0:15

Pushkin. April

0:22

twenty fourth, two thousand and nine, the

0:24

late Supreme Court Justice Antonin

0:26

Scalia is speaking at American University's

0:29

Washington College of Law. Thank

0:32

you, thank you very much, Professor Marcus Dean

0:34

Grossman, Ladies and gentlemen, I

0:40

began one of one of my either

0:42

talks. The students are

0:44

all dressed up for the occasion. C

0:47

Span is recording. There's a big stage

0:49

hung with blue polyester drapes. Scalia

0:52

holds forth, his black hair

0:54

swept back from his forehead, glasses

0:57

on his nose, strong and square,

0:59

all intellectual heft and force,

1:02

gripping the podium like it's a slab of

1:04

beef. That administrative law is not for

1:06

sissies. It is.

1:09

It is a very difficult course to teach, and I

1:11

assume certainly wasn't

1:13

my day a hard course to master.

1:16

It's vintage Scalia. The

1:19

audience hangs on his every word. He

1:21

finishes triumphantly,

1:24

then hands shoot in the air. Good

1:27

afternoon. My name is Christina, said, I'm a one

1:29

else student here at WCL. Christina stud

1:32

first year student. Have a more general

1:34

question, and that is the part

1:36

of American The American ethos

1:39

is that our society is a meritocracy. Were hard

1:41

work and talently to success, but there are other

1:43

important factors like connections and elite

1:45

degrees. And I'm wondering, other than grades a journal,

1:48

what do smart, hardworking, wcale

1:50

students with strong writing skills need to do to be outrageously

1:53

successful in the law. What does it take

1:55

to be outrageously successful

1:58

in the law? Just

2:04

work hard and

2:06

be very good. I tell your story.

2:11

My name is Malcolm Gladwell. You're listening to

2:14

Revisionist History, my podcast

2:16

about things Overlooked I Misunderstood.

2:20

This episode is part two of

2:22

my examination of the bizarre

2:24

things the legal profession does to

2:26

pick its best and brightest. In

2:33

part one, which if you haven't listened

2:36

to you probably should, I took

2:38

the law school admissions test along

2:40

with my assistant Camille and couldn't

2:42

understand why they made me rush through all

2:44

the questions. But now in part

2:46

two we have bigger fish to fry. I'm

2:49

going to serve up Malcolm Gladwell's

2:51

grand unified theory of how to

2:53

fix American legal education. No, make

2:56

that my grand unified

2:58

theory for fixing all American

3:00

higher education. And

3:05

what is our text for this discussion of Gladwell's

3:08

grand unified theory. It's

3:10

the answer Justice Scalia gave to

3:13

the unfortunate Christina stud

3:16

you know, buy and large. Unless

3:18

I have a professor

3:21

on the faculty who's a good

3:24

friend and preferably a

3:26

former law clerk of mine whose judgment

3:28

I can trust, I'm

3:30

going to be picking, you know, for Supreme Court

3:32

law clerks. I can't afford a

3:35

miss I just can't. So

3:37

I'm going to be picking from the law schools

3:39

that basically there

3:42

are the hardest to get into. They admit the best

3:44

in the brightest, and they may not teach very well,

3:46

but you can't make you You can't

3:49

make a sow's ear

3:51

out of a silk purse. And if they

3:53

come in the best in the brightest, they're probably going to leave

3:55

the best in the brightest. Okay, let's

3:57

pretend to be fine legal minds for a

4:00

moment and closely part the meaning

4:02

and implication of Scaliah's

4:04

statement. A student

4:07

at American University's Washington College

4:09

of Law, a law school that US News

4:11

and Will Report ranked seventy seventh

4:14

among all American law schools, is

4:16

asking a question of a sitting justice

4:18

of the US Supreme Court who graduated

4:21

from Harvard Law School. She's

4:24

basically asking him would it be

4:26

possible to be one of his clerks, and

4:28

he answers, you go to American Universiti's

4:30

Washington College of Law, you have no

4:32

chance of becoming one of my clerks. I

4:35

only hired people who went to Harvard like I did. But

4:38

then he goes on and

4:40

he says this, which is my favorite

4:42

part because it sums up absolutely

4:46

everything I want to talk about in

4:48

this episode. I mean everything

4:53

now I started. The

4:55

reason I tell the story is one of

4:57

my former clerks who I am the most proud

4:59

of it now

5:02

sits on the Sixth Circuit Court of Appeals,

5:05

Jeff Sutton. I always referred him as

5:07

one of my former law He wasn't one

5:09

of my former law He was Lewis Powell's

5:11

clerk at the time. Lewis

5:14

Powell was semi retired from the Supreme Court.

