I spent an amazing year clerking on the Ninth Circuit for Judge Diarmuid F. O’Scannlain, who could not have been a better boss. And after speaking to numerous clerks over the years, I believe that most enjoy positive clerkship experiences like mine. When law students and young lawyers ask for my opinion on clerking, I generally recommend it (depending on the individual’s particular circumstances).
But not every law clerk is as fortunate as I was. As we have learned in recent years, some clerks are subjected to harassment and abuse from the judges they clerk for. And because of judges’ power and prestige, as well as structural problems that exempt the judiciary from most forms of workplace accountability, clerks often find themselves with nowhere to turn when mistreated by their judicial employers.
Aliza Shatzman wants to change that. After being harassed and discriminated against by the judge for whom she clerked, she has become a leading advocate for greater judicial accountability and transparency. She has submitted testimony to Congress, written and spoken widely about these issues, and co-founded the Legal Accountability Project, a nonprofit devoted to “ensur[ing] that as many law clerks as possible have positive clerkship experiences, while extending support and resources to those who do not.”
I was pleased to welcome Aliza to the Original Jurisdiction podcast. We talked about her harrowing clerkship experience, the need to pass the Judiciary Accountability Act, why she launched the Legal Accountability Project, and the Project’s current initiatives, including a centralized clerkships reporting database. You can listen to our conversation by clicking on the embed above.
Show Notes:
Statement for the Record of Aliza Shatzman, Former DC Superior Court Law Clerk, House Judiciary Committee
The Conservative Case for the Judiciary Accountability Act, by Aliza Shatzman for the Harvard Journal on Legislation
Law schools are part of the problem—but they can (and should) be part of the solution, by Aliza Shatzman for the Yale Law & Policy Review
The Legal Accountability Project, official website
Prefer reading to listening? A transcript of the entire episode appears below.
Two quick notes:
This transcript has been cleaned up from the audio in ways that don’t alter meaning—e.g., by deleting verbal filler or adding a word here or there to clarify meaning.
Because of length constraints, this newsletter may be truncated in email. To view the entire post, simply click on "View entire message" in your email app.
David Lat: Hello, and welcome to the Original Jurisdiction podcast. I’m your host David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to by visiting davidlat.substack.com.
You’re listening to the sixth episode of this podcast, recorded on Monday, November 28. My normal schedule is to post episodes every other Wednesday.
One of the nice things about having your own podcast is the ability to cover topics that are important to you. One topic near and dear to my own heart is clerking. I have written about law clerks and judicial clerkships for years, dating back to my first blog, Underneath Their Robes, and my novel, Supreme Ambitions, is also set in the clerkship world.
I had a wonderful experience clerking for Judge Diarmuid O’Scannlain of the Ninth Circuit, who continues to be a mentor and friend more than two decades after my clerkship, and I want every law clerk to have such a great experience. So I was pleased to welcome to the podcast Aliza Shatzman, co-founder and president of the Legal Accountability Project. The goal of the Project is to ensure that as many law clerks as possible have positive clerkship experiences, while extending support and resources to those who do not.
Aliza is an attorney and advocate based in Washington, D.C. She graduated from Williams College and the Washington University School of Law. After law school, Aliza moved to Washington to clerk for a judge on the D.C. Superior Court. Unfortunately, she endured terrible harassment and abuse during her clerkship, as well as retaliation afterwards. She has shared her story—in congressional testimony, articles, and interviews like this one—in order to increase judicial accountability and transparency.
As Aliza discusses, one reason it can be so hard to hold judges accountable for mistreating law clerks is the culture of “hero worship” that surrounds judges. And here I have a confession to make: I have definitely contributed to the culture of “judicial celebrity” over the years, which I have come to increasingly regret over time.
Without further ado, here’s my interview of Aliza Shatzman.
DL: Thanks so much for joining me, Aliza!
Aliza Shatzman: Thanks for having me on the show.
DL: So let's start at the beginning, before we get into your work with the Legal Accountability Project. Why did you decide to go to law school?
AS: I went to law school because I wanted to be a reproductive-rights litigator. I wanted to be a trial attorney at Planned Parenthood. I'd always had kind of a sense of moral outrage, particularly on injustices affecting women. Between college and law school, I took a couple of years—I interned and worked on the Hill, did some internships at Planned Parenthood and the National Women's Law Center, and was really just moved by some of the personal stories I heard. So I went to law school knowing I wanted to do public-interest work.
