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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. Law clerks are not court clerks or courtroom deputies, who are administrative staff for the court.

Most law clerks are recent law school graduates who performed at or near the top of their class. Various studies have shown clerks to be influential in the formation of case law through their influence on judges' decisions. Working as a law clerk generally opens up career opportunities.

United States

Among the most prestigious clerkships are those with the United States Supreme Courtmarker, the 13 United States courts of appeals, and certain United States district courts, specialty federal courts 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 disputes involving the federal government. Certain specialty federal courts and state courts are similarly known for their specialization, like the United States Tax Court, which specializes in adjudicating disputes over federal income tax, and the Delaware Court of Chancery, which 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. As such, the law clerk application process is highly competitive, with most federal judges receiving hundreds, or even thousands, of applications for only one or two open positions in any given year. State-level trial court judges are more likely not to require the highest credentials because the majority of students with top credentials seeking clerkships receive federal and state appellate court appointments, 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 G. Roberts, Jr. clerked for Chief Justice William H. 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. However, some law clerks decide that they enjoy the position so much that 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 be applied to by at least 50 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.

Far and away, the most prestigious clerkship--and most difficult to obtain--is one with a U.S. Supreme Court Justice; there are only 36 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. The next most prestigious place to clerk is at one of the U.S. court of appeals, with the United States Court of Appeals for the District of Columbia Circuit, the United States Court of Appeals for the Second Circuit, and the United States Court of Appeals for the Ninth Circuit typically being more desirable than the other Courts of Appeals. Further, clerkships with a court of appeals judge who frequently sends 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. Generally, the third most sought after clerkship is one with a trial level federal court judge, such as a United States District Court judge or United States Tax Court judge (or in some cases, like New York or Texas, a judge on the state's highest court); like the Court of Appeals, some U.S. District Courts are more sought after than others (e.g., District of Columbia, Southern District of New York, and the Northern District of California) due to the district's popular location. There are also federal clerkships with lower level trial-court judges, like magistrate judges (who are supervised 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 generally highly sought by large 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.

Generally interested candidates apply for federal clerkships roughly a year before the clerkship begins, meaning that law students formally 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 application, and when they may contact, interview, and hire law clerks. Generally the applications may be looked at early in the fall (in 2007 it was Tuesday, September, 4) with contact and interviews happening a few weeks later. These dates only apply to the hiring of matriculating third-year law students; practicing attorneys may apply earlier. 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 come 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 aid to gain practical skills after graduation. Instead, recent law school graduates opt for judicial clerkships leaving few in the legal field with practical legislative experience.

History

According to 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."

Exceptions

The Supreme Court of Californiamarker and the various districts of the California Court of Appeal have generally avoided using law clerks since the late 1980s.

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. 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.

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, such as those that sit on France'smarker Conseil d'État. In the English Court of Appealmarker, 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. Australian, Canadian, Swedish and Brazilian practices can also help illuminate the similarities and differences across nations.

Australia

At the High Court of Australiamarker, recent law graduates and young lawyers can apply for a position as an "associate" to a judge. This position superficially corresponds to what is called a "law clerk" at the Supreme Court of the United States. Previous associates have written that the nature of the associate's role is different from that of a "law clerk" in the United States. Each of the seven High Court judges has two associates at any given time. Usually, one associate is based permanently in Canberramarker, the capital of Australia and the seat of the Court, and one travels with the judge when the Court is on circuit to the other capital cities of Australia. Just as nearly all High Court judges travel to Canberra only when the Court is sitting there and choose to live in Sydneymarker, Melbournemarker or (less frequently) other capital cities of Australia, the travelling associate in practice is usually based in the judge's home city. "Associateships" at the High Court are extremely competitive and usually go to the top graduates from the top law schools of Australia. Each judge has his or her own method for interviewing and appointing associates.

The judges of the Federal Court of Australia and the Supreme Courts of each State (and Territory) have one associate each. These positions can also be very competitive, for example an associateship with the Chief Justice of the Federal Court or a State Supreme Court would be second only to a position with a High Court judge in terms of prestige.

