Law Clerks Research Articles

Advocacy Before the Eleventh Circuit: A Clerk's Perspective

Appellate attorneys must tailor their advocacy to the court hearing their appeal. Each court of appeals has different jurisprudence, rules, traditions, and decision-making processes. Yet there are few articles on appellate advocacy tailored to a particular court. We wrote this article to help fill that gap. As former law clerks on the United States Court of Appeals for the Eleventh Circuit, we offer advice specifically for attorneys who practice before the Eleventh Circuit. Our advice is based on our experiences as clerks, as well as our analysis of the Eleventh Circuit’s rules, procedures, and public statistics. We offer no inside baseball about the Court but rather our personal views on how to draft a compelling brief and present a persuasive oral argument.

How Conservative Will President Trump’s Next Supreme Court Nominee Be?: A Short Empirical Investigation

With the retirement of Justice Kennedy, the Supreme Court will have a new swing justice to decide which side of 4-4 splits to join. Most have thought that Chief Justice Roberts would assume that new role. But that would only be if President Trump appoints someone to the right of the Chief. Yet what if the President assigns someone to Roberts’ ideological left? Then that new justice would be the swing justice (and arguably the most important justice on the Court). And since Republican-appointed justices tend to become more liberal the longer they sit on the Court, how conservative might each of President Trump’s finalists be in 10, 20, or 30 years given the average conservative deterioration rate of past Republican justices? To answer these questions, this paper draws on recent scholarship on the ideology of law clerks hired by particular judges to create a new measure of ideology in order to be able to compare potential nominees with Supreme Court justices. And the paper leverages the familiar legal concept that one is known by their associates. Thus, the paper’s methodology is founded on a common sense assumption that has been validated by political scientists: conservative judges tend, on average, to hire conservative clerks and liberal judges tend, on average, to hire liberal clerks. However, this paper’s measure can only be applied to those potential nominees who have previously been a judge and had one of their clerks also clerk on the U.S. Supreme Court. And since not all of President Trump’s four finalists have done so, this paper only examines Judges Brett Kavanaugh, Raymond Kethledge, and Amul Thapar. Though it could be applied to others on President Trump’s list of 25 potential nominees. I find that the three finalists able to be measured (Kavanaugh, Kethledge, and Thapar) would all likely begin on the Court more conservative than Chief Justice Roberts and less conservative than Justices Alito, Gorsuch, and Thomas, with Kavanaugh likely being the most liberal Republican-appointed judge appointed to the Court since Stevens. Additionally, after one decade the three finalists would still be more conservative than Roberts currently is; after two decades Kavanaugh would be about where Justice O’Connor was when she retired and Kethledge and Thapar would still be more conservative than where Roberts is today; and after three decades Kavanaugh would be more liberal than Justice Kennedy was when he retired, Kethledge would be about where O’Connor was when she retired, and Thapar would be more conservative than that, but less conservative than Roberts currently is.

Federal Judicial Clerkship Report of Recent Law School Graduates, 2018 Edition

Law student activists stand against applying to clerk for judges of certain ideological stripes. A law clerk disclosed sexual harassment inflicted by the judge she clerked for. The federal judiciary continues to struggle with work and hiring in the light of the novel coronavirus. In some ways, 2020 has not been a banner year to think about federal clerkships as the best jobs a law student will ever have. But a federal judicial clerkship remains a valued credential for employers, a coveted outcome for most students, and a window into the federal judiciary for outsiders, particularly first-generation law school graduates. And while some experiences can turn out poorly, the modal outcome seems to be one of high satisfaction, with a mentoring judge through a clerk’s early career and a network of clerk alumni who can support one another. And in the midst of these discussions, I offer this Federal Judicial Clerkship Report of Recent Graduates. This report is an opportunity to reflect on the present state of legal education and federal judicial clerkships. This Report offers an analysis of the overall hiring of recent law school graduates into federal judicial clerkships between 2017 and 2019 for each law school. It includes an overall hiring report, regional reports, overall hiring trends, an elite hiring report, and trends concerning judicial vacancies.

