1 00:00:15,356 --> 00:00:25,076 Speaker 1: Pushkin. April twenty fourth, two thousand and nine, the late 2 00:00:25,116 --> 00:00:29,276 Speaker 1: Supreme Court Justice Antonin Scalia is speaking at American University's 3 00:00:29,436 --> 00:00:30,556 Speaker 1: Washington College of Law. 4 00:00:32,516 --> 00:00:35,316 Speaker 2: Thank you, thank you very much, Professor Marcus Dean Grossman, 5 00:00:35,636 --> 00:00:42,916 Speaker 2: Ladies and gentlemen, I began one of my either talks 6 00:00:42,996 --> 00:00:43,796 Speaker 2: or law of you WARDI. 7 00:00:43,916 --> 00:00:47,076 Speaker 1: The students are all dressed up for the occasion. Sea 8 00:00:47,116 --> 00:00:50,276 Speaker 1: Span is recording. There's a big stage hung with blue 9 00:00:50,316 --> 00:00:55,436 Speaker 1: polyester drapes. Scalia holds forth, his black hair swept back 10 00:00:55,476 --> 00:00:59,516 Speaker 1: from his forehead, glasses on his nose, strong and square, 11 00:00:59,556 --> 00:01:03,916 Speaker 1: all intellectual heft and force, gripping the podium like it's 12 00:01:03,916 --> 00:01:04,676 Speaker 1: a slab. 13 00:01:04,356 --> 00:01:07,196 Speaker 2: Of beef, and that administrative law is not for sissies. 14 00:01:08,436 --> 00:01:10,956 Speaker 2: It is. It is a very difficult course to teach, 15 00:01:10,996 --> 00:01:14,956 Speaker 2: and I assume it certainly wasn't my day a hard 16 00:01:15,076 --> 00:01:15,916 Speaker 2: course to master. 17 00:01:16,796 --> 00:01:20,996 Speaker 1: It's vintage Scalia. The audience hangs on his every word. 18 00:01:21,396 --> 00:01:26,476 Speaker 1: He finishes triumphantly than hands shoot in the air. 19 00:01:27,316 --> 00:01:29,636 Speaker 3: Good afternoon. My name is Christina Stutt. I'm a one 20 00:01:29,716 --> 00:01:30,996 Speaker 3: l student here at w CL. 21 00:01:31,156 --> 00:01:33,996 Speaker 1: Christina studt First, your student have. 22 00:01:33,996 --> 00:01:37,076 Speaker 3: A more general question, and that is the part of 23 00:01:37,196 --> 00:01:40,076 Speaker 3: American the American ethos is that our society as a 24 00:01:40,076 --> 00:01:42,956 Speaker 3: meritocracy were hard work and talantly to success. But there 25 00:01:42,956 --> 00:01:45,996 Speaker 3: are other important factors like connections and elite degrees. And 26 00:01:46,036 --> 00:01:49,036 Speaker 3: I'm wondering, other than grades of journal what do smart, 27 00:01:49,356 --> 00:01:52,196 Speaker 3: hardworking WSL students with strong writing skills need to do 28 00:01:52,276 --> 00:01:54,196 Speaker 3: to be outrageously successful in the law. 29 00:01:54,676 --> 00:01:59,236 Speaker 1: What does it take to be outrageously successful in the law? 30 00:02:00,556 --> 00:02:08,356 Speaker 2: A just work hard and be very good. I tell 31 00:02:08,356 --> 00:02:09,236 Speaker 2: you a story. 32 00:02:11,956 --> 00:02:15,236 Speaker 1: My name is Malcolm Gladwell. You're listening to Revisionist History, 33 00:02:15,596 --> 00:02:21,556 Speaker 1: my podcast about things overlooked and misunderstood. This episode is 34 00:02:21,596 --> 00:02:25,276 Speaker 1: part two of my examination of the bizarre things the 35 00:02:25,316 --> 00:02:33,916 Speaker 1: legal profession does to pick its best and brightest. In 36 00:02:33,996 --> 00:02:37,436 Speaker 1: part one, which if you haven't listened to you probably should, 37 00:02:37,836 --> 00:02:40,836 Speaker 1: I took the law school admissions test along with my 38 00:02:40,876 --> 00:02:44,516 Speaker 1: assistant Camille and couldn't understand why they made me rush 39 00:02:44,596 --> 00:02:47,556 Speaker 1: through all the questions. But now in part two we 40 00:02:47,676 --> 00:02:50,356 Speaker 1: have bigger fish to fry. I'm going to serve up 41 00:02:50,476 --> 00:02:54,476 Speaker 1: Malcolm Gladwell's grand unified theory of how to fix American 42 00:02:54,556 --> 00:02:58,676 Speaker 1: legal education. No, make that my grand unified theory for 43 00:02:58,756 --> 00:03:06,676 Speaker 1: fixing all American higher education. And what is our text 44 00:03:06,716 --> 00:03:10,916 Speaker 1: for this discussion of Gladwell's grand unified theory. It's the 45 00:03:10,956 --> 00:03:15,236 Speaker 1: answer Justice Scalia gave to the unfortunate Christina Studd. 46 00:03:16,476 --> 00:03:21,316 Speaker 2: You know, by and large, unless I have a professor 47 00:03:21,996 --> 00:03:26,156 Speaker 2: on the faculty who's a good friend and preferably a 48 00:03:26,196 --> 00:03:29,116 Speaker 2: former law clerk of mine whose judgment I can trust, 49 00:03:30,356 --> 00:03:32,756 Speaker 2: I'm going to be picking, you know, for Supreme Court 50 00:03:32,796 --> 00:03:36,756 Speaker 2: law clerks. I can't afford a miss I just can't. 51 00:03:37,036 --> 00:03:39,356 Speaker 2: So I'm going to be picking from the law schools 52 00:03:39,396 --> 00:03:43,716 Speaker 2: that basically there are the hardest to get into. They 53 00:03:43,756 --> 00:03:45,556 Speaker 2: admit the best in the brightest, and they may not 54 00:03:45,636 --> 00:03:49,316 Speaker 2: teach very well, but you can't make You can't make 55 00:03:50,516 --> 00:03:53,396 Speaker 2: a sow's ear out of a silk purse. And if 56 00:03:53,436 --> 00:03:55,356 Speaker 2: they come in the best in the brightest, they're probably 57 00:03:55,356 --> 00:03:56,796 Speaker 2: going to leave the best in the brightest. 58 00:03:56,836 --> 00:04:00,036 Speaker 1: Okay, let's pretend to be fine legal minds for a 59 00:04:00,076 --> 00:04:05,076 Speaker 1: moment and closely parts the meaning and implication of Scalia's statement. 60 00:04:06,556 --> 00:04:10,236 Speaker 1: A student at American University's Washington College of Law, a 61 00:04:10,316 --> 00:04:13,636 Speaker 1: law school that US News and Will Report ranked seventy 62 00:04:13,676 --> 00:04:17,356 Speaker 1: seventh among all American law schools, is asking a question 63 00:04:17,436 --> 00:04:20,636 Speaker 1: of a sitting justice of the US Supreme Court who 64 00:04:20,676 --> 00:04:25,836 Speaker 1: graduated from Harvard Law School. She's basically asking him would 65 00:04:25,836 --> 00:04:28,236 Speaker 1: it be possible to be one of his clerks, and 66 00:04:28,276 --> 00:04:32,036 Speaker 1: he answers, you go to American University's Washington College of Law, 67 00:04:32,236 --> 00:04:34,676 Speaker 1: you have no chance of becoming one of my clerks. 68 00:04:35,156 --> 00:04:37,276 Speaker 1: I only hire people who went to Harvard, like I did. 69 00:04:38,196 --> 00:04:42,076 Speaker 1: But then he goes on and he says this, which 70 00:04:42,116 --> 00:04:46,956 Speaker 1: is my favorite part because it sums up absolutely everything 71 00:04:47,276 --> 00:04:52,076 Speaker 1: I want to talk about in this episode. I mean everything. 72 00:04:53,316 --> 00:04:57,276 Speaker 2: Now I started. The reason I tell the story is 73 00:04:57,476 --> 00:04:59,596 Speaker 2: one of my former clerks who I am the most 74 00:04:59,636 --> 00:05:03,716 Speaker 2: proud of and now sits on the Sixth Circuit Court 75 00:05:03,756 --> 00:05:08,036 Speaker 2: of Appeals, Jeff Sutton. I always referred him as one 76 00:05:08,036 --> 00:05:10,396 Speaker 2: of my former law He wasn't one of my former 77 00:05:10,476 --> 00:05:12,596 Speaker 2: law He was Lewis Powell's clerk. 78 00:05:12,876 --> 00:05:15,716 Speaker 1: At the time. Lewis Powell was semi retired from the 79 00:05:15,716 --> 00:05:19,636 Speaker 1: Supreme Court. He had what's called senior status, so his 80 00:05:19,756 --> 00:05:22,436 Speaker 1: law clerks worked mostly for other justices. 