Law clerk
From Wikipedia, the free encyclopedia
In the United States, Canada and Brazil, a law clerk is a person who provides assistance to a judge in researching issues before the court and in writing opinions. Those unfamiliar with court operations often incorrectly assume that a law clerk is a court clerk or courtroom deputy, essentially a secretary for the court. To the contrary, a law clerkship is one of the most prestigious and highly-coveted jobs in the legal profession.
Working as a judicial law clerk at any level of government is generally considered to be a prestigious occupation within the legal field. It tells others in the legal profession that an individual came out of law school with enough competence and legal intelligence to earn a judge's trust and heavily influence his or her decisions. Working as a law clerk generally opens up vast career opportunities.
Among the most prestigious clerkships are those with the United States Supreme Court; the thirteen United States Courts of Appeals; certain state courts, particularly the Delaware Court of Chancery and the New York Court of Appeals; and certain federal district courts, such as the United States District Courts for the Southern District of New York and the District of Columbia.
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[edit] United States
[edit] Qualifications
Most law clerks are recent law school graduates who were at the very top of their class, and/or graduated from the most prestigious law schools. Judges, especially in federal courts, often require that applicants for law clerk positions have experience with law review or moot court. Trial court judges, especially in state courts, are more likely not to require these credentials, because the large majority of students with top credentials are hired by law firms or receive appellate court clerkships, and never become available to these judges.
Because of the selection criteria, many notable legal figures, professors, and judges were law clerks before achieving greatness in other areas of the law.
Five Supreme Court Justices previously clerked for other Supreme Court Justices. Associate Justice Byron White clerked for Chief Justice Frederick M. Vinson. Associate Justice John Paul Stevens clerked for Associate Justice Wiley Rutledge. Associate Justice Stephen Breyer clerked for Associate Justice Arthur Goldberg and Chief Justice John Roberts clerked for Chief Justice William Rehnquist when Rehnquist was still an Associate Justice. Rehnquist himself had previously clerked for Associate Justice Robert H. Jackson.
Some judges seek to hire law clerks who not only have excelled academically but also share the judge's ideological orientation. However, this occurs mostly at the level of some state supreme courts and the United States Supreme Court. Law clerks can have a great deal of influence on the judges with whom they work.
Upon completing a judicial clerkship, a law clerk often becomes very marketable to elite law firms.
[edit] Exceptions
The Supreme Court of California and the various districts of the California Court of Appeal have generally avoided using law clerks since the late 1980s.[1]
Instead, California has largely switched to using permanent staff attorneys at all levels of the judiciary; a few judges do use law clerks, but they are quite rare. For example, the Supreme Court of California has over 85 staff attorneys, of whom about half are attached to particular justices and the rest are shared as a central staff. The California system has been heavily criticized for denying young attorneys the chance to gain experience, and low turnover has resulted a lack of ethnic and gender diversity among the staff attorneys.[2] But most California judges prefer it because it avoids the problem of having to bring new law clerks up to speed on pending complex cases (particularly death penalty cases).[3]
[edit] Outside the United States
While there has been relatively little inquiry comparing clerks across nations, some research has been done comparing clerkship practices in the U.S. with non-U.S. courts. Still, in some countries the position of law clerk does not exist. But in many nations clerk-duties are performed by permanent staff attorneys or junior apprentice-like judges like those that sit on the French High Court, the Conseil d'Etat. In the English Court of Appeal http://www.legalweek.com/ViewItem.asp?id=31865, they are known as Judicial Assistants. The permanent staff attorneys, or clerks--called Referendaires at the European Court of Justice provide one point of comparison to American clerks. Canadian, Swedish and Brazilian practices can also help illuminate the similarities and differences across nations.