Clerking for “God’s Grandfather”: Chauncey Belknap’s Year with Justice Oliver Wendell Holmes, Jr

Clerking for “God’s Grandfather”: Chauncey Belknap’s Year with Justice Oliver Wendell Holmes, Jr TODD C. PEPPERS IRA BRAD MATETSKY ELIZABETH R. WILLIAMS JESSICA WINN Introduction In the last twenty years, historians have discovered the Supreme Court law clerk. Although the first clerks were hired by the Justices in the 1880s, for much of their existence the clerks toiled in relative anonym­ ity. Law clerks emerged from the shadows, however, when Court scholars began to appreciate the value of studying them, not only because clerks were eye-witnesses to the internal workings of the Supreme Court, but also because the clerks had substantive job duties and arguably wielded influence over the decision-making process. Most of what we know about law clerks comes from the clerks themselves, usually in the form oflaw review articles memorializing their Justices and their clerkships or in interviews with reporters and legal scholars. In a few instances, however, law clerks have contemporaneously memorialized their ex­ periences in diaries. These materials provide a rare window into the insular world of the Court. While the recollections contained in the diaries are often infused with youthful hero worship for their employer—in contra­ distinction to Justice Oliver Wendell Holmes, Jr.’s claim that no man is a hero to his valet— they offer a real-time, unfiltered peek at the personalities who populated the bench and the issues with which the Court was grap­ pling. Just such a snapshot in time is provided by the diary of Chauncey Belknap, a remarkable Harvard Law School graduate who clerked for Justice Holmes during October Term 1915. Through Belknap’s near-daily records of his clerkship, as well as his encounters with the glittering social set of pre-war Washington, we are permitted a 258 JOURNAL OF SUPREME COURT HISTORY singular and fascinating glimpse into the colorful experience of working for one of the Court’s most famous jurists. A copy of the diary was obtained from Belknap’s long-time law firm, Patterson, Belknap, Webb & Tyler. While portions of the diary have appeared in other books and articles, the diary has neverbeen reproduced in its entirety.1 This is due, in part, to the fact that the diary is written in a combination ofcursive that varies in its readability and Pitman shorthand. Over a two-year period, two of the co-authors (Williams and Winn) carefully transcribed the diary. Once the transcription was complete, a Pitman shorthand expert was retained to translate the shorthand into English. Finally, all four authors had to agree upon words that were challenging to discern because of Belknap’s handwriting. If agree­ ment could not be reached, then the word was listed as “unintelligible” in the final text. As they transcribed the text, Williams and Winn researched and annotated Belknap’s references to people, places, and events. The text was subsequently edited to make format­ ting and style more consistent. For purposes of publication, an abridged version ofthe diary is presented here. The selected entries and portions of entries reflect the tone of the diary as a whole and highlight the significant events and conversations Belknap recorded. Brief identifications of persons mentioned and explanations of unfamiliar terms, as well as citations, are provided in the endnotes. Before one turns to the diary, some background on its author is necessary. Belknap was bom on January 26, 1891, in Roselle Park, New Jersey, to Chauncey and Emma McClave Belknap. The early years of his life were filled with hardship and loss. His father was a sales executive with the Thomson Houston Electric Company. When Belknap was two years old, his father died of yellow fever during a business trip to South America. Belknap’s mother died two years later of appendicitis. Thus, Belknap was effectively orphaned by the age of four. Relatives raised Belknap and his young sister, Fredericka.2 The young children went to live on the Upper West Side of Manhattan with maternal aunt Mary McClave, who was a school teacher. Living quarters were tight, and Belknap slept on the living-room couch. Many weekends were spent farther down­ town with his paternal aunts, Cornelia and Elizabeth Belknap, or with his uncle, Fred­ erick H...

Does Reason Writing Reduce Decision Bias? Experimental Evidence from Judges in China

Anecdotal evidence and academic research show that judges’ subjective feelings toward litigants have undue influence on their judgments. This article suggests a simple debiasing procedure, namely, requiring judges to write their reasons before making a decision. I conduct experiments on incumbent Chinese judges to test its effectiveness. Study 1 uses a between-subjects design to explore the interaction of reason writing and a stimulus that induces a judge to have negative feelings toward a defendant. Judges who are required to write down their reasons before they decide a case are significantly less affected by the stimulus than those who directly enter the decision-making stage. Study 2 provides evidence that a forced deliberation period achieves a similar debiasing effect. Study 3 examines the opposite of reason writing— the delegation of reason writing, which resembles the delegation of opinion writing by judges to law clerks. I find that delegation serves to reinforce biases.