81 00:05:22,996 --> 00:05:25,436 Speaker 2: But I wouldn't have hired Jeff Sutton for God's sake. 82 00:05:25,476 --> 00:05:34,036 Speaker 2: He went to Ohio State and he's one of the 83 00:05:34,156 --> 00:05:36,276 Speaker 2: very best law clerks I ever had, and he's just 84 00:05:36,316 --> 00:05:38,556 Speaker 2: a brilliant guy. So don't tell me this stuff about 85 00:05:38,636 --> 00:05:40,396 Speaker 2: you know, what do you have to do to be successful? 86 00:05:40,796 --> 00:05:42,916 Speaker 2: You have to be good, simple as that. 87 00:05:44,436 --> 00:05:46,916 Speaker 4: Okay, we're not thank you very much, thank you. 88 00:05:49,156 --> 00:05:53,476 Speaker 1: Oh we're not done. We've only just begun. 89 00:05:59,356 --> 00:06:02,276 Speaker 4: Tell me why you decided to go to law school? 90 00:06:03,316 --> 00:06:07,196 Speaker 5: WHOA So? Law school was a third choice. First choice 91 00:06:07,316 --> 00:06:10,156 Speaker 5: was teaching. I was a teacher and coach for several years, 92 00:06:10,196 --> 00:06:13,916 Speaker 5: both middle school, high school, soccer, baseball, little track. 93 00:06:14,436 --> 00:06:17,996 Speaker 1: This is Judge Jeffrey Sutton, the guy who somehow slipped 94 00:06:17,996 --> 00:06:20,476 Speaker 1: through the cracks to become the best clerk and in 95 00:06:20,556 --> 00:06:21,956 Speaker 1: in Scalia ever had. 96 00:06:22,316 --> 00:06:26,356 Speaker 5: Foreign service was choice number two. No lawyers in my family, 97 00:06:26,436 --> 00:06:28,556 Speaker 5: and when I finally went to law school, I wouldn't 98 00:06:28,556 --> 00:06:32,476 Speaker 5: say my parents were beaming with pride. I came from 99 00:06:32,476 --> 00:06:35,996 Speaker 5: a family of kind of service driven folks who were 100 00:06:36,036 --> 00:06:38,156 Speaker 5: either in education some missionaries. 101 00:06:38,716 --> 00:06:41,476 Speaker 4: And why did you decide to go to Ohio State 102 00:06:41,516 --> 00:06:41,996 Speaker 4: law school? 103 00:06:42,916 --> 00:06:46,076 Speaker 5: Well, it was a pretty complicated decision. I applied to 104 00:06:46,116 --> 00:06:49,916 Speaker 5: two law schools, Ohio State and Michigan. I got into 105 00:06:49,956 --> 00:06:53,356 Speaker 5: one of them, and I ended up enrolling at the 106 00:06:53,356 --> 00:06:57,116 Speaker 5: one I got into. Oh I see it was I 107 00:06:57,236 --> 00:06:59,316 Speaker 5: very much would have liked to have gone to Michigan, 108 00:06:59,356 --> 00:07:01,076 Speaker 5: and I was the fact that my father in law 109 00:07:01,076 --> 00:07:03,196 Speaker 5: had gone there and his son in law couldn't get 110 00:07:03,236 --> 00:07:07,436 Speaker 5: in was a little humbling, but we got over it. 111 00:07:08,276 --> 00:07:11,396 Speaker 1: I didn't ask Judge Sutton what his lsat's score was, 112 00:07:11,956 --> 00:07:16,316 Speaker 1: but we can do the math. Michigan is part of 113 00:07:16,316 --> 00:07:19,196 Speaker 1: the elite group of law schools known as the T fourteen, 114 00:07:19,596 --> 00:07:24,636 Speaker 1: the top fourteen Yale, Stanford, Harvard, University of Chicago, Columbia, 115 00:07:24,716 --> 00:07:28,236 Speaker 1: all the big ones. Ohio State is not among the 116 00:07:28,276 --> 00:07:32,036 Speaker 1: T fourteen. The median LSAT score of someone who goes 117 00:07:32,076 --> 00:07:35,436 Speaker 1: to Ohio State these days is eight points lower than 118 00:07:35,436 --> 00:07:39,556 Speaker 1: the median score of someone at Michigan. Now what does 119 00:07:39,596 --> 00:07:43,156 Speaker 1: that fact mean. Well, as you may recall from the 120 00:07:43,156 --> 00:07:46,196 Speaker 1: previous episode, the l set is not a test of 121 00:07:46,196 --> 00:07:50,356 Speaker 1: someone's ability to solve difficult problems. It's a test of 122 00:07:50,436 --> 00:07:54,596 Speaker 1: someone's ability to solve difficult problems quickly. It is five 123 00:07:54,636 --> 00:07:57,396 Speaker 1: sections of twenty to twenty five questions, and you have 124 00:07:57,436 --> 00:07:59,876 Speaker 1: a hard limit of thirty five minutes for each section. 125 00:08:00,396 --> 00:08:03,356 Speaker 1: You have to rush. As one el SAT tutor told me, 126 00:08:03,596 --> 00:08:08,476 Speaker 1: the test favors those capable of processing without understanding it 127 00:08:08,516 --> 00:08:15,236 Speaker 1: favors not tortoises. So what's Jeff Sutton. Well, he's clearly brilliant. 128 00:08:15,436 --> 00:08:18,276 Speaker 1: He was the Ohio State Solicitor in the nineteen nineties 129 00:08:18,396 --> 00:08:20,836 Speaker 1: and while the Supreme Court with his arguments on a 130 00:08:20,916 --> 00:08:24,676 Speaker 1: number of cases. His most recent work of legal scholarship 131 00:08:24,916 --> 00:08:29,516 Speaker 1: is titled fifty one Imperfect Solutions, States and the Making 132 00:08:29,556 --> 00:08:32,316 Speaker 1: of Constitutional Law. The New York Review of Books felt 133 00:08:32,316 --> 00:08:34,756 Speaker 1: they had to get a retired Supreme Court justice to 134 00:08:34,836 --> 00:08:37,916 Speaker 1: review it. There are lots of very serious people, in fact, 135 00:08:38,116 --> 00:08:40,756 Speaker 1: who think Sutton deserves to be a Supreme Court justice 136 00:08:40,876 --> 00:08:44,876 Speaker 1: himself one day. So Sutton is in the category of 137 00:08:45,036 --> 00:08:47,596 Speaker 1: brilliant person who didn't do all that well on the 138 00:08:47,756 --> 00:08:51,076 Speaker 1: lsat what does that make him? It makes him a tortoise, 139 00:08:51,796 --> 00:08:54,876 Speaker 1: and not just any tortoise, a giant tortoise. He's one 140 00:08:54,876 --> 00:08:57,516 Speaker 1: of those tortoises from the Galapagos that's five feet long. 141 00:08:59,036 --> 00:09:02,876 Speaker 1: So Sutton graduates from Ohio State, gets a job clerking 142 00:09:02,916 --> 00:09:05,356 Speaker 1: for a federal judge, then a job cloking on the 143 00:09:05,356 --> 00:09:09,396 Speaker 1: Supreme Court, and in his year as clerk for Scalia, he. 144 00:09:09,436 --> 00:09:14,516 Speaker 5: Thrives the thing that really affects everybody who works with him. 145 00:09:14,676 --> 00:09:19,396 Speaker 5: Is within weeks you just get a sense of this 146 00:09:19,556 --> 00:09:24,036 Speaker 5: incredible passion for the law, and that is just intoxicating. 147 00:09:24,156 --> 00:09:28,676 Speaker 5: And that is what really changed things. And that year. 148 00:09:28,756 --> 00:09:32,476 Speaker 5: I can't emphasize enough how much I got out of 149 00:09:32,476 --> 00:09:32,956 Speaker 5: that year. 150 00:09:33,716 --> 00:09:36,516 Speaker 1: Not long before, Jeffrey Sutton had been a middle school 151 00:09:36,556 --> 00:09:39,956 Speaker 1: teacher and track coaching Columbus. Now he's working with one 152 00:09:39,996 --> 00:09:42,636 Speaker 1: of the greatest legal minds in the country, and he 153 00:09:42,716 --> 00:09:45,676 Speaker 1: does such a good job that seventeen years later, at 154 00:09:45,676 --> 00:09:49,956 Speaker 1: some random speech at American University, Scalia singles him out. 155 00:09:50,316 --> 00:09:53,876 Speaker 1: Scalia had well over one hundred clerks, jeff Sutton is 156 00:09:53,876 --> 00:09:57,476 Speaker 1: the one he's proudest of. So why does a tortoise 157 00:09:57,516 --> 00:10:01,476 Speaker 1: do so well working for the Supreme Court? I asked 158 00:10:01,476 --> 00:10:04,756 Speaker 1: my fanciest legal friend, Tally for Haddien, who is a 159 00:10:04,796 --> 00:10:07,636 Speaker 1: clerk on the Court a few years after Sutton for 160 00:10:07,876 --> 00:10:10,036 Speaker 1: Justice Sandrada O'Connor, if. 161 00:10:09,916 --> 00:10:13,236 Speaker 4: You were working on a case. What what does working 162 00:10:13,236 --> 00:10:14,036 Speaker 4: on a case mean? 163 00:10:15,116 --> 00:10:18,036 Speaker 6: Well, we worked on two kinds of cases. 