By Robert M. Weems
Introduction
I decided to write this blog article primarily to help satisfy any curiosity German law students and lawyers might have about the federal court system in the United States. This article is written from the perspective of a lawyer, who (apart from a few years working for a law firm) has spent almost his entire career working as a law clerk for both state and federal judges in the state of Mississippi. Almost twenty-two of those years have been spent serving as the career law clerk for a U.S. districtcourt judge located in Oxford Mississippi. A federal district court is a “trial court” (erstinstanzliches Gericht) roughly comparable to a German Landgericht, and, like a Landgericht, we handle both criminal and civil cases.
In this blog, I sometimes contrast the U.S. legal system with that in Germany, and, in doing so, I draw upon the year I spent studying at the University of Bonn over thirty years ago, and also upon my much more recent online German lessons. My teacher in those lessons was a young woman who recently graduated from the Cologne Faculty of Law and, having gotten a good score on her second state bar exam, is hoping to become a judge in Germany. We spent most of our lessons discussing our countries’ respective legal systems, and my comments on the German system are heavily informed by what I learned from her.
Deciding whether to seek a federal clerkship
In America, a common dilemma facing ambitious law students with good grades is deciding whether they should first serve as a federal law clerk or whether they should seek immediate employment with a large law firm. For many law students, this decision comes down to whether they place a higher premium upon obtaining a large “payday” as quickly as possible or whether they would first like to obtain the valuable experience offered by a federal clerkship. I would note that, unlike in Germany, becoming a judge immediately out of law school is not a realistic option for U.S. law students, and so their best chance to get an insider’s view of the federal court system is by serving as a law clerk.
Law students may also perform an internship with a federal judge during law school, for which they usually obtain law school credit. These internships are unpaid positions, and it is completely up to the judge to decide how much (or little) responsibility to give them. In fact, a federal judge could even allow a German law student or lawyer to perform an internship in his chambers if he wanted to, although they would most likely be mere observers of the court proceedings, given their limited familiarity with U.S. law. This is a situation where it truly “does not hurt to ask,” and any German law student planning to vacation in a certain location in America could simply write or email the chambers of federal judges in that area and request a brief internship.
While federal clerkships do offer valuable experience to recent law graduates, they must often make a financial sacrifice to do so, at least in the short term. This is because federal law clerks, like all federal employees in the U.S., are subject to federal pay tables which provide for a relatively modest salary at the start of one’s career, while eventually progressing to a comfortable, yet hardly extravagant, salary over a period of around twenty years. Federal law clerks with no prior federal experience generally start out at grade 11, step 1 of the federal salary tables, which amounts to a salary of $73,939 under current tables. By contrast, one online resource indicates that starting associates at large New York City law firms earn $245,000 in their first year, including the year-end bonus.
Given this enormous financial difference, it is a testament to the value placed upon the experience offered by federal clerkships that top law students consider doing them at all. Theexperience offered by federal clerkships is regarded as particularly valuable by litigation firms, since they routinely try cases in federal court. While most litigation firms do not list a federal clerkship as an absolute requirement on their website, virtually all of them place a high premium upon an applicant having had this experience. Law students are aware of what a valuable addition to their resume federal clerkships are, which is why so many of them choose to pursue them, in spite of theshort term financial “hit” they take in doing so.
Requirements for becoming a federal law clerk
While obtaining any federal clerkship requires very good academic credentials, those requirements become more and more stringent the higher one goes up the appellate food chain. In fact, a federal clerkship with a U.S. Supreme Court justice is regarded as one of the most prestigious legal jobs which any law graduate can obtain, and they are generally reserved for those who graduated at the top of their class from the best law schools and who also completed a federal clerkship with a judge on one of the thirteen federal courts of appeals.
One notable difference between legal hiring practices in Germany and America is the differing weight placed by law firms and other employers upon law school grades. In America, law school grades, along with participation in a law school’s “law journal,” are the primary factors which federal judges andother legal employers look at in deciding whether to offer a particular candidate a job. The law student’s grades in the first few semesters are particularly important, since most federal judges tend to hire clerks well in advance of graduation, so an applicant’s grades in their first few semesters are all they have to go by.
In Germany, by contrast, a law graduate’s scores on the two state bar exams are much more important than law school grades in determining whether he or she is able to obtain a coveted legal position such as a judgeship or a job with a large law firm. Indeed, “fully satisfactory” (vollbefriedigend) scores on the state bar exams will open doors for recent law school graduates inGermany, in the same manner which excellent law school grades do in America. From an outsider’s perspective, the importance placed on bar exam results in Germany seems consistent with German society’s affinity for placing heavy weight on difficult and pressure-filled exams, such as the Abitur, in order to determine a student’s future. While I assume that Germans do this because it has proven to be a reliable means of assessing a student’s merit, I do not regret the fact that I never had to takethese stressful exams myself.
What do career federal law clerks do?
Serving as a career law clerk to a federal judge in America is somewhat comparable to a Rechtsreferendariat in Germany, with a primary difference being that a career clerkship is permanent. Most federal judges in America have three law clerks, but, under the federal judiciary’s rules, only one of themis allowed to be a career clerk. The remaining two slots are for “term,” or temporary, clerkships, which are typically filled by attorneys who have just finished law school. A federal judiciary rule provides that no lawyer may serve as a term law clerk for more than four years total in his or her life, a rule which was enacted to ensure that a large number of law graduates are able to gain the valuable experience offered by the position.
Career clerks are typically chosen by federal judges from among their term clerks whose work has proven to be satisfactory. Career clerks typically do the same sort of opinion-writing as the term clerks, though they may find themselves assigned to particularly difficult and/or urgent cases and motions. Indeed, some of the cases which come before a district court involve emergency motions which must be ruled upon quickly, which means that there is no time for a term law clerk to research and learn the applicable law. In those cases, having an experienced career law clerk who already knows the law is essential, since there is frequently a great difference between the more academic-oriented law that is taught in law school and the more practical law which decides cases in federal court.
