0:00:00.0 Speaker 1: Oh sweetheart, you don't need law school. Law school's for people who are boring and ugly and serious.
[music]
0:00:11.1 Leon: Hey everyone, this is Leon from Fiasco and Prologue projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael, are talking about law school: What's wrong with it, how to fix it, and how to survive it. Whether you've already been to law school or you're just about to start, this episode will help you understand the difference between learning about the law and learning about justice. This is 5-4, a podcast about how much the Supreme Court and law school suck.
0:00:47.0 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have eaten away at our civil liberties, like rabbits to a suburban vegetable garden. I am Peter.
0:01:00.7 Michael: Nice.
0:01:00.8 Peter: I'm here with Rhiannon.
0:01:02.4 Rhiannon: Hey, hello.
0:01:02.8 Peter: And Michael.
0:01:03.5 Michael: Hi, hi.
0:01:04.7 Peter: I see our producer is very confused about that, but my dad had a garden [laughter] when I was growing up, so trust me, they are a scourge.
0:01:12.0 Rhiannon: I half expected a milk crate challenge metaphor today.
0:01:17.7 Michael: Oh, yeah.
0:01:17.8 Rhiannon: Yeah.
0:01:17.7 Peter: Yeah. Unfortunately, I have only recently been exposed to the milk crate challenge. And like I think everyone else, I think I could do it. I think I could do it.
[laughter]
0:01:26.8 Michael: Yeah, I'm very confident I could do it, absolutely.
0:01:27.0 Rhiannon: I'm 100%!
0:01:29.2 Michael: I know.
0:01:29.9 Rhiannon: My center of gravity is low, put me on the crates.
0:01:33.2 Peter: Here's why I think I could do it, 'cause I think people are misunderstanding it. And in fact, I think you just misunderstood it. This is not about agility and balance, this is about crate stacking and really getting a firm, solid stack of crates. And do I believe in my crate-stacking abilities? Absolutely, absolutely. Tens of thousands of listeners, you all hear me, I'm saying it.
[laughter]
0:01:56.0 Peter: Today's episode is about law school.
0:02:00.2 Rhiannon: Boo!
0:02:02.1 Peter: Seeing as the law is a profession so thoroughly steeped in amorality and faux intellectual brain rot that we felt like we had to make a podcast about it. We figured it might be useful to talk about the school you have to go to in order to join the profession.
0:02:19.7 Michael: Yes.
0:02:19.6 Rhiannon: Yeah.
0:02:19.7 Peter: I don't think that there's any way to present a comprehensive theory of what's wrong with law school. Law schools are awash in deep systemic problems, some of them shared with other ostensibly prestigious grad programs, and some unique to law. Like many institutions of higher education, law schools tend to reflect and reproduce the worst elements of the profession, and it's sort of hard to tell where the problems with law school end, and the problems with law, more generally, begin. But we will do our best here to break the worst aspects of modern law schools into their component parts for you.
0:02:57.2 Rhiannon: Yeah, yeah. We're doing a law school episode and we went back and forth a lot during prep for this episode, on whether we were going to make this like an advice episode. The law school advice threads you see on Twitter, there are whole books written for 1Ls starting law school, with advice about how to succeed in law school, all that garbage. But I think we're not going to exclusively go down that road for a few reasons. One is that there's too much law school advice already, right?
0:03:32.7 Peter: Yeah. And it's all gold. It's all great advice. Every book is like, "If you have a baby, give the baby up for adoption." Yup.
[laughter]
0:03:40.5 Rhiannon: Well, another reason is that law school success looks a lot of different ways based on the law student, based on what goals a person has, and to be frank, what law school a person attends. So for a lot of reasons, just doing a full episode on like, "Here's some advice for you," I don't think it's particularly useful or interesting, but I do think throughout this episode, we will be including maybe less typical advice, not your grandpa's law school advice, but having been through it, "What do I want law students and young lawyers especially, and particularly if you grew up poor, if you're a person of color, if you are a queer law student... This is stuff that I wish I had known or wish I had known sooner."
0:04:28.9 Michael: Yeah, sure. I'm not gonna say I have a lot to offer.
[laughter]
0:04:32.8 Peter: No. If you are a queer, POC, incoming law student, wait 'til me and Michael [laughter] guide you through your experience. I think we should sort of go through the problems that modern law schools have, and lucky for us, I think there is one that I think can pretty readily be described as the main problem with law school.
0:04:55.7 Rhiannon: Yeah, a big one.
0:04:58.2 Peter: Which is that it costs $200,000.
[laughter]
0:05:02.3 Rhiannon: Yeah, yeah.
0:05:02.3 Michael: Yeah.
0:05:02.8 Peter: That's too much money. This topic's been covered, but it's an institution that is just inherently going to be, because of the cost, more accessible for wealthier students...
0:05:13.5 Rhiannon: That's right.
0:05:14.7 Peter: It leads to enormous amounts of debt, which pushes students towards corporate jobs and makes the corporate path much more palatable than it might otherwise be.
0:05:22.8 Rhiannon: Yeah, you can't deny how much the debt is a part of your life after graduating from law school. My loans are going to be with me from law school, forever, because of the career track that I'm on. I'm never going to make enough money to pay those down, whereas Michael and Peter had jobs after law school that allowed you to pay down your debt, but it's still an enormous undertaking. For years, that is with you. I am planning to get public service loan forgiveness, which means that after 10 years of paying my law school debt, the rest of my law school loans will be forgiven, but it's kind of a tenuous track, it's not really guaranteed. A lot of people have applied for the forgiveness after 10 years and not gotten it, so it's just not very sure.
0:06:07.3 Michael: Yeah, there's a very high fail rate with that. Yeah.
0:06:09.2 Rhiannon: Yeah, exactly.
[laughter]
0:06:11.4 Peter: Yeah, and for the record, I did pay off my loans pretty quickly, and I did it by having a big law job and living in the flex bedroom of a three-bedroom apartment with a 40-year-old man. [laughter] And also, a 23-year-old man, which is just [chuckle] an unbelievable combination that no human being should have to experience.
0:06:35.3 Michael: I had the key to American financial stability and well-being, which is wealthy parents.
