INTRODUCTION
You want to clerk? Great. How will you avoid judges who harass their clerks? Some students say, “I’d ask someone.” But who are you going to ask? Clerkship directors tell students to “do their research.” But what research are you going to do when so little information about judges is available on an equitable basis? I posed this question to Columbia Law students on November 17, 2022, at an event with my nonprofit, The Legal Accountability Project (LAP).
I launched LAP in late spring 2022 to correct both the lack of transparency in the clerkship application process and the lack of accountability for judges who mistreat their clerks—injustices that I personally experienced as a law student and law clerk. I now speak with law students and administrators to share LAP’s mission of ensuring positive clerkship experiences while extending support and resources to law clerks who do not have positive experiences.
I do not dissuade anyone from clerking
—in fact, clerking is an excellent option for many new attorneys. But both law students and law schools should prioritize positive clerkship experiences over the prestige of clerkships or number of clerkship placements, period—a balance that some law schools have historically struggled to strike.
Furthermore, clerkship applicants must be intentional about identifying judges who create positive work environments. Under the current clerkship regime, many law students lack access to critical information. Better, more transparent processes are necessary.
A judicial clerkship is often described as a “gold star” or necessary checkbox for one’s next legal job.
Whether a young attorney aspires to be a prosecutor, public defender, law firm partner, professor, or even a judge, most of their legal role models have probably clerked.
Undoubtedly, these mentors encourage their mentees to follow in their footsteps and clerk as well.
When I was a student (and aspiring homicide prosecutor) at Washington University in St. Louis School of Law, the messaging at my law school regarding clerkships—like that at most law schools—was uniformly positive.
I was told that I would develop a lifelong mentor–mentee relationship with the judge for whom I clerked and that the position would confer only professional benefits.
No one talked about the potential downsides of clerking—when judges abuse their positions of power and mistreat their clerks.
Back when I was a law clerk during the 2019 term, I did not realize the enormous, unchecked power and influence that a judge could exert over my life, career, and reputation, even long after the clerkship had ended.
Unfortunately, up until recently, there was no easy, equitable way for law students to avoid judges who mistreat their clerks, nor to identify judges who are respectful bosses and create positive work environments.
Internal law school infrastructures are not set up to collect and disseminate this information. to students considering clerkships.
LAP now offers concrete solutions to finally address these challenges.
Information about misbehaving judges often does not get shared by the people who have it—professors, deans, clerkship directors, and mistreated clerks—with the people who need it: students applying for clerkships.
The informal, secretive, fear-infused process of backdoor information-sharing between holders of information and prospective clerks is often referred to as the clerkships “whisper network.”
But clerk-to-student or administrator-to-student information-sharing is inefficient at best and ineffective at worst.
Too many graduating law students each year unwittingly enter hostile work environments because they do not have the information they need before applying.
This is no way to treat the next generation of attorneys. The status quo is unacceptable. Law students and recent alumni should be armed with the information they need before applying so they can make informed decisions about this important first step in their careers.
This Piece explains the concept of the clerkships whisper network—what it is and why it’s broken. Law schools’ misaligned incentives feed into a clerkships-industrial complex and a competition between some law schools to send as many students into clerkships as possible, rather than fostering a desire to ensure that every student who wants to clerk can identify a positive work environment. There are also structural deficiencies in the legal community that discourage law clerk reporting—either formally to the judiciary or informally to law schools. Law clerks who experienced mistreatment are notoriously unwilling to report back to their alma maters, thereby enabling some law school administrators to disclaim responsibility for—or discount entirely—the scope of this problem in judicial workplaces.
Still other schools simply do not have the infrastructure and resources to collect and disseminate information about alumni’s clerkship experiences to students through formal channels. Law students considering clerkships face a dangerous system in which those with information about which judges mistreat their clerks may be incentivized not to share that information with prospective clerks.
Part I explains what a clerkship is; why they are so coveted; the issues that can arise within judicial chambers; and law clerks’ limited options for redress. It also explores why the structure and nature of clerkships make these positions particularly conducive to workplace issues, thereby underscoring the importance of ensuring that fewer clerks enter unsafe work environments in the first place. Part II explains the concept of the “clerkships whisper network” and why structures in the legal community preclude information-sharing. Part III critiques law schools’ existing clerkship resources. Part IV explores the scope of judicial misconduct in state and federal courts, highlighting several former law clerks’ experiences to underscore these broken systems and explain why they must change. Part V explains what LAP is doing to increase transparency in the opaque clerkship application process by democratizing information about judges. This Piece concludes with a call to action: Law students should demand change now.