164 00:10:18,716 --> 00:10:22,116 Speaker 1: The first kind is what's called the sert pool, the 165 00:10:22,196 --> 00:10:25,796 Speaker 1: thousands of petitions sent to Washington every year by people 166 00:10:25,796 --> 00:10:28,316 Speaker 1: who want their cases heard by the Supreme Court. 167 00:10:28,436 --> 00:10:30,636 Speaker 6: We would each get a stack of petitions I think 168 00:10:30,676 --> 00:10:32,956 Speaker 6: on a Wednesday, and we had a week to get 169 00:10:33,916 --> 00:10:34,636 Speaker 6: into the pool. 170 00:10:34,996 --> 00:10:36,796 Speaker 4: Yeah, so that in that case there would be a 171 00:10:36,796 --> 00:10:37,196 Speaker 4: lot to. 172 00:10:37,156 --> 00:10:38,116 Speaker 6: Read, a lot to read. 173 00:10:38,436 --> 00:10:41,236 Speaker 4: When you read those kinds of things, How do you read? 174 00:10:42,716 --> 00:10:44,796 Speaker 6: How do you read? I don't know what that question. 175 00:10:44,956 --> 00:10:47,316 Speaker 4: Do you read the same way you read a work 176 00:10:47,356 --> 00:10:51,076 Speaker 4: of nonfiction or a New Yorker article or well? 177 00:10:51,116 --> 00:10:54,756 Speaker 7: I always read them, and I continue to read similar 178 00:10:54,796 --> 00:10:57,876 Speaker 7: documents with a pencil in my hand, which is not 179 00:10:57,956 --> 00:11:01,076 Speaker 7: how I would read for pleasure, whether nonfiction or fiction. 180 00:11:01,356 --> 00:11:07,476 Speaker 4: Slower or faster? Much slower, much slower, yes, how much slower. 181 00:11:11,156 --> 00:11:14,756 Speaker 7: Personally, I feel I can read very quickly, and I 182 00:11:14,796 --> 00:11:17,516 Speaker 7: can read very slowly, and I get different things out 183 00:11:17,556 --> 00:11:17,796 Speaker 7: of it. 184 00:11:17,876 --> 00:11:19,836 Speaker 4: But this is definitely slow reading territory. 185 00:11:20,036 --> 00:11:21,516 Speaker 6: It is slow reading territory. 186 00:11:21,676 --> 00:11:23,636 Speaker 4: And why is it so important to read slowly? 187 00:11:26,156 --> 00:11:32,076 Speaker 6: Because the details matter and because the arguments are intricate, Yeah, 188 00:11:32,116 --> 00:11:35,996 Speaker 6: and because the solutions are difficult. I mean, everybody will 189 00:11:35,996 --> 00:11:38,436 Speaker 6: tell you this. When a case comes to the Supreme Court. 190 00:11:38,476 --> 00:11:40,876 Speaker 7: You know a case that's really ready for a review 191 00:11:40,916 --> 00:11:44,396 Speaker 7: at the Supreme Court, it's hard. The reason the circuit 192 00:11:44,396 --> 00:11:47,596 Speaker 7: courts have disagreed about it is because it's really hard. 193 00:11:47,836 --> 00:11:51,716 Speaker 7: Like the answer is not obvious. You're kidding yourself if 194 00:11:51,756 --> 00:11:54,596 Speaker 7: you think that it is. So you have to think 195 00:11:54,676 --> 00:11:55,396 Speaker 7: while you read. 196 00:11:55,796 --> 00:12:00,076 Speaker 4: Yeah, yeah, you can't just process. You have to understand. Yes, yeah, you. 197 00:12:00,036 --> 00:12:03,996 Speaker 1: Have to think while you read. This is the primary 198 00:12:04,036 --> 00:12:06,876 Speaker 1: requirement of one of the most prestigious jobs in the 199 00:12:06,956 --> 00:12:10,516 Speaker 1: legal profession. The other part of the job, the main 200 00:12:10,556 --> 00:12:13,796 Speaker 1: part of the job, is researching and analyzing the actual 201 00:12:13,836 --> 00:12:16,876 Speaker 1: cases that come before the court. For Hardian was one 202 00:12:16,916 --> 00:12:19,756 Speaker 1: of four clerks working for O'Connor, so she would get 203 00:12:19,756 --> 00:12:21,716 Speaker 1: assigned a quarter of those cases. 204 00:12:21,876 --> 00:12:23,396 Speaker 6: And how much time would you spend on them? 205 00:12:24,036 --> 00:12:28,356 Speaker 7: I don't think I ever stopped thinking about the cases 206 00:12:28,396 --> 00:12:29,956 Speaker 7: that I was working on. 207 00:12:30,276 --> 00:12:33,716 Speaker 4: Yeah, but what with the time that would elapse. What's 208 00:12:33,716 --> 00:12:35,916 Speaker 4: the time that would elapse from when you were given 209 00:12:35,956 --> 00:12:38,756 Speaker 4: the case to when you when you were finished with 210 00:12:39,036 --> 00:12:40,436 Speaker 4: your contribution was finished? 211 00:12:43,436 --> 00:12:46,636 Speaker 6: I don't remember, I want to say a couple months. 212 00:12:47,676 --> 00:12:51,196 Speaker 1: Being a Supreme Court clerk is a job for a tortoise. 213 00:12:51,796 --> 00:12:54,756 Speaker 1: You can't hurry. You have to work slowly and carefully 214 00:12:54,876 --> 00:12:58,356 Speaker 1: because if you miss something, that's a problem. I didn't 215 00:12:58,396 --> 00:13:01,756 Speaker 1: even have to mention tortoises to Judge Sutton. He brought 216 00:13:01,796 --> 00:13:02,156 Speaker 1: them up. 217 00:13:02,476 --> 00:13:05,196 Speaker 5: You know, law is very much a tortoise. The tortoise 218 00:13:05,196 --> 00:13:08,076 Speaker 5: went beats the hair, and so the hairs that go 219 00:13:08,116 --> 00:13:12,556 Speaker 5: to the elite schools, they better slide into tortoise mode 220 00:13:12,916 --> 00:13:14,876 Speaker 5: or it's not going to work out well for them. 221 00:13:15,556 --> 00:13:20,396 Speaker 5: And the tortoises that go to the state school's better 222 00:13:20,516 --> 00:13:22,316 Speaker 5: stay being a tortoise than stick with it. 223 00:13:24,236 --> 00:13:28,956 Speaker 1: So let us recap. A sitting Supreme Court justice explains 224 00:13:28,996 --> 00:13:31,356 Speaker 1: to a group of law school students that he will 225 00:13:31,396 --> 00:13:33,916 Speaker 1: not consider them for a job that involves being a 226 00:13:33,956 --> 00:13:36,916 Speaker 1: tortoise because they have failed to shine at a test 227 00:13:36,916 --> 00:13:40,236 Speaker 1: that measures their ability to be a hare. And even 228 00:13:40,236 --> 00:13:42,316 Speaker 1: as he says that, he concedes that one of the 229 00:13:42,316 --> 00:13:45,156 Speaker 1: best of his former clerks was a tortoise who also 230 00:13:45,276 --> 00:13:47,796 Speaker 1: did not shine at a test that measured his ability 231 00:13:47,916 --> 00:13:51,396 Speaker 1: to be a hare. And when he presents this confounding 232 00:13:51,516 --> 00:13:55,436 Speaker 1: bit of reasoning that manages both to stigmatize and disparage 233 00:13:55,676 --> 00:14:08,596 Speaker 1: the entire audience, what does the audience do Listen? I mean, 234 00:14:09,196 --> 00:14:14,116 Speaker 1: this is bananas. This is like prisoners cheering award. I 235 00:14:14,156 --> 00:14:16,676 Speaker 1: think you can see why we are in need of 236 00:14:16,676 --> 00:14:19,836 Speaker 1: a grand, unified theory to fix legal education. 237 00:14:25,956 --> 00:14:26,676 Speaker 4: At the. 238 00:14:29,996 --> 00:14:33,396 Speaker 1: Monday, after my assistant, Camille, and I took the l SAT, 239 00:14:33,676 --> 00:14:37,436 Speaker 1: we took the train to Newtown, Pennsylvania, to the headquarters 240 00:14:37,476 --> 00:14:40,916 Speaker 1: of the Law School Admissions Council. This is the group 241 00:14:40,996 --> 00:14:44,636 Speaker 1: that for the past seventy years has created and administered 242 00:14:44,636 --> 00:14:48,156 Speaker 1: the ALSAT. They operate out of a two story red 243 00:14:48,196 --> 00:14:52,556 Speaker 1: brick building in an office park, big atrium, very eighties. 244 00:14:53,156 --> 00:14:55,516 Speaker 1: We were ushered into a conference room on the second 245 00:14:55,556 --> 00:15:00,436 Speaker 1: floor where a row of test experts psychometricians were waiting 246 00:15:00,476 --> 00:15:00,796 Speaker 1: for us. 247 00:15:00,876 --> 00:15:02,596 Speaker 4: What time did you have to arrive at the test center? 248 00:15:02,636 --> 00:15:07,036 Speaker 4: Eight They began with a tutorial on how to make 249 00:15:07,036 --> 00:15:10,636 Speaker 4: a standardized test, which I I have to say was fascinating. 