Empirical Legal Studies

SCOTUS Clerks (Shameless Self-Promotion Remix)

We've hosted some discussions about Supreme Court clerks here in the past, so I thought I'd draw readers' attention to Adam Liptak's story in his "Sidebar" column in the NY Times today.  Adam profiles a study in the DePaul Law Review by Todd Peppers and me on law clerk influence.  I'll let readers draw their own conclusions from the piece (and the study, for that matter).  But I will say that, while I'm usually more than a bit nervous about journalists interpreting empirical work, I thought Adam did a really great job in his write-up.

Update: U.S. News has just reposted the original 1957 article on law clerk influence written by (then-former-clerk) William Rehnquist.  Interesting reading.

Network Analysis of Law Clerks and Judges

Over the next couple of weeks I plan to blog about some new research, with a particular focus on unusual techniques or interesting research questions.  Several of the research projects I will discuss came to my attention through the Law and Society Conference in Montreal at the end of May.

One interesting presentation was a paper entitled Hustle and Flow: A Social Network Analysis of the American Federal Judiciary by Daniel M. Katz and Derek K. Stafford, both political science graduate students at the University of Michigan.   Katz and Stafford are interested in the social structure of the judiciary and, more controversially, whether that structure has an effect on doctrine or case outcomes.  Different from the prevailing models of judicial behavior (attituindalism, legalism, or the strategic model), their hypothesis is that judges -- at least sometimes -- are influenced by "peer effects," not just by their own political views or by legal sources.  (Such social pressures could be a partial explanation for the panel and circuit effects documented on appellate courts.  See, for example, Kastellec, Jonathan P., "Panel Composition and Voting on the U.S. Courts of Appeals Over Time" (May 14, 2008). Available at SSRN: http://ssrn.com/abstract=1012111) and Kim, Pauline T., "Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects" (March 31, 2008). Available at SSRN: http://ssrn.com/abstract=1115357 ).

In order to study these social or peer effects, they must find a way to describe the social networks of the judiciary.  As an initial attempt to do so, Katz and Stafford employ new network analysis techniques to measure the paths that law clerks take between judges.  In other words, they chart the likelihood that a law clerk for, say, Judge Kozinski, will later clerk for Justice Kennedy, or that a law clerk for a particular district court judge will go on to clerk for a particular appellate court judge.  Their study "visualizes law clerk traffic" during the last Rehnquist natural court and produces some interesting representations of the relationships between judges.  (They identified about 900 clerks who moved from one judge to another during this period.)

The graphic depiction of these law clerk moves is one of the more interesting aspects of the study.  In one depiction, Supreme Court justices are, not surprisingly, clustered in the middle, but -- more surprisingly -- district court judges are "suffused throughout the network," not relegated to the periphery.  This is one representation, Katz and Stafford suggest, of the fact that judges with equivalent institutional authority in fact have different levels of influence.  Below is one such figure from the paper -- the Kamada Kawai Energized Network.  (Yellow nodes are Supreme Court justices; green are appellate court; and blue are district court judges.)

 

 

It will be interesting to hear more from these authors as they apply their methods to other aspects of the judiciary.

Empirical Work on Lower Federal Court Clerks

Over on SSRN, Todd Peppers, Mike Giles, and Bridget Tanier-Parkins have posted "The Hiring and Utilization of Federal District Court Law Clerks."  From the abstract:

Using original survey data of 311 active and senior federal district court judges, we take the first step in delineating the institutional rules and norms surrounding the selection and use of law clerks in the federal district courts. Our findings reveal that federal district court judges assign their law clerks a number of substantive job duties, findings which raise important new questions about law clerk influence in the lower federal courts.

Among their interesting findings: District court judges place an applicant's personality high on the list of desiderata when selecting clerks. ATSRTWT.

Statistical Analysis of Sup. Ct. Clerk Selections and Claims of Justice Bias

In a paper that has already received well-deserved public attention, "Where Have All the Women Gone? 'Random Variation' in the Supreme Court Clerkship Lottery," Professors David Kaye (Law, ASU) and Joseph Gastwirth (Statistics & Econ., George Wash. U.) hold Supreme Court Justices' clerk selections up to empirical light in an effort to assess recent claims of gender disparity.

Some may recall that the New York Times gave front page coverage "to some disturbing facts about this year's clerks - only seven out of the 37 - a mere 19 percent - are women. This outcome, moreover, represents a shocking 50 percent drop from preceding years. Yet, two Justices portrayed this year's percentage as the result of 'random variation,' a claim that strikes many observers as incredible."  The Kaye and Gastwirth paper carefully takes up this claim. An excerpted abstract follows.

"This essay applies standard statistical reasoning to answer two questions - what do the numbers prove, and how strongly do they prove it? We show that this year's decline in women is not at all improbable. Likewise, if the percentage of women applying for these clerkships is in the range of what one Justice suggested, then the small proportion of women is about what one would expect.

The situation seems different, however, when one examines statistics on each Justice. Some Justices hire considerably fewer women than would be expected by chance, while others hire somewhat more. There are many possible explanations for this pattern. We marshal data to assess the plausibility of some of them, but in the end, the available records do not allow a definitive conclusion."

