For young lawyers, a clerkship with a federal judge represents an extraordinary career opportunity. Clerks enhance their writing and reasoning skills under judicial supervision, learn how judges evaluate arguments, and enjoy mentorship and networking benefits that provide career-long advantages. Firms reward lawyers for completing these year-long apprenticeships before entering private practice.
Law graduates have historically avoided seeking multiple clerkships unless they aspired to clerk for the highest court in the U.S., the Supreme Court. In today’s legal hiring landscape, that norm has been replaced with a new approach: “clerkship stacking,” where law graduates complete two, three, or more clerkships in sequence. The practice has reduced the number of available positions and delayed clerks’ entry into the legal profession.
In their new study “Stacking the Deck,” Tracey E. George, Albert H. Yoon, and Mitu Gulati examine the rise of clerkship stacking and the forces behind it. Drawing on interviews with roughly 130 judges, they conclude that stacking results from “a rational market response to a structural information failure,” and efforts to address the issue have only exacerbated it.
Stacking Addresses an Information Gap
Judges consistently reported in interviews that determining a candidate’s fit was the most difficult aspect of the clerkship hiring process. Grade inflation, testing accommodations, and changes to law review selection distort the quality of traditional academic credentials. Writing samples can be edited by others; letters of recommendation are often exaggerated; and interviews are insufficient to gauge someone’s capacity to work in a small office. These challenges are compounded by students’ ability to mass apply to hundreds of openings through OSCAR (Online System for Clerkship Application and Review).
Under these circumstances, judges view a candidate’s prior clerkships as important signals of potential fit, even when those clerkships have not yet been served. “What matters is not retrospective vouching for the clerk’s performance,” the authors note, “but the forward-looking signal that another judge found this candidate worth hiring.”
This information gap also applies for students, who are incentivized to mass apply for clerkships, diminishing their ability to research each position.
“When both sides of a matching market have systematically poor information about the other’s salient characteristics, the market becomes inefficient and the matches worse,” the authors write.
Stacking is a Rational Response to the Clerkship Application Process
The study points out several compelling reasons why students opt to stack clerkships. An initial clerkship may lead to a more desired clerkship in the future, or a second chance at their first choice. There is an education rationale as well: training received in a district court-level clerkship provides a leg up in a circuit court setting.
The authors also point out an important supply-side dynamic. Judges deciding between several strong candidates may opt to hire several candidates for subsequent terms. In this scenario, students may take a commitment one, two, or three years out to ensure they can secure a clerkship. “These commitments generate the gaps in student careers that encourage subsequent clerkships as backfill,” the authors explain.
With law firms offering clerkship bonuses worth more than $100,000, the opportunity cost of stacking has declined.
How Reforms Have Failed to Curb Clerkship Stacking
The Federal Law Clerk Hiring Plan and OSCAR were designed to level the playing field by allowing students to earn more grades before the hiring process started. The study finds these efforts have fallen short of their goals, for several reasons.
OSCAR enables students to apply to hundreds of open positions, eliminating targeted applications that provide judges valuable context in hiring.
“Students are disincentivized from investing time to learn about the 900+ federal judges when they now can wait until after a judge invites them to interview, decreasing their clerkship search costs,” the authors explain. “A system designed to make applications easier made them less informative for both sides.”
The authors also discovered a bifurcation of the market: some judges hire after a semester’s worth of grades, while others comply with the Hiring Plan and wait for a full year (or more). Both Republican and Democratic judges reported that this leads to a skewing of the candidate pools based on applicants’ apparent ideology as more Republican appointees move early.
Clerkship Stacking and Equity
The authors note that information gaps and a bifurcated hiring market raise equity concerns that many judges raised in the study:
“Elite school brands substitute for information; professor networks advantage those at prestigious schools; first-semester hiring advantages those who arrived knowing the game; and requiring prior clerkship experience effectively halves the available slots for first-time applicants.”
While they acknowledge that stacking can allow students who do not obtain a top circuit clerkship to leverage a strong performance in a lower court to earn a higher-level position subsequently, “it does not address the systemic exclusion of those who cannot afford to enter the clerkship ecosystem at any rung.”
Potential Solutions
Participating judges offered several concrete ways to address the issue of clerkship stacking; the study highlights three:
- Fellowships for students to fill gap years without use of an additional clerkship;
- Court internships to help judges gather more information on potential clerks; and
- Changes to the Supreme Court’s vetting process, specifically regarding its current preference for prior clerkships.
The authors found none of the proposals well-suited to solve the problem completely. “Each addresses part of the problem—the information gap, the gap years, or the prize structure—without resolving the underlying collective action dynamic,” they write.
“Solving this problem will require more than individual commitments to equity. It will require changes to the institutional structures—in law schools, in the Judicial Conference, and perhaps at the Supreme Court itself—that currently make stacking the rational choice.”
“Stacking the Deck” will be published in George Washington Law Review Arguendo. Tracey E. George is Deputy Provost and Charles B. Cox III & Lucy D. Cox Family Chair in Law & Liberty at Vanderbilt University. Albert H. Yoon is Professor and Michael J. Trebilcock Chair in Law & Economics at the University of Toronto. Mitu Gulati is the Warner-Booker Distinguished Professor of International Law and Joseph C. Carter, Jr., Research Professor of Law at the University of Virginia.
“Stacking” is part of a book which looks closely at a closed network of clerks, feeders, and advocates that supplies the Supreme Court its people and its arguments and asks what that insularity means for an unelected branch of government with rapidly expanding power over democracy.