Demystifying Hot Legal Topics of the Pandemic

Episode Notes

Transcript

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Intro: Welcome to the official ABA Law Student Podcast where we talk about issues that affect law students and recent grads from finals and graduation to the bar exam and finding a job. This show is your trusted resource for the next big step. You’re listening to the Legal Talk Network.

Meghan Steenburgh: Hello and welcome to another edition of the ABA Law Student Podcast. I’m Meg Steenburgh, a 2L at Syracuse University College of Law JDI Program. This episode is sponsored by NBI. Taught by experienced practitioners, NBI provides practical skill based, CLE courses, attorneys of trusted more than 35 years. Discover what NBI has to offer at nbi-sems.com. Today, we are honored to have with us, Harvard Law Professor, Glenn Cohen. One of the world’s leading experts on the intersection of bioethics and the law as well as health law. He also teaches civil procedure. From Seoul to crack out of Vancouver, Professor Cohen has spoken at legal, medical and industry conferences around the world. His work has appeared in or been covered in major media outlets including PBS, NPR, ABC, CNN, the New York Times and The Washington Post. Professor Cohen’s current projects relate to big data, health information technologies, mobile health, reproduction reproductive technology, organ transplantations, and medical tourism among other fascinating topics.

He is the author of more than 150 articles and chapters. His award-winning works have appeared in legal, medical, bioethics, scientific and public health journals. Professor Cohen is also the author, co-author, editor or co-editor of more than 15 books. Professor Cohen is a graduate of Harvard Law School. Professor Cohen, thank you so much for joining us today. So honored to have you with us.

Glenn Cohen: Thank you so much for having me and that was a wonderfully warm introduction. I should take you on the road with me.

Meghan Steenburgh: Happy to join you. Well, I want to spend most of this podcast diving into the pandemic from the FDA’S legal requirements to federalism issues, state police powers to schools, and employers mandating vaccines and religious, and medical exemptions of those mandatory requirements. The constitutional claims of the right to bodily integrity, and inform medical choices. I don’t need to tell you. These are just some of the topics literally changing hourly here in August of 2021. So, I think let’s just start by backing out looking at the vaccine itself, the COVID vaccine falls under an emergency authorization, what does that mean legally and practically?

Glenn Cohen: Yeah. So, it’s an Emergency Use Authorization and we should say COVID vaccines and to be clear only some of them have received even Emergency Use Authorization status in the United States. So, in the PREP Act, which is a statute congress set up a mechanism by which inappropriate circumstances, FDA can give something Emergency Use Authorization, even with that what sometimes called full approval. Technically, with a vaccine, the technical term is BLA, biologics license application. And essentially, it is way before you’ve completed the full review and the full paperwork, which requires a quite a lot of work for FDA to green light something for an emergency use and it has several conditions that are required. It’s still a very high bar. As I tell people, these vaccines, the data for them have been scrutinized probably more than any other scientific matter on earth, I would say in terms of the amount of academiologist(ph) number of people in drug companies and FDA, number of people in the public who are obsessed over this data, and this is where it gets interesting, there are some who believe the fact that this is under an Emergency Use Authorization rather than a full BLA application makes a difference as to whether an employer or a university for example, can mandate compliance with the vaccine as a precondition to attending a university or going into a particular job.

So, I have my views on that, (00:04:21) other views and I’m sure we’ll get into it, but that is a relevant distinction. The last thing I should say is the EUA status, Emergency Use Authorization status is a liminal state. In that, it looks as though the Pfizer and Moderna have both flied for EUAs. I think for BLAs. I think J&J may have as well Johnson & Johnson, I’m not a hundred percent sure on that one. Pfizer, I think the estimate is by FDA that they will complete the process by September, October is what’s looking like now. Moderna will be behind that because they are still providing additional paperwork for the FDA. So, my guess is though, that by fall, at least one of the vaccines will have transition from emergency use to a full BLA.