I. CLERKSHIPS: THE BEST OF CIRCUMSTANCES, THE WORST OF CIRCUMSTANCES
Thousands of law students from more than a hundred law schools launch their legal careers with clerkships each year, intending to develop lifelong mentor–mentee relationships with the judges for whom they clerk. The potential downsides to clerking are rarely discussed. This Part explains what clerkships are and why they are so sought after. It then discusses what can go wrong during a clerkship and the limited options for redress.
A. What Are Judicial Clerkships, and Why Do Students Want Them So Badly?
A judicial clerkship is typically a term-limited position in which a new attorney—often fresh out of law school, or perhaps after gaining one or two years of work experience
—spends a year or two working for and learning from a judge.
While tasks vary based on the type of court,
level of court,
and type of judge,
most law clerks conduct research; write orders, opinions, and bench memos; and accompany the judge to court.
Importantly, law clerks assist with judicial decisionmaking, rendering clerkships valuable both for the clerks soaking up information and for their future employers, who benefit from gaining insight into the judges before whom they appear.
Law clerks who aspire to become trial attorneys receive a crash course in trial lawyering from the attorneys who appear before the court.
The legal community places an enormous premium on judicial clerkships.
They are considered a necessary first step for certain legal jobs.
Most government jobs require one year of work experience—a euphemism for a clerkship expectation.
Law firms offer large bonuses to those who clerked.
Most professors in the legal academy have done at least one clerkship—and they create pipelines to judges for the law students they teach.
Clerkships are typically described in the rosiest of terms: fostering lifelong mentor–mentee,
or even quasi-familial,
relationships between judges and clerks and creating pathways to future career success.
During each clerkship application cycle, much ink is spilled to highlight the benefits of clerking.
Law schools routinely bring alumni to campus to discuss their positive clerkship experiences.
The messaging around clerkships on law school campuses is nearly always positive.
Few former clerks are willing to speak openly and honestly about less-than-positive experiences.
The legal community has created a culture of silence and fear around the judiciary: one of deifying judges and disbelieving law clerks.
Law clerks are actively dissuaded from sharing negative clerkship experiences, fearing reputational harm that will hinder their ability to secure their next jobs as well as retaliation by the judges who mistreated them.
Judges are venerated in the legal community, starting in classrooms during the first year of law school.
Some attorneys, particularly those in positions of prestige and influence, confer this power upon judges.
Judges seek deference not just in their rulings but in all things.
Perhaps one’s judicial philosophy is not a good indicator of how they treat their employees behind closed doors.
Yet the legal community lionizes judges rather than considering them as government employers running small workplaces with all the pursuant fallibilities.
B. What Can Go Wrong During a Clerkship?
More judges mistreat their law clerks than the legal community would care to admit.
There is an enormous power disparity between fresh-out-of-law-school clerks in their first legal jobs, who depend on their bosses for references and career advancement, and often-life-tenured judges,
the most powerful members of the profession.
A judicial chambers’s structure is both isolated and hierarchical: Two to four clerks, perhaps a judicial assistant, and a powerful judge work long hours behind locked doors in stressful circumstances.
There is nowhere for a mistreated law clerk to go to seek assistance.
Each judge’s chambers is its own fiefdom.
Other judges who witness or hear about a colleague’s misconduct often take the position, “Not my chambers, not my business.”
These features make clerkships particularly conducive to workplace mistreatment in the worst of circumstances.
C. What Is Mistreatment, and How Pervasive Is It?
Mistreatment covers everything from rude, sexist, or racist comments;
to yelling or throwing things in chambers;
to otherwise legally actionable gender discrimination and harassment, were the judiciary not exempt from Title VII of the Civil Rights Act.
Anecdotally, these problematic behaviors are pervasive and unaddressed in both the state and federal courts.
The dearth of data in this space allows judges to get away with misconduct and enables judiciary leadership to disclaim responsibility for problematic behaviors within their ranks.
Until recently, the federal judiciary had been unwilling to even conduct a workplace culture assessment to survey judiciary employees about workplace climate.
Even now, judiciary leadership, including the Administrative Office of the U.S. Courts
and the Judicial Conference of the United States,
have not committed to publicly reporting the results of their planned workplace assessment—an enormous red flag.
Some individual circuits conduct workplace assessments, intended for private policymaking rather than public consumption. A 2021 D.C. Circuit workplace assessment revealed that fifty-seven judiciary employees personally experienced harassment or retaliation and 134 witnessed or heard about mistreatment.