250 00:15:11,196 --> 00:15:13,036 Speaker 1: It turns out a single item on a test like 251 00:15:13,116 --> 00:15:16,876 Speaker 1: the ELSAT takes thirty six months to develop. They don't 252 00:15:16,956 --> 00:15:20,956 Speaker 1: just dream up hard questions, They test the questions over 253 00:15:21,036 --> 00:15:23,756 Speaker 1: and again to make sure they're the right kind of hard. 254 00:15:23,956 --> 00:15:26,716 Speaker 8: So what I've done here is I've identified a question 255 00:15:27,876 --> 00:15:31,596 Speaker 8: that was actually rejected because it was not performing similarly 256 00:15:31,956 --> 00:15:34,636 Speaker 8: for two subgroups of interest. Those were males and females. 257 00:15:34,756 --> 00:15:35,996 Speaker 1: This is Alex Weisman. 258 00:15:36,316 --> 00:15:40,276 Speaker 8: The question text is actually on the second page. It 259 00:15:40,356 --> 00:15:44,476 Speaker 8: starts off Thomas Tompkins, Renaissance English composer wrote in a 260 00:15:44,516 --> 00:15:47,716 Speaker 8: musical style that in his time had already become outdated, 261 00:15:48,116 --> 00:15:48,836 Speaker 8: and so forth. 262 00:15:49,596 --> 00:15:52,596 Speaker 1: This is a passage designed to test the reading comprehension 263 00:15:52,636 --> 00:15:55,676 Speaker 1: skills of would be lawyers. But the results of the 264 00:15:55,756 --> 00:16:00,036 Speaker 1: question came out weird. Women who are otherwise doing really 265 00:16:00,036 --> 00:16:03,156 Speaker 1: well on that section were somehow tripping up on this 266 00:16:03,316 --> 00:16:07,836 Speaker 1: particular question, and the equivalent group of male high scorers 267 00:16:08,156 --> 00:16:09,956 Speaker 1: were overwhelming getting it right. 268 00:16:10,516 --> 00:16:15,276 Speaker 4: So here we have almost two x male versus not 269 00:16:15,396 --> 00:16:17,956 Speaker 4: all well, well, almost twice as many males as women 270 00:16:18,156 --> 00:16:19,916 Speaker 4: as females got this question. 271 00:16:19,676 --> 00:16:23,676 Speaker 8: Correct right, So if you that is, that is already 272 00:16:24,116 --> 00:16:27,556 Speaker 8: indicative of a problem with this question. So why the 273 00:16:27,636 --> 00:16:30,796 Speaker 8: question of why is not always easy to answer it. 274 00:16:31,276 --> 00:16:35,476 Speaker 8: And for a question like this, what we determine is 275 00:16:36,876 --> 00:16:40,796 Speaker 8: even if we can't determine why this is happening, we 276 00:16:40,876 --> 00:16:43,116 Speaker 8: don't take the chance in keeping it on the test. 277 00:16:43,996 --> 00:16:46,956 Speaker 1: In this case, the l SAT wasn't functioning as a 278 00:16:46,996 --> 00:16:49,876 Speaker 1: test of ability, which is what it's supposed to be. 279 00:16:50,316 --> 00:16:52,716 Speaker 1: It seemed like it was a test of gender. Which 280 00:16:52,756 --> 00:16:55,676 Speaker 1: it's not supposed to be, so they threw the question out. 281 00:16:56,596 --> 00:17:00,116 Speaker 1: When I talked to psychometricians outside the legal world, they 282 00:17:00,116 --> 00:17:02,836 Speaker 1: were unanimous in their praise of the l SAT. It 283 00:17:02,876 --> 00:17:06,236 Speaker 1: was like talking to auto mechanics about a Porsche. Mechanics 284 00:17:06,276 --> 00:17:09,356 Speaker 1: love Porsches, and if I had let them, I feel 285 00:17:09,396 --> 00:17:11,916 Speaker 1: those three on the panel would have happily talked about 286 00:17:11,916 --> 00:17:15,916 Speaker 1: their sports car for hours, the engine, the steering, the acceleration. 287 00:17:16,916 --> 00:17:20,116 Speaker 1: But Camille and I had just two days earlier taken 288 00:17:20,196 --> 00:17:23,836 Speaker 1: Nielsat and what I really wanted to know was why 289 00:17:23,836 --> 00:17:27,196 Speaker 1: would these guys building a sports car? I mean, why 290 00:17:27,276 --> 00:17:30,076 Speaker 1: go so fast? Why not just build a really good minivan. 291 00:17:30,316 --> 00:17:35,996 Speaker 9: So we know in law school that doing the work efficiently, 292 00:17:36,156 --> 00:17:39,356 Speaker 9: being able to handle the reading load and handle the 293 00:17:39,396 --> 00:17:43,476 Speaker 9: amount of analysis that's required in a certain amount of 294 00:17:43,476 --> 00:17:44,476 Speaker 9: time is relevant. 295 00:17:44,916 --> 00:17:47,036 Speaker 1: Lily Nissovich takes up the cause. 296 00:17:47,316 --> 00:17:51,036 Speaker 9: Research requirements on any redesign of the test is to 297 00:17:51,116 --> 00:17:53,556 Speaker 9: make sure that if you're changing the timing or the 298 00:17:53,636 --> 00:17:56,396 Speaker 9: number of questions that you're asking the given amount of time, 299 00:17:56,916 --> 00:17:59,556 Speaker 9: that you go back to square one and make sure 300 00:17:59,636 --> 00:18:00,716 Speaker 9: it predicts. 301 00:18:01,076 --> 00:18:04,436 Speaker 1: We're now one hour and fourteen minutes into the presentation. 302 00:18:05,036 --> 00:18:06,476 Speaker 1: I can't hold back any longer. 303 00:18:06,516 --> 00:18:09,796 Speaker 4: So you've been talking about efficiency, Bret. I was trying 304 00:18:09,836 --> 00:18:12,436 Speaker 4: to be more You guys stop me from being efficient. 305 00:18:14,676 --> 00:18:17,156 Speaker 1: I had just been through the experience of finishing the 306 00:18:17,196 --> 00:18:19,196 Speaker 1: first section of the el SAT with time to spare, 307 00:18:19,596 --> 00:18:21,516 Speaker 1: and then running away out of time on the last 308 00:18:21,556 --> 00:18:22,236 Speaker 1: logic section. 309 00:18:22,636 --> 00:18:24,676 Speaker 4: The efficient way for me to take the test would 310 00:18:24,676 --> 00:18:27,076 Speaker 4: be to speed up on the things that I was 311 00:18:27,116 --> 00:18:30,276 Speaker 4: really good at and then use that time on the 312 00:18:30,316 --> 00:18:33,796 Speaker 4: things I needed more time on. That's how efficient people work, right, 313 00:18:34,956 --> 00:18:37,236 Speaker 4: But you wouldn't let me be efficient. I was told 314 00:18:37,276 --> 00:18:41,276 Speaker 4: seventeen times you cannot look ahead at the next section. 315 00:18:41,836 --> 00:18:44,436 Speaker 4: Why I sat there for ten minutes after the first one? 316 00:18:44,836 --> 00:18:47,476 Speaker 1: Okay, so I'm getting a little bit worked up, But 317 00:18:47,636 --> 00:18:51,476 Speaker 1: remember I'm under tremendous pressure to beat Camille on the 318 00:18:51,596 --> 00:18:54,476 Speaker 1: l SAT and all this time she's sitting right next 319 00:18:54,516 --> 00:18:57,596 Speaker 1: to me, all smug and complacent, like she was doing 320 00:18:57,636 --> 00:18:59,796 Speaker 1: logic games in her head just for fun. 321 00:19:00,156 --> 00:19:01,636 Speaker 4: I was like, why can't I look at the next one? 322 00:19:01,836 --> 00:19:04,156 Speaker 4: I'm trying to be efficient. You're not letting me, I mean. 323 00:19:04,116 --> 00:19:06,596 Speaker 9: Because then you'd be giving get more time for that 324 00:19:06,636 --> 00:19:08,676 Speaker 9: next section than the first. And next day or the 325 00:19:08,676 --> 00:19:12,156 Speaker 9: first t who was the one the people who took 326 00:19:12,316 --> 00:19:15,356 Speaker 9: the question when it was gone through all these levels. 327 00:19:14,996 --> 00:19:19,236 Speaker 4: Of being efficient in law school is about time management, right. 328 00:19:19,276 --> 00:19:22,316 Speaker 4: It is about doing things you can do it really 329 00:19:22,436 --> 00:19:25,316 Speaker 4: quickly quickly and using that extra time to If I'm 330 00:19:25,356 --> 00:19:30,836 Speaker 4: a a fast reader but a slow writer, then it 331 00:19:31,076 --> 00:19:33,996 Speaker 4: can you know, I have a different balance. And if 332 00:19:33,996 --> 00:19:36,276 Speaker 4: I'm a fast writer and a slow reader. 