DL: And you were at Wash U, I believe, for law school?
AS: I was, yes. I was a transfer, so I spent my 1L year at UNC and then transferred to Wash U.
DL: And did your plans change in law school in terms of what you wanted to do? It seems like you certainly wanted to stay in public interest, but did your interests shift?
AS: They definitely did. Pretty early in law school, I got the prosecutor bug. I did four different internships with the Justice Department during law school, and then decided that I wanted to become a homicide prosecutor in the D.C. U.S. Attorney’s office.
DL: And what did you do towards that end? You mentioned the internships—what did you do right after law school?
AS: I decided to clerk in D.C. Superior Court during the 2019-2020 term. I knew that D.C. AUSAs appeared before D.C. Superior Court judges, so I was really focused on clerking in that courthouse.
DL: As I recall from some of your writing, and you've written quite a bit about your clerkship experience, you were initially pretty excited about it, right? And you had heard from professors or references or recommenders good things about the judge you were going to clerk for?
AS: Yes, I was excited to launch my career, and definitely Wash U professors made calls on my behalf to help me secure the clerkship. I was definitely excited when I went into it, and the messaging at Wash U Law, like at most law schools, was uniformly positive. This was going to be a lifelong mentor-mentee relationship; the position was going to confer only professional benefits. Nobody back when I was applying for clerkships, or when I started my clerkship, talked about any potential downsides to clerking.
DL: And of course it's also good for the law schools to send graduates into these prestigious positions.
AS: Indeed it is. They report those clerkship numbers publicly in a variety of fashions, and especially with similarly ranked schools, it goes to their ability to get the most competitive applicants to law school and the best professors who come with their own clerkship networks and relationships with the judiciary. So the relationship between the judiciary and law schools is very closely intertwined in a way that I don't think I fully realized until I started writing and speaking about this.
DL: That's so true, and I would also add: applicants are much more savvy than say I was. When I went to law school, I didn't even really know what a clerkship was. But I get calls every year from people who are thinking about law school and a lot of them will ask, “Oh, if I want a clerk, is this a good law school for that?” People are more aware than they were maybe when you were in law school, and certainly when I was in law school, about the value professionally and as a credential of a clerkship.
AS: Definitely. I would caution that the law schools that report the highest number of clerks per year are not necessarily the ones most focused on ensuring a positive clerkship experience. And this is based on a lot of conversations with law schools, a lot of conversations with students. But yes, there is a huge push toward clerking. And even now, I'm not dissuading anybody from clerking in the work I'm doing now. It's really about ensuring a positive clerkship experience. And that is different for every student. That is different for every applicant. There is no one-size-fits-all model, and I remain concerned that law schools are just trying to funnel students into as many clerkships as possible.
DL: Yes. Weren't you told when you were applying to accept the first clerkship you were offered because this is such a plum position?
AS: I absolutely was. And there are still law schools that are giving that advice, which is bad advice, and some have backed off it in recent years, maybe because I'm poking at them and telling them to stop giving that advice. I was told to apply broadly, across the U.S. and across the political spectrum, and to accept the first clerkship I was offered. I did all those things. I should not have done those things, but I did.
DL: That brings us to your clerkship in D.C. Superior Court. I think some of my—or many of my—listeners might be familiar with your experience. But for those who are not, can you talk about it?
AS: Definitely. I think it’s important to share my experience. My experience is not rare, but it is one that is rarely shared publicly, and every clerkship application cycle, so much ink is spilled, so many statements are made, to highlight the best of circumstances. Nobody's talking about the worst of circumstances.
I started this clerkship in D.C. Superior Court in August 2019, and just weeks into it, the judge for whom I clerked began to harass me and discriminate against me because of my gender. He would kick me out of the courtroom, telling me I made him “uncomfortable” and he “just felt more comfortable” with my male co-clerk. He told me I was “bossy” and “aggressive” and had “personality issues.” The day I found out I passed the D.C. bar exam—a big day in my life—he called me into his chambers, got in my face and said, “You're bossy. And I know bossy because my wife is bossy.”
DL: Oh my gosh. You would've thought, “Congratulations on passing the bar!”
AS: I think he also said, “I didn't think you'd pass.”