(00:05:03)

Meghan Steenburgh: So, I want to jump right into what you already anticipated and that is the vaccination precedent under Jacobson v. Massachusetts and some argue that it does — cover emergency authorization some argue it does not. Just recently, the Seventh Circuit cited this case said it was applicable, Indiana University can require vaccinations because the refusal to be vaccinated is not a fundamental right. So, where do you stand in this?

Glenn Cohen: Yeah. So, here, is useful and so good. It’s useful to I think distinguish statutory problems versus constitutional problems with vaccination. The constitutional problems solve those of you listening (00:05:44) only attached to a state actor, right? So, when your employer, a private employer decides to require or private universities decides to require vaccinations, there’s typically not a plausible claim a state action so that all that we have is really a statutory claim the comes to federal law. So, we just parked that over there for a moment to come back. So, I think those are actually the more important challenges.

When it is a state actor, though. Of course, the constitution is implicated and the argument made in the Indiana University case was that it violated the constitutional rights of students, who wanted to attend Indiana University without being vaccinated. And if I can quote from the opinion, so the district court opinion is quite long and an impressive sort of way, it’s 101 pages. The judge (00:06:33) was pointed by President Trump. So, I think there’s some ways in which they kind of tried to take it seriously, the Seventh Circuit affirmance of it, by the way, or the Seventh Circuit decision not to give a stay pending appeal, not shorter. I think it’s like all the four pages by Frank Easterbrook, right? This is what the district court sends, even assuming – and this in the conclusion, even assuming in certain respects of reparable harm and an adequate remedy at law, the students here having us stablish a likelihood of success on the merits of their Fourteenth Amendment Due Process Claim or the balance of harms, the public’s interest favors the extraordinary remedy of a preliminary injunction before trial on the merits.

We thus denied a preliminary injunction motion. Recognizing the significant liberty interest the students retain to refuse unwanted medical treatment, the Fourteenth Amendment permits Indiana University to pursue a reasonable, and due process of vaccination and legitimate interest to public health for students, faculty and staff. Today, on this preliminary record, the university has done so for its campus community. That leaves the student’s multiple choices, not just force vaccination. One might well hail a certain (00:07:39), self-reliance, self-determination as preference. An unfettered right of the individual to choose the vaccine or not, but given a preliminary record such as today’s court must exercise judicial restraint and superimposing any personal views in the guise of constitutional interpretation.

Reasonable social policy is for the state legislature and its authorized arms and to the people to demand through their representatives. A little bit of gloss of kind of respecting the people, a little bit of a gloss of leaving for the legislature, what I often call foe judicial minimalism, judicial minimalism when it’s convenient to do so, right? But for the most part, the court found this at the end of the day, Indiana University gave people religious accommodation, religious exemptions, I should say, gave people disability or medical contraindication exemptions and then said to everybody else, “You know what? If you don’t want to do it, don’t come to Indiana this year.” And the court said is — and the Seventh Circuit push this line even further. Seven Circuit thought this was an easy case. They said in Jacobson, we actually required people to be vaccinated for smallpox in 1905 and if you didn’t, you face at that time a fine and I think there was a possibility of jail time when you didn’t pay the fine.

According to Judge Easterbrook for the Seventh Circuit, this case is easier than Jacobson, because we’re not even finding you or using the criminal penalty, right? We are just saying it’s a precondition to entering the university. So, to me, this was not actually all that hard to be honest. I think the hard questions constitutionally would have to do if a state or a religious individual or religious — non-religious institution were to push on whether to grant religious exemption. So, if they decided not to give any religious exemptions or if they denied a religious exemption for sincerely held belief. And this is interesting because I’ve been told that a certain major Catholic University is taking the position that because the Pope has not said or has encouraged people to be vaccinated, that Catholic students that seek a religious exemption might be out of luck at institution. And here, I think that this would be a place where I imagine the Supreme court, based on some of the work, is done in the shadow docket relating to Church exemptions from generally applicable laws or seemingly general applicable laws for COVID-19 and also the decision in Fulton earlier this term, that would be a place where I’d be a little bit more worried. But the constitutionality of all this, I don’t know, completely worried. They’re just a little bit more worried, but a basic one that offers disability and offers religious accommodations and exemptions.

