Name: Douglas A. Berman
Title: Associate Profesor of Law
School: Ohio State Moritz College of Law
Mailing Address:
310 Drinko Hall
55 West 12th Avenue
Columbus, Ohio 43210
Phone: 614-688-8690
Email: berman.43@osu.edu
Home Page: http://moritzlaw.osu.edu/faculty/facultyprofiles/berman.html
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Summary Description:
I recently developed a course entitled The Process of Judging and Clerking, which was new to the Moritz College of Law and is, to my knowledge, unlike any course taught in the country. The course was designed to expose students to the work and working dynamics of judges and their law clerks. I hoped the course would highlight the importance of professionalism within the judicial branch, while also encouraging students to consider the institutional structures that impact the work of judges and their clerks. The idea for this course stemmed from my concern that many law students do not realize or appreciate the role and importance of law clerks in judicial decision-making; the course took shape after I teamed up with U.S. District Judge James L. Graham to develop a course which examined in-depth the work of both judges and clerks.
The Process of Judging and Clerking canvassed a broad array of topics relating to the work and workings of courts, judges and law clerks. We examined variations in federal and state court structures, the processes for electing or appointing judges and the impact on judicial decision-making, the importance of judicial philosophies and of opinion writing, and the unique tasks of trial judges and their clerks and of appellate judges and their clerks. Scheduled as a one-week summer course, The Process of Judging and Clerking could not rely on a traditional text. I assembled a reading list primarily from two short texts Daniel John Meador, American Courts by West, and Louis J. Sirico, Judging: A Book for Student Clerks by LexisNexis which proved effective given the substance and structure of the course. I also distributed articles about judicial selection (drawn from recent analyses of judicial election and appointment controversies) and about judicial philosophies (drawn from lectures delivered by Justices William Brennan and Antonin Scalia).
Though I was responsible for about ninety percent of the pre-class planning, in the classroom Judge Graham and I alternated lecturing and leading class discussions. Because Judge Graham (a district judge appointed by a Republican) and I (a clerk for two appellate judges appointed by Democrats) have distinct institutional perspectives on judging and clerking, we were able to provide students with diverse views on issues we examined. And yet, because Judge Graham and I share similar perspectives on the role of law clerks and the need for independence and professionalism in the judicial branch, students were also presented with a consistent message about the responsibilities of judges and law clerks in our system. To reinforce the professionalism message, we arranged for three guest speakers to come to class: one of Judge Grahams current clerks and two of his former clerks. For over an hour, these three spoke in concrete terms about specific clerking tasks and in grand terms about the meaningfulness of the clerking experience. Throughout the course, the importance of professional values and the relationship between professionalism and effective lawyering were both explicitly emphasized and implicitly on display.
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Program History:
This past August was the first time I developed and offered The Process of Judging and Clerking; its considerable success has led me to think that I should offer the course in some form every year. Because of Judge Grahams busy schedule, we had to squeeze an enormous amount of material into an intense, one-week, one-credit summer course. For an entire week in mid-August, the class met every day from 9am to 12noon (with a 15-minute break in the middle). There were a total of 14 persons in the class (which, according to my associate Dean, was an extremely large enrollment for a non-traditional summer course offer at a non-traditional time.) All but two of the students were third-year law students, and the class drew three cross-registrants from neighboring Capital University Law School.
Though no class participants have yet graduated from law school, I know at least a few students in the class were inspired to embark upon the rigorous and challenging task of applying for judicial clerkship positions, and I know at least one class participant has secured such a position with a U.S. District Judge in Indiana to start following his graduation. Moreover, I know that a number of students have developed a mentor relationship with Judge Graham and me as a result of this course.
As documented by the student evaluations which I have asked my Deans office to send via regular mail, the students considered the class quite valuable. I, too, considered The Process of Judging and Clerking to have been a great success. As I was developing and teaching the course, I came to realize how many critical and current issues of legal and political controversy fall within the ambit of the course and do not get adequate (or any) coverage in other classes. Judge Graham and I worked well together, with complementary interests and strengths, and we both developed lasting professional relationships with a number of the students in the class. Though I am not sure when I will have a chance to offer this course again, I am eager to do so.
