June 27, 2019 • 38 mins
A weird speech by Antonin Scalia, a visit with some serious legal tortoises, and a testy exchange with the experts at the Law School Admissions Council prompts Malcolm to formulate his Grand Unified Theory for fixing higher education.
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Speaker 1 (00:15):
Pushkin. April twenty fourth, two thousand and nine, the late
Supreme Court Justice Antonin Scalia is speaking at American University's
Washington College of Law. Thank you, thank you very much,
Professor Marcus Dean Grossman, Ladies and gentlemen, I began one
(00:40):
of one of my either talks. The students are all
dressed up for the occasion. C Span is recording. There's
a big stage hung with blue polyester drapes. Scalia holds forth,
his black hair swept back from his forehead, glasses on
his nose, strong and square, all intellectual heft and force,
(01:02):
gripping the podium like it's a slab of beef. That
administrative law is not for sissies. It is. It is
a very difficult course to teach, and I assume certainly
wasn't my day a hard course to master. It's vintage Scalia.
The audience hangs on his every word. He finishes triumphantly,
(01:24):
then hands shoot in the air. Good afternoon. My name
is Christina, said, I'm a one else student here at WCL.
Christina stud first year student. Have a more general question,
and that is the part of American The American ethos
is that our society is a meritocracy. Were hard work
and talently to success, but there are other important factors
like connections and elite degrees. And I'm wondering, other than
(01:46):
grades a journal, what do smart, hardworking, wcale students with
strong writing skills need to do to be outrageously successful
in the law. What does it take to be outrageously
successful in the law? Just work hard and be very good.
(02:07):
I tell your story. My name is Malcolm Gladwell. You're
listening to Revisionist History, my podcast about things Overlooked I Misunderstood.
This episode is part two of my examination of the
bizarre things the legal profession does to pick its best
and brightest. In part one, which if you haven't listened
(02:36):
to you probably should, I took the law school admissions
test along with my assistant Camille and couldn't understand why
they made me rush through all the questions. But now
in part two we have bigger fish to fry. I'm
going to serve up Malcolm Gladwell's grand unified theory of
how to fix American legal education. No, make that my
(02:56):
grand unified theory for fixing all American higher education. And
what is our text for this discussion of Gladwell's grand
unified theory. It's the answer Justice Scalia gave to the
unfortunate Christina stud you know, buy and large. Unless I
(03:18):
have a professor on the faculty who's a good friend
and preferably a former law clerk of mine whose judgment
I can trust, I'm going to be picking, you know,
for Supreme Court law clerks. I can't afford a miss
I just can't. So I'm going to be picking from
the law schools that basically there are the hardest to
(03:43):
get into. They admit the best in the brightest, and
they may not teach very well, but you can't make
you You can't make a sow's ear out of a
silk purse. And if they come in the best in
the brightest, they're probably going to leave the best in
the brightest. Okay, let's pretend to be fine legal minds
for a moment and closely part the meaning and implication
(04:03):
of Scaliah's statement. A student at American University's Washington College
of Law, a law school that US News and Will
Report ranked seventy seventh among all American law schools, is
asking a question of a sitting justice of the US
Supreme Court who graduated from Harvard Law School. She's basically
(04:24):
asking him would it be possible to be one of
his clerks, and he answers, you go to American Universiti's
Washington College of Law, you have no chance of becoming
one of my clerks. I only hired people who went
to Harvard like I did. But then he goes on
and he says this, which is my favorite part because
it sums up absolutely everything I want to talk about
(04:48):
in this episode. I mean everything now I started. The
reason I tell the story is one of my former
clerks who I am the most proud of it now
sits on the Sixth Circuit Court of Appeals, Jeff Sutton.
I always referred him as one of my former law
(05:09):
He wasn't one of my former law He was Lewis
Powell's clerk at the time. Lewis Powell was semi retired
from the Supreme Court. He had what's called senior status,
so his law clerks worked mostly for other justices. But
I wouldn't have hired Jeff Sutton for God's sake. He
went to Ohio State and he's one of the very
(05:34):
best law clerks I ever had. And he's just a
brilliant guy. So don't tell me this stuff about you know,
what do you have to do to be successful? You
have to be good? Simple? Is that? Okay? I think
we're done, Thank you very much. Oh we're not done.
We've only just begun. Tell me why you decided to
(06:01):
go to law school? WHOA So? Law school was a
third choice. First choice was teaching. I was a teacher
in coach for several years, both middle school, high school, soccer, baseball,
little track. This is Judge Jeffrey Sutton, the guy who
somehow slipped through the cracks to become the best clerk
and n in Scalia ever. Had Foreign service was choice
(06:23):
number two. No lawyers in my family, And when I
finally went to law school, I wouldn't say my parents
were beaming with pride. I came from a family of
kind of service driven folks who were either in education
some missionaries. And why did you decide to go to
Ohio State Law school? Well, it was a pretty complicated decision.
(06:45):
I applied to two law schools, Ohio State in Michigan.
I got into one of them, and I ended up
enrolling at the one I got into. Oh I see
that I very much would have liked to have gone
to Michigan, and I was the fact that my father
in law had gone there and his son in law
couldn't get in was a little humbling, but we got
(07:06):
over it. I didn't ask Judge Sutton what his elsat's
score was, but we can do the math. Michigan is
part of the elite group of law schools known as
the T fourteen, the top fourteen Yale, Stanford, Harvard, University
of Chicago, Columbia, all the big ones. Ohio State is
(07:27):
not among the T fourteen. The median elsat's score of
someone who goes to Ohio State these days is eight
points lower than the median score of someone at Michigan.
Now what does that fact mean. Well, as you may
recall from the previous episode, the ELSATT is not a
test of someone's ability to solve difficult problems. It's a
(07:49):
test of someone's ability to solve difficult problems quickly. It
is five sections of twenty to twenty five questions, and
you have a hard limit of thirty five minutes for
each section you have to rush. As one ELSAT tutor
told me, the test favors those capable of processing without
understanding it favors heirs, not tortoises. So what's Jeff Sutton. Well,
(08:13):
he's clearly brilliant. He was the Ohio State Solicitor in
the nineteen nineties and wild the Supreme Court with his
arguments on a number of cases. His most recent work
of legal scholarship is titled fifty one Imperfect Solutions, States
and the Making of Constitutional Law. The New York Review
of Books felt they had to get a retired Supreme
(08:33):
Court justice to review it. There are lots of very
serious people, in fact, who think Sutton deserves to be
a Supreme Court justice himself one day. So Sutton is
in the category of brilliant person who didn't do all
that well on the l side. What does that make him?
It makes him a tortoise, and not just any tortoise,
a giant tortoise. He's one of those tortoises from the
(08:55):
Galapa Ghost that's five feet long. So Sutton graduates from
Ohio State, gets a job clerking for a federal judge,
then a job clerking on the Supreme Court, and in
his year as clerk for Scalia, he thrives. The thing
that really affects everybody who works with him is within weeks,
(09:18):
you just get a sense of this incredible passion for
the law, and that is just intoxicating. And that is
what really changed things. And that year. I can't emphasize
enough how much I got out of that year. Not
long before, Jeffrey Sutton had been a middle school teacher
and track coach in Columbus. Now he's working with one
(09:39):
of the greatest legal minds in the country, and he
does such a good job that seventeen years later, at
some random speech at American University, Scalia singles him out.