(00:10:12)

I think that the constitutional bona fides are pretty clear. And I think that my guess is at every court that decides the matter will come out that way.

Meghan Steenburgh: How do those medical and religious exemptions work? As you touched upon with the religious, you would have to prove you are devout and this is a sincere part of your belief?

Glenn Cohen: Yeah. So, my impression is the way this is actually working is that most universities are actually taking a very light hand. Employers have a little bit less visibility, but bumping for both are taking a very light hand, just that if you request it, I don’t think they’re going to particularly interrogate you on the reasons or show me how and in fact, there is case law and again, I’m not a religious law expert, but my understanding is that there is case law suggesting that actually even untraditional religions or religions that have very few followers or idiosyncratic religions, if sincerely beheld, if the reasons for it mirror the kind of organizational religion in favor of a creator and stuff like that, that the same constitutional rights are granted to individuals of those minority religions.

And my understanding is that the vast majority of the universities that I’ve encountered are merely saying that you requested and you stated it. You make an attestation that will be the end of the matter. On the medical examination, I don’t know (00:11:33) whether they’re requiring more than that, whether they require a doctor’s note or the like. But from what I’ve seen, the exception again of this Catholic university, I think, is quite interesting and taking this position, they aren’t making this two (00:11:46) too difficult, and I think that makes a pass more confident that they’re not going to run into legal trouble.

Meghan Steenburgh: There would also be some concerns, though, from the medical exemption side of things, if someone asked too many questions of you, whether as a student or as an employee as well, correct?

Glenn Cohen: That’s correct. Now, for the employers, there was really a question about the American Disabilities Act here, and the EOC has given some useful guidance and that you don’t want to basically engage in inappropriate or unlawful kind of inquiry, disability related inquiry, if you can avoid it. So, they’ve asked basically people to kind of just inquire “Are you vaccinated?” Sort of yes or no, and try not to ask more of that, making plans for individuals. So, I started by saying there’s the constitutional question, which I thought was easy in the statutory question, which I think — I also think is easier to be honest, but a little bit harder. And I think we’re (00:12:43). And that is the question about whether as a statutory matter, the fact that this comes up under an EUA, which is an Emergency Use Authorization rather than as a BLA approval, makes a difference.

And here we’ve had the Houston Methodist decision that hospital basically required its employees to be vaccinated, the employees challenge, saying it’s under an EUA. You can’t do that. We’ve also had an opinion that came out last week from the Office of Legal Counsel, which is not legally binding private employers, but does kind of state the advice given to the president, which is a predicate for them announcing that they’re going to have a vaccine requirement with – you know, some carve-out, some things you can do if you don’t want to be vaccinated. Additional requirements for you for federal employees.

Essentially here, I will confess that I think the EUA statute is badly written. So, I think the faculty more confused about it. Not that crazy, but essentially the claim was the way the statute was written by the challenger is that we cannot condition anything on getting a drug that is an Emergency Use Authorization, whereas in the better reading and the one given by the Houston Methodist decision for the one given by the OLC and I’m not taking this position publicly. So, it’s not a surprise, is that it’s really just talking about the informed consent process with all the provisions that people are pointing to, is about the informed consent process, which you have to tell people as part of the informed descent for the actual substance. But it doesn’t purport to bind private actors or government actors beyond that. And to me, the proof (00:14:25) of this is actually all the people who went to universities last year and had testing done, COVID testing. Most of those COVID tests were actually authorized under Emergency Use Authorization.