0:06:40.5 Rhiannon: Gorgeous. We love that for you.
0:06:43.1 Michael: I did have a friend who was married and he had massive undergrad and law school debt, and his wife had undergrad debt, and he was like a fifth year associate at a white-shoe firm, so he was making, what? 300 grand maybe?
0:07:00.7 Peter: Yeah, something like that.
0:07:00.8 Michael: Representing huge corporate clients, and he lived in a four-story walk-up, he had a roommate, he and his wife slept on a mattress on the floor in a lofted space. [laughter] They didn't even have a fucking bedroom.
0:07:14.1 Rhiannon: My goodness. Jeez.
0:07:16.7 Peter: So think before you judge fifth year associates [laughter] at corporate law firms. So I think this might bring us to another large problem with law schools, which is that the people that are in them, it's a bad combination of out-of-touch professors and students who are disproportionately wealthy climbers. And a third party, completely unseen, but the most influential in all law schools, donors. And I think we should probably talk about professors first.
0:07:49.4 Rhiannon: Yes.
0:07:50.5 Michael: The classic career track for a professor is somebody who, right now, at least, went to one of a handful of schools, Harvard, Yale, Stanford, clerked at a high level district court and one of the more prestigious circuit courts. At the very least, was in the conversation for a Supreme Court clerkship, probably interviewed, if not got one. Maybe worked in the private sector for a year, maybe worked in government for a year, and that's it. That's all they've done, but they've published, and now they're adjuncts or something, and they're on the tenure track, and they hop around from law school to law school until they get tenure. You gotta be smart and driven to do that stuff for the most part, but they don't know shit about shit. [laughter] I have worked for a judge, and I can tell you that that doesn't make me qualified to hold forth on the law, and I have more practical experience than the vast majority of new law professors do in the field, as do Peter and Rhiannon. I guess reading a bunch of articles by a bunch of other law professors is supposed to be what gives them their authority, but I think that's bullshit.
0:09:12.8 Rhiannon: I think that's exactly right, although we should say that is a culture that is fostered and expected at the top law schools. And so, at law schools across the country, there are different professor cultures from school to school. You could go to a school where many of the professors have a lot of practical real world experience, have actual law practitioner experience.
0:09:36.6 Peter: Yeah. But I think what drives a lot of this is that a lot of top law schools, even 50 to 100 law schools, they've never quite figured out whether they're trade schools or not. And you end up with these professors who are academics and almost philosophers, teaching students who are going down, in almost every case, a much more practical path, right?
0:10:01.9 Rhiannon: Yes, yes.
0:10:02.0 Michael: What you have is a lot of people who did well in law school and believe that it's good because of course, they shine in it. And what it prepares you for, more than anything, is to be a law professor. That is what law school teaches you how to do.
0:10:18.2 Rhiannon: Yeah, yeah. And this isn't even getting into demographics of law professors. The field is vastly, vastly dominated by white men in particular, and it's also going to skew much older.
0:10:33.8 Peter: I think everyone... It's like a universal experience that you have at least one professor who doesn't really know what's going on, moment to moment.
0:10:41.0 Rhiannon: Yeah, who is ancient.
0:10:42.1 Michael: Yeah.
0:10:42.7 Peter: I had one, I think it was fed courts, where I figured out his pattern for calling on people, and then I would only come in on the days that I was being called on. And you could see on his face that he knew something was wrong, [laughter] but he couldn't figure out what it was.
0:11:00.5 Michael: But this stuff matters, the cultures that are prevalent on campus. There's a law professor named Eugene Volokh, who is an eminent First Amendment scholar. And he is also sort of infamous for loving to say racial slurs.
0:11:16.2 Rhiannon: Yeah, he's a massive piece of shit is what he is.
0:11:19.9 Michael: Yeah. And he claims it's like a point of First Amendment principle, and he has all these sort of rationalizations and back-filling about how, "Oh, you're gonna have to hear this in court," as if any fucking law student, person of color or otherwise, needs to hear slurs from their professors to be prepared to hear them in the real world. It's ridiculous.
0:11:44.7 Rhiannon: Right.
0:11:44.9 Peter: And also, there's something great about it. He's trying to make this academic point about like, "We need to say the word that we're discussing," and stuff like that. But I promise, your black students have heard the word much more recently than you think.
0:12:00.2 Rhiannon: Right.
0:12:00.9 Michael: Yes.
0:12:01.8 Peter: You're like, "Don't worry about it, dude." We're all hearing it. He thinks that if we don't discuss it in this academic discussion, then it's like we're ignoring it. And it's like, "No, the world is not ignoring the n-word, dude." We're just trying to use it a little bit less.
0:12:19.6 Michael: Right. We're just trying to acknowledge the humanity of our colleagues and friends. But so, all these, especially white male law professors who generally think of themselves as liberal, and I'm sure voted for Obama [laughter] and gave money to Biden and all that shit, and think that they're champions for their POC students.
0:12:38.9 Michael: But they allow a culture that says to their POC students, "You're not welcome." That's the message that Eugene Volokh sends, that they don't belong the way white people belong, and then they're not as welcome in the halls of academia. And by treating Volokh as anything other than a pariah, as recognizing him as an eminent First Amendment scholar who has important things to say, and inviting him to fucking symposiums and all of that bullshit, you're saying that that's okay. Nobody buys his arguments because nobody else is saying slurs all the time and being like, "Pedagogically, he's got a point. I think we gotta say it, guys." [chuckle] Everybody knows it's total bullshit. And this is a major issue in a lot of places.
0:13:28.7 Peter: And if this feels like isolated incidents, for lack of a better term, I encourage every 1L to just wait it out, because the affirmative action discussion in front of your black friends and colleagues, it's about to happen. It's gonna happen sooner than you think, and it's about as completely insane and out of touch and uncomfortable as it sounds.
0:13:50.2 Michael: Yup.
0:13:51.1 Rhiannon: Yeah, I also wanted to say the lack of demographic diversity among law school professors plays out in a lot more subtle ways every single day. I was a 1L in a property class whose very old, white, wealthy professor made jokes all of the time about people who live in trailers, when I knew for a fact, that there were students in my 1L section who grew up in trailers. Made jokes all the time about a used car salesman. Guess what? That's what my dad does, he sells used cars for a living. And so it's not to say that it's so normal, that's just the way it is and we should accept it, it's just to say that if you're out there about to embark on the journey, if you can prepare yourself to expect a lot of micro-aggressions, racism, all of the time, that might soften the blow.
