Welcome back to Ahead of the Curve. I'm Karen Sloan, legal education editor at Law.com, and I'll be your host for this weekly look at innovation and notable developments in legal education.

This week, I'm looking at the new Federal Clerk Hiring Plan and getting University of Richmond law professor Carl Tobias' take on whether it will have more lasting power than its predecessor. Next up, I'm checking in on a 71-year-old University of Virginia law grad who retired from Big Law and is now a … judicial clerk. Read on!

Please share your thoughts and feedback with me at [email protected] or on Twitter: @KarenSloanNLJ

A Restoration of the Clerkship Order?

At this very moment, some top law students are likely scrambling to schedule interviews with federal judges in hopes of landing a coveted clerkships—a resume booster that can pay career dividends.

You see, today marks the kick-off of a two-year pilot program put together by a quartet of chief appellate court judges that aims to restore order to the current Wild West atmosphere for federal clerk hiring. How smoothly—or bumpy—clerk hiring goes for participating judges this year will be a strong indication of whether the plan has staying power, or whether it will fall apart just as its predecessor did five years ago. Needless to say, federal judges and law schools will be watching closely to read the tea leaves on this one.

Before I jump into predictions, though, let's get a Cliff's Notes background on how we got here. Up until the early aughts, federal judges hired clerks whenever they pleased. Then in 2003, Judge Harry Edwards of the U.S. Court of Appeals for the D.C. Circuit and the late Edward Becker of the Third Circuit persuaded many of their colleagues to hold off on hiring clerks until September of the applicant's third year of law school.

The voluntary Federal Clerk Hiring Plan gained momentum in 2005 with the introduction of the Online System for Clerkship Application and Review, better known as OSCAR, which allows applicants and law schools to submit materials online and lets judges sort applications by specific criteria, such as school or grade-point average. Automating the application process enabled the Administrative Office of the U.S. Courts to withhold applications until the agreed upon hiring timeline, helping keep judges in line.

But by 2010, the hiring plan was showing cracks with more and more judges jumping the gun and picking clerks before the third year of law school. By 2014, the plan was officially kaput and judges returned to hiring whenever they wanted—increasingly as early as the end of the first year as judges jockey to secure the hottest clerk prospects. Law schools lamented the change, saying that it has created confusion and chaos. Advisers and students were left to navigate a newly opaque process that was ever-changing. Moreover, judges were now picking clerks with little more than one year of grades to go on, which critics have claimed is too thin a track record.

Then in February of 2018, chief judges from four key circuit courts (Merrick Garland of the D.C. Circuit; Robert Katzmann of the Second Circuit; Sidney Thomas of the Ninth Circuit and Diane Wood of the Seventh Circuit) unveiled a new, two-year pilot hiring plan, under which participating judges would wait to interview and hire applicants until June after their second year of law school. Today is the first date established under the plan for participating judges to begin interviewing and hiring clerks. (This applies only to students who will graduate in 2020, and not those who have already graduated.)

In order to make sense of all of this, I called up Carl Tobias, a professor at the University of Richmond School of Law who is an expert on federal clerkships. I wanted to get his take on the stakes for how the plan unfolds this week. Here's what he told me:

“A lot is riding on this. It's characterized as a pilot—an experiment. They said they will revisit it after two cycles. It will be important to see participation and whether there is cheating or whether some judges feel they are advantaged or disadvantaged. A lot of it is difficult to detect. How do you know who has complied and who hasn't? Even if you formally comply, does that mean there wasn't a wink, a nod and a promise beforehand? There is nothing more independent than an Article III judge.”

Here are some important caveats: Not every circuit has signed onto the plan. The prestigious DC, Second, Ninth and Seventh have, of course. And the First and Third Circuits have also indicated that they are following the plan, according to Tobias. But just because a circuit court has said it's participating doesn't mean every judge on that circuit will adhere to the plan, he cautioned. Most district courts haven't signed on to the plan either.

“I think people will be watching on Monday to see if we have the same problems as before.” Tobias said. “Will there be cheating, which will be hard to detect? Are there going to be crazy scrambles in New York, DC and, Los Angeles and San Francisco around that date? For someone who's a summer associate in New York, it's not going to work to be in San Francisco the next day, or something. I'm hopeful they won't be as crazy as they used to be, and I heard some horror stories.”

Under the new plan, judges must give candidates 48 hours to decide to accept their clerkship offer, which is intended to give them an opportunity to interview with other judges.

My Thoughts: Whether or not this plan will stick around is, naturally, the million-dollar question. We should have a better sense in a couple of weeks of how things went down and whether order or chaos prevailed. Tobias predicted that the Northeast circuits are more likely to stick to the plan than some of the farther flung circuits, which historically have felt they are at a geographic disadvantage when it comes to clerk hiring. The Ninth Circuit's Thomas may be an architect of the resurrected plan, but that massive circuit has a reputation as one of the worst offenders in terms of early clerk hiring as well as an independent streak that may make it difficult to keep judges in line.

I have no idea what will happen this week, but I hope for the sake of law students that the plan takes root and expands. They deserve the transparency and clarity that comes with a formal clerk hiring plan—a plan that helps level the playing field (somewhat) between those with well-connected schools and professors and those at less prestigious campuses that otherwise have no inside track into clerkships. I'm going to channel Spike Lee here in my message to judges: Do the Right Thing!

It's Never Too Late To Clerk

Minutes after I got off the phone with Tobias, a story from the University of Virginia School of Law landed in my inbox that I couldn't resist. Meet 71-year-old Paul Hurdle, a member of the school's Class of 1973. (The above is not an actual picture of Hurdle, folks.) Hurdle retired from Dentons in 2016, after being a partner at McKenna, Long & Aldridge's Washington office. (McKenna merged with Dentons in 2015). So is Hurdle spending leisurely days on the golf course and the bingo hall? Not a chance.

He's clerking for a trial court judge in Delaware—making him possibly one of the oldest law clerks in the country. His two fellow clerks are fresh out of law school, a situation Hurdle described as initially “awkward.” But so far, he's enjoying the work.

“To be able to come in each day to draft legal opinions for the judge is a wonderful way to continue to do what I love,” Hurdle said. “It's no longer about the money or the status.”

And it's looking like a longer-term gig. His judge, Craig Karsnitz, has asked him to stay on for another year.

Extra Credit Reading

● Elizabeth Lederer, who helped prosecute the notorious Central Park Fivecase, stepped down from her position as a lecturer at Columbia Law School amid protests from black students.

● The number of law school applicants this cycle is up nearly 4 percent, but fewer top LSAT scorers have applied, according to data from the Law School Admission Council.

● The American Bar Association has given Florida Coastal School of Lawa clean bill of health, finding the campus is fully in compliance with its law school standards.

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