A Review Essay on Alvin Roth’s Who Gets What—and Why

Alvin Roth's Who Gets What—And Why provides a richly accessible introduction to his pioneering work on market design. Much of economics ignores the institutions that allocate goods, blithely assuming that the mythical Walrasian auctioneer will handle everything perfectly. But markets do fail and Roth details those failures, like the market for law clerks that unravels because clerks and judges commit to each other too quickly. Roth combines theory and pragmatic experience to show how the economist can engineer successful markets. He has even enabled welfare-improving trades in kidney exchanges, where law and social repugnance forbids cash payments. (JEL C78, D47)

Bullied bug lover gets support; son champions dad’s chemistry

Bugging out Eight-year-old Sophia Spencer of Ontario is a spunky kid who loves bugs. “Bugs are cool. They have their own features, and they’re so colorful,” Sophia tells Newscripts. But her adoration for creepy crawlies often drew teases and taunts from her classmates. That really bugged Sophia’s mom, Nicole Spencer, who couldn’t bear to watch others stifle her daughter’s passion for science, so she took matters into her own hands. She approached the Entomological Society of Canada for help connecting Sophia with an entomologist who could be her pen pal and answer her questions about bugs.Nicole, who is a law clerk, feels strongly that more girls should be in science, technology, engineering, and mathematics—the STEM fields: “I want Sophia to know she can do anything she wants to do.”At the Entomological Society, Morgan Jackson, a social media volunteer and a Ph.D. candidate at the University of Guelph, drafted this tweet

Reinvigorating Commonality: Gender & Class Actions

The modern class action, the modern feminist movement, and Title VII of the Civil Rights Act of 1964 were all products of the creativity and turmoil of the 1960s. As late as 1961 — one year after Justice Felix Frankfurter rejected new law school graduate Ruth Bader Ginsburg as a law clerk because she was a woman — the Supreme Court unanimously upheld the constitutionality of a Florida statute that required men, but not women, to serve on juries, on the ground that women’s primary role was in the home. As Betty Friedan put it in 1963’s The Feminine Mystique, “In almost every professional field, in business and in the arts and sciences, women are still treated as second-class citizens.” But change was imminent. The Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the founding of the ACLU Women’s Rights Project, and a rising social and intellectual feminist movement brought women’s equality into the national conversation. Simultaneously — at least in part in response to the civil rights movement and the Civil Rights Act — an (all-male) Judicial Conference and Supreme Court in 1966 ushered in the modern era of collective litigation by promulgating Federal Rule of Civil Procedure 23, and more specifically, Rule 23(b)(2), which provided a formal structure for civil rights plaintiffs to seek aggregate relief for violations of federal and state anti-discrimination laws. Together, these phenomena gave impetus to communities of women to combat legal and cultural injustices through the courts. The result has been widespread improvement in the lives of working women — and men — across many industries. In this Article, we examine the interplay of Rule 23(b)(2) class actions, feminism, and Title VII sex discrimination doctrine over the past fifty years to show that the theoretical concept of commonality — cohesion, unity — in the women’s movement has had a significant impact on the ability of women to seek collective redress for workplace discrimination through class actions. We describe how the four “waves” of feminism since the 1960s find corresponding analogues in the development of Title VII class action law. This is not an empirical study, nor is it comprehensive. Rather, our aim is to generate thought as to ways in which class action doctrine simultaneously reflects and reinforces evolving views of feminism and gender equality. We acknowledge that class actions are not the sole standard bearers for impact litigation, and that individual suits — whether brought by individuals of any gender or by physicians — have been vital to the establishment of anti-discrimination legal norms in the area of gender equality. Even so, we argue that Rule 23(b)(2) suits continue to serve a vital function by allowing women to enforce those established norms, overcoming classic barriers to judicial justice such as lack of resources, lack of access to lawyers, and retaliation by employers against individuals who file suit. As Anita Hill recently argued in a critique of the technology sector, “Class action lawsuits can force industry-wide change, even in the most entrenched, male-dominated industries.”