0:14:46.8 Peter: Maybe some macro-aggressions as well.
0:14:48.0 Rhiannon: Yeah, yeah.
0:14:49.8 Michael: Just another way that it's gonna be harder on women, on people of color, to get through a very stressful time.
0:14:56.6 Rhiannon: Yeah, good point.
0:14:58.5 Michael: Also, Peter reminded me with the affirmative action discussion, before we continue, that another discussion you should just be bracing for yourself already, is in 1L Crim Law. There will be at least one class where you discuss rape. And it's going to be painful.
0:15:13.2 Rhiannon: Oh, yeah. It's rough.
0:15:13.3 Michael: There're gonna be people who say some shit or raise some questions, and you're like... It's not fun.
0:15:17.9 Peter: Yeah, and then that dude is gonna be like, "Hey, you wanna go grab a drink?" And you're gonna be like, "No. No, I don't"
[laughter]
0:15:23.8 Michael: Absolutely not.
0:15:24.9 Rhiannon: Absolutely not!
0:15:26.4 Peter: "We're done. You're out of the study group, bro." Alright, on maybe what you might call a less systemic note, I think we need to talk about gunners.
0:15:35.3 Michael: Yes.
0:15:36.4 Peter: Now, there are different perspectives on gunners among even the hosts of this podcast. [laughter] So I will give my opening statement, and then we will perhaps hear a rebuttal. [laughter] I think the cleanest definition is someone who participates in class discussions to a point that might be excessive, such that their classmates become irritated. The gunner takes advantage of the discussion-based format of law school to interject their own train of thought over everything. And as a result, classes are frequently derailed because they think that some perceived nuance in the law that might not even exist and definitely won't be tested, is worth chasing down in a 15-minute back and forth with a professor who is so thrilled that someone is interested in his shitty class, that he doesn't notice that he's simultaneously wasting the time of 75 people.
[laughter]
0:16:30.7 Rhiannon: Thank you, counsel. You may be seated. Opposing counsel, do you have anything in response?
0:16:35.1 Michael: Yes, I do. [laughter] I won't deny that I think the behavior you described could be accurately called, "Gunner behavior." But to me, an important part of law school is the curve. And the idea behind the curve is that it's not how well you do, it's how much better you do than your classmates. And so a key part of being a gunner is being someone who is trying to, at the very least, not help their classmates, if not straight, sabotage them. And the excessive talking in class is just symptomatic of this idea that, "Well, if I am fucking raising my hand and jabbering all the time, then the professor will notice me and they'll like me and I will do better." Yeah, they don't realize that there's blind grading, because I think gunning is really more of a 1L thing in my experience. Everybody sort of chills out after that. So it's a striving in an obnoxious way.
0:17:35.4 Rhiannon: If I may interject, I have a question for the responding party counsel. Michael...
0:17:40.4 Peter: Yes.
0:17:40.5 Rhiannon: Could you have ever been described as a gunner?
0:17:44.9 Michael: I don't think I was a gunner. [laughter]
0:17:46.4 Rhiannon: Aha. Okay, we'll need some...
0:17:47.9 Peter: Rebuttal requested, rebuttal requested.
[laughter]
0:17:50.8 Rhiannon: We'll need some witnesses on this point. [laughter]
0:17:52.8 Peter: It is almost a universal truth that the gunner cannot recognize themselves as a gunner.
0:17:58.1 Rhiannon: That's right, that's right. [laughter]
0:18:00.3 Peter: Because gunners waste time with frivolous or tangential thoughts and questions. To the gunner...
0:18:04.7 Michael: I did not waste time. I did not waste time.
0:18:05.8 Peter: Their thought or question is inherently important, that is why they must speak it, therefore, they cannot be a gunner because they cannot perceive of themselves as frivolous. They're unable to see themselves for what they truly are, because it would involve a level of self-reflection that they are constitutionally incapable of. It's almost existential. The primary tactic of the gunner when arguing about whether they are a gunner, is to redefine the term to mean something more like, "Try hard," or something along those lines, so that they can sort of cast themselves as unfairly maligned for putting in effort. You might bring up the grading curve, or things of that nature...
0:18:38.1 Michael: That's right. I put an effort and I won't apologize for it.
0:18:42.6 Peter: But that is not the true nature [laughter] of the critique, and an honest observer knows that that's not the true nature of the critique. The small number of gunners who do admit to being gunners are... The handful who believe themselves to be dominating the classes time and attention because either they are uniquely smart and thoughtful, or because they don't really care about the classes time because they are simply trying to climb the curve. Those people are diagnosable psychopaths in my experience.
0:19:12.5 Rhiannon: [laughter] Yeah, you're right.
0:19:13.4 Michael: Here's what I'll say in response. I was pretty good at law school and I wasn't interested in wasting my time, let alone everyone else's if I asked a question in class is 'cause I thought it would be important for me to know in order to understand the material and do well on the exam.
0:19:29.3 Peter: I already addressed this, the gunner cannot perceive of his own questions as being a waste of time.
0:19:30.6 Michael: Yeah, yeah, yeah.
[laughter]
0:19:36.1 Peter: I only wanna say one final thing, which is that, the really smart students, they don't need to do this shit. The truly smart kids, they play online poker during class, they sit in the back, and when the professor calls on them, they read verbatim off the outline that someone else sent them, and then when the professor throws them a curve ball, they look him right in the eye and they say, "I have no idea," and you give them a look where the professor knows that he can keep pressing, but it's not gonna do anyone a single bit of good.
0:20:00.8 Rhiannon: There's no more blood to squeeze from this turnip.
0:20:02.9 Peter: And then you get an A minus.
[laughter]
0:20:08.6 Michael: The one other thing I'll say is that there is a culture in some law schools of straight aggression to other students. Right?
0:20:16.7 Rhiannon: Yes, yes.
0:20:18.1 Michael: And there's infamous in some schools, people will tear important pages out of books in the library so that other students won't get the information they need to complete an assignment. That is not only psychopathic behavior, but it is quintessentially gunner behavior.
