Last month, Prof. G. Mitu Gulati of the Duke School of Law and Judge Richard A. Posner of the Seventh Circuit Court of Appeals released paper No. 531 in the Chicago Public Law and Legal Theory Working Paper Series, The Management of Staff by Federal Court of Appeals Judges. In this essay, the authors examined exactly what the title says: how federal appellate court judges manage, utilize, and interact with their staffs. As the authors state, appellate “staffs are essential, given judicial workloads and judges’ limitations,” but unfortunately, “not much is known about how the judges manage their staffs,” and so Gulati and Posner aimed to fill this knowledge gap by a series of personal (but anonymously reported) interviews with over 70 federal appellate judges.
Gulati and Posner reduced their interview results to three “styles” of staff management among federal appellate judges: Editing Judge (the “Standard Model”), Authoring Judge (the “Stripped-Down Model”), and Delegating Judge (the “Hierarchical Model”), while also accounting for popular deviations among judges. Under the Editing Judge/”Standard Model”—the most widespread among the federal appellate judges interviewed—the judge hires four fresh law clerks each year to assist with cases that will result in written opinions, prepare and exchange bench memo and opinion drafts, and maintain egalitarian collegiality even after finishing their clerkship. The authors mention Judge Friendly as an example of the Authoring Judge, under which model the judge generally writes the opinions and uses clerks as research aides in an informal and collegial atmosphere. According to Gulati and Posner, the Delegating Judge often employs a “career clerk” to help manage and coordinate the more junior clerks, who work quite closely with both the career clerk and the judge himself, and the judge maintains a more formal atmosphere with a stricter code of secrecy.
The authors also noted several interesting deviations from the three models they described, including tactics for interviewing and selecting clerks, the use of secretaries as workflow managers, and the prevalence of judges’ use of a “family atmosphere” to describe their staffs, and proposed several new avenues for research by academics or the Federal Judicial Conference. In all, Gulati and Posner provide a comprehensive understanding of staff management practices across the federal circuits in an insightful Working Paper.