Clerks as "Mini Judges" or "Judges' Assistants" Forum

[Barrred]

It seems to me that federal judges treat their law clerks either as "mini judges" (i.e., clerks who read all the briefs, decide which side should win, and then write the order/opinion/bench memo without any input from the judge, and only then gives the finished product to the judge to review and decide if he agrees), or "judges' assistants" (i.e., clerks who are there to conduct research on questions the judge has, otherwise help the judge come to a decision, and then help the judge write/edit the final product to be published/circulated). Another way to phrase this dichotomy is that there are some chambers where the judges never read the briefs, and never draft their own opinions/orders; and other chambers where the judges always read the briefs, and always at least partially draft their own opinions/orders (with various degrees of law clerk input/help).

It seems to me that both models have their advantages and disadvantages. Mini judge clerks seem to have more input into how the decisions actually come out, and are better able to develop confidence in their own personal writing style/voice, but they likely wont get to see first hand how their judges grapple with the issues (especially if their judge agrees with their analysis in a case), and the likely will have less of an opportunity to really improve their writing by seeing how their judge writes. The opposite seems to be true for judges' assistant clerks.

Both models also have the potential to devolve into something unhealthy. Judges who treat their clerks as mini judges can go too far by letting their clerks do all the work and never giving any feedback (at the extreme essentially abdicating their judicial role to their clerks), whereas judges who treat their clerks as judges' assistants can go too far by micromanaging or refusing to give their clerks a meaningful role in coming to a decision or in crafting the final written product.

Which model do you think is a more valuable experience for the clerk? Which model is more common these days?

[Auxilio]

I don't agree that it's a dichotomy. I think for the vast majority of judges they will do some cases the "mini judges" way and some cases the "judges' assistants" way. I expect most start tilted towards JA, and shift more and more to MJ as they trust their clerk.

If there are more than 10% of federal judges who don't read briefs on close issues they are unsure about I would be shocked. Trusting the clerk to do supplemental research is more common.

[nixy]

I don't agree that it's a dichotomy. I think for the vast majority of judges they will do some cases the "mini judges" way and some cases the "judges' assistants" way. I expect most start tilted towards JA, and shift more and more to MJ as they trust their clerk.

If there are more than 10% of federal judges who don't read briefs on close issues they are unsure about I would be shocked. Trusting the clerk to do supplemental research is more common.

I agree with this.

Also it sounds like it’s based on a COA clerkship. I don’t think a district court could work on either of these models.

[Barrred]

I don't agree that it's a dichotomy. I think for the vast majority of judges they will do some cases the "mini judges" way and some cases the "judges' assistants" way. I expect most start tilted towards JA, and shift more and more to MJ as they trust their clerk.

If there are more than 10% of federal judges who don't read briefs on close issues they are unsure about I would be shocked. Trusting the clerk to do supplemental research is more common.

I agree with this.

Also it sounds like it’s based on a COA clerkship. I don’t think a district court could work on either of these models.

I agree that its not a true dichotomy, but my anecdotal experience is that judges at both the COA and district court level tend to fall generally into one of the two groups, as in a rough bimodal distribution.

I think that the models work at the district court level: for example, I know that in some chambers, clerks read the MTD/MSJ briefs all by themselves, write up an order granting or denying the motion, and then submit the draft order to the judge for approval; whereas in other chambers, the judge will tell the clerk how the MSJ/MTD is to be decided, and has the clerk conduct research tasks in support of writing the order.

[Anonymous User]

I don't agree that it's a dichotomy. I think for the vast majority of judges they will do some cases the "mini judges" way and some cases the "judges' assistants" way. I expect most start tilted towards JA, and shift more and more to MJ as they trust their clerk.

If there are more than 10% of federal judges who don't read briefs on close issues they are unsure about I would be shocked. Trusting the clerk to do supplemental research is more common.

I agree with this.

Also it sounds like it’s based on a COA clerkship. I don’t think a district court could work on either of these models.

I agree that its not a true dichotomy, but my anecdotal experience is that judges at both the COA and district court level tend to fall generally into one of the two groups, as in a rough bimodal distribution.

I think that the models work at the district court level: for example, I know that in some chambers, clerks read the MTD/MSJ briefs all by themselves, write up an order granting or denying the motion, and then submit the draft order to the judge for approval; whereas in other chambers, the judge will tell the clerk how the MSJ/MTD is to be decided, and has the clerk conduct research tasks in support of writing the order.

*shrug*

With my judge (District) we would read all the briefs separately, I’d research and write a bench memo. We’d discuss and decide what the probable result was, and if anything was still unclear. Have oral argument, discuss again. I’d go write the draft, and then in most cases there would be minor revisions to the draft and it would go out. So not really either of those options.

[nixy]

I don't agree that it's a dichotomy. I think for the vast majority of judges they will do some cases the "mini judges" way and some cases the "judges' assistants" way. I expect most start tilted towards JA, and shift more and more to MJ as they trust their clerk.

If there are more than 10% of federal judges who don't read briefs on close issues they are unsure about I would be shocked. Trusting the clerk to do supplemental research is more common.

I agree with this.

Also it sounds like it’s based on a COA clerkship. I don’t think a district court could work on either of these models.

I agree that its not a true dichotomy, but my anecdotal experience is that judges at both the COA and district court level tend to fall generally into one of the two groups, as in a rough bimodal distribution.

I think that the models work at the district court level: for example, I know that in some chambers, clerks read the MTD/MSJ briefs all by themselves, write up an order granting or denying the motion, and then submit the draft order to the judge for approval; whereas in other chambers, the judge will tell the clerk how the MSJ/MTD is to be decided, and has the clerk conduct research tasks in support of writing the order.

I think there are too many ways of working for this binary to work. I know of chambers that fit those 2 examples, but worked a variety of different ways at different times myself. It often depends on the nature of the case.

I also don’t think there’s any way to answer your questions about prevalence or value for the clerk. It’s way too individual.

[Lacepiece23]

I don't agree that it's a dichotomy. I think for the vast majority of judges they will do some cases the "mini judges" way and some cases the "judges' assistants" way. I expect most start tilted towards JA, and shift more and more to MJ as they trust their clerk.

If there are more than 10% of federal judges who don't read briefs on close issues they are unsure about I would be shocked. Trusting the clerk to do supplemental research is more common.

I agree with this.

Also it sounds like it’s based on a COA clerkship. I don’t think a district court could work on either of these models.

I agree that its not a true dichotomy, but my anecdotal experience is that judges at both the COA and district court level tend to fall generally into one of the two groups, as in a rough bimodal distribution.

I think that the models work at the district court level: for example, I know that in some chambers, clerks read the MTD/MSJ briefs all by themselves, write up an order granting or denying the motion, and then submit the draft order to the judge for approval; whereas in other chambers, the judge will tell the clerk how the MSJ/MTD is to be decided, and has the clerk conduct research tasks in support of writing the order.

*shrug*

With my judge (District) we would read all the briefs separately, I’d research and write a bench memo. We’d discuss and decide what the probable result was, and if anything was still unclear. Have oral argument, discuss again. I’d go write the draft, and then in most cases there would be minor revisions to the draft and it would go out. So not really either of those options.

Sounds like a lot of work.

[Anonymous User]

Sounds like a lot of work.

Yeah. Mostly for the judge, though, since he was pretty much doing it 3x. He’s the kind of person who’s just built to be doing the equivalent of billing 2700 hours.