0:20:33.6 Rhiannon: Yeah, yeah, I think that's right.
0:20:35.4 Michael: And I would never do something like that.
0:20:37.6 Peter: We think you're nice, Michael. It's okay.
[laughter]
0:20:39.3 Rhiannon: We love you, Michael. Okay, yes, thank you to both parties. I will render my verdict later based on argument and briefings.
0:20:47.6 Peter: And vibes.
0:20:48.0 Rhiannon: Yeah, and vibes.
0:20:49.9 Peter: Alright, so let's talk a little bit about law school classes. I think the first thing to go over is the required course load. Law school mandates that you start off with a few specific classes, contracts, torts, criminal law...
0:21:07.2 Michael: Common law.
0:21:07.5 Rhiannon: Property.
0:21:08.4 Michael: Civil procedure.
0:21:09.7 Peter: Now, for the most part, I don't have a ton of objections here, but I would like to talk about property law a little bit. Since my time in law school, property law has been slowly yanked out of the primary curriculum at many schools. Property law is a class that it's essentially about common law property principles, which is notable mostly because almost none of these principles have any practical application today as they've been replaced by actual statutes and regulations. Property law's a very American class, it's sort of like a vestigial remnant of a time when the concept of who owned what land was important to Americans, and so you spend a whole semester learning about what amounts to legal philosophy because it has no practical application.
0:21:52.2 Michael: And what sort of conditions can you put when you transfer the land.
0:21:55.7 Rhiannon: Right, right.
0:21:56.9 Peter: Right. Shit like that, and it's so completely detached from the reality of the practice of law that you have to take other classes to actually get good at property. If you wanna do passing of property, you need to take like trust and estates. I took a class about zoning laws and variances and all the laws that really govern property in this country, which means that they required me to take property law, but then they had to create an entirely new and separate class to teach like actual property law.
0:22:22.7 Rhiannon: That's right, yeah.
0:22:23.8 Peter: A great example of how much of law school is rooted in the past.
0:22:28.0 Rhiannon: Exactly.
0:22:29.0 Peter: God, it's so fucking boring, dude.
0:22:31.2 Michael: It is.
0:22:31.3 Rhiannon: Yeah.
0:22:31.2 Michael: It is really boring.
0:22:33.4 Rhiannon: Yeah.
0:22:33.5 Peter: Alright, let's talk about grades, because almost every law school has an aggressive curve, and the result is an intense focus and obsession within the administration and among the students on grades.
0:22:48.2 Rhiannon: Yes. You know, I think something that's really important as we move into these structural systemic critiques of law school is that law school is not so much about teaching you how to be a lawyer, it is an extended three-year long hazing experience, and part of that mandated cultural suffering to bring you into this prestigious elite club, part of that is an obsession with grades. So first of all, this experience again, is really different depending on where you go to law school. Frankly, the rank and self-awareness of your law school and law schools, even the elite law schools do grading differently, depending on what school you go to. Harvard and Yale are on these...
0:23:40.4 Michael: They don't have real grades, it's fake.
0:23:42.1 Rhiannon: Right. There's a fail and then a pass.
0:23:44.5 Peter: You got high pass. They just created tiers that don't have the letters.
0:23:48.5 Rhiannon: Right.
0:23:48.8 Peter: But it's the same thing.
0:23:52.6 Michael: It's like, nice boy gets a kiss on the forehead.
0:23:54.7 Rhiannon: Yes, that's exactly right.
0:23:56.1 Michael: And nice boy has been naughty. Those are the grades at Harvard.
[laughter]
0:24:00.9 Rhiannon: Some schools publicly publish student ranks at the end of every semester, depending on grades, that kind of thing. All of it, I want people to know is largely bullshit, and all of it I want people to know is a culture that you can, depending on where you are and depending on what your personal goals are, opt out of if you would like. I went to a good law school and we were not ranked or anything, but people talked about their grades constantly. Constantly. They talked about their grades in individual classes, and they talked about their GPAs all of the time. And even though on paper, I did very well, I never talked about my grades and that didn't hurt me, so to the degree that you can opt in and opt out of individual smaller aspects of the hazing culture, the prestige obsession of law school, do that.
0:24:58.0 Michael: It makes everybody miserable. You should be making each other feel better and lifting each other up.
0:25:01.6 Rhiannon: Right.
0:25:03.0 Peter: And success in grades doesn't map on to success in 95 plus percent of the profession, right?
0:25:10.8 Rhiannon: Right.
0:25:11.3 Peter: And nor do most of the metrics that the legal field is obsessed with. A lot of people will say, "Oh, LSAT scores are important because they are strong predictors of success in law school," which is true, but also sort of lacking in meaning. You can go even farther. You can say "success in middle school is important because it's a strong predictor of grades in high school, which are strong predictors of your ability to get into good colleges and your grades in college, which in turn are solid predictors of LSAT, which in turn are solid predictors of your law school grades." All that is statistically provably true. But what that is not a good predictor of is your ability to lead a successful life as a normal, happy human being or even to be a good lawyer. The only thing that elite law school grades are a particularly strong indicator of is your ability to get elite law jobs after graduation.
0:26:03.0 Peter: The system operates primarily as its own sort of self-contained prestige gauntlet, and the only notable function of it is to churn out socio-political elites. If your goal is to be an academic or grub for other prestigious positions your whole life, then, yeah. You're gonna need to get into an elite law school and work super hard and get great grades. But if you wanna be a good lawyer, I would say you don't really need to worry about it too much, and I have practiced with a lot of people and I have never really noticed any sort of correlations between who I thought was a good lawyer and who did particularly well in law school.
0:26:39.2 Rhiannon: Right, or what law school they went to.
0:26:40.6 Michael: Especially what law school they went to.
0:26:42.7 Peter: Absolutely, and if you're in big law, a pretty safe bet is that someone who was at a lower ranked law school is gonna be a better lawyer than some schmuck from Harvard because they let any moron from Harvard to walk into a big law job. [laughter] But you probably had to work your ass off to get in from a lower ranked school. And the last thing I wanna say about grades is if the actual goal of law school grades was to determine whether you'll be a good lawyer, there wouldn't be a curve. Curved grading is meant to rank you relative to your peers, but law isn't generally a relative profession. Two people can represent their clients effectively at the same time. The purpose of the curve is to drive competition. And I think you can make the argument that in something like med school, to a degree, where the stakes are human life and health, you can maybe make that argument for a system like that, where they want people constantly striving, although they've even run into trouble in med school with mental health, etcetera, etcetera.
