Yet female law students must approach the clerkship hiring process with a concern their male counterparts may not. Despite multiple revelations of sexual harassment involving federal judges, applicants today have no reliable way of knowing whether they are walking into a hostile environment. Those best placed to help them — their own law schools — do too little to help, despite valiant efforts by some professors and deans, who take it on themselves to warn students privately about specific bad actors whenever possible.
It doesn’t have to be that way. The American Bar Association, which is in charge of accrediting law schools, could force schools to develop an information-sharing system to stop judges from harassing or abusing young lawyers before their legal careers even begin.
The work environment for federal law clerks is distinctively vulnerable to sexual harassment. Law clerks are isolated: They tend to work in separate offices under close or intimate supervision of a single judge, and their workplaces are dispersed across many cities and states. The power disparity between judges and clerks is immense: Clerks are in their jobs for only a short time and their professional reputation depends upon what a person at the pinnacle of the legal profession will say about them.
The concerns about harassment are hardly theoretical. In 2017, more than 15 women, including several ex-clerks, accused Alex Kozinski, a judge on the U.S. Court of Appeals for the 9th Circuit, of inappropriate comments and behavior, including asking them to look at pornography in his chambers. (One of the authors of this article, Leah Litman, was subjected to inappropriate comments and touching by Kozinski at a dinner connected with an event at the University of California at Irvine.) He retired shortly afterward. Last year, a former clerk to the late-Stephen R. Reinhardt, another 9th Circuit judge, testified that Reinhardt “routinely and frequently” sexually harassed her and other clerks.
The judiciary has done too little to address such behavior. The official clerkship “handbook,” published by the Federal Judicial Center, opens with a clerk’s obligation of confidentiality and returns to that theme several times. Only in 2017, in response to the allegations about Kozinski, was it amended to clarify that there was no restriction on harassment-related disclosures. After the judiciary amended the clerkship handbook, it created a single “judicial integrity officer,” and promulgated a model “dispute resolution” system that emphasizes “counseling and mediation” before there is any hearing or formal process.
Law schools have conspicuously failed to step into the breach. Their reliance on informal systems for gathering and sharing information about bad clerkships results in a balkanized and imperfect patchwork of safeguards: Students at Ivy League schools with more successful records of clerkship placements may draw on their institution’s networks to know which judges to avoid, for instance, yet graduates of schools with thinner records of clerkship placement may walk unwittingly into harassment.
No school wants to be the first mover in creating a disclosure and reporting system. A school might fear legal liability from sharing reports of misconduct or worry that a graduate might make a negative report out of spite. Others may remain silent because they fear judges may punish the schools when it comes to hiring.
But law schools are uniquely well positioned to act. Many of them draw reliable information from courts and judges across the country, as students report back to trusted mentors and advisers. By pooling data, law schools collectively could build a wider, and hence more reliable, evidentiary basis for sorting baseless complaints or one-off remarks from genuinely disturbing behavior.
To push law schools to overcome their coordinated action problem, the bar association should add to its accreditation requirements: It should demand that every law school, as a condition of accreditation, participate in a national system for collecting and sharing harassment reports from their graduates concerning the federal courts.
Under this regime, law schools would inform a central repository whenever a graduate shares an allegation of workplace misconduct. The allegation’s individual source should not be disclosed to the repository, even if it was known to the school. Since there are relatively few law clerks, and some schools send few students to clerks, the repository would not publicly disclose the name of the school concerned, or the exact timing of the alleged incident (perhaps allegations would be grouped in five-year periods). But the substance of the alleged misconduct would be shared.
The ABA would make available to clerkship applicants from any school information about the number of allegations reported by judicial circuit, by courthouse and by judge. To address the concern about false accusations, there might be a minimal number of allegations below which the system would make no external disclosure. That is, only when a certain threshold of complaints accrued would the system flag a judge. If a judge wished to contest the allegations, they could ask the ABA to disclose information about reporting law schools and the timing of the allegations to the judiciary (but not the individual judge) — thereby triggering an investigation by the judiciary (but not by judges in the same court). The possibility of such investigations would also serve as a check on false complaints.
Our proposal would supplement, not replace, the existing avenues of mediation and redress. And it would formalize the ad hoc whisper networks that presently exist, while eliminating arbitrary limits on those networks. It would also impose more order and fairness on that system. In fact, our plan is modeled on systems for lodging complaints against public officials outside the federal judiciary, such as police officers. These systems are often public. And as the experience with such systems in police departments shows, patterns of complaints provide an effective basis for predicting the incidence of abusive and unlawful behavior.
If a law school failed to participate in the reporting system — perhaps by failing to collect information from law-clerk alumni, the ABA could sanction it, just as the organization does for other forms of misconduct. Schools first receive warnings, giving them a chance to comply. Schools that fail to act would be hauled before the ABA’s council to explain themselves. It seems unlikely the ABA would ever levy its most severe penalty, stripping an institution of accreditation. But even the reputational hit for a school openly flouting this system would be severe.
Law schools pride themselves on fidelity to the rule of law — the notion that the law applies to all, whether great or humble. They fall short of this ideal when they fail to take responsibility for the harassment of their graduates in clerkships. Collecting reports of such harassment from their students would mark the beginning of a new era of accountability.