These data suggest a significant problem. Yet there is an enormous data mismatch between those results and the fact that very few law clerks file complaints
under the Judicial Conduct and Disability Act,
the formal judicial complaint process, each year. Further, the judiciary does not report data on employees’ use of the available Employee Dispute Resolution (EDR) Plan—another gap in potentially instructive information.
The dearth of law clerk complaints does not mean that judges do not mistreat their clerks; rather, it suggests insufficient avenues for safely reporting mistreatment.
D. What Actions Can Law Clerks Take if They Are Mistreated?
Troublingly, the federal judiciary is exempt from Title VII of the Civil Rights Act of 1964.
Law clerks have no legal recourse if they are mistreated by judges.
The existing option to address wrongful conduct in the judicial workplace is EDR.
This is a toothless process that is neither impartial nor confidential, since other judges in the courthouse where the complainant law clerk and misbehaving judge work are tasked with investigating and potentially disciplining their judiciary colleagues.
Internal self-enforcement leads to a lack of discipline for judges who mistreat their clerks.
II. THE CLERKSHIP SYSTEM IS BROKEN
Due to these troubling features about the structure and nature of clerkships, it is particularly important that law students identify judges who will respect them, create positive work environments, and, ideally, support them throughout their careers.
Unfortunately, there is no easy, equitable way for students or recent alumni considering clerkships to avoid judges with a history of misconduct.
This Part explores some of the ways that information about misbehaving judges is shared—or not shared—with the clerkship applicants who need it.
It first critiques the standard law school advice—that students should “do their research” about judges prior to applying—given the lack of accessible information about judges. It then explains the concept of the “clerkships whisper network,” describes who possesses information about judges who mistreat their clerks, and discusses why both law schools and former clerks are incentivized, under the current regime, not to share this information with prospective clerks.
A. “Do Your Research”
The current mechanisms for students to identify judges to apply to—and those to avoid—are broken. Typically, law students
create lengthy lists of judges they plan to apply to.
They may share these lists with law school officials, professor mentors, former employers, or law clerks; they may not.
The reasons why students do not share their lists include lack of time (the clerkship application process is enormously time-consuming) and distrust that their institutions will share negative information about judges with them, even if they ask for it directly.
Law school administrators tell students to “do their research” about judges prior to applying—or at least prior to interviewing.
But the processes by which law students frantically seek information about judges could hardly be characterized as “research.”
Students may reach out to law clerk alumni from their law schools if their schools maintain and share contact information with students and if alumni have previously clerked for the judges to whom they are applying.
These are enormous “ifs.”
The majority of students cannot rely on alumni networks.
Numerous students describe “researching” online anonymous blogs for information about judges who mistreat their clerks.
Some schools conduct post-clerkship surveys of their alumni, which may be stored in searchable internal law school databases.
However, there are few negative reports about judges.
This is because (1) law schools ask questions not intended to elucidate information about mistreatment;
(2) they send the message that negative reports are not welcome;
(3) they actively dissuade students from writing negative reports;
or (4) law clerks fear retaliation or reputational harm, so they choose not to write reports at all.
No school has a monopoly on information about judges. Every school has a ceiling on the number of judges they can keep track of. Tracking efforts depend on whom alumni have clerked for in the past. The existing “resources” for students to use to avoid judges who mistreat clerks are outrageously inadequate. Since this prestigious first legal job has outsized influence over young attorneys’ future career prospects, a better system is necessary.
Furthermore, law schools may face misaligned incentives that preclude them from sharing unvarnished information with students about judges who mistreat their clerks.
B. What Is the “Clerkships Whisper Network”?
The clerkships whisper network is the backdoor, secretive method of information-sharing or “whispering” about mistreatment.
Those with information about judges who mistreat their clerks—either current or former clerks speaking from personal experience
or law school administrators
—may, but do not always, share information with prospective applicants.
Law clerks considering whether to report their negative experience seek anonymity, worrying about reputational harm in the legal community and retaliation by judges.
Law clerks “whisper” because they have been taught to be fearful: This pervasive terror about incurring the wrath of a judge is partially a legal-community construct.
Judges have outsized influence over their former clerks’ career advancement, even many years later.
Legal employers defer to judges’ references, not wanting to jeopardize their ability to appear before these judges in court.
One professor who advises students on clerkships explained, “After graduation, your prospective employer won’t always call your professors, even if they are listed as references—but they will call your judge.”
