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The Tortoise and the Hare · Revisionist History

0:15
Speaker 1: Pushkin. April twenty fourth, two thousand and nine, the late
0:25
Speaker 1: Supreme Court Justice Antonin Scalia is speaking at American University's
0:29
Speaker 1: Washington College of Law.
0:32
Speaker 2: Thank you, thank you very much, Professor Marcus Dean Grossman,
0:35
Speaker 2: Ladies and gentlemen, I began one of my either talks
0:42
Speaker 2: or law of you WARDI.
0:43
Speaker 1: The students are all dressed up for the occasion. Sea
0:47
Speaker 1: Span is recording. There's a big stage hung with blue
0:50
Speaker 1: polyester drapes. Scalia holds forth, his black hair swept back
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Speaker 1: from his forehead, glasses on his nose, strong and square,
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Speaker 1: all intellectual heft and force, gripping the podium like it's
1:03
Speaker 1: a slab.
1:04
Speaker 2: Of beef, and that administrative law is not for sissies.
1:08
Speaker 2: It is. It is a very difficult course to teach,
1:10
Speaker 2: and I assume it certainly wasn't my day a hard
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Speaker 2: course to master.
1:16
Speaker 1: It's vintage Scalia. The audience hangs on his every word.
1:21
Speaker 1: He finishes triumphantly than hands shoot in the air.
1:27
Speaker 3: Good afternoon. My name is Christina Stutt. I'm a one
1:29
Speaker 3: l student here at w CL.
1:31
Speaker 1: Christina studt First, your student have.
1:33
Speaker 3: A more general question, and that is the part of
1:37
Speaker 3: American the American ethos is that our society as a
1:40
Speaker 3: meritocracy were hard work and talantly to success. But there
1:42
Speaker 3: are other important factors like connections and elite degrees. And
1:46
Speaker 3: I'm wondering, other than grades of journal what do smart,
1:49
Speaker 3: hardworking WSL students with strong writing skills need to do
1:52
Speaker 3: to be outrageously successful in the law.
1:54
Speaker 1: What does it take to be outrageously successful in the law?
2:00
Speaker 2: A just work hard and be very good. I tell
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Speaker 2: you a story.
2:11
Speaker 1: My name is Malcolm Gladwell. You're listening to Revisionist History,
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Speaker 1: my podcast about things overlooked and misunderstood. This episode is
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Speaker 1: part two of my examination of the bizarre things the
2:25
Speaker 1: legal profession does to pick its best and brightest. In
2:33
Speaker 1: part one, which if you haven't listened to you probably should,
2:37
Speaker 1: I took the law school admissions test along with my
2:40
Speaker 1: assistant Camille and couldn't understand why they made me rush
2:44
Speaker 1: through all the questions. But now in part two we
2:47
Speaker 1: have bigger fish to fry. I'm going to serve up
2:50
Speaker 1: Malcolm Gladwell's grand unified theory of how to fix American
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Speaker 1: legal education. No, make that my grand unified theory for
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Speaker 1: fixing all American higher education. And what is our text
3:06
Speaker 1: for this discussion of Gladwell's grand unified theory. It's the
3:10
Speaker 1: answer Justice Scalia gave to the unfortunate Christina Studd.
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Speaker 2: You know, by and large, unless I have a professor
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Speaker 2: on the faculty who's a good friend and preferably a
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Speaker 2: former law clerk of mine whose judgment I can trust,
3:30
Speaker 2: I'm going to be picking, you know, for Supreme Court
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Speaker 2: law clerks. I can't afford a miss I just can't.
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Speaker 2: So I'm going to be picking from the law schools
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Speaker 2: that basically there are the hardest to get into. They
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Speaker 2: admit the best in the brightest, and they may not
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Speaker 2: teach very well, but you can't make You can't make
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Speaker 2: a sow's ear out of a silk purse. And if
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Speaker 2: they come in the best in the brightest, they're probably
3:55
Speaker 2: going to leave the best in the brightest.
3:56
Speaker 1: Okay, let's pretend to be fine legal minds for a
4:00
Speaker 1: moment and closely parts the meaning and implication of Scalia's statement.
4:06
Speaker 1: A student at American University's Washington College of Law, a
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Speaker 1: law school that US News and Will Report ranked seventy
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Speaker 1: seventh among all American law schools, is asking a question
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Speaker 1: of a sitting justice of the US Supreme Court who
4:20
Speaker 1: graduated from Harvard Law School. She's basically asking him would
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Speaker 1: it be possible to be one of his clerks, and
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Speaker 1: he answers, you go to American University's Washington College of Law,
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Speaker 1: you have no chance of becoming one of my clerks.
4:35
Speaker 1: I only hire people who went to Harvard, like I did.
4:38
Speaker 1: But then he goes on and he says this, which
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Speaker 1: is my favorite part because it sums up absolutely everything
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Speaker 1: I want to talk about in this episode. I mean everything.
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Speaker 2: Now I started. The reason I tell the story is
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Speaker 2: one of my former clerks who I am the most
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Speaker 2: proud of and now sits on the Sixth Circuit Court
5:03
Speaker 2: of Appeals, Jeff Sutton. I always referred him as one
5:08
Speaker 2: of my former law He wasn't one of my former
5:10
Speaker 2: law He was Lewis Powell's clerk.
5:12
Speaker 1: At the time. Lewis Powell was semi retired from the
5:15
Speaker 1: Supreme Court. He had what's called senior status, so his
5:19
Speaker 1: law clerks worked mostly for other justices.
5:22
Speaker 2: But I wouldn't have hired Jeff Sutton for God's sake.
