Federal judges have already begun to drift away from hiring Yale Law clerks

On the heels of the latest controversy at Yale Law School, which David Lat ably describes over at Original Jurisdiction, a federal judge penned an email to fellow judges: “The latest events at Yale Law School, in which students attempted to shout down speakers participating in a panel discussion on free speech, prompt me to suggest that students who are identified as those willing to disrupt any such panel discussion should be noted. All federal judges—and all federal judges are presumably committed to free speech—should carefully consider whether any student so identified should be disqualified from potential clerkships.”

The truth is, Yale Law has already seen falling clerkship placement numbers in recent years. Incidents like this may harden some judges’ opposition. (There are caveats, of course, about what factors affect a judges hiring practices, the political salience of the issues here, and so on.)

I closely track federal judicial clerkship placement, and I have in recent years included a three-year average of clerkship placement in a report I release every two years. The latest version of that report is here. But we can look at some trends among a handful of schools. I select eight of the (historically) highest-performing: Yale, Stanford, Chicago, Harvard, Duke, Virginia, Michigan, and UC-Irvine. I’ll look at the last eight years’ placement. (Any choice of schools and window of time is a bit arbitrary, and I could go back for more data or more schools if I wanted. I didn’t look at 2012 or earlier data, so I don’t know what I’m missing with this cutoff.)

Let me start by pointing out that the total placement among recent graduates has been fairly steady (see the chart). Schools report between 1150 and 1250 placements per year.

Some declines may well be attributable to vacancies in the federal judiciary that were unfilled. It does not appear that there is a “trend” of hiring materially fewer recent law school graduates in favor of clerks with work experience.

But this means that there’s roughly a fixed set of possible clerkship positions each year. If some schools are declining in placement we would expect to see other schooling improvement in placement. We can’t necessarily make those as one-to-one tradeoffs (e.g., a judge “stops” hiring from Yale and “starts” hiring from Chicago), but we can watch some aggregate trends.

I’ll start with percentage of graduates placed into a full-time, long-term federal clerkship. Admittedly, this doesn’t capture those who work then clerk. But there is some consistency in the reporting of data over the years. It makes no distinction among competitiveness of clerkships or types of judges (e.g., appellate or district court). Percentages can also fluctuate with the class size or be deceptive based on class size; I’ll dig into the raw figures in a moment.

A few items stand out. Yale would typically place between 25% and 35% of its class into federal clerkships. Its number is low in 2020, but not the lowest in this time period. A couple of times, Stanford has placed a higher percentage of clerks than Yale.

But noteworthy is Chicago’s climb, from 10% of the class in 2013 to a whopping 27.6% in 2020, for the first time in recent memory besting Yale.

A few other trends are noteworthy. Apart from Irvine’s decline (which may coincide with the departure of founding Dean Erwin Chemerinsky), we see that the University of Virginia placing fourth with 17.5% placement. It’s done well in recent years, including occasionally edging out Harvard, but (apart from a 2017 dip) shows a trendline of consistent and perhaps improving placement.

Let’s now look at the raw totals of placement. Recall that these figures are going to help assess placement into the market of roughly 1150 to 1250 total new clerks a year.

Harvard tops the list, as its 15-20% placement into clerkships still means a whopping 80 to 120 clerks a year, given its tremendous class size. But, it is notable to see it at an eight-year low in placement. Yale, which had consistently been second in raw placement for the previous seven years, has slipped to fourth in 2020, as both Chicago (56) and Virginia (55) placed more federal clerks than Yale (52).

Now, it’s perhaps no coincidence that Yale graduates just 197 students in the Class of 2020, its smallest class in this eight-year period, and perhaps correspondingly saw a decline in overall placement in different ways. Still, federal judges needed clerks in 2020. They simply looked elsewhere at slightly higher rates.

But at a larger level, it’s worth noting that federal judges do change their hiring preferences, and we may be witnessing some of that right now, regardless of whether some judges are “investigating” whether some graduates of some law schools have acted in a disruptive manner at a public event. There are, of course, any number of reasons why federal judges looked elsewhere, returning to a point at the top of this post. It could be that law students at some law schools, more than others, are self-selecting out of applying to federal judges (option for lucrative large law firm placement, competitive government positions, or the booming public interest sector).

And finally, it could also be that this blip is hardly a “trend,” and we’ll wait for a month to see what the Class of 2021 figures show.