Law clerk

A law clerk or a judicial clerk is a person who provides assistance to a judge in researching issues before the court and in writing opinions. Unlike the court clerk and the courtroom deputy, both of whom are administrative staff for the court, a law clerk assists the judge in making legal determinations. Most law clerks are recent law school graduates who performed at or near the top of their class. Studies have shown clerks to be influential in the formation of case law, through their influence upon judges' decisions.^[1][2] Working as a law clerk generally opens up career opportunities.

In many nations, clerk duties are performed by permanent staff attorneys or junior apprentice-like judges, such as those that sit on France's Conseil d'État. In English courts, they are known as Judicial Assistants. The European Court of Justice uses permanent staff attorneys (Referendaires) and the Stagiaires (young law graduates). Australia, Canada, Sweden, and Brazil have notable clerk systems.

While there has been relatively little inquiry comparing law clerks across nations, some research has been done comparing clerkship practices in the U.S. with other nations' courts. In some countries the position of law clerk does not exist.

Australia

See Judge's associate and Tipstaff.

Canada

Most Canadian courts accept applications for judicial clerkships from graduating law students or experienced lawyers who have already been called to the Bar in Canada or abroad (typically in the United States or the United Kingdom). Most provincial superior and appellate courts hire at least one clerk for each judge. Typically students in their last two years of law school are eligible to apply for these positions, but increasingly, experienced practicing lawyers are also considered for these positions. The term typically lasts a year and generally fulfills the articling requirement for provincial law societies, which qualifies a person to become a practicing lawyer in a Canadian jurisdiction.

The most prestigious clerkship available is with the country's highest court, the Supreme Court of Canada, followed by the Federal and provincial Courts of Appeal. Each Justice of the Supreme Court hires three clerks for a one-year period.^[3] The Federal Court of Appeal, which is based in Ottawa but hears cases across the country, selects 12 law clerks each year, or one per judge. The Federal Court also hires only one clerk per judge, or about 30 per year in total.^[4] The Court of Appeal for Ontario selects 17 law clerks, who serve either one or two of the 24 Justices.^[5] The Quebec Court of Appeal usually hires a similar number of law clerks for both Montreal and Quebec City, but is unusual among Canadian courts in having a formal clerkship program for law students in addition to law graduates. The Court of Appeal for Saskatchewan hires 3 clerks, each of whom are assigned to 2 to 3 judges.^[6] Successful candidates for all clerkships are usually selected based on a distinguished academic record, academic recommendations, strong research and writing skills and interviews with judges. For both the Supreme Court of Canada and the Quebec Court of Appeal, being able to work in both English and French is strongly preferred.^[7]

The Tax Court of Canada hires 12 clerks annually.^[8]

Many law clerks have gone on to become leaders of the profession. For example, the Hon. Mr. Justice Jean Cote of the Alberta Court of Appeal was one of the very first Supreme Court law clerks, serving as a clerk in the program's inaugural year (1967). Similarly, the Hon. Madam Justice Louise Arbour, formerly of the Supreme Court of Canada, the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia and former UN High Commissioner for Human Rights, also served as a law clerk in the early years of the program. Meanwhile, the Hon. Madam Justice Andromache Karakatsanis of the Supreme Court of Canada and the Hon. Madam Justice Kathryn N. Feldman of the Ontario Court of Appeal were formerly law clerks at the Ontario Court of Appeal.

England and Wales

In England and Wales, law clerks are called Judicial Assistants. It is possible to be a Judicial Assistant at the Court of Appeal and at the UK Supreme Court (formerly the Appellate Committee of the House of Lords). Only Supreme Court Judicial Assistants are appointed for a full-time, one year fixed term appointment. Since 2006 they have taken part in a week long exchange in Washington DC at the U.S. Supreme Court due to a friendship between Justice Antonin Scalia and Lord Rodger of Earlsferry.

European Court of Justice

Sally Kenney's article on clerks, or Référendaires, 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.^[9] 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 do not issue individual 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

The ECJ also admits a limited number of selected law graduates as Stagiaires. Their duties are more similar to those of the law clerks of the U.S. Supreme Court.

France

In France law clerks are called assistants de justice. They typically go through a competitive nomination and interview process to get accepted as law clerks. Most French courts accept applications for judicial clerkships from graduating law students. Students in their last year of law school are eligible to apply, although most law clerks are Ph.D. candidates in Law or candidates for a French competitive entrance exam such as the bar exam, French National School for the Judiciary, French National School of Public Finances, or French National School of Court Clerks.

