Asked And Answered: A New Advice Column

To clerk or not to clerk? That is the question.

(via Getty Images)

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

I’m a fan of advice columns. I’ve written to columnists several times over the years, and I’ve been lucky enough to have three of my questions featured in the New York Times, twice in The Ethicist column—once under Randy Cohen and once under Kwame Anthony Appiah—and in Social Q’s with Philip Galanes.¹ I also regularly receive requests for advice (and I try to respond to as many as I can, but unfortunately can’t field all of them).

It’s therefore surprising that I’ve never had an advice column here at Original Jurisdiction. But I recently came across the Of Counsel advice column of another lawyer turned Substack writer, Cece Xie, and thought to myself, “That’s a great idea!”

So I’ve decided to launch an advice column here at Original Jurisdiction: Asked and Answered. Please send your questions to me at davidlat@substack.com, subject line “Asked and Answered: [your topic].”

To kick things off, since I don’t have any reader questions just yet, I’ll answer hypothetical questions from three different law students about a topic that’s near and dear to my own heart: clerking.

Student #1: I’m doing well in law school, I’m interested in litigation, and my current plan is to become a litigator. Some of my professors have suggested that I consider clerking for a judge after graduation. Should I clerk?

I loved my clerkship for Judge Diarmuid O’Scannlain of the Ninth Circuit—and perhaps colored by that experience, I’m generally a proponent of clerking, at least for students who plan on going into litigation. Here are some reasons to clerk:

• It’s a great learning experience, in terms of both process and substance. In terms of process, you learn the nuts and bolts of litigation (especially if you do a trial-court clerkship). In terms of substance, you gain exposure to so many different areas of law. During my clerkship, I worked on cases involving bankruptcy, environmental law, ERISA, immigration law, and trademark law, to name just a few.

• You build great relationships. Judge O’Scannlain remains a mentor and friend to me to this day, almost 25 years after my clerkship, and my co-clerks remain some of my best friends. And I’ve also formed personal and professional relationships with the extended O’Scannlain clerk “family.” Clerk networks can be very professionally advantageous—see, e.g., Justice Clarence Thomas’s clerk network. Whether or not you agree with the (typically very conservative) views of Justice Thomas or his clerks, the way that they look out for each other can’t be denied.

• It’s an excellent credential. Clerkships are hard to get, so they’re prestigious, and the experience you obtain while clerking is valuable as well. It’s especially helpful if you might want to become a judge someday; it’s no coincidence that seven out of nine Supreme Court justices are former law clerks (and six are former SCOTUS clerks specifically). It’s also useful if you want to become a federal prosecutor or a law professor (although it’s less useful than it used to be in academic job searches; publications and Ph.D.s have become more important over the past decade, while clerkships—even SCOTUS clerkships—have declined). [UPDATE (2/1/2024, 3:01 p.m.): For more on the evolution of the academic job market, see Orin Kerr’s post over at the Volokh Conspiracy, Thoughts on the Declining Numbers of SCOTUS Clerks Becoming Law Professors (discussing “the increasing separateness of the law clerk and law professor track”).]

Unfortunately, not everyone has a great clerkship experience—as reflected in the valuable work of Aliza Shatzman and the Legal Accountability Project (LAP), whose mission is “to ensure that law clerks have positive clerkship experiences, while extending support and resources to those who do not.”

So it’s important to do your homework when deciding which judges to apply to. A judge might be a good jurist, but they might not be a good boss. Or they might not be a good boss for you, perhaps because of personality conflicts, ideological disagreements, or conflicting approaches to work.

One great resource is LAP’s Clerkships Database, where you can read surveys by former law clerks about their experiences clerking for specific judges. Hopefully your law school participates (and if they don’t, maybe see if you can get them to join). To my many readers who completed clerkships, please consider filling out a post-clerkship survey for LAP, over at survey.legalaccountabilityproject.org.

Student #2: You don’t need to convince me about the value of clerking. I devoured your novel, Supreme Ambitions, the summer before starting law school, and I’ve wanted to clerk ever since. What do you think about doing multiple clerkships?

Back in my day, doing multiple clerkships wasn’t really a thing, but today it’s quite common. If you do plan to complete multiple clerkships, I’d recommend clerking for different types of courts—e.g., a circuit court and a district court, or a federal court and a state supreme court. They’ll be different experiences—so you’ll learn different things from each, and enjoy them in different ways.

For folks dead set on clerking for the U.S. Supreme Court—and with SCOTUS clerkship bonuses now at $500,000, the appeal is only growing—clerking for two circuit judges is becoming increasingly popular. Some applicants who get hired for an initial clerkship with a non-feeder will follow it up with a feeder-judge clerkship, and some will even clerk for two feeder judges. If you look at the 38 clerks who are currently at the Court, 12 of them—almost a third—clerked for two circuit judges.

So does that mean you should do two (or more) clerkships if you pine for a Supreme Court clerkship? Even though I was obsessed with landing a SCOTUS clerkship as a law student and young lawyer, I don’t know that I’d do two circuit clerkships just to increase the odds of making it to One First Street. There’s a lot of randomness, or at least idiosyncrasy, in clerk hiring, so clerking for two feeders is no guarantee. If you want to do two circuit clerkships because you think you’d enjoy both experiences, or you want to live in a different part or parts of the country for a year or two, that’s fine. But I don’t know that I’d do it just for the marginal increase in SCOTUS prospects.

Student #3: I’m attracted to the prestige and credential value of clerkship, and it sounds like a fun and interesting thing to do for a year. But I’m pretty sure I want to be a transactional lawyer. Does it make sense for me to clerk?

It’s not unheard of for corporate associates to clerk. When I started at Wachtell Lipton, pretty much all of us were coming off clerkships, even if only a minority of us went into litigation. And many of Wachtell’s top M&A lawyers are former law clerks—such as executive committee co-chair Andy Nussbaum, who clerked for then-Judge Ruth Bader Ginsburg (D.C. Cir.) and Justice Antonin Scalia.

But to be honest, the clerkship experience is much less valuable if you’re not going into litigation. And as noted by legal recruiter Abby Gordon of Lateral Link in this handy flowchart, not all firms will give you credit for your clerkship year if you don’t go into litigation (for purposes of partnership promotion, compensation, or both—check with your firm for their specific policy).

If you’re planning to go into transactional work but really want to clerk, maybe look into clerking for the Delaware Court of Chancery. It’s the nation’s foremost tribunal for corporate-law disputes, so more of what you learn during that clerkship will be relevant to your post-clerkship career. (But if your goal in life is to work for Elon Musk, maybe steer clear of Delaware Chancery; he’s not very happy with that court right now—for billions of reasons.)

So there you have it: my advice to three hypothetical students about clerking. These are just my personal opinions, and many of my readers who are former clerks—or current clerks, or judges—might have different views.

If you are such a reader, please feel free to offer your own views about the advisability of clerking in the comments to this post. And if you have a question for a future installment of Asked and Answered, please email it to me at davidlat@substack.com, subject line “Asked and Answered: [your topic].” Or connect with me on LinkedIn and send it to me there. Thanks!

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1. Many of you might enjoy the minibar ethics question I posed to Randy Cohen (and you can share your opinions in the comments). In case you’re wondering, this was back in 2010, and the minibar took the form of a basket of goodies; it wasn’t the kind of minibar with a sensor, which could detect the removal and replacement of an item. And in case you’re curious about the hotel, it was the Claremont in Berkeley—where much of Amy Chua’s riveting novel, The Golden Gate, takes place.