DL: Oh my gosh. Wow.
AS: Yeah, I'm painting a picture of this judge. I was just devastated. I remember crying in the courthouse bathroom, crying myself to sleep at night. This was my first legal job out of law school. This judge just seemed to be singling me out for mistreatment. I wished I could be reassigned to another judge. My workplace didn't have an employee dispute resolution or “EDR” plan that might have enabled that to happen. I did confide in some attorney mentors and some other clerks, who advised me to stick it out, and I knew that I needed a year of work experience to be eligible to apply to the U.S. Attorney's Office. So I really tried to.
DL: So you were just going forward, crying in the bathroom, putting up with this abuse and harassment, but the best advice—or not the best, but the advice you were given—was, just keep on trucking?
AS: Yes, that's correct.
DL: Okay, and then what happened?
AS: Pandemic happened. March 2020, I moved back to Philly to stay with my parents and worked remotely, and the judge basically ignored me for six weeks, before he called me up and told me he was ending my clerkship early because I made him “uncomfortable” and “lacked respect” for him, but he “didn't want to get into it.” Then he hung up on me.
DL: Oh my gosh. So he did that. Just fired you over the phone. Wow. He did not even give you the courtesy of meeting in person. And also I think you mentioned in one of the pieces you wrote that in the lead-up to this, weren't you sending him things like orders and other drafts to look at, and he wouldn't respond to you, he would respond to your co clerk?
AS: Yes. Yes.
DL: That's crazy.
AS: It was pretty bad. I reached out to the D.C. Courts’ HR. They said there's nothing they could do because HR doesn't regulate judges, judges and law clerks have a unique relationship, and then they asked me whether I knew that I was an at-will employee. So then I reached out to my law school, Wash U, for support and advice, and I found out the judge had a history of harassing his clerks, which law school officials, including several professors, and the clerkships director, who still works there, knew about at the time I accepted the clerkship. But they decided not to share that with me, I guess, because they wanted another Wash U law student to clerk.
DL: Wow. Now this is something we'll return to, but when you were applying for clerkships, did you have access to evaluations or reports about this judge in the Wash U. clerkships office that might have told you about these bad experiences?
AS: I did not. Wash U does not conduct a post-clerkship survey. At the time, I did not even know whether they had a list of former clerks who clerked for this judge or others, so they are far behind others in the T20 [top 20 law schools] in this regard.
DL: I remember, when I was at Yale, there were these lists of clerks, former clerks, to different judges. You could look them up, and there were evaluations. And we'll return to this—the evaluations were almost uniformly positive because anyone could walk in and look at them, and if you wrote a scathing report, that probably would not be a great thing. But they were there. And I remember sometimes you could read between the lines, and maybe detect something less effusive, but they were mostly positive.
AS: Yep. Your alma mater might push back on that, but you are correct. Most of the reports are positive. Yes.
DL: Fair enough. Let’s go back to where you've been left in this process, and HR says they can't help you, and your law school can't help you. What did you do next?
AS: I reached out to some other D.C. judges who connected me with the commission where I ultimately filed my judicial complaint. I wrote it, but I wanted to wait to find a new job because I was worried the judge would retaliate against me. It took me about a year to get back on my feet. I secured my dream job in the D.C. U.S. Attorney's office and moved back to D.C. in the summer of 2021, intending to launch my career as a prosecutor and, I hoped, put all this behind me. I had not been in touch with the judge, and I was hoping to move forward.
DL: And I think he had said at some point to you that he would give you a neutral reference if asked?
AS: Yes. That’s correct.
DL: You're at the U.S. Attorney's Office. This is your dream job. This is what you had wanted to do in law school. This is why you clerked for the D.C. Superior Court, to get this job. It seems like everything is going great, right?
AS: For a couple weeks. Security clearance seemed to be taking a little bit longer than it should have, which was a red flag. But I was two weeks into training, I'd already started working there, they'd given me all the materials—and I received some pretty devastating news that altered the course of my life. I was told that the judge had made negative statements about me during my background investigation, I wouldn't be able to obtain a security clearance, and my job offer was being revoked.
DL: Wow…. And then what did you do next? Did you have any ability to push back or explain or say, look, this was a really biased and unfair review or assessment?