5:16

He had what's called senior status, so

5:19

his law clerks worked mostly for other

5:21

justices. But I wouldn't have hired

5:24

Jeff Sutton for God's sake. He went to Ohio

5:26

State and

5:33

he's one of the very best law clerks I ever

5:35

had. And he's just a brilliant guy. So don't

5:37

tell me this stuff about you know, what do you have to do to

5:39

be successful? You have to be good? Simple?

5:42

Is that? Okay? I think

5:44

we're done, Thank you very much. Oh

5:49

we're not done. We've

5:51

only just begun. Tell

5:59

me why you decided to

6:01

go to law school? WHOA

6:04

So? Law school was a third choice. First

6:06

choice was teaching. I was a teacher in coach

6:09

for several years, both middle school, high

6:11

school, soccer, baseball, little

6:13

track. This is Judge Jeffrey

6:16

Sutton, the guy who somehow slipped through

6:18

the cracks to become the best clerk

6:20

and n in Scalia ever. Had Foreign

6:22

service was choice number two. No

6:25

lawyers in my family, And when I finally

6:27

went to law school, I wouldn't say my

6:29

parents were beaming with pride. I

6:32

came from a family of kind of service driven

6:35

folks who were either in education some

6:37

missionaries. And why did you

6:39

decide to go to Ohio State

6:41

Law school? Well, it was a pretty

6:43

complicated decision. I applied

6:45

to two law schools, Ohio State in Michigan.

6:49

I got into one of them, and

6:51

I ended up enrolling at the one

6:53

I got into. Oh I see that

6:56

I very much would have liked to have gone to Michigan,

6:59

and I was the fact that my father in law had gone

7:01

there and his son in law couldn't get in was

7:03

a little humbling, but

7:06

we got over it. I didn't

7:08

ask Judge Sutton what his elsat's

7:10

score was, but we can do the math.

7:15

Michigan is part of the elite group of law schools

7:17

known as the T fourteen, the top

7:20

fourteen Yale, Stanford,

7:22

Harvard, University of Chicago, Columbia,

7:24

all the big ones. Ohio State

7:27

is not among the T fourteen. The

7:29

median elsat's score of someone who

7:31

goes to Ohio State these days is

7:33

eight points lower than the median score

7:36

of someone at Michigan. Now

7:39

what does that fact mean. Well,

7:42

as you may recall from the previous episode,

7:44

the ELSATT is not a test of someone's

7:46

ability to solve difficult problems.

7:49

It's a test of someone's ability to solve

7:51

difficult problems quickly. It

7:54

is five sections of twenty to twenty five questions,

7:56

and you have a hard limit of thirty five minutes

7:59

for each section you have to rush.

8:01

As one ELSAT tutor told me, the test

8:04

favors those capable of processing

8:06

without understanding it favors

8:09

heirs, not tortoises. So

8:12

what's Jeff Sutton. Well, he's clearly

8:14

brilliant. He was the Ohio State Solicitor

8:17

in the nineteen nineties and wild the Supreme

8:19

Court with his arguments on a number of cases.

8:22

His most recent work of legal scholarship

8:24

is titled fifty one Imperfect

8:27

Solutions, States and the Making

8:29

of Constitutional Law. The New York Review

8:31

of Books felt they had to get a retired Supreme

8:33

Court justice to review it. There

8:36

are lots of very serious people, in fact, who

8:38

think Sutton deserves to be a Supreme Court justice

8:40

himself one day. So

8:42

Sutton is in the category of brilliant

8:45

person who didn't do all that well on the

8:47

l side. What does that make him?

8:49

It makes him a tortoise, and not

8:52

just any tortoise, a giant tortoise.

8:54

He's one of those tortoises from the Galapa Ghost

8:56

that's five feet long. So

8:59

Sutton graduates from Ohio State,

9:01

gets a job clerking for a federal judge,

9:04

then a job clerking on the Supreme Court, and

9:06

in his year as clerk for Scalia,

9:09

he thrives. The thing that really

9:12

affects everybody who works with him is

9:16

within weeks, you just

9:18

get a sense of this incredible passion

9:20

for the law, and that is

9:22

just intoxicating. And that is

9:25

what really changed things. And that

9:28

year. I can't emphasize enough

9:31

how much I got out of that year. Not

9:33

long before, Jeffrey Sutton had been a

9:35

middle school teacher and track coach in Columbus.