Scalia had well over a hundred clerks, jeff Sutton is
the one he's proudest of. So why does a tortoise
do so well working for the Supreme Court? I asked
(10:01):
my fanciest legal friend, Tally for Hadien, who was a
clerk on the Court a few years after Sutton for
Justice Sandra Day O'Connor, See, if you were working on
a case, what is working on a case mean? Well,
we worked on two kinds of cases. The first kind
is what's called the sert pool, the thousands of petitions
(10:23):
sent to Washington every year by people who want their
cases heard by the Supreme Court. We would each get
a stack of petitions I think on a Wednesday, and
we had a week to get how would get into
the pool? Yeah, so that in that case there will
be a lot to read, a lot to read. When
you read those kinds of things, How do you read?
How do you read? I don't know what that question?
(10:44):
Do you read the same way you read a work
of nonfiction or a New Yorker article or well? I
always read them, and I continue to read similar documents
with a pencil in my hand, which is not how
I would read for pleasure, whether nonfiction or fiction. Slower
or faster? Much slower, much slower, yes, how much slower?
(11:11):
Personally I feel I can read very quickly, and I
can read very slowly, and I get different things out
of it. But this is definitely slow reading territory. Is
slow reading territory. And why is it so important to
read slowly? Because the details matter and because the arguments
are intricate, Yeah, and because the solutions are difficult. I mean,
(11:35):
everybody will tell you this. When a case comes to
the Supreme Court. You know a case that's really ready
for a review with the Supreme Court, it's hard the
reason the circuit courts have disagreed about it is because
it's really hard, Like the answer is not obvious. Yeah,
you're kidding yourself if you think that it is. So
you have to you have to think while you read. Yeah. Yeah,
(11:56):
you can't just process. You have to understand. Yes, yeah,
you have to think while you read. This is the
primary requirement of one of the most prestigious jobs in
the legal profession. The other part of the job, the
main part of the job, is researching and analyzing the
actual cases that come before the court. For Hadian was
(12:16):
one of four clerks working for O'Connor, so she would
get assigned a quarter of those cases. And how much
time would you spend on them? I don't think I
ever stopped thinking about the cases that I was working on. Yeah,
but what was the time that would elapse? What's the
time that would elapse from when you were given the
case to when you when you were finished with your
(12:39):
contribution was finished? I don't remember. I want to say
a couple of months. Being a Supreme Court clerk is
a job for a tortoise. You can't hurry. You have
to work slowly and carefully because if you miss something
that's a problem. I didn't even have to mention tortoises
(13:00):
to Judge Sutton. He brought them up. You know, law
is very much a tortoise. The tortoise went beats the hair,
and so the hairs that go to the elite schools,
they better slide into tortoise mode or it's not going
to work out well for them. And the tortoises that
go to the states schools better stay being a tortoise
(13:21):
and stick with it. So let us recap. A sitting
Supreme Court justice explains to a group of law school
students that he will not consider them for a job
that involves being a tortoise because they have failed to
shine at a test that measures their ability to be
a hare. And even as he says that, he concedes
(13:41):
that one of the best of his former clerks was
a tortoise who also did not shine at a test
that measured his ability to be a hare. And when
he presents this confounding bit of reasoning that manages both
to stigmatize and disparage the entire audience, what does the
audience do Listen? I mean, this is bananas. This is
(14:10):
like prisoners cheering award. I think you can see why
we are in need of a grand, unified theory to
fix legal education. The Monday after my assistant, Camille, and
(14:32):
I took the l SAD, we took the train to Newtown, Pennsylvania,
to the headquarters of the Law School Admissions Council. This
is the group that for the past seventy years has
created and administered the l SAD. They operate out of
a two story red brick building in an office park
big atrium, very eighties. We were ushered into a conference
(14:54):
room on the second floor where a row of test
experts psychomatricians were waiting for us. What time you have
to arrive at the test center. They began with a
tutorial on how to make a standardized test, which I
have to say was fascinating. It turns out a single
item on a test like d ELSAT takes thirty six
(15:15):
months to develop. They don't just dream up hard questions,
They test the questions over and again to make sure
that the right kind of heart. So what I've done
here is I've identified a question that was actually rejected
because it was not performing similarly for two subgroups of interest.
Those were males and females. This is Alex Weissman. The
(15:36):
question text is actually on the second page. It starts
off Thomas Tompkins, a Renaissance English composer, wrote in a
musical style that in his time had already become outdated,
and so forth. This is a passage designed to test
the reading comprehension skills of would be lawyers. But the
results of the question came out weird. Women who were
(15:59):
otherwise doing really well on that section were somehow tripping
up on this particular question, and the equivalent group of
male high scores were overwhelming they getting it right. So
here we have almost two x male versus not well,
almost twice as many males as women as females got
this question correct. Right. So if that is already the
(16:24):
indicative of a problem with this question, so why? The
question of why is not always easy to answer and
it and for a question like this, what we determine
is even if we can't determine why this is happening,
we don't take the chance in keeping it on the test.
In this case, the l s AT wasn't functioning as
(16:46):
a test of ability, which is what it's supposed to be.
It seemed like it was a test of gender, which
it's not supposed to be, so they threw the question out.
When I talked to psychomatricians outside the legal world, they
were unanimous in their praise of the l SAT. It
was like talking to auto mechanics about a Porsche. Mechanics
love Porsches, and if I had let them field, those
(17:09):
three on the panel would have happily talked about their
sports car for hours, the engine, the steering, the acceleration.
But Chamille and I had just two days earlier taken
the l SET, and what I really wanted to know
was why would these guys building a sports car? I mean,
why go so fast? Why don't just build a really
good minivan. So we know in law school that doing
(17:34):
the work efficiently, being able to handle the reading load
and handle the amount of analysis that's required in a
certain amount of time is relevant. Lily Nissovitch takes up
the cause research requirements on any redesign of the test
is to make sure that if you're changing the timing
or the number of questions that you're asking the given
(17:55):
amount of time, that you go back to square one
and make sure it predicts we're now one hour and
fourteen minutes into the presentation. I can't hold back any longer.
So you've been talking about efficiency, but I was trying
to be more You guys stopped me from being efficient.
I had just been through the experience of finishing the
(18:17):
first section of the l set with time to spare,
and then running way out of time on the last
logic section. The efficient way for me to take the
test would be to speed up on the things that
I was really good at and then use that time
on the things I needed more time on. That's how
efficient people were, right. But you wouldn't not me be efficient.
I was told seventeen times you cannot look ahead at
(18:40):
the next section. Why I stopped for ten minutes after
the first one? Okay, so I'm getting a little bit
worked up. But remember I'm under tremendous pressure to beat
Camille on the l SAT and all this time she's
sitting right next to me, all smug and complacent, like
she was doing logic games in her head just for fun.
I was like, why can't I look at the next one?
