Speaker 1: Pushkin. April twenty fourth, two thousand and nine, the late
Speaker 1: Supreme Court Justice Antonin Scalia is speaking at American University's
Speaker 1: Washington College of Law.
Speaker 2: Thank you, thank you very much, Professor Marcus Dean Grossman,
Speaker 2: Ladies and gentlemen, I began one of my either talks
Speaker 2: or law of you WARDI.
Speaker 1: The students are all dressed up for the occasion. Sea
Speaker 1: Span is recording. There's a big stage hung with blue
Speaker 1: polyester drapes. Scalia holds forth, his black hair swept back
Speaker 1: from his forehead, glasses on his nose, strong and square,
Speaker 1: all intellectual heft and force, gripping the podium like it's
Speaker 1: a slab.
Speaker 2: Of beef, and that administrative law is not for sissies.
Speaker 2: It is. It is a very difficult course to teach,
Speaker 2: and I assume it certainly wasn't my day a hard
Speaker 2: course to master.
Speaker 1: It's vintage Scalia. The audience hangs on his every word.
Speaker 1: He finishes triumphantly than hands shoot in the air.
Speaker 3: Good afternoon. My name is Christina Stutt. I'm a one
Speaker 3: l student here at w CL.
Speaker 1: Christina studt First, your student have.
Speaker 3: A more general question, and that is the part of
Speaker 3: American the American ethos is that our society as a
Speaker 3: meritocracy were hard work and talantly to success. But there
Speaker 3: are other important factors like connections and elite degrees. And
Speaker 3: I'm wondering, other than grades of journal what do smart,
Speaker 3: hardworking WSL students with strong writing skills need to do
Speaker 3: to be outrageously successful in the law.
Speaker 1: What does it take to be outrageously successful in the law?
Speaker 2: A just work hard and be very good. I tell
Speaker 2: you a story.
Speaker 1: My name is Malcolm Gladwell. You're listening to Revisionist History,
Speaker 1: my podcast about things overlooked and misunderstood. This episode is
Speaker 1: part two of my examination of the bizarre things the
Speaker 1: legal profession does to pick its best and brightest. In
Speaker 1: part one, which if you haven't listened to you probably should,
Speaker 1: I took the law school admissions test along with my
Speaker 1: assistant Camille and couldn't understand why they made me rush
Speaker 1: through all the questions. But now in part two we
Speaker 1: have bigger fish to fry. I'm going to serve up
Speaker 1: Malcolm Gladwell's grand unified theory of how to fix American
Speaker 1: legal education. No, make that my grand unified theory for
Speaker 1: fixing all American higher education. And what is our text
Speaker 1: for this discussion of Gladwell's grand unified theory. It's the
Speaker 1: answer Justice Scalia gave to the unfortunate Christina Studd.
Speaker 2: You know, by and large, unless I have a professor
Speaker 2: on the faculty who's a good friend and preferably a
Speaker 2: former law clerk of mine whose judgment I can trust,
Speaker 2: I'm going to be picking, you know, for Supreme Court
Speaker 2: law clerks. I can't afford a miss I just can't.
Speaker 2: So I'm going to be picking from the law schools
Speaker 2: that basically there are the hardest to get into. They
Speaker 2: admit the best in the brightest, and they may not
Speaker 2: teach very well, but you can't make You can't make
Speaker 2: a sow's ear out of a silk purse. And if
Speaker 2: they come in the best in the brightest, they're probably
Speaker 2: going to leave the best in the brightest.
Speaker 1: Okay, let's pretend to be fine legal minds for a
Speaker 1: moment and closely parts the meaning and implication of Scalia's statement.
Speaker 1: A student at American University's Washington College of Law, a
Speaker 1: law school that US News and Will Report ranked seventy
Speaker 1: seventh among all American law schools, is asking a question
Speaker 1: of a sitting justice of the US Supreme Court who
Speaker 1: graduated from Harvard Law School. She's basically asking him would
Speaker 1: it be possible to be one of his clerks, and
Speaker 1: he answers, you go to American University's Washington College of Law,
Speaker 1: you have no chance of becoming one of my clerks.
Speaker 1: I only hire people who went to Harvard, like I did.
Speaker 1: But then he goes on and he says this, which
Speaker 1: is my favorite part because it sums up absolutely everything
Speaker 1: I want to talk about in this episode. I mean everything.
Speaker 2: Now I started. The reason I tell the story is
Speaker 2: one of my former clerks who I am the most
Speaker 2: proud of and now sits on the Sixth Circuit Court
Speaker 2: of Appeals, Jeff Sutton. I always referred him as one
Speaker 2: of my former law He wasn't one of my former
Speaker 2: law He was Lewis Powell's clerk.
Speaker 1: At the time. Lewis Powell was semi retired from the
Speaker 1: Supreme Court. He had what's called senior status, so his
Speaker 1: law clerks worked mostly for other justices.