As with judicial law clerks in general, career federal law clerks in the U.S. tend to have a great deal of influence upon how cases are decided. Indeed, it is a “dirty little secret” among lawyers in America that judicial law clerks, particularly career clerks, exercise a great deal of power “behind the scenes.” This is largely a matter of necessity. Indeed, federal judges’ job responsibilities often require them to be physically present on the bench doing such things as observing trial testimony or holding hearings on the sentencing of criminal defendants, and there are simply too many civil and criminal cases for these judges to give full attention to all of them without a great deal help from law clerks.
In the civil cases which occupy the vast majority of my time, one of a district court’s main functions is ruling upon so-called “dispositive motions.” The term “dispositive motion” refers to motions which have a very significant impact upon the case, such as by dismissing the case (or a party) altogether, or transferring the case to a different federal or state court (or to an arbitrator). Under the first category, the most common motions include motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure (FRCP) and motions for summary judgment under Rule 56. The main difference between these two motions is that the former are based solely on the allegations of the complaint, while the latter also include evidence developed during the course of the litigation.
In the federal judiciary, non-dispositive motions are generally handled by so-called “magistrate judges” which exist in roughly equal numbers as district judges. Magistrate judgesare appointed by vote of the district judges in a particular districtfor eight-year terms, in contrast to the lifetime appointment which district judges enjoy after being confirmed by the U.S. Senate. The most common non-dispositive motions dealt with by magistrate judges involve rulings on discovery matters. The “discovery” process refers to the taking of evidence relevant to the complaint, and it generally takes place before a Rule 56 summary judgment motion has been filed. This is logical, sincethe primary purpose of a summary judgment motion is to allow the district judge to evaluate the evidence which the parties developed in discovery, and not simply analyze what the plaintiff alleged in the complaint and what the defendant asserts in his “answer.”
In civil cases, federal district courts spend most of their time resolving claims which are addressed by the U.S. Constitution and/or federal anti-discrimination statutes, collectively known as “federal question” cases. In the Northern District of Mississippi, some of the most common federal question claims include 1) claims in which the plaintiff alleges that a police officer violated the Fourth Amendment to the U.S. Constitution by using excessive force during an arrest or by unlawfully making the arrest in the first place without “probable cause” and 2) workplace discrimination claims in which it is alleged that an employer unlawfully fired or failed to hire the plaintiff based on his or her race or sex, in violation of a federal anti-discrimination statute called “Title VII.”
In addition to “federal question” cases, we also frequently handle so-called “diversity cases” in which 1) citizens of different states are involved and 2) the “amount in controversy” exceeds $75,000. The latter requirement is similar to the 5,000 Euro amount in controversy requirement for German Landgerichte, with the difference being that there is no U.S. federal court counterpart for an Amtsgericht. This means that low-value claims will have to be tried in state, rather than federal court, if no federal statute or constitutional provision is involved.
In our court, diversity cases are often simple tort (Deliktsrecht) actions, such as car accidents, assuming that they involve sufficiently serious damages to meet the $75,000 amount in controversy requirement. In diversity cases, federal courts apply the law of the state where the court is located, which usually means that, in tort cases, we are applying statutes enacted by the Mississippi Legislature or, more commonly, opinions issued by the Mississippi Supreme Court. Such reliance upon laws made by courts (so-called “common law”) ismuch rarer in Germany, where the law is based much more heavily upon statutes such as those set forth in the Bundesgesetzblatt. This approach seems to reflect a German preference for certainty and stability in the law, and it makes legal research a very different process in Germany than in America.
Rewarding and challenging aspects of a career federal clerkship
I can say without hesitation that obtaining a career federal clerkship has been one of the biggest “breaks” in my life, and there are many reasons why I feel that way. For one thing, the quality of life as a federal law clerk is considerably higher than as an attorney at a law firm, since, while there are periods in which things get very busy, the workload is usually manageable.In addition, the work tends to be very rewarding, since the law usually has enough flexibility to allow a law clerk to recommend a result in a case which he believes to be the “right thing to do.” Moreover, I have had the good fortune to work for a very respected judge whose views on legal issues are very similar to my own, which has allowed me to participate in making rulings which I truly believe in. This makes for a much more rewarding experience than in chambers where the judge sees the world very differently than his or her clerk.
Nevertheless, serving as a district court law clerk does have its challenging aspects. Most notably, it can be quite challengingfor a law clerk to draft a proposed order in a way which both satisfies his judge and minimizes the chances that the ruling will be reversed on appeal. This is very much the case in my judicial district, since Mississippi, along with Texas and Louisiana, are subject to appellate review by the Fifth Circuit Court of Appeals. The Fifth Circuit is known as the most conservative of the federal appellate courts, while my judge (Judge Mills) is widely regarded as a moderate. This means that I essentially have two different audiences for any proposed order I write, and those audiences may have differing ideas about what the correct result in a case is. As such, I am sometimes put in the position of explaining to Judge Mills that, while one particular result seemsconsistent with his (and usually my own) legal philosophy, there is a high risk that the Fifth Circuit will see these matters differently. I then leave it to Judge Mills’ discretion whether he wishes to take this risk, and I write the opinion accordingly.
Further Questions
Space limitations of this blog format do not permit anything more than this brief overview of the federal court system in the U.S., and I plan to provide a more thorough discussion of this topic in a law journal article. In the meantime, I would be happy to answer any questions which German law students or lawyers might have about the U.S. federal courts, including about the process of obtaining an internship with one of them. I may be reached by email at robertmweems@gmail.com.