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Speaker 2: He went to Ohio State and he's one of the
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Speaker 2: very best law clerks I ever had, and he's just
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Speaker 2: a brilliant guy. So don't tell me this stuff about
5:38
Speaker 2: you know, what do you have to do to be successful?
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Speaker 2: You have to be good, simple as that.
5:44
Speaker 4: Okay, we're not thank you very much, thank you.
5:49
Speaker 1: Oh we're not done. We've only just begun.
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Speaker 4: Tell me why you decided to go to law school?
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Speaker 5: WHOA So? Law school was a third choice. First choice
6:07
Speaker 5: was teaching. I was a teacher and coach for several years,
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Speaker 5: both middle school, high school, soccer, baseball, little track.
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Speaker 1: This is Judge Jeffrey Sutton, the guy who somehow slipped
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Speaker 1: through the cracks to become the best clerk and in
6:20
Speaker 1: in Scalia ever had.
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Speaker 5: Foreign service was choice number two. No lawyers in my family,
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Speaker 5: and when I finally went to law school, I wouldn't
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Speaker 5: say my parents were beaming with pride. I came from
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Speaker 5: a family of kind of service driven folks who were
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Speaker 5: either in education some missionaries.
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Speaker 4: And why did you decide to go to Ohio State
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Speaker 4: law school?
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Speaker 5: Well, it was a pretty complicated decision. I applied to
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Speaker 5: two law schools, Ohio State and Michigan. I got into
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Speaker 5: one of them, and I ended up enrolling at the
6:53
Speaker 5: one I got into. Oh I see it was I
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Speaker 5: very much would have liked to have gone to Michigan,
6:59
Speaker 5: and I was the fact that my father in law
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Speaker 5: had gone there and his son in law couldn't get
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Speaker 5: in was a little humbling, but we got over it.
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Speaker 1: I didn't ask Judge Sutton what his lsat's score was,
7:11
Speaker 1: but we can do the math. Michigan is part of
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Speaker 1: the elite group of law schools known as the T fourteen,
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Speaker 1: the top fourteen Yale, Stanford, Harvard, University of Chicago, Columbia,
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Speaker 1: all the big ones. Ohio State is not among the
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Speaker 1: T fourteen. The median LSAT score of someone who goes
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Speaker 1: to Ohio State these days is eight points lower than
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Speaker 1: the median score of someone at Michigan. Now what does
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Speaker 1: that fact mean. Well, as you may recall from the
7:43
Speaker 1: previous episode, the l set is not a test of
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Speaker 1: someone's ability to solve difficult problems. It's a test of
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Speaker 1: someone's ability to solve difficult problems quickly. It is five
7:54
Speaker 1: sections of twenty to twenty five questions, and you have
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Speaker 1: a hard limit of thirty five minutes for each section.
8:00
Speaker 1: You have to rush. As one el SAT tutor told me,
8:03
Speaker 1: the test favors those capable of processing without understanding it
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Speaker 1: favors not tortoises. So what's Jeff Sutton. Well, he's clearly brilliant.
8:15
Speaker 1: He was the Ohio State Solicitor in the nineteen nineties
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Speaker 1: and while the Supreme Court with his arguments on a
8:20
Speaker 1: number of cases. His most recent work of legal scholarship
8:24
Speaker 1: is titled fifty one Imperfect Solutions, States and the Making
8:29
Speaker 1: of Constitutional Law. The New York Review of Books felt
8:32
Speaker 1: they had to get a retired Supreme Court justice to
8:34
Speaker 1: review it. There are lots of very serious people, in fact,
8:38
Speaker 1: who think Sutton deserves to be a Supreme Court justice
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Speaker 1: himself one day. So Sutton is in the category of
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Speaker 1: brilliant person who didn't do all that well on the
8:47
Speaker 1: lsat what does that make him? It makes him a tortoise,
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Speaker 1: and not just any tortoise, a giant tortoise. He's one
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Speaker 1: of those tortoises from the Galapagos that's five feet long.
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Speaker 1: So Sutton graduates from Ohio State, gets a job clerking
9:02
Speaker 1: for a federal judge, then a job cloking on the
9:05
Speaker 1: Supreme Court, and in his year as clerk for Scalia, he.
9:09
Speaker 5: Thrives the thing that really affects everybody who works with him.
9:14
Speaker 5: Is within weeks you just get a sense of this
9:19
Speaker 5: incredible passion for the law, and that is just intoxicating.
9:24
Speaker 5: And that is what really changed things. And that year.
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Speaker 5: I can't emphasize enough how much I got out of
9:32
Speaker 5: that year.
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Speaker 1: Not long before, Jeffrey Sutton had been a middle school
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Speaker 1: teacher and track coaching Columbus. Now he's working with one
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Speaker 1: of the greatest legal minds in the country, and he
9:42
Speaker 1: does such a good job that seventeen years later, at
9:45
Speaker 1: some random speech at American University, Scalia singles him out.
9:50
Speaker 1: Scalia had well over one hundred clerks, jeff Sutton is
9:53
Speaker 1: the one he's proudest of. So why does a tortoise
9:57
Speaker 1: do so well working for the Supreme Court? I asked
10:01
Speaker 1: my fanciest legal friend, Tally for Haddien, who is a
10:04
Speaker 1: clerk on the Court a few years after Sutton for
10:07
Speaker 1: Justice Sandrada O'Connor, if.
10:09
Speaker 4: You were working on a case. What what does working
10:13
Speaker 4: on a case mean?
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Speaker 6: Well, we worked on two kinds of cases.