If a law clerk makes even a lukewarm statement about their judge, they fear the judge will give them a lukewarm reference that will destroy their career.
For these reasons, information about judges to avoid is not shared with those who need it: students.
C. Current and Former Clerks as Holders and Sharers of Information
If a student’s law school maintains a list of alumni contact information and they are applying for clerkships with judges for whom alumni have previously clerked, students may reach out to former clerks.
If this list does not exist at their law schools, they may use other networking mechanisms to seek information, such as LinkedIn,
contacting friends at other schools,
and asking mentors from summer jobs.
But the whisper network puts the onus on mistreated clerks to relive their negative clerkship experience—retraumatizing them—whenever students reach out.
Mistreated clerks are notoriously unwilling to share information, sometimes even removing themselves from law clerk alumni contact lists.
Students must either maintain their own networks or attend a school that maintains one.
The many students whose law schools lack robust networks of law clerk alumni are disadvantaged.
They may unwittingly walk into hostile work environments because they could not access critical information.
D. Law School Administrators as Holders and Sharers of Information
A law school’s clerkship director, dean of career services, or professors may maintain information about law clerk alumni’s negative experiences.
Unfortunately, law school officials thereby serve as gatekeepers of information about misbehaving judges. Since law clerk alumni often downplay or do not report back if they had negative experiences, law schools do not possess complete information about judges who mistreat their clerks.
This enables some officials both to discount the scope of the problem
and to disclaim responsibility, stating, for example: “We’re blessed to work with only good judges in [this circuit]. All our alumni have positive clerkship experiences!”
Law school officials’ “blacklists” about judges do not capture the scope of the problem either.
In fact, law clerk alumni who have faced mistreatment are notoriously unwilling to report back to their law schools.
There are several reasons for this. First, they may fear reputational harm in the legal community, especially if they are hoping to rely on someone from their law school—whether a professor or a dean—as a reference in lieu of the judge who mistreated them.
Additionally, law clerk alumni may feel shame or worry they will be judged harshly by law school officials—either that they will not be believed or that administrators will blame them.
Furthermore, mistreated clerks may report to their schools but ask that the information not be shared.
Law schools are then placed in the “challenging” position of either warning students without disclosing the alumni’s identities or not warning them at all.
Law school officials who receive negative information from students and alumni about judges “informally” via phone calls and emails have neither established mechanisms for documenting this information nor processes for ensuring that future applicants are warned.
Not all schools share information about misbehaving judges with students.
Professors and administrators often “water down” negative experiences.
Law school officials claim they must weigh what to do when they receive conflicting reports—one positive experience and one negative—and they muse about whether they should share neither or both with students.
Administrators describe negative clerkship experiences as a “poor fit” or “personality clash” between clerk and judge.
These characterizations miss the mark. Law students do not need euphemisms from those they trust to have their best interests at heart—they need the unvarnished truth. Furthermore, when professors, rather than the clerkships office, maintain this information, students are more heavily burdened to connect with the right professors prior to applying.
Law students need unadulterated information straight from the mouths, pens, or keyboards of mistreated clerks—not siloed-off half-truths filtered to law schools’ comfort levels.
III. CLERKSHIPS ARE LAW SCHOOLS’ EXPRESS PURVIEW—AND THAT’S A PROBLEM
The clerkship application process has resisted efforts at transparency, standardization, and centralization.
Every law school runs its clerkship program differently.
Some schools offer numerous resources for students considering clerkships, while some have fewer.
Generally, within a career services office, there is a private sector director, a public sector director, and at least one clerkships director or dean—someone whose sole role is to help students secure clerkships.
Many prestige-obsessed law schools are caught up in the clerkships machine—churning out cover letters and resumes, letters of recommendation, and law clerks. Some clerkship directors express that it seems extreme that law schools need several full-time staff members to help students secure clerkships.
They also suggest that understaffed clerkship teams are resistant to changes aimed at protecting law clerks from harassment not because they do not care but because they are overworked and under-resourced.
For law schools, both the raw number and the prestige of clerkships their graduates secure factor into the informal public perception of the schools.
Especially among similarly ranked schools, the robustness of a school’s clerkship program draws both the most competitive law school applicants and the best faculty members (who themselves bring with them cherished clerkship networks and relationships with judges).
Law schools’ relationships with the judiciary are enormously intertwined.
Disrupting the system is risky, even if increased transparency is in students’ best interest.
Law schools are incentivized to convince students to clerk.
They invest substantial resources in this endeavor.
