February 2006

On the heels of my recent post on the importance of law clerks to judicial decision making come the news that Justice Alito has selected his clerks. Alito picked up two of Justice O’Connor’s clerks, Sasha Volokh and Ben Horwich, and also hired Williams & Connolly associate Hannah Smith, who clerked for Alito in ‘01-’02 before clerking for Justice Thomas in OT03. Most interesting though, are Alito’s remaining two hires: current Sidley Austin litigation partner and former Congressional candidate Jay Jorgensen, who clerked for Alito in ‘97-’98 before clerking for Chief Justice Rehnquist in OT99; and Adam Ciongoli, who clerked for Alito in 1995 and 1996, was an aide to Attorney General John Ashcroft from 2001 to 2003, and currently serves as General Counsel of Time-Warner Europe. Charles Lane reports for the WaPo, and Adam Liptak reports for the NYTimes.

I can’t think of any team of clerks so experienced in recent years. Most Supreme Court clerks are relatively recent law school graduates, clerking for a Circuit Court judge, followed by a short stint at a major law firm, the OLC, or the DOJ. Certainly there are occasional exceptions, such as Orin Kerr clerking for Justice Kennedy after teaching at GMU, but not often. Liptak tries to drum up some controversy over the political views of the new hires, particularly Ciongoli, but most commentators seem not to be buying it. Paul Horwitz comments over at PrawfsBlawg, and I agree with his point that there is no reason to think that young clerks have any less an ideological or partisan agenda than older clerks; there simply isn’t the paper trail demonstrating such an agenda in those cases. More than anything else, Alito’s selections demonstrate his trust in his clerks and the need to be able to rely on those with whom you work so closely. UTR has more on recent Supreme Court hiring.

Update: Paul Horwitz continues the discussion at PrawfsBlawg, offering as a comparison Justice Brennan’s decision to withdraw a clerkship offer from Mike Tigar.

The SEC has proposed new rules [pdf] to drastically increase requirements on executive compensation disclosure. You can read a summary of the proposal in the SEC’s press release, as well as statements from Chairman Cox and Commissioner Atkin.

Securities regulation is the United States is primarily centered on required disclosures, and this latest proposal by the SEC has renewed debate on disclosure regulation. Larry Ribstein has a number of posts criticizing the proposal, Geoffrey Manne has two very interesting posts discussing the costs of disclosure regulation, Stephen Bainbridge weighs in on disclosure regulation here and here.

While most of the corporate law academics are concerned that disclosure regulation has gone too far in imposing costs on corporations, others believe that regulation has not gone far enough. Pending in the House of Representations is the Protection Against Executive Compensation Abuse Act, which would require that issuers of a certain size not only disclose but also obtain shareholder approval for compensation of “principal executive officers,” including severance compensation. Christine Hurt comments on shareholder approval requirements here.

The new proposal isn’t the only controversy surrounding executive compensation. Last year FASB adopted a rule, SFAS 123R, requiring that the grant of stock options be treated as an expense for accounting purposes. Richard Booth and Geoffrey Manne weigh in on that issue.

[I posted this to MetaFilter earlier today.]

David Garrow reviewed Justice Blackmun’s papers, released to the public in 2005, and concludes that towards the end of his career, Blackmun’s clerks all but signed his opinions. In an interview, discussing senility and Supreme Court Justices, Garrow argues that there has been “a dramatic increase over the last 35 or 45 years in the amount of the justices’ work that is performed by their law clerks,” and recommends a “reduction to two or, even better yet, one clerk” from the four clerks available per Justice now. Garrow also comments on the now-deceased Chief Justice Rehnquist, who suffered from an addiction to painkillers in the 1980s. Garrow’s view is controversial, though, and Legal Affairs published several responses in the same issue. Other law professors have weighed in, including Dan Markel, Mark Tushnet, and some of the folks at the Volokh Conspiracy. So how large is the impact of law clerks?

Oh, and to get a little gossipy, you can usually rely on UTR to keep you up to date on all the inside info on Supreme Court clerks, although that duty has been temporarily delegated to MetaFilter’s amber_dale while A3G takes over Wonkette.

[I posted this earlier today to MetaFilter.]

Lawyers appear to missing out on the growth of the leisure class. Despite American’s growing leisure time, and despite another round of pay increases for starting associates, lawyers seem to be working more hours than ever. As long as lawyers are tied the billable hour, it seems that greater salaries for associates inevitably means longer hours for associates. Law professor Pat Schiltz argues [pdf] that the longer hours for new associates combined with the high pressures of law practice means that those lawyers often suffer from depression, anxiety, alcoholism, drug abuse, and suicide at very high rates, and are often forced into unethical practices just to meet the requirements of the law firm.

[I posted this earlier today to Metafilter.]