So, it was really true that the statute prohibited you from conditioning anything on using something that’s under Emergency Use Authorization that would seem to suggest that all of the COVID testing done required by universities last year and going forward this year was also unlawful under the statute. That just seems to me to prove that that can’t be right. But even just as a pure matter of statutory interpretation, I think you get pretty quickly to the view that the EUA, non EUA distinction doesn’t make a difference, that all the provisions that people are pointing to are actually just about the informed consent process and what you have to tell people about the substance by the drug sponsor or by the vaccine sponsor.

(00:15:18)

They’re not purporting to bind outside entities, governments or universities or employers. And my favorite phrase here is congress doesn’t hide elephants and mouse holes. Congress wanted to preempt a huge amount of background employment law, university law of education. It kind of knows how to do it, and I don’t think it would have done it through this kind of oblique reference in the EUA statute.

Meghan Steenburgh: So, who has with all of these — we’re looking at the constitutional statutory rights. But is there also a discussion about whose rights are greater, the university or the student saying, “no, I don’t want to potentially have that. I don’t want to inflict bodily harm upon myself.”

Glenn Cohen: Yeah. As a legal matter, we’re not in balancing tests kinds of territories. I mean, we are in the sense that I suppose if the university were to grab substance off the shelf and say, “okay, you must inject this,” maybe we would be in that territory where there would be a question about what the reasons why the university had done this, whether they’re appropriate or not. But nobody thinks that we’re in that territory.

I think as a moral matter and as a legislative matter, we can talk about the states that have tried because all I’ve said so far, if you listen carefully, it’s been about federal law. Maybe I’ll just introduce the state law piece, which is a number of states have basically introduced a set of statutes to block the operation of either mandates or, in some instances, what are so called vaccine passports, I prefer digital health passes as a term, which are verification opportunities or requirements, and have done that under state law. And the question becomes, well, what happens if a state like Florida, for example, is taking the position that you can’t do this? Does the federal law preempt? And here the answer is, the federal law probably doesn’t react because while the Emergency Use Authorization statute doesn’t create a block, doesn’t prohibit mandates, nor does it require it.

Indeed, at the moment, nothing in federal law requires private employer or a university or a state government to have such a mandate. So, it’s not clear what would preempt on the federal side, any state law to the contrary. So, the end result is we have a checker board, depending where the personal listings of this lives. If you’re in a state that has, by state law prohibited mandates as long as that passes whatever the bona fide tests are under the state’s law, state constitutional law, state administrative law. There’s not going to be a mandate at your university and your employer, whereas if you’re already stated like mine in Massachusetts that has not done that, then, in fact, individual employers are able to do this as they choose.

So, so there is a balancing question, but the balancing is largely been set by state legislatures making decisions about how important this is to them. They may revisit those decisions as the situation with the Delta variant changes and as numbers and ICU beds. But I think, it’s an object of political contestation. I have many views in terms of ethicists(ph) and political philosophy, but I also think they certainly have the right and the state law. This is what your governor and your legislature pass, right? Unless and until there’s a federal law to the contrary, it seems right to me that you can make a decision. And some people would say this is the genius of our federalism, (00:18:45) laboratories of experiment. I have to say, well, I can respect that viewpoint. I’m a little less fond of it when we’re talking about a pandemic and we’re talking about a disease that doesn’t respect the political communities and the distinctions between state in line. So, to me, my fond is hope is that post COVID may be a moment for us to rethink our federalism when it comes to public health, because certainly with contagious diseases, I’m not sure our typical thoughts about federalism are well suited for them.

Meghan Steenburgh: We are speaking with Professor Glenn Cohen, Harvard Law School. We’ll be right back.

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And we are back now with Professor Glenn Cohen, Harvard Law School, one of the world’s leading experts on the intersection of bioethics and the law as well as health law.

(00:20:07)

Another specialty for you is the globalization of health care. And I can think of no better example right now than this pandemic and the efforts to vaccinate the world as well. From the perspective of developing countries buying first, what are the legal and ethical considerations of that? And what more can we and should we be doing?

