D.C. Circuit Review – Reviewed: On Second (and Third and Fourth) Clerkships

by Aaron Nielson — Friday, July 5, 2019@Aaron_L_Nielson

The D.C. Circuit’s cases this week are unusual — there is not a lot of “admin law” in them. But they are very interesting cases nonetheless. That realization got me thinking about the rise of second clerkships.

Judge Gregg Costa of the Fifth Circuit (and a D.C. Circuit alum) has recently published an excellent essay: The Case Against Second (and Third and Fourth) Clerkships. Everyone who thinks about clerkships should read it; it is well done, makes many sound points, and is timely. It prompted me to think about my own experience. I clerked three times. In defense of my life choices,* I think I fall within Judge Costa’s exception:

Some say there is value in doing both a trial and appellate clerkship. Indeed, having served in recent years as both a trial and appellate judge, I always tell students what is now a statement against interest: working for a trial court will teach them more things they did not learn in law school. So if one is going to do two clerkships, they should be for different types of courts (trial versus appellate, or state versus federal, or a generalist court versus a specialized one like the Federal Circuit). Yet the desire for two clerkships is becoming so strong that it is not uncommon to see applicants wanting to do a second clerkship for a regional court of appeals. And even for those doing clerkships for different types of courts, there are diminishing returns from a second (and certainly a third) clerkship. Whatever the court, the day-to-day work of a clerk largely involves the legal research, analysis, and writing skills that are the focus of law school. Beyond the refinement of those skills, the additional benefits a clerkship brings, like gaining a mentor and insight into judicial decisionmaking, mean less the second time around.

The D.C. Circuit counts as a “specialized one like the Federal Circuit,” right? I spend a lot of time thinking about administrative law and — this week notwithstanding — the D.C. Circuit gets more than its share of those cases.

That said, I agree with Judge Costa; there are diminishing returns to clerking. I loved the job. But when I was done, I was more than ready to move on and do something else. I also agree with Costa that my experience is becoming increasingly common. Lots and lots of folks clerk more than once. I know this for a fact. I’m heavily involved in the clerkship process at BYU. This has been a banner year for BYU. And a majority of our students scheduled to clerk for a federal circuit court will have clerked before. It is still rare for one of our students to clerk on two federal circuit courts (though I’ve seen it). Most of our repeaters clerk first on a state supreme court or a federal trial court and then for a federal circuit court. So they also fall within Costa’s exception. But there are a lot of them.

I disagree, however, at least in part, with a few of Judge Costa’s observations. For instance, he says this:

Most obviously, second clerkships likely further concentrate these jobs among graduates from elite schools. If Harvard/Stanford/Yale students have the easiest time getting one clerkship, it stands to reason they will maintain that competitive edge when applying for a second one (they may be even more advantaged at that point because of the many judges who prefer to hire, or exclusively hire, those with a prior clerkship).

I agree with the premise of this concern; Harvard, Stanford, and Yale do not have a monopoly on legal talent — trust me, not even close! — and we should want to expand the hiring pool. But I’m not sure that second clerkships disproportionately help the H/S/Yers of the world. In my experience, federal circuit judges who may not hire directly from some schools are happy to hire someone coming off a clerkship. To be clear, many such students can and do directly clerk on a federal circuit court. But for others, a year spent with a judge who can then vouch for that person’s ability really helps, especially for circuit judges who have not yet hired broadly and so don’t know what they are missing. But I agree that we need to worry about “deter[ring] talented students with fewer financial resources.” That is why this is a hard problem.

I’m also not sure that Judge Costa correctly identifies what motivates repeaters — well, at least many of them. I don’t believe many do it because it keeps them in their “comfort zone” or because they are “dissatisf[ied] with modern law practice.” I think the main explanation is that some judges want repeaters. This is so for at least three overlapping reasons: (1) a little seasoning can be helpful; (2) scheduling is hard; and (3) the Clerkship Hiring Plan creates incentives to hire applicants who aren’t in law school.

As to (1), many judges want have a couple of clerks in chambers with some experience. So if you want to clerk for certain courts, it helps to have clerked before. As to (2), many judges hire years in advance, often for different years. Students are happy to accept a position even if it leaves a “gap year” or two between graduation and clerking, but then they have to find something to do. Clerkships are great one-year gigs, especially because not all law firms or other employers are eager to have someone come for a year and then fly off. Recognizing the gap year, for instance, one judge recently offered to help a student find a second clerkship. Likewise, some repeaters end up clerking on two circuit courts because of timing issues. A judge will offer a slot several years out. The student will then start looking for something to do during the interim. And then another circuit judge will hire, thus giving the student a job. This dynamic is largely driven by the fact that judges often hire well into the future. And as to (3), the Hiring Plan has unintended consequences. It is tricky to hire four law students in a compressed time period. So judges look elsewhere. And often folks who haven’t yet started for a permanent employer are available.

Judge Costa, of course, has a response to all of this: Even if the rise of repeaters is driven by judges (well, driven in part; no one forces students to clerk twice), that doesn’t make it okay. “Many modern clerks … essentially function[] as adjunct judges, given the predominant role many have in drafting opinions.” I disagree here too, at least somewhat. I agree in principle, obviously, that this is a concern. But I don’t agree in application. Honestly, the idea that I could meaningfully influence any of my judges leaves me shaking my head. They were very much in charge. In Costa’s defense, however, that may not be true for all judges. If so, that’s a serious problem. But I don’t know if discouraging multiple clerkships solves that problem.