9:38

Now he's working with one of the greatest legal minds

9:41

in the country, and he does such

9:43

a good job that seventeen years later,

9:45

at some random speech at American University,

9:48

Scalia singles him out. Scalia

9:50

had well over a hundred clerks, jeff

9:53

Sutton is the one he's proudest of. So

9:56

why does a tortoise do so well working

9:59

for the Supreme Court? I asked

10:01

my fanciest legal friend, Tally for

10:03

Hadien, who was a clerk on the Court

10:05

a few years after Sutton for Justice

10:08

Sandra Day O'Connor, See, if you were

10:10

working on a case, what

10:12

is working on a case mean? Well,

10:15

we worked on two kinds of cases.

10:18

The first kind is what's called the sert

10:21

pool, the thousands of petitions

10:23

sent to Washington every year by people

10:25

who want their cases heard by the Supreme Court.

10:28

We would each get a stack of petitions I

10:30

think on a Wednesday, and we had a week to

10:32

get how would get into the pool? Yeah,

10:35

so that in that case there will be a lot to read, a

10:37

lot to read. When you read those

10:39

kinds of things, How do you read? How

10:43

do you read? I don't know what that question? Do you

10:45

read the same way you read a work

10:47

of nonfiction or a New Yorker

10:49

article or well? I always

10:52

read them, and I continue to read

10:54

similar documents with a pencil

10:56

in my hand, which is not how I would read

10:58

for pleasure, whether nonfiction or fiction.

11:01

Slower or faster? Much

11:03

slower, much slower, yes, how

11:06

much slower? Personally

11:12

I feel I can read very quickly,

11:14

and I can read very slowly, and I get different

11:16

things out of it. But this is definitely slow reading

11:19

territory. Is slow reading territory.

11:21

And why is it so important to read slowly?

11:26

Because the details matter and because

11:28

the arguments are intricate, Yeah,

11:32

and because the solutions are difficult.

11:34

I mean, everybody will tell you this. When

11:36

a case comes to the Supreme Court. You know a case

11:38

that's really ready for a review with the

11:41

Supreme Court, it's hard

11:43

the reason the circuit courts have disagreed about

11:45

it is because it's really hard,

11:47

Like the answer is not obvious.

11:50

Yeah, you're kidding yourself if you think that it is.

11:53

So you have to you have to think while you read.

11:55

Yeah. Yeah, you can't just process. You

11:57

have to understand. Yes, yeah, you have

12:00

to think while you read. This

12:03

is the primary requirement of one of the

12:05

most prestigious jobs in the legal profession.

12:08

The other part of the job, the main part

12:10

of the job, is researching and analyzing

12:13

the actual cases that come before the court.

12:15

For Hadian was one of four clerks working

12:17

for O'Connor, so she would get assigned

12:20

a quarter of those cases. And how much time

12:22

would you spend on them? I

12:24

don't think I ever stopped

12:27

thinking about the cases that I

12:29

was working on. Yeah, but

12:31

what was the time that would elapse? What's the

12:33

time that would elapse from when you were given

12:35

the case to when you when

12:37

you were finished with your contribution was

12:40

finished? I

12:43

don't remember. I want to say a

12:45

couple of months. Being

12:47

a Supreme Court clerk is a

12:50

job for a tortoise. You can't

12:52

hurry. You have to work slowly and carefully

12:54

because if you miss something that's a problem.

12:57

I didn't even have to mention tortoises

13:00

to Judge Sutton. He brought them up. You

13:02

know, law is very much a tortoise. The

13:04

tortoise went beats the hair, and so the

13:07

hairs that go to the elite schools, they

13:09

better slide into

13:11

tortoise mode or it's not going to work out

13:13

well for them. And the tortoises

13:17

that go to the states schools

13:20

better stay being a tortoise and stick with

13:22

it. So

13:25

let us recap. A sitting Supreme

13:27

Court justice explains to a

13:29

group of law school students that he will

13:31

not consider them for a job that involves

13:33

being a tortoise because they have failed

13:35

to shine at a test that measures their ability

13:38

to be a hare. And even as

13:40

he says that, he concedes that one of the best

13:42

of his former clerks was a tortoise who

13:44

also did not shine at a test that measured

13:47

his ability to be a hare. And

13:49

when he presents this confounding

13:51

bit of reasoning that manages both

13:53

to stigmatize and disparage the

13:55

entire audience, what does

13:58

the audience do Listen?

14:08

I mean, this is bananas. This

14:10

is like prisoners cheering award. I

14:14

think you can see why we are

14:16

in need of a grand, unified theory to

14:18

fix legal education.

14:29

The Monday after my assistant, Camille,

14:31

and I took the l SAD, we took

14:34

the train to Newtown, Pennsylvania,

14:36

to the headquarters of the Law School Admissions

14:39

Council. This is the group that

14:41

for the past seventy years has created

14:43

and administered the l SAD. They

14:46

operate out of a two story red brick

14:48

building in an office park big

14:50

atrium, very eighties. We

14:53

were ushered into a conference room on the second

14:55

floor where a row of test experts

14:58

psychomatricians were waiting

15:00

for us. What time you have to arrive at the test center.