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Speaker 1: The first kind is what's called the sert pool, the
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Speaker 1: thousands of petitions sent to Washington every year by people
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Speaker 1: who want their cases heard by the Supreme Court.
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Speaker 6: We would each get a stack of petitions I think
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Speaker 6: on a Wednesday, and we had a week to get
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Speaker 6: into the pool.
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Speaker 4: Yeah, so that in that case there would be a
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Speaker 4: lot to.
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Speaker 6: Read, a lot to read.
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Speaker 4: When you read those kinds of things, How do you read?
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Speaker 6: How do you read? I don't know what that question.
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Speaker 4: Do you read the same way you read a work
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Speaker 4: of nonfiction or a New Yorker article or well?
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Speaker 7: I always read them, and I continue to read similar
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Speaker 7: documents with a pencil in my hand, which is not
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Speaker 7: how I would read for pleasure, whether nonfiction or fiction.
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Speaker 4: Slower or faster? Much slower, much slower, yes, how much slower.
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Speaker 7: Personally, I feel I can read very quickly, and I
11:14
Speaker 7: can read very slowly, and I get different things out
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Speaker 7: of it.
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Speaker 4: But this is definitely slow reading territory.
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Speaker 6: It is slow reading territory.
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Speaker 4: And why is it so important to read slowly?
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Speaker 6: Because the details matter and because the arguments are intricate, Yeah,
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Speaker 6: and because the solutions are difficult. I mean, everybody will
11:35
Speaker 6: tell you this. When a case comes to the Supreme Court.
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Speaker 7: You know a case that's really ready for a review
11:40
Speaker 7: at the Supreme Court, it's hard. The reason the circuit
11:44
Speaker 7: courts have disagreed about it is because it's really hard.
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Speaker 7: Like the answer is not obvious. You're kidding yourself if
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Speaker 7: you think that it is. So you have to think
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Speaker 7: while you read.
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Speaker 4: Yeah, yeah, you can't just process. You have to understand. Yes, yeah, you.
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Speaker 1: Have to think while you read. This is the primary
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Speaker 1: requirement of one of the most prestigious jobs in the
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Speaker 1: legal profession. The other part of the job, the main
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Speaker 1: part of the job, is researching and analyzing the actual
12:13
Speaker 1: cases that come before the court. For Hardian was one
12:16
Speaker 1: of four clerks working for O'Connor, so she would get
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Speaker 1: assigned a quarter of those cases.
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Speaker 6: And how much time would you spend on them?
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Speaker 7: I don't think I ever stopped thinking about the cases
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Speaker 7: that I was working on.
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Speaker 4: Yeah, but what with the time that would elapse. What's
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Speaker 4: the time that would elapse from when you were given
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Speaker 4: the case to when you when you were finished with
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Speaker 4: your contribution was finished?
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Speaker 6: I don't remember, I want to say a couple months.
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Speaker 1: Being a Supreme Court clerk is a job for a tortoise.
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Speaker 1: You can't hurry. You have to work slowly and carefully
12:54
Speaker 1: because if you miss something, that's a problem. I didn't
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Speaker 1: even have to mention tortoises to Judge Sutton. He brought
13:01
Speaker 1: them up.
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Speaker 5: You know, law is very much a tortoise. The tortoise
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Speaker 5: went beats the hair, and so the hairs that go
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Speaker 5: to the elite schools, they better slide into tortoise mode
13:12
Speaker 5: or it's not going to work out well for them.
13:15
Speaker 5: And the tortoises that go to the state school's better
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Speaker 5: stay being a tortoise than stick with it.
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Speaker 1: So let us recap. A sitting Supreme Court justice explains
13:28
Speaker 1: to a group of law school students that he will
13:31
Speaker 1: not consider them for a job that involves being a
13:33
Speaker 1: tortoise because they have failed to shine at a test
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Speaker 1: that measures their ability to be a hare. And even
13:40
Speaker 1: as he says that, he concedes that one of the
13:42
Speaker 1: best of his former clerks was a tortoise who also
13:45
Speaker 1: did not shine at a test that measured his ability
13:47
Speaker 1: to be a hare. And when he presents this confounding
13:51
Speaker 1: bit of reasoning that manages both to stigmatize and disparage
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Speaker 1: the entire audience, what does the audience do Listen? I mean,
14:09
Speaker 1: this is bananas. This is like prisoners cheering award. I
14:14
Speaker 1: think you can see why we are in need of
14:16
Speaker 1: a grand, unified theory to fix legal education.
14:25
Speaker 4: At the.
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Speaker 1: Monday, after my assistant, Camille, and I took the l SAT,
14:33
Speaker 1: we took the train to Newtown, Pennsylvania, to the headquarters
14:37
Speaker 1: of the Law School Admissions Council. This is the group
14:40
Speaker 1: that for the past seventy years has created and administered
14:44
Speaker 1: the ALSAT. They operate out of a two story red
14:48
Speaker 1: brick building in an office park, big atrium, very eighties.
14:53
Speaker 1: We were ushered into a conference room on the second
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Speaker 1: floor where a row of test experts psychometricians were waiting
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Speaker 1: for us.
15:00
Speaker 4: What time did you have to arrive at the test center?
15:02
Speaker 4: Eight They began with a tutorial on how to make
15:07
Speaker 4: a standardized test, which I I have to say was fascinating.
15:11
Speaker 1: It turns out a single item on a test like
15:13
Speaker 1: the ELSAT takes thirty six months to develop. They don't
15:16
Speaker 1: just dream up hard questions, They test the questions over
15:21
Speaker 1: and again to make sure they're the right kind of hard.
