LAW CLERKS AND THE JUDICIAL PROCESS by John Bilyeu & Robert S. Thompson Oakley


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Here's a dull book on a promising subject. In the aftermath of The Brethren, the time seems ripe for a good research study of the relationship of ""law clerks""--traditionally, recent law school graduates chosen for academic excellence and writing ability--to the federal or state judges in whose chambers they serve their one- or two-year terms. What law professors Oakley and Thompson provide, however, is a narrowly-focused and statistic-oriented analysis of the role of the law clerk in four California courts: the state courts of appeal, the state supreme court, the federal district courts, and the Ninth Circuit federal court of appeal. After a short review of the history of clerkship as a judicial institution, Oakley and Thompson profile the various courts studied (organization, administration, workload, etc.) and discuss the role of the law clerk in each, based on interviews with 63 state and federal judges. The California courts are moving increasingly away from the traditional ""ideal"" of the short-term, recent-graduate law clerk and toward the use of career clerks; this trend is not matched in the federal judiciary, and much of Oakley and Thompson's analysis is devoted to finding reasons for this divergence. They identify four factors as central: caseload pressure and workload per law clerk (the more ""routine"" matters the court has to push through, the greater the tendency to use centralized career staff); clerkship prestige (if the particular court is not one which attracts stellar candidates, it will rely more heavily on long-term employees); and perceptions of clerks' productivity (where the caseload is heavy, judges are somewhat reluctant to retrain new clerks every year or two). None of this should come as a surprise to persons familiar with state and federal court systems, though there is perhaps some merit in showing that what is obvious is also statistically valid. The problem is that Oakley and Thompson stretch a law review article topic to 140 tedious pages, and never really examine how their own clerkship ideal--""the clerk [carrying] the adversary process into the chambers, forcing the judge to justify each step of the decision-making process""--works in practice. Of limited interest, even to members of the legal community.

Pub Date: Dec. 1st, 1980
Publisher: Univ. of California