(19:01):
I'm trying to be efficient. You're not letting me, I mean,
because then you'd be giving getting more time for that
next section. Than the first and next day, or the
person who was the one, but the people who took
the question when it was gone through all these levels
of being efficient in law school is about time management, right,
is about doing things you can do it really quickly
(19:22):
quickly and using that extra time to if I'm a
you know, a fast reader, but a slow writer, then
it can you know, I have a different balance. And
if I'm a fast writer and a slow reader, I
don't get the sense that I'm making any headway. So
my question is, why are you forcing us all to
do every skill in thirty five minutes? If human beings
(19:44):
are everyone in that room I took it with had
a different set of skills, but you're why are you
pushing us all into the same cookie cutter? And who
else you travel? It's a standardized test, I guess standards
timing is one of the features of the standardization. And
(20:05):
we can do research on what you're saying, But have
you well we've done research on the timing of the
questions before they were ever introduced, how many how long
it takes for people to do this number of questions
reasonably well? To get your optimal score? Isn't necessarily to
try every question, So some students to get a better
(20:29):
score by spending more time per question and then leaving
to skipping a few than by trying every question. Some
students best strategy is to try every question, so we
advise them to experiment on themselves when they're practicing and
see what's there. That's the best strategy. But that's the
(20:49):
only reason you need to have those strategies is because
you had this arbitrary time constraint, Right, I just take
a sup with the arbitrary. Am I being obnoxious? Maybe
I am. It's like I've gone to push your headquarters
in Stuttgart and I'm badgering them about why they aren't
building something with sliding doors in third row seating it.
I don't know. Doesn't it strike you that they should
(21:11):
have at least thought about this a bit more? I mean,
you you started by going through a really elegant description
about how much care you take to make sure tests
do not have some element of cultural or uh, you know,
group unfairness, which I thought was super interesting. But now
(21:32):
you just you. But you simultaneously have impose a system
which which discriminates against someone who, for examples, a slow reader.
You're You're, on the one hand, beautifully sensitive to the
notion that the test might be disadvantaging a certain kind
of person. But in this, in this, in the same breath,
you are completely insensitive to the kind of person who
(21:55):
wants to take their time that don't may be difficult.
I'm just this is genuine. If this was my question test,
you're so so by the information the test. Does we
have to do it in the standardis way? Yeah, we're
suggests is a different approach to these tests, and we couldn't,
of course do that willie nilly. They'll tinker and rewrite
(22:21):
and rethink and restructure the questions, but not the format. No,
that's willy nilly. The thirty five minute time limits on
each section are cast in stone. Why they cast in
stone because the job of the l set is to
make it easier for law schools to decide which students
to admit. And what would have happened if I had
(22:44):
been able to carry over my extra time or if
that thirty five minutes was turned into forty five minutes,
I would have scored higher, so would have lots of
other tortoises. Give tortoises an extra ten minutes and suddenly
some of them catch up to the hairs. But then,
what has that done? Now it's harder for law schools
to decide which students to admit. Back and I was
(23:09):
preparing for the l SAT over the ed tech company Noodle.
I asked their experts to game this out. One of
the Noodle guys, Fritz Stewart, said, you could relieve the
time pressure for a significant number of tortoises if you
extended the l SAT to one hundred and twenty five
percent of its current length. If we did win to
one hundred and twenty five percent, So what's specifically we
(23:30):
do it. What it's gonna do is it's it's gonna
screw with their lovely normed Bell curve. Right, It's really
subversive in a way. He's what Fritz is trying to
do is destroy law school admissions in a good way.
That's Dan Edmonds, another Noodle guy. What he means is
this right now, over one hundred thousand people take the
l SAT every year. The results fall on a Bell curve.
(23:52):
Of course, the ninetieth percentile is right around one sixty
four out of one hundred and eighty. The top schools
are all mostly drawing from the pool above the one
hundred and sixty seven mark. But if the test allows
the tortoises to score higher, then suddenly the number we're
one hundred and sixty seven would balloon, the bell curve
(24:13):
goes to hell in a handbasket, and the law schools
would have to make admissions about something other than just
the l s AT score. Because currently the law school
admissions is about seventy percent year all SAT score about
thirty percent year grades, and that leaves pretty much zero
percent for any other considerations. So if you take that
pressure off, you're suddenly maybe tripling your number of qualified
applicants for a lot of these top programs, and they're
(24:35):
going to have to do the work of actually figuring
out something other than a test to decide who gets
into their school. Now that raises the question of why
we don't just make the LL set harder, lift the
time pressure, and compensate by making the questions much tougher
so we get our nice, beautiful bell curve back. But
now all we're doing is we're privileging the tortoises over
(24:57):
the hairs. Now the Jeff Suttons of the world get
a perfect score, go to Harvard Law School, and just
as Scalia breathes a sigh of relief, except if you
do it that way, the hairs get discouraged because they
can only get into American University, where they're seventy seventh
in the country. And when Supreme Court justices come to visit,
they tell the students they have no chance. Why is
(25:18):
this better? We need hairs too. If you're an investment
bank trying to close an incredibly complicated deal in forty
eight hours, where the lawyers have to all read a
thousand pages in a day, maybe you want a hair.
The law needs tortoises and hairs. We have now arrived
at the absurdity of American meritocracy. Of course, the whole
(25:40):
reason the people obsess over their else At score is
that there are a small number of law schools that
everyone wants to get into the top fourteen. The prestigious
law firms basically only hire from the top fourteen, and
the top fourteen only have room to admit forty five
hundred students a year. In total, fifty three thousand people
are competing for forty five hundred slots. It's crazy. I'm
(26:04):
a graduate of the university of Toronto. All Canadians will
tell you that the University of Toronto is their most prestigious,
most elite, world class university. Do you know how many
undergraduates attend the University of Toronto? Ready? Remember this is
the elite school in a country of just thirty five
million people. And just to orient yourself, Harvard University, the
(26:27):
most elite school in a country of three hundred and
thirty million people, has a total undergraduate enrollment of six thousand,
six hundred and ninety nine. Ready, the best school in
Canada has seventy thousand, eight hundred and ninety undergraduates. Now,
how about the University of British Columbia, our second crown
(26:50):
jewel fifty two thousand, seven hundred and eleven undergraduates. What
about McGill University in Montreal? I always wished I went
to McGill Intimate, elite, exclusive. McGill has twenty seven thousand,
six hundred and one undergraduates. Do you see how genius this?
(27:10):
We have elite schools in Canada, but we don't spend
enormous amounts of time devising elaborate tests to arbitrarily limit
the number of people who can attend those elite schools.
We just made the schools bigger. Honestly, how hard is this?
(27:35):
This whole revisionist history project on the ALSATT began when
I ran across a paper on SSRN by a guy
named William Henderson. We met him in the previous episode,
the former firefighter from Cleveland who now teaches law at
Indiana University. Well, Henderson told me to call a friend
of his named Evan Parker. They worked together. I don't
(27:58):
know if you've ever read Michael Lewis's famous book Moneyball,
about the analytics nerds who took over baseball. They went
in with their advanced statistics and told the old school scouts,
you know you're picking the wrong players. Parker does moneyball
for law firms. You mentioned money Ball earlier. It really
is moneyball. Yeah, it is one hundred percent. Parker's young,
(28:22):
cerebral very proper in a suit tie briefcase. He's not
messing around. I said at the beginning that I was
going to offer you a grand, unified theory of how
to fix higher education. I'm almost there. Parker analyzes who
the successful people are at any law firm, and then
works backwards and asks is the firm hiring the kind
(28:43):
of law school graduate who is most likely to become
a good lawyer. He has multiple data points, regressions, algorithms,
and he finds they don't hire the right kind of
law school graduate. What is the inefficiency? That's it's the
perfect word, is a market inefficiency. Firms have plenty of
information about prospective hires, resume grades, law school work, experience,
(29:07):
but Parker finds they don't how to make sense of it.