333 00:19:36,636 --> 00:19:39,316 Speaker 1: I don't get the sense that I'm making any headway. 334 00:19:39,476 --> 00:19:41,476 Speaker 4: So my question is, why are you forcing us all 335 00:19:41,476 --> 00:19:44,396 Speaker 4: to do every skill in thirty five minutes? If human 336 00:19:44,396 --> 00:19:46,676 Speaker 4: beings are everyone in that room I took it with 337 00:19:46,836 --> 00:19:50,156 Speaker 4: had a different set of skills, but you're why are 338 00:19:50,156 --> 00:19:59,356 Speaker 4: you pushing us all into the same cookie cutter. 339 00:19:59,916 --> 00:20:01,036 Speaker 10: It's a standardized test. 340 00:20:01,076 --> 00:20:04,716 Speaker 9: I guess timing is one of the features of the standardization, 341 00:20:05,276 --> 00:20:07,516 Speaker 9: and we can do research on what you're saying. 342 00:20:07,636 --> 00:20:12,156 Speaker 10: But have you well, we've done research on the timing 343 00:20:12,236 --> 00:20:14,996 Speaker 10: of the questions before they were ever introduced. 344 00:20:15,676 --> 00:20:18,516 Speaker 9: Many how long it takes for people to do this 345 00:20:18,756 --> 00:20:23,876 Speaker 9: number of questions reasonably well to get your optimal score? 346 00:20:24,076 --> 00:20:27,196 Speaker 10: Is it necessarily to try every question? So some students 347 00:20:28,916 --> 00:20:30,396 Speaker 10: to get a better score. 348 00:20:30,316 --> 00:20:34,716 Speaker 9: By spending more time per question and then leaving to 349 00:20:34,756 --> 00:20:38,796 Speaker 9: you skipping a few than by trying every question. Some students' 350 00:20:38,796 --> 00:20:42,236 Speaker 9: best strategy is to try every question, so we advise 351 00:20:42,356 --> 00:20:45,756 Speaker 9: them to experiment on themselves when they're practicing and see 352 00:20:45,756 --> 00:20:47,556 Speaker 9: what that's the best strategy. 353 00:20:47,596 --> 00:20:51,756 Speaker 4: But that's the only reason you need to have those 354 00:20:51,796 --> 00:20:55,156 Speaker 4: strategies is because you have this arbitrary time constraint. 355 00:20:54,796 --> 00:20:57,276 Speaker 10: Right, I just take a suit with the arbitrary. 356 00:20:57,876 --> 00:21:01,756 Speaker 1: Am I being obnoxious? Maybe I am. It's like I've 357 00:21:01,796 --> 00:21:04,316 Speaker 1: gone to push a head coaters and strictgart and I'm 358 00:21:04,316 --> 00:21:06,916 Speaker 1: badgering them about why they aren't building something with sliding 359 00:21:06,916 --> 00:21:10,676 Speaker 1: doors in third row seating. I don't know. Doesn't it 360 00:21:10,676 --> 00:21:12,836 Speaker 1: strike you that they should have at least thought about 361 00:21:12,836 --> 00:21:13,516 Speaker 1: this a bit more? 362 00:21:13,876 --> 00:21:17,116 Speaker 4: I mean you you started by going through a really 363 00:21:17,156 --> 00:21:20,356 Speaker 4: elegant description about how much care you take to make 364 00:21:20,396 --> 00:21:24,236 Speaker 4: sure tests do not have some element of cultural or 365 00:21:25,116 --> 00:21:29,756 Speaker 4: uh you know, group unfairness, which I thought was super interesting. 366 00:21:30,516 --> 00:21:35,076 Speaker 4: But now you just you. But you simultaneously have imposed 367 00:21:35,076 --> 00:21:38,876 Speaker 4: a system which which discriminates against someone who, for example, 368 00:21:38,916 --> 00:21:41,476 Speaker 4: is a slow reader. You're You're, on the one hand, 369 00:21:41,596 --> 00:21:44,756 Speaker 4: beautifully sensitive to the notion that the test might be 370 00:21:44,756 --> 00:21:49,196 Speaker 4: disadvantaging a certain kind of person. But in this, in this, 371 00:21:49,396 --> 00:21:54,436 Speaker 4: in the same breath, you are completely insensitive to the 372 00:21:54,516 --> 00:21:58,196 Speaker 4: kind of person who wants to take their time that 373 00:21:58,236 --> 00:22:00,196 Speaker 4: will may be difficult. I'm just this is genuinely this 374 00:22:00,356 --> 00:22:00,876 Speaker 4: was my question. 375 00:22:02,036 --> 00:22:02,756 Speaker 10: You're so. 376 00:22:04,276 --> 00:22:06,636 Speaker 9: To provide the information the test, does we have to 377 00:22:06,676 --> 00:22:09,996 Speaker 9: do it in the standardized way you're suggests is a 378 00:22:10,036 --> 00:22:11,676 Speaker 9: different approach to these. 379 00:22:11,476 --> 00:22:16,756 Speaker 10: Tests, And we couldn't, of course do that. Willy nilly. 380 00:22:19,396 --> 00:22:23,996 Speaker 1: They'll tinker and rewrite and rethink and restructure the questions, 381 00:22:24,636 --> 00:22:28,876 Speaker 1: but not the format. No, that's willy nilly. The thirty 382 00:22:28,916 --> 00:22:32,276 Speaker 1: five minute time limits on each section are cast in stone. 383 00:22:33,436 --> 00:22:36,796 Speaker 1: Why they cast in stone because the job of the 384 00:22:36,956 --> 00:22:39,516 Speaker 1: l set is to make it easier for law schools 385 00:22:39,516 --> 00:22:43,476 Speaker 1: to decide which students to admit. And what would have 386 00:22:43,516 --> 00:22:45,836 Speaker 1: happened if I had been able to carry over my 387 00:22:45,916 --> 00:22:49,356 Speaker 1: extra time, or if that thirty five minutes was turned 388 00:22:49,396 --> 00:22:53,316 Speaker 1: into forty five minutes, I would have scored higher, so 389 00:22:53,356 --> 00:22:56,756 Speaker 1: would have lots of other tortoises. Give tortoises an extra 390 00:22:56,836 --> 00:22:59,236 Speaker 1: ten minutes and suddenly some of them catch up to 391 00:22:59,236 --> 00:23:03,436 Speaker 1: the hairs. But then what is that done? Now it's 392 00:23:03,436 --> 00:23:06,076 Speaker 1: harder for law schools to decide which students to admit. 393 00:23:08,756 --> 00:23:11,116 Speaker 1: Back I was preparing for the l SAT over at 394 00:23:11,156 --> 00:23:14,476 Speaker 1: the ed tech company Noodle, I asked their experts to 395 00:23:14,516 --> 00:23:18,276 Speaker 1: game this out. One of the Noodle guys, Fritz Stewart, said, 396 00:23:18,276 --> 00:23:21,076 Speaker 1: you could relieve the time pressure for a significant number 397 00:23:21,116 --> 00:23:23,956 Speaker 1: of tortoises if you extended the l SAT to one 398 00:23:24,036 --> 00:23:26,716 Speaker 1: hundred and twenty five percent of its current length. 399 00:23:27,036 --> 00:23:29,076 Speaker 4: If we did win to one hundred and twenty five percent, 400 00:23:29,436 --> 00:23:30,716 Speaker 4: So what specifically we do it. 401 00:23:30,796 --> 00:23:33,836 Speaker 11: What it's going to do is it's gonna screw with 402 00:23:33,956 --> 00:23:36,156 Speaker 11: their lovely normed Bell curve. 403 00:23:36,276 --> 00:23:36,476 Speaker 2: Right. 404 00:23:36,716 --> 00:23:39,836 Speaker 11: It's really subversive in a way. What Fritz is trying 405 00:23:39,876 --> 00:23:42,236 Speaker 11: to do is destroy law school admissions in a good web. 406 00:23:42,796 --> 00:23:46,356 Speaker 1: That's Dan Edmonds, another Noodle guy. What he means is 407 00:23:46,396 --> 00:23:49,676 Speaker 1: this Right now, over one hundred thousand people take the 408 00:23:49,796 --> 00:23:52,956 Speaker 1: l set every year. The results fall on a Bell curve. 409 00:23:52,996 --> 00:23:56,716 Speaker 1: Of course, the ninetieth percentile is right around one sixty 410 00:23:56,756 --> 00:23:59,356 Speaker 1: four out of one hundred and eighty. The top schools 411 00:23:59,676 --> 00:24:01,876 Speaker 1: are all mostly drawing from the pool above the one 412 00:24:01,996 --> 00:24:05,796 Speaker 1: hundred and sixty seven mark. But if the test allows 413 00:24:05,876 --> 00:24:09,196 Speaker 1: the tortoises to score higher, then suddenly the number oh, 414 00:24:09,276 --> 00:24:12,996 Speaker 1: one hundred and sixty seven would balloon, the bell curve 415 00:24:13,156 --> 00:24:15,156 Speaker 1: goes to hell in a handbasket. 