0:27:40.9 Rhiannon: Oh, for sure, yeah.
0:27:42.0 Peter: But in law, it's mostly just a way to foster and reinforce a high-stress environment that trains students to prioritize prestige and certain formalized metrics of success.
0:27:54.7 Rhiannon: Yep, that's exactly right. And it brings me back all the time to remembering that law school is a business, okay. Those businesses do better when students have prestigious clerkships that they're placed in after graduating, and when students make shit loads of money. At base, that serves law schools in the form of big donations, all the alumni bullshit, that serves law schools more than it does law students, and it puts enormous psychological pressure on students to engage in behaviors that are unhealthy, frankly. And so, just remind yourself that it's all bullshit prestige obsession.
0:28:39.5 Peter: Yeah.
0:28:39.5 Michael: Yeah.
0:28:40.7 Peter: Oh God. I think we need to talk, unfortunately, about the Socratic method.
0:28:45.0 Michael: Yes.
0:28:45.1 Rhiannon: Yes, the Socratic method. So, Socratic method, also known as cold calling. It's the way, particularly the 1L, those doctrinal courses that Peter talked about. It's the way those classes are typically taught in law school. So, the Socratic method, it's a model of teaching in which the teacher asks questions of an individual student in a dialogue, a kind of back and forth, that's supposed to support the student in critical thinking to arrive at or discover the conclusions that are to be drawn on their own instead of being told the answers. But the way that the Socratic method is done and why it's called cold calling is classically in law school, you're not gonna know when you're gonna be called on to engage in this back and forth, and you don't know what the questions are in advance. You can see a sort of justification for having this as one sort of teaching method, but it's also really stupid, and part of that extended hazing ritual.
0:29:51.4 Peter: Yeah. I think it started presumably because it resembles certain aspects of litigation and maybe philosophical dialectics, but I think the real reason that it remains popular is, yeah, because it's brutal. It puts people on the spot, it forces you to be on high alert during class, it can be awful if you get caught off guard or unprepared, and I think a lot of professors and students view it as sort of a rite of passage. And moreover, I think embedded in the adherence to the Socratic method is this sort of reactionary idea that struggle and conflict breeds strength and weed out weakness. And Corey Robin wrote about this in his book, "The Reactionary Mind." This is a reliable strain of conservative thought, the idea that in order for people to truly meet their potential, there must be friction and conflict. And you see it in how many professors approach the classroom.
0:30:44.7 Michael: You mentioned philosophical dialectics, and I think that's important, if you look at the educational backgrounds of law students and law professors, I think the three big ones are usually government, history, and philosophy, and philosophy is very well represented in law schools. And this is how philosophy classes are taught. And you do the reading and you come into class and then there's a discussion and people offer different points of view, and the professor prompts people. It's very similar to law school, but besides not being the way a lot of people learn very well and not necessarily the best way to teach this material, it also I think, ends up enforcing the idea of law as this sort of abstract and detached and philosophical thing. And that's not connected to the material realities of the people who are affected by the laws, right?
0:31:43.8 Rhiannon: Yeah, right.
0:31:43.9 Peter: Alright, time to talk about journals, law reviews.
0:31:46.3 Michael: Yes.
0:31:47.2 Rhiannon: Stuff you can do in law school.
0:31:49.3 Peter: The beating heart of legal academia.
0:31:51.9 Michael: [chuckle] That's right.
0:31:55.5 Peter: Journals are publications that publish what you might call academic research to the extent that that exists in law, and the way that they are run is a small army of unpaid law students [chuckle] who field proposed articles from professors, and then they select a few for publication and they edit, do citations and all of the sort of tedious stuff. Students are encouraged to do it as if it's going to be beneficial for their career. And one very practical piece of advice I have is don't do journal. [laughter] If you get on law review, sure, go for it. It That looks good on a resume. Any other journal is irrelevant, and will take up anywhere between five and 20 hours a week of your time. That time is precious. Don't throw it away to the Journal of Business Law at your school. It is not worth it, I promise. [laughter] And money where my mouth is, I quit journal after the first year. As soon as I realized that it was a viable option, I quit. And people are were like, "Oh, can you do that? Isn't your employer gonna ask you questions about it?" No, absolutely not. [laughter] No one ever noticed. Not once.
0:33:05.5 Michael: The other thing about journal though, is that for law professors teaching is sort of secondary. Their primary job is publishing.
0:33:14.7 Rhiannon: Yeah, writing about the law.
0:33:19.2 Michael: And whether or not they get tenure is largely... And whether or not they're even hired in the first place is largely based on their success in placing articles and the quality of those articles, the quality of journals they put in and all that shit, which means that a bunch of shithead 2L's or 3L's [chuckle] who don't know anything about anything are making decisions that will impact tenure for professors and shape the next generation of law professors, which is so fucking wild and backwards.
0:33:56.6 Rhiannon: Right.
0:33:56.9 Peter: Not a single party involved is getting a good deal out of this.
0:34:01.1 Michael: No, no.
0:34:01.1 Rhiannon: No. Not at all. And that's to say nothing of the inadequacy of this kind of peer review. This is the lowest possible form.
0:34:10.5 Michael: Students checking your citations. [laughter]
0:34:15.1 Rhiannon: Right, right. A student who has no experience practicing or doing anything with the law that you're writing about, that makes no sense. In every other field, peer review means other actual scientists, not students working for no money.
