"Getting rid of law clerks would eliminate the harassment problem and get judges doing their own work."

"Justice Louis Brandeis, who served from 1916-39, is said to have observed that the high court’s members 'are almost the only people in Washington who do their own work.' That’s not true anymore. The Supreme Court decided 160 cases in 1945, when each justice had a single clerk. Nowadays it decides about half as many cases with four clerks per justice. Law clerks were unknown for roughly the first century of the American judiciary, and the courts seemed to do fine. As my law students often comment, the older opinions are shorter and more intelligible than the newer ones."

Writes Glenn Reynolds in the Wall Street Journal.

It really is a very creepy and elitist system, and the unreadable cases — do the judges even read their "own" cases? — are a form of corruption.

On my suspicion that judges have lost track of what's in their own opinions, here's a passage from Woodward and Armstrong's "The Brethren" (which I've blogged before):

[A] clerk once pointed out, “You said that the right to privacy must go further than the home.” “No,” [Thurgood] Marshall retorted. He had never said that.

Yes, the clerk insisted.

No, never, Marshall was sure. “Show me.”

The clerk brought the bound opinions.

Marshall read the relevant section.

“That’s not my opinion, that’s the opinion of [a clerk from the prior term],” he declared. Opening the volume flat, he tore the page out. “There. It’s not there now, is it?”

"I want greater honesty regarding judicial clerkships. Law students are often told in glowing terms that a clerkship will be the best year in their career."

"They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge. I also want law schools to start giving our best and brightest students accurate advice about clerkships. Students are often told that if they receive a clerkship offer from a judge, they must say 'yes' without hesitation. I cannot imagine a situation more rife for abuse. Students should feel free to say no to any judge who triggers their discomfort for any reason."

That's one of 4 proposals at the end of the compelling narrative written by Heidi Bond (AKA Courtney Milan), which is the background to "Prominent appeals court Judge Alex Kozinski accused of sexual misconduct" (Washington Post). I had not seen Bond's full statement when I wrote about the WaPo article 2 days ago, and if the link is in there, I'm still not seeing it. I got the link from Paul Campos at Lawyers, Guns, and Money, who begins "Heidi Bond’s account of her interactions with Alex Kozinski needs to be read in full...." I agree. Please read the whole thing. It made a very different impression on me than the WaPo article... and from the things Paul Campos goes on say.

Here's Campos:

It’s important to recognize that men like Kozinski — and there are obviously a lot of them in our society — are sadists. That is, they get off, metaphorically and no doubt literally, on being cruel to people who are relatively powerless. Power, sex, domination, hierarchy, cruelty — it’s all mixed up for these guys. They are bullies and perverts, and they are everywhere.

Before taking the time to read Bond's direct account, I was inclined to say that I agree with the generality about some men, but didn't think it was fair to conclude that Kozinski belonged in that category and that we should only be saying that he might and that we only know what Heidi Bond says happened and how it made her feel. It's some evidence, and even if we take it as true, we still need to make an inference to get to Kozinski's mental state. It seemed wrong and unfair for Campos to present that inference as a known fact.

But now I want to step back from a critique of the Campos rhetoric and direct you to Bond's excellent narrative. To encourage you to read Bond, let me extract the part that relates to her career path into writing romance novels:

The new transparency.

Above the Law offers to pass along stories of "the clerkship from hell." Oh, how I love the free-flow of information on the internet!

Above the Law is responding to this from Mike Rappaport. There's also this from Ilya Somin.