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The Tortoise and the Hare

2019/6/27
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Revisionist History

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亚历克斯·韦斯曼
伊万·帕克
塔莉·法哈迪安
安东宁·斯卡利亚
杰弗里·萨顿
马尔科姆·格拉德威尔
著名加拿大作家、记者和播客主持人,知名于其深入研究和独特见解的畅销书和播客。
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安东宁·斯卡利亚:在选择最高法院法律书记员时,斯卡利亚法官强调了他倾向于选择来自顶级法学院的学生,因为他认为这些法学院的学生通常是最优秀和最聪明的。他认为,即使这些法学院的教学质量可能并非完美,但他们招收的学生本身就具备很高的素质,因此不太可能培养出差劲的毕业生。他还以杰夫·萨顿为例,说明即使来自非顶级法学院,只要能力足够优秀,也能获得成功。 杰弗里·萨顿:萨顿法官分享了他选择俄亥俄州立大学法学院的经历,这并非他的首选,但他被录取了,而他更想去的密歇根大学没有录取他。他认为,LSAT考试并不能完全衡量一个人的能力,他本人就是一个例子。 塔莉·法哈迪安:作为前最高法院书记员,法哈迪安强调了最高法院书记员工作对细致、缓慢阅读和分析案例的要求,因为案件的复杂性需要深入思考,而不能仅仅快速处理。 亚历克斯·韦斯曼:LSAT考试的题目经过严格的测试,以确保其难度和公平性。如果发现某个题目对不同群体(例如男性和女性)的结果存在显著差异,则会将其剔除。 马尔科姆·格拉德威尔:格拉德威尔对LSAT考试的计时机制提出质疑,认为它强迫所有考生在相同的时间内完成所有题目,这忽略了考生之间能力差异,不利于那些需要更多时间思考的考生。他认为,LSAT考试更侧重于快速解决问题的能力,而非深入理解问题的能力,这更偏向于“快”的人,而非“慢”的人。他提出,延长LSAT考试时间可以使那些需要更多时间思考的考生(“乌龟”)获得更高的分数,但这会打破现有的分数排名体系,迫使法学院不得不考虑其他因素来进行招生。他还提出“不要问,不要说”的方案,即雇主不应询问求职者就读的学校,求职者也不应主动透露,以打破精英学校的垄断地位。 卡米尔·巴蒂斯塔:卡米尔与马尔科姆一起参加了LSAT考试,并取得了相同的分数,这进一步说明LSAT考试并不能完全衡量一个人的能力。 伊万·帕克:帕克指出律师事务所的招聘存在市场低效性,他们往往会选择与自己相似的人,而不是那些最有可能成为优秀律师的人。就读于哪所法学院对律师的职业成功几乎没有影响。

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Malcolm Gladwell introduces his Grand Unified Theory for fixing higher education, inspired by Justice Scalia's advice to a law student.

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Take your business further at T-Mobile.com slash now. April 24th, 2009. The late Supreme Court Justice Antonin Scalia is speaking at American University's Washington College of Law. Thank you. Thank you very much, Professor Marcus, Dean Grossman. Ladies and gentlemen, uh,

I began one of my either talks or law review articles. The students are all dressed up for the occasion. C-SPAN is recording. There's a big stage hung with blue polyester drapes. Scalia holds forth. His black hair swept back from his forehead, glasses on his nose, strong and square, all intellectual heft and force, gripping the podium like it's a slab of beef. That administrative law is not for sissies.

It is a very difficult course to teach and I assume, certainly was in my day, a hard course to master. It's vintage Scalia. The audience hangs on his every word. He finishes triumphantly. Then hands shoot in the air.

Good afternoon. My name is Christina Stutt. I'm a 1L student here at WCL. Christina Stutt, first-year student. I have a more general question, and that is that part of the American ethos 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 and journal, what do smart, hard-working WCL students with strong writing skills need to do to be outrageously successful in the law? What does it take to

to be outrageously successful in the law. Just work hard and be very good. I'll tell you a story. My name is Malcolm Gladwell. You're listening to Revisionist History, my podcast about things overlooked and misunderstood. This episode is part two of my examination of the bizarre things the legal profession does to pick its best and brightest. ♪

In part one, which if you haven't listened 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 educations.

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 Studd. 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 basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can't make a sow's ear out of a silk purse. And if they come in the best and the brightest, they're probably going to leave the best and 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 University's Washington College of Law, a law school that U.S. News & World Report ranked 77th among all American law schools, is asking a question of a sitting justice of the U.S. 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 University's Washington College of Law. You have no chance of becoming one of my clerks. I only hire 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 this story is one of my former clerks who I am the most proud of now sits on the Sixth Circuit Court of Appeals, Jeff Sutton. I always refer to him as one of my former lawyers.