My bottom line: Judge Costa’s essay is well worth your time. I don’t see an easy fix. But his essay makes you think. Bravo!

Now, the D.C. Circuit’s cases. Let’s start with the “admin law” ones.

  • Myers v. IRS: If you follow the — at times convoluted — line between jurisdictional rules and claims-processing rules, you need to read both Judge Ginsburg’s majority opinion (joined by Judge Pillard) and Judge Henderson’s dissent. There is a lot going on in this case (that’s why you should read it), but that line is what I want to focus on … especially because it may eventually end up before the Supreme Court (indeed, the D.C. Circuit acknowledges that its approach “is in some tension with that of another circuit regarding
    a similarly worded provision of the Internal Revenue Code”). Here is a sample of the disagreement:
  •  

    • California Communities Against v. EPA: Here is how Judge Rogers (joined by Judges Henderson and Sentelle) summarizes her opinion (which has six “threshold” questions, including waiver, issue preclusion, and claim preclusion):
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      • Wayne J. Griffin Electric, Inc v. Secretary of Labor: This is a short opinion from Judge Katsas (joined by Judges Srinivasan and Ginsburg) about substantial evidence review in the context of “workplace safety standards designed to prevent electric shock.” The Court upholds the agency’s determination in a pretty fact-heavy case. The most interesting discussion involves a forfeited issue (read pages 6 and 7).
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        And now, the non-“admin law” opinions:

        • USA ex rel. Kasowitz Benson v. BASF Corporation: Wow, this is an interesting opinion (per Judge Henderson, joined by Judges Srinivasan and Pillard). Especially fascinating is whether liability equals obligation to pay. Here is the intro:
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          • Atlas Air, Inc. v. International Brotherhood: I’m sure I’ve read a labor law case that doesn’t involve an agency. But I can’t remember it! Judge Griffith (joined by Judges Randolph and Edwards) addresses a knotty question about “a union’s efforts to gain leverage over two commercial air carriers during negotiations over an amended collective bargaining agreement.” There are a lot of new terms (at least for me) in this opinion, such as “SHOP,” “BOOT,” and “Short-Notice Sick Calls.” If there weren’t so many cases this week, I’d spend more time with this opinion. Especially if you practice labor law, it is worth a read.
          •  

            • Brown v. District of Columbia: We have a majority opinion (Judge Henderson, joined by Judge Edwards) and a concurrence in the judgment (Judge Wilkins), and when they are combined, there are a lot of pages. This case is a big deal if you follow (a) disability discrimination (and, in particular, Olmstead v. L.C. ex rel. Zimring), (b) class actions, or (c) remedies law. There is a lot going on. But I’m going to focus on a substantive footnote (of which there many):
            •  

              • Jeffries v. Volume Services America, Inc.: This opinion is short (well, relatively). It’s also about something I’ve never really thought about before — receipts that list the full credit card number and expiration date. Judge Henderson (joined by Judge Edwards), however, has now thought about this issue a great deal. A company printed all of that information on a receipt; that is against the law. But no one used that information to steal the plaintiff’s identity. Can the plaintiff still sue? This is a Spokeo issue. The Court said yes, for reasons expressed below. Judge Rogers concurred in the judgment because, in her view, it does not matter whether the plaintiff “can also show that her injury is analogous to the harm associated with a common law breach of confidence.”
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                • Iyoha v. Architect of the Capitol: This discrimination opinion (per Judge Griffith, joined by Chief Judge Garland and Judge Rogers) doesn’t break a lot of new ground. But it is sharp. Here is the punchline:
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                  Clerking can be hard work — as this week’s cases confirm. But it’s a great job. So if you have an application out, good luck. And judges, if you are looking for clerks, consider BYU.

                   

                  * Warning: Here comes self-justification!

                   

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About Aaron Nielson

Professor Nielson is a professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

3 thoughts on “D.C. Circuit Review – Reviewed: On Second (and Third and Fourth) Clerkships

  1. William M Yeatman

    I don’t get the clerkship model. There are scores of thousands of legal & issue-specific experts in domestic regulatory agencies; there are thousands staffing committees of jurisdiction in Congress. But federal courts work with a rotating handful of twenty-somethings. I don’t get it. No matter how brilliant you are in law school, you’re still in your twenties if you’re in your twenties. It’s wholly possible I’ve misinterpreted how Article III staffing works. But if it works the way I think it does, then it makes no sense to me.

    Reply
  2. Aaron Nielson

    Clerks help judges find cases, bat around ideas, etc. And clerks, working with judges, often work on drafts of opinions. These are things that a junior lawyer can do pretty well. But the judge is ultimately responsible. Judges have a lot of experience and should be heavily involved in the process. I believe this is the theory behind clerks and, at least in my experience, it is accurate.

    Reply
    1. William Yeatman

      Thanks for lending insight! I hasten to restate–I’m ignorant of the model’s workings. To wit, I just learned that at least 40% of Justice Gorsuch’s clerks were older than 30, and one was older than 40. So, clearly, some of my assumptions were mistaken.

      That said, I still find appealing some sort of professional & more-permanent staff. I still see a gross imbalance of resources. Perhaps more judges, not more staff, would do the trick; or a proliferation of specialized Article III judges; or administrative courts, along the lines of what Prof. Greve advances. In any case, thanks again for responding. Great post, per usual.

      Reply

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