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06 March 2006

Comments

Todd Peppers

I agree that the law clerk's duty of confidentiality is a serious roadblock to legitimate research on the federal and state courts. While I appreciate that some clerks (and their judges) define that duty differently when it comes to communications with other judges and law clerks versus the outside world, I have never heard a convincing argument for why a individual justice's general employment practices should be confidential. Assume that Justice "A" has a long-standing practice of having his law clerks prepare short, 3-5 page bench memoranda for every case set for oral argument. Further assume that the memoranda not only summarize the key legal arguments on appeal, but suggest questions to ask during oral argument and provide a recommended disposition of the case. What is the justification (other than a concern over public relations) for arguing that this general practice must be confidential? Revealing such practices will not chill candid discussions between a justice and his or her clerks on a particular case. It does not reveal a justice's position on a particular constitutional issue. And it does not give certain litigants an advantage. Is it because justices still believe that the public buys into the myth, to paraphrase Justice Brandeis, that the justices are the only officials in Washington who do their own work?

Todd Peppers

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