0:34:32.8 Peter: That's law school. We should move on to the one thing in law school that you should do. [chuckle]
0:34:37.0 Rhiannon: Yeah, yeah, turning to something that's maybe a little bit more useful, actually relevant to the practice of law, one thing you can do in law school is take clinics. So clinics are law school courses, you're usually getting class credit, and these are special classes that are available usually to second year and third year law students, where you are actually doing some sort of real world lawyer work under the supervision of a clinic instructor, clinic professor, usually a practicing attorney whose job it is to oversee the work of law students in the clinic. So I, for example, I was in three clinics in law school, I took the Criminal Defense Clinic, the Actual Innocence Clinic, and the Capital Punishment Clinic. And in each of those clinics, you are doing sort of that area of the law. So in the Criminal Defense Clinic, I had real life clients, people accused of crimes, misdemeanors, and I represented them for a semester or for the whole year under the supervision of the clinic instructor. Clinics are where you are learning how to do that work well. I talked to a few of my friends from law school in preparation for this episode, and across the board, they said that none of them regretted not doing a journal so that they could do a clinic.
0:36:01.8 Michael: Right. Can I ask you something, Peter?
0:36:05.7 Peter: Mm-hmm.
0:36:05.8 Michael: Did you do a clinic?
0:36:05.7 Peter: Yeah, yeah, I did a couple.
0:36:06.4 Rhiannon: Did you do clinics, Michael?
0:36:07.8 Michael: No. [chuckle] I didn't do any clinics. [laughter]
0:36:10.7 Peter: More of a seminar kind of guy.
0:36:12.6 Rhiannon: Yeah, yeah.
0:36:12.7 Michael: Yeah, that's right, I loved my seminars. [chuckle]
0:36:14.8 Rhiannon: He's like, "No, I was in a back and forth with my property professor." [laughter]
0:36:21.3 Peter: So, back on to the problems with law school, and I think we've peeled back a bunch of layers of this onion, and we are now at what is taught in law school and the problems with what is taught in law school. I think the fundamental issue for me is that all schools don't give a good understanding of the history or theory of law, they don't have enough normative discussion in most cases. But then on the other hand, they also aren't very effective training for the practice of law. Law school is hyper-focused on jurisprudence. They wanna tell you exactly what the state of the law is. In most classes, the emphasis on historical and political context is often missing, and as a result, the presentation to law students is sort of as if the current state of the law, the status quo, is almost this force of nature, this thing that simply exists, not something that was built, but something that is simply there and you need to understand.
0:37:20.0 Rhiannon: Yeah. I think that's a really good point, Peter, about how on the one hand, there's a complete failure, I think, because law school pedagogy sucks ass, the way the theory is taught doesn't make sense and isn't how most people learn. And then on the other hand, it's very easy to graduate from law school and have no idea how to draft a contract or question a witness, if you don't wanna learn those things.
0:37:46.0 Peter: I'd go the other way. I'd say it's difficult to graduate and...
0:37:48.3 Rhiannon: Know how to do it. Yeah, that's a... Yeah, really good point. And the only way you are tested on what you've been taught, supposedly, is one exam. And that's it.
0:38:01.2 Peter: What law schools hold themselves out as doing is teaching you a form of analysis. You'll hear a lot, that law schools don't teach you what to think, they teach you how to think.
0:38:11.8 Rhiannon: Yes, yes, yes.
0:38:11.9 Peter: What they won't tell you is that built into how to think, are a bunch of ethical and political presuppositions that go largely unchallenged. Law schools teach a very formulaic case analysis, where there are a web of rules that can be applied in different circumstances, all intended to foster the idea that you can apply rules to facts and come out with objective answers. Something that Duncan Kennedy discusses in his extremely good piece, "Legal Education and the Reproduction of Hierarchy," is the false idea that there's a difference between legal reasoning and policy analysis. Policy analysis is expressly about coming to outcomes that reflect our best and foremost values. My policy preference is safe and accessible abortion, because I value reproductive freedom, etcetera, etcetera. What law schools want you to think is that, legal analysis is different, that it's simply about applying rules to different situations. But those rules are value judgments. When a court is weighing the interest of the state to regulate abortion, in a case about reproductive freedom, that's not just a legal rule, that's a value judgement about the State's role in reproductive decisions.
0:39:28.3 Peter: Legal analysis is policy analysis, it is ethical analysis. It's just done through a web of rules and frameworks meant to simulate the process of reaching an objective conclusion. One of the ways that law schools teach formalistic analysis of the law, is to insist that analysis cannot be driven by outcomes. The principled lawyer must follow the legal rule wherever it takes them, even if the outcome is manifestly unfair. And I understand the idea that, remaining objective might mean reaching outcomes you don't like, and I think that's true to a degree. But I think that the formalistic insistence on largely ignoring outcomes, which is often taught in law school, is very misguided. If you apply a rule and the outcome is plainly unjust, that shows you that perhaps the rule is not a good one. That there are circumstances it doesn't properly account for, at the very least. Should you work backwards from the outcome you want? No. But outcomes are how you evaluate rules. Not only should they not be ignored, they should factor heavily into how you interpret legal rules, into how you do legal analysis.
0:40:37.8 Michael: That's right. And shifting gears a little bit, something that frustrated me at my law school, and I think, is pretty common, is that there aren't many or any structured paths in terms of when you get there and say, "Well, this is the sort of career I want, this is what I hope to do with my law degree," where, "These are the core courses you need to take, here are the professors you need to talk to, here's the clinic you need to take." Instead, everything is just kind of like, "Well get a bunch of credits, get a bunch of good grades, get on journal," and you're left to sort of grope in the dark, about what would be best.
0:41:15.0 Peter: Yeah. And I think one of the results of leaving students in the dark like that, is that between the cost of school, the curriculum they push, the administrative services, and the fact that students don't have a lot of guidance, many schools create a paradigm where the path of least resistance is corporate law. If you wanna do corporate law, it is essentially spoon-fed to you. And if you don't know what you want to do, corporate law becomes the sort of default state. If you want to do public interest, at least where I went to school, you have to ask some people some questions, and people will point you to resources. If you wanna do corporate law, you can essentially take just about any classes, you get emails with updates about corporate law firm hiring and all the information is provided to you. It's right in your face. That creates a circumstance where a lot of students who just don't know what they want to do, they're disproportionately fed into corporate life.
0:42:10.3 Michael: You spend all of 1-L sort of under water, trying to fight to keep up and get good grades, and then you're done and you're getting emails saying, "Oh, on-campus interviews start in a few months, you gotta get your resume uploaded to the database," and it's like if you don't know already what you wanna do and what path you're on, it's like, "Okay, I guess I should upload my resume, I guess I should prepare to interview with all these big firms and do OCI." And the red carpet is laid out for you, it's not like there are alternatives, it's just like this is what everybody does, and if you wanna do something else, you're really on your own.