There are research positions available at the superior courts in Australia such as the Federal Court and the state Court of Appeals which are variously called research associates, research assistants, tipstaff. The library of the High Court of Australia also has a legal research officer. These positions are similarly staffed by recent law graduates and young lawyers and the selection process are and may be more selective than associate positions.Associateships are one-year positions. In lower courts they are sometimes extended to two years or in rare cases even more, but this is unheard of at the higher courts.

Brazil

After obtaining the Brazilian law degree, it is possible to be selected by judges or Justices to be one of their law clerks (called 'Assessores'). It is required that applicants for law clerk positions have experience and expertise with procedural law and also share the judge's ideological orientation. As in the U.S., the most prestigious clerkship available are those at the higher courts, such as the Supreme Federal Courtmarker (STF) and the Superior Court of Justicemarker (STJ). 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.

Canada

Most Canadian courts accept applications for judicial clerkships from graduating law students or experienced attorneys who have already been called to the Bar in Canada or abroad. Most provincial superior and appellate courts, including the Federal Court, 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, 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.

As in the United States, the most prestigious clerkship available is with the country's highest court, the Supreme Court of Canadamarker, followed by the Courts of Appeal of the three most populous provinces: Ontario Court of Appeal, Quebec Court of Appeal, and British Columbia Court of Appeal. Each Justice of the Supreme Court hires three clerks for a one-year term. Successful candidates are selected for a variety of reasons, but most often are distinguished by exceptional academic records. Many Supreme Court law clerks have gone on to become leaders of the profession. For example, 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).

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. 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.

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 , 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.

In federal appeal courts (see Judiciary of Germany and the office of the Federal Prosecutor Generalmarker, the duties of law clerks are performed by (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 Courtmarker (who have the right to select their 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) ("Third Senate") as opposed to the two official "senates" of 8 justices each which form the court.

India

In Indiamarker law graduates from the country's best law schools go through a competitive nomination and interview process to get accepted as law clerks. The Supreme Court of Indiamarker and several High Courts of India offer paid law clerkships that are considered very prestigious. These clerkships usually last a year 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. The selected applicants are then allocated to work under the sitting judges of the Supreme Court. Usually, one 'law clerk' is assigned to each judge for an year, though some justices are known to engage two or more law clerks at a time. 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. For the 2009-2010 session, each law clerk at the Supreme Court of India is being paid a stipend of Rs. 20,000 per month. 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.

Mexico

In Mexicomarker, duties conferred to law clerks in some common law countries are charged in a person called "Secretario de Acuerdos", 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.

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 Singaporemarker the top law graduates from the local law schools (usually only those obtaining first class honours, of which there are very few) and foreign universities are invited to clerk for the Supreme Court judges. The formal title of the law clerks is "Justices' Law Clerks". The term of appointment is between one and two years. The law clerks work for the judges of the Supreme Court in their capacities as High Court judges or members of the Court of Appeal, the highest appellate court in Singapore. The expression "Supreme Court" refers to both the High Court and the Court of Appeal.

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) . 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.

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's usually the students with the best academic record who are clerks at the Supreme Court and so on. Its a fixed term position of 2 years.

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.

UK

In England and Wales, law clerks are called Judicial Assistants. It is possible to be a Judicial Assistant at the High Court level (first instance), the Court of Appeal, and at the House of Lordsmarker (now the UK Supreme Court). Only the Judicial Assistants at the House of Lords (Supreme Court) level are appointed for a full-time, one year fixed term appointment. They are equivalent to the U.S. Supreme Court law clerks, and since 2006 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.

References

  1. Wayne L. Anderson and Marilyn J. Headrick, The Legal Profession: Is it for you? (Cincinnati: Thomson Executive Press, 1996), 110.
  2. "National Federal Judges Law Clerk Hiring Plan" Website, http://www.cadc.uscourts.gov/internet/lawclerk.nsf/Content/CriticalDates?OpenDocument
  3. James Chace, Acheson: The Secretary of State Who Created the American World (New York: Simon & Schuster, 2007 [1998]), 44
  4. 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.
  5. Yakar, 1.
  6. See, eg, Katherine G Young, 'Open Chambers: High Court Associates and Supreme Court Clerks Compared' (2007) 31 Melbourne University Law Review 646, 657-61.
  7. Courts Service Annual Report 2008 (www.courts.ie)


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