15:04

They began with a tutorial on how to

15:06

make a standardized test, which I

15:09

have to say was fascinating. It

15:11

turns out a single item on a test like d ELSAT

15:13

takes thirty six months to develop.

15:16

They don't just dream up hard questions,

15:18

They test the questions over

15:20

and again to make sure that the right kind

15:23

of heart. So what I've done here is I've

15:25

identified a question that

15:28

was actually rejected because it was not performing

15:30

similarly for two subgroups of interest.

15:33

Those were males and females. This is Alex

15:35

Weissman. The question text

15:37

is actually on the second page. It

15:40

starts off Thomas Tompkins,

15:42

a Renaissance English composer, wrote in a musical

15:44

style that in his time had already become

15:47

outdated, and so forth. This

15:49

is a passage designed to test the reading

15:51

comprehension skills of would be lawyers.

15:54

But the results of the question came

15:56

out weird. Women who

15:58

were otherwise doing really well on that section

16:01

were somehow tripping up on this particular

16:03

question, and the equivalent

16:06

group of male high scores were

16:08

overwhelming they getting it right. So

16:10

here we have almost two x

16:13

male versus not well, almost

16:16

twice as many males as women as females

16:18

got this question correct. Right.

16:21

So if that is already

16:23

the indicative of a problem with this

16:25

question, so why? The question of

16:28

why is not always easy to answer and

16:30

it and for a question like this, what

16:34

we determine is even

16:37

if we can't determine why this

16:39

is happening, we don't take the chance in

16:42

keeping it on the test. In

16:44

this case, the l s AT wasn't functioning

16:46

as a test of ability, which

16:48

is what it's supposed to be. It seemed like it

16:51

was a test of gender, which it's not

16:53

supposed to be, so they threw the question

16:55

out. When I talked to psychomatricians

16:58

outside the legal world, they were

17:00

unanimous in their praise of the l SAT. It

17:02

was like talking to auto mechanics about a Porsche.

17:05

Mechanics love Porsches, and if

17:07

I had let them field, those three

17:09

on the panel would have happily talked about

17:11

their sports car for hours, the engine,

17:14

the steering, the acceleration. But

17:17

Chamille and I had just two days

17:19

earlier taken the l SET, and

17:21

what I really wanted to know was why

17:23

would these guys building a sports car? I

17:26

mean, why go so fast? Why

17:28

don't just build a really good minivan. So we know

17:30

in law school that doing

17:34

the work efficiently, being

17:36

able to handle the reading

17:38

load and handle the amount of analysis

17:40

that's required in a certain

17:43

amount of time is relevant. Lily

17:45

Nissovitch takes up the cause research

17:48

requirements on any redesign of the

17:50

test is to make sure that if you're changing

17:52

the timing or the number of questions

17:54

that you're asking the given amount of time, that

17:57

you go back to square one and make sure

17:59

it predicts we're now one

18:01

hour and fourteen minutes into the presentation.

18:04

I can't hold back any longer. So you've been

18:06

talking about efficiency, but I

18:09

was trying to be more You guys stopped

18:11

me from being efficient. I

18:14

had just been through the experience of finishing

18:17

the first section of the l set with time to spare,

18:19

and then running way out of time on the last logic

18:21

section. The efficient way for me to take

18:23

the test would be to speed up on the

18:25

things that I was really good at

18:28

and then use that time on the things I

18:30

needed more time on. That's how efficient people

18:33

were, right. But you wouldn't

18:35

not me be efficient. I was told seventeen

18:37

times you cannot look

18:40

ahead at the next section. Why

18:42

I stopped for ten minutes after the first one?

18:44

Okay, so I'm getting a little bit worked up.

18:47

But remember I'm under tremendous

18:49

pressure to beat Camille on the l SAT and

18:52

all this time she's sitting right next to

18:54

me, all smug and complacent, like

18:56

she was doing logic games in her head just

18:59

for fun. I was like, why can't I look at the next

19:01

one? I'm trying to be efficient. You're not letting

19:03

me, I mean, because then you'd be giving getting more

19:05

time for that next section. Than the first and

19:07

next day, or the person who

19:10

was the one, but the people who took the

19:12

question when it was gone through all these levels

19:14

of being efficient in law school

19:17

is about time management, right, is

19:19

about doing things you can

19:21

do it really quickly quickly and using that extra

19:23

time to if I'm a you

19:26

know, a fast reader, but a

19:28

slow writer, then it

19:31

can you know, I have a different

19:33

balance. And if I'm a fast writer and

19:35

a slow reader, I don't get the

19:37

sense that I'm making any headway. So

19:39

my question is, why are you forcing us all to do

19:42

every skill in thirty five minutes? If human

19:44

beings are everyone in that room I took

19:46

it with had a different set of skills,

19:48

but you're why are you pushing us all

19:51

into the same cookie cutter? And

19:57

who else you travel? It's

20:00

a standardized test, I guess standards timing

20:02

is one of the features of the standardization.

