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