Jack Goldsmith writes on Twitter about the latest iteration of the federal clerkship hiring plan, which was supposed to involve a widespread pact among judges not to hire students until the summer after their 2L year. Many judges did not agree to follow the plan, but among those who did, it seemed like there might be a stable equilibrium.

Not so, Jack argues. When 2Ls apply this summer, he says, they will discover that “many on-plan judges went ahead and filled some (and for some judges all) of the 2021 clerkship slots with other students (3Ls, grads, etc.)” This includes, says Jack, some of the judges who organized the plan in the first place. (Read the whole thread for more.)

If all of this is true, and I trust Jack very much, though I don’t have direct testimony myself, it will make the plan seem quite unfair and it seems unlikely to be sustainable. This would mark a much faster collapse than the last round of the clerkship hiring plan.

On the other hand, some off-plan judges are hiring students as soon as the January and February of their 1L year. And off-plan clerkships generally leak out by word of mouth, with students and professors relying on personal relationships and networks to find out who might be hiring when.

If and when the plan collapses, I have a proposal for a new plan, which I mentioned parenthetically in an old blog post. This new plan would impose a modest restriction on clerkship hiring in order to have a fairer and more efficient competition for these positions.

1. Judges can hire law clerks any time they like, and law clerks can apply any time they like.

2. All judges agree to publicly post, on Oscar or the equivalent, when they are hiring law clerks and how many positions they are trying to fill. They also agree to post when the clerkships are full.

That’s it. You could embellish this plan with some of the other rules like the rule that applicants must get at least 48 hours to decide, or with a rule that the posted positions must be kept open for X days, but I see those as best practices that need not be part of the core plan for it to succeed.

Cartels are hard to organize, and incomplete cartels are destined to fail. That is the lesson of the previous two clerkship plans. And worse, the current clerkship plan has generated a significant loss in transparency, as those who circumvent it feel various pressures to go outside of the usual channels. It may be time to focus on transparency, and forget the strange dream of the cartel.