Speaker 2: But I wouldn't have hired Jeff Sutton for God's sake.
Speaker 2: He went to Ohio State and he's one of the
Speaker 2: very best law clerks I ever had, and he's just
Speaker 2: a brilliant guy. So don't tell me this stuff about
Speaker 2: you know, what do you have to do to be successful?
Speaker 2: You have to be good, simple as that.
Speaker 4: Okay, we're not thank you very much, thank you.
Speaker 1: Oh we're not done. We've only just begun.
Speaker 4: Tell me why you decided to go to law school?
Speaker 5: WHOA So? Law school was a third choice. First choice
Speaker 5: was teaching. I was a teacher and coach for several years,
Speaker 5: both middle school, high school, soccer, baseball, little track.
Speaker 1: This is Judge Jeffrey Sutton, the guy who somehow slipped
Speaker 1: through the cracks to become the best clerk and in
Speaker 1: in Scalia ever had.
Speaker 5: Foreign service was choice number two. No lawyers in my family,
Speaker 5: and when I finally went to law school, I wouldn't
Speaker 5: say my parents were beaming with pride. I came from
Speaker 5: a family of kind of service driven folks who were
Speaker 5: either in education some missionaries.
Speaker 4: And why did you decide to go to Ohio State
Speaker 4: law school?
Speaker 5: Well, it was a pretty complicated decision. I applied to
Speaker 5: two law schools, Ohio State and Michigan. I got into
Speaker 5: one of them, and I ended up enrolling at the
Speaker 5: one I got into. Oh I see it was I
Speaker 5: very much would have liked to have gone to Michigan,
Speaker 5: and I was the fact that my father in law
Speaker 5: had gone there and his son in law couldn't get
Speaker 5: in was a little humbling, but we got over it.
Speaker 1: I didn't ask Judge Sutton what his lsat's score was,
Speaker 1: but we can do the math. Michigan is part of
Speaker 1: the elite group of law schools known as the T fourteen,
Speaker 1: the top fourteen Yale, Stanford, Harvard, University of Chicago, Columbia,
Speaker 1: all the big ones. Ohio State is not among the
Speaker 1: T fourteen. The median LSAT score of someone who goes
Speaker 1: to Ohio State these days is eight points lower than
Speaker 1: the median score of someone at Michigan. Now what does
Speaker 1: that fact mean. Well, as you may recall from the
Speaker 1: previous episode, the l set is not a test of
Speaker 1: someone's ability to solve difficult problems. It's a test of
Speaker 1: someone's ability to solve difficult problems quickly. It is five
Speaker 1: sections of twenty to twenty five questions, and you have
Speaker 1: a hard limit of thirty five minutes for each section.
Speaker 1: You have to rush. As one el SAT tutor told me,
Speaker 1: the test favors those capable of processing without understanding it
Speaker 1: favors not tortoises. So what's Jeff Sutton. Well, he's clearly brilliant.
Speaker 1: He was the Ohio State Solicitor in the nineteen nineties
Speaker 1: and while the Supreme Court with his arguments on a
Speaker 1: number of cases. His most recent work of legal scholarship
Speaker 1: is titled fifty one Imperfect Solutions, States and the Making
Speaker 1: of Constitutional Law. The New York Review of Books felt
Speaker 1: they had to get a retired Supreme Court justice to
Speaker 1: review it. There are lots of very serious people, in fact,
Speaker 1: who think Sutton deserves to be a Supreme Court justice
Speaker 1: himself one day. So Sutton is in the category of
Speaker 1: brilliant person who didn't do all that well on the
Speaker 1: lsat what does that make him? It makes him a tortoise,
Speaker 1: and not just any tortoise, a giant tortoise. He's one
Speaker 1: of those tortoises from the Galapagos that's five feet long.
Speaker 1: So Sutton graduates from Ohio State, gets a job clerking
Speaker 1: for a federal judge, then a job cloking on the
Speaker 1: Supreme Court, and in his year as clerk for Scalia, he.
Speaker 5: Thrives the thing that really affects everybody who works with him.
Speaker 5: Is within weeks you just get a sense of this
Speaker 5: incredible passion for the law, and that is just intoxicating.
Speaker 5: And that is what really changed things. And that year.
Speaker 5: I can't emphasize enough how much I got out of
Speaker 5: that year.
Speaker 1: Not long before, Jeffrey Sutton had been a middle school
Speaker 1: teacher and track coaching Columbus. Now he's working with one
Speaker 1: of the greatest legal minds in the country, and he
Speaker 1: does such a good job that seventeen years later, at
Speaker 1: some random speech at American University, Scalia singles him out.
Speaker 1: Scalia had well over one hundred clerks, jeff Sutton is
Speaker 1: the one he's proudest of. So why does a tortoise
Speaker 1: do so well working for the Supreme Court? I asked
Speaker 1: my fanciest legal friend, Tally for Haddien, who is a
Speaker 1: clerk on the Court a few years after Sutton for
Speaker 1: Justice Sandrada O'Connor, if.