Glenn Cohen: Great. Great question. If you ask me – this is a lot of success and a lot of failures and I think historians will look back on this period. I don’t know maybe the great depression might be the comparison of World War I, that there’ll be tons of books. World War II tons of books doing armchair, second guessing, speculating people’s motives and the like. It’s very strange how you should live in the period where you imagine this is like one of the great historical periods of my lifetime and I’m like, yeah, I’m going to work, getting lectures, I’m on the podcast, which is great. So, when people look back on this, I think one of the things that they will view is the greatest failures is that there will be thousands, hundreds of thousands, perhaps millions of lives lost that could have been prevented with a different vaccine production and rule out process.

In that, we had — the COVID – and I should say on the front end to say the success we’ve had with producing the three COVID-19 vaccines we have authorized in the United States is remarkable. Have you asked me and many of the people who started looked at the space as soon as we started this, when we began the drug development process, the vaccine development process, are we going to succeed? How long would it take? I think the quickest vaccine before that had been four years. FDA set a threshold of 50% efficacies, you need to show it was 50% effective. In fact, the first two out of the gate, Pfizer and Moderna were all in excess of 90%. If you’re at the casino, we are like scoring on the roulette wheel. We’re hitting like the magic number not once, not twice, like an amazing amount. And this is an undertaking that was the result of a huge amount of coordination of hard work, of investment by operation warp speed, but also prior investment. DARPA, for example, invested in the Moderna vaccine – Moderna I should say, mRNA platform many years before COVID.

We spent a lot of money, a lot of capital and a lot of leadership on this. That’s also the good. That’s a good type of the story. The bad side of the story is once we began producing these vaccines, we did not distribute them in a way that might seem sensible to an ethicist, which would be in order you would equalize, life years across different populations, that you would essentially distribute it in such a way that you would try to maximize the number of life years saved, a member of life saved, if you don’t like life years. We were to have done that, we would have distributed vaccines in a very, very different way. In the U.S, we have been gifted with a wonderful medical infrastructure with a huge number of ICU beds per capita compared to a place like Lesotho or Liberia or something like that.

So, if all you wanted to do is prevent suffering and death, you have allocated vaccines in a way that we’re sensitive to these differences. That’s not what we did. Instead, countries that basically got in early that had a role in the production process, had a role in the funding and made advanced commitment to purchase got to the head of a line, and other countries didn’t. And on the back end, we had the COVAX consortium, which is trying to — I think it’s 10% of the world’s population. That’s their kind of goal for this year. I think it’s something like that. Buying these vaccines but we seen huge amounts of slow down. And in particular, once India hit its troubling period of infections, the Serum Institute, which is one of the biggest producers of vaccines for the world, again became nationals.

I think look back at this period of one in vaccine nationalism, where we engaged in a lot of fording behavior. And we’re seeing this right now where there’s discussions in places of Israel of doing a third booster shot, which, to be clear, we’ll reduce or the evidence, amassing evidence may marginally reduce the risks for some groups where large parts of steps to have in Africa, the vast majority of people haven’t had a single dose. So, we have Europe, Canada, Israel, UK, the United States with lots of doses, more doses than they need for population. Then we have large portions of the world that don’t and it gets worse from there because it’s not just the doses of the problem, it’s the freezers, it’s the distribution networks and the like. And the end result is we are going to have huge swaths of the population and will not be vaccinated, probably until 2023, 2024 and it’s entirely possible that we’ll have new variants that emerging there elsewhere that actually are even more lethal or spreading more cause, more preventable deaths.