A Primer on the "Bell Case Synthesis Method" and a Lesson on Adult Child's Play

The ability to successfully discern and communicate the relevant aspects of a judicial opinion is a fundamental skill that legal professionals must have. Despite its importance, many in the legal arena lack the ability to effectively demonstrate this skill. Needless to say, law students suffer from this same shortcoming. After years of reading inadequate briefs submitted by lawyers and reviewing deficient submissions by law students, I developed an original case synthesis method. This method, titled the “Bell Case Synthesis Method,” teaches one how to select supporting cases and how to adequately explain the relevant aspects of selected cases. This original method has been tested for years and has proven to be quite valuable for memo and brief writing, as well as for the higher level thinking that is needed for success in law school and the practice of law. This article will benefit a broad audience, including lawyers, law students, paralegals, law clerks, inmate counsel and legal educators. In addition, it is timely, given the recent emphasis on producing practice-ready law school graduates.

- . (Mckenzie Friends - The Special Class of Judicial Assistants. A Short Overview for Russian Readers)

Russian Abstract: Друзья МакКензи представляют собой особый класс провайдеров юридических услуг на рынке Великобритании. По мере уменьшения государственного финансирования юридической помощи для малообеспеченных слоев населения, друзья МакКензи приобретают все большую популярность в качестве бюджетных судебных помощников и судебных представителей интересов сторон в гражданском процессе. Статья рассчитана на российских читателей. English Abstract: McKenzie friends is one of the hottest theme in today's british legal market. This paper contains a short overview of legal status of McKenzie friends, the present discussions in legal circles about regulation of McKenzie friends, the points of view of courts, legal officials, Bar Council and the Law Society about the future of this class of legal assistants. For Russian readers.

Temperament risk factor for mental health disturbances in the judiciary staff

The aim of this paper was to examine how temperament might moderate the health impact of psychosocial hazards at work and thus to attempt to identify the temperament risk factor in the judiciary staff. The data were collected from 355 court employees, including judges, judicial assistants, court clerks and service workers from criminal, civil, commercial as well as from labor and social insurance divisions. The psychosocial work environment was measured with the Psychosocial Working Conditions Questionnaire by Cieślak and Widerszal-Bazyl, temperament with Cloninger's Temperament and Character Inventory adopted by Hornowska and employee health status was screened with Goldberg's General Health Questionnaire- 28 (GHQ-28) adopted by Makowska and Merecz. The health impact of job strain with moderating effects of temperament traits was estimated with logistic regression (forward stepwise selection based on the likelihood ratio for the model). The analyses confirmed the moderating role of temperament in the health consequences of work-related stress. High score in novelty seeking was identified as independent temperament risk factor for mental health disturbances in judiciary staff facing at least medium job demands. The job control was a protective factor while relative risk of negative health outcomes was also elevated due to female gender. Temperament may control sensitivity to the environmental exposure to psychosocial hazards at work and its health consequences. Further research is needed to explore and understand better the moderating role of temperament in the relation between job stress (strain) and health in different vocational groups and workplaces. Med Pr 2017;68(3):375-390.

Reason Writing Reduces Emotional Judging: Experimental Evidences from Judges in China

Anecdotal evidence and academic research show that judges’ subjective feelings toward litigants have undue influence on their judgments. This article suggests a simple debiasing procedure, namely, requiring judges to write their reasons before making a decision. I conduct experiments on incumbent Chinese judges to test its effectiveness. Study 1 uses a between-subjects design to explore the interaction between reason writing and a stimulus that induces a judge’s negative feeling toward a defendant. Judges who are required to write their reasons before they decide a case are significantly less affected by the stimulus than those who directly enter the decision-making stage. Study 2 provides evidence that a forced deliberation period achieves a similar debiasing effect. Study 3 studies the polar opposite of reason writing—the delegation of reason writing, which resembles the judge–law clerk delegation of opinion writing setting. I find that delegation serves to reinforce biases.

