Here is a blog post I wish I could take back: “Five Years After the Death of the Clerkship Plan.” My post, from February of this year, concerned a (then) long-time feature of the D.C. Circuit’s homepage:

The backstory is that in 2013, the D.C. Circuit officially withdrew from the “Law Clerk Hiring Plan,” which regulated when circuit judges could hire law clerks in an effort to prevent them from hiring second-year students. The D.C. Circuit’s decision essentially killed off the plan; the full story can be found at this link. In my February 2018 post, I explained what happened and included this summation:

Following the D.C. Circuit’s announcement, it was obvious that the Plan’s days were numbered. The D.C. Circuit, after all, had played an anchoring role. Certain desirable applicants waited to apply broadly because a shot at the D.C. Circuit was considered worth waiting for; in hopes of hiring those students (whose number exceeded the number of D.C. Circuit clerk slots), judges elsewhere waited for the D.C. Circuit to move. And in hopes of hiring clerks that might be competitive for those judges, other judges also waited, and so on down the line. Once the D.C. Circuit stopped playing that anchoring role (because it was tired of losing out on good candidates; the D.C. Circuit wasn’t a great anchor because, obviously, there are lots and lots of great judges around the country), the Plan officially collapsed. This change has many downsides, of course, but at least things are more transparent and fair.

That’s why it is a good thing that the D.C. Circuit’s website still has that announcement in a prominent place. Hopefully it reminds everyone that good intentions are not enough; unintended consequences are real, and if we don’t pay close attention to institutional design, we may harm those we hope to help.

Why do I regret this post? Because soon after publishing it, the D.C. Circuit teamed up with a number of other circuits to create a new hiring plan! My timing could not have been worse.

As a rule, I try not to offer opinions about the D.C. Circuit’s handiwork. To be sure, I have opinions (sometimes), but my goal is to provide information so that you can form your own opinions. But I’m going to make an exception for clerkship hiring. Although I share the concerns that prompted the D.C. Circuit’s decision (trust me, there are real downsides to hiring students before the 2L year), I fear that the D.C. Circuit’s decision will have serious unintended consequences.

Chief Judge Diane Wood and I recently published a point/counterpoint article on the new hiring plan in Judicature. Drawing from that article, here are three reasons why I think the D.C. Circuit made a mistake.

(1) A Broken Plan is Worse Than No Plan.

No one thinks that all judges will follow the hiring plan. To the contrary, judges have told me in no uncertain terms that they are not following the plan. These are not empty words. A judge recently interviewed a student I know well; I confess, I was surprised when I heard the news because I did not know that this judge hired pre-2Ls. And as I report in the article, one judge — on a trip to Boston — told students to “apply early to judges in [her] circuit.”

Thus, the working assumption in favor the new plan must be that a broken plan is better than no plan at all — i.e., that partial compliance is better than no compliance. But I fear that assumption is wrong. As I explain in the article:

And so we come to the crux of the dispute: What is better — a plan that doesn’t work or no plan at all? My sense is the latter. I applied for clerkships while the old plan was collapsing. It was unfair. Some students at schools with less robust clerkship cultures presumably trusted the plan because it looked authoritative; they missed out. Many better informed students knew that some judges hired early but did not know who those judges were, and students in the know weren’t always keen on sharing that information. That also wasn’t fair. Likewise, some but not all professors were willing to send letters before the deadline, which in effect treated similarly-situated students dissimilarly. And some judges may have penalized students for applying early by discounting their applications, even though students were simply trying to navigate a difficult situation with imperfect information.

The system should not be titled in favor of insiders. Unfortunately, with a plan in place, it is hard to know when judges are hiring. Soon enough, however, the students on the Yale Law Journal will know, if they don’t have a pretty good idea already.

The D.C. Circuit’s role in all of this is complicated. For a number of reasons (some good and some bad*), many students really want to clerk on it. So if the D.C. Circuit holds off on hiring, some students will not apply “early” to other circuits (while other students do). This will likely extend the life of the plan — although, to be sure, based on past experience, this anchoring effect likely will not be enough over the long run. To the extent that the D.C. Circuit extends the life of a broken plan, I am concerned.

(2) A Plan Encourages Exploding Offers and Hiring Graduates.

Another problem with a plan is that it encourages “exploding offers”; because the time for hiring is artificially compressed, some judges try to hire quickly. To the D.C. Circuit’s credit, it says that judges will give applicants at least 48 hours to make a decision. But is that realistic? A circuit judge told me that it is not: “The 48-hour period for exploding offers is a joke. It’s not realistic that an applicant can schedule numerous interviews, receive offer(s), consult with advisors and family, and come to a reasonable conclusion in that short period.”