The clerkship application process within law schools is both regimented and disorganized. For “nuts and bolts” questions, law schools are meticulous.
Yet when students seek assistance in identifying judges who will respect them, they describe the system as “a black box,” “confusing,” and “opaque,” and they express enormous distrust of their institutions’ motives and willingness to share information.
Law schools’ existing clerkship processes include programming, reliance on alumni networks, and post-clerkship surveys of law clerk alumni.
In addition to “nuts and bolts” clerkship programming,
law schools invite alumni back to campus to discuss their positive clerkship experiences.
They also invite judges—including judges who are alumni—to campus to build relationships with students.
Prior to LAP’s campus visits this school year, the law school messaging around clerkships was overwhelming positive, and clerkship applicants lacked a critical perspective.
Many law schools also maintain lists of alumni who clerked; these may include contact information.
Some law schools closely guard alumni lists—students must provide their lists of potential judges to clerkship directors, who make introductions to alumni.
For schools with robust alumni networks, students are tasked with substantial outreach.
The clerkship application process is time-consuming, confusing, and burdensome—and students must balance full course loads, activities, and other job applications. Students cannot engage in multiple conversations with law clerk alumni before each interview—let alone
before each application.
Furthermore, when mistreated law clerk alumni remove themselves from alumni lists, students do not benefit from their perspectives.
A handful of law schools conduct post-clerkship surveys of their law clerk alumni, similar to the post-internship surveys that many students complete.
The intent of the post-clerkship survey, however, is not to capture information about mistreatment.
Rather, it is to collect information that will help students secure clerkships.
Some schools make surveys accessible to students, either in searchable databases or in binders in the clerkships office.
However, these databases contain few negative reports about judges, for several reasons. First, the questions asked are not intended to elucidate information about mistreatment.
Some students and alumni have characterized the tone of the questions as, “You had a positive clerkship experience, right?”
In other surveys, law clerks are explicitly
instructed to reach out to a dean or clerkship director rather than report mistreatment in the survey.
Troublingly, some administrators actively dissuade law clerks from writing negative reports, suggesting it could negatively affect their reputations.
In many instances, law clerks simply write, “Contact me.”
Students are expected to understand that this is a euphemism for mistreatment.
Students deserve better from their law schools. Yet post-clerkship surveys accessible in searchable databases currently represent the gold standard for clerkship resources, and they are closely guarded by the few schools that maintain them.
Law schools generally understand that their surveys do not capture the scope of the problem.
The response rate for these surveys is sometimes low.
This is not because alumni are busy and over-surveyed, but because alumni distrust their alma maters.
Mistreated clerks, including those whose alma maters conduct post-clerkship surveys, often do not fill out their school’s survey.
They do not feel sufficiently anonymous—in fact, some schools do not allow anonymous reporting.
Many schools are small enough that anonymous reporters can be identified.
Mistreated clerks fear reputational harm in the legal community, retaliation by judges, and judgment from law school officials.
Clerks want to warn the next generation of attorneys but do not want to report back to their law schools, necessitating additional, independent reporting mechanisms.
IV. HARASSMENT IS PERVASIVE AND UNADDRESSED IN BOTH THE FEDERAL AND STATE COURTS
Gender discrimination, harassment, bullying, and retaliation are pervasive problems in both federal and state courts. This is due to structural aspects of clerking,
the lack of workplace protections,
and aspects of judiciary—and legal community—culture that encourage silence.
Unfortunately, the dearth of data makes it difficult to quantify the scope of the problem, which is the first step toward crafting effective solutions.
This Part highlights a few particularly egregious examples of judicial misconduct.
While each law clerk’s experience is unique,
common themes include (1) how the enormous power disparity between judge and clerk makes these employees vulnerable and may silence them in the face of outrageous mistreatment and (2) the challenges clerks face in seeking justice for themselves and accountability for their harassers.
Beginning in 2017, several former judiciary employees blew the whistle on devastating mistreatment in the Ninth Circuit, much of which had been an open secret for decades.
These stories are important to share because mistreated employees draw strength from hearing about similar experiences, and they may subsequently feel empowered to come forward themselves. These experiences, while not rare, are rarely shared publicly.
A. 2017: Former Ninth Circuit Judge Alex Kozinski
In 2017, several of then-Judge Kozinski’s former clerks, including Heidi Bond,
as well as other individuals who came in contact with Kozinski on the Ninth Circuit,
alleged that the judge had “subjected them to a range of inappropriate sexual conduct or comments.”