People go for a shortcut instead. You end up selecting
people who are like you, not people who are like
the successful attorneys at your firm. You know, my colleague
is called it the mirror autocracy, right, the mirror autocracy,
people who remind us of ourselves at the standard law
(29:29):
firm interview. A partner sits down with a second year
law school student, and then that partner rates the candidate.
What is the correlation between that rating and how well
the candidate actually does when they get hired? Parker analyze
the data. It was essentially a coin flip. So someone says,
you know, you're this person's great or this person's serial.
(29:51):
That really doesn't tell you anything about how they're actually
going to do with retention, it was actually negative, so
that those who are getting higher individual scores are actually
less likely to stay. Parker's method is to try and
systematize what a law firm wants so that when they
interview someone, they know what to ask. I probably shouldn't
say too much because I can't give it all the way.
But what we can do is think of proxies for
(30:14):
certain types of behavior. Right. So, blue collar worker experience,
what happens if you have that in your background. I mean,
that's a mixed bag. It could be a lot of things, right,
But if you have that background and you've also gone
on to succeed and graduate law school and perform well,
that is to us a signal of something meaningful. Right.
(30:36):
And so at certain firms you will see blue collar
work experiences being one of the most I think positive
and significant factors under the y'all lse equal conditions. What
makes for a good lawyer is complicated. It differs from
law firm to law firm, job to job, situation to situation.
You need algorithms and data to make sense of it.
(30:58):
And now we come to the heart of the issue.
Some of the ones that are more I think surprising
to firms are the things that don't matter. What doesn't matter,
Wait for it all, where you went to law school.
It doesn't matter at all, you know, at all. Yeah,
it's it's essentially a random predictor. So is it not
(31:20):
matter within T fourteen or does it not matter? Well,
it really doesn't matter. If you go on the website
of any hot shot law firm, they have a picture
of every one of their attorneys, and next to the picture,
they'll tell you where that person went to law school,
so they can boast about how they never hire from
Ohio State and American University. That's how much the profession
(31:41):
is obsessed with law school pedigree. But what does the
moneyball guy, the quant who has run the numbers tell us,
really doesn't matter. You know, we like to sort of
represent results visually, and so we'll have this baseline line
and essentially, you know, what's to the left is sort
of a negative predictor what's to the right as a positive.
(32:03):
And you know, it's almost uniformly the case that this
T fourteen falls right on that day, which is it's
just an insignificant factor. Really, Yeah, that's kind of fantastic.
Maybe fantastic is the wrong word infuriating is a better word.
This whole process begins with the l set, which is
(32:24):
based on the idea that a certain kind of thinking
is valuable for legal education. And we know that's tricky
because it's not exactly clear why that certain kind of
thinking is so much more important than other kinds of thinking.
But whatever, for a separate set of idiosyncratic reasons. America
only has so many places at the top. So those
(32:46):
who excel at that certain kind of thinking get into
the top law schools, and those who get into the
top law schools get hired by the top law firms.
And then what do we find when you look at
who succeeds at those top law firms, which hire in
the basis of which law school you went to, which
in turn select on the basis of whether you're good
at that certain kind of thinking, you find where you
(33:07):
went to law school doesn't matter. The whole daisy chain
els at law school, law firm. We made it all up.
Evan Parker once did a special study on rainmakers, the
people who are really good at bringing in new business
for a law firm. Law firms cannot survive without rainmakers,
(33:27):
And I was struck in doing that work. How many
of the individuals in our study in which to law
schools that I've never even heard of? Right, or they
went to night school to get their law degree night
school and law schools you've never heard of. So what
should we do about this absurdity? It is now time
for Malcolm Gladwell's grand unified theory of how to fix
(33:51):
higher education. Ready, don't ask, don't tell. We make a
rule prospective employers cannot ask, and prospective employees cannot disclose
the name of the educational institutions they attended. Can still
go to Harvard if you want, spend a small fortune
(34:12):
on tutoring for the l set so that when you
sit down in that classroom you can be the very
speediest hair you can be. For the minute you leave Harvard,
you have to shut up about it. Silence. Harvard's over,
and employers can't use it as a short cut for
who to hire because it's not helping them, and they
can't post it on their websites. While we're at it.
(34:34):
By the way, let's don't ask, don't tell for all hiring.
When you think about choosing a school, you should be
thinking about where you can get the best education for
you and where you will be happy. You shouldn't be
making some complicated calculation about the brand value of your
college in the workplace, and neither should the Supreme Court.
(34:57):
So I can't afford a miss. I just can't. So
I'm going to be picking from the law schools that
basically are the hardest to get into. So this is
what just Scalia could have said. He could have said
in answer to Christina Stet's question. I care about people
who can think deeply about consequential issues, who know how
(35:19):
to read slowly, who are hungry enough to work on
problems around the clock. I had a clerk once named
Jeff Sutton who was all those things and more. And
I guess what I'm looking for is another Jeff Sutton,
another giant tortoise. And if you're concerned about the fact
you go to Washington College of Law or Ohio State
because your els AT score wasn't high enough, remember I
(35:42):
don't care where you went to law school, because I
consider it my responsibility, as a gatekeeper in a meritocracy
to select people based on their fit and their ability,
and not on their skill at answering twenty five questions
in thirty five minutes something like that. It's not a
hard thing to say, right. I'm here with Camille Baptista,
(36:10):
my assistant with whom I went mano a mano on
the l Sat. Three weeks ago, and Jacob Smith is
also with us. This is the moment of unveiling we have.
Camille was has gotten the email from the law school
admissions council. Camilla, start with my score. Okay, okay, who oh, okay, nice? Okay,
(36:39):
all right, all right, all right, okay, this is malcolm score.
Wait what what? I can't believe it? No, go back
to yours for a second. Were tied. We got the
same score. And I know you want to know what
the score is, but trust me, that way lies only
(37:02):
bitterness and illusion. Don't ask, don't tell. That is all right, okay,
the sweetest poetic justice. You know. We began this whole
process back in January, and it was the whole question
(37:25):
was whether my years of savvy and experience would be
offset by my years of cognitive decline, and whether Camille, Camille,
the swiftness and brightness and newness of her brain, would
overcome her lack of of of real life experience. And
turns out it's a wash. I think this outcome is
(37:46):
absolutely beautiful and delightful. I think next season you guys should,
as a stunt both go to law school in the
name of science. Revisionist History is produced by mel La
Belle and Jacob Smith with Camille Baptista. Our editor is
(38:08):
Julia Barton. Flawn Williams is our engineer. Fact checking by
Beth Johnson. Original music by Luis Guerra. Special thanks to
Carl Migliori, Heather Fane, Maggie Taylor, Maya Kanik, and Jacob Weisberg.
