New Chief Justice Roberts delivers the opinion for the court. His summary of the issue:When law schools began restricting the access of military recruiters to their students because of disagreement with the Government’s policy on homosexuals in the mi…

I’d have to think more about the other two. You make reasonable points. But, like you, I still think something is a little off about the whole process.

Also, George Priest has an excellent article on matching markets and other markets using time as currency to clear markets where the use of price is otherwise constrained. There is a version on SSRN available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=444220.

Sorry for the delayed reponse. Busy, busy day.

I’ve long thought the clerkship cartel was fishy, and I’ve always been proud of Judge Jerry E. Smith, for whom I clerked, for refusing to participate. That said, I think there are some important distinctions between the judges’ agreement and that of AALS members. Here are four off-the-cuff thoughts:

First, federal judges are not really competitors (other than for prestige, etc.). They’re basically agents of a larger single body — the federal judiciary — and, in theory, they should be wholly devoted to its proper functioning. Any agreement among the judges would likely come within Copperweld’s intra-enterprise conspiracy doctrine. AALS member schools, by contrast, are bona fide economic competitors. An agreement among them is more troubling.

Second, the clerkship cartel strikes me as less likely to result in allocative inefficiency. The AALS agreement causes allocative inefficiencies because, among other things, it affects the “prices” paid for law professors. Oftentimes, law schools will not inform their professors of how much they’ll be making the next year until after March 1 — i.e., after the time when they could threaten to go elsewhere. This reduces the degree to which law schools will compete for professors and, thus, the “accuracy” of the price paid for teaching talent — i.e., the degree to which it reflects the true value of the professors’ services. The net result is that professor talent may not be allocated according to its highest and best uses. With judicial clerkships, by contrast, there’s no reason to worry about labor prices not reflecting actual labor value, for the price of clerk labor is not determined by the competition among judges for clerks. In fact, the clerkship cartel may enhance allocative efficiency, for it’s more likely that judges will be better able to identify the best and brightest if they have more of a law school record to go on, and the agreement among judges is the best way to ensure that they have that record. [Note that the competition-reduction occasioned by the cartel may result in a different matching of judges and clerks (e.g., Judge x may end up with Clerk y rather than Clerk z), but its only likely effect on which clerks make it into the system at all is probably positive.]

Third, whereas the clerkship cartel is probably the least restrictive (and perhaps only) means by which judges can avoid the problem of “early offer creep” and thereby ensure that the best and brightest are selected as law clerks, the agreement among AALS member schools is NOT the only way law schools could avoid the disruption of late-term faculty departures. They could easily insert in faculty contracts some sort of liquidated damages provision requiring the faculty member to pay a substantial sum if she decides to depart after March 1 (or whenever). The possibility of a less restrictive option — one that makes sense if adopted unilaterally — makes the AALS agreement look even more anticompetitive.

Finally, there seems to be a difference in that the clerkship cartel facilitates the creation of a centralized market for law clerk services. This was one of the bases on which the Supreme Court approved the restraint of trade at issue in the Chicago Board of Trade case (see 246 U.S. at 239). The Court said that a limitation on the period of price-making basically encouraged all buyers and sellers to come together at a single place and transact. (This, of course, led to more efficient prices, etc.) The clerkship cartel similarly gets all the players in the same “place” at the same time. The AALS agreement, by contrast, doesn’t encourage participation in any kind of public bidding system.

That’s all I have off the top of my head. I’d be interested if others can think of additional distinctions.

Haven’t had a chance to read your piece on the AALS yet, but any thoughts on the clerkship cartel? Are a strong majority of federal judges violating the antitrust laws as well?