Ms. Bond described instances in which Kozinski showed her and another clerk pornography, “asking if . . . it aroused her sexually.”
Another Ninth Circuit clerk described an incident in which Kozinski approached her and began asking her about exercising while naked.
Clerks did not file complaints because they understood that not leaving with good references could destroy their careers.
They also indicated that they were not sure where to go to report the misconduct.
Additionally, Kozinski told clerks that their law clerk oaths of confidentiality prevented them from reporting misconduct.
Kozinski has since retired.
Yet he has recently attempted to reenter public life.
B. 2020: Ninth Circuit Judge Stephen Reinhardt
In February 2020, Olivia Warren, former Ninth Circuit law clerk to the late Judge Stephen R. Reinhardt, testified before the House Judiciary Committee about her harrowing experience of sexual harassment in chambers.
Ms. Warren described how, on her first day, she noticed a sine curve drawing taped above her computer with dots added to resemble breasts.
The judge asked Ms. Warren if the drawing was “accurate,” meaning whether it resembled her own breasts.
Judge Reinhardt also graded clerks based on their attractiveness.
Apparently Judge Reinhardt was enraged by the #MeToo movement, telling Ms. Warren that “the allegations of sexual harassment that came out against people like Louis C.K. and Harvey Weinstein were made by women who had initially ‘wanted it,’ and then changed their minds.”
The judge became further enraged by sexual harassment allegations against his friend Kozinski: He told Ms. Warren that he would never again hire female clerks because “women could not be trusted.”
Reflecting on harassment’s implications for pipelines in the legal profession, particularly for historically marginalized groups, Ms. Warren explained: “[O]thers who have similarly experienced harassment are leaving the profession or changing their goals in ways that deprive all of us of the valuable contributions they could have provided to the law had they not been harassed.”
C. 2021–2022: Judiciary Accountability Act
In July 2021, responding to several years’ worth of public allegations of judicial misconduct and federal judiciary leadership’s insufficient steps to address it,
the House and Senate Judiciary Committees introduced the Judiciary Accountability Act ( JAA).
The JAA would finally extend Title VII protections to judiciary employees—including law clerks and federal public defenders
—enabling them to sue their harassers and seek damages
for harm done to their careers, reputations, and future earning potential.
Additionally, the JAA would revise the definition of “judicial misconduct” in Title 28 of the U.S. Code to include discrimination and retaliation.
It would also clarify that misconduct investigations can continue even if the judge who faces allegations retires, resigns, or dies.
Furthermore, the JAA would create a Commission on Judicial Integrity
that would oversee several important initiatives, including standardizing Employee Dispute Resolution Plans,
creating a confidential reporting system,
crafting a workplace misconduct prevention policy,
and administering workplace culture assessments.
The JAA would also require the judiciary to collect and report data on workplace culture,
the outcomes of judicial complaints,
and diversity in hiring.
The lack of data in these areas has enabled some judges to get away with misconduct for far too long.
In March 2022, the House Judiciary Subcommittee on the Courts, Intellectual Property, and the Internet held a hearing on the JAA.
Former law clerk Caitlyn Clark
and former public defender Caryn Strickland
testified, and I submitted written testimony.
Ms. Clark was excelling in her clerkship with Judge C. Ashley Royal, a senior judge in the U.S. District Court for the Middle District of Georgia, when she became pregnant with her second child.
Her pregnancy angered Judge Royal, who told her that she “lacked . . . drive and intensity” and that while clerking “may be a ‘good mommy job,’ work still has to get done.”
Judge Royal ultimately ended Ms. Clark’s clerkship early—in 2021 rather than 2023.
Ms. Clark attempted to engage in Employee Dispute Resolution (EDR), which she discovered is not impartial since the judge’s colleagues were tasked with investigating and potentially disciplining him.
When EDR was unsuccessful, Ms. Clark filed a formal judicial complaint under the Judicial Conduct and Disability Act, on which she had yet to receive an update “in the over six months since” receiving receipt acknowledgment.
Ms. Clark detailed the struggles she faced while engaging in EDR.
She discovered that she had no recourse when she was mistreated by one of the most powerful members of the legal community.
Ms. Clark’s experiences with EDR and the formal judicial complaint process are not unique.
Caryn Devins Strickland
had just embarked on a promising career as an assistant federal public defender in North Carolina when she began to experience gender discrimination, harassment,
and ultimately retaliation by the male First Assistant
and male Federal Defender in her office.
The First Assistant singled out Ms. Strickland for mistreatment and stalked her.
