Statute of Frogs

As you can see, I’m not dead.  Just invisible for a while.  But I’ve come back to make this observation:  an inordinate percentage of the important cases dealing with personal injury and negligence involve ski resorts.¹  That alone is enough to make one wonder whether hurling oneself down an icy mountain is a good idea.

1. That would presumably not be true if I were researching the law of, say, Florida. [↩]

If all goes well, your packet will generate some amount of interest from judges.  Assuming judges follow the hiring rules (and most — but not all — of them do), they can offer interviews starting at noon on the Monday after applications are mailed.  (That’s September 8 this year.)  As exciting as the calls can be, if you get more than one interview, you want to be crafty (or at least intentional) about how you set up your interviews.  My recommendation is to let your phone go to voicemail and not return any calls for the first hour or so. ¹  Although some judges will call later than that, by then you should have some idea of whether you’re trying to schedule multiple interviews or not. ²  Don’t wait too long, though, because schedules will start to fill up.  I would aim to return all the calls by 3:00 or so on the day you get called.

Once you have some sense of the lay of the land, you can start returning calls.  If you have multiple interviews to schedule, do whatever you can to put the judges you most want early in the interview period.  In fact, as much as possible, try and interview with the judges in order of your preference. ³  What you’re trying to avoid is a situation where you have an offer from a less preferred judge and need to buy time before your interview with your more preferred judge.  While not many judges give exploding offers,⁴ they also don’t like to wait.  It’s much easier to buy a few hours to check in with a judge you’ve already interviewed with than a few days to get to an interview that’s coming up.

Of course, if you’re scheduling in multiple cities, this is all more complicated.  That’s another good reason to wait a bit before making calls.  It’s good to know whether you’re trying to schedule multiple interviews in any one city before you lock in the schedule.  It’s sometimes possible to change your scheduled time after the fact, but not always, and the judges sometimes find that annoying.

1. I was actually in class that day, so it was easy. [↩]
2. Don’t be too discouraged if you don’t get lots of call or even if you don’t get any calls.  Lots of judges wait for days or even weeks to get around to hiring. [↩]
3. The clear implication here is that, by the time you’re taking these calls, you should know what your preferences are. [↩]
4. By exploding, I mean that they expect a response before you leave the interview. [↩]

My apologies for falling down on the job of bringing frog-related news.  Last year, after a story on NPR, I wrote about Amphibian Ark.  But I didn’t realize, until A showed me an article in Scientific American, that they had declared 2008 the Year of the Frog.  Unfortunately, we’ve all missed the online auction.  But there are still almost five months of frog-related celebrations to engage in.  So hop to it.¹

1. Sorry.  That was unconscionable.  But I had to. [↩]

There’s not all that much to say about your resume. After all, you’ve only done the things you’ve done. The one thing to keep in mind, however, is that your resume is the most personal thing in your packet. While your recommendations, your transcript, and your writing sample demonstrate that you’re qualified for the job, your resume is the one thing that distinguishes you as a human being from the other people who are also qualified. So it should make you look as interesting as possible.

Once they’ve separated out the people who are qualified¹, the next criterion is generally “who do I want to spend the next year (or two) working closely with.” To put this in perspective, there are a grand total of five people in my judge’s chambers, including him. So it matters quite a lot that none of them are boring.

To that end, your resume has two jobs: to show any experience beyond the usual law school stuff that’s going to make you better at the job, and to demonstrate the ways in which you’re likely to be an interesting person to have in chambers. So find a way to include musical, artistic, athletic, or other activities that are important to you. If you’ve traveled extensively, get that in there somewhere. If you spent a summer in college raising alpacas, that’s almost certainly more important than the summer you spent working at the mall, even if the alpacas didn’t pay nearly as well. Also, if there are things you want to be asked about in an interview, make sure they’re visible. The resume is also the place most of the interview conversation is going to come from.

My hope is to get a couple more posts into this series: one about planning for interviews and one about actually doing them. They’ll be along before the relevant time. For those of you who are assembling packets to send to judges now, best of luck.

