enough judges wouldn’t feel the need to deviate.