She attempted to engage in EDR but, like Ms. Clark, discovered that EDR was neither impartial nor confidential because federal defender leadership was tasked with investigating the First Assistant.
She described how she was “stonewalled at every turn”
as she sought redress.
Like Ms. Strickland, I had recently embarked on a promising career—as a prosecutor in Washington, D.C.—when gender discrimination, harassment, and retaliation derailed my legal career. I clerked in the Superior Court of the District of Columbia (D.C. Superior Court) during the 2019–2020 term because I aspired to be a homicide prosecutor in the D.C. U.S. Attorney’s Office (USAO) and knew that D.C. Assistant U.S. Attorneys (AUSAs) appeared before Superior Court judges.
My law school instructed me to apply broadly—across the country and across the political spectrum—and to accept the first clerkship I was offered. So I did.
I wish that I had not accepted the clerkship. Beginning just weeks in, the judge for whom I clerked began to harass me and discriminate against me because of my gender. He would kick me out of the courtroom, telling me that I made him “uncomfortable” and that he “just felt more comfortable” with my male co-clerk.
He told me I was “aggressive,” “nasty,” and that I had “personality issues.”
The day I learned I passed the Bar Exam—a big day in my life—he called me into his chambers and told me, “You’re bossy. And I know bossy because my wife is bossy!”
I was devastated. I cried in the courthouse bathroom every day and cried myself to sleep each night. I wanted to be reassigned to a different judge for the remainder of the clerkship. My workplace, however, did not have an EDR Plan in place that might have enabled me to be reassigned—it was created one year after my clerkship ended.
I confided in some attorney mentors who advised me to stick it out, so I tried. After all, I needed a full year of work experience to be eligible to apply for my dream job at the D.C. USAO—the reason I accepted the clerkship in the first place.
Beginning in March 2020, I moved back to Philadelphia to stay with my parents and work remotely during the COVID-19 pandemic. The judge ignored me for six weeks—my calls, texts, and emails went unanswered—and he resorted to communicating with me through my male co-clerk. Eventually, in late April 2020, the judge called me and told me he was ending my clerkship early because I made him “uncomfortable” and “lacked respect for” him, but he “didn’t want to get into it.”
I called D.C. Courts Human Resources (HR), but they told me there was nothing they could do because “HR doesn’t regulate judges” and “judges and law clerks have a unique relationship.”
Then they asked me whether I knew I was an “at-will employee.”
I reached out to my law school for support and assistance. I learned that the judge had a history of harassing his clerks and that several law school administrators—including multiple professors and the clerkships director—knew this at the time I accepted the clerkship. They chose to withhold this information from me—probably because they wanted to improve their clerkship placement statistics.
I connected with some D.C. judges, who directed me to the local judicial conduct commission. I drafted a judicial complaint but decided to wait to file it until I had secured a new job. I worried the judge would retaliate against me.
It took me a year to get back on my feet before I finally secured my dream job in the D.C. USAO. I moved back to Washington, D.C., in summer 2021, intending to put my negative clerkship experience behind me and launch my career as a prosecutor. I was two weeks into training when I received devastating news that altered the course of my life. I was told the judge had made negative statements about me during my background investigation, that I “would not be able to obtain a security clearance,”
and that my job offer was therefore revoked.
I cried on the phone with several individuals from USAO leadership as I explained that the judge had previously agreed to provide a neutral reference if contacted. They would not tell me what the judge had said about me, afforded me no opportunity to respond, and told me the decision was final. Several days later, the USAO extended an offer to interview for a different job with the office. They revoked that offer, too, based on the judge’s same negative reference.
I was only two years into my legal career. This judge seemed to have limitless power to ruin my reputation and destroy my career. I filed a formal judicial complaint,
hired attorneys, and participated in the investigation into the now-former judge. Partway through the investigation, I learned the judge was on administrative leave, pending an investigation into other misconduct, at the time he filed the negative reference. The USAO was never alerted of those circumstances.
In January 2022, pursuant to the terms of a private settlement agreement—separate from anything the judiciary could or would do for a former clerk—the former judge issued a “clarifying statement” to the USAO, addressing some but not all of his outrageous claims about me. But the damage had been done. I was blackballed from what I thought was my dream job.
Since I first publicly shared my experience with the Subcommittee in March 2022,
I have spoken about my ordeal numerous times, including more than twenty law school campuses during the 2022–2023 academic year. My negative experience is not rare. Yet it is one that is rarely shared publicly due to the legal community’s culture of silence and fear—one of deifying judges and disbelieving law clerks. In my current role, I aim to foster honest dialogue on law school campuses and in legal circles about the full range of clerkship experiences.
