Sorcerer's Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law

Abstract

Sorcerers' Apprentices is the third in a series of articles examining various aspects of the publication practices of U.S. Courts. The first, Inequitable Injunctions: the Scandal of Private Judging in the U.S. Courts, was published in 56 Stanford Law Review 1435 (2004). The second, Take a Letter, Your Honor: Outing the Judicial Epistemology of Hart v. Massanari, 62 Wash. & Lee L. Rev. 1553 (2005), was published in the Have We Ceased to Be a Common Law Country? Symposium.

In Sorcerers' Apprentices I document the phenomenon of the de facto delegation of the vast majority of Article III judicial power to judicial clerks and staff attorneys, demonstrating that these newly-graduated lawyers disproportionately decide cases against "have-nots." Using the work of the sociologist of the professions, Pierre Bourdieu, and a wide range of sources in which Federal Appellate judges have gone (more or less) "on the record" about their mistrust of the work of the people to whom they delegate their power, the article explores why clerks and staff attorneys judge the law's "others" the way that they do. In the face of reluctance by the Circuit Courts to undertake the structural changes to their work practices that would address the root causes of the delegation of federal judicial power, the article suggests "grass roots" reforms aimed at ensuring that delegated Article III power is exercised safely and fairly.

Keywords: Federal Courts, Unpublished Opinions, Judicial Clerks, Staff Attorney, Inequality, Asylum