He wasn't one of my former law clerks. He was Lewis Powell's clerk. At the time, Lewis Powell was semi-retired from the Supreme Court. He had what's called senior status. So his law clerks worked mostly for other justices. But I wouldn't have hired Jeff Sutton, for God's sake. He went to Ohio State. And he's one of the very 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 as that. I think we're done. 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 Ohio State Law School? Well, it was a pretty complicated decision. I applied to two 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 get in was a little humbling. But we got over it. I didn't ask Judge Sutton what his 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 LSAT tutor told me, the test favors those capable of processing without understanding. It favors hares, not tortoises. So what's Jeff Sutton? Well, he's clearly brilliant. He was the Ohio State Solicitor in the 1990s and wowed 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 think Sutton deserves to be a Supreme Court justice himself one day. So Sutton is in the category of brilliant person who didn't do all that well on the 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 clerking on the Supreme Court. And in his year as clerk for Scalia, he thrives. The thing that really affects everybody who works with him is within weeks, you just get a sense of this incredible passion for the law and

And that is just intoxicating. And that is what really changed things. And that year, I can't emphasize enough how much I got out of that year. Not long before, Jeffrey Sutton had been a middle school teacher and track coach in Columbus. Now he's working with one 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 100 clerks. Jeff Sutton is the one he's proudest of. So why does a tortoise do so well working for the Supreme Court? I asked my fanciest legal friend, Tali Farhadian, who was a clerk on the court a few years after Sutton, for Justice Sandra Day O'Connor. If you were working on a case, what does 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 them into the pool. Yeah. So in that case, it would 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 means. Do you read the same way you read a work of nonfiction or a New Yorker article? Well, I always read them and I continue to read similar documents with a pencil in my hand, which is not how I would read for pleasure, whether nonfiction or fiction. But do you read slower or faster? Much slower. Much slower? 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. It is slow reading territory. And why is it so important to read slowly? Because the details matter and because the arguments are intricate. Yeah. And because the solutions are difficult. I mean, 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. You're kidding yourself if you think that it is. So you have to you have to think while you read. Yeah. 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. Farhadian 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 was the time that would elapse? What's the time that would elapse from when you were given the case to when you were finished, your contribution was finished? I don't remember. 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. You know, law is very much a tortoise. The tortoise beats the hare. And so the hares that go to the elite schools, they better slide into tortoise mode or it's not going to work out well for them. And the tortoises that go to the state schools better stay being a tortoise and stick with it.

So, let us recap. A sitting Supreme Court justice explains to a group of law school students that he will not consider them for a job that involves being a tortoise because they have failed to shine at a test that measures their ability to be a hare. And even as he says that, he concedes that one of the best of his former clerks was a tortoise, who also did not shine at a test that measured his ability to be a hare.

And when he presents this confounding bit of reasoning that manages both to stigmatize and disparage the entire audience, what does the audience do? Listen. I mean, this is bananas. This is like prisoners cheering the warden. I think you can see why we are in need of a grand unified theory to fix legal education. Attention, please. Now boarding on track 12E.

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, psychometricians, were waiting for us. 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 they're 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 Weissman. The question text is actually on the second page of

It starts off, "Thomas Tompkins, a Renaissance English composer, wrote in a musical style that in his time had already become outdated," and so forth. This is a passage designed to test the reading comprehension skills of would-be lawyers. But the results of the question came out weird. Women, who were 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 2x male versus, well, almost twice as many males as women, as females, got this question correct. Right, so that is already indicative of a problem with this question. So why? The question of why is not always easy to answer. 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 talked 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, taken the LSAT.

And what I really wanted to know was, why were 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. 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 in 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 stopped 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 me to take the test would be to speed up on the things that I was really good at and then use that time on the things I needed more time on. That's how efficient people 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 sat there 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 beat 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 trying to be efficient. You're not letting me. Because then you'd be getting more time for that next section than the person next to you or the person...

who was the one, 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? It's 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, I have a different balance than if I'm a fast writer and a slow reader.

I don't get the sense that I'm making any headway. So my question is, why are you forcing us all to do every skill in 35 minutes? If human beings are, everyone in that room I took it with had a different set of skills, but you're, why are you pushing us all into the same cookie cutter? Anyone else want to chat about it? It's a standardized test, I guess. Standard 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 isn't necessarily to try every question. So some students do get a better score by spending more time per question

and then leaving a few, skipping a few, than by trying every question. Some students' best strategy is to try every question. So we advise them to experiment on themselves when they're practicing and see what's their best strategy. But that's the only reason you need to have those strategies is because you have this arbitrary time constraint, 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 Stuttgart 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 started by going through a really elegant description about how much care you take to make sure tests do not have some element of cultural or, you know, group unfairness, which I thought was super interesting. But...

But you simultaneously impose a system which discriminates against someone who, for example, is a slow reader. You're, on the one hand, beautifully sensitive to the notion that the test might be disadvantaging a certain kind of person. But in the same breath, you are completely insensitive to the kind of person who wants to take their time.

