I had meant to return to the game of legal chess at a later date to discuss the dilemma of the defecting law student. Fortunately Garrett has beaten me to it and I am no longer on the hook for the flipside. His response provides an excellent counterpoint to my post.

The very best law students will presumably wait until the very best clerkships become available. However, they must balance the move against time pressure provided by the defection of judges (especially if it is compounded by increasingly rapid defections). It is a mixed strategy at best.

Furthermore, law students floating a bit below the top of the pack have incredible incentive to defect along with the judges. If the early defectors are trying to make a point by selecting clerks now -- and after all, the top students are more or less the same -- they might select clerks they wouldn't necessarily have picked.

With the addition of law students in the mix, it becomes a signalling game with both students and judges as players. The signal this particular judge is sending ("I'll hire without recommendations") gives students incentive to defect -- he is a serious defector and little to lose by applying (and certainly there are students who would jump at the chance for an early clerkship offer). Other signals ("I'll hire, but I need recommendations") wouldn't necessarily provide incentive to overcome student apathy and limited support available from career offices that support the federal hiring plan.

Moreover, the judges themselves have limited information. If they are not accepting applications, they can't quite be sure of what quality these early clerks are. The best way to find out, of course, is to open the floodgates.

In the end, I agree with Garrett. Who knows? I am certain we'll return to the topic after a clear pattern emerges.