Speaker 4: You were working on a case. What what does working
Speaker 4: on a case mean?
Speaker 6: Well, we worked on two kinds of cases.
Speaker 1: The first kind is what's called the sert pool, the
Speaker 1: thousands of petitions sent to Washington every year by people
Speaker 1: who want their cases heard by the Supreme Court.
Speaker 6: We would each get a stack of petitions I think
Speaker 6: on a Wednesday, and we had a week to get
Speaker 6: into the pool.
Speaker 4: Yeah, so that in that case there would be a
Speaker 4: lot to.
Speaker 6: Read, a lot to read.
Speaker 4: When you read those kinds of things, How do you read?
Speaker 6: How do you read? I don't know what that question.
Speaker 4: Do you read the same way you read a work
Speaker 4: of nonfiction or a New Yorker article or well?
Speaker 7: I always read them, and I continue to read similar
Speaker 7: documents with a pencil in my hand, which is not
Speaker 7: how I would read for pleasure, whether nonfiction or fiction.
Speaker 4: Slower or faster? Much slower, much slower, yes, how much slower.
Speaker 7: Personally, I feel I can read very quickly, and I
Speaker 7: can read very slowly, and I get different things out
Speaker 7: of it.
Speaker 4: But this is definitely slow reading territory.
Speaker 6: It is slow reading territory.
Speaker 4: And why is it so important to read slowly?
Speaker 6: Because the details matter and because the arguments are intricate, Yeah,
Speaker 6: and because the solutions are difficult. I mean, everybody will
Speaker 6: tell you this. When a case comes to the Supreme Court.
Speaker 7: You know a case that's really ready for a review
Speaker 7: at the Supreme Court, it's hard. The reason the circuit
Speaker 7: courts have disagreed about it is because it's really hard.
Speaker 7: Like the answer is not obvious. You're kidding yourself if
Speaker 7: you think that it is. So you have to think
Speaker 7: while you read.
Speaker 4: Yeah, yeah, you can't just process. You have to understand. Yes, yeah, you.
Speaker 1: Have to think while you read. This is the primary
Speaker 1: requirement of one of the most prestigious jobs in the
Speaker 1: legal profession. The other part of the job, the main
Speaker 1: part of the job, is researching and analyzing the actual
Speaker 1: cases that come before the court. For Hardian was one
Speaker 1: of four clerks working for O'Connor, so she would get
Speaker 1: assigned a quarter of those cases.
Speaker 6: And how much time would you spend on them?
Speaker 7: I don't think I ever stopped thinking about the cases
Speaker 7: that I was working on.
Speaker 4: Yeah, but what with the time that would elapse. What's
Speaker 4: the time that would elapse from when you were given
Speaker 4: the case to when you when you were finished with
Speaker 4: your contribution was finished?
Speaker 6: I don't remember, I want to say a couple months.
Speaker 1: Being a Supreme Court clerk is a job for a tortoise.
Speaker 1: You can't hurry. You have to work slowly and carefully
Speaker 1: because if you miss something, that's a problem. I didn't
Speaker 1: even have to mention tortoises to Judge Sutton. He brought
Speaker 1: them up.
Speaker 5: You know, law is very much a tortoise. The tortoise
Speaker 5: went beats the hair, and so the hairs that go
Speaker 5: to the elite schools, they better slide into tortoise mode
Speaker 5: or it's not going to work out well for them.
Speaker 5: And the tortoises that go to the state school's better
Speaker 5: stay being a tortoise than stick with it.
Speaker 1: So let us recap. A sitting Supreme Court justice explains
Speaker 1: to a group of law school students that he will
Speaker 1: not consider them for a job that involves being a
Speaker 1: tortoise because they have failed to shine at a test
Speaker 1: that measures their ability to be a hare. And even
Speaker 1: as he says that, he concedes that one of the
Speaker 1: best of his former clerks was a tortoise who also
Speaker 1: did not shine at a test that measured his ability
Speaker 1: to be a hare. And when he presents this confounding
Speaker 1: bit of reasoning that manages both to stigmatize and disparage
Speaker 1: the entire audience, what does the audience do Listen? I mean,
Speaker 1: this is bananas. This is like prisoners cheering award. I
Speaker 1: think you can see why we are in need of
Speaker 1: a grand, unified theory to fix legal education.
Speaker 4: At the.
Speaker 1: Monday, after my assistant, Camille, and I took the l SAT,
Speaker 1: we took the train to Newtown, Pennsylvania, to the headquarters
Speaker 1: of the Law School Admissions Council. This is the group
Speaker 1: that for the past seventy years has created and administered
Speaker 1: the ALSAT. They operate out of a two story red
Speaker 1: brick building in an office park, big atrium, very eighties.