416 00:24:14,836 --> 00:24:16,836 Speaker 11: And the law schools would have to make admissions about 417 00:24:16,836 --> 00:24:19,236 Speaker 11: something other than just the l SAT score, Because currently 418 00:24:19,716 --> 00:24:22,636 Speaker 11: law school admissions is about seventy percent year l SET score, 419 00:24:22,876 --> 00:24:25,636 Speaker 11: about thirty percent year grades, and that leaves pretty much 420 00:24:25,716 --> 00:24:28,676 Speaker 11: zero percent for any other considerations. So if you take 421 00:24:28,716 --> 00:24:32,476 Speaker 11: that pressure off, you're suddenly maybe tripling your number of 422 00:24:32,516 --> 00:24:35,596 Speaker 11: qualified applicants for a lot of these top programs, and 423 00:24:35,636 --> 00:24:37,196 Speaker 11: they're going to have to do the work of actually 424 00:24:37,196 --> 00:24:40,036 Speaker 11: figuring out something other than a test to decide who 425 00:24:40,076 --> 00:24:40,956 Speaker 11: gets into their school. 426 00:24:41,676 --> 00:24:44,396 Speaker 1: Now that raises the question of why we don't just 427 00:24:44,476 --> 00:24:47,556 Speaker 1: make the l set harder, lift the time pressure, and 428 00:24:47,676 --> 00:24:51,276 Speaker 1: compensate by making the questions much tougher so we get 429 00:24:51,356 --> 00:24:54,636 Speaker 1: our nice, beautiful bell curve back. But now all we're 430 00:24:54,676 --> 00:24:58,356 Speaker 1: doing is we're privileging the tortoises over the hairs. Now 431 00:24:58,356 --> 00:25:00,516 Speaker 1: the Jeff Sutton's of the world get a perfect score, 432 00:25:00,796 --> 00:25:03,556 Speaker 1: go to Harvard Law School, and Justice Scalia breathes a 433 00:25:03,556 --> 00:25:06,756 Speaker 1: sigh of relief. Except if you do it that way, 434 00:25:07,076 --> 00:25:09,916 Speaker 1: the hairs get discouraged because they can only get into 435 00:25:09,956 --> 00:25:12,836 Speaker 1: American university, where there's seventy seventh in the country, and 436 00:25:12,876 --> 00:25:15,516 Speaker 1: when Supreme Court justices come to visit, they tell the 437 00:25:15,556 --> 00:25:19,356 Speaker 1: students they have no chance. Why is this better? We 438 00:25:19,436 --> 00:25:22,476 Speaker 1: need hairs too. If you're an investment bank trying to 439 00:25:22,516 --> 00:25:25,636 Speaker 1: close an incredibly complicated deal in forty eight hours, where 440 00:25:25,636 --> 00:25:27,756 Speaker 1: the lawyers have to all read a thousand pages in 441 00:25:27,796 --> 00:25:31,316 Speaker 1: a day, maybe you want a hair. The law needs 442 00:25:31,356 --> 00:25:37,116 Speaker 1: tortoises and hairs. We have now arrived at the absurdity 443 00:25:37,276 --> 00:25:41,236 Speaker 1: of American meritocracy. Of course, the whole reason that people 444 00:25:41,276 --> 00:25:43,796 Speaker 1: obsess over their LST score is that there are a 445 00:25:43,876 --> 00:25:47,116 Speaker 1: small number of law schools that everyone wants to get into. 446 00:25:47,396 --> 00:25:51,196 Speaker 1: The top fourteen. The prestigious law firms basically only higher 447 00:25:51,236 --> 00:25:54,236 Speaker 1: from the top fourteen, and the top fourteen only have 448 00:25:54,316 --> 00:25:57,636 Speaker 1: room to admit forty five hundred students a year. In total, 449 00:25:58,036 --> 00:26:02,076 Speaker 1: fifty three thousand people are competing for forty five hundred slots. 450 00:26:02,476 --> 00:26:06,316 Speaker 1: It's crazy. I'm a graduate of the University of Toronto. 451 00:26:06,476 --> 00:26:09,356 Speaker 1: All Canadians will tell you that the University of Toronto 452 00:26:09,396 --> 00:26:14,236 Speaker 1: is their most prestigious, most elite, world class university. Do 453 00:26:14,316 --> 00:26:18,076 Speaker 1: you know how many undergraduates attend the University of Toronto? Ready? 454 00:26:18,636 --> 00:26:22,316 Speaker 1: Remember this is the elite school in a country of 455 00:26:22,836 --> 00:26:26,516 Speaker 1: just thirty five million people. And just to orient yourself, 456 00:26:26,716 --> 00:26:29,956 Speaker 1: Harvard University, the most elite school in a country of 457 00:26:30,116 --> 00:26:34,156 Speaker 1: three hundred and thirty million people, has a total undergraduate 458 00:26:34,276 --> 00:26:38,596 Speaker 1: enrollment of six thousand, six hundred and ninety nine. Ready, 459 00:26:39,596 --> 00:26:44,476 Speaker 1: the best school in Canada has seventy thousand, eight hundred 460 00:26:44,516 --> 00:26:49,036 Speaker 1: and ninety undergraduates. Now, how about the University of British Columbia, 461 00:26:49,116 --> 00:26:53,596 Speaker 1: our second crown jewel fifty two thousand, seven hundred and 462 00:26:53,676 --> 00:26:58,916 Speaker 1: eleven undergraduates. What about McGill University in Montreal? I always 463 00:26:58,956 --> 00:27:03,476 Speaker 1: wished I went to McGill Intimate, elite, exclusive. McGill has 464 00:27:03,556 --> 00:27:07,876 Speaker 1: twenty seven thousand, six hundred and one undergraduates. Do you 465 00:27:07,956 --> 00:27:12,276 Speaker 1: see how genius this is? We have elite schools in Canada, 466 00:27:12,756 --> 00:27:16,236 Speaker 1: but we don't spend enormous amounts of time devising elaborate 467 00:27:16,316 --> 00:27:19,436 Speaker 1: tests to arbitrarily limit the number of people who can 468 00:27:19,476 --> 00:27:24,956 Speaker 1: attend those elite schools. We just made the schools bigger. Honestly, 469 00:27:25,396 --> 00:27:37,676 Speaker 1: how hard is this? This whole revisionist history project on 470 00:27:37,836 --> 00:27:40,756 Speaker 1: The LSAT began when I ran across a paper on 471 00:27:41,076 --> 00:27:45,196 Speaker 1: SSRN by a guy named William Henderson. We met him 472 00:27:45,236 --> 00:27:48,916 Speaker 1: in the previous episode, the former firefighter from Cleveland who 473 00:27:48,956 --> 00:27:53,596 Speaker 1: now teaches law at Indiana University. Well, Henderson told me 474 00:27:53,636 --> 00:27:56,876 Speaker 1: to call a friend of his named Evan Parker. They 475 00:27:56,916 --> 00:27:59,596 Speaker 1: worked together. I don't know if you've ever read Michael 476 00:27:59,636 --> 00:28:03,476 Speaker 1: Lewis's famous book Moneyball, about the analytics nerds who took 477 00:28:03,476 --> 00:28:06,956 Speaker 1: over baseball. They went in with their advanced statistics and 478 00:28:07,036 --> 00:28:10,836 Speaker 1: told the old school scouts, you know you're picking the 479 00:28:10,836 --> 00:28:15,436 Speaker 1: wrong players. Parker does moneyball for law firms. 480 00:28:15,916 --> 00:28:18,996 Speaker 4: You mentioned Moneyball earlier. It really is moneyball. 481 00:28:19,276 --> 00:28:21,076 Speaker 12: Yeah, it is one hundred percent. 482 00:28:21,396 --> 00:28:26,036 Speaker 1: Parker's young, cerebral, very proper in a suit tie briefcase. 483 00:28:26,396 --> 00:28:29,356 Speaker 1: He's not messing around. I said at the beginning that 484 00:28:29,396 --> 00:28:31,516 Speaker 1: I was going to offer you a grand, unified theory 485 00:28:31,556 --> 00:28:35,716 Speaker 1: of how to fix higher education. I'm almost there. Parker 486 00:28:35,716 --> 00:28:39,196 Speaker 1: analyzes who the successful people are at any law firm, 487 00:28:39,516 --> 00:28:43,436 Speaker 1: and then works backwards and asks is the firm hiring 488 00:28:43,476 --> 00:28:45,756 Speaker 1: the kind of law school graduate who is most likely 489 00:28:45,796 --> 00:28:51,236 Speaker 1: to become a good lawyer. He has multiple data points, regressions, algorithms, 490 00:28:51,636 --> 00:28:54,356 Speaker 1: and he finds they don't hire the right kind of 491 00:28:54,436 --> 00:28:55,356 Speaker 1: law school graduate. 