Closing the Legislative Experience Gap: How a Legislative Law Clerk Program Will Benefit the Legal Profession and Congress

Abstract

Most federal law today is statutory or rooted in statutes, which are created through a complicated process best understood through work experience inside legislatures. This article demonstrates that America’s most influential lawyers are not getting it.

My new empirical analysis of the work experience of the top 500 lawyers nationwide as ranked by Lawdragon.com finds that work experience in legislative bodies is dramatically less common among the profession’s leaders than is formative work experience in courts, government executive agencies, private practice, and academe. This article continues the empirical study of the professional experience of the legal profession’s elite published in 2008 in the Washington University Law Review’s online scholarly publication, Slip Opinions.

Here, I elaborate upon my argument that this legislative experience gap is bad both for the profession and for Congress and argue for a congressional clerkship program as a first corrective step. Such a program would be analogous to the clerkship program of the judiciary and legal apprenticeships offered by executive branch agencies, the private sector, and academe. Over time, by sending its rising stars to clerk for Congress, I suggest that the profession would come to a better understanding of the virtues of legislative solutions to problems of law and policy, and a more balanced constitutional perspective. After refuting potential objections, I close by urging the Senate to approve House-passed legislation (H.R. 151 / S. 27) that would create such a program this year.

Keywords: Congress, Clerkships, Legal Profession, Empirical Research, Congressional Law Clerk Program, Legislative Law Clerk Program