Likewise, a plan encourages judges to hire graduates, who are not regulated:

Hiring post-graduates is not always a problem; some judges like having real-world experience in chambers. But it is a problem if a judge feels compelled to hire a post-graduate, not because he or she is the best candidate, but because of the plan’s incentives. Likewise, as one of my colleagues stresses, to the extent that the plan encourages hiring post-graduates, it makes it more difficult for less “traditional” students to clerk, especially students who are married or who have young children. After all, they have to find a job, then leave that job and move someplace else for a clerkship, and then probably move again. Such upheaval often isn’t realistic.

These also strike me as problems.

(3) It May Teach a Bad Lesson.

I’m sympathetic to the D.C. Circuit’s goal: hiring pre-2Ls is problematic. I’ve seen many students improve their academic performance during the 2L year. Plus, when hiring pre-2Ls, judges, I suspect, often use proxies for legal ability (such as which law school a student attends) instead of demonstrated legal ability. Likewise, I agree that students should have more time to work on writing samples. All of this supports a plan.

Here’s the problem, however. Some judges disagree; they think hiring students after the 1L year is perfectly fine, at least sometimes. They also think — correctly, I suspect — that the plan benefits judges on the East and West Coasts at the expense of judges in the middle. Many of these judges aren’t going to follow a plan. At the same time, in the past, some judges didn’t follow the plan, but weren’t keen on letting the world know that fact. Yet the plan looks very official and students are told by authority figures to follow it. The result is that students learn that only “gullible people” follow rules. That’s not a good lesson to teach anyone, especially law students.

Hence, my reluctant conclusion: “If we can’t have order, we can at least have transparency.” Because it does not appear that there is an appetite to expend the resources necessary to create a working plan (which would require strong enforcement mechanisms), the best answer, although imperfect, is to back away altogether. I wish there was a better solution, but I just don’t see a silver bullet here.

***

The D.C. Circuit issued (just!) three opinions this week.

In Utility Solid Waste Activities Group v. EPA, a per curiam panel (comprised of Judges Millett and Pillard, and Judge Henderson in part) addressed “the Environmental Protection Agency’s 2015 Final Rule governing the disposal of coal combustion residuals (‘Coal Residuals’) produced by electric utilities and independent power plants.” If you are an environmental lawyer (or someone generally interested in arbitrary-and-capricious review), read this one in full; the Court covers a lot of ground with this opinion, and vacates, among others, a rule “which allows for the continued operation of unlined impoundments.”

For the rest of us, I want to focus on a cross-cutting issue: What should happen when an agency decides to revisit a rule that is being challenged? Should the Court hold the litigation in abeyance? Remand the rule? Plow ahead? If you follow D.C. Circuit Review — Reviewed, you know that these sorts of issues come up a lot.

Here, the per curiam panel — “[l]ess than a month before oral argument” — was confronted with an EPA announcement that it was reconsidering the rule, in part because of new legislation. The agency asked the D.C. Circuit to hold the case in abeyance, and later asked for parts of the rule to be remanded. The Court rejected the request for the case to be held in abeyance and remanded some but not at all issues: “We have broad discretion to grant or deny an agency’s motion to remand …. In deciding a motion to remand, we consider whether remand would unduly prejudice the non-moving party. Additionally, if the agency’s request appears to be frivolous or made in bad faith, it is appropriate to deny remand.” The “harm to others” idea (for which the panel, notably, cited a district court decision) led the Court to reject a remand in part: “the EPA’s statutory authority over inactive sites necessarily implicates the Environmental Petitioners’ claim regarding legacy ponds. So, even if Industry Petitioners are willing to go along with a remand, Environmental Petitioners are not and remand would prejudice the vindication of their own claim.” By contrast, the Court was much more willing to remand provisions that were not challenged on the merits because “no party will suffer prejudice from remand without vacatur.”

Again, if you follow environmental law, read this opinion; there is a lot more going on — including a fight about statutory interpretation with Judge Henderson (who concurred in the judgment).

In Lewis v. Pension Benefit Guaranty Corporation, Judge Griffith (joined by Judges Pillard and Williams) reversed the “district court’s decision allowing participants in a pension plan to seek recovery of an increase in the value of plan assets that took place after the plan had been terminated.” That is all I will say about this case!

Finally, in United States v. Mosquera-Murillo, Judge Srinivasan (joined by Judges Millett and Sentelle) created another circuit split. This time, the split concerns the “safety-valve provision” in 18 U.S.C. § 3553(f), which “in certain circumstances, exempts covered offenses from mandatory-minimum sentences.” Here, “the United States Coast Guard intercepted a Colombian vessel called the Mistby, which was transporting cocaine and marijuana to Panama.” The Court concluded that there was jurisdiction over this case (the explanation may be interesting to those who are involved in cases about overseas drug trafficking, hopefully as a lawyer) but concluded that the “safety-valve provision” applies — if that issue is relevant to your practice, give this opinion a read.

And with that, have a great weekend — and let’s hope I’m wrong about clerkship hiring.

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* Don’t be this student.

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