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Open Letter to Federal Judges About Clerkships from Dean Larry Kramer

On June 29, 2012 Dean Larry Kramer sent the following letter explaining his concerns and Stanford Law School’s policy regarding the Federal Law Clerk Hiring Plan to members of the Judicial Conference of the United States and to the chairman of its executive committee; to judges of the federal district and appellate courts including chief judges; and to the chair of the Online System for Clerkship Application and Review (OSCAR). The letter is intended to provide transparency about Stanford Law School’s practices in supporting students who seek judicial clerkships, and to be candid about the effects of the Plan’s erosion on students and the integrity of the clerkship hiring process.

Here is the entire text of Dean Kramer’s letter:

Dear Judge [   ]

As you may or may not know, Stanford, joined by several other law schools, wrote to the Judicial Conference in February to see whether anything could be done to bring early moving judges back into compliance with the Federal Law Clerk Hiring Plan.  On behalf of the Conference, Judge David Sentelle responded that “the hiring plan is voluntary” and that “[t]he Judicial Conference has no authority to require judges to participate or to comply with its rules.”  (A copy of his letter is attached.)  We also contacted the Chair of the Online System for Clerkship Application and Review (OSCAR) and received the same reply.  So far as the judiciary’s own regulatory organizations are concerned, in other words, the Plan is wholly voluntary and they cannot do anything to help secure adherence to its terms.

Since then, rumors have begun to circulate about how Stanford Law School is handling clerkship applications, including some assertions that we are breaking a plan other law schools are following.  For the sake of clarity, and to avoid misunderstanding, we believe it helpful to explain what we are doing and why.

As you know, the Law Clerk Hiring Plan establishes dates in September before which federal judges are not supposed to interview or make offers to rising third-year law students.  Law schools, for their part, are supposed to “discourage” students from applying before those dates and to “discourage” faculty members from supporting students who nonetheless do so.  When the Plan was created, and for many years after, the vast majority of judges abided by its terms, providing order and equal access to federal judicial clerkships.

In recent years, that order and access has eroded.  Increasing numbers of judges—the entire membership of some courts, some or many of the judges in most others—have begun interviewing and hiring law clerks well before the Plan

dates.  Law schools, understandably anxious not to disadvantage their students, have accommodated these early moving judges.  Without making explicit or formal institutional announcements, schools have looked the other way while permitting or even tacitly encouraging faculty members to contact and correspond with early moving judges on behalf of their students.

Put in other words, the Plan is not actually being followed, resulting in a process that is inequitable and unfair.  Students who are “in the know”—because they are members of the right student organization or on the right journal or have the right faculty mentor—learn which judges are accepting early applications and get support.  Those lucky enough to have connections to judges and/or faculty members are able to apply and secure clerkships, while others, less fortunate, are not.

The responses from Judge Sentelle on behalf of the Judicial Conference and the Chair of the Online System for Clerkship Application and Review (OSCAR) left Stanford with two options: (1) continue to participate in what has become a charade of professing allegiance to the Plan while actually breaking it by leaving individual faculty to reach out to early moving judges on behalf of a subset of lucky students; or (2) advise our student body openly and transparently, as best as we can, concerning which judges hire early and support equally the applications of all students who want to apply.

We have opted for the latter course.  Thus, for judges who indicate that they are considering applications in the spring and summer, we are releasing letters of recommendation upon request.  For judges following the Plan, we are not releasing recommendations until September.

We recognize that many of our peer schools have decided to continue to profess allegiance to the Plan while allowing their faculty to place students on a discretionary basis.  We concluded, however, that the resulting inequities are too unfair.  We want all students to have an equal opportunity to apply for clerkships, not just the lucky connected ones.  By providing students with institutional support if they apply to early moving judges, we eliminate the inequities and “old boy network”-effect created by leaving that support to individual faculty discretion.

In terms of compliance with the Plan, we believe there is no material or meaningful difference between what we are now doing and knowingly turning a blind eye to faculty calls and letters to judges: no difference, that is, except our approach levels the playing field for all students in terms of access and opportunity to secure a federal judicial clerkship.

Furthermore, we hope our new policy restores a modicum of integrity to the clerkship hiring system.  Law schools ought to model respect for procedural rules.  Yet the current hiring system teaches students the opposite: learn the rules and then figure out ways secretly to work around them for your own personal advantage.  Worse yet, the current system sets up a regime under which law students’ first interactions with the federal judiciary come in the context of ignoring highly publicized rules that purport to ensure fair play.

The process for hiring law clerks has evolved into something as bad or worse than the system that existed prior to the Plan’s adoption.  It presents a sham appearance of imposing deadlines, while in effect advantaging favored students or student groups.  We tried to change it, without success, this past year.  We hope you will work with us to enable all students to compete for clerkships on equal footing.  We stand ready and eager to work with you and other schools to find a better way to manage the clerkship hiring process.  Until then, we believe we are doing the best we can under the circumstances.

Sincerely yours,

Larry Kramer


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