Economix Blog: When Judges Break Their Own Rules

I have a new article online about the ordeal that law students go through if they want to be hired as clerks for federal judges.

The recruiting process is competitive for both students and judges, who are all trying to leapfrog each other to snatch up the best talent before their peers do. That means judges are motivated to make job offers earlier and earlier, extending offers several years before a job’s actual start date, even before students have a full year of grades.

Alex Kozinski, the chief judge of the Ninth Circuit Court of Appeals, joked that he begins recruiting students “at birth.”

CATHERINE RAMPELL

Dollars to doughnuts.

Meanwhile, students know about how early and how quickly the slots go, so they are always pressuring judges to give them the earliest interview slots possible, which effectively moves the entire system even earlier.

It’s basically a collective action problem, like curbing grade inflation (also a problem at law schools): Everybody individually would benefit from offering a position a little early, but when judges all do this at the same time they cancel out one anothers’ efforts. The problem can be solved only if everyone comes together and agrees to a system that forces everyone to do what no one would do unilaterally — that is, to wait to make job offers until a later date when everyone can make informed, thoughtful decisions.

And in the last three decades there have indeed been several attempts — by federal judges — to devise a rule system that is intended to essentially protect judges from themselves.

The problem is that there’s no external enforcement mechanism for this system. Judges have lifetime appointments, and breaking a clerkship recruiting rule doesn’t come with any sanctions the way breaking an N.C.A.A. recruiting rule does. So once one person starts cheating, there’s a strong temptation for others to cheat, too.

“It kind of goes in waves, like financial regulation,” said David Lat, a former clerk and now managing editor of Above The Law, a Web site on legal affairs that has followed the ebbs and flows of the clerkship hiring plan over the years. “The judges try to tighten up the process with some strict rules. In the early years people adhere to it, and then as time goes on fewer and fewer people follow it, since there’s more incentive to cheat, and the whole thing descends into chaos. Then there’s a renewed attempt to tighten things up, until it all descends into chaos all over again.”

Right now, we seem to be in the chaos part of the cycle.

It’s not clear that there’s a better design out there, though, that would fix the system and end the cycle. Any ideas?

Article source: http://feeds.nytimes.com/click.phdo?i=695060394e3debd983a321998ec66bd9