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Speaker 8: So what I've done here is I've identified a question
15:27
Speaker 8: that was actually rejected because it was not performing similarly
15:31
Speaker 8: for two subgroups of interest. Those were males and females.
15:34
Speaker 1: This is Alex Weisman.
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Speaker 8: The question text is actually on the second page. It
15:40
Speaker 8: starts off Thomas Tompkins, Renaissance English composer wrote in a
15:44
Speaker 8: musical style that in his time had already become outdated,
15:48
Speaker 8: and so forth.
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Speaker 1: This is a passage designed to test the reading comprehension
15:52
Speaker 1: skills of would be lawyers. But the results of the
15:55
Speaker 1: question came out weird. Women who are otherwise doing really
16:00
Speaker 1: well on that section were somehow tripping up on this
16:03
Speaker 1: particular question, and the equivalent group of male high scorers
16:08
Speaker 1: were overwhelming getting it right.
16:10
Speaker 4: So here we have almost two x male versus not
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Speaker 4: all well, well, almost twice as many males as women
16:18
Speaker 4: as females got this question.
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Speaker 8: Correct right, So if you that is, that is already
16:24
Speaker 8: indicative of a problem with this question. So why the
16:27
Speaker 8: question of why is not always easy to answer it.
16:31
Speaker 8: And for a question like this, what we determine is
16:36
Speaker 8: even if we can't determine why this is happening, we
16:40
Speaker 8: don't take the chance in keeping it on the test.
16:43
Speaker 1: In this case, the l SAT wasn't functioning as a
16:46
Speaker 1: test of ability, which is what it's supposed to be.
16:50
Speaker 1: It seemed like it was a test of gender. Which
16:52
Speaker 1: it's not supposed to be, so they threw the question out.
16:56
Speaker 1: When I talked to psychometricians outside the legal world, they
17:00
Speaker 1: were unanimous in their praise of the l SAT. It
17:02
Speaker 1: was like talking to auto mechanics about a Porsche. Mechanics
17:06
Speaker 1: love Porsches, and if I had let them, I feel
17:09
Speaker 1: those three on the panel would have happily talked about
17:11
Speaker 1: their sports car for hours, the engine, the steering, the acceleration.
17:16
Speaker 1: But Camille and I had just two days earlier taken
17:20
Speaker 1: Nielsat and what I really wanted to know was why
17:23
Speaker 1: would these guys building a sports car? I mean, why
17:27
Speaker 1: go so fast? Why not just build a really good minivan.
17:30
Speaker 9: So we know in law school that doing the work efficiently,
17:36
Speaker 9: being able to handle the reading load and handle the
17:39
Speaker 9: amount of analysis that's required in a certain amount of
17:43
Speaker 9: time is relevant.
17:44
Speaker 1: Lily Nissovich takes up the cause.
17:47
Speaker 9: Research requirements on any redesign of the test is to
17:51
Speaker 9: make sure that if you're changing the timing or the
17:53
Speaker 9: number of questions that you're asking the given amount of time,
17:56
Speaker 9: that you go back to square one and make sure
17:59
Speaker 9: it predicts.
18:01
Speaker 1: We're now one hour and fourteen minutes into the presentation.
18:05
Speaker 1: I can't hold back any longer.
18:06
Speaker 4: So you've been talking about efficiency, Bret. I was trying
18:09
Speaker 4: to be more You guys stop me from being efficient.
18:14
Speaker 1: I had just been through the experience of finishing the
18:17
Speaker 1: first section of the el SAT with time to spare,
18:19
Speaker 1: and then running away out of time on the last
18:21
Speaker 1: logic section.
18:22
Speaker 4: The efficient way for me to take the test would
18:24
Speaker 4: be to speed up on the things that I was
18:27
Speaker 4: really good at and then use that time on the
18:30
Speaker 4: things I needed more time on. That's how efficient people work, right,
18:34
Speaker 4: But you wouldn't let me be efficient. I was told
18:37
Speaker 4: seventeen times you cannot look ahead at the next section.
18:41
Speaker 4: Why I sat there for ten minutes after the first one?
18:44
Speaker 1: Okay, so I'm getting a little bit worked up, But
18:47
Speaker 1: remember I'm under tremendous pressure to beat Camille on the
18:51
Speaker 1: l SAT and all this time she's sitting right next
18:54
Speaker 1: to me, all smug and complacent, like she was doing
18:57
Speaker 1: logic games in her head just for fun.
19:00
Speaker 4: I was like, why can't I look at the next one?
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Speaker 4: I'm trying to be efficient. You're not letting me, I mean.
19:04
Speaker 9: Because then you'd be giving get more time for that
19:06
Speaker 9: next section than the first. And next day or the
19:08
Speaker 9: first t who was the one the people who took
19:12
Speaker 9: the question when it was gone through all these levels.
19:14
Speaker 4: Of being efficient in law school is about time management, right.
19:19
Speaker 4: It is about doing things you can do it really
19:22
Speaker 4: quickly quickly and using that extra time to If I'm
19:25
Speaker 4: a a fast reader but a slow writer, then it
19:31
Speaker 4: can you know, I have a different balance. And if
19:33
Speaker 4: I'm a fast writer and a slow reader.
19:36
Speaker 1: I don't get the sense that I'm making any headway.
19:39
Speaker 4: So my question is, why are you forcing us all
19:41
Speaker 4: to do every skill in thirty five minutes? If human
19:44
Speaker 4: beings are everyone in that room I took it with
19:46
Speaker 4: had a different set of skills, but you're why are
19:50
Speaker 4: you pushing us all into the same cookie cutter.