492 00:28:55,556 --> 00:28:59,356 Speaker 12: What is the inefficiency that it's the perfect word, is 493 00:28:59,396 --> 00:29:00,556 Speaker 12: a market inefficiency. 494 00:29:00,876 --> 00:29:05,756 Speaker 1: Firms have plenty of information about prospective hires, resume grades, 495 00:29:05,916 --> 00:29:09,196 Speaker 1: law school work, experience, but Parker finds they don't know 496 00:29:09,236 --> 00:29:11,636 Speaker 1: how to make sense of it. People go for a 497 00:29:11,676 --> 00:29:12,556 Speaker 1: shortcut instead. 498 00:29:12,996 --> 00:29:16,276 Speaker 12: You end up selecting people who are like you, not 499 00:29:16,556 --> 00:29:20,236 Speaker 12: people who are like the successful attorneys at your firm. 500 00:29:20,676 --> 00:29:24,156 Speaker 12: You know, my colleague is called it the mirror toocracy, right. 501 00:29:24,476 --> 00:29:28,916 Speaker 1: The mirror toocracy. People who remind us of ourselves. At 502 00:29:28,956 --> 00:29:31,556 Speaker 1: the standard law firm interview, a partner sits down with 503 00:29:31,596 --> 00:29:34,516 Speaker 1: a second year law school student, and then that partner 504 00:29:34,596 --> 00:29:38,476 Speaker 1: rates the candidate. What is the correlation between that rating 505 00:29:39,076 --> 00:29:42,036 Speaker 1: and how well the candidate actually does when they get hired. 506 00:29:43,316 --> 00:29:44,436 Speaker 1: Parker analyzes the data. 507 00:29:44,756 --> 00:29:48,316 Speaker 12: It was essentially a coin flip. So someone says, you know, 508 00:29:48,356 --> 00:29:50,916 Speaker 12: you're this person's great, or they say this person's here. 509 00:29:51,316 --> 00:29:53,156 Speaker 12: That really doesn't tell you anything about how they're actually 510 00:29:53,156 --> 00:29:56,236 Speaker 12: going to do with retention. It was actually negative, so 511 00:29:56,276 --> 00:29:59,236 Speaker 12: that those who are getting higher individual scores are actually 512 00:29:59,316 --> 00:30:00,276 Speaker 12: less likely to stay. 513 00:30:00,916 --> 00:30:04,036 Speaker 1: Parker's method is to try and systematize what a law 514 00:30:04,076 --> 00:30:07,076 Speaker 1: firm wants so that when they interview someone they know 515 00:30:07,116 --> 00:30:07,876 Speaker 1: what to ask. 516 00:30:08,276 --> 00:30:09,996 Speaker 12: I probably wouldn't say too much because I can't give 517 00:30:10,036 --> 00:30:12,076 Speaker 12: it all the way. But what we can do is 518 00:30:12,996 --> 00:30:17,196 Speaker 12: think of proxies for certain types of behavior. So blue 519 00:30:17,196 --> 00:30:19,316 Speaker 12: collar worker experience, what happens if you have that in 520 00:30:19,356 --> 00:30:22,796 Speaker 12: your background. I mean, that's a mixed bag. It could 521 00:30:22,796 --> 00:30:24,516 Speaker 12: be a lot of things. But if you have that 522 00:30:24,596 --> 00:30:28,276 Speaker 12: background and you've also gone on to succeed and graduate 523 00:30:28,556 --> 00:30:33,596 Speaker 12: law school and perform well, that is to us a 524 00:30:33,676 --> 00:30:37,636 Speaker 12: signal of something meaningful right. And so at certain firms 525 00:30:37,716 --> 00:30:39,756 Speaker 12: you will see blue collar work experience as being one 526 00:30:39,796 --> 00:30:44,796 Speaker 12: of the most I think positive and significant factors under 527 00:30:44,836 --> 00:30:46,636 Speaker 12: the all l SQL conditions. 528 00:30:47,516 --> 00:30:51,076 Speaker 1: What makes for a good lawyer is complicated. It differs 529 00:30:51,076 --> 00:30:53,796 Speaker 1: from law firm to law firm, job to job, situation 530 00:30:53,876 --> 00:30:57,316 Speaker 1: to situation. You need algorithms and data to make sense 531 00:30:57,316 --> 00:31:00,116 Speaker 1: of it. And now we come to the heart of 532 00:31:00,116 --> 00:31:00,716 Speaker 1: the issue. 533 00:31:00,956 --> 00:31:03,796 Speaker 12: Some of the ones that are more I think surprising 534 00:31:03,796 --> 00:31:05,396 Speaker 12: the firms are the things that don't matter. 535 00:31:05,796 --> 00:31:10,676 Speaker 1: What doesn't matter Wait for it, well, where you. 536 00:31:10,676 --> 00:31:14,036 Speaker 12: Went to law school, it doesn't matter at all. You 537 00:31:14,076 --> 00:31:18,556 Speaker 12: know at all, Yeah, it's essentially a random predictor. 538 00:31:18,796 --> 00:31:21,516 Speaker 4: So does it not matter within T fourteen or does 539 00:31:21,556 --> 00:31:22,156 Speaker 4: it not matter? 540 00:31:22,676 --> 00:31:24,316 Speaker 12: Well, it really doesn't matter. 541 00:31:26,916 --> 00:31:29,356 Speaker 1: If you go on the website of any hotshot law firm, 542 00:31:29,876 --> 00:31:31,876 Speaker 1: they have a picture of every one of their attorneys, 543 00:31:32,196 --> 00:31:33,996 Speaker 1: and next to the picture, they'll tell you where that 544 00:31:34,036 --> 00:31:36,556 Speaker 1: person went to law school, so they can boast about 545 00:31:36,556 --> 00:31:39,556 Speaker 1: how they never hire from Ohio State and American University. 546 00:31:40,076 --> 00:31:43,516 Speaker 1: That's how much the profession is obsessed with law school pedigree. 547 00:31:44,116 --> 00:31:47,076 Speaker 1: But what does the moneyball guy, the quant who has 548 00:31:47,156 --> 00:31:51,956 Speaker 1: run the numbers tell us, really doesn't matter. 549 00:31:53,236 --> 00:31:55,916 Speaker 12: And we like to sort of represent results visually, and 550 00:31:55,956 --> 00:31:58,876 Speaker 12: so we'll have this baseline line and essentially, you know, 551 00:31:59,196 --> 00:32:01,196 Speaker 12: what's to the left is sort of a negative predictor 552 00:32:01,196 --> 00:32:04,156 Speaker 12: what's to the right as a positive. And you know, 553 00:32:04,476 --> 00:32:08,476 Speaker 12: it's almost uniformly the case that this T fourteen falls 554 00:32:08,556 --> 00:32:11,876 Speaker 12: right on that, which is say, it's just an insignificant factor. 555 00:32:12,276 --> 00:32:17,236 Speaker 4: Really, yeah, that's kind of fantastic. Maybe fantastic is the 556 00:32:17,236 --> 00:32:19,956 Speaker 4: wrong word. Infuriating is a better word. 557 00:32:21,996 --> 00:32:24,796 Speaker 1: This whole process begins with the L set, which is 558 00:32:24,836 --> 00:32:27,596 Speaker 1: based on the idea that a certain kind of thinking 559 00:32:27,716 --> 00:32:31,076 Speaker 1: is valuable for legal education. And we know that's tricky 560 00:32:31,556 --> 00:32:34,676 Speaker 1: because it's not exactly clear why that certain kind of 561 00:32:34,716 --> 00:32:37,676 Speaker 1: thinking is so much more important than other kinds of thinking. 562 00:32:37,796 --> 00:32:42,676 Speaker 1: But whatever, for a separate set of idiosmocratic reasons. America 563 00:32:42,836 --> 00:32:45,996 Speaker 1: only has so many places at the top. So those 564 00:32:46,036 --> 00:32:49,396 Speaker 1: who excel at that certain kind of thinking get into 565 00:32:49,396 --> 00:32:51,516 Speaker 1: the top law schools, and those who get into the 566 00:32:51,556 --> 00:32:53,916 Speaker 1: top law schools get hired by the top law firms. 567 00:32:54,796 --> 00:32:57,436 Speaker 1: And then what do we find when you look at 568 00:32:57,436 --> 00:33:00,316 Speaker 1: who succeeds at those top law firms which hire in 569 00:33:00,356 --> 00:33:02,316 Speaker 1: the basis of which law school you went to, which 570 00:33:02,316 --> 00:33:04,076 Speaker 1: in turn select on the basis of whether you're good 571 00:33:04,116 --> 00:33:07,356 Speaker 1: at that certain kind of thinking, you find where you 572 00:33:07,436 --> 00:33:11,556 Speaker 1: went to law school doesn't matter the whole Daisy chain 573 00:33:12,116 --> 00:33:16,316 Speaker 1: el sat law school, law firm. We made it all up. 574 00:33:18,116 --> 00:33:20,956 Speaker 1: Evan Parker once did a special study on rain makers, 575 00:33:21,356 --> 00:33:23,236 Speaker 1: the people who are really good at bringing in new 576 00:33:23,236 --> 00:33:26,956 Speaker 1: business for a law firm. Law firms cannot survive without 577 00:33:27,036 --> 00:33:27,716 Speaker 1: rain makers. 