1. And, of course, every judge will have slightly different opinions about who those people are. [↩]

Divine angst opined the other day that the cover letter on your clerkship application is just another chance to screw up. In most cases, I have to agree. With a few exceptions, the cover letter can be very short and to the point:

• I’m froggie, a [2L, 3L, overworked associate] at [law school, law firm]
• I’m interested in a clerkship in your chambers¹
• Enclosed are my resume, transcript, and writing sample
• Recommendations from persons A, B, and C are [enclosed, coming under separate cover]
• If you need more information or would like to schedule an interview, you can reach me at phone number / e-mail

End of story.

There’s no need to re-hash your resume by pointing out that you were on Law Review or were number 22 in your class or any of that stuff. Even more importantly, comments like “I think my [collection of skills, interest in the law, previous work experience] make me uniquely suited to [be a successful clerk in your chambers, add value, make your decisions even better than they already are]” don’t help. First, no one is “uniquely qualified” for this job. ² Second, if the judge didn’t think clerks would help her operate more effectively, she wouldn’t hire them. These kinds of statements just sound pretentious and ring hollow. Let the rest of your application speak for itself.

Similarly, there’s no need to explain that being Judge X’s clerk would be a great learning experience for you. It’s true, but it’s true for everyone. And the judge already knows it.

The only other positive purpose that a cover letter serves is to communicate important information that doesn’t have a logical place anywhere else in your packet. The most common one of these is if there is a reason, not clear from your resume, that you want to clerk in a particular jurisdiction. If you’re a Harvard grad and you’re applying only in the Western District of Louisiana because your significant other has taken a job in Lake Charles, that’s useful information. Also, if you’re applying to a judge who hires two-year clerks and you specifically want to clerk for two years, that’s worth mentioning. Beyond that, keep it short and sweet.

1. Even this one is not strictly necessary, but the letter reads a little funny without it. [↩]
2. I have never seen an application from someone who’s actually been a judge before. That might make you “uniquely qualified.” But that’s about it. [↩]

There’s a bit of discussion at Concurring Opinions and The Volokh Conspiracy about the relative merits of teaching from unedited cases as opposed to a casebook that provides edited versions of them.  I took one class in law school where we read unedited (mostly SCOTUS) cases and it was (not coincidentally) the best class I took during my three years.

Casebooks have their inherent advantages.  If one is trying to learn the basics of a broad area of law, it’s much more useful to read hundreds of cases that have been distilled to their essence than to read a few dozen in their entirety.  But at some point, lawyers have to learn how to quickly process cases in their raw form.  This is just one of many ways in which law school often fails to prepare students well for the practice of law.  It was in this class that I really learned how to work with complete cases and make sense of them, a skill I use every day in my clerkship.¹

Another aspect of this issue is that casebooks teach students to look for the single nugget of wisdom in a case.  We get the idea that a case “stands for” a particular legal proposition.  While that is often true in practice, treating all cases that way removes any sense of the subtlety that often exists.  I see this lack of subtlety in briefs all the time.  Lawyers will distill a case down to a particular legal principle, but will fail to address the factual differences between that case and their own.  Alternatively, they will identify the broad principle in the case, but fail to see how that principle fits into the concerns that the judges raised in the rest of the opinion.

Finally, often one of the parts that gets cut out of cases in edited form is the review of the existing case law that judges invariably embark on.  It is interesting — and valuable — to see the subtle ways in which courts distort their own precedents in order to reach a desirable result in later cases.  That is often lost in the casebook view of an area of the law.

Obviously, these are not skills that always need to be taught in the classroom.  Legal research assignments, journal comments, and other activities will help students develop those skills.  But I, for one, am grateful to have had the experience of dealing with the raw cases in a classroom context.  I think I’m a better lawyer for it.

1. Well…maybe not every day.  But really often. [↩]

Besides choosing recommenders, the other important choice about your application itself is what to use as a writing sample. Like the recommendations, this won’t help you make the first cut,¹ but it’s one of your best opportunities to differentiate yourself.

Obviously, your writing sample should demonstrate your ability to write well. But it’s also your only chance to directly show your ability to wrestle with legal concepts.

