Most attention to clerks has been to those in the United States Supreme Court, and with the addition this fall of two important books on that subject, by Todd Peppers, and by Artemus Ward and David Weiden, respectively, we’ll know even more about them. Less attention has been given to clerks in either the lower federal courts (but see Jonathan Matthew Cohen’s Inside Appellate Courts) or in the state supreme courts (but see articles by the late Charles Sheldon). Relevant to studying clerks -- and I assume a “yes” answer to the question, “Are they valid objects of research?” -- is the question of whether there are problems connected with law clerks as research subjects.
The following draws on my experience in conducting a study, part of a larger project, of the clerks of a long-serving judge, now a senior federal appellate judge but who had previously served as a state supreme court justice and as a U.S. district judge. The research on clerks entailed interviews with some of the judge’s former clerks and a mail survey of the others, supplemented with informal observation when I was in the judges’ chambers; having luncheons with the clerks and the judge; and observing a session in which the judge and a set of clerks prepared for an argument calendar. The latter elements, while sporadic and not systematic, assisted in understanding “what clerks do,” my primary research interest. (I was also interested in why the clerks wanted to clerk, why they wished to clerk in the judge’s court and for that judge; how they evaluated their experience as a clerk; and what if any post-clerkship contacts they had with the judge.)
My research focuses on what I call the “clerkship institution,” namely, the rules and norms that surround the hiring and utilization of Supreme Court law clerks. Specifically, I draw upon principal-agent theory to generate and test hypotheses as to the evolution of the clerkship institution over the last 120 years. While I’m interested in the question of law clerk influence, I submit that the influence debate cannot be resolved until we first have a comprehensive picture of the rules and norms that surround and confine the law clerk as well as an appreciation of how these rules and norms have evolved.
If I were to summarize in one word what United States Supreme Court law clerks are like as research subjects, it would be “challenging.” Books like The Brethren and Closed Chambers have not helped pull the reluctant law clerk out of the shadows of the Marble Palace.
This week, the ELS Blog presents its first Blog Forum, the
topic of which is law clerks as research subjects. This topic is particularly
timely. Two major studies of law clerks are scheduled for release this April, Todd
Peppers’ Courtiers of the Marble Palace: The Rise and Influence of the Supreme
Court Law Clerk (Stanford) and Artemus Ward’s and David L. Weiden’s Sorcerers’
As Todd Peppers notes in his post, law clerks can be “tricky”
research subjects. Based on my experience on a survey project with Jason Czarnezki,
there are two major issues in working with former clerks. The first is
that many of them now work at law firms and are extraordinarily busy. I am not
sure that much can be done to deal with this issue. You can send multiple
requests (which we did do). You can call (which we did not do). But nothing can
make your survey billable.