The Legal Beat

‘Do Your Research,’ ‘Stick It Out,’ And Other Things Law Schools Should Stop Telling Students About Clerkships
Posted on Tuesday June 06, 2023

The school year is over, but rising third-year law students are busy. They are putting the finishing touches on judicial clerkship applications and preparing to submit them via the Online System for Clerkship Application and Review (OSCAR) on June 12, 2023, in compliance with the federal law clerk hiring plan. On that date, students will indiscriminately apply for clerkships with as many as 100 federal judges. Judges review hundreds of applications in just a few days, with substantial input from friendly law professors and their current clerks — before extending interview offers for this coveted first legal job.

Sadly, due to the lack of transparency in the clerkship application process, law students will submit their applications, fly across the country on several days’ notice for interviews, and accept these positions — either on the spot or with very little time to think about it — with very little information about judges as managers or clerkship experiences. Some will have wonderful clerkship experiences. Others will experience workplace mistreatment that alters their career paths, derails their careers, or drives them from the legal profession entirely. Troublingly, the latter group are dissuaded from ever speaking about these negative experiences, even with law students considering clerkships with the judges who mistreated them.

This month, we can also expect a plethora of social media takes about clerkships — attorneys tweeting and posting on LinkedIn about their positive clerkship experiences and the lifelong mentor/mentee relationships they developed with the judges for whom they clerked. Descriptions of the judge/clerk relationship as “familial.” Photos of judges officiating their former clerks’ weddings. Attorneys advising students to “apply broadly,” meaning across the U.S. and across the political spectrum. Refrains about the importance of accepting the first clerkship you are offered, because you can live anywhere (and endure anything) for a year or two.

There’s nothing wrong with discussing the benefits of clerking. Clerking can be a very valuable experience where new attorneys receive a crash course in trial lawyering and judicial decision-making, while honing their writing and research skills. But when the messaging is uniformly positive — from law schools advising students on clerkships, from faculty members referring students to judges and judges to students, and from attorneys mentoring law students and hiring them for their post-clerkship positions — law students lack a critical perspective. When mistreated law clerks hear this toxic positive messaging, they are made to feel that they must have done something wrong. If no one discusses negative experiences, they must be the only ones who were mistreated. This can be enormously isolating. When I was a former clerk participating in the judicial complaint process, that messaging was turned around on me. I was told by an investigator that I “must have done something wrong because the judge hired [me] in the first place.”

Current and former clerks reach out to The Legal Accountability Project (LAP) frequently for advice. They ask whether their experiences are common. I underscore that they are not alone: our experiences, while not rare, are rarely shared publicly, due to the culture of silence and fear surrounding the judiciary — one of deifying judges and disbelieving law clerks.

When I was a law student at Washington University in St. Louis School of Law, the messaging around clerkships — like at most law schools — was nearly always positive. No one talked about the potential downsides of clerking. Even now, to the extent potential downsides are broached, this is typically limited to the relatively low clerkship salary, and the necessity of moving to a faraway place for a year or two. Realistic and balanced clerkship messaging and programming must become part of mainstream law school culture.

Law school clerkship directors, deans, and faculty members may hesitate to broach potential downsides because they worry that it will dissuade some students from clerking. Or because they prioritize their relationship with every single judge — even those known to mistreat their clerks — over their duty of care to all of their students. Yet transparency and candor will not dissuade students from clerking. The students who entered law school dead-set on clerking will clerk anyway. And the clerkship-curious students will pursue judicial clerkships with the confidence that they will be treated fairly and respectfully during both the application process and their tenure as clerks. They will pursue better clerkships.

Many law schools continue to give the ill-advised directive that students must accept the first clerkship they are offered — that they can never say “no” to a judge. This contributes to the deification of judges. What is unique about clerkships in the legal profession, such that you can never turn down a job offer? This sends a message to both law students and the judiciary that judges deserve blind respect and total deference.

Law schools also rely on euphemisms for mistreatment like “fit” when discussing the judge/clerk relationship. They describe the clerkship search as identifying “good fits” because they do not want to explicitly state that some judges mistreat their clerks. Still others tell students that a “challenging” clerkship (another euphemism for workplace mistreatment) is “worth it” for the prestige. And during conversations with career services professionals, administrators tell me that “law clerks just want to keep their heads down and move on” after a negative experience. Law students and alumni deserve better than evasive or opaque statements and half-truths filtered to law schools’ comfort level. They deserve candor from those who profess to have students’ best interests at heart.