AS: I called HR, I called management at the D.C. U.S.A.O. and they said there was nothing they could do, that the decision was final. I absolutely tried to explain. I cried on the phone. I ultimately filed a FOIA request, which was denied in full, even though it was a reference about me that led to the denial of my security clearance. I actually was offered the opportunity a couple days later to interview for another job with that office, and then they revoked that too, based on the judge’s same negative reference. At this point, I was two years into my legal career, and this judge just seemed to have enormous power to ruin my reputation and destroy my career.
So I filed a judicial complaint with the D.C. Commission on Judicial Disabilities and Tenure. That is a regulatory body for D.C. judges. I hired attorneys and in the summer, in fall of 2021, participated in the investigation into the now-former judge, and we were partway through that when I found out separately that the judge was on administrative leave pending an investigation into other misconduct. At the time he had filed this negative reference, but the U.S.A.O. really was not alerted to the circumstances surrounding that negative reference until January 2022, when pursuant to the terms of our private settlement agreement, separate from anything the judiciary can or would do for a law clerk, the former judge issued a clarifying statement addressing some but not all of his outrageous claims. But by then, the damage had been done. It had been way too long, and I was pretty much blackballed from what I thought was my dream job.
DL: Wow. Now, I think you wrote at some point that you did see some of the content of the negative reference—how did you get that? You mentioned your FOIA request was denied.
AS: I have a copy of the negative reference, through private settlement negotiations between my attorneys and the then-judge’s. I am enormously grateful for everything my attorneys did for me. Were it not for them, I would never have seen this outrageous negative reference, and most law clerks in my position are not fortunate enough to be able to hire attorneys to pursue this type of a claim.
DL: I'm curious, this is maybe a bit of a digression, but whom did you hire? It's not like “clerkship abuse” is a practice area. Were these employment lawyers, did they have experience with the judiciary, how did you even know where to turn?
AS: Great question. I found my attorneys through a high-profile person in the movement to prevent harassment in the judiciary. She let me use her name. Gave me a list. I started calling through it. It was a large employment litigation shop that does this type of work—not this type of work specifically, but they were fantastic. I'm really grateful for them.
DL: So you reached an agreement with the judge. Were you then able to move on with your life professionally? What happened after that?
AS: Sort of. I agreed not to identify the judge by name. That is why I refer to him as “the former judge.” He agreed to issue a clarifying statement to the U.S.A.O. addressing some of the claims in the reference. I reapplied to the U.S.A.O., but they definitely did not want anything to do with me. So I found a new job as a family law attorney and thought I would pursue that work.
But during the summer when I was going through the judicial misconduct investigation, I became aware of the Judiciary Accountability Act, or “JAA,” which is legislation that would extend Title VII protections to judiciary employees, including law clerks. Currently, folks like me cannot sue our harassers and seek damages for harms done to our lives. So I reached out to a bunch of House and Senate offices involved with that bill to share my story, advocate for the legislation, advocate for an amendment to cover the D.C. courts, which are Article I courts and are currently not covered under the bill. And then a House Judiciary hearing occurred in March of 2022, and I was invited to submit written testimony advocating for the bill, sharing my story. And then I got involved in the weeks and months following that [with] further advocacy work around these issues. Eventually I launched the non-profit in June.
DL: I would recommend to people that they check out your testimony. I put it in the show notes. It's very powerful, very detailed. It identifies the problem and talks about possible solutions. In a nutshell—you talked a little bit about it just now—what would the Judiciary Accountability Act do?
AS: The JAA, H.R. 4827 and S. 2553, is such important legislation. It would extend Title VII protections to judiciary employees, including law clerks and federal public defenders, but it would do a lot of other important things too. It would clarify that Title 28 of the U.S. Code, which defines judicial misconduct, includes discrimination, harassment, retaliation—currently it doesn't even say that. It would specify that judges who retire, resign, or die amid a misconduct investigation—those [inquiries] won't cease. Currently they do. Some of the most notorious harassers, like former Judge [Alex] Kozinski, step down amid a misconduct investigation, and the judiciary loses jurisdiction over them.