Law clerks are hired for two years renewable twice.^[10] Depending on credentials and curriculum they can be assigned to the bench (magistrat du siège) or the prosecution (parquet or parquet général).

The work of a law clerk entails assisting the judges with writing verdicts and decisions and conducting legal inquiries and research.

The most prestigious clerkships available in France are before the courts of appeals, which review decisions of lower courts.

The largest appeal courts in France are in Paris,^[11] Versailles,^[12] Aix-en-Provence,^[13] and Rennes.^[14]

A similar system exists in the administrative courts,^[15] including the Conseil d'Etat.

Germany

In Germany, there are two different kinds of law clerks.

Students of law who, after law school, have passed the first of two required examinations join the Referendariat, a time of two years consisting of a series of clerkships: for a civil law judge, a criminal law judge or a prosecutor, a government office and finally at a law firm. This clerkship is not to be confused with an internship since it is a paid position that is regulated by law.

In the Federal Supreme Courts (see Judiciary of Germany) and the office of the Federal Prosecutor General, the duties of law clerks are performed by wissenschaftliche Mitarbeiter (German for "scientific assistant"). With few exceptions, they are lower court judges or civil servants, assigned for a period of three years to the respective Federal Court, and their clerkships serve as a qualification for a higher judgeship. However, some justices of the Federal Constitutional Court (who have the right to select their wissenschaftliche Mitarbeiter personally) prefer clerks from outside the courts or the civil service, especially those who are or were professors of law and who often hire people from academia (sometimes even young law professors). The clerks of the Federal Constitutional Court are deemed very influential and are therefore dubbed the (unofficial) Dritter Senat ("Third Senate") as opposed to the two official "senates" of 8 justices each which form the court.

India

In India law graduates from the National Law University go through a competitive nomination and interview process to get accepted as law clerks. The Supreme Court of India and several High Courts of India offer paid law clerkships that are considered very prestigious. These clerkships usually last for one year (session commencing from July to Mid of May) and may be extended at the discretion of individual judges.

The Registry of the Supreme Court of India invites applications in January each year for 'law clerk-cum research assistant' positions from the Colleges and Universities empanelled with the Registry. The Universities nominate/recommend their students to the Registry which screens the applications and shortlists candidates. The shortlisted candidates are interviewed by an esteemed panel of sitting Supreme Court Justices in the first week of June. The final merit list is prepared and the selected candidates are offered positions to work under the sitting judges of the Supreme Court starting from the month of July. The eligible candidates receive offers throughout the year as and when the vacancies are created in the Chambers of Justices. Usually, two law clerks are assigned to each judge for one year, though some justices are known to sometimes engage either one or more than two law clerks at a time. Though most of the law clerks usually begin their one-year service period in July each year, soon after the completion of the LL.B. degree, though there have been instances of law clerks serving after having accumulated some work experience.

The work profile of the law clerks vary as per the judges who they work under. Generally it involves preparing summary opinions and briefs for the Special Leave Petitions listed for the Miscellaneous Days (i.e., Monday and Friday). On the Non-Miscellaneous Days it involves attending Court proceedings and preparing notes for the arguments advanced by the counsels on matters listed. They also assist the judges in drafting of the judgments and orders by supplementing it with research and case analysis.

In 2014, the Supreme Court increased the monthly stipend of law clerks / research assistants from Rs 25,000 to Rs 30,000, with a hike to Rs 32,000 for clerks who stay for longer than a year.^[16] For the 2012-13 session each law clerk at the Supreme Court was paid a stipend of Rs 25,000 per month, which may be increased further in the next year. Till 2009-2010 each law clerk at the Supreme Court of India was being paid Rs. 20,000 per month.^[17]

In addition to this, students from law colleges all over the country are given the opportunity to act as 'legal trainees' under Supreme Court judges during their vacation periods. The institution of law clerks is still a recent development in the context of the Indian judiciary. Anecdotal references indicate that some justices are hesitant to rely on 'law clerks' on account of concerns with confidentiality, especially in politically sensitive disputes. However, their services are heavily relied on to go through the written submissions in order to prepare for the preliminary hearings that are held to decide whether a case should be admitted for a regular hearing on merits. In recent years, the contributions of law clerks to research for judicial opinions has become increasingly evident on account of increasing references to foreign precedents and academic writings.

