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Professor Howard M. Wasserman at FIU Law, author of the superb Understanding Civil Rights Litigation, has published in Judicature a thought-provoking study, Academic Feeder Judges: Are Clerkships the Key to Academia? (spring 2021).
Yes is the short answer. There is clear correlation between clerking and later teaching. Wasserman explained, "Two or three generations ago, the clerkship was the essential credential, and a call from the judge or justice to the law-school dean was the ticket to the teaching job. Louis Brandeis favored clerks whom he believed would become law teachers."
But the correlation, and probable causation, is diminishing, and "[t]he Great Recession of 2008 appears to have exacerbated the disconnect between clerkship and teaching," Wasserman wrote. He chalks up the change to a number of factors. Teaching fellowship programs, "sexy" niche appellate practices, and more programs for advanced degrees in law have generated a pool of promising candidates on alternative tracks to fewer positions.
Though I don't think any of that will change the status quo. Legal academics remains largely the province of an elite, including too many by inherited opportunity, especially at top schools. Even these newly minted access tracks only reinforce exclusion.
I didn't clerk. I've been fortunate to land two jobs in academics at schools where a clerkship was not a sine qua non. But in my job searches, I know that I was excluded at some schools—once, only about a dozen years ago, I was told so plainly—for lack of a clerkship. As I don't think I'm too bad at being a law professor, that's a disappointing result. While Wasserman might purport to describe a preference of "two or three generations ago," people who were hired two generations ago are still doing hiring now.
And there is resistance to change. For all the bluster about equality of access to opportunity uttered by the nation's overwhelmingly liberal law professors, the vast majority in the end succumb to the beguiling predilection to replicate themselves and their experiences.
Considering why students, me included, don't clerk illustrates the inequality of access to opportunity in the academy, not to mention many other career tracks.
To start with, judges, many of whom also fall prey to the predilection to replicate themselves, tend to recruit only from select law schools. UMass Law, for example, a "fourth-tier law school," has seen only modest success at placing students in clerkships, then only at the state level, and only through concerted, all-hands-on-deck efforts by students, faculty, and staff.
Federal judges don't recruit at UMass. They did recruit at "first tier" Duke Law School when I was a student there in the 1990s. But they weren't recruiting me. The career services office groomed students with a 3.5 GPA for interviews, and my 3.4 didn't make the cut.
I think I would have made a good clerk. Having come to law from journalism, I was a decent writer and editor. To my observation, my classmates who excelled at law school and attained those top grades with less effort were as often as not children of lawyers and professionals. I was not. They seemed to understand the 1L game in a way that was opaque to me. I figured it out and turned out A+s by the time I graduated, but that was too late to open some doors. From where I sit today, as a professor, it's no wonder to see that my students who are the first in their families to attempt graduate school, or even university, face the steepest learning curves.
I was determined, though. Whatever this clerkship thing was about, telling me I could not have something just supercharged my desire for it. A full-tuition-paying Duke client, I demanded access to clerkships. Career services pointed me to a binder of judges' names and addresses. I was welcome to apply on my own, without Duke's help.
I remember the feel of the thin plastic cover of the binder in my hands. I remember turning the looseleaf pages and copying the information into my notebook with a pen. I remember feeling ashamed and angry doing this while, feet behind my back, in the career services office, other students sat, sharply dressed, waiting nervously for clerkship interviews to which they had been invited.
I did apply on my own for clerkships: 23 years old and no clue what I was doing. Unsurprisingly, I had no bites from the federal bench. Surprisingly, I did score an interview with a state supreme court judge. I traveled to the state on my own dime, donned my best (only) suit, and interviewed. The interview seemed to go well.
The judge telephoned me a couple of weeks later. I was his first choice, he said. My pulse quickened and face flushed. But, he said sheepishly, haltingly, he was, unfortunately, obliged to hire his second choice, because she was the daughter of a colleague. Surely I could understand his predicament. This is how things are. He was sorry. Felt he owed me the explanation. My heart sank.
Don't feel sorry for me. I went right into law practice at a large, prestigious firm in a major city. I didn't have whatever it took to get a clerkship. But I had an opportunity out of Duke that almost none of my UMass students can get still today. It's all relative.
The lesson still is, or should be, a painful one. The changes that Wasserman cited do little to change the reality of access to opportunity in legal academics. Teaching fellowships are typically reserved for diverse candidates. Because diversity doesn't refer to socioeconomics, nor family immigration history, most of my students, like me, would not qualify.
A top-end practice experience did give me an advantage in my applications to the academy. But for even the very best of my students—who, if it matters, might have chosen UMass for reasons of economic, geographic, or other necessity, not a function of choosing the highest ranking school one can get into, which is what I did—a job at a "white shoe" law firm is a pipe dream.
And more advanced education is not feasible for students who, like me, financed legal education wholly through debt. My wife and I just paid off our own educational debt last year, right after we started borrowing to pay for our daughter's college education. We were lucky; neither of us had undergrad debt, thanks to scholarships and the military. I turned down two full scholarships to lower ranked law schools. Some of my law students have twice the debt we had and will be lucky to have a quarter of the job prospects.
One of my students graduating now would make a superb teacher,
and he is so inclined. He asked me about it. What can I say? He lacks the demographic endowments requisite for a diversity fellowship. One of my own faculty colleagues said at a hiring meeting just last week that "we don't need more white" at UMass. She was applauded. This student will never score a Boston law firm job. A UMass valedictorian was told at a Boston law firm just a few years ago that his interview was a professional courtesy to the dean, but the firm would never hire from a public school. And this student is swimming in debt. Should I tell him to dig deeper and get a "corrective LL.M." at full price from one of the elite law schools he probably should have chosen to begin with?
The change that Wasserman reported is good news, but I don't think will effect improvement in true diversity in the legal academy in my lifetime—taking into account lived experience, more than just boxes checked for skin color, gender identity, and sexual preference. Even new avenues of access are limited to narrowly defined classes of people and favor the advantaged insiders of the socioeconomic elite.
And the real kicker about clerkships is that you never get a second chance. Perversely, one is qualified for a clerkship only once, precisely when one is not qualified for a clerkship: as a graduating law student. My students who cannot, for a variety of reasons beyond their control, clerk after law school will never clerk. I would love to clerk, still today, but I can never be 23 again. When I apply to lateral now in academics, the omission of a clerkship a quarter century ago still stains my résumé.
The stains of access denied last for life. That's how access to opportunity works in many sectors of the American job market: hallways of doors that are closed to ordinary people. The liberal legal academy is no exception.
