The Tortoise and the Hare

Jun 27, 2019

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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April 24th 2009 the late Supreme Court Justice Antonin Scalia is speaking at American universities Washington College of Law thank you thank you very much Professor Marcus Dean Grossman ladies and gentlemen

I began one of one of my either talks or law review article the students are all dressed up for the occasion C-SPAN is recording as 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 gripping the podium like at the slab of beef murder administrative law is not for sissies it is a very difficult course to teach and I assume certainly wasn't my day a hard hard course to master its vintage Scalia the audience hangs on his every word he finishes triumphantly then hands shoot in the air good afternoon my name is Christina said I'm a 1l student here at wcl Christina stud first-year student have a more general question and that is the part of American the American

those is that our society is a meritocracy where hard work and talent lead to success but there are other important factors like connections and Elite degrees and I'm wondering other than grades a journal what do smart hardworking wcl students with strong writing skills need to do to be so outrageously successful in the law what does it take to be outrageously successful in the law ha ha ha

just work hard and be very good I'll talk to you story

my name is Malcolm Gladwell you're listening to revisionist history my podcast about things overlooked and misunderstood this episode is part 2 of my examination of the bizarre things legal profession does to pick its best and brightest in part 1 which if you haven't listened 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 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 by and large unless I 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 that basically there are the hardest to 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 parse the meaning and implication of scalia's statement

a student at American universities Washington College of Law a law school that US News and World Report ranked 77th 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 asking him would it be possible to be one of his clerks and he answers you go to American universities 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 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 is and now sits on the sixth Circuit Court of Appeals Jeff Sutton I always refer to him as one of my former look wasn't one of my former look 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 would

Ohio Jeff Sutton for God's sake he went to Ohio State

and he's one of the very 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 think we're not thank you very much thank you

oh we're not done We've Only Just Begun

tell me why you decided to go to law school

whoa so law school was a third choice First Choice was teaching I was a teacher and 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 Antonin Scalia ever had Foreign Service was Choice 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 to Ohio state law school well it was a pretty complicated decision I applied to to law schools Ohio State and Michigan I got into one of them and I ended up enrolling at the one I got into oh I see that was it was the 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

then was a little humbling but we got over it I didn't ask judge Sutton what is LSAT score was but we can do the math

Michigan is part of the elite group of law schools known as the T14 the top 14 Yale Stanford Harvard University of Chicago Columbia all the big ones Ohio state is not among the T14 the median LSAT 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 LSAT is not a test of someone's ability to solve difficult problems it's a test of someone's ability to solve difficult problems quickly it is five sections of 20 to 25 questions and you have a hard limit of 35 minutes for each section you have to rush as one else at to turtle be the test favors those capable of processing without understanding it favors hair's not tortoises so what's Jeff Sutton well he's clearly brilliant

he was the Ohio state solicitor in the 1990s and wild the Supreme Court with his arguments on a number of cases his most recent work of legal scholarship is titled 51 imperfect Solutions States and the making of constitutional law the New York Review of Books felt they had to get a retired Supreme Court Justice to review it there are lots of very serious people in fact who thinks 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 LSAT 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 Galapagos that's five feet long so Sutton graduates from Ohio state gets a job clerking for a federal judge then a job cooking 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 you just get a sense of this incredible passion for the law and that is just intoxicating and that that is what really changed things and that year I can't 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 coaching Columbus now he's working with one of the greatest legal Minds in the country and he does such a good job that 17 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 it toward us do so well working for the Supreme Court I asked my fanciest legal friend tally for hardian 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 hmm what is working on a Case mean well we worked on two kinds of cases the first kind is What's called the cert pool the thousands of petitions 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 many would you get into the pool yeah so that in that case it 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 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 continued to read similar documents

a pencil in my hand which is not how I would read for pleasure where nonfiction or fiction slower or faster much slower much lower yes how much slower

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 whose 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 everybody will tell you this when a case comes to the Supreme Court you know a case that's really ready for review at 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 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

and was 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 would the time that would elapse what's the time that would lapse from when you were given the case to when you have when you are finished with your contribution was finished

