Inside the Law School Etc.

Brilliant piece by Dahlia Lithwick and Susan Mathews about the investigation into Jeb Rubernfeld and how the Federal Appellate Court Clerk Provision Industrial Complex invites abuse and exploitation:

In the course of reporting this story and corroborating Linda’s and Jennifer’s accounts, we spoke to more than a dozen recent Yale law students and graduates about the environment at Yale Law School. None of the students were willing to be named in this story, for fear of reprisal by Yale faculty, for fear of hurting their clerkship chances, or, for those who already are or were law clerks, for fear of embarrassing the prestigious judges they work or have worked for. We also spoke to several faculty members who confirmed the intensity of the competition and stakes around clerkships at the law school and noted that YLS was somewhat limited in its ability to resolve complaints of harassment, given that formal complaints are adjudicated at the university level. These students, alumni, and faculty all had slightly different reads on exactly how out of line Rubenfeld’s alleged behavior was (and some faculty members had no firsthand knowledge of it at all). Some described Rubenfeld as flirtatious and line-crossing; others called his behavior harassment. The picture we got from these conversations is not one of straightforward abuse but rather a fraught and uncomfortable situation full of insinuation and pushed boundaries that can make learning difficult and has the potential to push women out of the pipeline for the most prestigious and competitive areas of the law. This type of behavior, which is frequently dismissed as “borderline” or “creepy” and not worth making a formal fuss over, can have very real consequences. The two main obstacles that made it difficult for Linda and Jennifer to report this behavior were a Title IX process that seems incapable of tracking multiple complaints against a single faculty member and this particular faculty member’s connection to a clerkship process that makes students enormously reliant on pleasing certain professors.

[…]

For students who don’t arrive at Yale with fancy last names, getting a position working for a federal judge can be as much about networking as it is about academic performance. “A clerkship … isn’t something you apply to as much as it’s something that happens to you,” one student told us. Clerkships are brokered through relationships, with influential professors holding enormous sway over the process due to their access to both the Supreme Court justices and the “feeder” judges. At Yale, students’ reliance on faculty relationships and recommendations is exacerbated by the school’s policy of not giving grades to first-year students. The first semester is graded as pass/fail, while the second is pass, fail, or honors. (This is also the case at Harvard and Stanford, but most other law schools assign grades.) While this grade-free ethos is supposed to decrease pressure on new students, the reality is that it leaves judges with a limited academic record with which to assess prospective candidates, so they have to depend even more heavily on faculty recommendations. This means students work hard to curry favor with the handful of faculty known to be influential in the clerkship process. Chua is one of those professors.

In a rational world, Brett Kavanaugh would be the ugly end of the idea that elite judicial clerkships and judgeships being dominated by a tiny handful of law schools represents a “meritocracy,” but…the whole thing is worth reading.