- Law clerk
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.
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's Conseil d'État. In English Courts, 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.
In Australia, the position of law clerk is known either as "Associate" (in the High Court of Australia, the Federal Court of Australia and most State Supreme Courts) or "Tipstaff" (in the Supreme Court of New South Wales). The positions usually run for one-year, although they are sometimes extended to two years (this is more common in the Supreme Courts).
The duties of associates and tipstaves can include research, reviewing draft judgments and providing feedback or criticism to the judge, reading and summarising court materials, attending to the judge in court, and also assisting with chambers, administrative or personal tasks. On occasion, some associates and tipstaves are asked to write draft judgments, or parts of judgments. However, these duties can vary between different courts, and also depend on the individual judge.
In the High Court, each of the seven High Court judges has two associates at any given time. Usually, one associate is based permanently in Canberra, 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. The traveling 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. Previous associates have written that the nature of the associate's role is different from that of a law clerk in the United States.
The judges of the Federal Court and the Supreme Courts of each State (and Territory) have one associate each. These positions are also very competitive.
There are also research positions available at the superior courts in Australia and the High Court. These positions are similarly staffed by recent law graduates and young lawyers.
Most Canadian courts accept applications for judicial clerkships from graduating law students or experienced lawyers who have already been called to the Bar in Canada or abroad (typically in the United States or the United Kingdom). Most provincial superior and appellate courts 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, experienced 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.
The most prestigious clerkship available is with the country's highest court, the Supreme Court of Canada, 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 period. The Court of Appeal for Ontario selects 17 law clerks, who serve either one or two of the 24 Justices. The Quebec Court of Appeal usually hires a similar number of law clerks for both Montreal and Quebec City, but is unusual among Canadian courts in having a formal clerkship program for law students in addition to law graduates. Successful candidates for all clerkships are usually selected based on a distinguished academic record, academic recommendations, strong research and writing skills and interviews with judges. For both the Supreme Court of Canada and the Quebec Court of Appeal, being able to work in both English and French is strongly preferred. Many law clerks have gone on to become leaders of the profession. For example, the Hon. 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). Similarly, the Hon. Madam Justice Louise Arbour, formerly of the Supreme Court of Canada, the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia and former UN High Commissioner for Human Rights, also served as a law clerk in the early years of the program. Meanwhile, the Hon. Madam Justice Andromache Karakatsanis and the Hon. Madam Justice Kathryn N. Feldman of the Ontario Court of Appeal were formerly law clerks at the same court.
England and Wales
In England and Wales, law clerks are called Judicial Assistants. It is possible to be a Judicial Assistant at the Court of Appeal and at the UK Supreme Court (formerly the Appellate Committee of the House of Lords). Only Supreme Court Judicial Assistants are appointed for a full-time, one year fixed term appointment. Since 2006 they 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.
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 do not issue individual 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.
In France law clerks are called assistants de justice. They typically go through a competitive nomination and interview process to get accepted as law clerks. Most French courts accept applications for judicial clerkships from graduating law students. Students in their last year of law school are eligible to apply, although most law clerks are Ph.D. candidates in Law or candidates for a French competitive entrance exam such as the bar exam, French National School for the Judiciary, French National School of Public Finances, or French National School of Court Clerks.
Law clerks are hired for two years renewable twice. Depending on credentials and curriculum they can be assigned to the bench (magistrat du siège) or the prosecution (parquet or parquet général).
The work of a law clerk entails assisting the judges with writing verdicts and decisions and conducting legal inquiries and research.
The most prestigious clerkships available in France are before the courts of appeals, which review decisions of lower courts.
A similar system exists in the administrative courts.
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 Referendariat, 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 the Federal Supreme Courts (see Judiciary of Germany) and the office of the Federal Prosecutor General, the duties of law clerks are performed by wissenschaftliche Mitarbeiter (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 Court (who have the right to select their wissenschaftliche Mitarbeiter 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) Dritter Senat ("Third Senate") as opposed to the two official "senates" of 8 justices each which form the court.
In India 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 India 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 2010-11 session each judicial clerk at the Supreme Court was paid Rs 25,000 a month, which may be increased further in the next year. In 2009-2010 each law clerk at the Supreme Court of India was being paid 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.
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.
In Mexico, 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.
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 is a fixed term position of 2 years.
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.
In Singapore, top law graduates from the National University of Singapore and reputable foreign universities, usually only those obtaining first class honours, are invited to join the Supreme Court as Justices' Law Clerks. The Supreme Court comprises the High Court and the Court of Appeal, which is the final court of appeal in Singapore. Upon accepting appointment, Justices' Law Clerks are appointed for a term of one and a half years, with a possible 6 month extension. During their term, the law clerks are given the opportunity to work with both the judges of the High Court as well as the Judges of the Appeal and the Chief Justice. After their term, the law clerks have the option of joining the permanent establishment of the Singapore Legal Service. If they take up this option, they will be posted to other branches of the Singapore Legal Service, for example as Deputy Public Prosecutors at the Attorney's General Chambers or as Assistant Registrars in the Supreme Court Registry. Many Justice's Law Clerks choose to join private firms after their stint (and several have recently achieved the title of Senior Counsel), while others have chosen a path in academia.
Law clerks of the Supreme Court of the Netherlands are independent researchers. Applicants are recruited from the top law firms and universities. For most, it is a highly prestigious second job. Law clerks typically work at the Surpreme Court for six years.
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 (förvaltningsrätt) 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.