Speaker 1: We were ushered into a conference room on the second
Speaker 1: floor where a row of test experts psychometricians were waiting
Speaker 1: for us.
Speaker 4: What time did you have to arrive at the test center?
Speaker 4: Eight They began with a tutorial on how to make
Speaker 4: a standardized test, which I I have to say was fascinating.
Speaker 1: It turns out a single item on a test like
Speaker 1: the ELSAT takes thirty six months to develop. They don't
Speaker 1: just dream up hard questions, They test the questions over
Speaker 1: and again to make sure they're the right kind of hard.
Speaker 8: So what I've done here is I've identified a question
Speaker 8: that was actually rejected because it was not performing similarly
Speaker 8: for two subgroups of interest. Those were males and females.
Speaker 1: This is Alex Weisman.
Speaker 8: The question text is actually on the second page. It
Speaker 8: starts off Thomas Tompkins, Renaissance English composer wrote in a
Speaker 8: musical style that in his time had already become outdated,
Speaker 8: and so forth.
Speaker 1: This is a passage designed to test the reading comprehension
Speaker 1: skills of would be lawyers. But the results of the
Speaker 1: question came out weird. Women who are otherwise doing really
Speaker 1: well on that section were somehow tripping up on this
Speaker 1: particular question, and the equivalent group of male high scorers
Speaker 1: were overwhelming getting it right.
Speaker 4: So here we have almost two x male versus not
Speaker 4: all well, well, almost twice as many males as women
Speaker 4: as females got this question.
Speaker 8: Correct right, So if you that is, that is already
Speaker 8: indicative of a problem with this question. So why the
Speaker 8: question of why is not always easy to answer it.
Speaker 8: And for a question like this, what we determine is
Speaker 8: even if we can't determine why this is happening, we
Speaker 8: don't take the chance in keeping it on the test.
Speaker 1: In this case, the l SAT wasn't functioning as a
Speaker 1: test of ability, which is what it's supposed to be.
Speaker 1: It seemed like it was a test of gender. Which
Speaker 1: it's not supposed to be, so they threw the question out.
Speaker 1: When I talked to psychometricians outside the legal world, they
Speaker 1: were unanimous in their praise of the l SAT. It
Speaker 1: was like talking to auto mechanics about a Porsche. Mechanics
Speaker 1: love Porsches, and if I had let them, I feel
Speaker 1: those three on the panel would have happily talked about
Speaker 1: their sports car for hours, the engine, the steering, the acceleration.
Speaker 1: But Camille and I had just two days earlier taken
Speaker 1: Nielsat and what I really wanted to know was why
Speaker 1: would these guys building a sports car? I mean, why
Speaker 1: go so fast? Why not just build a really good minivan.
Speaker 9: So we know in law school that doing the work efficiently,
Speaker 9: being able to handle the reading load and handle the
Speaker 9: amount of analysis that's required in a certain amount of
Speaker 9: time is relevant.
Speaker 1: Lily Nissovich takes up the cause.
Speaker 9: Research requirements on any redesign of the test is to
Speaker 9: make sure that if you're changing the timing or the
Speaker 9: number of questions that you're asking the given amount of time,
Speaker 9: that you go back to square one and make sure
Speaker 9: it predicts.
Speaker 1: We're now one hour and fourteen minutes into the presentation.
Speaker 1: I can't hold back any longer.
Speaker 4: So you've been talking about efficiency, Bret. I was trying
Speaker 4: to be more You guys stop me from being efficient.
Speaker 1: I had just been through the experience of finishing the
Speaker 1: first section of the el SAT with time to spare,
Speaker 1: and then running away out of time on the last
Speaker 1: logic section.
Speaker 4: The efficient way for me to take the test would
Speaker 4: be to speed up on the things that I was
Speaker 4: really good at and then use that time on the
Speaker 4: things I needed more time on. That's how efficient people work, right,
Speaker 4: But you wouldn't let me be efficient. I was told
Speaker 4: seventeen times you cannot look ahead at the next section.
Speaker 4: Why I sat there for ten minutes after the first one?
Speaker 1: Okay, so I'm getting a little bit worked up, But
Speaker 1: remember I'm under tremendous pressure to beat Camille on the
Speaker 1: l SAT and all this time she's sitting right next
Speaker 1: to me, all smug and complacent, like she was doing
Speaker 1: logic games in her head just for fun.
Speaker 4: I was like, why can't I look at the next one?
Speaker 4: I'm trying to be efficient. You're not letting me, I mean.
Speaker 9: Because then you'd be giving get more time for that
Speaker 9: next section than the first. And next day or the
Speaker 9: first t who was the one the people who took
Speaker 9: the question when it was gone through all these levels.
Speaker 4: Of being efficient in law school is about time management, right.
Speaker 4: It is about doing things you can do it really
Speaker 4: quickly quickly and using that extra time to If I'm
Speaker 4: a a fast reader but a slow writer, then it
Speaker 4: can you know, I have a different balance. And if
Speaker 4: I'm a fast writer and a slow reader.