It all turned out fine² in the end, but this is one area where I really didn’t help myself. I submitted my law review comment which, although it was well-written was both too long and not doctrinal enough to be to my best advantage.

At least for the district court, what you most want to show is your ability to unpack a complex area of the law and apply it to some facts.³ Among the sorts of written work law students tend to have lying around their hard drives,⁴ moot court briefs may well be your best bet. If you’ve got a memo that you wrote for a professor or lawyer you worked with,⁵ that may be good, too.  A section of a comment or seminar paper may work, but be sure it’s one that gets down and dirty with a specific statutes or cases.  That’s the skill you’re trying to show a district court judge.

Also, shorter (within reason) is better.  If your best work is long, consider cutting it down by reducing it to a single issue.  Very few judges are going to read even 10 pages of what you give them (unless they’re already really interested) and you want to make sure they read the best part.

Finally, if you’ve got someone who’s advising you through the process, have them read the sample and comment on it.  There’s no reason you can’t take something you used for a class and spruce it up for submission.  As long as the work is yours,⁶ there’s no reason you can’t get advice on how to improve it.⁷

1. If a judge gets 200-300 applications, you can imagine that there’s little attention paid to the writing sample in the first read-through. [↩]
2. Actually, it turned out really well. [↩]
3. For appellate courts, whose work more academic by nature, a comment may work better. [↩]
4. I wouldn’t advocate writing something new just for this purpose unless you really don’t have anything you’re happy with. [↩]
5. Get permission before using it, of course. [↩]
6. This eliminates the record version any brief or opinion you drafted for a judge or lawyer you might have worked for that your employer later edited and filed. [↩]
7. I admit the line here is sometimes less than obvious.  But I look on anything that was actually filed and is being presented as the writing sample of a law student with suspicion.  For me, the dividing line is who made the final decision about what was going to be included. [↩]

By the time you’re applying for clerkships, your resumé and transcript are pretty much what they are. So, while they are really important to your application, they’re very hard to change late in the game. So the two places to concentrate efforts are recommendations and writing sample.

In our chambers, and I suspect in most of them, the first cut is going to be based on your grades and your resumé. But once you’ve made the first cut, the most important thing is having something that makes your application stand out from the big pile.¹ That could be an entry in your resumé² or something else in your packet, but it’s important that there be something. There are a tremendous number of well-qualified applicants and catching the reader’s³ interest is vital. Remember that, in addition to picking an employee, the judge is picking someone he or she will have to work closely with for a year. No one likes to work with boring people. So be interesting.

One way to do that is with a particularly good recommendation. At least 90% of the recommendations I’ve seen are of the form “X was a strong participant in my class and got one of the highest grades on the final exam.” While that’s all well and good, it doesn’t really say anything that isn’t already on your transcript. And it doesn’t separate you from the pack.

The reason most recommendations are like this, of course, is that professors tend not to know most of their students very well. Even if the professor meets with you before writing the recommendation, mostly she’ll just be rehashing information that is included elsewhere in your packet. So, rather than picking the professors in whose classes you got the best grades, I would pick the professors who know the most about you. If you’ve worked closely with a professor as a research assistant or in a seminar, that’s ideal. Or maybe the faculty member who runs a clinic you’ve participated in knows your work well. Unless that professor can say something meaningful about you, there’s not much added value in a rec from a really famous professor. A generic recommendation doesn’t get much added cachet just because it’s written by Erwin Chemerinsky.

It’s clear when reading a recommendation whether the writer really “knows” this student. If there’s no professor who can write knowledgeably about your work, consider someone you worked with over a summer. While it’s probably important to have at least two recs from faculty, you could range a little wider for a third rec. Recs from other judges (if you’ve interned or some such) tend to be brief and perfunctory, so that’s not a great option unless you’re sure the judge will really talk about your work.⁴

The bottom line is that, as much as possible, you want recommenders who can talk in some detail about the quality of your written work and your legal analysis skills and who can say something about you that isn’t obvious from the rest of the paper in your packet. It’s hard for an 80-person socratic class to provide that, no matter how well you did on the exam.