Among the most prestigious clerkships are those with the United States Supreme Court, the United States courts of appeals, certain United States district courts, specialized courts such as the United States Tax Court and the Delaware Court of Chancery, 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 high-profile disputes involving the federal government. Similarly, the United States Tax Court specializes in adjudicating disputes over federal income tax, and the Delaware Court of Chancery hears a substantial volume of corporate and shareholder derivative actions.
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 in law school. As such, the law clerk application process is highly competitive, with most federal judges receiving hundreds of applications for only one or two open positions in any given year. State-level trial court judges are less likely to get law clerks with the highest credentials because the majority of such candidates are hired by federal judges or state appellate judges.
Because of the selection criteria, many notable legal figures, professors, and judges were initially law clerks.
Six Supreme Court justices previously clerked for other Supreme Court justices: Byron White clerked for Frederick M. Vinson, John Paul Stevens clerked for Wiley Rutledge, Stephen Breyer clerked for Arthur Goldberg, William H. Rehnquist clerked for Robert H. Jackson, John G. Roberts, Jr. clerked for William H. Rehnquist, and Elena Kagan clerked for Thurgood Marshall.
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 they enjoy the position so much they continue to serve the judge as a law clerk in a permanent capacity.
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.
The most prestigious clerkship 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. courts of appeals. Further, clerkships with a court of appeals judge such as J. Michael Luttig who sent many 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. Luttig, before his retirement, was the leading "feeder" judge on the U.S. Court of Appeals, with virtually all of his law clerks having gone on to clerk with conservative justices on the Supreme Court, a total of 40 with 33 clerking for either Justice Thomas or Justice Scalia. This reflects the increasing polarization of the court with both liberal and conservative judges hiring clerks who reflect their ideological orientation.
Generally, the third most sought after clerkship is one with a United States District Court judge; like the Court of Appeals, some U.S. District Courts are more sought after than others due to the district's popular location. There are also federal clerkships with lower level trial-court judges, like magistrate judges (who are hired 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 applications, and when they may contact, interview, and hire law clerks. Generally, judges begin looking at applications in the early 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. Moreover, while many judges adhere to the National Federal Judges Law Clerk Hiring Plan's schedule, many do not follow the plan and interview and hire law students over the summer. 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 aide 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.
A clerkship in a state appellate court generally resembles a federal appellate court clerkship, although the position title is often "staff attorney," and state appellate clerkships are usually less competitive and less prestigious than federal clerkships. The position is more likely to be filled with a more experienced attorney on a long-term basis.
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."
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.
- ^ See, eg, Katherine G Young, 'Open Chambers: High Court Associates and Supreme Court Clerks Compared' (2007) 31 Melbourne University Law Review 646, 657-61.
- ^ http://www.scc-csc.gc.ca/empl/lc-aj/prog-eng.asp
- ^ .http://www.ontariocourts.on.ca/coa/en/lawclerkprogram/index.htm
- ^ .http://www.tribunaux.qc.ca/c-appel/English/Clerkship/clerkship.html
- ^ James Kanter, "Obscure EU court may be ally for business", International Herald Tribune
- ^ Décret n°96-513 du 7 juin 1996 relatif aux assistants de justice (In French)
- ^ District court for Paris, Seine-et-Marne, Val-de-Marne Essonne, Seine-Saint-Denis and Yonne departments.
- ^ District Court for Yvelines, Hauts-de-Seine - which includes the business district of La Defense -, Val-d'Oise and Eure-et-Loir departments.
- ^ Disctrict court for Alpes-de-Haute-Provence, Alpes-Maritimes, Bouches-du-Rhône and Var departments.
- ^ District court for Morbihan, Finistère, Ille-et-Vilaine, Loire-Atlantique and Côtes-d'Armor departments.
- ^ See article L227-1 Code de justice administrative (In French).
- ^ Legally India report on judicial clerkships
- ^ Courts Service Annual Report 2008 (www.courts.ie)
- ^ Wayne L. Anderson and Marilyn J. Headrick, The Legal Profession: Is it for you? (Cincinnati: Thomson Executive Press, 1996), 110.
- ^ "Appeals court judge a rising star among conservatives". CNN. August 22, 2001. http://archives.cnn.com/2001/LAW/08/22/luttig.profile/. Retrieved May 5, 2010.
- ^ "Clerks Highlight Supreme Court’s Polarization" article by Adam Liptak in The New York Times September 6, 2010, accessed September 7, 2010
- ^ "National Federal Judges Law Clerk Hiring Plan" Website, http://www.cadc.uscourts.gov/internet/lawclerk.nsf/Content/CriticalDates?OpenDocument
- ^ Rudesill, Dakota S. (2008-11-05). "Keepers of the U.S. Code: The Case for a Congressional Clerkship Program". Slip Opinions, the online supplement to Washington University Law Review. http://lawreview.wustl.edu/slip-opinions/keepers-of-the-us-code-the-case-for-a-congressional-clerkship-program/. Retrieved 2009-02-22.
- ^ James Chace, Acheson: The Secretary of State Who Created the American World (New York: Simon & Schuster, 2007 ), 44.
- ^ a b c 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.
- Cohen, Jonathan Matthew (2002). Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in the United States Courts of Appeals. Ann Arbor, MI: University of Michigan Press. ISBN 0472112562.
- Kenney, Sally J. (2000). "Beyond Principals and Agents: Seeing Courts as Organizations by Comparing Referendaires at the European Court of Justice and Law Clerks at the U.S. Supreme Court". Comparative Political Studies 33 (5): 593–625. doi:10.1177/0010414000033005002.
- Ward, Artemus; Weiden, David L. (2006). Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court. New York: NYU Press. ISBN 0814794041.
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