Document Type

Working Paper

Publication Date

5-4-2018

SSRN Discipline

Education by Discipline eJournals; Legal Anthropology eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; EduRN Subject Matter eJournals; Legal Scholarship Network; Education Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; AARN Subject Matter eJournals; Political Science Network; Anthropology & Archaeology Research Network

Abstract

This essay is in part a tribute to my former boss Chief Judge Ed Carnes of the Eleventh Circuit for whom I clerked in 19981999 But it is largely a reflection on clerking and the clerkship culture itself and the effects of that culture on the wider legal and legal academic culture in the United States The tributes by former clerks to judges that appear in the pages of law reviews are most likely to celebrate the judge as a heroic figure and to exalt judges who 1 cultivate a familial rather than a more formal and mundane relationship with their law clerks 2 engage in judging as a mission seeking to advance particular generally politically tinged values in law and viewing other judges or courts as obstacles to that mission and 3 treat their clerks as junior or even full partners in that mission Law clerks who find that their clerkship is actually more mundane or workaday in its nature that their judge does not cultivate a familial relationship with them and that his or her vision of the judicial job is not missionoriented may find that reality disappointing Even if these workaday relationships are the norm they are less likely to fill the law reviews than the romantic and familial vision of clerking That vision has tremendous visibility and influence in the legal and legal academic culture One reason for this may be that such judges are more likely to select for individuals who are skilled at seeking out cultivating and serving powerful mentors that these clerkships are more likely to culminate in elite positions in the legal profession and academy and that this process and vision then perpetuates itself In this essay I argue that whatever rewards this romanticized vision offers it has dangers too It breeds a sense of lifelong clerkship in which much of ones career including a career in legal academia is spent writing apologia for ones own judge or a particular kind of judge and thinking from the perspective of the judge or law clerk Even if the work that results from that perspective is excellent it may be immature The American clerkship culture is one of heroworship It encourages an enduring adolescence and risks a failure to achieve full adulthood and independence At its worst it is unhealthy for the clerks for the professionals they become for the judges themselves and for the wider legal and legal academic culture It may also be true that familial clerkships have particular dangers both for the clerks and for the judges who cultivate such relationships For developing a measured independent adult perspective on law and judging there is much to be said for the more unsung clerkship the clerkship in which the job is just a job not a romantic mission or battle for justice in which the relationship with ones judge is a mere professional employment relationship not a familial one and in which one receives a good education in the law but not conscious cultivation as a lifelong ally or acolyte

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