Revisionist History is brought to you by Pushkin Industries. I'm
(38:28):
Malcolm Gladbow. Okay, Malcolm. Your March twenty nineteen elsad score
is the percentile rank is
Pushkin. April twenty fourth, two thousand and nine, the late
Supreme Court Justice Antonin Scalia is speaking at American University's
Washington College of Law. Thank you, thank you very much,
Professor Marcus Dean Grossman, Ladies and gentlemen, I began one
(00:40):
of one of my either talks. The students are all
dressed up for the occasion. C Span is recording. There's
a big stage hung with blue polyester drapes. Scalia holds forth,
his black hair swept back from his forehead, glasses on
his nose, strong and square, all intellectual heft and force,
(01:02):
gripping the podium like it's a slab of beef. That
administrative law is not for sissies. It is. It is
a very difficult course to teach, and I assume certainly
wasn't my day a hard course to master. It's vintage Scalia.
The audience hangs on his every word. He finishes triumphantly,
(01:24):
then hands shoot in the air. Good afternoon. My name
is Christina, said, I'm a one else student here at WCL.
Christina stud first year student. Have a more general question,
and that is the part of American The American ethos
is that our society is a meritocracy. Were hard work
and talently to success, but there are other important factors
like connections and elite degrees. And I'm wondering, other than
(01:46):
grades a journal, what do smart, hardworking, wcale students with
strong writing skills need to do to be outrageously successful
in the law. What does it take to be outrageously
successful in the law? Just work hard and be very good.
(02:07):
I tell your story. My name is Malcolm Gladwell. You're
listening to Revisionist History, my podcast about things Overlooked I Misunderstood.
This episode is part two of my examination of the
bizarre things the legal profession does to pick its best
and brightest. In part one, which if you haven't listened
(02:36):
to you probably should, I took the law school admissions
test along with my assistant Camille and couldn't understand why
they made me rush through all the questions. But now
in part two we have bigger fish to fry. I'm
going to serve up Malcolm Gladwell's grand unified theory of
how to fix American legal education. No, make that my
(02:56):
grand unified theory for fixing all American higher education. And
what is our text for this discussion of Gladwell's grand
unified theory. It's the answer Justice Scalia gave to the
unfortunate Christina stud you know, buy and large. Unless I
(03:18):
have a professor on the faculty who's a good friend
and preferably a former law clerk of mine whose judgment
I can trust, I'm going to be picking, you know,
for Supreme Court law clerks. I can't afford a miss
I just can't. So I'm going to be picking from
the law schools that basically there are the hardest to
(03:43):
get into. They admit the best in the brightest, and
they may not teach very well, but you can't make
you You can't make a sow's ear out of a
silk purse. And if they come in the best in
the brightest, they're probably going to leave the best in
the brightest. Okay, let's pretend to be fine legal minds
for a moment and closely part the meaning and implication
(04:03):
of Scaliah's statement. A student at American University's Washington College
of Law, a law school that US News and Will
Report ranked seventy seventh among all American law schools, is
asking a question of a sitting justice of the US
Supreme Court who graduated from Harvard Law School. She's basically
(04:24):
asking him would it be possible to be one of
his clerks, and he answers, you go to American Universiti's
Washington College of Law, you have no chance of becoming
one of my clerks. I only hired people who went
to Harvard like I did. But then he goes on
and he says this, which is my favorite part because
it sums up absolutely everything I want to talk about
(04:48):
in this episode. I mean everything now I started. The
reason I tell the story is one of my former
clerks who I am the most proud of it now
sits on the Sixth Circuit Court of Appeals, Jeff Sutton.
I always referred him as one of my former law
(05:09):
He wasn't one of my former law He was Lewis
Powell's clerk at the time. Lewis Powell was semi retired
from the Supreme Court. He had what's called senior status,
so his law clerks worked mostly for other justices. But
I wouldn't have hired Jeff Sutton for God's sake. He
went to Ohio State and he's one of the very
(05:34):
best law clerks I ever had. And he's just a
brilliant guy. So don't tell me this stuff about you know,
what do you have to do to be successful? You
have to be good? Simple? Is that? Okay? I think
we're done, Thank you very much. Oh we're not done.
We've only just begun. Tell me why you decided to
(06:01):
go to law school? WHOA So? Law school was a
third choice. First choice was teaching. I was a teacher
in coach for several years, both middle school, high school, soccer, baseball,
little track. This is Judge Jeffrey Sutton, the guy who
somehow slipped through the cracks to become the best clerk
and n in Scalia ever. Had Foreign service was choice
(06:23):
number two. No lawyers in my family, And when I
finally went to law school, I wouldn't say my parents
were beaming with pride. I came from a family of
kind of service driven folks who were either in education
some missionaries. And why did you decide to go to
Ohio State Law school? Well, it was a pretty complicated decision.
(06:45):
I applied to two law schools, Ohio State in Michigan.
I got into one of them, and I ended up
enrolling at the one I got into. Oh I see
that I very much would have liked to have gone
to Michigan, and I was the fact that my father
in law had gone there and his son in law
couldn't get in was a little humbling, but we got
(07:06):
over it. I didn't ask Judge Sutton what his elsat's
score was, but we can do the math. Michigan is
part of the elite group of law schools known as
the T fourteen, the top fourteen Yale, Stanford, Harvard, University
of Chicago, Columbia, all the big ones. Ohio State is
(07:27):
not among the T fourteen. The median elsat's score of
someone who goes to Ohio State these days is eight
points lower than the median score of someone at Michigan.
Now what does that fact mean. Well, as you may
recall from the previous episode, the ELSATT is not a
test of someone's ability to solve difficult problems. It's a
(07:49):
test of someone's ability to solve difficult problems quickly. It
is five sections of twenty to twenty five questions, and
you have a hard limit of thirty five minutes for
each section you have to rush. As one ELSAT tutor
told me, the test favors those capable of processing without
understanding it favors heirs, not tortoises. So what's Jeff Sutton. Well,
(08:13):
he's clearly brilliant. He was the Ohio State Solicitor in
the nineteen nineties and wild the Supreme Court with his
arguments on a number of cases. His most recent work
of legal scholarship is titled fifty one Imperfect Solutions, States
and the Making of Constitutional Law. The New York Review
of Books felt they had to get a retired Supreme
(08:33):
Court justice to review it. There are lots of very
serious people, in fact, who think Sutton deserves to be
a Supreme Court justice himself one day. So Sutton is
in the category of brilliant person who didn't do all
that well on the l side. What does that make him?
It makes him a tortoise, and not just any tortoise,
a giant tortoise. He's one of those tortoises from the
(08:55):
Galapa Ghost that's five feet long. So Sutton graduates from
Ohio State, gets a job clerking for a federal judge,
then a job clerking on the Supreme Court, and in
his year as clerk for Scalia, he thrives. The thing
that really affects everybody who works with him is within weeks,
(09:18):
you just get a sense of this incredible passion for
the law, and that is just intoxicating. And that is
what really changed things. And that year. I can't emphasize
enough how much I got out of that year. Not
long before, Jeffrey Sutton had been a middle school teacher
and track coach in Columbus. Now he's working with one
(09:39):
of the greatest legal minds in the country, and he
does such a good job that seventeen years later, at
some random speech at American University, Scalia singles him out.