19:59
Speaker 10: It's a standardized test.
20:01
Speaker 9: I guess timing is one of the features of the standardization,
20:05
Speaker 9: and we can do research on what you're saying.
20:07
Speaker 10: But have you well, we've done research on the timing
20:12
Speaker 10: of the questions before they were ever introduced.
20:15
Speaker 9: Many how long it takes for people to do this
20:18
Speaker 9: number of questions reasonably well to get your optimal score?
20:24
Speaker 10: Is it necessarily to try every question? So some students
20:28
Speaker 10: to get a better score.
20:30
Speaker 9: By spending more time per question and then leaving to
20:34
Speaker 9: you skipping a few than by trying every question. Some students'
20:38
Speaker 9: best strategy is to try every question, so we advise
20:42
Speaker 9: them to experiment on themselves when they're practicing and see
20:45
Speaker 9: what that's the best strategy.
20:47
Speaker 4: But that's the only reason you need to have those
20:51
Speaker 4: strategies is because you have this arbitrary time constraint.
20:54
Speaker 10: Right, I just take a suit with the arbitrary.
20:57
Speaker 1: Am I being obnoxious? Maybe I am. It's like I've
21:01
Speaker 1: gone to push a head coaters and strictgart and I'm
21:04
Speaker 1: badgering them about why they aren't building something with sliding
21:06
Speaker 1: doors in third row seating. I don't know. Doesn't it
21:10
Speaker 1: strike you that they should have at least thought about
21:12
Speaker 1: this a bit more?
21:13
Speaker 4: I mean you you started by going through a really
21:17
Speaker 4: elegant description about how much care you take to make
21:20
Speaker 4: sure tests do not have some element of cultural or
21:25
Speaker 4: uh you know, group unfairness, which I thought was super interesting.
21:30
Speaker 4: But now you just you. But you simultaneously have imposed
21:35
Speaker 4: a system which which discriminates against someone who, for example,
21:38
Speaker 4: is a slow reader. You're You're, on the one hand,
21:41
Speaker 4: beautifully sensitive to the notion that the test might be
21:44
Speaker 4: disadvantaging a certain kind of person. But in this, in this,
21:49
Speaker 4: in the same breath, you are completely insensitive to the
21:54
Speaker 4: kind of person who wants to take their time that
21:58
Speaker 4: will may be difficult. I'm just this is genuinely this
22:00
Speaker 4: was my question.
22:02
Speaker 10: You're so.
22:04
Speaker 9: To provide the information the test, does we have to
22:06
Speaker 9: do it in the standardized way you're suggests is a
22:10
Speaker 9: different approach to these.
22:11
Speaker 10: Tests, And we couldn't, of course do that. Willy nilly.
22:19
Speaker 1: They'll tinker and rewrite and rethink and restructure the questions,
22:24
Speaker 1: but not the format. No, that's willy nilly. The thirty
22:28
Speaker 1: five minute time limits on each section are cast in stone.
22:33
Speaker 1: Why they cast in stone because the job of the
22:36
Speaker 1: l set is to make it easier for law schools
22:39
Speaker 1: to decide which students to admit. And what would have
22:43
Speaker 1: happened if I had been able to carry over my
22:45
Speaker 1: extra time, or if that thirty five minutes was turned
22:49
Speaker 1: into forty five minutes, I would have scored higher, so
22:53
Speaker 1: would have lots of other tortoises. Give tortoises an extra
22:56
Speaker 1: ten minutes and suddenly some of them catch up to
22:59
Speaker 1: the hairs. But then what is that done? Now it's
23:03
Speaker 1: harder for law schools to decide which students to admit.
23:08
Speaker 1: Back I was preparing for the l SAT over at
23:11
Speaker 1: the ed tech company Noodle, I asked their experts to
23:14
Speaker 1: game this out. One of the Noodle guys, Fritz Stewart, said,
23:18
Speaker 1: you could relieve the time pressure for a significant number
23:21
Speaker 1: of tortoises if you extended the l SAT to one
23:24
Speaker 1: hundred and twenty five percent of its current length.
23:27
Speaker 4: If we did win to one hundred and twenty five percent,
23:29
Speaker 4: So what specifically we do it.
23:30
Speaker 11: What it's going to do is it's gonna screw with
23:33
Speaker 11: their lovely normed Bell curve.
23:36
Speaker 2: Right.
23:36
Speaker 11: It's really subversive in a way. What Fritz is trying
23:39
Speaker 11: to do is destroy law school admissions in a good web.
23:42
Speaker 1: That's Dan Edmonds, another Noodle guy. What he means is
23:46
Speaker 1: this Right now, over one hundred thousand people take the
23:49
Speaker 1: l set every year. The results fall on a Bell curve.
23:52
Speaker 1: Of course, the ninetieth percentile is right around one sixty
23:56
Speaker 1: four out of one hundred and eighty. The top schools
23:59
Speaker 1: are all mostly drawing from the pool above the one
24:01
Speaker 1: hundred and sixty seven mark. But if the test allows
24:05
Speaker 1: the tortoises to score higher, then suddenly the number oh,
24:09
Speaker 1: one hundred and sixty seven would balloon, the bell curve
24:13
Speaker 1: goes to hell in a handbasket.