I don't remember I mean I want to say a couple 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 to judge Sutton he brought them up in a law is very much a tortoise the tortoise wind 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 the tortoises that go to the state schools better stay being a tourist 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 hair and even as he says that he concedes that one of the best of his former clerks was a tortoise who also did not shine to the test that measured his

guilty to be a hair 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 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 I took the LSAT we took the train to Newtown Pennsylvania to the headquarters of the law school admissions Council this is the group that for the past 70 years has created and administered the LSAT they operate out of a two-story red brick building in an office Park big Atrium very 80s we were ushered into a conference room on the second floor where a row of test experts psychometrician 's were waiting for us you have to arrive at the test center 8 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 the LSAT takes 36 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 hard 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 Weisman the question text is actually on the second page it starts off Thomas Tompkins 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 are otherwise doing really well on that section Were Somehow tripping up on this particular question and the equivalent group of male high scores were overwhelmingly getting it right so here we have almost 2 x male versus not on well almost twice as many emails as women as females got this question correct

right so if you that is that is already in the 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 LSAT wasn't functioning as 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 talk to psychometricians outside the legal World they were unanimous in their Praise of the LSAT it was like talking to auto mechanics about a Porsche mechanics love Porsches and if I had let them I feel those three on the panel would have happily talked about their sports car for hours the engine the steering the acceleration

but Camille and I had just two days earlier taking the LSAT and what I really wanted to know was why would these guys building a sports car I mean why go so fast why not just build a really good minivan so we know in law school that doing 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 needs of each 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 a given amount of time that you go back to square one and make sure it predicts we're now one hour and 14 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 stop me from being efficient

I had just been through the experience of finishing the first section of the LSAT with time to spare and then running way out of time on the last logic section the efficient way for you 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 work right

but you wouldn't let me be efficient I was told 17 times you cannot look ahead at the next section why I set it for 10 minutes after the first one okay so I'm getting a little bit worked up but remember I'm under tremendous pressure to be Camille on the LSAT 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 I'm being trying to be efficient you know letting me I mean because then you'd be giving get more time for that next section than the person next to you 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 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 II have a different balance and if I'm a

Strider 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 35 minutes if human beings are everyone in that room I took it with had a different set of skills but your why you pushing us all into the same cookie cutter

anyone else it's a standardized test I guess standard it timing is one of the features of the standardization and 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 is it necessarily to try every question so some students

to get a better score by spending more time for question and then leaving to skipping a few then 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 it's the best strategy but that that's the only reason you need to have those strategies is because you have this arbitrary time constraint right all right I just take issue with the arbitrary am I being obnoxious maybe I am it's like I've gone to Porsche headquarters in strict guard and I'm badgering them about why they aren't building something with sliding doors and third row seating but I don't know doesn't it strike you that they should 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 Tes do not have some element of cultural or you know group unfairness

which I thought was super interesting but now you've just you've put you simultaneously have a impose a system which disk which discriminates against someone who for example the slow reader you're on the one hand beautifully sensitive to the notion of the test might be disadvantaging a certain kind of person but in the in the in the same breath you are completely insensitive to the kind of person who wants to take their time

metal may be difficult I'm just this is genuine and this was my question can test your so

to run information the test does we have to do a thing with standardized way yeah you're suggesting is a different approach to these tests and we couldn't of course do that willy-nilly build tinker and rewrite and rethink and restructure the questions but not the format no that's willy-nilly the 35-minute time limits on each section are cast in stone why they cast in stone because the job of the LSAT is to make it easier for law schools to decide which students to admit

and what would have happened if I had been able to carry over my extra time or if that 35 minutes was turned into 45 minutes I would have scored higher so would have lots of other tortoises give tortoises an extra 10 minutes and suddenly some of them catch up to the hairs but then what does that done now it's harder for law schools to decide which students to admit back when I Was preparing for the LSAT 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 LSAT to a hundred and twenty-five percent of its current length if we did went to a hundred twenty five percent so what specifically we do it what it's going to do is it's going to it's going to screw with their lovely normed bell curve right it's really subversive in a way he's what Fitz is trying to do is destroy law school admissions if it were

that's Dan admins another noodle guy what do you mean this is this right now over a hundred thousand people take the LSAT every year the results fall on a bell curve of course the 90th percentile is right around 160 four out of a hundred and eighty the top schools are all mostly drawn from the pool above the 167 mark But if the test allows the tortoises to score higher then suddenly the number over a hundred and sixty-seven would balloon the bell curve goes to hell in a handbasket and the law schools would have to make admissions about something other than just the LSAT score because currently law school admissions is about 70% Your LSAT score about 30% your grades and that leaves pretty much zero percent for any other considerations so if you take that pressure off your suddenly maybe tripling your number of qualified applicants for a lot of these top programs and they're going to have to do the work of actually figuring out something other than a test to decide who gets into their school now

raises the question of why we don't just make the LSAT 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 the hairs now the Jeff Sutton's of the world get a perfect score go to Harvard Law School and Justice 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 whether 77th in the country and when Supreme Court Justices come to visit they tell the students they have no chance why is this better we need hairs to if you're an investment bank trying to close an incredibly complicated deal in 48 hours with a 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 reason that people obsess over their LSAT score is that there are a small number of law schools that everyone wants to get into the top 14 the prestigious law firms basically only hire from the top 14 and the top 14 only have room to admit 4,500 students a year in total 53,000 people are competing for 4500 slots it's crazy I'm 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 35 million people and just to orient yourself Harvard University the most elite school in a country of 330 million people has a total undergraduate enrollment of 6699

ready the best school in Canada has 70,000 890 undergraduates now how about the University of British Columbia our second Crown Jewel 50 2711 undergraduates what about McGill University in Montreal I always wished I went to McGill intimate Elite exclusive McGill has 20 7601 undergraduates do you see how genius this is 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 school's bigger honestly how hard is this