I also seek to empower students to demand safer workplaces and to inspire current and former clerks who have faced mistreatment to speak openly about their experiences.
V. HOW TO FIX OUR CLERKSHIP SYSTEM
In the face of this broken system, LAP offers concrete solutions to address insidious challenges. This is the resource I wish had existed when I was a law studentapplying for clerkships, a law clerk experiencing harassment and unsure where to turn for help, and a former clerk engaging in the formal judicial complaint process. I launched the nonprofit to address deficiencies in the clerkship application process that I personally experienced.
A. Centralized Clerkships Database
LAP’s Centralized Clerkships Database democratizes information about judges and ensures that law students and alumni have as much information about as many judges as possible before making important career decisions.
Law clerk alumni can create accounts and write about their judge and clerkship—good, bad, or somewhere in between—anonymously if they choose.
In contrast to law schools’ post-clerkship surveys, LAP’s survey asks questions about mistreatment. The survey gathers other important information: how judges provide feedback, whether clerks get writing and courtroom experience, what hours clerks work, and whether clerks can take vacation.
The Database also includes aggregate ratings about judges as managers and overall clerkship experiences.
This resource is better than any law school’s internal database because students can read all the reports from all the alumni at all the participating schools—not just their school’s alumni surveys. The Database will bolster schools’ clerkship programs by empowering more historically marginalized students
—including female, non-white, LGBTQ+, and first-generation students—to clerk and arming them with the information they need before applying.
The Database uses a whitelisting system to ensure security.
Contributions will be limited to verified former law clerk alumni with preapproved email addresses, who obtain write-only access. Only students and recent alumni
from the participating institutions gain read-only access, using their preapproved email addresses. The Database is not a public access website: Neither judges nor reporters will view it. These mechanisms ensure anonymity for clerks submitting surveys in the Database so they can safely share their experiences.
My experiences—applying for clerkships; clerking; advocating for the JAA; launching LAP; and engaging in numerous conversations with law students, current and former clerks, and law school administrators—make me confident that the Database is the best way to ensure positive clerkship experiences. This does not foreclose clerk-to-student information-sharing; rather, it combats inadequacies and inequities that emerge when relying only on that informal system. The Database also precludes problematic silo effects whereby some law schools hoard information about judges who mistreat their clerks.
They may or may not share this information with their own students; they do not share it with peer institutions.
Nor does the Database preclude necessary legislative fixes, like the JAA or reforms to the Judicial Conduct and Disability Act. The Database is a front-end solution to prevent workplace issues before they arise. Preventing mistreatment is particularly important in the judiciary, since workplace protections and judicial accountability mechanisms are ineffective or nonexistent.
B. The Response So Far
Law students and recent alumni, including current and former clerks, support LAP’s Clerkships Database.
This includes students whose law schools conduct post-clerkship surveys saved in searchable databases.
Students understand that there are few negative reports about judges in their schools’ internal databases and that LAP’s Database ensures anonymity and fosters more candid, robust reporting.
Law schools concede there are gaps in knowledge: No school knows about all the judges.
Data sharing and transparency—for the limited purpose of protecting law clerks against workplace mistreatment—benefits everyone. There is no perfect system. Law clerks reporting into the Database understand that LAP takes reasonable precautions to maintain their anonymity. Clerks will share as much information as they feel comfortable sharing.
Law schools do not maintain robust and accurate information about judges who mistreat their clerks, nor are they able to. Law clerks do not want to report mistreatment by judges to their law schools.
Even well-meaning professors and administrators face pressure to varnish law clerks’ negative experiences
and to err on the side of maintaining positive relationships with judges over robust information-sharing.
LAP is well-positioned to collaborate with law schools, share unvarnished information with students, and maintain positive relationships with the judiciary.
CONCLUSION
It is time for law schools to make necessary fixes to protect law clerks from workplace mistreatment. Law students can lay the groundwork for transformational change on their campuses this year. Law schools have historically received a free pass in the conversation about judicial accountability.
They should be the first to step forward and ensure that the next generation of attorneys can bring their full selves to work every day and pursue careers they love in safe workplaces. Law schools continue to perpetuate the clerkship whisper network because no one has offered alternatives. Now, they should be vectors for change. Law students demanding change will power this movement toward accountability and transparency. Reform is headed to law schools, the legal community, and the judiciary.