A sweeping new academic study confirms what legal insiders have long suspected: the federal judicial clerkship has transformed from a one-year launchpad into a multi-year credential arms race.
The paper, titled “Stacking the Deck,” was written by law professors Tracey George of Vanderbilt, Albert Yoon of Toronto, and Mitu Gulati of UVA.
The study is dedicated to the late Judge Richard Posner, who conceived the project before illness prevented him from completing it.
Drawing on interviews with 146 sitting federal judges, the largest such dataset ever assembled for academic research, the paper examines what its authors call “clerkship stacking.”
Stacking refers to the practice of completing two, three, or even four sequential clerkships before entering legal practice, a path once reserved only for those on a direct trajectory to the Supreme Court.
The clerkship community has even developed its own vocabulary: a circuit-then-district sequence is a “remand,” while district-then-circuit is an “appeal,” and filling years before an already-secured clerkship is called “backfilling.”
As the authors write, “A market with its own argot is a market that has normalized something once remarkable,” capturing the extent to which stacking has been absorbed into mainstream legal culture.
The financial incentives driving the behaviour are substantial, with firms openly paying premiums for clerks who have completed multiple clerkships over those who have served only one.
Susman Godfrey now pays $180,000 for a single federal clerkship and $200,000 for two, while Hueston Hennigan matches those figures and Quinn Emanuel offers $175,000 with an additional $25,000 kicker for a second clerkship.
Boies Schiller offers $150,000 for one federal clerkship and $175,000 for multiple, meaning firms are, in effect, paying people directly to stack by building premiums into their own bonus structures.
One circuit judge in the study put it plainly: “There’s no penalty to being a clerk. These clerks [get] generous clerkship bonuses — so there’s no rush to go to private practice.”
The Federal Law Clerk Hiring Plan and OSCAR, the Online System for Clerkship Application and Review, were both designed to give students more time to accumulate grades before the hiring process began.
Instead, those reforms have produced a mass application problem, with one circuit judge observing, “The problem with OSCAR is that it incentivizes mass applications. Students don’t know about the judges they are applying to.”
The result is applicants so unfamiliar with geography that, as one judge in an out-of-the-way jurisdiction complained, they “have no idea where Illinois is, let alone Peoria.”
The timing fix has also backfired in a more structural way, as one circuit judge summarised: “OSCAR forces compliant judges to hire late, and late hiring creates the gaps that stacking fills.”
The study specifically names David Lat, the founder of Above the Law and now running Original Jurisdiction, as a contributing structural force whose meticulous public tracking of feeder judges turned diffuse insider knowledge into an aggregated, searchable prestige hierarchy.
The central argument of “Stacking the Deck” is that stacking is not an irrational pathology but a rational market response to a structural information failure, and that well-intentioned reforms have perversely made the problem worse.
Judges agree that certain forms of stacking are troubling, yet few see ready solutions, with the problem lying not in awareness but in a structure of incentives that makes restraint individually irrational even when the collective outcome is seen as suboptimal.
The study’s conclusion offers its most succinct diagnosis: “Nobody decided stacking was good policy. It accumulated.”
Until something changes structurally in law schools, the Judicial Conference, or at the Supreme Court itself, the authors warn, “the deck will remain stacked.”