578 00:33:27,876 --> 00:33:31,836 Speaker 12: And I was struck in doing that work. How many 579 00:33:32,236 --> 00:33:34,436 Speaker 12: of the individuals in our study went to law schools 580 00:33:34,436 --> 00:33:37,076 Speaker 12: that I've never even heard of, right, or they went 581 00:33:37,076 --> 00:33:39,556 Speaker 12: to night school to get their law degree. 582 00:33:39,476 --> 00:33:43,196 Speaker 1: Night school, and law schools you've never heard of. So 583 00:33:43,276 --> 00:33:46,836 Speaker 1: what should we do about this absurdity? It is now 584 00:33:46,956 --> 00:33:51,116 Speaker 1: time for Malcolm Gladwell's grand unified theory of how to 585 00:33:51,116 --> 00:33:57,276 Speaker 1: fix higher education. Ready, don't ask, don't tell. We make 586 00:33:57,316 --> 00:34:03,876 Speaker 1: a rule prospective employers cannot ask, and prospective employees cannot 587 00:34:03,916 --> 00:34:09,156 Speaker 1: disclose the name of the educational institutions they attended and 588 00:34:09,316 --> 00:34:11,836 Speaker 1: still go to Harvard if you want, spend a small 589 00:34:11,876 --> 00:34:14,156 Speaker 1: fortune on tutoring for the l set so that when 590 00:34:14,236 --> 00:34:15,996 Speaker 1: you sit down in that classroom you can be the 591 00:34:16,116 --> 00:34:19,476 Speaker 1: very speediest hair you can be. But the minute you 592 00:34:19,596 --> 00:34:22,676 Speaker 1: leave Harvard you have to shut up about it. Silence. 593 00:34:23,436 --> 00:34:27,876 Speaker 1: Harvard's over, and employers can't use it as a shortcut 594 00:34:27,876 --> 00:34:30,316 Speaker 1: for who to hire because it's not helping them, and 595 00:34:30,356 --> 00:34:34,876 Speaker 1: they can't post it on their websites. While we're at it, 596 00:34:34,916 --> 00:34:37,196 Speaker 1: By the way, let's do don't ask, don't tell for 597 00:34:37,276 --> 00:34:40,956 Speaker 1: all hiring. When you think about choosing a school, you 598 00:34:40,996 --> 00:34:43,116 Speaker 1: should be thinking about where you can get the best 599 00:34:43,276 --> 00:34:47,356 Speaker 1: education for you and where you will be happy. You 600 00:34:47,396 --> 00:34:51,356 Speaker 1: shouldn't be making some complicated calculation about the brand value 601 00:34:51,356 --> 00:34:55,356 Speaker 1: of your college in the workplace, and neither should the 602 00:34:55,396 --> 00:34:56,076 Speaker 1: Supreme Court. 603 00:34:57,396 --> 00:35:01,156 Speaker 2: So I can't afford a miss. I just can't. So 604 00:35:01,276 --> 00:35:03,476 Speaker 2: I'm going to be picking from the law schools that 605 00:35:04,716 --> 00:35:07,596 Speaker 2: basically are the hardest to get into. 606 00:35:07,916 --> 00:35:11,076 Speaker 1: So this is what Justice Scalia could have said. He 607 00:35:11,156 --> 00:35:14,676 Speaker 1: could have said in answer to Christinastet's question. I care 608 00:35:14,756 --> 00:35:18,796 Speaker 1: about people who can think deeply about consequential issues, who 609 00:35:18,876 --> 00:35:21,956 Speaker 1: know how to read slowly, who are hungry enough to 610 00:35:21,956 --> 00:35:24,916 Speaker 1: work on problems around the clock. I had a clerk 611 00:35:24,956 --> 00:35:27,876 Speaker 1: once named Jeff Sutton who was all those things and more. 612 00:35:28,076 --> 00:35:31,156 Speaker 1: And I guess what I'm looking for is another Jeff Sutton, 613 00:35:31,876 --> 00:35:35,636 Speaker 1: another giant tortoise. And if you're concerned about the fact 614 00:35:35,836 --> 00:35:38,796 Speaker 1: you go to Washington College of Law or Ohio State 615 00:35:38,956 --> 00:35:42,436 Speaker 1: because your l SAT score wasn't high enough, remember I 616 00:35:42,476 --> 00:35:45,156 Speaker 1: don't care where you went to law school, because I 617 00:35:45,236 --> 00:35:49,716 Speaker 1: consider it my responsibility, as a gatekeeper in a meritocracy 618 00:35:50,076 --> 00:35:53,476 Speaker 1: to select people based on their fit and their ability, 619 00:35:53,836 --> 00:35:57,356 Speaker 1: and not on their skill at answering twenty five questions 620 00:35:57,636 --> 00:36:02,196 Speaker 1: in thirty five minutes something like that. It's not a 621 00:36:02,236 --> 00:36:10,236 Speaker 1: hard thing to say, right. I'm here with Camille Baptista, 622 00:36:10,596 --> 00:36:14,756 Speaker 1: my assistant with whom I went Mono Mono on the 623 00:36:14,916 --> 00:36:20,116 Speaker 1: l SAT. Three weeks ago, and Jacob Smith is also 624 00:36:20,156 --> 00:36:23,716 Speaker 1: with us. This is the moment of unveiling. We have 625 00:36:24,516 --> 00:36:27,836 Speaker 1: h Camille was has gotten the email from the law 626 00:36:27,836 --> 00:36:28,956 Speaker 1: school missions council. 627 00:36:30,396 --> 00:36:31,756 Speaker 10: We're gonna start with my score. 628 00:36:31,876 --> 00:36:40,076 Speaker 12: Okay, okay, oh okay, nice, okay. 629 00:36:39,716 --> 00:36:42,916 Speaker 6: All right, all right, all right, this is Malcolm score. 630 00:36:44,876 --> 00:36:46,076 Speaker 4: Wait what what? 631 00:36:46,516 --> 00:36:52,516 Speaker 8: I can't believe it? Go back to yours for a second. 632 00:36:52,556 --> 00:36:54,916 Speaker 4: Yeah, we tied. 633 00:36:55,636 --> 00:36:58,276 Speaker 1: We got the same score. And I know you want 634 00:36:58,276 --> 00:37:01,436 Speaker 1: to know what the score is. But trust me, that 635 00:37:01,476 --> 00:37:08,796 Speaker 1: way lies only bitterness and illusion. Don't ask, don't tell m. 636 00:37:14,116 --> 00:37:18,716 Speaker 4: That is okay, the sweetest poetic justice. 637 00:37:19,876 --> 00:37:20,116 Speaker 2: You know. 638 00:37:20,156 --> 00:37:23,396 Speaker 4: We began this whole process back in January, and it 639 00:37:23,556 --> 00:37:27,356 Speaker 4: was the whole question was whether my years of savvie 640 00:37:27,476 --> 00:37:31,036 Speaker 4: experience would be offset by my years of cognitive decline, 641 00:37:31,156 --> 00:37:32,076 Speaker 4: and whether. 642 00:37:32,436 --> 00:37:38,516 Speaker 1: Camille Camille, the swiftness and brightness and newness of her brain, 643 00:37:39,036 --> 00:37:42,796 Speaker 1: would overcome her lack of of real life experience and. 644 00:37:42,796 --> 00:37:46,036 Speaker 4: Turns out as a wash. I think this outcome is 645 00:37:46,036 --> 00:37:48,196 Speaker 4: absolutely beautiful and delightful. 646 00:37:49,556 --> 00:37:51,876 Speaker 10: I think next season you guys should, as a stunt, 647 00:37:52,156 --> 00:37:53,396 Speaker 10: both go to law school. 648 00:37:55,156 --> 00:37:56,716 Speaker 4: Science name of science. 649 00:38:01,116 --> 00:38:04,796 Speaker 1: Revisionist History is produced by me LaBelle and Jacob Smith 650 00:38:05,276 --> 00:38:10,116 Speaker 1: with Camille Baptista. Our editor is Julia Barton. Lawn Williams 651 00:38:10,236 --> 00:38:14,436 Speaker 1: is our engineer. Fact checking by Beth Johnson. Original music 652 00:38:14,436 --> 00:38:18,916 Speaker 1: by Luis Kira. Special thanks to Carl Migliore, Heather Fein, 653 00:38:19,556 --> 00:38:25,436 Speaker 1: Maggie Taylor, Maya Kanig, and Jacob Weisberg. Revision's History is 654 00:38:25,436 --> 00:38:29,316 Speaker 1: brought to you by Pushkin Industries. I'm Malcolm Gladwell. 655 00:38:36,276 --> 00:38:41,196 Speaker 8: Okay, Malcolm your March twenty nineteen ELSA score is the 656 00:38:41,236 --> 00:38:42,236 Speaker 8: percentile rank is