It would also standardize employee dispute resolution or EDR plans in the federal courthouses. Courts are theoretically required to follow the EDR plan, but they each implement it a little bit differently. And then it would also impose some really important data collection requirements on the federal judiciary, requiring them to collect and publicly report the results of a workplace culture assessment. They have been just notoriously unwilling to do that until very recently. It would require more transparency around the judicial misconduct complaints. When a judge is adjudicated to have committed misconduct, currently, if you go on the U.S. Courts website, their names are redacted. They are not searchable. It would increase transparency in that. It would also require the judiciary to report data on the lack of diversity in law clerk and federal public defender hiring. The real dearth of data in these spaces has allowed judges to get away with misconduct for decades.
DL: This legislation seems like a very important part of the solution. Was your suggestion that it be amended to include D.C. Superior Court and similar courts accepted? Is that now part of the proposed legislation?
AS: It's not yet—a Senate hearing would help to revisit this and other issues. It's definitely under consideration. I was told that it was more an oversight than anything else. So, I’m hopeful.
DL: What is the status of the JAA right now? Are you optimistic about its chances of passage?
AS: It's kind of stalled in Congress. It has 26 co-sponsors in the House, one Republican, six co-sponsors in the Senate, no Republicans yet, but I think that really does not—I know that does not represent the broad swath of folks interested in this legislation. It just needs some sustained attention and a Senate hearing. I always caution that we can't only talk about these issues when there's a flashy hearing. At the same time, I've been told that [a hearing] would garner additional co-sponsors, so it's really important.
It’s a bipartisan issue. Both Democratic and Republican judicial appointees harass their clerks, both liberal and conservative clerks face mistreatment. The federal judiciary leadership is a weirdly powerful lobby, and they are vociferously opposed to this bill. They have been since 1995, when Title VII was extended to the other two branches. It just needs some sustained attention. Congress has a lot going on every year, but I'm going to keep poking at them about this bill, about a Senate hearing. It’s so important. Law clerks absolutely cannot wait another year for these urgently needed reforms. It’s outrageous that law clerks are uniquely exempt from Title VII.
DL: Why is it that it has so much less support on the Republican side of the aisle? I agree with you that it doesn't seem like it should be a partisan issue.
AS: It just doesn't have enough folks lobbying Republicans on the House and Senate Judiciary Committees right now, which was part of the point of my article with the Harvard Journal on Legislation, The Conservative Case for the JAA. I have been reaching out to Republican offices to talk about the bill, and they are receptive and interested. House Republicans during the March 2022 hearing seemed receptive as well, at least to the Title VII protections. I'm a little worried they might want to sever the bill and deal with the Title VII protections now and handle other things later, which I don't think they should do. It just has a lack of support generally, and if we got more Dems we might get more Republicans too. It's a question of putting someone's personal face and story on abstract issues and giving this bill sustained attention.
DL: Absolutely. And your testimony did that. And several other women came forward as well and offered testimony. There has been media coverage, so it is starting to get traction. But I guess we'll see what happens in January or in the new session.
AS: The lack of people willing to come out and speak publicly on this issue makes it more challenging because judiciary leadership likes to claim these issues are not pervasive in the courts. And I think House and Senate Republicans, probably some House and Senate Democrats too, think similarly, because there's just a dearth of folks willing to share their stories publicly. My story is definitely not rare, but it is certainly rarely shared. And there is just a real culture of fear and silence, one of deifying judges and disbelieving law clerks. I think we're in a better position now than we were in 2018 or 2020, when two previous hearings occurred on these issues. But we still have a long way to go.
DL: Let me play devil's advocate. What do you say to arguments that the judge-clerk relationship is a unique relationship and there are duties of clerk confidentiality? There were certainly clerks who, for example, wanted to report allegations against Judge Kozinski, but they were worried about violating the duty of confidentiality. What do you say to people who say this is going to undermine that, that special relationship that makes a clerkship such a great mentorship experience for so many?
AS: The judiciary has taken some steps to clarify that the duty of confidentiality does not deal with workplace issues, and anybody who is mistreated can and should report that. Perhaps it is a unique relationship, but I think a clerkship should be considered a job like any other, and the judges should be considered employers running a small workplace. What makes it a unique job is that judges have outsized influence over their former clerks’ lives, careers, and reputations, and that this first legal job for many folks has outsized influence over their future career success, which makes it particularly important that we address these issues and particularly important that the next generation of young attorneys are protected from mistreatment.