1. I’m sure there are judges for whom grades are the most important factor throughout the process, but for many, once you’ve crossed the grades threshold, other factors start to take precedence. [↩]
2. If you spent a summer do something really interesting, that should be prominent even if it’s not legally-oriented. [↩]
3. While the judge, of course, makes the final choice, a lot of the process may be done by the clerks and/or the secretary. [↩]
4. In a lot of chamber with interns, the interns work mostly with the clerks, not the judge, so the judge is often not in a position to say much about their work. [↩]

Butterflyfish sent an e-mail asking about clerkship applications. Since I’ve given almost all the advice I have in public,¹ I figured I’d just post my thoughts here. I’ve been through this three times now, once for my own applications and twice on the “inside,” so I’ll probably end up spreading this over a couple of posts.

The first thing to know (and that people don’t seem to talk about very much) is that clerkships are very different from each other. Besides the obvious differences between state or federal courts and trial or appellate courts, judges structure their chambers very differently. In some chambers, there’s lots of interaction between the judge and the clerks. On the other hand, I know of judges who communicate with their clerks only in writing. In some chambers, there’s lots of back and forth during the editing process; in others, once the clerk turns over a draft, that’s probably the last she’ll see of that opinion. Some judges have their clerks work on every order; some only have their clerks draft opinions. And so on. So get as much information as you can about how a particular judge’s chambers operate.²

The second thing is that, with very few exceptions,³ any clerkship is a fabulous experience and is vastly better than not doing one, particularly if you want to litigate for a living.

So while I definitely recommend getting as much information as you can, I wouldn’t turn down a clerkship opportunity lightly. ⁴ Even if there are judges you’d rather work for, don’t miss the opportunity to do a clerkship without a really good reason.

Because the process is so unpredictable, it’s hard to know what your chances are of getting a clerkship. My best advice is to find a professor you trust, ideally one who clerked where you want to clerk since the “markets” vary a great deal from court to court, and ask that person for an honest assessment of your situation. ⁵ It’s difficult to decide how broadly and where to apply. Because everyone’s situation is a little different, it’s really helpful to have some personal advice. I also solicited advice from other professors and from practicing attorneys about which judges had particularly good or bad reputations on the courts I was interested in. Once the process is actually going on, it can move really fast. So the more information you have in advance about the judges you’re applying to (and your chances of getting an offer) the better prepared you are to react when something happens. There’s no harm in applying broadly, but the more you know about your preferences (either geographically or for particular judges) the less likely you are to get crossed up later.

1. Where I wasn’t even anonymous-in-theory [↩]
2. In most cases, there’s really no way to do this before the interview. But if you have access to former clerks who are alumni of your law school or attorneys at your summer job, get as much information as you can out of them. [↩]
3. It’s often hard to get good information on who they are, but there are a few judges who are very unpleasant to work for. [↩]
4. Your school career office may tell you turning down clerkship offers is just not done and that you have to accept any offer you get. While it’s true that it’s pretty rare (and that judges take it pretty hard), in the end it’s your life and you should do what you think is the right thing for you. [↩]
5. If there’s a clerkship committee at your law school, they may also be able to give you advice. But bear in mind that their priority is getting as many students as possible into “good” clerkships, not necessarily getting you, personally, into the one you want. That said, they can be valuable resources. [↩]

The Supreme Court issued its opinion in Baze v. Rees today.¹ Although there are several opinions (most of which I haven’t read) the lead opinion, written by Chief Justice Roberts for himself and Justices Alito and Kennedy finds, without a trace of irony, that the relevant standard for determining whether an execution method is constitutional or not is whether there is a “substantial risk of serious harm.” Hence the title of this post.