24:14
Speaker 11: And the law schools would have to make admissions about
24:16
Speaker 11: something other than just the l SAT score, Because currently
24:19
Speaker 11: law school admissions is about seventy percent year l SET score,
24:22
Speaker 11: about thirty percent year grades, and that leaves pretty much
24:25
Speaker 11: zero percent for any other considerations. So if you take
24:28
Speaker 11: that pressure off, you're suddenly maybe tripling your number of
24:32
Speaker 11: qualified applicants for a lot of these top programs, and
24:35
Speaker 11: they're going to have to do the work of actually
24:37
Speaker 11: figuring out something other than a test to decide who
24:40
Speaker 11: gets into their school.
24:41
Speaker 1: Now that raises the question of why we don't just
24:44
Speaker 1: make the l set harder, lift the time pressure, and
24:47
Speaker 1: compensate by making the questions much tougher so we get
24:51
Speaker 1: our nice, beautiful bell curve back. But now all we're
24:54
Speaker 1: doing is we're privileging the tortoises over the hairs. Now
24:58
Speaker 1: the Jeff Sutton's of the world get a perfect score,
25:00
Speaker 1: go to Harvard Law School, and Justice Scalia breathes a
25:03
Speaker 1: sigh of relief. Except if you do it that way,
25:07
Speaker 1: the hairs get discouraged because they can only get into
25:09
Speaker 1: American university, where there's seventy seventh in the country, and
25:12
Speaker 1: when Supreme Court justices come to visit, they tell the
25:15
Speaker 1: students they have no chance. Why is this better? We
25:19
Speaker 1: need hairs too. If you're an investment bank trying to
25:22
Speaker 1: close an incredibly complicated deal in forty eight hours, where
25:25
Speaker 1: the lawyers have to all read a thousand pages in
25:27
Speaker 1: a day, maybe you want a hair. The law needs
25:31
Speaker 1: tortoises and hairs. We have now arrived at the absurdity
25:37
Speaker 1: of American meritocracy. Of course, the whole reason that people
25:41
Speaker 1: obsess over their LST score is that there are a
25:43
Speaker 1: small number of law schools that everyone wants to get into.
25:47
Speaker 1: The top fourteen. The prestigious law firms basically only higher
25:51
Speaker 1: from the top fourteen, and the top fourteen only have
25:54
Speaker 1: room to admit forty five hundred students a year. In total,
25:58
Speaker 1: fifty three thousand people are competing for forty five hundred slots.
26:02
Speaker 1: It's crazy. I'm a graduate of the University of Toronto.
26:06
Speaker 1: All Canadians will tell you that the University of Toronto
26:09
Speaker 1: is their most prestigious, most elite, world class university. Do
26:14
Speaker 1: you know how many undergraduates attend the University of Toronto? Ready?
26:18
Speaker 1: Remember this is the elite school in a country of
26:22
Speaker 1: just thirty five million people. And just to orient yourself,
26:26
Speaker 1: Harvard University, the most elite school in a country of
26:30
Speaker 1: three hundred and thirty million people, has a total undergraduate
26:34
Speaker 1: enrollment of six thousand, six hundred and ninety nine. Ready,
26:39
Speaker 1: the best school in Canada has seventy thousand, eight hundred
26:44
Speaker 1: and ninety undergraduates. Now, how about the University of British Columbia,
26:49
Speaker 1: our second crown jewel fifty two thousand, seven hundred and
26:53
Speaker 1: eleven undergraduates. What about McGill University in Montreal? I always
26:58
Speaker 1: wished I went to McGill Intimate, elite, exclusive. McGill has
27:03
Speaker 1: twenty seven thousand, six hundred and one undergraduates. Do you
27:07
Speaker 1: see how genius this is? We have elite schools in Canada,
27:12
Speaker 1: but we don't spend enormous amounts of time devising elaborate
27:16
Speaker 1: tests to arbitrarily limit the number of people who can
27:19
Speaker 1: attend those elite schools. We just made the schools bigger. Honestly,
27:25
Speaker 1: how hard is this? This whole revisionist history project on
27:37
Speaker 1: The LSAT began when I ran across a paper on
27:41
Speaker 1: SSRN by a guy named William Henderson. We met him
27:45
Speaker 1: in the previous episode, the former firefighter from Cleveland who
27:48
Speaker 1: now teaches law at Indiana University. Well, Henderson told me
27:53
Speaker 1: to call a friend of his named Evan Parker. They
27:56
Speaker 1: worked together. I don't know if you've ever read Michael
27:59
Speaker 1: Lewis's famous book Moneyball, about the analytics nerds who took
28:03
Speaker 1: over baseball. They went in with their advanced statistics and
28:07
Speaker 1: told the old school scouts, you know you're picking the
28:10
Speaker 1: wrong players. Parker does moneyball for law firms.
28:15
Speaker 4: You mentioned Moneyball earlier. It really is moneyball.
28:19
Speaker 12: Yeah, it is one hundred percent.
28:21
Speaker 1: Parker's young, cerebral, very proper in a suit tie briefcase.
28:26
Speaker 1: He's not messing around. I said at the beginning that
28:29
Speaker 1: I was going to offer you a grand, unified theory
28:31
Speaker 1: of how to fix higher education. I'm almost there. Parker
28:35
Speaker 1: analyzes who the successful people are at any law firm,
28:39
Speaker 1: and then works backwards and asks is the firm hiring
28:43
Speaker 1: the kind of law school graduate who is most likely
28:45
Speaker 1: to become a good lawyer. He has multiple data points, regressions, algorithms,
28:51
Speaker 1: and he finds they don't hire the right kind of
28:54
Speaker 1: law school graduate.
28:55
Speaker 12: What is the inefficiency that it's the perfect word, is
28:59
Speaker 12: a market inefficiency.