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this whole revisionist history project on the LSAT 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 work together I don't 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 but earlier it really is Moneyball yeah it is 100% Parker's young 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 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 efficiency that's this is the perfect word is a market inefficiency firms have plenty of information about prospective hires resume grades law school work experience but Parker finds they don't know 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 view my colleague is called it the mirror autocracy right the mirror talk recei people who remind us of ourselves at the standard law 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 is essentially a coin flip so someone says your this person's great or they say this person several that really doesn't tell you anything about how they're actually going to do was retention it was actually negative so that those who are getting higher individual scores or actually less likely to stay Parker's method is to try and systematized 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 away yeah but what we can do is think of proxies for certain types of behavior right so blue collar work experience what happens if you have that in your background I mean that's a mixed bag could be a lot of things but if you have that background and you've also gone on to succeed and graduate law school and perform well that that is to to us a signal of something meaningful right and so at certain firms you will see blue collar work experience to be one of the most positive

and and significant factors under the all else 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 and now we come to the heart of the issue some of the ones that are more I think surprising two forms of the things that don't matter what does it matter wait for it well where you went to law school doesn't matter at all you know it all yeah it's essentially a random predictor so is it not matter within T14 or does it not matter well it really doesn't matter

if you go on the website of any Hotshot 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 an American University that's how much the profession is obsessed with law school pedigree but what does the Moneyball guy the Quant who was run the numbers tell us really doesn't matter and we like to sort of represent results visually and so have this Baseline line and essentially you know what's to the left is sort of a negative predictor what's to the right is a positive and you know it's almost uniformly the case that this T14 Falls right on that dot which is say it's just an insignificant Factor really yeah this kind of fantastic maybe fantastic is the wrong word infuriating is a better word

this whole process begins with the LSAT which is 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 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 higher 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 went to law school doesn't matter the whole daisy chain else at Law School Law Firm we made it all up

Kevin 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 rain makers and I was struck in doing that work how many of the individuals in our study which a 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 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 you can still go to Harvard if you want spend a small fortune on tutoring for the LSAT so that when you sit down in that classroom you can be the very speediest hair you can be

but the minute you leave Harvard you have to shut up about it silence Harvard's over

and employers can't use it as a shortcut for who to hire because it's not helping them and they can't post it on their websites while we're at it by the way let's do 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

another should the Supreme Court

I can't afford a Miss I just can't so I'm going to be picking from the law schools that that basically the are the hardest to get into so this is what Justice Scalia could have said he could have said in answer to Christina stets question I care about people who can think deeply about consequential issues who know how 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 LSAT score wasn't high enough remember I 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 feet and their ability and not on their skill at answering 25 questions

ends in 35 minutes

something like that it's not a hard thing to say

alright I'm here with Camille Baptista my assistant with whom I went mano-a-mano on the LSAT 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 coming out so I start with my score okay okay

okay nice okay all right okay this is Malcolm score

wait what what I can't believe it we tied we got the same score and I know you want to know what the score is but trust me that way lies only bitterness and illusion don't ask don't tell

God is that is all right um okay the sweetest Poetic Justice we know we began this whole process back in January and it was the whole question was whether my years of Savvy and experience would be offset by my years of cognitive decline and whether commit Camille Camille the the swiftness and brightness and newness of her brain would overcome her lack of of real life experience and turns out it's a wash as to what I think this outcome is absolutely beautiful and delightful I think next season you guys should as a stun both go to law school name of science

revisionist history is produced by me labelled and Jacob Smith with Camille Baptista our editor is Julia Barton flan Williams is our engineer fact-checking by Beth Johnson original music by Luis Guerra special thanks to Carly migliori Heather Fain Maggie Taylor my akane egg and Jacob Weisberg revisionist history is brought to you by Pushkin Industries I'm Malcolm Gladwell

okay Malcolm your March 2019 LSAT score is

the percentile rank is

on July 10th 2015 a young woman named Sandra Bland was stopped by a police officer on a highway in rural Texas then everything went wrong I've written a book called talking to strangers it starts with that encounter but I didn't just write for the page I recorded an audio book as well a new kind of audio book that allows you to hear the voices of the people I talked to and come with me to the places I go because you shouldn't just listen to an audiobook you should experience it talking to strangers the audio experience available now wherever audio books are sold