That'll be difficult. I'm just this is genuinely this was my question. So to provide the information the test does, we have to do it in a standardized way. Your suggestion is a different approach to these tests. And we couldn't, of course, do that willy nilly. They'll 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 are 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 hares. But then, what is that done? Now it's harder for law schools to decide which students to admit. Back when I was preparing for the LSAT over at 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 125% of its current length. If we went to 125%, so what specifically are we doing? What it's going to do is it's going to screw with their lovely normed bell curve, right? It's really subversive in a way. What Fritz is trying to do is destroy law school admissions in a good way.

That's Dan Edmonds, another noodle guy. What he means is this. Right now, over 100,000 people take DL-SAT every year. The results fall on a bell curve, of course. The 90th percentile is right around 164 out of 180. The top schools are all mostly drawing from the pool above the 167 mark.

But if the test allows the tortoises to score higher, then suddenly the number over 167 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 0% for any other considerations. So if you take that pressure off, you're suddenly maybe tripling your number of qualified applicants for a lot of these top programs, and they're going to have to do the work of actually figuring out something other than a test to decide who gets into their school.

Now, that raises the question of why we don't just make the 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 hares. Now the Jeff Suttons 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 hares get discouraged because they can only get into American University where they're 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 too. If you're an investment bank trying to close an incredibly complicated deal in 48 hours where the lawyers have to all read a thousand pages in a day, maybe you want a hair. The law needs tortoises and hairs. We have now arrived at the absurdity of American meritocracy, of course.

The whole 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 4,500 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 6,699. Ready? The best school in Canada has 70,890 undergraduates. Now how about the University of British Columbia, our second crown jewel? 52,711 undergraduates.

What about McGill University in Montreal? I always wished I went to McGill. Intimate, elite, exclusive. McGill has 27,601 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 schools bigger. Honestly, how hard is this?

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 worked 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 Moneyball 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 inefficiency?

That's 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. My colleague has called it the mirror-tocracy, right? The mirror-tocracy.

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 analyzed the data. It's essentially a coin flip. So if someone says, you know, this person's great, or they say this person's terrible, that really doesn't tell you anything about how they're actually going to do it.

With retention, it was actually negative, so that those who were getting higher individual scores were actually less likely to stay. Parker's method is to try and systematize what a law firm wants, so that when they interview someone, they know what to ask. I probably shouldn't say too much because I can't give it all away. But what we can do is think of proxies for certain types of behavior.

So blue-collar work experience. What happens if you have that in your background? I mean, that's a mixed bag. It 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 is to us a signal of something meaningful. And so at certain firms, you will see blue-collar work experience as being one of the most

I think, positive 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 to firms are the things that don't matter. What doesn't matter?

Wait for it. Well, where you went to law school doesn't matter at all. At 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 has run the numbers, tell us? Really doesn't matter.

We like to sort of represent results visually, and so we'll have this baseline line, and essentially what's to the left is sort of a negative predictor, what's to the right is a positive. And it's almost uniformly the case that this T14 falls right on that dot, which is to say it's just an insignificant factor. Really? Yeah. That's kind of fantastic. Maybe fantastic is the wrong word. Infuriating is a better word.

This whole process begins with the 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 hire on the basis of which law school you went to, which in turn select on the basis of whether you were good at that certain kind of thinking, you find where you went to law school doesn't matter. The whole daisy chain. LSAT, law school, law firm, law.

We made it all up. Evan Parker once did a special study on rainmakers, the people who are really good at bringing in new business for a law firm. Law firms cannot survive without rainmakers. And I was struck in doing that work how many of the individuals in our study went to law schools that I've never even heard of, right? Or they went to night school to get their law degree. Night school and law schools you've never heard of. So what should we do about this absurdity?

It is now time for Malcolm Gladwell's Grand Unified Theory of how to fix 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. And neither 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 basically are the hardest to get into. So this is what Justice Scalia could have said. He could have said, in answer to Christina Stett's 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 fit and their ability and not on their skill at answering 25 questions in 35 minutes. Something like that. It's not a hard thing to say. All right. 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. Camille has gotten the email from the Law School Admissions Council. Camille? So we're going to start with my score. Okay. Okay. Oh, okay. Nice. Okay. All right. All right. This is Malcolm's score.

Wait, what? What? I can't believe it. No way. Wait, can you go back to yours for a second? Yeah. 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. Don't ask.

That is... That is... Okay. The sweetest poetic justice. You 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 Camille, the swiftness and brightness and newness of her brain would overcome her lack of real life experience. And it turns out it's a wash. Yeah, it's just a wash. I think this outcome is absolutely beautiful and delightful.

I think next season you guys should, as a stunt, both go to law school. In the name of science.

Revisionist History is produced by Mia LaBelle and Jacob Smith with Camilo 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 Migliore, Heather Fane, Maggie Taylor, Maya Koenig, 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 ****. I'm Malcolm Gladwell, and I'd like to take a moment to talk about an amazing new podcast I'm hosting called Medal of Honor. It's a moving podcast series celebrating the untold stories of those who protect our country. And it's brought to you by LifeLock, the leader in identity theft protection. Your personal info is in a lot of places that can accidentally expose you to identity theft.

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