Scalia had well over a hundred clerks, jeff Sutton is
the one he's proudest of. So why does a tortoise
do so well working for the Supreme Court? I asked
(10:01):
my fanciest legal friend, Tally for Hadien, who was a
clerk on the Court a few years after Sutton for
Justice Sandra Day O'Connor, See, if you were working on
a case, what is working on a case mean? Well,
we worked on two kinds of cases. The first kind
is what's called the sert pool, the thousands of petitions
(10:23):
sent to Washington every year by people who want their
cases heard by the Supreme Court. We would each get
a stack of petitions I think on a Wednesday, and
we had a week to get how would get into
the pool? Yeah, so that in that case there will
be a lot to read, a lot to read. When
you read those kinds of things, How do you read?
How do you read? I don't know what that question?
(10:44):
Do you read the same way you read a work
of nonfiction or a New Yorker article or well? I
always read them, and I continue to read similar documents
with a pencil in my hand, which is not how
I would read for pleasure, whether nonfiction or fiction. Slower
or faster? Much slower, much slower, yes, how much slower?
(11:11):
Personally I feel I can read very quickly, and I
can read very slowly, and I get different things out
of it. But this is definitely slow reading territory. Is
slow reading territory. And why is it so important to
read slowly? Because the details matter and because the arguments
are intricate, Yeah, and because the solutions are difficult. I mean,
(11:35):
everybody will tell you this. When a case comes to
the Supreme Court. You know a case that's really ready
for a review with the Supreme Court, it's hard the
reason the circuit courts have disagreed about it is because
it's really hard, Like the answer is not obvious. Yeah,
you're kidding yourself if you think that it is. So
you have to you have to think while you read. Yeah. Yeah,
(11:56):
you can't just process. You have to understand. Yes, yeah,
you have to think while you read. This is the
primary requirement of one of the most prestigious jobs in
the legal profession. The other part of the job, the
main part of the job, is researching and analyzing the
actual cases that come before the court. For Hadian was
(12:16):
one of four clerks working for O'Connor, so she would
get assigned a quarter of those cases. And how much
time would you spend on them? I don't think I
ever stopped thinking about the cases that I was working on. Yeah,
but what was the time that would elapse? What's the
time that would elapse from when you were given the
case to when you when you were finished with your
(12:39):
contribution was finished? I don't remember. I want to say
a couple of months. Being a Supreme Court clerk is
a job for a tortoise. You can't hurry. You have
to work slowly and carefully because if you miss something
that's a problem. I didn't even have to mention tortoises
(13:00):
to Judge Sutton. He brought them up. You know, law
is very much a tortoise. The tortoise went beats the hair,
and so the hairs that go to the elite schools,
they better slide into tortoise mode or it's not going
to work out well for them. And the tortoises that
go to the states schools better stay being a tortoise
(13:21):
and stick with it. So let us recap. A sitting
Supreme Court justice explains to a group of law school
students that he will not consider them for a job
that involves being a tortoise because they have failed to
shine at a test that measures their ability to be
a hare. And even as he says that, he concedes
(13:41):
that one of the best of his former clerks was
a tortoise who also did not shine at a test
that measured his ability to be a hare. And when
he presents this confounding bit of reasoning that manages both
to stigmatize and disparage the entire audience, what does the
audience do Listen? I mean, this is bananas. This is
(14:10):
like prisoners cheering award. I think you can see why
we are in need of a grand, unified theory to
fix legal education. The Monday after my assistant, Camille, and
(14:32):
I took the l SAD, we took the train to Newtown, Pennsylvania,
to the headquarters of the Law School Admissions Council. This
is the group that for the past seventy years has
created and administered the l SAD. They operate out of
a two story red brick building in an office park
big atrium, very eighties. We were ushered into a conference
(14:54):
room on the second floor where a row of test
experts psychomatricians were waiting for us. What time you have
to arrive at the test center. They began with a
tutorial on how to make a standardized test, which I
have to say was fascinating. It turns out a single
item on a test like d ELSAT takes thirty six
(15:15):
months to develop. They don't just dream up hard questions,
They test the questions over and again to make sure
that the right kind of heart. So what I've done
here is I've identified a question that was actually rejected
because it was not performing similarly for two subgroups of interest.
Those were males and females. This is Alex Weissman. The
(15:36):
question text is actually on the second page. It starts
off Thomas Tompkins, a Renaissance English composer, wrote in a
musical style that in his time had already become outdated,
and so forth. This is a passage designed to test
the reading comprehension skills of would be lawyers. But the
results of the question came out weird. Women who were
(15:59):
otherwise doing really well on that section were somehow tripping
up on this particular question, and the equivalent group of
male high scores were overwhelming they getting it right. So
here we have almost two x male versus not well,
almost twice as many males as women as females got
this question correct. Right. So if that is already the
(16:24):
indicative of a problem with this question, so why? The
question of why is not always easy to answer and
it and for a question like this, what we determine
is even if we can't determine why this is happening,
we don't take the chance in keeping it on the test.
In this case, the l s AT wasn't functioning as
(16:46):
a test of ability, which is what it's supposed to be.
It seemed like it was a test of gender, which
it's not supposed to be, so they threw the question out.
When I talked to psychomatricians outside the legal world, they
were unanimous in their praise of the l SAT. It
was like talking to auto mechanics about a Porsche. Mechanics
love Porsches, and if I had let them field, those
(17:09):
three on the panel would have happily talked about their
sports car for hours, the engine, the steering, the acceleration.
But Chamille and I had just two days earlier taken
the l SET, and what I really wanted to know
was why would these guys building a sports car? I mean,
why go so fast? Why don't just build a really
good minivan. So we know in law school that doing
(17:34):
the work efficiently, being able to handle the reading load
and handle the amount of analysis that's required in a
certain amount of time is relevant. Lily Nissovitch takes up
the cause research requirements on any redesign of the test
is to make sure that if you're changing the timing
or the number of questions that you're asking the given
(17:55):
amount of time, that you go back to square one
and make sure it predicts we're now one hour and
fourteen minutes into the presentation. I can't hold back any longer.
So you've been talking about efficiency, but I was trying
to be more You guys stopped me from being efficient.
I had just been through the experience of finishing the
(18:17):
first section of the l set with time to spare,
and then running way out of time on the last
logic section. The efficient way for me to take the
test would be to speed up on the things that
I was really good at and then use that time
on the things I needed more time on. That's how
efficient people were, right. But you wouldn't not me be efficient.
I was told seventeen times you cannot look ahead at
(18:40):
the next section. Why I stopped for ten minutes after
the first one? Okay, so I'm getting a little bit
worked up. But remember I'm under tremendous pressure to beat
Camille on the l SAT and all this time she's
sitting right next to me, all smug and complacent, like
she was doing logic games in her head just for fun.
I was like, why can't I look at the next one?