DL: Another point you've made in your writings is at least for the Article III judges, there’s life tenure, so in some ways they have even more protection than members of Congress or the president. They're not responsible to the voters. And also they're in some ways more low-profile. Even if there's a kind of hero worship or celebrity worship of judges, at the end of the day, they're not as famous as, say, U.S. senators—so they can probably get away with a lot more, I would guess.
AS: Absolutely, they can and they do. Continuing to exempt judges from Title VII and conferring upon them life tenure really sends the message that they're untouchable, that they’re above the laws they enforce. They shouldn't be. And definitely life tenure contributes to these problematic behaviors.
There's a lack of accountability in the judiciary. Judges are never disciplined. Complaints are rarely filed to begin with. It is a broken system, and I think the JAA and the Judicial Conduct and Disability Act, which is the federal complaint process whereby a clerk can complain about a judge, are really the floor and not the ceiling for judicial accountability legislation. And I would just underscore for anybody who thinks my story is rare or particularly outrageous, it is definitely not, and judges are empowered to get away with outrageous misconduct. And what keeps law clerks silent, what keeps them from filing any sort of complaint, is that they fear that what happened to me will happen to them. That is how judges, some judges, the misbehaving ones, lord their power over their clerks, which is really troubling.
It's definitely not all judges. There are lots of wonderful judges who reach out to me to extend their support for what I'm doing and thank me. But these issues are unaddressed in both the state and federal courts, and I'm really hoping that judiciary leadership takes it seriously.
DL: What about the argument that the judiciary can police itself and that things like the JAA are threats to judicial independence and the separation of powers?
AS: Internal self-policing leads to a lack of policing, and any attempts at internal self-discipline really lead to a lack of discipline. I remain enormously troubled that all judicial accountability mechanisms are run by other judges in the courthouse or the circuit where the complainant law clerk and the misbehaving judge work. Judges are notoriously unwilling to discipline their colleagues. Even when they see misconduct occurring, they're notoriously unwilling to even pull a judge aside and say something.
The judicial independence argument is kind of nonsense. We are not talking about suing judges for their rulings, something I would not support. We are saying that judges are employers running a workplace like any other, like the other two branches of government, those are employers. When employees are mistreated, they can sue and seek damages. We're just talking about treating judges like other employers.
DL: Have we seen any disasters result from the fact that other governmental entities are subject to suit for workplace violations?
AS: Not at all. And part of it is just it sends the right message to say that you are an employer, you are subject to Title VII, you are an employee, you are protected by it. We have not seen any downstream negative consequences from extending Title VII to the other two branches of government.
DL: Your testimony was in March 2022, this year, and then in June you started the Legal Accountability Project. Can you tell us what that is about?
AS: Sure. So the Legal Accountability Project basically seeks to ensure that law clerks have a positive clerkship experience and then extends support and resources to the ones who don't. I think of the nonprofit as the resource I wish existed as a Wash U law student applying for a clerkship, a law clerk facing harassment and unsure where to go for help, and a former clerk engaging in the formal judicial complaint process. And we're working on a couple of major initiatives in collaboration with law schools beginning this year, and I think that law schools have historically received a free pass in the conversation about judicial accountability and that they should be the first to step forward and make some changes to protect the next generation of folks.
DL: You have a couple of projects or initiatives you're working at the Project—can you talk about some of them that you're rolling out this fall?
AS: Absolutely. So the Legal Accountability Project is basically premised on gaps that I see in the clerkship application process, a lack of standardization, a lack of transparency, as well as larger issues related to a lack of accountability in our judiciary. So I speak to a lot of law students and I'll say, “So you want to clerk? Great. How would you avoid judges who harass their clerks?” Some might say, “I'd ask someone,” but who are you going to ask? Clerkship directors and deans tell students to “do their research,” but what research are they going to do when so little information about judges is available on an equitable basis?
The major initiative we're working on this year is a centralized clerkships reporting database, which is going to democratize information about judges so students considering a clerkship have as much info about as many judges as possible before they make what is clearly a really important decision about their careers. It's basically a better version of the post-clerkship survey that a handful of schools do already internally. As you and I talked about earlier, the schools that do them recognize they’re mostly positive reports in there. What I try to tell schools is no school has a monopoly on information about judges. Every school has a ceiling on the number of judges they can keep track of, and it totally depends on who their alumni have clerked for in the past.