20:05

And we can do research on what you're saying,

20:07

But have you well

20:10

we've done research on the timing of the

20:12

questions before they were ever introduced,

20:15

how many how long it takes for people to

20:17

do this number of questions

20:20

reasonably well? To get your optimal

20:23

score? Isn't necessarily to try every

20:25

question, So some students to

20:29

get a better score by spending

20:31

more time per question and

20:34

then leaving to skipping a few than

20:36

by trying every question. Some students

20:38

best strategy is to try every

20:40

question, so we advise them to experiment

20:43

on themselves when they're practicing and

20:45

see what's there. That's the best strategy. But

20:47

that's the

20:49

only reason you need to have those strategies

20:52

is because you had this arbitrary time constraint,

20:54

Right, I just take a sup with the arbitrary.

20:57

Am I being obnoxious? Maybe

21:00

I am. It's like I've gone to push

21:02

your headquarters in Stuttgart and I'm

21:04

badgering them about why they aren't building something with

21:06

sliding doors in third row seating it.

21:09

I don't know. Doesn't it strike you that

21:11

they should have at least thought about this a bit

21:13

more? I mean, you you started by

21:15

going through a really elegant

21:17

description about how much care you take to

21:20

make sure tests do not have some element

21:22

of cultural or uh,

21:25

you know, group unfairness, which

21:28

I thought was super interesting. But

21:31

now you just you. But you simultaneously

21:34

have impose a system which

21:37

which discriminates against someone who, for examples, a slow

21:39

reader. You're You're, on the one hand,

21:41

beautifully sensitive to the notion

21:43

that the test might be disadvantaging a certain

21:46

kind of person. But in

21:48

this, in this, in the same breath, you

21:50

are completely insensitive to

21:54

the kind of person who wants to take their time

21:58

that don't may be difficult. I'm just this is genuine. If

22:00

this was my question test, you're

22:02

so so by

22:04

the information the test. Does we have to do

22:06

it in the standardis way? Yeah, we're

22:09

suggests is a different approach to these

22:11

tests, and we

22:14

couldn't, of course do that willie nilly.

22:19

They'll tinker and rewrite and rethink

22:21

and restructure the questions, but

22:24

not the format. No, that's

22:27

willy nilly. The thirty five

22:29

minute time limits on each section are

22:31

cast in stone. Why

22:33

they cast in stone because

22:35

the job of the l set is to

22:38

make it easier for law schools to decide

22:40

which students to admit. And

22:42

what would have happened if I had been able

22:45

to carry over my extra time or

22:47

if that thirty five minutes was turned

22:49

into forty five minutes, I

22:51

would have scored higher, so would

22:53

have lots of other tortoises. Give

22:55

tortoises an extra ten minutes and suddenly

22:58

some of them catch up to the hairs. But

23:00

then, what has that done? Now

23:03

it's harder for law schools to decide which students

23:05

to admit. Back

23:09

and I was preparing for the l SAT over the

23:11

ed tech company Noodle. I asked

23:13

their experts to game this out. One

23:16

of the Noodle guys, Fritz Stewart, said,

23:18

you could relieve the time pressure for a significant

23:20

number of tortoises if you extended the

23:23

l SAT to one hundred and twenty five

23:25

percent of its current length. If

23:27

we did win to one hundred and twenty five percent, So

23:29

what's specifically we do it. What it's gonna do is

23:31

it's it's gonna screw with

23:33

their lovely normed Bell curve.

23:36

Right, It's really subversive in a way.