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Confidential Items:
student evaluations being sent by my Dean’s office
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Expanded Program Description (Optional):
Since I began teaching at The Ohio State University Moritz College of Law in 1997, I have passionately supported students interesting in serving as a judicial clerk. I consider clerking to be among the most valuable experiences a lawyer can have early in his or her career, and my own clerkships provided me with unique insights and perspectives on effective lawyering and professionalism. (I clerked for Judges Jon O. Newman and Guido Calabresi, both serving on the U.S. Court of Appeals for the Second Circuit, following my graduation from Harvard Law School. These esteemed jurists have served as wonderful role models and mentors.)
Throughout my years at Ohio State, I have worked with our career services office to highlight for student the value of clerking, and have individually counseled dozens of students each year about the clerkship application process. But, despite such efforts, I felt that many law students still did not realize or fully appreciate the role and value of law clerks in judicial decision-making and the unique professional opportunity provided by a clerkship. Looking for new means to educate on these issues, I thought a for-credit course on clerking might draw student attention, and I spoke with my associate dean about how a clerking course might be developed. My associate dean astutely suggested that I team up with U.S. District Judge James Graham, who had expressed interest in serving as an adjunct, to develop a course which examined in-depth the work of both judges and clerks.
Scheduled as a one-week, one-credit summer course in order to accommodate Judge Grahams schedule, The Process of Judging and Clerking presented a number of pedagogical challenges. There were no established texts for the subject matters I wanted to cover, and no traditional law school books are well-suited for a one-week course. After contacting legal publishers to obtain review copies of texts on judicial decisionmaking, I was able to find two readers Daniel John Meador, American Courts by West, and Louis Sirico, Judging: A Book for Student Clerks by LexisNexis which I thought I could use effectively in light of the substance and structure of the course. In addition to assigning parts of these texts, Judge Graham and I also provided students with articles about judicial selection dynamics (drawn from recent analyses of judicial election and appointment controversies) and about judicial philosophies (drawn from lectures delivered by Justices William Brennan and Antonin Scalia).
Throughout the week of the course (during which we met every day from 9am to 12noon), we covered a broad array of topics concerning the work and workings of courts, judges and clerks. Among the many critical and current issues of legal and political controversy we examined were: the variation and significance of federal and state court structures; the processes used for electing, selecting or appointing judges and the impact of these processes on the judicial function; the meaning and importance of judicial philosophies; the centrality and importance of opinion writing; the unique functions and tasks of trial judges and their clerks; and the unique functions and tasks of appellate judges and their clerks. (A syllabus which details the course readings and the topics covered in class is among the materials I have submitted via e-mail.)
In addition to assigned readings, we expected students to facilitate discussions by coming to each class with a written list of discussion questions based on that days topics or readings. And in addition to in-class performance, students grades were based on their competition of a paper on a topic of their choice relating to the course. On the last day of class, students were required to present their chosen topics to the class and submit an outline; the final draft of the paper was due a few weeks after the course ended. The papers completed by the students, though addressing a broad array of topics, consistently reflected that the students understood and were impacted by the class messages about professional values.
I was responsible for most of the pre-class planning, but Judge Graham was an active and effective co-teacher in the classroom. Judge Graham and I would alternate lecturing and leading class discussions on the topics of the day. Because Judge Graham and I have distinct institutional perspectives on judging and clerking, we were able to provide students with diverse views on the issues we examined. And yet, because Judge Graham and I share similar perspectives on the role of law clerks and the need for independence and professionalism in the judicial branch, students were also presented with a consistent message about the responsibilities of judges and law clerks in our system. To reinforce the professionalism message, we arranged for three guest speakers to come to class: one of Judge Grahams current clerks and two of his former clerks. For over an hour, these three spoke in concrete terms about specific clerking tasks and in grand terms about the meaningfulness of the clerking experience. Throughout the course, the importance of professional values and the relationship between professionalism and effective lawyering were both explicitly emphasized and implicitly on display.
There were a total of 14 persons in the class, all but two of whom were third-year law students. Though most of the students were from The Ohio State University College of Law, the class drew three cross-registrants from neighboring Capital University Law School. I believe the student evaluations (which have been sent by my Deans office via regular mail) document the students very positive view of this course. Those evaluations reinforce my sense that this course was valuable for students not only because of the subject-matter, but also because of the professionalism messages that Judge Graham and I worked to incorporate into every aspect of the class. For that reason, among others, I am eager to continue to offer this course; I believe it has many professional benefits for all law students, even for those that do not plan to serve as a judicial clerk.
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Supporting Materials:
Material being submitted:
1. Course syllabus (by e-mail)
2. Course description (by e-mail)
3. Pre-class questionnaire (by e-mail)
4. Student evaluation (by regular mail from my Dean’s office)