Influence and Ideology in the American Judiciary: Evidence from Supreme Court Law Clerks

Justices on the U.S. Supreme Court typically hire law clerks to help them perform their duties. We study whether these clerks influence how Supreme Court justices vote on the cases argued before them. To do so, we exploit the timing of the clerkship hiring process to link variation in clerk ideology to variation in judicial voting. We measure clerk ideology by matching clerks to the universe of publicly disclosed political donations. Our results suggest a positive and statistically significant effect of clerk ideology on judicial voting: justices cast approximately 4% more conservative votes in terms employing their most conservative clerks, as compared to terms in which they employ their most liberal clerks. We find larger effects in cases that are higher profile, cases that are legally significant, and cases in which the justices are more evenly divided. We interpret our results as providing suggestive evidence that clerk influence operates through persuasion rather than delegation of decision-making responsibility.

The Federal Reserve and Goldman Sachs: Mike Silva

Mike Silva, the NY Fed's senior supervisory officer for Goldman Sachs, is having trouble with Carmen Segarra, a recently hired bank examiner who reports to Silva. The two disagree about whether Goldman Sachs has a viable overall conflict-of-interest policy; Silva says “yes,” and Segarra says “no.” Segarra's communication style—aggressive and frank—has irritated both Silva and others in their department, although an independent report had been critical of the NY Fed for being too cozy with the banking institutions it regulated. The tension between Silva and Segarra has reached a breaking point, and Silva must decide how to handle Segarra and whether to fire her. A teaching note accompanies this case and details how it is taught in Darden's ethics and leading organizations courses. Excerpt UVA-OB-1078 Rev. Mar. 15, 2016 The Federal Reserve and Goldman Sachs: Mike Silva As Mike Silva watched Carmen Segarra leave his office, he felt his headache intensifying. It was early 2012, and Silva, the Federal Reserve Bank of New York's (NY Fed) senior supervisory officer for Goldman Sachs, had just had one of many combative arguments with Segarra, recently hired as a NY Fed bank examiner assigned to Goldman Sachs. Segarra was highly skilled, but she had an aggressive and vociferous personality, which had rubbed some of her colleagues the wrong way and threatened to disrupt the somewhat delicate relationship between Silva's division and Goldman Sachs. Both Silva and Segarra's immediate supervisor had talked to her about toning down her criticism, both of the NY Fed's management and also of Goldman Sachs's policies, but to no avail. The issue at the center of the morning's argument was Goldman Sachs's compliance policy. Segarra claimed that Goldman Sachs did not have a company-wide conflict-of-interest policy. Silva disagreed; although it was an imperfect and somewhat chopped-up policy, Silva believed it was nonetheless a policy. He had told her that, as a legal matter, a company or organization could have a policy that was not in writing. No matter what he said, Segarra refused to change her mind or compromise on the issue. The relationship between regulators and financial institutions was complicated, and Silva worried that Segarra's vocal complaints might inject a hostile tone into his division's relationship with Goldman Sachs. After all, this particular division was actually embedded in the bank itself, as was customary with NY Fed regulators and the institutions they oversaw. Silva was not sure what to do; his approach to his job was collaborative, but Segarra's was confrontational. Mike Silva A 1983 graduate of the United States Naval Academy, Mike Silva had served in the U.S. Navy from 1983 through 1989 as an F14A Naval Flight Officer, graduating in 1985 from the Navy Fighter Weapons School (the program depicted in the 1986 movie “Top Gun”). He left the Navy to attend Columbia Law School. After graduating from Columbia in 1992, Silva joined the NY Fed as a law clerk. He held a number of different positions and rose through the ranks, first in legal and then in the executive group. In the mid-2000s, Silva was appointed by NY Fed President Timothy Geithner as chief of staff and vice president for its executive group. In the early 2000s, Silva had served as a coalition advisor to the Central Bank of Iraq, a role for which he received two awards: a Department of Defense Joint Civilian Service Medal and the Secretary of the Tre

Evaluating the Effect of Law Clerk Gender on Voting at the United States Supreme Court

ABSTRACTScholars have analyzed how those with close ties to Supreme Court justices—including family, friends, and political and legal elites—influence judicial behavior, but there are still questions about how law clerks’ attributes affect their relationship to their justice. This is important because clerks’ genders may affect their credibility and their ability to influence their justice’s behavior when a case involves a clear gender dimension. Scholars have uncovered a great deal about the determinants and consequences of the credibility of a different set of attorneys—those who present at oral argument. I apply insights from the literature on attorney credibility to the context of law clerks and analyze whether women enjoy greater credibility and influence in cases involving sex discrimination and abortion. I find that women influence their justice’s vote on the merits, but this influence is conditional on the number of women a justice hires and the justice’s ideology. This finding is robust to accounting for potential spurious factors and to balancing covariates via matching. This analysis has implications for how the justices acquire and use information from their environment to aid in their decision making.