Ireland

In Ireland Judicial Fellows provide support to judges of the High Court comparable to that provided to judges of the Federal Courts of the United States, the Courts of Australia and the European Courts in Luxembourg and Strasbourg. During 2008, ten judicial fellowships were awarded for a two-year period to law graduates who are also qualified to practise as barristers or solicitors. They were assigned by the President of the High Court to work directly with one or two judges whose major commitment is to judicial review, chancery, commercial, asylum and competition lists in the High Court.^[18]

Mexico

In Mexico, duties conferred to law clerks in some common law countries are charged in a person called "Secretario de Acuerdos" or "Secretario Proyectista", for lower courts and, "Secretario de Estudio y Cuenta" for higher court: "Suprema Corte de Justicia de la Nación". Secretario de Acuerdo's main activities are: conduct the public hearings, writing veredicts, order to execute sentences, and providing general assistance to Judges, while Secretario Proyectista´s activities are to draft sentences.^[19]

The Netherlands

Law clerks of the Supreme Court of the Netherlands are independent researchers. Applicants are recruited from the top law firms and universities. For most, it is a highly prestigious second job. Law clerks typically work at the Supreme Court for six years.

New Zealand

Law clerks are referred to as judge's clerks in the Supreme Court, Court of Appeal and High Courts. In the District Court, they are called research counsels. It is a fixed term position of 2 years.

In the High Court, clerks are assigned to two or three judges (including Associate Judges). In the Court of Appeal of New Zealand and the Supreme Court of New Zealand, each judge has their own clerk.^[20] The Chief Justice is the exception and has two clerks. Judges clerkships are highly sought after and competition is extremely competitive; judges' clerks often have class ranks that put them at, or near, the top of their graduating class.

Pakistan

In Pakistan, Law Clerkship programmes have been introduced in the past few years to assist the Judges of the Superior Courts. The Supreme Court of Pakistan has an extremely competitive, semi-formal process in place for the appointment of Law Clerks (Research Associates).^[21] The senior most professors and heads of faculty of the country’s most prestigious Law Colleges are invited to nominate their best students from the graduating class or recent graduates who they deem qualified to serve at the apex court.^[22] In recent years, nominations have also been sought from foreign Law Schools as well as Judges of the High Courts to nominate bright young lawyers. Nominees are then formally invited by the Supreme Court to make a formal application. The best applications are then selected for a written exam followed by an interview conducted by a panel of senior Judges and Law Clerks of the Court.^[23] There is no fixed number of positions that may be offered any given year. Only candidates who are deemed to be sufficiently qualified and talented are offered a position subject to the number of judges desirous of having a Law Clerk (Research Associate) appointed to assist them. This strict selection process is partly why many judges do not have Law Clerks. In recent years, all Law Clerks appointed have been licensed Advocates placed at the top of their class with excellent research credentials. Currently, most of the senior judges of the Supreme Court are assisted by Law Clerks (Research Associates). The Law Clerk to the Presiding Judge of a bench sits in Court during hearings. In chambers, he or she assists a Judge in making determinations of Law, conducting research and preparing briefs etcetera. Law Clerks serve as paid staff of the Court for an extendable one-year term.

In the Lahore High Court, many Civil Judges with master's degrees (mostly LLM) and post-graduate research experience are appointed as Research Associates equivalent to Law Clerks to the Judges of the Court. They function through the Research Centre of the Lahore High Court and assist all the Judges in the various Registry Benches of the Lahore High Court.^[24]

Philippines

In the Supreme Court of the Philippines and the Philippine Court of Appeals, recent law graduates and young lawyers can apply for a position as a "Court Attorney" to a Justice. This position basically corresponds to what is called a "law clerk" at the Supreme Court of the United States. Each of the 15 Supreme Court justices has 5 to 10 court attorneys at any given time. Court attorneys at the Supreme Court of the Philippines are co-terminus with their justices. Some stay for one year or less, others stay for as long as their respective justice serves the Court. Previous court attorneys have become notable Justices themselves e.g. Justice Vicente V. Mendoza, Justice Antonio Abad etc. or have gone to hold important positions in the court such as Court Administrators or Deputy Court Administrators. Many of them have gone on to successful legal practice, in business, or in the academe. The position is an extremely difficult one to get accepted to because aside from the competence requirement, there is also the character requirement that differ from one Justice to another. The position is basically a confidential one and the lawyer must enjoy the Justice's trust. Each justice has his or her own method for interviewing and appointing court attorneys.