White, Male SCOTUS Clerks

The Legal Times has a interesting story on the lack of ethnic and gender diversity among U.S. Supreme Court Law Clerks.  The story draws heavily on the research of former ELS Guest Blogger, Todd Peppers, who participated in the "Law Clerks as Research Subjects" Forum back in March.  Here is a worthwhile excerpt that deals with changes in hiring practices over time:

This is ...  the first term in which clerks affected by the new federal clerkship hiring plan have reached the Court. Under the plan, adopted in 2002, appellate judges agreed they would no longer hire clerks after their first year of law school but would wait until the start of their third year. Some judges speculated that by giving law students another year to blossom, more minority candidates could emerge. If so, it did not result in more minority clerks at the Court.  [Only three of thirty-seven this term are non-white.]

Todd Peppers, author of the new book "Courtiers of the Marble Palace," which takes a historical look at high court clerks, says none of the possible explanations for low numbers of minorities is satisfying. When, a few years ago, members of Congress asked why justices could not cast their nets more widely to find more minority candidates, Peppers recalls, the justices often fell back on the "questionable" excuse that they could not afford to take chances that even one of their clerks might not be a top performer.

Law firm starting bonus for Sup. Ct. Clerks hits $200K

The  Washington Post (via the WSJ Law Blog) is reporting that $200,000 is now the going rate for bonuses for Sup. Ct.  clerks.   Since most second-year BigLaw associates make $150K to $160K, a year at the Supreme Court is now a financial boon rather than a sacrifice:  $63,335 (what a SCOTUS clerk makes) + $200,000 = $263,335.   Is the value to the firm nonpecuniary or at least indirect--e.g., bragging rights on the number of former clerks?  Would a firm bill out a former Sup Ct clerk at a higher rate right out of the box?

It is not outside the realm of possibility that law schools, who also compete for former Sup Ct clerks, will eventually offer bonuses as well.   Granted, the external economies are different, and there is some evidence that a prestigious clerkship is not a valid predictor of the production and placement of future scholarship.  See Paul L. Caron & Rafael Gely, What Law Schools Can Learn from Billy Beane and the Oakland Athletics, 82 Tex L. Rev. 1483 (2004).   We'll see. 

Dining with Chief Justice Burger

If you liked our blog forum about researching law clerks and law clerk confidentiality, Joseph Zengerle, who clerked for Chief Justice Burger in October Term 1973, has written "Changing of the Chiefs."  9 Green Bag 2d 175.  (Note: The Green Bag is one of the few journals worth reading back to front.)   The article is not yet up on the Green Bag website, but I suspect it will be soon.  The article briefly discusses Zengerle's deliberations with CJ Burger regarding Cleveland Bd. of Ed. v. LaFleur, 414 U.S. 632 (1974), and spends significant time describing the annual dinner of the WEB Fete Society.

To Tell or Not to Tell

I appreciate Todd Peppers’ and Artemus Ward’s responses to my post. But I didn’t say (or mean) that "the journalists are spoiling it for the academics." Rather, I think that most law clerks make no distinction between journalists and academics when deciding whether and how to respond to requests for information. It’s not a distinction I’ve considered myself until now. And to be honest, I remain unpersuaded that it’s the right distinction to make. The fact that academics are less likely to achieve fame and fortune as a result of their work, for example, than are journalists or muckrakers does not persuade me that law clerks should talk to them more freely. Nor do I believe that it is necessarily true that "both clerks and justices have nothing to fear from us poor, dull, eggheads." Although I have not yet read Artemus’ forthcoming book (other than the introduction, which he very kindly shared with me last fall), the press accounts I have seen (those pesky journalists again!) suggest that it is critical of the role of law clerks and Justices’ dependence on them. It may or may not turn out to be a best-seller, but it also is unlikely to reassure those skittish research subjects that there are no downsides to participating in academic work.

The Trouble with Surveys

It’s interesting to me that, as Todd Peppers says, he “ha[s] worried less about low response rates than responses from law clerks who downplay their job responsibilities while exaggerating their employer’s intellectual abilities and moral virtues.” Certainly that’s a problem for survey research, not just surveys of Supreme Court law clerks, but in general. One challenge of surveys is that many people won’t participate. Another challenge is that people who do participate may not give objective responses.

It’s a problem faced both by academics and by journalists. Books like The Brethren and Closed Chambers were criticized as based on information from law clerks who allegedly exaggerated their roles. Now Todd expresses concern that law clerks may have understated their roles. Both cases lead me to question whether maybe we should be trying to find other ways to gather information than surveying law clerks.

The Duty of Loyalty and Data Collection

I’d like to follow up on Professor Shapiro’s comments about the duty of loyalty that law clerks feel towards their justices.  She writes: “At its strongest, this ethic of loyalty encompasses a belief that the law clerks should never be complicit in presenting the Court in a negative light,” adding “[t]here is no breach of loyalty, no betrayal, in making the Court and the Justices look good.” The question I would like to pose - what if a justice, or the Court itself, merits the harsh spotlight of public examination and censure?  And what are the unanticipated effects of this duty of loyalty on data collection?