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III. Method
Despite the court’s failure to provide records of how its ethics policies have been enforced, this report uses the best available information to track the potential conflicts of interest posed by employment perks that Texas Supreme Court clerks receive from their future employers.Researchers compiled a database of 165 individuals who clerked for the Texas Supreme Court from the fall of 1992 through the spring of 2000. Using information from the court and legal reference publications, researchers then tried to identify the first job each clerk took immediately after his or her clerkship. This research identified 119 clerks who appear to have been employed right after their clerkship by law firms and a few other private-sector employers. Next researchers compared the 119 clerks and their post-clerkship employers with the Supreme Court docket to determine which of these clerks faced potential conflicts when they were at the court. Potential conflicts arose whenever a clerk was on the court when his or her immediate future employer had a Supreme Court case pending (from the time a case was filed with the court until the court delivered its opinion).
To conserve resources, this study just tracks the potential conflicts that clerks faced when their immediate future employers were involved in cases that the court agreed to accept. These accepted cases account for just a fraction of the potential conflicts that clerks face. The Texas Supreme Court declines to review 89 percent of the 1,500 petitions that it receives each year. Because of the sheer volume of these petitions, ex-clerks say that they wielded the most influence—with the least oversight—when they wrote memos that guided the court in determining which petitions to accept or deny.
“Briefing attorneys [clerks] are not supervised in preparing their memorandums,” a recent law journal article says. “Instead, the briefing attorneys work independently and outside the supervision of the staff attorneys and their own particular justice.”1 Although clerks face potential conflicts when they help filter court petitions involving a proximate employer, a limitation of this study is that it ignores these potential conflicts in the case of the 89 percent of the petitions that the court rejected. As such, this study dramatically undercounts the potential conflicts that court clerks faced.
1 “Internal Procedures in the Texas Supreme Court Revisited,” James A. Vaught and R. Darin Darby, Texas Tech Law Review, Vol. 31, No. 1, 2000. Authors refer to the petitions for review system adopted by the court in September 1997.
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