0:42:48.8 Peter: And so people know, law school's three years. After the first year, there is interviewing for corporate firm jobs. You get an offer to go be a summer associate the following summer, the summer after your second year. Almost all summer associates will ultimately be offered a full-time position, and as a result, before you enter your second year, a huge percentage of students, especially at the elite schools, know what law firm they will be working at after graduation, only one year in out of three. And part of the reason that corporate law firms are doing that, is to get out ahead of any career decision that you might otherwise make. They could easily do hiring a couple of months before. Why don't they? Because this allows them to recruit as many students as possible, and it puts students in a situation where you feel like you have two choices: One, accept a corporate job right before your second year even begins, or two, roll the dice. You don't know what your job prospects are going to be, without it. That puts students in a precarious situation, and a lot of them are going to choose to just go this "safe route" and become corporate lawyers. I know a summer associate that put a partner into a head lock at an event jokingly and got an offer. [laughter] Got an offer full-time employment.
0:44:11.8 Rhiannon: Gorgeous.
0:44:12.6 Peter: It's impossible to blow it.
0:44:12.7 Michael: The only summer associate I know of, who didn't get an offer at my firm, was at a dinner with a major client and started openly questioning the firm's litigation strategy to the client.
0:44:24.0 Peter: Love that.
0:44:24.8 Rhiannon: Nice.
0:44:25.0 Michael: That's how you do it.
0:44:26.0 Peter: King.
0:44:26.9 Rhiannon: Rest in power.
0:44:27.0 Michael: It makes it super easy. If you can land a summer associateship, you're set. And then you have two years to cruise.
0:44:34.7 Rhiannon: That brings me to another problem with law school, which is, it's too long. The fact that there's three years of law school, is stupid and useless, and again, only serves business interests. Law schools make more money because law school is three years long and it really does not need to be. There are really interesting alternative suggestions or restructurings of law school, where everybody would still take the doctrinal courses, but part of the second year or the entire third year could be structured around apprenticeships, practical, real world experience, where you are actually learning how to do lawyering, because everybody in law school can agree that at least the third year is an utter scam that is useless. [laughter]
0:45:25.0 Peter: Yeah. The problem is that if they restructured it, they would have to potentially get professors to teach students how to practice law. And unfortunately, they don't know how to do that. [laughter] It is a huge logistical impediment to this sort of structure. They would need to have a different set of teachers, because the existing set of teachers doesn't know how to teach the practice of litigation, the practice of corporate law, whatever it might be.
0:45:53.6 Michael: Yeah. I can't think of a thing I learned in 3-L, that helped me in my job, but to be honest, I can think of very few things I learned [chuckle] in 2-L or 1-L, that helped me in practical jobs either. I used a lot of Con Law in my pro bono work and that was... That's pretty much it.
0:46:13.8 Peter: Before we move into the very last phase of this, I wanna quickly talk about something we've touched on in various regards, but the ways in which law schools foster relationships with government institutions, corporations, and big law firms. It is pervasive, especially at elite schools. Law schools foster these relationships, because it gives them access to money, it lets them place students into better jobs, which allows them to claw their way up the rankings, it gives them access to fancy speakers at events and so on and so on. And of course, the result is a symbiotic relationship between law schools and monied or powerful interests, and because of that, it's hard to conceive of law schools as they currently function, as ever being willing or able to attack and undermine existing power structures. No matter how many nods to liberal principles they might make, they are just too reliant on these hegemonic institutions, to ever be truly dedicated to any sort of reparative or restorative justice. That's why the idea of broad, ideological reform of law schools, it's a lost cause. It's like talking about reforming the government.
0:47:24.3 Rhiannon: But is it not such an interesting and pervasive scam, though? Because I don't think that most people know this about law school. I was one of these people, I don't know if everybody is like this, but I went to law school, thinking that everybody there would sort of have, at the very least, an intellectual interest, and at most, like me, a sort of passion for the idea of justice. And that is... It's just not the case, when you get there.
0:47:53.8 Peter: No. There's a real institutional endorsement of the idea that law is abstracted from human life. I talk about these institutions being intertwined inextricably, but one very simple thing to do would be to prevent corporate law firms from donating to law schools. [chuckle] My law school had... Classrooms were for sale. Anyone could buy the name of a classroom and they would put a little plaque next to it, being like the John H. Dipshit classroom. And law firms would buy them. And when we were near graduation, a bunch of us were drunk late night on campus and we snuck our way into administrative offices, and I found a stack of plaques with law firm names on them. They were plaques that you would put above a classroom. They weren't for a specific classroom, all of the classrooms at the time, were spoken for, so to speak. [laughter]
0:48:46.1 Rhiannon: Or donated for.
0:48:48.2 Peter: What we theorized was that, they used these to try to bribe law firms to be like, "Here's your plaque, [laughter] all it takes is a donation of $500,000 and we will slap this above the shittiest classroom in our basement, and you'll be remembered forever." They got that shit engraved. [laughter] As we head out again, we didn't really wanna do advice 'cause students are just flooded with it. But it's worth talking about things someone... You wish someone told you. I wanna say two things. One is that, every year, there's a bunch of Twitter threads about, "Here's my advice to 1-L's." And 80% of what you see is demonic. Just absolutely without soul. Untouched by the light of God. [laughter] The big one this year was, Ian Millhiser, law and policy guide, Vox, whose work I like, by the way. And his advice was essentially, "Neglect your mental health. Neglect friendships and other relationships. Prioritize this and do nothing but work for the duration of law school, because that is how you succeed." And that is an awful way to think. You are, believe it or not, even if you're in law school, an actual functioning human being, and these are three years of your prime.
0:50:16.5 Rhiannon: Sexual and otherwise.