Speaker 1: I don't get the sense that I'm making any headway.
Speaker 4: So my question is, why are you forcing us all
Speaker 4: to do every skill in thirty five minutes? If human
Speaker 4: beings are everyone in that room I took it with
Speaker 4: had a different set of skills, but you're why are
Speaker 4: you pushing us all into the same cookie cutter.
Speaker 10: It's a standardized test.
Speaker 9: I guess timing is one of the features of the standardization,
Speaker 9: and we can do research on what you're saying.
Speaker 10: But have you well, we've done research on the timing
Speaker 10: of the questions before they were ever introduced.
Speaker 9: Many how long it takes for people to do this
Speaker 9: number of questions reasonably well to get your optimal score?
Speaker 10: Is it necessarily to try every question? So some students
Speaker 10: to get a better score.
Speaker 9: By spending more time per question and then leaving to
Speaker 9: you skipping a few than by trying every question. Some students'
Speaker 9: best strategy is to try every question, so we advise
Speaker 9: them to experiment on themselves when they're practicing and see
Speaker 9: what that's the best strategy.
Speaker 4: But that's the only reason you need to have those
Speaker 4: strategies is because you have this arbitrary time constraint.
Speaker 10: Right, I just take a suit with the arbitrary.
Speaker 1: Am I being obnoxious? Maybe I am. It's like I've
Speaker 1: gone to push a head coaters and strictgart and I'm
Speaker 1: badgering them about why they aren't building something with sliding
Speaker 1: doors in third row seating. I don't know. Doesn't it
Speaker 1: strike you that they should have at least thought about
Speaker 1: this a bit more?
Speaker 4: I mean you you started by going through a really
Speaker 4: elegant description about how much care you take to make
Speaker 4: sure tests do not have some element of cultural or
Speaker 4: uh you know, group unfairness, which I thought was super interesting.
Speaker 4: But now you just you. But you simultaneously have imposed
Speaker 4: a system which which discriminates against someone who, for example,
Speaker 4: is a slow reader. You're You're, on the one hand,
Speaker 4: beautifully sensitive to the notion that the test might be
Speaker 4: disadvantaging a certain kind of person. But in this, in this,
Speaker 4: in the same breath, you are completely insensitive to the
Speaker 4: kind of person who wants to take their time that
Speaker 4: will may be difficult. I'm just this is genuinely this
Speaker 4: was my question.
Speaker 10: You're so.
Speaker 9: To provide the information the test, does we have to
Speaker 9: do it in the standardized way you're suggests is a
Speaker 9: different approach to these.
Speaker 10: Tests, And we couldn't, of course do that. Willy nilly.
Speaker 1: They'll tinker and rewrite and rethink and restructure the questions,
Speaker 1: but not the format. No, that's willy nilly. The thirty
Speaker 1: five minute time limits on each section are cast in stone.
Speaker 1: Why they cast in stone because the job of the
Speaker 1: l set is to make it easier for law schools
Speaker 1: to decide which students to admit. And what would have
Speaker 1: happened if I had been able to carry over my
Speaker 1: extra time, or if that thirty five minutes was turned
Speaker 1: into forty five minutes, I would have scored higher, so
Speaker 1: would have lots of other tortoises. Give tortoises an extra
Speaker 1: ten minutes and suddenly some of them catch up to
Speaker 1: the hairs. But then what is that done? Now it's
Speaker 1: harder for law schools to decide which students to admit.
Speaker 1: Back I was preparing for the l SAT over at
Speaker 1: the ed tech company Noodle, I asked their experts to
Speaker 1: game this out. One of the Noodle guys, Fritz Stewart, said,
Speaker 1: you could relieve the time pressure for a significant number
Speaker 1: of tortoises if you extended the l SAT to one
Speaker 1: hundred and twenty five percent of its current length.
Speaker 4: If we did win to one hundred and twenty five percent,
Speaker 4: So what specifically we do it.
Speaker 11: What it's going to do is it's gonna screw with
Speaker 11: their lovely normed Bell curve.
Speaker 2: Right.
Speaker 11: It's really subversive in a way. What Fritz is trying
Speaker 11: to do is destroy law school admissions in a good web.
Speaker 1: That's Dan Edmonds, another Noodle guy. What he means is
Speaker 1: this Right now, over one hundred thousand people take the
Speaker 1: l set every year. The results fall on a Bell curve.
Speaker 1: Of course, the ninetieth percentile is right around one sixty
Speaker 1: four out of one hundred and eighty. The top schools
Speaker 1: are all mostly drawing from the pool above the one
Speaker 1: hundred and sixty seven mark. But if the test allows
Speaker 1: the tortoises to score higher, then suddenly the number oh,
Speaker 1: one hundred and sixty seven would balloon, the bell curve
Speaker 1: goes to hell in a handbasket.
