200th Episode Spectacular!!!
Elie Mystal is the Managing Editor of Above the Law Redline and the Editor-At-Large of Breaking Media....
Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a...
Kathryn Rubino is a member of the editorial staff at Above the Law. She has a degree...
It seems like only yesterday that we started this humble podcast. For our 200th episode we’ve got former co-host Elie Mystal back to bring the whole crew from the whole history of the show together for a wide-ranging discussion about law school debt and an AccessLex study about the notable difference in the debt loads of Black, Hispanic, Asian and Multiracial law school graduates, the changes to the industry over the course of the show, and an exciting update on what Elie’s been up to. Come for the content, stay for the sound effects!
Special thanks to our sponsors, Paper Software, LexisNexis® InterAction®, Lexicon and Nota.
Above The Law – Thinking Like A Lawyer
Elie Mystal’s Back: The Prodigal Podcast Host Returns
Joe Patrice: Hi.
Kathryn Rubino: Hi.
Joe Patrice: Yes, it’s Thinking Like a Lawyer.
Kathryn Rubino: It is.
Joe Patrice: In fact, you know what it is.
Kathryn Rubino: I think I do.
Joe Patrice: What is it?
Kathryn Rubino: I think it’s the 200 episodes, spectacular, oh yeah.
Joe Patrice: Yes. So thanks everybody, thanks.
Kathryn Rubino: I’m so glad you actually got the sound effects going. Better late than never.
Joe Patrice: I thought I’d do that for you.
Kathryn Rubino: I agree with it.
Joe Patrice: Yes, it’s the 200th episode of Thinking Like a Lawyer, which for those of you who’ve been with us from the beginning, you probably never thought we would see but we have. I’m Joe Patrice from Above the Law. That’s Kathryn Rubino from Above the Law, but we are also joined by Elie Mystal, who was the original co-host of mine on Thinking Like a Lawyer. So welcome here.
Elie Mystal: I go away for a couple of episodes and you guys give him the fucking soundboard again. Well, come on.
Kathryn Rubino: I actually specifically requested it.
Joe Patrice: It was actually difficult.
Kathryn Rubino: I think it gives some whimsy to the podcast.
Joe Patrice: Because the old the old soundboard stopped working with this new system. So we had to actually do some real heavy work. Thanks to our folks at LTN who helped us work all that out, but Legal Talk Network got me some stuff that allows me to do sound effects again. So we’re in good shape.
Kathryn Rubino: I’m quite excited about it and they’re not just depressing sounds which is also a step in the right direction.
Joe Patrice: Well, that was the thing.
Elie Mystal: Well, that’s new.
Joe Patrice: The default sound effects with this Elie were like sad trombone, people crying, like all the defaults were horrid, so I’ve had to actually do some work.
Kathryn Rubino: Yeah, he had to get some happy ones going.
Joe Patrice: So between all of the people on here today, we’ve been on every episode of Thinking Like a Lawyer in some capacity.
Kathryn Rubino: Mostly just you.
Joe Patrice: I’ve been on all and made a cameo appearance on the one that I wasn’t really on.
Kathryn Rubino: We’re counting it.
Joe Patrice: Yeah right. By that laugh from Elie, he remembers the one that I didn’t do.
Elie Mystal: It was the one with Mark.
Joe Patrice: Yeah, where I had to come on and give a disclaimer at the beginning of the episode that I know we have an explicit tag, but this one is worse.
Kathryn Rubino: But this is real explicit. We are not joking when we say it’s explicit.
Joe Patrice: Yeah. Well, I guess let’s start this off. We’ll have a bunch of generic conversation as well as talk about some things that are going on, but we’ll start this off as we used to in a feature that kind of we felt was more proprietarily Elie, so it kind of departed when he left.
Kathryn Rubino: Yes. Well, I scream a lot less.
Joe Patrice: Right, fair enough. But we’ll start off with Elie’s grinding of gears.
Joe Patrice: Wow. Yeah, thanks.
Kathryn Rubino: I like it.
Elie Mystal: I’m glad I know that I can blame Kathryn for this. I mean, yeah, that’s going to be important later. Yeah, so 200th episode. I thought if I was going to grind some gears on the 200th episode, I should do it old school and go back to my roots, which is being pissed off about student debt. If you’ve been following the news, you’ve probably seen Joe Biden say in a CNN town hall that he is not going to make $50,000 of federal debt relief happen, but he’s only going to do $10,000, and that he doesn’t want to risk giving money to people who went to Harvard and Yale and Penn. So as a person who went to Harvard, I feel like it is completely in my rice to say Joe Biden bite my ass. That is the dumbest way to think about the student debt problem. As we know, as many listeners of this show knows, debt knows no elitism. Debt is going to hit you hard whether you went to Harvard, it could hit you hard whether you went to Harvard or whether you went too toughs or whether you go to Thomas Jefferson School of Diploma Mill, right.