0:50:16.6 Michael: Person A gets a 4.0, goes to Cravath. Person B gets a 3.7, goes to Cleary Gottlieb, but gets laid many times. Who was more successful? I say, person B. [laughter]
0:50:33.5 Peter: Look, I'm nearing 36, my knees creak at any amount of movement. It's not like, "Oh, if I go in this angle or whatever," any angle, any direction, it creaked. All I'm saying, all I'm saying is that, before you know it, your body will start to visibly fail on you. If you're in law school, you are probably in your mid-20s, you are shiny and full of life. For the love of God, do not sacrifice three years of your 20s or early 30s or later, if you've gone to law school later in life, do not sacrifice that for fucking grades. Are you kidding me? And the fact that this sort of stuff can be marketed to students as advice, is disgusting, and I think that it freaks students out, even students who don't want to believe that that stuff's true. When they see stuff like that, they think, "Well, if other people are thinking like this, then I need to, too. I need to keep up." No, you don't. We've said it in various contexts, it's just the manifestation of a sick profession, a profession that doesn't know what its ideals are.
0:51:40.9 Rhiannon: Yeah.
0:51:42.5 Peter: And if I could give one practical piece of advice to young law students, it would be that... Everyone treats law school like it's a different thing, like, "I have arrived in law school and this is gonna be nothing like anything I've ever experienced. It's gonna be harder and more intense and blah, blah, blah." No, it's a class where they ask you questions in class, and then there's a test at the end, you're gonna be fine. And I say this because a lot of people abandoned things like how they studied before, and try to figure out, "What's the system? How do I succeed here?" And they think that whatever system has worked for other people, will work for them. You don't need to do that. If you study a certain way, study that way. Find a group of friends, study with them. If you study better alone, don't. You'll be fine. Just go with what works for you and don't overthink it.
0:52:29.7 Michael: Yeah, I agree.
0:52:30.9 Rhiannon: Yeah, yeah, I agree with all of those things, Peter. And yeah, like I said, I've been thinking with some of my law school friends in preparation for this episode and asking them what advice they wish they had heard, and across the board, people said, "Stick to your principles, stick to the reason why you came to law school." And my friend Eva, said something, shout out Eva, that was super relatable to me. She said, "An idea that was taught to me, that didn't serve me well in law school was, the idea of keep your nose to the grindstone. I tried that a lot actually, and it didn't work. What did serve me was, taking breaks to talk with people, to exchange ideas, to let my brain bump up against the lessons I was being taught and fighting the current when that felt right. Keeping my nose to the grindstone didn't serve me much at all."
0:53:26.2 Rhiannon: And so, I think that's really important, especially when we are inundated with ritual law school advice, like Ian's, that's just like, "You've gotta grind and you're gonna work all day long, and it's like nothing you've ever done before, and you need to work harder and be smarter than you ever have been." And I think, in the process, that makes people forget what their strengths are, what brought them into law school in the first place, and then that makes people vulnerable to the brainwashing, to the sort of corporate law culture, this sort of funneling process where everybody gets put into this system where one path is made easy and pretty clear for everybody, and you have to figure out everything else on your own.
0:54:15.0 Michael: Yeah. What worked for me was, treating law school like a job and clocking in at 9:00 AM every day and clocking out at 5:00 PM, and I'd go to class in between and I'd take breaks and take a long lunch and just do my reading throughout the day in between classes and whatever. And that gave me more than enough time to keep up to date with reading and be in class and all that. But what was important about it, what was good about it was, the clocking out aspect and the giving myself time every day. That was not law school time, that was time to hang out with new friends or with my girlfriend and just watch TV and fucking chill out and let my brain rest. That really helps push against this tendency to get consumed. Law school, the prestige chase, that has a gravitational pull. And if you're not aware of it, it's very easy to just get pulled into its orbit. So I personally think the 9:00-5:00 thing was very effective for me, but more important than that specifically, is just making sure you mark time for yourself, that is not the law school's.
0:55:36.4 Rhiannon: Yeah, yeah.
0:55:36.4 Peter: What worked for me was, on the first day when I got to law school, I looked around, I found the biggest toughest-looking guy there. I walked up to him, I said, "What the fuck are you looking at?" And he was like, "What?" I hit him with a left and a right and he went down, beat the shit out of that guy, and from that day on, no one messed with me.
0:56:00.5 Rhiannon: Great.
0:56:01.8 Peter: You have to make a statement, day one. I do have a real story about day one, class one, notoriously mean professor, everyone's there 20 minutes early. We all wait, professor comes in. About five minutes later, a student walks in the door, and the professor goes, "Late on the first day, I have never in my life, seen this." And the student turns around, walks out and I never saw him again.
[laughter]
0:56:30.1 Rhiannon: Oh, my god.
0:56:30.6 Michael: That's awesome.
0:56:33.9 Peter: I don't know if he was in the wrong class or if he's just the coolest dude on earth. He was like, "You know what? No."
[laughter]
0:56:39.9 Rhiannon: Not today. Not today. Not ever.
0:56:41.3 Michael: Not for me.
0:56:43.7 Peter: No thanks.
0:56:43.8 Rhiannon: Goals.
[music]
0:56:48.5 Peter: So I think we could probably go on about law school for a long time, but that's the basics. A, too expensive, too long, people are too awful, the shit they teach is not good. How do you address that? Stay centered and beat up the biggest guy in school on day one.
0:57:06.1 Rhiannon: That's it. You got it.
0:57:07.4 Michael: There you go. Easy-peasy.
0:57:08.9 Peter: You're gonna do great, guys. And on a serious note, one of the best things I did in law school was, when I was just full on broke living off loans, I was like, "Why don't I just take out another two grand and live off that? Why don't you take out another 10 bucks a month and just fling it over to us at 5-4, and we will put it to such good use? I promise, you don't even know. Follow us on Twitter, @fivefourpod and hit us up on Patreon and subscribe, patreon.com/fivefourpod, all spelled out. We are gonna take a week off, and then we're coming back with the heat. We're gonna have episodes on Indian law, environmental law, perhaps the eviction moratorium case. So in the mean time, if you're not all caught up, you can get into the back catalog at fivefourpod.com, all spelled out. We're on Twitter, @fivefourpod, patreon.com/fivefourpod. We'll see you next time.
0:58:21.7 Speaker 1: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward, with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percia Verlin. Our artwork is by Teddy Blanks, at Chips NY, and our theme song is by Spatial Relations.