As applicants, federal judges, and law school career counselors everywhere frantically come to terms with the new clerkship landscape, one truth is inescapable: the Federal Law Clerk Hiring Plan ("the Plan") is dead. On January 29, 2013, the D.C. Circuit-the Plan's last and best defender-announced that it would no longer follow the Plan. The consequences of that announcement have been swift. For the last several months, months earlier than almost anyone expected, untold numbers of federal judges across the country have been rushing to hire law clerks. For these judges, the unregulated clerkship market of the pre-Plan era is back.
Although the sudden change is unfair to current applicants, no one should shed a tear that the Plan has effectively finally come to an end. Even at its best, the Plan never brought order to the clerkship market. And if mission failure were not bad enough, the Plan also created serious unintended consequences. By any measure, the D.C. Circuit's decision to abandon the Plan was the right thing to do. If anything, the D.C. Circuit should be faulted for participating in the Plan in the first place.
Just because the Plan failed, however, does not mean that its legacy must solely be one of failure. We can learn much about regulatory design from the Plan's collapse. These lessons are not limited to the parochial question of how to hire law clerks-a question that only a sliver of the bar has any reason to care about. Instead, the Plan's failure illuminates more transcendent lessons for innumerable contexts. By highlighting these lessons, the Plan's death can help society avoid more dangerous failures in the future.