23:38

He's what Fritz is trying to do is destroy

23:40

law school admissions in a good way. That's

23:43

Dan Edmonds, another Noodle guy. What

23:45

he means is this right now, over

23:48

one hundred thousand people take the l SAT

23:50

every year. The results fall on

23:52

a Bell curve. Of course, the ninetieth

23:54

percentile is right around one sixty

23:56

four out of one hundred and eighty. The top

23:58

schools are all mostly drawing from the

24:00

pool above the one hundred and sixty seven

24:03

mark. But if the test allows

24:05

the tortoises to score higher, then

24:07

suddenly the number we're one hundred and sixty

24:10

seven would balloon, the

24:12

bell curve goes to hell in a handbasket,

24:14

and the law schools would have to make admissions about

24:16

something other than just the l s AT score. Because currently

24:19

the law school admissions is about seventy percent

24:21

year all SAT score about thirty percent

24:23

year grades, and that leaves pretty much zero

24:26

percent for any other considerations. So

24:28

if you take that pressure off, you're

24:30

suddenly maybe tripling your number of qualified

24:32

applicants for a lot of these top programs,

24:35

and they're going to have to do the work of actually figuring

24:37

out something other than a test to decide

24:39

who gets into their school. Now

24:42

that raises the question of why we don't just

24:44

make the LL set harder, lift the time

24:46

pressure, and compensate by making

24:48

the questions much tougher so

24:50

we get our nice, beautiful bell curve

24:52

back. But now all we're doing is

24:55

we're privileging the tortoises over the

24:57

hairs. Now the Jeff Suttons of the

24:59

world get a perfect score, go to Harvard

25:01

Law School, and just as Scalia breathes

25:03

a sigh of relief, except if

25:05

you do it that way, the hairs get

25:07

discouraged because they can only get into

25:09

American University, where they're seventy seventh

25:12

in the country. And when Supreme Court justices

25:14

come to visit, they tell the students they have no

25:16

chance. Why is this better? We

25:19

need hairs too. If you're an investment

25:21

bank trying to close an incredibly complicated

25:24

deal in forty eight hours, where the lawyers

25:26

have to all read a thousand pages in a day,

25:28

maybe you want a hair. The law

25:31

needs tortoises and hairs.

25:34

We have now arrived at the absurdity

25:37

of American meritocracy. Of course, the

25:40

whole reason the people obsess over their

25:42

else At score is that there are a small

25:44

number of law schools that everyone wants

25:46

to get into the top fourteen. The

25:49

prestigious law firms basically only hire

25:51

from the top fourteen, and the top

25:53

fourteen only have room to admit forty

25:55

five hundred students a year. In total,

25:58

fifty three thousand people are competing

26:00

for forty five hundred slots. It's

26:02

crazy. I'm a graduate

26:04

of the university of Toronto. All Canadians

26:07

will tell you that the University of Toronto

26:09

is their most prestigious, most

26:11

elite, world class university. Do

26:14

you know how many undergraduates attend the

26:16

University of Toronto? Ready? Remember

26:19

this is the elite school in

26:21

a country of just thirty five

26:23

million people. And just to orient

26:26

yourself, Harvard University, the most

26:28

elite school in a country of three

26:30

hundred and thirty million people, has

26:32

a total undergraduate enrollment of

26:35

six thousand, six hundred and ninety nine.

26:38

Ready, the best school

26:40

in Canada has seventy

26:43

thousand, eight hundred and ninety undergraduates.

26:46

Now, how about the University of British Columbia,

26:49

our second crown jewel fifty

26:51

two thousand, seven hundred and eleven

26:54

undergraduates. What about

26:56

McGill University in Montreal? I

26:58

always wished I went to McGill Intimate,

27:00

elite, exclusive. McGill

27:03

has twenty seven thousand, six hundred

27:05

and one undergraduates. Do

27:07

you see how genius this? We

27:10

have elite schools in Canada,

27:12

but we don't spend enormous amounts of

27:14

time devising elaborate tests to

27:16

arbitrarily limit the number of people who

27:19

can attend those elite schools.

27:22

We just made the schools bigger. Honestly,

27:25

how hard is this?

27:35

This whole revisionist history project

27:37

on the ALSATT began when I

27:39

ran across a paper on SSRN

27:42

by a guy named William Henderson. We

27:44

met him in the previous episode, the former

27:47

firefighter from Cleveland who now

27:49

teaches law at Indiana University.

27:51

Well, Henderson told me to call a

27:54

friend of his named Evan Parker.

27:56

They worked together. I don't know if

27:58

you've ever read Michael Lewis's famous book

28:00

Moneyball, about the analytics nerds

28:03

who took over baseball. They went in with

28:05

their advanced statistics and told

28:07

the old school scouts, you

28:09

know you're picking the wrong players.

28:12

Parker does moneyball for

28:14

law firms. You mentioned money Ball earlier.

28:17

It really is moneyball. Yeah, it

28:20

is one hundred percent. Parker's young, cerebral

28:23

very proper in a suit tie briefcase.

28:26

He's not messing around. I said

28:28

at the beginning that I was going to offer you a grand,

28:30

unified theory of how to fix higher education.

28:33

I'm almost there. Parker

28:35

analyzes who the successful people

28:37

are at any law firm, and then works

28:40

backwards and asks is

28:42

the firm hiring the kind of law school graduate

28:44

who is most likely to become a good lawyer. He

28:47

has multiple data points, regressions,

28:50

algorithms, and he finds they

28:53

don't hire the right kind of law school graduate.

