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US News & Unintended Consequences for Bankruptcy Judges (and the Law Clerks They Hire)

posted by Bob Lawless

A post over at Law School Transparency caught my eye (hat tip to Leiter's Law School Reports), and it should be catching the eyes of U.S. bankruptcy judges. Law School Transparency, started by law students, advocates for more transparency in the way law schools report employment data. This is undoubtedly a good thing.

The post describes correspondence with Bob Morse, the keeper of the U.S. News law school rankings. To the uninitiated, these rankings have a incredibly outsized influence on the legal academy and can influence how law schools make decisions about everything from career services to admitting part-time students. This is undoubtedly a bad thing.

According to the Law School Transparency post, U.S. News will begin reporting the percentage of graduating students "employed in a judicial clerkship by an Article III federal judge." Bankruptcy courts are not Article III courts. Like it or not, this increased transparency will change the incentives law schools have to mentor students into bankruptcy clerkships. If Article III clerkships count and other clerkships do not, law schools will put more effort into guiding their students into the Article III clerkships. Also, by distinguishing between clerkships that count and those that do not, U.S. News would be sending a message to students about which clerkships should be valued. The problem is hardly specific to bankruptcy clerkships--clerkships with courts like the U.S. Tax Court or state supreme courts will not count either--but this is a bankruptcy-focused blog.

I don't want to overstate the issue. First, law schools and students already perceive Article III clerkships as more prestigious. Second, it appears that U.S. News will merely be disclosing the clerkship data rather than using it as part of the formula it uses to construct the law school rankings. (If I have misunderstood, however, and the clerkship data become part of the formal ranking calculation, it will be impossible to overstate the effect on law school behavior.) Third, faculty and career service professionals conscientiously try to advise students into the career paths that will best suit them.

Incentives matter. Despite the potentially huge benefit for young lawyers looking to start a career in bankruptcy, the move by U.S. News means bankruptcy court clerkships will become less attractive for law students. Bankruptcy judges might see a drop in the number or quality of clerkship applications. I understand the motives behind the move toward more disclosure. Law schools have been resorting to all sorts of devices to pump up their employment figures, and those schools that report a high employment rate often do not say much about the quality of the jobs their graduates found. Better information would be a big help for students trying to make decisions about whether to invest in a legal education. Maybe the National Conference of Bankruptcy Judges could work with representatives of other courts that would be affected by the new disclosures to approach U.S. News to find a sensible middle ground between the existing lack of transparency and an overemphasis on Article III clerkships.


Bob, just wanted to make a quick clarification.

U.S. News already provides the Article III clerkships percentages on their website. In fact, they do so it two places. (1) A rankings page of all schools: http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-law-schools/article_iii_clerks (2) On each school's employment summary page.

The suggestion we (LST) made to U.S. News was that they should include this percentage with the rest of their employer-type breakdown. The purpose here is just to provide a more accurate picture of where people go. Since clerkships are public in nature, I think additional categories within the "clerkship" category for bankruptcy, tax, other clerkships would be hugely beneficial without much controversy.

The reason we did not advocate for this solution at this time is that schools do not already report to that degree of specificity to U.S. News. We merely were after improving how U.S. News reports what U.S. News already collects.

Admittedly, my law diploma was placed in its frame 20 years ago, but at that point I didn't hear much about bankruptcy clerkships having any prestige at all (and I was a student of Elizabeth Warren at the time -- a fortunate coincidence for which I am very grateful). I am hoping that has changed, but I don't think so. I also hear of very few law students coming out of school wanting to bankruptcy lawyers. I didn't. Like many of my colleagues, I started as a corporate lawyer and found a niche during a lousy economy in the early 90's. Again, I hope that this has changed, but of the few first year lawyers in my firm in the last few years, I will tell you that i have yet to find anyone asking to be a bankruptcy lawyer.....including the one I hired 3 months ago.......who now loves it.

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And clerkships on state courts of last resort -- chopped liver, I suppose? Bob, this is a longtime systemic problem within the profession and its perception of itself. If you can't capture what is intrinsically effective (or not) about one's job performance as an attorney, accumulating a list of impressive-sounding feudal titles is one alternative to accountability.

To be sure, some judicial clerkships should be regarded as prestigious. But in the calculus of ultimate specialty and experience, an Article III clerkship is certainly not the end-all be-all.

What's so silly about the Article 3 infatuation is that there are easily several state supreme courts (MA, NY, NJ, maybe others--Alaska for environmental law?) on which a clerkship is much more impressive than some federal district or appellate clerkships.

Adam, so what can be done to break the grip of the b.s. paradigmatic career path that we all know and love?

I love it when someone who graduated at the bottom of their law school class truly excels in practice.

This has got to be the non-issue of all time. Could we get back to bankruptcy law, please?

The more relevant issue for would-be bankruptcy clerks is the rise of the career clerk and associated decline in open clerkship spots at top bankruptcy courts. In Delaware, for example, there are now maybe two or three clerk slots each year, because several of the judges utilize careers clerks. One can also make the case that if clerks having too much power is a problem, the problem is made even worse when an experienced career clerk displaces the mentor/pliant apprentice ethic naturally existing between judges and new graduates.

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