(19:01):
I'm trying to be efficient. You're not letting me, I mean,
because then you'd be giving getting more time for that
next section. Than the first and next day, or the
person who was the one, but the people who took
the question when it was gone through all these levels
of being efficient in law school is about time management, right,
is about doing things you can do it really quickly
(19:22):
quickly and using that extra time to if I'm a
you know, a fast reader, but a slow writer, then
it can you know, I have a different balance. And
if I'm a fast writer and a slow reader, I
don't get the sense that I'm making any headway. So
my question is, why are you forcing us all to
do every skill in thirty five minutes? If human beings
(19:44):
are everyone in that room I took it with had
a different set of skills, but you're why are you
pushing us all into the same cookie cutter? And who
else you travel? It's a standardized test, I guess standards
timing is one of the features of the standardization. And
(20:05):
we can do research on what you're saying, But have
you well we've done research on the timing of the
questions before they were ever introduced, how many how long
it takes for people to do this number of questions
reasonably well? To get your optimal score? Isn't necessarily to
try every question, So some students to get a better
(20:29):
score by spending more time per question and then leaving
to skipping a few than by trying every question. Some
students best strategy is to try every question, so we
advise them to experiment on themselves when they're practicing and
see what's there. That's the best strategy. But that's the
(20:49):
only reason you need to have those strategies is because
you had this arbitrary time constraint, Right, I just take
a sup with the arbitrary. Am I being obnoxious? Maybe
I am. It's like I've gone to push your headquarters
in Stuttgart and I'm badgering them about why they aren't
building something with sliding doors in third row seating it.
I don't know. Doesn't it strike you that they should
(21:11):
have at least thought about this a bit more? I mean,
you you started by going through a really elegant description
about how much care you take to make sure tests
do not have some element of cultural or uh, you know,
group unfairness, which I thought was super interesting. But now
(21:32):
you just you. But you simultaneously have impose a system
which which discriminates against someone who, for examples, a slow reader.
You're You're, on the one hand, beautifully sensitive to the
notion that the test might be disadvantaging a certain kind
of person. But in this, in this, in the same breath,
you are completely insensitive to the kind of person who
(21:55):
wants to take their time that don't may be difficult.
I'm just this is genuine. If this was my question test,
you're so so by the information the test. Does we
have to do it in the standardis way? Yeah, we're
suggests is a different approach to these tests, and we couldn't,
of course do that willie nilly. They'll tinker and rewrite
(22:21):
and rethink and restructure the questions, but not the format. No,
that's willy nilly. The thirty five minute time limits on
each section are cast in stone. Why they cast in
stone because the job of the l set is to
make it easier for law schools to decide which students
to admit. And what would have happened if I had
(22:44):
been able to carry over my extra time or if
that thirty five minutes was turned into forty five minutes,
I would have scored higher, so would have lots of
other tortoises. Give tortoises an extra ten minutes and suddenly
some of them catch up to the hairs. But then,
what has that done? Now it's harder for law schools
to decide which students to admit. Back and I was
(23:09):
preparing for the l SAT over the ed tech company Noodle.
I asked their experts to game this out. One of
the Noodle guys, Fritz Stewart, said, you could relieve the
time pressure for a significant number of tortoises if you
extended the l SAT to one hundred and twenty five
percent of its current length. If we did win to
one hundred and twenty five percent, So what's specifically we
(23:30):
do it. What it's gonna do is it's it's gonna
screw with their lovely normed Bell curve. Right, It's really
subversive in a way. He's what Fritz is trying to
do is destroy law school admissions in a good way.
That's Dan Edmonds, another Noodle guy. What he means is
this right now, over one hundred thousand people take the
l SAT every year. The results fall on a Bell curve.
(23:52):
Of course, the ninetieth percentile is right around one sixty
four out of one hundred and eighty. The top schools
are all mostly drawing from the pool above the one
hundred and sixty seven mark. But if the test allows
the tortoises to score higher, then suddenly the number we're
one hundred and sixty seven would balloon, the bell curve
(24:13):
goes to hell in a handbasket, and the law schools
would have to make admissions about something other than just
the l s AT score. Because currently the law school
admissions is about seventy percent year all SAT score about
thirty percent year grades, and that leaves pretty much zero
percent for any other considerations. So if you take that
pressure off, you're suddenly maybe tripling your number of qualified
applicants for a lot of these top programs, and they're
(24:35):
going to have to do the work of actually figuring
out something other than a test to decide who gets
into their school. Now that raises the question of why
we don't just make the LL set harder, lift the
time pressure, and compensate by making the questions much tougher
so we get our nice, beautiful bell curve back. But
now all we're doing is we're privileging the tortoises over
(24:57):
the hairs. Now the Jeff Suttons of the world get
a perfect score, go to Harvard Law School, and just
as Scalia breathes a sigh of relief, except if you
do it that way, the hairs get discouraged because they
can only get into American University, where they're seventy seventh
in the country. And when Supreme Court justices come to visit,
they tell the students they have no chance. Why is
(25:18):
this better? We need hairs too. If you're an investment
bank trying to close an incredibly complicated deal in forty
eight hours, where the lawyers have to all read a
thousand pages in a day, maybe you want a hair.
The law needs tortoises and hairs. We have now arrived
at the absurdity of American meritocracy. Of course, the whole
(25:40):
reason the people obsess over their else At score is
that there are a small number of law schools that
everyone wants to get into the top fourteen. The prestigious
law firms basically only hire from the top fourteen, and
the top fourteen only have room to admit forty five
hundred students a year. In total, fifty three thousand people
are competing for forty five hundred slots. It's crazy. I'm
(26:04):
a graduate of the university of Toronto. All Canadians will
tell you that the University of Toronto is their most prestigious,
most elite, world class university. Do you know how many
undergraduates attend the University of Toronto? Ready? Remember this is
the elite school in a country of just thirty five
million people. And just to orient yourself, Harvard University, the
(26:27):
most elite school in a country of three hundred and
thirty million people, has a total undergraduate enrollment of six thousand,
six hundred and ninety nine. Ready, the best school in
Canada has seventy thousand, eight hundred and ninety undergraduates. Now,
how about the University of British Columbia, our second crown
(26:50):
jewel fifty two thousand, seven hundred and eleven undergraduates. What
about McGill University in Montreal? I always wished I went
to McGill Intimate, elite, exclusive. McGill has twenty seven thousand,
six hundred and one undergraduates. Do you see how genius this?
(27:10):
We have elite schools in Canada, but we don't spend
enormous amounts of time devising elaborate tests to arbitrarily limit
the number of people who can attend those elite schools.
We just made the schools bigger. Honestly, how hard is this?
(27:35):
This whole revisionist history project on the ALSATT began when
I ran across a paper on SSRN by a guy
named William Henderson. We met him in the previous episode,
the former firefighter from Cleveland who now teaches law at
Indiana University. Well, Henderson told me to call a friend
of his named Evan Parker. They worked together. I don't
(27:58):
know if you've ever read Michael Lewis's famous book Moneyball,
about the analytics nerds who took over baseball. They went
in with their advanced statistics and told the old school scouts,
you know you're picking the wrong players. Parker does moneyball
for law firms. You mentioned money Ball earlier. It really
is moneyball. Yeah, it is one hundred percent. Parker's young,
(28:22):
cerebral very proper in a suit tie briefcase. He's not
messing around. I said at the beginning that I was
going to offer you a grand, unified theory of how
to fix higher education. I'm almost there. Parker analyzes who
the successful people are at any law firm, and then
works backwards and asks is the firm hiring the kind
(28:43):
of law school graduate who is most likely to become
a good lawyer. He has multiple data points, regressions, algorithms,
and he finds they don't hire the right kind of
law school graduate. What is the inefficiency? That's it's the
perfect word, is a market inefficiency. Firms have plenty of
information about prospective hires, resume grades, law school work, experience,
(29:07):
but Parker finds they don't how to make sense of it.