28:55

What is the inefficiency? That's

28:57

it's the perfect word, is a market

28:59

inefficiency. Firms have plenty

29:02

of information about prospective hires,

29:04

resume grades, law school work,

29:06

experience, but Parker finds they

29:08

don't how to make sense of it. People

29:11

go for a shortcut instead. You end

29:13

up selecting people who are like you,

29:16

not people who are like the

29:18

successful attorneys at your firm.

29:20

You know, my colleague is called it the mirror

29:22

autocracy, right, the mirror

29:25

autocracy, people who remind

29:27

us of ourselves at the standard

29:29

law firm interview. A partner sits down

29:31

with a second year law school student, and

29:33

then that partner rates the candidate. What

29:36

is the correlation between that rating and

29:39

how well the candidate actually does when

29:41

they get hired? Parker

29:43

analyze the data. It was essentially a coin

29:45

flip. So someone says,

29:48

you know, you're this person's great or this

29:50

person's serial. That really doesn't tell you anything about

29:52

how they're actually going to do with retention,

29:54

it was actually negative, so that those who

29:56

are getting higher individual scores are

29:58

actually less likely to stay. Parker's

30:01

method is to try and systematize

30:03

what a law firm wants so that when

30:05

they interview someone, they know what to ask.

30:08

I probably shouldn't say too much because I can't give it all

30:10

the way. But what we can do is think

30:13

of proxies for certain types of behavior.

30:16

Right. So, blue collar worker experience, what happens

30:18

if you have that in your background. I mean,

30:20

that's a mixed bag. It could

30:22

be a lot of things, right, But if you have that background

30:24

and you've also gone on to

30:27

succeed and graduate law school

30:29

and perform well, that is

30:32

to us a signal

30:34

of something meaningful. Right.

30:36

And so at certain firms you will see

30:38

blue collar work experiences being one of the most I

30:41

think positive and significant

30:43

factors under the y'all lse equal conditions.

30:47

What makes for a good lawyer is complicated.

30:50

It differs from law firm to law firm, job

30:52

to job, situation to situation. You

30:55

need algorithms and data to make sense

30:57

of it. And now we come to

30:59

the heart of the issue. Some of the ones that are

31:02

more I think surprising to firms

31:04

are the things that don't matter. What doesn't

31:06

matter, Wait for it all,

31:10

where you went to law school. It doesn't matter at

31:12

all, you know, at all. Yeah,

31:15

it's it's essentially a random

31:18

predictor. So is it not matter

31:20

within T fourteen or does it not matter? Well,

31:23

it really doesn't matter. If

31:27

you go on the website of any hot shot law

31:29

firm, they have a picture of every one of

31:31

their attorneys, and next to the picture,

31:33

they'll tell you where that person went to law school,

31:35

so they can boast about how they never hire from Ohio

31:37

State and American University. That's

31:40

how much the profession is obsessed with

31:42

law school pedigree. But what

31:44

does the moneyball guy, the quant

31:46

who has run the numbers tell us, really

31:50

doesn't matter. You

31:53

know, we like to sort of represent results

31:55

visually, and so we'll have this baseline line and

31:57

essentially, you know, what's to the

31:59

left is sort of a negative predictor what's to the right

32:01

as a positive. And you

32:04

know, it's almost uniformly the

32:06

case that this T fourteen falls

32:08

right on that day, which is it's just an

32:10

insignificant factor. Really, Yeah,

32:13

that's kind of fantastic. Maybe

32:16

fantastic is the wrong word infuriating

32:19

is a better word. This

32:22

whole process begins with the l set,

32:24

which is based on the idea that a certain

32:26

kind of thinking is valuable for legal education.

32:29

And we know that's tricky because

32:31

it's not exactly clear why that certain

32:34

kind of thinking is so much more important than

32:36

other kinds of thinking. But whatever, for

32:39

a separate set of idiosyncratic reasons.

32:42

America only has so many places

32:44

at the top. So those who excel

32:46

at that certain kind of thinking get

32:49

into the top law schools, and those who get

32:51

into the top law schools get hired by the top law

32:53

firms. And then what do we

32:55

find when you look at who succeeds

32:58

at those top law firms, which hire

33:00

in the basis of which law school you went to, which

33:02

in turn select on the basis of whether you're good at that

33:04

certain kind of thinking, you

33:06

find where you went to law school doesn't

33:09

matter. The whole daisy chain

33:12

els at law school, law

33:14

firm. We made it all up.

33:18

Evan Parker once did a special study on

33:20

rainmakers, the people who are really

33:22

good at bringing in new business for a law firm.

