Tracey E. George (Vanderbilt University Law School), Albert Yoon (University of Toronto Faculty of Law) & Mitu Gulati (University of Virginia School of Law) have posted Stacking the Deck on SSRN. Here is the abstract:
A federal judicial clerkship is a government-funded Golden Ticket that opens doors otherwise closed to most. This ticket grants entry to a one-year apprenticeship—an exclusive glimpse behind the judiciary’s gates that functions as a mentorship-rich fourth year of law school. Historically, a second passage through those gates was exceedingly rare, typically reserved for those en route to the Supreme Court. That norm has fractured. Increasingly, graduates make repeated passes through the gates, taking two, three, or even four clerkships in succession—a practice now known as “stacking.” Each additional passage comes at a cost: it reduces the number of clerkship opportunities available to others and delays the clerk’s entry into the legal profession. Drawing on roughly 130 interviews with judges, we examine both the rise of stacking and the forces driving it. Our central argument is that stacking is not an irrational pathology but a rational market response to a structural information failure—and that well-intentioned reform efforts have, perversely, made the problem worse. Judges agree that certain forms of stacking are troubling. Yet few see ready solutions. The problem, as they describe it, is not a lack of awareness but a structure of incentives that makes restraint individually irrational, even if the collective outcome is seen as suboptimal. This Essay diagnoses those structural failures and evaluates the most promising paths forward.
Highly Recommended!
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