Do not let the law clerks take over!
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14 April 2014
The Court of Appeal, faced with caseload pressure, does not plan to do the obvious and add more judges, it proposes instead to follow the American practice of appointing young lawyers as 'judicial assistants' or law clerks, as they are called in the US.
The courts and the bar should reflect on the disastrous US experience with law clerks, before going ahead with this proposal. Although law clerks have been part of the US courts system for most of this century, it is only in the past three decades that their use has damaged the judicial process.
Formerly, there was only one law clerk per judge. It was an arrangement that worked well. The position attracted bright and ambitious young lawyers, who worked closely with the judges, helping with research and proofreading, acting as a sounding-board for ideas, and keeping the judges abreast of the latest ideas from the law schools.
Clerks and judges developed a close personal relationship and, as a result, clerks could serve as the judges' alter egos. And because the clerks served only a one-year term, they had no vested interest in serving any cause other than the judges'.
As caseloads increased, however, judges needed to add extra appellate capacity. They then faced the crucial decision of either adding more judges or changing the appellate process to handle more cases. They chose the latter route.
A major part of the processing solution was to add more assistants. Each federal appellate judge now has three, sometimes four, clerks.
Although the additional clerks have helped the courts cope with the growth in caseload, two closely-related risks have been created: over-delegation and inadequate supervision.
The superb quality of US law clerks has meant that it has been easy for the judges to assign them significant tasks. Moreover, in an effort to ease the learning curve, clerkships now tend to last for two years.
Law clerks now play a significant role in all US courts and the 'draft' opinion, in many cases, receives little or no serious scrutiny from the judge.
Because it has become impossible for judges to supervise closely the huge amount of work being produced by clerks, a large part of effective decision-making is essentially in the clerks' hands, and subject to minimal judicial review only.
The problem has become critical in recent years with the addition of the staff attorney, a semi-permanent legal assistant, who is not necessarily fresh out of law school and who works in a central pool rather than being assigned to any particular judge.
Staff attorneys are assigned routine cases such as criminal appeals and welfare benefit denials, cases generally involving the under-privileged. They prepare draft opinions, which are reviewed by the judge to whom the case is assigned. That review, largely perfunctory, is often done, not by the judge, but by his clerks.
This is the worst of all worlds because the staff attorneys are virtually unsupervised by the judges.
There are several reasons for this lack of supervision. First, there are too many staff attorneys. Although Congress has made efforts to limit the growth in their numbers, these efforts have been futile. Today there are more staff attorneys than there are appellate judges. These large numbers mean that they lack the personal relationship which would enable them to serve as the judge's alter ego.
Second, because the staff attorneys are assigned responsibility for cases involving the under-privileged, judicial interest in supervision is minimal. And because the tenure of staff attorneys is unlimited, they can become possessive about the areas to which they - the 'parajudges' - have been delegated authority and in which they have acquired expertise.
What does this mean for the UK? Initially, the proposal for judicial assistants for the Appeal Court appears harmless; they will no doubt prove a valuable help. But it is inevitable, however, that they will be given other duties.
The Court of Appeal could, in other words, find itself going down the same slippery slope as the US legal system has done. It must be careful not to allow the US experience to be repeated in the UK. Judicial assistants can be useful, but the courts must carefully regulate