[edit] European Court of Justice
Sally Kenney’s article on clerks, or Referendaires, on the European Court of Justice (ECJ) provides one detailed point of comparison (2000). There are some major differences between ECJ clerks and their American counterparts, largely because of the way the ECJ is structured. One key difference is that ECJ clerks, while hired by individual judges, serve long tenures as opposed to the one-year-clerkship norm at the U.S. Supreme Court. This gives ECJ clerks considerable expertise and power. Because ECJ judges serve six-year renewable terms and only issue unanimous opinions, the most important role of ECJ clerks is to facilitate uniformity and continuity across chambers, member-states, and over time. Furthermore, this role is heightened because the European Union is composed of very different nations with disparate legal systems. Kenney found that ECJ clerks provide legal and linguistic expertise—all opinions are issued in French, ease the workload of their members, participate in oral and written interactions between chambers, and provide continuity as members rapidly change. While Kenney concludes that they have more power than their counterparts on the U.S. Supreme Court, ECJ clerks act as agents for their principals—judges—and are not the puppeteers that critics suggest.
[edit] Canada
In Canada, judicial clerkships are available to students graduating law school in most courts. Most Superior and Appellate courts, including the Federal Court, hire at least one clerk for each judge. The term typically lasts a year. Like in the US, the most prestigious clerkship available is at the Supreme Court of Canada. Since the beginning of the clerkships in 1967, each judge hires three clerks for the year. Students are frequently expected to be bilingual, have knowledge of both of Canada's legal systems, and function in a demanding professional environment on tight deadlines. Many Canadian law clerks choose to become professors following their clerkship with the Supreme Court.
[edit] Sweden
After successfully obtaining the Swedish law degree called Candidate of Law one can apply for a position as a law clerk ("notarie" in Swedish) either in the Administrative Courts (länsrätt) or in the General Courts (tingsrätt) [1]. Applicants are rated according to their accumulated points, which are calculated mainly by grades. Higher grades giving higher scores and the one with the highest score applying to any given spot is accepted. One applies to the Swedish Court Agency (Domstolsverket) about six times a year, which calculates the scores and apportions the applicants. The Courts in the bigger cities naturally tends to be most popular, thereby needing the highest scores even if they also have most law clerk positions.
The ratio is about one law clerk per judge, and the clerk switch judge after a time, usually three months. The rationale being that working for different judges broadens the scope of learning.
The term as law clerk is two years, after which the law clerk may opt to apply to the Court of Appeals in the Administrative system or the General system ("kammarrätt" or "hovrätt") and continue on the path that traditionally leads to Judge, or leave the Court system for another career. Having completed the two years is considered qualifying and may open up career opportunities otherwise closed.
The work as a law clerk mainly entails assisting the judges with writing verdicts and decisions, keeping the records during trials and conducting legal inquirys. After about six months the law clerk is trusted with deciding simpler non-disputed issues by himself (such as registering prenuptials or granting adoptions). After about a year the law clerk is entrusted with judging simpler criminal and civil law cases by himself (in General Courts), such as petty theft or a civil case involving low sums of money.
[edit] Brazil
After obtaining the Brazilian law degree, it is possible to be selected by judges or Justices to be one of their law clerks. It is required that applicants for law clerk positions have experience and expertise with procedural law and also share the judge's ideological orientation. Like in the US, the most prestigious clerkship available are those at the higher courts, such as the "Supremo Tribunal Federal" – STF" (Federal Supreme Court) and the "Superior Tribunal de Justiça" – STJ (Superior Court of Justice). Each Justice (“Ministro”) of such courts can hire up to five law clerks and clerkship does not have a fixed term (Justices can replace law clerks at any time). The work as a law clerk mainly entails assisting the Justices with writing verdicts, decisions and researching precedents. Working as a law clerk is considered to be a prestigious occupation within the legal field and opens up vast career opportunities.
[edit] References
- ^ Itir Yakar, “Unseen Staff Attorneys Anchor State’s Top Court: Institution’s System of Permanent Employees Means Workers Can Outlast the Justices,” San Francisco Daily Journal, 30 May 2006, 1.
- ^ Yakar, 1.
- ^ Yakar, 1.
Cohen, Jonathan Matthew, Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in the United States Courts of Appeals (Ann Arbor, MI: University of Michigan Press, 2002).
Kenney, Sally J., “Beyond Principals and Agents: Seeing Courts as Organizations by Comparing Referendaires at the European Court of Justice and Law Clerks at the U.S. Supreme Court,” Comparative Political Studies 33 (5, June 2000): 593-625.
Ward, Artemus and David L. Weiden, Sorcerers' Apprentices: Law Clerks at the United States Supreme Court (New York, NY: NYU Press, 2006).