People go for a shortcut instead. You end up selecting
people who are like you, not people who are like
the successful attorneys at your firm. You know, my colleague
is called it the mirror autocracy, right, the mirror autocracy,
people who remind us of ourselves at the standard law
(29:29):
firm interview. A partner sits down with a second year
law school student, and then that partner rates the candidate.
What is the correlation between that rating and how well
the candidate actually does when they get hired? Parker analyze
the data. It was essentially a coin flip. So someone says,
you know, you're this person's great or this person's serial.
(29:51):
That really doesn't tell you anything about how they're actually
going to do with retention, it was actually negative, so
that those who are getting higher individual scores are actually
less likely to stay. Parker's method is to try and
systematize what a law firm wants so that when they
interview someone, they know what to ask. I probably shouldn't
say too much because I can't give it all the way.
But what we can do is think of proxies for
(30:14):
certain types of behavior. Right. So, blue collar worker experience,
what happens if you have that in your background. I mean,
that's a mixed bag. It could be a lot of things, right,
But if you have that background and you've also gone
on to succeed and graduate law school and perform well,
that is to us a signal of something meaningful. Right.
(30:36):
And so at certain firms you will see blue collar
work experiences being one of the most I think positive
and significant factors under the y'all lse equal conditions. What
makes for a good lawyer is complicated. It differs from
law firm to law firm, job to job, situation to situation.
You need algorithms and data to make sense of it.
(30:58):
And now we come to the heart of the issue.
Some of the ones that are more I think surprising
to firms are the things that don't matter. What doesn't matter,
Wait for it all, where you went to law school.
It doesn't matter at all, you know, at all. Yeah,
it's it's essentially a random predictor. So is it not
(31:20):
matter within T fourteen or does it not matter? Well,
it really doesn't matter. If you go on the website
of any hot shot law firm, they have a picture
of every one of their attorneys, and next to the picture,
they'll tell you where that person went to law school,
so they can boast about how they never hire from
Ohio State and American University. That's how much the profession
(31:41):
is obsessed with law school pedigree. But what does the
moneyball guy, the quant who has run the numbers tell us,
really doesn't matter. You know, we like to sort of
represent results visually, and so we'll have this baseline line
and essentially, you know, what's to the left is sort
of a negative predictor what's to the right as a positive.
(32:03):
And you know, it's almost uniformly the case that this
T fourteen falls right on that day, which is it's
just an insignificant factor. Really, Yeah, that's kind of fantastic.
Maybe fantastic is the wrong word infuriating is a better word.
This whole process begins with the l set, which is
(32:24):
based on the idea that a certain kind of thinking
is valuable for legal education. And we know that's tricky
because it's not exactly clear why that certain kind of
thinking is so much more important than other kinds of thinking.
But whatever, for a separate set of idiosyncratic reasons. America
only has so many places at the top. So those
(32:46):
who excel at that certain kind of thinking get into
the top law schools, and those who get into the
top law schools get hired by the top law firms.
And then what do we find when you look at
who succeeds at those top law firms, which hire in
the basis of which law school you went to, which
in turn select on the basis of whether you're good
at that certain kind of thinking, you find where you
(33:07):
went to law school doesn't matter. The whole daisy chain
els at law school, law firm. We made it all up.
Evan Parker once did a special study on rainmakers, the
people who are really good at bringing in new business
for a law firm. Law firms cannot survive without rainmakers,
(33:27):
And I was struck in doing that work. How many
of the individuals in our study in which to law
schools that I've never even heard of? Right, or they
went to night school to get their law degree night
school and law schools you've never heard of. So what
should we do about this absurdity? It is now time
for Malcolm Gladwell's grand unified theory of how to fix
(33:51):
higher education. Ready, don't ask, don't tell. We make a
rule prospective employers cannot ask, and prospective employees cannot disclose
the name of the educational institutions they attended. Can still
go to Harvard if you want, spend a small fortune
(34:12):
on tutoring for the l set so that when you
sit down in that classroom you can be the very
speediest hair you can be. For the minute you leave Harvard,
you have to shut up about it. Silence. Harvard's over,
and employers can't use it as a short cut for
who to hire because it's not helping them, and they
can't post it on their websites. While we're at it.
(34:34):
By the way, let's don't ask, don't tell for all hiring.
When you think about choosing a school, you should be
thinking about where you can get the best education for
you and where you will be happy. You shouldn't be
making some complicated calculation about the brand value of your
college in the workplace, and neither should the Supreme Court.
(34:57):
So I can't afford a miss. I just can't. So
I'm going to be picking from the law schools that
basically are the hardest to get into. So this is
what just Scalia could have said. He could have said
in answer to Christina Stet's question. I care about people
who can think deeply about consequential issues, who know how
(35:19):
to read slowly, who are hungry enough to work on
problems around the clock. I had a clerk once named
Jeff Sutton who was all those things and more. And
I guess what I'm looking for is another Jeff Sutton,
another giant tortoise. And if you're concerned about the fact
you go to Washington College of Law or Ohio State
because your els AT score wasn't high enough, remember I
(35:42):
don't care where you went to law school, because I
consider it my responsibility, as a gatekeeper in a meritocracy
to select people based on their fit and their ability,
and not on their skill at answering twenty five questions
in thirty five minutes something like that. It's not a
hard thing to say, right. I'm here with Camille Baptista,
(36:10):
my assistant with whom I went mano a mano on
the l Sat. Three weeks ago, and Jacob Smith is
also with us. This is the moment of unveiling we have.
Camille was has gotten the email from the law school
admissions council. Camilla, start with my score. Okay, okay, who oh, okay, nice? Okay,
(36:39):
all right, all right, all right, okay, this is malcolm score.
Wait what what? I can't believe it? No, go back
to yours for a second. Were tied. We got the
same score. And I know you want to know what
the score is, but trust me, that way lies only
(37:02):
bitterness and illusion. Don't ask, don't tell. That is all right, okay,
the sweetest poetic justice. You know. We began this whole
process back in January, and it was the whole question
(37:25):
was whether my years of savvy and experience would be
offset by my years of cognitive decline, and whether Camille, Camille,
the swiftness and brightness and newness of her brain, would
overcome her lack of of of real life experience. And
turns out it's a wash. I think this outcome is
(37:46):
absolutely beautiful and delightful. I think next season you guys should,
as a stunt both go to law school in the
name of science. Revisionist History is produced by mel La
Belle and Jacob Smith with Camille Baptista. Our editor is
(38:08):
Julia Barton. Flawn Williams is our engineer. Fact checking by
Beth Johnson. Original music by Luis Guerra. Special thanks to
Carl Migliori, Heather Fane, Maggie Taylor, Maya Kanik, and Jacob Weisberg.
Revisionist History is brought to you by Pushkin Industries. I'm
(38:28):
Malcolm Gladbow. Okay, Malcolm. Your March twenty nineteen elsad score
is the percentile rank is
Host
Malcolm Gladwell
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