Measuring Judicial Ideology Using Law Clerk Hiring

We present a new measure of judicial ideology based on judicial hiring behavior. Specifically, we utilize the ideology of the law clerks hired by federal judges to estimate the ideology of the judges themselves. These Clerk-Based Ideology (CBI) scores complement existing measures of judicial ideology in several ways. First, CBI scores can be estimated for judges across the federal judicial hierarchy. Second, CBI scores can capture temporal changes in ideology. Third, CBI scores avoid case selection and strategic behavior concerns that plague existing vote-based measures. We illustrate the promise of CBI scores through a number of applications.

The Relationship between Judicial Staff and Court Performance: Evidence from Brazilian State Courts

To handle increasing caseloads, the judicial systems of several countries have adopted three main strategies: developing new standards and judicial procedures; investing in information and communication technologies; and hiring additional judicial staff. This paper investigates the impact of this third strategy on the performance of Brazilian courts. We use multiple regression analysis to test an array of related hypotheses about the complex interactions between the number of judicial staff and court productivity. The empirical research uses ten-year (2003-2012) data from 27 Brazilian courts. The main findings indicate that the number of judicial assistants has a positive influence on court productivity, and the number of assistants mitigates the positive relationship between court caseload and court productivity. The results are discussed and further studies are suggested.

Introduction to patent strategies for medical device inventions

Siegmund Gutman is the Chair of the Life Sciences Patent practice and a partner at the global law firm of Proskauer Rose LLP. Siegmund's practice focuses on developing and executing business-oriented patent strategies for medical device, biotechnology, and biopharmaceutical clients, including early-stage and mature companies, as well as academic and other research organizations. His background combines a graduate degree in biophysical chemistry and molecular and cell biology with more than 25years of experience in the life sciences industry, including serving as senior counsel at Amgen. Joe Capraro is a partner and the Boston Office Head at the law firm of Proskauer Rose LLP. Joe has more than 25years of experience advising start-ups and established companies on intellectual property issues. Joe has amassed broad intellectual property and transactional experience over the years and provides clients with practical, business-oriented advice. Tom Chen is a senior associate in the Los Angeles office of Proskauer Rose LLP, where his practice focuses on patent litigation and counseling in the life sciences sector. Tom holds an A.B. in chemistry and pharmacology from Duke University, and an M.S. in biotechnology from Johns Hopkins University. Prior to joining Proskauer, Tom previously served as a judicial law clerk for the Honorable Alvin A. Schall of the U.S. Court of Appeals for the Federal Circuit, and the Honorable Leonard P. Stark of the U.S. District Court for the District of Delaware.

David R. Marshall, JD, DNP, RN, CENP, NEA-BC

David R. Marshall, JD, DNP, RN, CENP, NEA-BC, is vice president and chief nursing & patient care services officer at the University of Texas Medical Branch (UTMB) in Galveston, Texas.

The Political Ideologies of Law Clerks

In order to study the political ideologies of judicial law clerks in the United States, we construct a novel dataset that combines information on the identity of clerks with a measure of political ideology based on political donations. We then use this data to empirically investigate several important questions about the ideologies of clerks. First, we examine whether clerks tend to share the liberal ideology of other lawyers or the more conservative ideology associated with federal judges and find that clerks tend to be disproportionately liberal. Second, we investigate how the ideologies of clerks compares to the ideologies of lawyers and find that liberal lawyers are more likely to have clerked than conservatives. Third, we assess whether the ideologies of clerks differs based on the level of clerkship and find that the liberal skew becomes less pronounced as the prestige of the clerkship increases. Fourth, we analyze the relationship between ideology and the hiring of clerks and find that the ideology of judges is strongly correlated with the ideology of their clerks.