Speaker 11: And the law schools would have to make admissions about
Speaker 11: something other than just the l SAT score, Because currently
Speaker 11: law school admissions is about seventy percent year l SET score,
Speaker 11: about thirty percent year grades, and that leaves pretty much
Speaker 11: zero percent for any other considerations. So if you take
Speaker 11: that pressure off, you're suddenly maybe tripling your number of
Speaker 11: qualified applicants for a lot of these top programs, and
Speaker 11: they're going to have to do the work of actually
Speaker 11: figuring out something other than a test to decide who
Speaker 11: gets into their school.
Speaker 1: Now that raises the question of why we don't just
Speaker 1: make the l set harder, lift the time pressure, and
Speaker 1: compensate by making the questions much tougher so we get
Speaker 1: our nice, beautiful bell curve back. But now all we're
Speaker 1: doing is we're privileging the tortoises over the hairs. Now
Speaker 1: the Jeff Sutton's of the world get a perfect score,
Speaker 1: go to Harvard Law School, and Justice Scalia breathes a
Speaker 1: sigh of relief. Except if you do it that way,
Speaker 1: the hairs get discouraged because they can only get into
Speaker 1: American university, where there's seventy seventh in the country, and
Speaker 1: when Supreme Court justices come to visit, they tell the
Speaker 1: students they have no chance. Why is this better? We
Speaker 1: need hairs too. If you're an investment bank trying to
Speaker 1: close an incredibly complicated deal in forty eight hours, where
Speaker 1: the lawyers have to all read a thousand pages in
Speaker 1: a day, maybe you want a hair. The law needs
Speaker 1: tortoises and hairs. We have now arrived at the absurdity
Speaker 1: of American meritocracy. Of course, the whole reason that people
Speaker 1: obsess over their LST score is that there are a
Speaker 1: small number of law schools that everyone wants to get into.
Speaker 1: The top fourteen. The prestigious law firms basically only higher
Speaker 1: from the top fourteen, and the top fourteen only have
Speaker 1: room to admit forty five hundred students a year. In total,
Speaker 1: fifty three thousand people are competing for forty five hundred slots.
Speaker 1: It's crazy. I'm a graduate of the University of Toronto.
Speaker 1: All Canadians will tell you that the University of Toronto
Speaker 1: is their most prestigious, most elite, world class university. Do
Speaker 1: you know how many undergraduates attend the University of Toronto? Ready?
Speaker 1: Remember this is the elite school in a country of
Speaker 1: just thirty five million people. And just to orient yourself,
Speaker 1: Harvard University, the most elite school in a country of
Speaker 1: three hundred and thirty million people, has a total undergraduate
Speaker 1: enrollment of six thousand, six hundred and ninety nine. Ready,
Speaker 1: the best school in Canada has seventy thousand, eight hundred
Speaker 1: and ninety undergraduates. Now, how about the University of British Columbia,
Speaker 1: our second crown jewel fifty two thousand, seven hundred and
Speaker 1: eleven undergraduates. What about McGill University in Montreal? I always
Speaker 1: wished I went to McGill Intimate, elite, exclusive. McGill has
Speaker 1: twenty seven thousand, six hundred and one undergraduates. Do you
Speaker 1: see how genius this is? We have elite schools in Canada,
Speaker 1: but we don't spend enormous amounts of time devising elaborate
Speaker 1: tests to arbitrarily limit the number of people who can
Speaker 1: attend those elite schools. We just made the schools bigger. Honestly,
Speaker 1: how hard is this? This whole revisionist history project on
Speaker 1: The LSAT began when I ran across a paper on
Speaker 1: SSRN by a guy named William Henderson. We met him
Speaker 1: in the previous episode, the former firefighter from Cleveland who
Speaker 1: now teaches law at Indiana University. Well, Henderson told me
Speaker 1: to call a friend of his named Evan Parker. They
Speaker 1: worked together. I don't know if you've ever read Michael
Speaker 1: Lewis's famous book Moneyball, about the analytics nerds who took
Speaker 1: over baseball. They went in with their advanced statistics and
Speaker 1: told the old school scouts, you know you're picking the
Speaker 1: wrong players. Parker does moneyball for law firms.
Speaker 4: You mentioned Moneyball earlier. It really is moneyball.
Speaker 12: Yeah, it is one hundred percent.
Speaker 1: Parker's young, cerebral, very proper in a suit tie briefcase.
Speaker 1: He's not messing around. I said at the beginning that
Speaker 1: I was going to offer you a grand, unified theory
Speaker 1: of how to fix higher education. I'm almost there. Parker
Speaker 1: analyzes who the successful people are at any law firm,
Speaker 1: and then works backwards and asks is the firm hiring
Speaker 1: the kind of law school graduate who is most likely
Speaker 1: to become a good lawyer. He has multiple data points, regressions, algorithms,
Speaker 1: and he finds they don't hire the right kind of
Speaker 1: law school graduate.