1. That’s the case the challenged constitutionality of the lethal injection protocol used by nearly all the states that currently have the death penalty. [↩]

One of great advantages of the two-year clerkship is that I’m around long enough to see some of my cases argued at the Court of Appeals.  There’s been a run on them recently.  With the one on Thursday, I’ll go to four in the span of a month.  I’ve been to appellate arguments before, but it’s completely different when you know the cases intimately.  For one thing, it’s a lot harder to sit still and watch.  There were several times when I winced as the appellee — who by definition is the litigant we found for in the district court — made (or failed to make) arguments that I knew wouldn’t fly.  I wanted to go up and pass notes, but that would, I decided, have been inappropriate.  And in one case, I’m concerned that the Court of Appeals just doesn’t understand what we did.¹  Still, it’s a lot of fun to see the arguments, and at least on two of the cases, I’m pretty sure our opinion is safe.  Presumably, I’ll be gone by the time the opinions actually come out, but I’m sure I’ll hear about the results.

1. This is, of course, my fault to some degree.  I’d really like to go back to that opinion and add a couple paragraphs on one particular issue, just to make the whole thing a bit clearer. [↩]

We’re in the midst of the most interesting presidential election in my lifetime. My co-clerk and I spend at least some piece of every day talking about it. And it’s the major subject of my daily online reading.

It’s also an election about which I have strong feelings.¹ And there’s so much I could say about it here. But the ethical rules for Law Clerks prevent me from publicly expressing an opinion.² I understand the need to avoid any appearance of impropriety, but it’s extremely frustrating not to be able to blog about something I spend so much of my time thinking and talking about.³

1. I admit you might be hard-pressed to find an election about which I don’t have strong feelings, but that’s not the point. [↩]
2. I also can’t give money. [↩]
3. I understand that, since this blog is nominally anonymous, (that’s a really strange turn of phrase, but I rather like it) I wouldn’t exactly be expressing a public opinion. Nevertheless, talking about the election online would be at best imprudent and at worst really dumb. [↩]

From the intersection of federal law and high-energy particle physics comes this story:

Walter L. Wagner and Luis Sancho have filed a lawsuit in Federal District Court in Hawaii seeking to enjoin a team of physicists from firing up the Large Hadron Collider this summer. Wagner and Sancho claim that the scientists at CERN have not adequately examined that possibility that experiments at the LHC might create a black hole that will swallow the earth or might release a “strangelet,”¹ which might convert the entire planet to strange matter.² I would be more inclined to worry about this if Wagner and Sancho had some serious scientific chops. But they don’t. Wagner studied physics at Berkeley, but has a doctorate in law. Sancho “describes himself as an author and researcher on time theory.” Stephen Hawking is apparently unworried. So is Nima Arkani-Hamed, a particle theorist at the Institute for Advanced Study³ in Princeton. He noted, however, that particle physics is an inherently unpredictable activity. There is at least an outside chance that “the Large Hadron Collider might make dragons that might eat us up.”

Unfortunately, it seems unlikely that the federal courts will ever get to pass on this. Because the District of Hawaii almost certainly lacks personal jurisdiction over the scientists at CERN, it can’t compel them to appear. Wagner — who is a Doctor of Laws after all — presumably knows this but “to save expenses,” he chose to sue in his home state of Hawaii rather than bringing suit in France or Switzerland. The money he saved will be cold comfort if the world ends this summer, but to each his own.

1. How do I get a job as the guy who gets to name subatomic particles? [↩]
2. Some of us might argue that much of the Earth is already strange matter, but I suppose that’s a term of art among particle physicists. [↩]
3. This is a great name for an research center. Perhaps next we’ll have the “Center for Knowledge” or the “Really Smart People Group.” [↩]

From the “Only in America” department:

Never quite sure what to say around the holiday to your incarcerated friends and family members?  Help is on the way.  Three Squares Greetings has a line a greeting cards “For Those Who Can’t Come Home.”  You can, for example, buy a birthday card (complete with barbed wire confetti on the front) that says:

It’s your birthday and I know that you’d rather be almost anywhere else right now. Hopefully, one year older will really mean one year wiser for you. Take care.

They also carry a card that says “I’m sorry to hear about your arrest” for the innocent-until-proven-guilty set.  My favorite, though is the Christmas card that says:

You had the choice to be “naughty or nice.” And you chose . . . . . . .

Oh well, now you have to do your time. But, Christmas won’t be the same without you here. Stay safe. Merry Christmas

The CNN article on the company is aptly (if snarkily) titled “Greeting cards target captive audience.”

These criminals have so much to learn…