Law clerks who experience mistreatment are notoriously unwilling to share that information with their law schools. But in the instances in which they do, too often they are confronted with advice like “stick it out.” They are dissuaded from speaking out or standing up for themselves. Some administrators help students extract themselves from negative clerkship experiences. But this is the exception, not the rule. Law schools should tell students that they can leave a clerkship early if they are mistreated or disrespected, just like they can turn down a clerkship offer if something feels wrong. Anything less than empowering students to stand up for themselves is disempowering, considering the enormous headwinds that clerks seeking accountability face.

Law schools tell students to “do their research” about judges before applying. But what research are students to do, when so little information about judges as managers and clerkship experiences is accessible to them? Law schools intend for students to reach out to current or former clerks — ideally alumni of their alma maters — who may or may not share candid information about their clerkship experiences. This backdoor, secretive, fear-infused method of information-sharing is sometimes referred to as the “clerkships whisper network.” Those with information about judges — either law clerks or law school administrators (deans, clerkship directors, and professors) — may or may not share information with students who reach out. But current and former clerks, fearing both reputational harm in the legal community for saying anything less than positive about judges and retaliation by the judges who mistreated them, are disincentivized to share candid information about mistreatment with law students who need it.

In the absence of transparent information, law clerks recount to me the troubling ways they attempt to “research” judges — anonymous T-14 blogs, The Robing Room, and outreach to friends at better-resourced schools that keep some records about clerkship experiences. They reach out to former clerks before interviewing, who all paint the same overly rosy picture, as if reading from a script. Law clerks tell me they found out later — after experiencing mistreatment — that former clerks were not fully transparent when they spoke. In the rare instances when clerks share information with their law schools, the schools may instruct them not to tell anyone — putting clerkship directors in the challenging position of either sharing the information anyway (anonymously), or not warning applicants at all.

We should encourage law clerks to speak openly and honestly about the full range of clerkship experiences. Empowering clerks to discuss workplace treatment is the first step toward changing the culture in the legal community. Candid dialogue will also raise the bar on workplace civility in the judiciary, challenging every judge to take a hard look at their chambers culture and role as a manager.

I often ask deans and judges how they think students obtain information about judges before applying for clerkships; whether information about judges who mistreat their clerks is shared with students; and whether enough information about judges as managers is accessible to applicants. Many agree that greater transparency in the clerkship application process is necessary — yet institutional intransigence and fear of disruptive change have long precluded reform.

It weighs heavily on me that we are entering another clerkship application cycle where law students lack information about judges. Here’s some advice to help prospective clerks protect themselves and make (relatively) informed decisions:

• You don’t have to accept the first clerkship you are offered. You can say “no” to a judge. You can also ask for more time to think about it. If something feels wrong after an interview, you can turn down a clerkship offer, or ask for more time to think about it. The judge will find another clerk, and you’ll find another job. Some judges continue to engage in the practice of exploding offers, pressuring students to accept offers on the spot. But do you really want to work for someone who respects you so little?

• Ask the right questions of the judge. Ask about chambers culture, hours, tasks, and expectations. You can also ask questions about workplace policies. I speak often with judges who support increased judicial accountability mechanisms and enhanced workplace protections, and who are happy to tell me what else they think needs to change to increase diversity in the clerkship applicant pool and to ensure safe work environments for judiciary employees. A judge’s answer should be a red flag — or a green flag.

• Ask the right questions of the judge’s clerks. After your interview with the judge, you’ll spend some time with the clerks. This is part of the interview. But it’s also an opportunity to seek a candid assessment about chambers culture, how the judge provides feedback, and the judge’s relationship with their clerks, judicial assistant, and courthouse staff. Clerks’ answers to these questions — and their willingness to answer them at all — is instructive.

• Seek advice from former clerks. The clerkships whisper network is woefully inadequate but, this year, it’s the system that exists. As soon as you get an interview, reach out to former clerks. Start with your law school’s alumni network. Then search through LinkedIn. Or reach out to LAP, and we’ll try to connect you with former clerks. Ask pointed questions. Former clerks are better-positioned than current ones to answer candidly.

Considering the premium that law schools and legal employers place on judicial clerkships, and the outsized importance of a clerkship on an attorney’s future career success, the legal community should ensure access to transparent information about clerkships. Our clerkship system is broken, but we can fix it.

We should aim to create a legal profession that is more diverse, more equitable, and more inclusive. But nothing will ever change if no one speaks out about injustice. And it shouldn’t just come from people like me — who are adjacent to the practice of law. We should empower law students, law clerks, and the next generation of attorneys to demand safer workplaces. The first step is to change the messaging around clerkships, so that every clerk knows they are not alone. Messaging matters.

Aliza Shatzman is the President and Founder of The Legal Accountability Project, a nonprofit aimed at ensuring that law clerks have positive clerkship experiences, while extending support and resources to those who do not. She regularly writes and speaks about judicial accountability and clerkships. Reach out to her via email at [email protected] and follow her on Twitter @AlizaShatzman.

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