29:00
Speaker 1: Firms have plenty of information about prospective hires, resume grades,
29:05
Speaker 1: law school work, experience, but Parker finds they don't know
29:09
Speaker 1: how to make sense of it. People go for a
29:11
Speaker 1: shortcut instead.
29:12
Speaker 12: You end up selecting people who are like you, not
29:16
Speaker 12: people who are like the successful attorneys at your firm.
29:20
Speaker 12: You know, my colleague is called it the mirror toocracy, right.
29:24
Speaker 1: The mirror toocracy. People who remind us of ourselves. At
29:28
Speaker 1: the standard law firm interview, a partner sits down with
29:31
Speaker 1: a second year law school student, and then that partner
29:34
Speaker 1: rates the candidate. What is the correlation between that rating
29:39
Speaker 1: and how well the candidate actually does when they get hired.
29:43
Speaker 1: Parker analyzes the data.
29:44
Speaker 12: It was essentially a coin flip. So someone says, you know,
29:48
Speaker 12: you're this person's great, or they say this person's here.
29:51
Speaker 12: That really doesn't tell you anything about how they're actually
29:53
Speaker 12: going to do with retention. It was actually negative, so
29:56
Speaker 12: that those who are getting higher individual scores are actually
29:59
Speaker 12: less likely to stay.
30:00
Speaker 1: Parker's method is to try and systematize what a law
30:04
Speaker 1: firm wants so that when they interview someone they know
30:07
Speaker 1: what to ask.
30:08
Speaker 12: I probably wouldn't say too much because I can't give
30:10
Speaker 12: it all the way. But what we can do is
30:12
Speaker 12: think of proxies for certain types of behavior. So blue
30:17
Speaker 12: collar worker experience, what happens if you have that in
30:19
Speaker 12: your background. I mean, that's a mixed bag. It could
30:22
Speaker 12: be a lot of things. But if you have that
30:24
Speaker 12: background and you've also gone on to succeed and graduate
30:28
Speaker 12: law school and perform well, that is to us a
30:33
Speaker 12: signal of something meaningful right. And so at certain firms
30:37
Speaker 12: you will see blue collar work experience as being one
30:39
Speaker 12: of the most I think positive and significant factors under
30:44
Speaker 12: the all l SQL conditions.
30:47
Speaker 1: What makes for a good lawyer is complicated. It differs
30:51
Speaker 1: from law firm to law firm, job to job, situation
30:53
Speaker 1: to situation. You need algorithms and data to make sense
30:57
Speaker 1: of it. And now we come to the heart of
31:00
Speaker 1: the issue.
31:00
Speaker 12: Some of the ones that are more I think surprising
31:03
Speaker 12: the firms are the things that don't matter.
31:05
Speaker 1: What doesn't matter Wait for it, well, where you.
31:10
Speaker 12: Went to law school, it doesn't matter at all. You
31:14
Speaker 12: know at all, Yeah, it's essentially a random predictor.
31:18
Speaker 4: So does it not matter within T fourteen or does
31:21
Speaker 4: it not matter?
31:22
Speaker 12: Well, it really doesn't matter.
31:26
Speaker 1: If you go on the website of any hotshot law firm,
31:29
Speaker 1: they have a picture of every one of their attorneys,
31:32
Speaker 1: and next to the picture, they'll tell you where that
31:34
Speaker 1: person went to law school, so they can boast about
31:36
Speaker 1: how they never hire from Ohio State and American University.
31:40
Speaker 1: That's how much the profession is obsessed with law school pedigree.
31:44
Speaker 1: But what does the moneyball guy, the quant who has
31:47
Speaker 1: run the numbers tell us, really doesn't matter.
31:53
Speaker 12: And we like to sort of represent results visually, and
31:55
Speaker 12: so we'll have this baseline line and essentially, you know,
31:59
Speaker 12: what's to the left is sort of a negative predictor
32:01
Speaker 12: what's to the right as a positive. And you know,
32:04
Speaker 12: it's almost uniformly the case that this T fourteen falls
32:08
Speaker 12: right on that, which is say, it's just an insignificant factor.
32:12
Speaker 4: Really, yeah, that's kind of fantastic. Maybe fantastic is the
32:17
Speaker 4: wrong word. Infuriating is a better word.
32:21
Speaker 1: This whole process begins with the L set, which is
32:24
Speaker 1: based on the idea that a certain kind of thinking
32:27
Speaker 1: is valuable for legal education. And we know that's tricky
32:31
Speaker 1: because it's not exactly clear why that certain kind of
32:34
Speaker 1: thinking is so much more important than other kinds of thinking.
32:37
Speaker 1: But whatever, for a separate set of idiosmocratic reasons. America
32:42
Speaker 1: only has so many places at the top. So those
32:46
Speaker 1: who excel at that certain kind of thinking get into
32:49
Speaker 1: the top law schools, and those who get into the
32:51
Speaker 1: top law schools get hired by the top law firms.
32:54
Speaker 1: And then what do we find when you look at
32:57
Speaker 1: who succeeds at those top law firms which hire in
33:00
Speaker 1: the basis of which law school you went to, which
33:02
Speaker 1: in turn select on the basis of whether you're good
33:04
Speaker 1: at that certain kind of thinking, you find where you
33:07
Speaker 1: went to law school doesn't matter the whole Daisy chain
33:12
Speaker 1: el sat law school, law firm. We made it all up.
33:18
Speaker 1: Evan Parker once did a special study on rain makers,
33:21
Speaker 1: the people who are really good at bringing in new
33:23
Speaker 1: business for a law firm. Law firms cannot survive without
33:27
Speaker 1: rain makers.