Speaker 12: What is the inefficiency that it's the perfect word, is
Speaker 12: a market inefficiency.
Speaker 1: Firms have plenty of information about prospective hires, resume grades,
Speaker 1: law school work, experience, but Parker finds they don't know
Speaker 1: how to make sense of it. People go for a
Speaker 1: shortcut instead.
Speaker 12: You end up selecting people who are like you, not
Speaker 12: people who are like the successful attorneys at your firm.
Speaker 12: You know, my colleague is called it the mirror toocracy, right.
Speaker 1: The mirror toocracy. People who remind us of ourselves. At
Speaker 1: the standard law firm interview, a partner sits down with
Speaker 1: a second year law school student, and then that partner
Speaker 1: rates the candidate. What is the correlation between that rating
Speaker 1: and how well the candidate actually does when they get hired.
Speaker 1: Parker analyzes the data.
Speaker 12: It was essentially a coin flip. So someone says, you know,
Speaker 12: you're this person's great, or they say this person's here.
Speaker 12: That really doesn't tell you anything about how they're actually
Speaker 12: going to do with retention. It was actually negative, so
Speaker 12: that those who are getting higher individual scores are actually
Speaker 12: less likely to stay.
Speaker 1: Parker's method is to try and systematize what a law
Speaker 1: firm wants so that when they interview someone they know
Speaker 1: what to ask.
Speaker 12: I probably wouldn't say too much because I can't give
Speaker 12: it all the way. But what we can do is
Speaker 12: think of proxies for certain types of behavior. So blue
Speaker 12: collar worker experience, what happens if you have that in
Speaker 12: your background. I mean, that's a mixed bag. It could
Speaker 12: be a lot of things. But if you have that
Speaker 12: background and you've also gone on to succeed and graduate
Speaker 12: law school and perform well, that is to us a
Speaker 12: signal of something meaningful right. And so at certain firms
Speaker 12: you will see blue collar work experience as being one
Speaker 12: of the most I think positive and significant factors under
Speaker 12: the all l SQL conditions.
Speaker 1: What makes for a good lawyer is complicated. It differs
Speaker 1: from law firm to law firm, job to job, situation
Speaker 1: to situation. You need algorithms and data to make sense
Speaker 1: of it. And now we come to the heart of
Speaker 1: the issue.
Speaker 12: Some of the ones that are more I think surprising
Speaker 12: the firms are the things that don't matter.
Speaker 1: What doesn't matter Wait for it, well, where you.
Speaker 12: Went to law school, it doesn't matter at all. You
Speaker 12: know at all, Yeah, it's essentially a random predictor.
Speaker 4: So does it not matter within T fourteen or does
Speaker 4: it not matter?
Speaker 12: Well, it really doesn't matter.
Speaker 1: If you go on the website of any hotshot law firm,
Speaker 1: they have a picture of every one of their attorneys,
Speaker 1: and next to the picture, they'll tell you where that
Speaker 1: person went to law school, so they can boast about
Speaker 1: how they never hire from Ohio State and American University.
Speaker 1: That's how much the profession is obsessed with law school pedigree.
Speaker 1: But what does the moneyball guy, the quant who has
Speaker 1: run the numbers tell us, really doesn't matter.
Speaker 12: And we like to sort of represent results visually, and
Speaker 12: so we'll have this baseline line and essentially, you know,
Speaker 12: what's to the left is sort of a negative predictor
Speaker 12: what's to the right as a positive. And you know,
Speaker 12: it's almost uniformly the case that this T fourteen falls
Speaker 12: right on that, which is say, it's just an insignificant factor.
Speaker 4: Really, yeah, that's kind of fantastic. Maybe fantastic is the
Speaker 4: wrong word. Infuriating is a better word.
Speaker 1: This whole process begins with the L set, which is
Speaker 1: based on the idea that a certain kind of thinking
Speaker 1: is valuable for legal education. And we know that's tricky
Speaker 1: because it's not exactly clear why that certain kind of
Speaker 1: thinking is so much more important than other kinds of thinking.
Speaker 1: But whatever, for a separate set of idiosmocratic reasons. America
Speaker 1: only has so many places at the top. So those
Speaker 1: who excel at that certain kind of thinking get into
Speaker 1: the top law schools, and those who get into the
Speaker 1: top law schools get hired by the top law firms.
Speaker 1: And then what do we find when you look at
Speaker 1: who succeeds at those top law firms which hire in
Speaker 1: the basis of which law school you went to, which
Speaker 1: in turn select on the basis of whether you're good
Speaker 1: at that certain kind of thinking, you find where you
Speaker 1: went to law school doesn't matter the whole Daisy chain
Speaker 1: el sat law school, law firm. We made it all up.