Singapore

In Singapore, top law graduates from the National University of Singapore, Singapore Management University, and reputable foreign universities, usually only those obtaining first class honours or equivalent, are invited to join the Supreme Court as Justices' Law Clerks. The Supreme Court comprises the High Court and the Court of Appeal, which is the final court of appeal in Singapore. Upon accepting appointment, Justices' Law Clerks are appointed for a term of one and a half years, with a possible 6-month extension. During their term, the law clerks are given the opportunity to work with both the judges of the High Court as well as the Judges of the Appeal and the Chief Justice. After their term, the law clerks have the option of joining the permanent establishment of the Singapore Legal Service. If they take up this option, they will be posted to other branches of the Singapore Legal Service, for example as Deputy Public Prosecutors at the Attorney's General Chambers or as Assistant Registrars in the Supreme Court Registry. Many Justices' Law Clerks choose to join private firms after their stint (and several have recently achieved the title of Senior Counsel), while others have chosen a path in academia.

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 (förvaltningsrätt) or in the General Courts (tingsrätt) . 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.

United States

Among the most prestigious clerkships are those with the United States Supreme Court, the United States courts of appeals, certain United States district courts, specialized courts such as the United States Tax Court and the Delaware Court of Chancery, and state supreme courts. Some U.S. district courts provide particularly useful experience for law clerks pursuing specific fields. The Southern District of New York deals with a heightened volume of high-profile commercial litigation, while the District of Columbia hears many high-profile disputes involving the federal government. Similarly, the United States Tax Court specializes in adjudicating disputes over federal income tax, and the Delaware Court of Chancery hears a substantial volume of corporate and shareholder derivative actions.

Qualifications

Most law clerks are recent law school graduates who performed at or near the top of their class. Federal judges, especially those at the appellate level, often require that applicants for law clerk positions have experience with law review or moot court in law school. As such, the law clerk application process is highly competitive, with most federal judges receiving hundreds of applications for only one or two open positions in any given year. State-level trial court judges are less likely to get law clerks with the highest credentials because the majority of such candidates are hired by federal judges or state appellate judges.^[25] However, statistically speaking, there are still many more law graduates with high academic credentials than there are clerkship positions available at any level; thus, it is not unheard of for state-level trial court judges to hire such graduates.

Because of the selection criteria, many notable legal figures, professors, and judges were initially law clerks.

Many Supreme Court justices previously clerked for other Supreme Court justices: Byron White clerked for Frederick M. Vinson, John Paul Stevens clerked for Wiley Rutledge, Stephen Breyer clerked for Arthur Goldberg, William H. Rehnquist clerked for Robert H. Jackson, John G. Roberts, Jr. clerked for William H. Rehnquist, and Elena Kagan clerked for Thurgood Marshall. Many of the justices have also clerked in the court of appeals. Justice Samuel Alito, for instance, clerked for the United States Court of Appeals for the Third Circuit.

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. However, some law clerks decide they enjoy the position so much they continue to serve the judge as a law clerk in a permanent capacity.

Federal clerkships

A clerkship with a federal judge is one of the most highly-sought positions in the legal field. Some federal judges receive thousands of applications for a single position, and even the least sought-after federal clerkships will likely be applied to by at least 150 people. Successful candidates tend to be very high in their class, with most being members of their law school's law review or other journal or moot court team. Such clerkships are generally seen as more prestigious than those with state judges.

Almost all federal judges have at least one law clerk; many have two or more. Associate Justices of the U.S. Supreme Court are allowed four clerks. Although the Chief Justice is allowed to hire five clerks, Chief Justice Rehnquist hired only three per year, and Chief Justice Roberts usually hires only four. Generally, law clerks serve a term of one to two years; however, some federal judges hire a permanent law clerk. Such judges usually have one permanent law clerk and one or two law clerks who serve on a term basis.