(00:25:04)

So, I think we’ll look back at this — people will look back at our generation of a little bit four at this. What could have been done differently? It’s an interesting set of questions. Perhaps there could have been, as part of operation more speed and funding the like, commitments to fair distribution as part of the intellectual property development licensing. There’s lots of pushback on the trips waiver. Of course, the United States surprise many by taking the position of the trips waiver should occur, but it’s been basically blocked by a number of other countries. And even with the trips waiver, there’s some questions about nobody who thinks that there should be the trips waiver thinks that that’s going to do it in and of itself. That’s a magic bullet. We need to build capacity. We need to think about training, we need to think about distribution and the like. And on this, I think I’m hopeful that there will be marginal improvements in this direction, but I just don’t see us going down a path where we actually make good on our best ethical impulses and what we ought to be doing, which would be a much more robust vaccine sharing.

Meghan Steenburgh: Well, in the WHO seems as though the World Health Organization is somewhat policing that in the sense that they’re saying, before you give that booster, as you were just mentioning, let’s make sure more of the world is vaccinated. Is that just more of an ethical reminder from them, or do they have is there a level of authority above that?

Glenn Cohen: You know, they are a group that largely I think they give a lot of moral leadership. They got a lot of technical leadership and a lot of coordination. But essentially, the United States tomorrow were to start giving out third boosters and now third dose boosters Pfizer has signaled they want to do this. There’s nothing that the WHO could do I think that would really prevent that. There might be some combination. Perhaps there might be some trade retaliation by some, I suppose, (00:26:55) WHO is elsewhere. But to me, this is soft law. This is international norms. This is politics rather than the idea of WHO can prevent the U.S. for doing this when the U.S. (00:27:07) for the electoral property and the manufacturing capacity.

Meghan Steenburgh: So, where do we go from here in that intersection of health care law and ethics and access and fundamental rights? What have we learned from this that we can take? And I know there are many, many lessons, but if you could just give that 37,000-foot view.

Glenn Cohen: Sure. Okay. So, one lesson we’ve learned that I don’t even touch chance talk about so much is that actually the way the pandemic is being experienced by different communities is quite different. And we saw this, I think, especially in the early days of vaccination. But even before that in the United states, that racialized communities, vulnerable communities, quite a different reaction and quite an important need to meet people where they are and to have leaders from those communities be the ones who are doing outreach. And again, we’re much more successful now. But some would say we failed, even within the United states, not to prioritize some of these communities for more attention, more allocation.

So, that’s one piece of it. The second piece of it, I think, will be viewed as the politicization of public health. (00:28:14) story in a public health to be able to say, you go back to the 1900 like 1890 1900 smallpox. We’ve actually seen a lot of this movie before. We had vaccine mandates (00:28:27) by employers. We have verification. We had actually — I showed the scar campaign because that was one of the — it was too easy to forge the documents, but the actual small park scar left a nasty scar. The vaccination process was something that employers, educators, education institutions kind of required. But this time scene, I’m sure it was political that I mean Jacobson made it to the Supreme Court. But I think the fact that this has hit the souls of really true red blue divisions in the United States is so unfortunate.

We’ve seen these kind of (00:29:02) that are libertarian to some extent, but I consider them to be a little bit of a foe libertarian and that this is not — I think we do have seatbelt laws, for example, and helmet laws. But to me, this is not that, you might have problems with that. I don’t. But you might have problems with that. But this is different. The ability to swing your own fist ends on my face and the effect that people here are engaged in activities that put others at risk. And my own view is a libertarians should like vaccine mandates and should like at least vaccine verification. Something like New York is doing, which is saying in order to get in, or you have to show this credential. The reason is because as a principle of public health, it’s about the less restrictive alternative. If the alternative is saying we’re shutting down indoor dining. We’re shutting down in person’s schools, right? If we have a less restrictive alternative that can be keyed more directly to the risk you pose, who don’t pose or opposed to you, then I think we’re kind of doing the right thing, even from a libertarian perspective, in trying to kind of risk reticulated in a very careful sort of way.