33:24

Law firms cannot survive without

33:27

rainmakers, And I was struck in doing

33:29

that work. How

33:31

many of the individuals in our study

33:33

in which to law schools that I've never even heard of?

33:36

Right, or they went to night school to get

33:38

their law degree night school and

33:40

law schools you've never heard of. So

33:43

what should we do about this absurdity?

33:46

It is now time for Malcolm

33:48

Gladwell's grand unified theory of

33:50

how to fix higher education. Ready,

33:54

don't ask, don't tell. We

33:57

make a rule prospective

33:59

employers cannot ask, and

34:01

prospective employees cannot

34:03

disclose the name of the educational

34:06

institutions they attended. Can

34:09

still go to Harvard if you want, spend

34:11

a small fortune on tutoring for the l set

34:13

so that when you sit down in that classroom you can

34:15

be the very speediest hair you can be. For

34:19

the minute you leave Harvard, you have to shut

34:21

up about it. Silence. Harvard's

34:23

over, and employers

34:26

can't use it as a short cut for who to

34:28

hire because it's not helping them, and they

34:30

can't post it on their websites. While

34:34

we're at it. By the way, let's don't ask,

34:36

don't tell for all hiring. When

34:38

you think about choosing a school, you

34:40

should be thinking about where you can get the best

34:43

education for you and where

34:45

you will be happy. You shouldn't

34:47

be making some complicated calculation

34:50

about the brand value of your college in the workplace,

34:53

and neither should the Supreme Court.

34:57

So I can't afford a miss.

34:59

I just can't. So I'm going to

35:01

be picking from the law schools that basically

35:06

are the hardest to get into. So this

35:08

is what just Scalia could have said.

35:10

He could have said in answer to Christina Stet's

35:13

question. I care about people who

35:15

can think deeply about consequential

35:17

issues, who know how to read

35:19

slowly, who are hungry enough to

35:21

work on problems around the clock. I

35:24

had a clerk once named Jeff Sutton who

35:26

was all those things and more. And I guess what

35:28

I'm looking for is another Jeff Sutton,

35:31

another giant tortoise. And

35:34

if you're concerned about the fact you go to Washington

35:36

College of Law or Ohio State because

35:39

your els AT score wasn't high enough, remember

35:42

I don't care where you went to law school, because

35:45

I consider it my responsibility,

35:47

as a gatekeeper in a meritocracy

35:50

to select people based on their fit and

35:52

their ability, and not on their

35:54

skill at answering twenty five questions

35:57

in thirty five minutes something

36:00

like that. It's not a hard thing

36:02

to say, right.

36:07

I'm here with Camille

36:09

Baptista, my assistant with

36:12

whom I went mano a mano on the l

36:14

Sat. Three weeks ago, and

36:18

Jacob Smith is also with

36:20

us. This is the moment of unveiling

36:23

we have. Camille was

36:25

has gotten the email from the law

36:27

school admissions council. Camilla,

36:30

start with my score. Okay, okay,

36:36

who oh, okay, nice?

36:39

Okay, all right, all right, all right, okay, this

36:41

is malcolm score. Wait

36:45

what what? I can't believe

36:47

it? No,

36:51

go back to yours for a second. Were

36:54

tied. We got the same score.

36:57

And I know you want to know what the score is,

36:59

but trust me, that way lies

37:02

only bitterness and illusion. Don't

37:05

ask, don't tell. That

37:14

is all right, okay, the sweetest

37:17

poetic justice. You

37:19

know. We began this whole process back in

37:22

January, and it was the

37:24

whole question was whether my

37:26

years of savvy and experience would

37:28

be offset by my years of cognitive decline,

37:31

and whether Camille, Camille,

37:34

the swiftness and brightness

37:37

and newness of her brain, would

37:39

overcome her lack of of of

37:41

real life experience. And turns out it's a wash.

37:44

I think this outcome is absolutely beautiful

37:47

and delightful. I

37:49

think next season you guys should, as a stunt

37:52

both go to law school in

37:54

the name of science. Revisionist

38:01

History is produced by mel La Belle

38:03

and Jacob Smith with Camille

38:05

Baptista. Our editor is

38:08

Julia Barton. Flawn Williams

38:10

is our engineer. Fact checking by Beth

38:12

Johnson. Original music by

38:14

Luis Guerra. Special thanks

38:16

to Carl Migliori, Heather Fane,

38:19

Maggie Taylor, Maya Kanik,

38:21

and Jacob Weisberg. Revisionist

38:25

History is brought to you by Pushkin Industries.

38:28

I'm Malcolm Gladbow. Okay,

38:36

Malcolm. Your March twenty nineteen

38:38

elsad score is the

38:41

percentile rank is