The most prestigious clerkship is one with a U.S. Supreme Court Justice; there are only 37 of these positions available every year. However, in recent times securing a federal court of appeals clerkship with a federal judge has been a prerequisite to clerking on the Supreme Court. Therefore, the second most prestigious place to clerk is at one of the U.S. courts of appeals. Further, clerkships with certain appellate judge, such as J. Michael Luttig, who have sent many clerks on to the Supreme Court, often called "feeder judges" (e.g., Alex Kozinski, J. Harvie Wilkinson III, Merrick Garland) are especially difficult to obtain. Luttig, before his retirement, was the leading "feeder" judge on the U.S. Court of Appeals, with virtually all of his law clerks having gone on to clerk with conservative justices on the Supreme Court,^[26] a total of 40 with 33 clerking for either Justice Thomas or Justice Scalia. This reflects the increasing polarization of the court with both liberal and conservative judges hiring clerks who reflect their ideological orientation.^[27]

Generally, the next most sought after federal clerkship is one with a United States District Court judge; like the Court of Appeals, some U.S. District Courts are more sought after than others due to the district's popular location. There are also federal clerkships with lower level trial-court judges, like magistrate judges (who are hired by district court judges), United States Tax Court Special Trial judges (who are supervised by United States Tax Court judges), or bankruptcy judges, whose cases are appealable to United States district court.

Former federal law clerks are often highly sought after by large law firms. Firms believe that such individuals have excellent legal research and writing skills, and a strong command of the Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure. Firms are even more interested in a former law clerk if the firm generally appears before the clerk's former judge. The interest in former law clerks is seen by the fact that most large firms have a special hiring process for former clerks, and often pay such individuals large signing bonuses.^[28][29]

Generally, interested candidates apply for federal clerkships roughly a year before the clerkship begins. Thus, many law students tend to apply early in the fall of their third year. The federal clerkship application process has also largely been streamlined by the National Federal Judges Law Clerk Hiring Plan and the OSCAR system, an online database in which federal judges post upcoming vacancies (although not all federal judges use this system). The National Federal Judges Law Clerk Hiring Plan sets dates for when federal judges may receive applications, and when they may contact, interview, and hire law clerks. Generally, judges begin looking at applications in the early fall, with contact and interviews happening a few weeks later.^[30] These dates only apply to the hiring of matriculating third-year law students; practicing attorneys may apply earlier. Moreover, while many judges adhere to the National Federal Judges Law Clerk Hiring Plan's schedule, many do not follow the plan and interview and hire law students over the summer. The Supreme Court does not follow this timetable.

As a result of the extreme competition—both by the judges to get the best candidates and by candidates to get the best clerkships—the pace of the hiring is extremely quick. It is not unknown for federal judges to offer a candidate a clerkship at the conclusion of a first interview, and require that the candidate provide an immediate answer. Such job offers have come to be known as "exploding offers." Some have likened the process to land runs or feeding frenzies. While a few federal clerkships become available after September, most federal judges complete their hiring before the end of October.

Some scholars and practitioners have questioned the lack of a federal congressional clerkship program. One study found that few top law school graduates have or will take seriously the process of being a legislative aide to gain practical skills after graduation.^[31] Instead, recent law school graduates opt for judicial clerkships leaving few in the legal field with practical legislative experience.

State clerkships

Judicial clerkships in state appellate courts are similar to those in federal appellate courts, but are primarily focused on state law rather than on federal law issues.^[32] Some state courts also use the title "staff attorney" for career clerks and clerks that support all judges.^[33] For law students who wish to practice in a specific state or geographic region after clerking, state appellate-level or trial court clerkships can often be more valuable than federal clerkships in terms of getting to know the judges, lawyers, and firms in that area, as well as in terms of seeing trial lawyers at work.^[34]

History

According to historian James Chace, Oliver Wendell Holmes, Jr. and Louis Brandeis were the first Supreme Court justices to use recent law school graduates as clerks, rather than hiring a "stenographer-secretary."^[35]

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.^[36]

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 in a lack of ethnic and gender diversity among the staff attorneys.^[36] But most California judges prefer staff attorneys because it avoids the problem of having to bring new law clerks up to speed on pending complex cases, particularly those involving the death penalty.^[36]

See also

• List of law clerks of the Supreme Court of the United States

References

Further reading

• Cohen, Jonathan Matthew (2002). 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. ISBN 0-472-11256-2. 
• Kenney, Sally J. (2000). "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): 593–625. doi:10.1177/0010414000033005002. 
• Ward, Artemus; Weiden, David L. (2006). Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court. New York: NYU Press. ISBN 0-8147-9404-1. 

External links

• Federal Judicial Center page on Law Clerks
• Searchable site for US federal law clerk vacancies
• Openings for Law Clerks with the Los Angeles Superior Court
• Description of available clerkships in Canada