Balkinization: Training Academies and the Rule of Law

Training Academies and the Rule of Law

Richard Primus

Here's a report recently out in The New York Times about a training academy for law clerks, run by the Heritage Foundation:

https://www.nytimes.com/2018/10/18/us/politics/heritage-foundation-clerks-judges-training.html

Let’s assume that what the Heritage Foundation is teaching law clerks is a set of legitimate skills and knowledge bases for the making of legal decisions. If so, then it’s perfectly appropriate for clerks and judges who learn about those skills and knowledge bases to apply them when making legal decisions.

But according to the report in The New York Times, the clerks who attend Heritage’s training academy promise not to apply the skills they learn and the knowledge bases they acquire in any way that would be inconsistent with the mission or interests of the Heritage Foundation. That is, they are promising to ignore the import of those skills and knowledge bases when those skills and knowledge bases, as applied to particular cases, would point toward results contrary to the mission and interests of a specific private organization. To be concrete: if Heritage teaches law clerks a method of interpretation of enacted legal texts, and a clerk applying that method in a particular case would conclude that the right result in the case is a result that the Heritage Foundation would see as contrary to its own mission and interests, the clerk, to keep his or her promise, would have to decline to apply that method of textual interpretation that he or she learned at the training academy.

So if the report in the Times is accurate, and if the clerks keep their promises, then one of three things must be true, as follows:

Possibility 1: Over a certain domain of cases, the clerks will knowingly refuse to write bench memos reaching legal conclusions that follow from their best good faith interpretations of the law, as understood in light of their legal learning (including what they learned from the Heritage Foundation).

Possibility 2: The clerks will never be in the position described in Possibility 1, because the clerks’ best good faith interpretations of the law (including what they learned from the Heritage Foundation) will always produce results consistent with the mission and interests of the Heritage Foundation.

Possibility 3: The clerks will never be in the position described in Possibility 1, even though the clerks’ best good faith interpretations of the law will sometimes produce results inconsistent with the mission and interests of the Heritage Foundation, because in all cases where the clerks’ best good faith interpretations of the law produce results inconsistent with the mission and interests of the Heritage Foundation, the clerks would reach those results whether or not they applied skills and knowledge bases learned at the training academy. (In other words, in cases where the clerks might think the law goes against Heritage’s interests if they analyzed the law without the benefit of the learning acquired at the training academy, applying the learning from the training academy would not make any difference to the clerk’s view of the proper outcome.)

Possibility 2 seems unlikely. It would be odd for any private party to have a mission and a set of interests that perfectly cohere with all existing law, unless that private party defined its mission and interests solely as the mission to see that the law is correctly applied. And if that were the full extent of Heritage’s understanding of its mission and interests, it wouldn’t need the clerks who attend its academy to promise anything. Everything that the promise Heritage extracts covers would already be covered by the law clerk’s obligation to act in good faith to help his or her judge get the law right. (One might say that it would be covered by a different promise that every law clerk makes on the first day of the job: the one in which he or she swears to uphold the Constitution.) To be sure, Possibility 2 doesn’t require that the law actually cohere fully with Heritage’s interests: it requires only that the law clerks think it does. But if it doesn’t actually and the law clerks think it always does, well, that’s a problem, too.

It’s pretty clear that the Heritage Foundation doesn’t believe in Possibility 3. An organization that believed that applying the skills taught at the training academy would have no tendency to produce more decisions that were to its own liking would not invest in the training academy in the first place.

The uncomfortable inference is that we may be left with Possibility 1. Which is uncomfortable because Possibility 1 is a subversion of the rule of law.

Posted 3:39 PM by Richard Primus [link]