(00:30:09)

But I’ve been saying this a long time, and people who have opposite size in this debate, I think don’t agree. And maybe that’s the last thing I’ll say here is that anti-vacs populations and anti-vacs ideology, I think before this period of American history, it was easy to treat them as a relatively fringe ideology and somewhat dismissively, I would say, in some way associated with the extreme left more than the extreme right, naturalism anti-GMO, this kind of stuff. What we’ve seen, though, I think, is that either preexisting, it’s a much larger population than we thought, or the political discourse is inflamed and (00:30:49) in such a way that we’re having — I think we’re going to see beyond COVID whether this has implications for mumps, measles, rubella, other kinds of vaccination going forward. The last thing I’ll say is truly the last one you asked me, 37,000 feet, of course blabbering on is this point I made about the global aspects of this that had we had an effective sharing of information and restrictions coordinating a vaccination earlier on my own view is we total up the death toll at the very end. We’ll be talking about an order of magnitude difference compared to what we might have achieved if we had more of a (00:31:28) justice.

Meghan Steenburgh: And I do have one final concluding question, and that is because I love to find out just that personal component. Like, if you could do law school over again, what would you change? What would you do? What would your advice be for law students today?

Glenn Cohen: Yeah. So, first of all, I had a blast law school. That is my first advice. I often joked that I – so, I’m from Canada, and I moved here, and I don’t want (00:31:54) until I arrived at the Harvard Law School. I must have lived a very sheltered existence, but I partied more my first year of law school than just about any other year of my life. And I think I’m not worse for it. I won’t aim the professor where we discovered that a professor of ours had never done Jello shots. And so, for the last day of class, we made the entire class Jello shots and brought that, the faculty number did, in fact, partake in the Jello shot, which was at the class ended, to be clear, the entire section.

So, that’s just to say you should have a blast. Second thing I’ll say is I’m (00:32:29) neither my parents finished high school, right? I came here not knowing a lot about various parts of legal academy, law school lawyers. It’s one of the reasons why we created this great course, zero that we have a long law schools in America now to try to demystify some of it. But the most important thing to keep reminding yourself that you find yourself in the same situation as you belong, right? It’s hard to get into law school and moments when you have reasons to have self-doubt. When you have moments of stereotype threat. It is a moment to just remind yourself that you really do belong here and you really can do really amazing things.

Last thing I’ll say, this is a little bit more technical, (00:33:06) this might be some (00:33:08) is my own view is that students spend way too much time prepping for class and way too little time on the back end. So, I say if you’re going to have 10 hours for a particular course in a week other than being class, I would recommend taking no more than those five for the prep. Even if you feel like you’re going into class a little shakier, you’re going to (00:33:28) your cold call and spend the 5 hours on the back end on reviewing and understand and consolidating. And that’s because the way law school is taught in many places by many teachers is a kind of magic show, your eyes directly to the wrong thing, and then all of a sudden, the rabbit pops up from everywhere and you can do as much preparation as you want. But you’re not going to spot where the rabbits pop up. But after you’ve sat through the movie the first time, it’s much more easy to consolidate all that you’ve learned into boxes now that you know what the boxes look like.

So, my own view is less prep more post class. Even if that put you in the position where (00:34:06) your cold call or something like that, people don’t remember. Faculty members don’t really care as long as it seems like you put in a good faith effort, that’s probably good enough, and you probably have way, way, way more anxiety about it, then you really should.

Meghan Steenburgh: I should have spoken to you a couple of years ago. That’s great advice. Well, thank you so much. We could speak for hours. I didn’t even get to have the questions that I had for you, but thank you for all of your time today. Professor Glenn Cohen, Harvard Law School, thank you for joining us.

Glenn Cohen: Thank you so much for having me.

Meghan Steenburgh: And thank you for listening. I hope you enjoyed this episode of the Law Student Podcast. I’d like to invite you to subscribe to the ABA Law Student Podcast on Apple Podcast. You can also reach us on Facebook at ABA for Law Students and on Twitter at ABA LSD. That’s it for now. I’m Meg Steenburgh. Thank you for listening.

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