Law schools and faculty roles mentoring students in judicial clerkships

There’s a lot to say about this testimony of Olivia Warren and her experience of sexual harassment during her clerkship with Judge Stephen Reinhardt. It is a difficult thing to write and to say, and I’m glad she did. Jacqueline Thomsen at the National Law Journal is reporting about a congressional hearing on judicial misconduct, and Ms. Warren’s testimony is a part of that.

But I wanted to focus on one part where she describes some of the ways she tried to report the harassment. Here’s an excerpt when she went to her alma mater:

My first attempt to formally report the harassment occurred on August 1, 2018, when I met with several members of the Harvard Law School administration, including the Dean. A friend and mentor who is a tenured Harvard Law faculty member helped arrange the meeting and encouraged me to communicate my concerns so that more accurate information and better support could be provided to current and future students. During the meeting, I described my experience clerking for Judge Reinhardt and the harassment to which I was subjected. I also shared my view that I thought there was a risk this was happening with other clerkships. I emphasized that students rarely hear about negative clerkship experiences for many of the systemic reasons that I have explained, and described how misled I felt by the institutional push to clerk. Nobody has communicated to me since that meeting what, if any, steps Harvard has taken to address the issues I raised.

Law schools and law faculty have critical roles in mentoring and advising students. This includes learning about students’ interests and preferences, providing them clear-eyed and realistic advice about costs and benefits of career choices, and ensuring that the best interests of the students are pursued.

These are, I think, all distinct concepts. One is to recognize that there’s not a one-sized-fits-all solution for student employment. Optimal outcomes may vary for many law students, but not all, and not all opportunities, even elite opportunities, are equally suitable for all students.

Another is to provide clear-eyed and realistic advice. Clear in that some language can mask negatives—Professor Ed Swaine noted that “intense” is often coded for unarticulated negatives in employment. Not unduly negative, because many jobs are hard work. But not rosy and unusually optimistic, either. Every job has costs and benefits. Providing students with those tradeoffs and helping them make a decision is an important role for faculty. And in some cases, it’s not just providing tradeoffs, but making a recommendation about a preferable path to take—or to avoid—for specific reasons.

Finally, it’s about pursuing the best interests of the student. It’s the result of the first two—thinking of students first and providing them with the best advice to ensure that their interests are sought. Singular focuses or “institutional push[es]” can cloud that. That’s undoubtedly true as we think of “ranking” law schools by the number of federal clerkships or “big law” placement. Determining whether students are satisfied with their employment outcomes may not help schools in the “rankings,” but it’s the moral imperative of legal educators. Clerkships, after all, may just be another job.

In another sense, these are “first world” problems for some law schools. Many law students at many law schools would appreciate any opportunity to get gainful legal employment, much less to choose among options, let alone elite options! But the imperative remains in advising students at all levels and in all capacities.

I’ve had the pleasure of serving as a clerkship advisor (and sometimes externship advisor) to many students over many years, and I hope to continue to do so in the past. I’ve tried to heed these principles, and I’ll offer a couple of practical examples.

One student was weighing two options—he’d received an offer from a “less” prestigious judge but hoped to have an opportunity from a “more” prestigious judge within the next few days, and he asked me what I thought. Of course, turning down an offer from a judge is deemed taboo among law school career development offices, and I noted that to him—then I followed up with, “But what’s important is your career, and we’re going to talk about that.” The “more” prestigious judge, in my view, would not provide the mentoring role that I thought would be better for his career for a host of reasons, knowing the reputation of both judges and the student’s career interests. Ultimately, he took my advice to heart and accepted the offer from the “less” prestigious judge. And at the end of the work experience? He gushed about his experience, told me the mentoring he’d received was invaluable, and deeply appreciated my frank advice.

Another student had accepted an offer for a judicial clerkship when a problem arose that would counsel toward withdrawing from the clerkship. She called me to figure out what to do. Once again, I noted that yes, it might be “bad form” to withdraw an offer from a clerkship, but, again, I emphasized we ought to talk through her career options—the problem, whether she ought to withdraw or take other steps, if she withdrew how to approach it, and so on. We had some lengthy conversations to figure out the best solutions, and all was resolved amicably.

Of course, I select a couple of good anecdotes with students where I’d built up good relationships! In others I could give more limited advice, or I referred them to other faculty who might give them better advice. And I haven’t had to experience horrible allegations of sexual assault from a clerk.

For students out there, seek out mentors who will provide you with this kind of advice. And importantly, seek them out early to help avoid making mistakes or entering problems. I’ve always been happy to help in whatever small way I can.

For law professors out there, encourage one another to think this way, and to advise students with this approach.

For me, I’m thinking about how to institutionalize some of this—training students before they head to clerkships, encouraging them to report concerns to us, and so on. It needs to be more than just faculty individually doing it. I only hope I can take my own advice and do a better job in the future.