We are going to have law clerk alumni from participating schools create an account with us and write a report about their judge and their clerkship—good, bad, medium, we want to hear everything—and our questions elucidate lots of information you might want to know before clerking. Certainly mistreatment is something we seek to capture in a way that law schools are not doing right now, but it's also how does the judge provide feedback, do I get writing and courtroom experience, can I take vacation? All kinds of stuff you might want to know about your boss and your job, most of which is just not available to students right now.
Law clerk alumni report into the database. It's a subscription model, so law schools pay us $5 per student per year based on their total J.D. enrollment, and then in exchange, law students get access to reading the reports. But why it's better than anything law schools do right now [is that applicants] don't just get to read their [own school’s] alumni reports. They read the reports of all the alumni from all the schools participating in database. I am confident this is the best way to infuse transparency into the opaque clerkship application process and protect the next generation of attorneys against harassment.
DL: It sounds really useful. It's a resource I would've wanted to have when I was applying for clerkships. Are you going to require clerks to put their names in? Because obviously, as we know from your case, retaliation can be a problem. But if the clerks are[] anonymous, is there a fear of false reports? And what about if students want to get in touch with somebody for further discussion? Can people be anonymous?
AS: Yes, law clerks can report anonymously. There is an option on the last page: would you like to provide your name to students considering this clerkship? We anticipate that the law clerks who face mistreatment will report anonymously, and that is one of many reasons why a lot of law-clerk alumni like this. They also feel an increased sense of anonymity because there are just more people reporting in from more schools in a way. I talk to students and alums from schools that do a post-clerkship survey and they say, I would not fill out my school’s, I don't feel sufficiently anonymous, I would fill out yours.
Your question about false reports—we do not have a culture of false allegations against judges. We have a culture of fear and gross underreporting. I'm not at all concerned about false allegations. We do obviously have a privacy policy, and law clerks are signing off that they will report truthfully. I am confident they will. I think students and alumni understand this is a desperately needed resource, and if there were false reports or folks misusing the database, it could no longer exist.
What you talked about with the clerk-to-student information sharing is often referred to as the “clerkships whisper network.” This is inefficient at best and ineffective at worst, and that the folks who have the information, it often does not get shared with the folks who need. We are not saying you should not reach out to former clerks. What we are saying is that it is an inefficient system, and for law clerks who face mistreatment, they typically do a couple things. They either don't report that back to their law schools, or they take themselves off the list of alumni to be contacted for clerkships, or they do respond to requests, but they are re-traumatized every time somebody reaches out, or they just don't share the full information. Those are all issues we're seeking to combat. Instead of those things, the mistreated clerk can take 10 minutes, fill out our post-clerkship survey once, and then never have to be contacted again. So we think it's better.
DL: Again, I think it's a great resource and a great idea. Are you worried about—again, I think this would be unlikely because it's sort of like the Streisand Effect, it would just draw more attention—but are you worried about a judge, say, finding out about this and then suing the Project to try and either unmask this person or get a retraction or, I don't know what….
AS: A couple things. This is not a public-access website. The only people who will have access to reading the reports are students from participating law schools and young alums from those law schools. Law clerk alumni get write-only access. They write a report, they can't read them. Part of the privacy policy is that you cannot screenshot this, you cannot share this with folks who do not have access. We are not worried about defamation because we will have Section 230 immunity. We are just posting what people want to write. They can write seven paragraphs, they can write my judge was nice, we're just posting what they write.
Judges actually support this. They reach out to me a lot to convey their private support. We're hoping to turn that into public support very soon. Judges understand that positive reviews in the database will bolster not only their reputations, but also their clerkship applicant pools, because what I see is it's historically marginalized groups, women, non-white folks, LGBTQ folks, who face the brunt of mistreatment during these clerkships, and either decide not to apply or they apply less broadly because they just don't have the info they need. I receive a lot of outreach from LGBTQ students asking who are the friendly judges to apply to, who are the not-so-friendly ones to avoid? I have to say we don't have that info yet, but we will.
Judges like this. I know it's a disproportionate sample of folks who reach out to say, I support you and I'm a judge, and probably the ones who hate this are going to be quiet. It should be a red flag if any judges are out there publicly opposing this because there must be reasons why they do. And look, the thing is, we are doing what a handful of schools, including your alma mater, already do internally. Judges know which schools have a database. They bring them up and they don't make us think about that because they know that most other employers, in most other professions, are reviewed. Why should they be uniquely not subject to any reviews?