Speaker 1: Evan Parker once did a special study on rain makers,
Speaker 1: the people who are really good at bringing in new
Speaker 1: business for a law firm. Law firms cannot survive without
Speaker 1: rain makers.
Speaker 12: And I was struck in doing that work. How many
Speaker 12: of the individuals in our study went to law schools
Speaker 12: that I've never even heard of, right, or they went
Speaker 12: to night school to get their law degree.
Speaker 1: Night school, and law schools you've never heard of. So
Speaker 1: what should we do about this absurdity? It is now
Speaker 1: time for Malcolm Gladwell's grand unified theory of how to
Speaker 1: fix higher education. Ready, don't ask, don't tell. We make
Speaker 1: a rule prospective employers cannot ask, and prospective employees cannot
Speaker 1: disclose the name of the educational institutions they attended and
Speaker 1: still go to Harvard if you want, spend a small
Speaker 1: fortune on tutoring for the l set so that when
Speaker 1: you sit down in that classroom you can be the
Speaker 1: very speediest hair you can be. But the minute you
Speaker 1: leave Harvard you have to shut up about it. Silence.
Speaker 1: Harvard's over, and employers can't use it as a shortcut
Speaker 1: for who to hire because it's not helping them, and
Speaker 1: they can't post it on their websites. While we're at it,
Speaker 1: By the way, let's do don't ask, don't tell for
Speaker 1: all hiring. When you think about choosing a school, you
Speaker 1: should be thinking about where you can get the best
Speaker 1: education for you and where you will be happy. You
Speaker 1: shouldn't be making some complicated calculation about the brand value
Speaker 1: of your college in the workplace, and neither should the
Speaker 1: Supreme Court.
Speaker 2: So I can't afford a miss. I just can't. So
Speaker 2: I'm going to be picking from the law schools that
Speaker 2: basically are the hardest to get into.
Speaker 1: So this is what Justice Scalia could have said. He
Speaker 1: could have said in answer to Christinastet's question. I care
Speaker 1: about people who can think deeply about consequential issues, who
Speaker 1: know how to read slowly, who are hungry enough to
Speaker 1: work on problems around the clock. I had a clerk
Speaker 1: once named Jeff Sutton who was all those things and more.
Speaker 1: And I guess what I'm looking for is another Jeff Sutton,
Speaker 1: another giant tortoise. And if you're concerned about the fact
Speaker 1: you go to Washington College of Law or Ohio State
Speaker 1: because your l SAT score wasn't high enough, remember I
Speaker 1: don't care where you went to law school, because I
Speaker 1: consider it my responsibility, as a gatekeeper in a meritocracy
Speaker 1: to select people based on their fit and their ability,
Speaker 1: and not on their skill at answering twenty five questions
Speaker 1: in thirty five minutes something like that. It's not a
Speaker 1: hard thing to say, right. I'm here with Camille Baptista,
Speaker 1: my assistant with whom I went Mono Mono on the
Speaker 1: l SAT. Three weeks ago, and Jacob Smith is also
Speaker 1: with us. This is the moment of unveiling. We have
Speaker 1: h Camille was has gotten the email from the law
Speaker 1: school missions council.
Speaker 10: We're gonna start with my score.
Speaker 12: Okay, okay, oh okay, nice, okay.
Speaker 6: All right, all right, all right, this is Malcolm score.
Speaker 4: Wait what what?
Speaker 8: I can't believe it? Go back to yours for a second.
Speaker 4: Yeah, we tied.
Speaker 1: We got the same score. And I know you want
Speaker 1: to know what the score is. But trust me, that
Speaker 1: way lies only bitterness and illusion. Don't ask, don't tell m.
Speaker 4: That is okay, the sweetest poetic justice.
Speaker 2: You know.
Speaker 4: We began this whole process back in January, and it
Speaker 4: was the whole question was whether my years of savvie
Speaker 4: experience would be offset by my years of cognitive decline,
Speaker 4: and whether.
Speaker 1: Camille Camille, the swiftness and brightness and newness of her brain,
Speaker 1: would overcome her lack of of real life experience and.
Speaker 4: Turns out as a wash. I think this outcome is
Speaker 4: absolutely beautiful and delightful.
Speaker 10: I think next season you guys should, as a stunt,
Speaker 10: both go to law school.
Speaker 4: Science name of science.
Speaker 1: Revisionist History is produced by me LaBelle and Jacob Smith
Speaker 1: with Camille Baptista. Our editor is Julia Barton. Lawn Williams
Speaker 1: is our engineer. Fact checking by Beth Johnson. Original music
Speaker 1: by Luis Kira. Special thanks to Carl Migliore, Heather Fein,
Speaker 1: Maggie Taylor, Maya Kanig, and Jacob Weisberg. Revision's History is
Speaker 1: brought to you by Pushkin Industries. I'm Malcolm Gladwell.
Speaker 8: Okay, Malcolm your March twenty nineteen ELSA score is the
Speaker 8: percentile rank is