33:27
Speaker 12: And I was struck in doing that work. How many
33:32
Speaker 12: of the individuals in our study went to law schools
33:34
Speaker 12: that I've never even heard of, right, or they went
33:37
Speaker 12: to night school to get their law degree.
33:39
Speaker 1: Night school, and law schools you've never heard of. So
33:43
Speaker 1: what should we do about this absurdity? It is now
33:46
Speaker 1: time for Malcolm Gladwell's grand unified theory of how to
33:51
Speaker 1: fix higher education. Ready, don't ask, don't tell. We make
33:57
Speaker 1: a rule prospective employers cannot ask, and prospective employees cannot
34:03
Speaker 1: disclose the name of the educational institutions they attended and
34:09
Speaker 1: still go to Harvard if you want, spend a small
34:11
Speaker 1: fortune on tutoring for the l set so that when
34:14
Speaker 1: you sit down in that classroom you can be the
34:16
Speaker 1: very speediest hair you can be. But the minute you
34:19
Speaker 1: leave Harvard you have to shut up about it. Silence.
34:23
Speaker 1: Harvard's over, and employers can't use it as a shortcut
34:27
Speaker 1: for who to hire because it's not helping them, and
34:30
Speaker 1: they can't post it on their websites. While we're at it,
34:34
Speaker 1: By the way, let's do don't ask, don't tell for
34:37
Speaker 1: all hiring. When you think about choosing a school, you
34:40
Speaker 1: should be thinking about where you can get the best
34:43
Speaker 1: education for you and where you will be happy. You
34:47
Speaker 1: shouldn't be making some complicated calculation about the brand value
34:51
Speaker 1: of your college in the workplace, and neither should the
34:55
Speaker 1: Supreme Court.
34:57
Speaker 2: So I can't afford a miss. I just can't. So
35:01
Speaker 2: I'm going to be picking from the law schools that
35:04
Speaker 2: basically are the hardest to get into.
35:07
Speaker 1: So this is what Justice Scalia could have said. He
35:11
Speaker 1: could have said in answer to Christinastet's question. I care
35:14
Speaker 1: about people who can think deeply about consequential issues, who
35:18
Speaker 1: know how to read slowly, who are hungry enough to
35:21
Speaker 1: work on problems around the clock. I had a clerk
35:24
Speaker 1: once named Jeff Sutton who was all those things and more.
35:28
Speaker 1: And I guess what I'm looking for is another Jeff Sutton,
35:31
Speaker 1: another giant tortoise. And if you're concerned about the fact
35:35
Speaker 1: you go to Washington College of Law or Ohio State
35:38
Speaker 1: because your l SAT score wasn't high enough, remember I
35:42
Speaker 1: don't care where you went to law school, because I
35:45
Speaker 1: consider it my responsibility, as a gatekeeper in a meritocracy
35:50
Speaker 1: to select people based on their fit and their ability,
35:53
Speaker 1: and not on their skill at answering twenty five questions
35:57
Speaker 1: in thirty five minutes something like that. It's not a
36:02
Speaker 1: hard thing to say, right. I'm here with Camille Baptista,
36:10
Speaker 1: my assistant with whom I went Mono Mono on the
36:14
Speaker 1: l SAT. Three weeks ago, and Jacob Smith is also
36:20
Speaker 1: with us. This is the moment of unveiling. We have
36:24
Speaker 1: h Camille was has gotten the email from the law
36:27
Speaker 1: school missions council.
36:30
Speaker 10: We're gonna start with my score.
36:31
Speaker 12: Okay, okay, oh okay, nice, okay.
36:39
Speaker 6: All right, all right, all right, this is Malcolm score.
36:44
Speaker 4: Wait what what?
36:46
Speaker 8: I can't believe it? Go back to yours for a second.
36:52
Speaker 4: Yeah, we tied.
36:55
Speaker 1: We got the same score. And I know you want
36:58
Speaker 1: to know what the score is. But trust me, that
37:01
Speaker 1: way lies only bitterness and illusion. Don't ask, don't tell m.
37:14
Speaker 4: That is okay, the sweetest poetic justice.
37:19
Speaker 2: You know.
37:20
Speaker 4: We began this whole process back in January, and it
37:23
Speaker 4: was the whole question was whether my years of savvie
37:27
Speaker 4: experience would be offset by my years of cognitive decline,
37:31
Speaker 4: and whether.
37:32
Speaker 1: Camille Camille, the swiftness and brightness and newness of her brain,
37:39
Speaker 1: would overcome her lack of of real life experience and.
37:42
Speaker 4: Turns out as a wash. I think this outcome is
37:46
Speaker 4: absolutely beautiful and delightful.
37:49
Speaker 10: I think next season you guys should, as a stunt,
37:52
Speaker 10: both go to law school.
37:55
Speaker 4: Science name of science.
38:01
Speaker 1: Revisionist History is produced by me LaBelle and Jacob Smith
38:05
Speaker 1: with Camille Baptista. Our editor is Julia Barton. Lawn Williams
38:10
Speaker 1: is our engineer. Fact checking by Beth Johnson. Original music
38:14
Speaker 1: by Luis Kira. Special thanks to Carl Migliore, Heather Fein,
38:19
Speaker 1: Maggie Taylor, Maya Kanig, and Jacob Weisberg. Revision's History is
38:25
Speaker 1: brought to you by Pushkin Industries. I'm Malcolm Gladwell.
38:36
Speaker 8: Okay, Malcolm your March twenty nineteen ELSA score is the
38:41
Speaker 8: percentile rank is