DL: What is the status of the database—when will it go live, when will people start to be able to access these reports?
AS: The database is a working prototype right now, and our engineers are building the final product. Law clerk alumni will begin reporting into it this winter, and it will go live in spring 2023 for students from participating schools considering clerkships. And for folks who think this is a good idea, if you are a law student or an attorney, reach out to your law school and encourage them to partner with us. Most administrations are considering this right now, and we think student and alumni support is going to make a difference everywhere.
DL: I think people should, if they're interested in this resource, let their school know that the school should sign up for it if it hasn't already. Before we go, I was wondering if you could also talk about what the Project is working on in terms of the culture assessment?
AS: Yes, we are doing a workplace culture assessment of the federal and state judiciaries. It's a climate survey that's finally going to answer the question, “How pervasive is harassment in the judiciary?” The federal judiciary has just been notoriously unwilling to do this until very recently. [After] five years of advocates poking at them, they finally agreed to do one, but they've specifically not committed to reporting the results publicly, which I think is an enormous red flag.
We are surveying both state and federal clerks from a variety of institutions. In addition to standard climate-survey-type questions, we're also asking a section of questions that is particularly important, and it's about law clerk concerns about reporting formally to the judiciary, informally to their law schools. The federal judiciary likes to claim that these issues are not pervasive, yet they have conducted no type of workplace assessment that would show that.
Unfortunately, a handful of law school clerkship directors and deans say things to me like, “We're blessed to work with only good judges in this circuit! All our alumni have a positive experience!” That is nonsense. But the dearth of folks reporting back to their law schools right now means that they can kind of disclaim responsibility, so we're seeking to quantify that as well for some challenging clerkship directors and some challenging judiciary officials.
DL: When do you expect the assessment to be available?
AS: We're not going to send it out until summer of 2023, so a little while. We're trying to focus on the database. We overshot our timelines a bit for getting schools on board, so our full effort goes toward that right now. But I've been heartened by the very positive response from the vast majority of law schools who are very willing to engage, and I appreciate that.
It’s the right time. Advocates over the past couple years have really laid the groundwork, and now it's time to make changes to protect the next generation of young attorneys. Law schools are working in good faith with me and I appreciate that, but no school is doing an adequate job of protecting their students and alumni against mistreatment right now. We are offering them concrete solutions for radically under-addressed issues, and I hope everybody considers partnering with us this year.
We're definitely facing a first-mover problem. Everybody's looking around and seeing who's partnering with us. That's the first question we get from every dean, who else is doing this? Somebody's got to be first. There are a couple of really brave deans and clerkship directors who I’m optimistic will be leaders.
DL: I think, just based on having observed the legal profession for so long, that they're like lemmings. Once you get one or two or three, especially if they're big-name schools, you'll get many. You just need—it's like what just happened with these U.S. News rankings and Yale and Harvard—you just need somebody to do it. So you're working on a first mover, but you don't have one just yet?
AS: We're very optimistic about a couple. We're not ready to announce them, but we feel very good.
DL: Well, in closing, Aliza, I'm so thankful for your time and insight. For people who want to reach out to you to help out with the Project or to tap into resources, what's the best way for them to either contact you or get in touch with the Project?
AS: Our website is legalaccountabilityproject dot org, and my email is Aliza dot Shatzman at legalaccountabilityproject dot org. I receive a lot of outreach from current and former clerks. I always appreciate that. Please reach out, learn more, support us. We're recording this the day before Giving Tuesday, so it’s a good time to support us.
DL: You are a 501(c)(3)?
AS: We are working on it. We will be in a few weeks.
DL: Excellent. Well, anyway, thank you so much for your time, your insight, and all of the work you're doing on these very important issues. A lot of us really appreciate what you're doing.
AS: Thank you.
DL: Thanks again to Aliza, who is doing very important work. Reasonable minds can disagree on the details of specific reform proposals, but everyone who cares about the judiciary should care about the workplace treatment of law clerks.
As always, thanks to Tommy Harron, my sound engineer here at Original Jurisdiction, and thanks to you, my listeners and readers, for tuning in. If you’d like to connect with me, you can email me at davidlat@substack.com, and you can find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram at davidbenjaminlat.
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When Judges Mistreat Law Clerks: An Interview With Aliza Shatzman