District Judge William Martinez in Denver, Colorado, is seeking a third law clerk. And that third law clerk must work for free. This Salon article by law professor Paul Campos examines the legality of an unpaid clerkship position. Under the Fair Labor Standards Act (FLSA), no person can work for free, with certain limited exceptions. This would not be one of those exceptions, particularly when there are two law clerks already working for Judge Martinez who are receiving compensation for doing precisely what the third unpaid law clerk will do.
This is a sign of what have been very difficult times for the majority of new and almost new attorneys. Law firm spending has dried up, law students and lawyers who otherwise would have no interest in government jobs are snapping up those positions, non-profit organizations and fellowship programs have more applications from law students and lawyers than they can handle. Judges are no different. Their application numbers have grown exponentially since the economic downturn, and they are receiving applications from more and more qualified (and over-qualified) attorneys who are desparate for a judicial clerkship.
The judiciary, particularly the federal judiciary, has struggled to achieve, or even seek, racial diversity in its clerkship ranks. Supreme Court justices have testified on Capitol Hill about the lack of racial diversity in their law clerk hires. Obtaining a judicial clerkship and successfully using that clerkship as a stepping stone to something else is about impeccable self-presentation, yes, but it also is about having and utilizing personal networks and connections. Judicial clerkships have been a method of professional polishing available exclusively to the elite for generations. Clerkships are the untold story behind the professional successes of many well-known attorneys. As clerkships slowly have become available to more applicants from a variety of backgrounds, the term diversity has been redefined in the clerkship context. Justice Clarence Thomas speaks often of the need to look beyond Harvard and Yale for law clerk recruits. Diversity in many things – law school attendance, geographic location, professional experiences, etc. – is crucial to ensure that the upper-echelon legal hiring pools are diverse, and also to ensure that judges render their decisions, as they usually do based on research that law clerks conduct and perspectives that law clerks contribute, in a way that accounts for facets of society with which they may not have personal familiarity.
The devastating truth about this sign of the times is this: there are no longer enough law jobs for the number of law students graduating every year; clerkships remain one of the most highly coveted law positions out there; the unpaid law clerk who takes a position with Judge Martinez will be able to utilize that clerkship as a launching pad and develop the network and connections necessary to excel in the legal profession; the person who can afford to work full-time with no pay for an entire year most likely will not be a person who would count for diversity purposes as newly defined in clerkship terms or otherwise.