But we specifically know is that the students who graduate from the more elite colleges and universities in this world, and certainly in the more elite law schools in this world, tend to have less debt and there are lots of reasons for that. One of that is that the elite schools have elite endowments and are simply able to be more generous with their grant money than smaller schools. Harvard for instance has a $40 billion endowment. If you actually look at the list of endowments in the world, it’s like the Catholic Church number one, Harvard number two. What kind of crazy list are you on for you’re number two to the church, right. So Harvard is able to give a lot of grant money for colleges. If your family makes under $65,000 a year, Harvard makes it free. Just straight up, here’s all the money, come to school, we’re done here, right.
It’s the students and it’s that classic thing we see this in colleges and we see this all the time in law schools. It’s that classic problem of the private school that is not quite elite but charges elite dollars that really tends to slam people with student debt. It’s they’re paying for the very old the very elite prices but they’re not getting the elite degree, they’re not getting the elite job opportunities, they’re not getting the elite grant money. So if you look, and I’m talking about just for colleges now. If you look at colleges, the school that right now according to US News has the highest debt load of its graduates is Drexel in Philadelphia where students are graduating with an average of over $50,000 worth of debt. Drexel, not Penn, not Princeton, Princeton is third lowest in terms of debt load for college graduates.
Joe Patrice: Another endowment situation, I assume.
Elie Mystal: I assume so, probably from southern plantation slavery people, but still, well, money gets laundered over time. So anyway, the point here, the listeners of this show know this more than anybody, Biden is wrong. The framing of this issue is wrong. I will accept arguments that maybe $50,000 of debt relief is too much, maybe there’s as a different economic leverage point that you want to pin it to as opposed to 15. Maybe the right number is 24. I don’t know what the right number is but saying that $50,000 is too much because he doesn’t want to give money to Harvard and Yale and Penn, that’s just factually wrong. It’s the wrong frame and it’s creating a false choice between elites and hardscrabble students that does not exist when debt collector comes calling.
Joe Patrice: I tweeted about this when he made that statement that it resembles in a lot of ways the anti-vaxxer logic right. Like I don’t need it for my kids. My kids are healthy like other people. But he’s saying, oh we shouldn’t be giving it to these people because I assume they’re rich because they went to Harvard or whatever, which is seems to be his logic, but the problem is much like a vaccine situation. The economic damage is that this debt exists at all that there are people who can’t afford things because they have it. It doesn’t matter where they’re coming from, if you inject $50,000 more into their lives, they buy more things and that’s the point. It shouldn’t be about picking people who are sickly. It’s everybody kind of needs it for it to work.
Elie Mystal: Exactly. It’s economic stimulus on that. So there are lots of ways of like — you can look at just straight up economic stimulus. You’re giving $50,000 people who will use it to buy shed. They’re going to save it. They’re going to use it to buy a house or groceries or whatever in between, but there’s also the social justice argument. The reason why $50,000 has been picked as the price point by the way is because experts have figured out that $50,000 is about what you need to close the racial wealth gap and the racial disparity in student borrowing.
So we know that black students, black graduates carry when they graduate from college about $74,000 more debt than white graduates, right. But that balloons to $25,000 more debt, that triples, by the time they’re four years out of college. Why? Well, lots of reasons, interest obviously being one of them, but it’s that thing where like if you’re white and you’re getting a little bit of a better job, you’re getting a little bit more on the dollar than comparative black graduates that initial unfairness is going to spiral out of control when you add in student debt and student debt interest. So $50,000 was picked as the number because experts told us that this would be the right pinch point to really address the racial wealth gap, right.
So again, if you’ve got a principal argument for why actually no you can address that problem with $30,000 or $15,000, I’m willing to listen to your argument. But give me a principal argument. Don’t give me this bull crap about, well, we don’t want to give money to the Winklevoss twins. Nobody’s giving money to the Winklevoss twins, because the Winklevoss twins didn’t need debt to go to college.
Joe Patrice: Yeah exactly. Those people never took out debt anyway. It’s an important issue and it’s one that would allow — this whole student debt thing, it’s scary for folks, because in a lot of cases, it’s the first contract they’ve ever seen in their lives to sign onto that, and there that happens —
Elie Mystal: I know what’s happening.
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Kathryn Rubino: So it’s interesting to that Elie is kind of going back to his roots, sort of in his grinding of gears. I think it’s really interesting, and since this is the 200th episode and we do have lots of folks on the podcast, I think it’d be really fun to talk about sort of what’s changed since the beginning of Thinking Like a Lawyer. So what has this been, year four of the podcast I believe.
Joe Patrice: Four really. How long have we been doing this?
Elie Mystal: We started this before Trump I feel.
Joe Patrice: I think so.
Kathryn Rubino: Well, we’re pretty much here every week and it’s 52 weeks in a year, and we’re on 200th.
Joe Patrice: But we weren’t every week.
Kathryn Rubino: So I did the math that way.
Elie Mystal: Every two weeks.
Joe Patrice: Every two weeks for most of the run of this show.
Kathryn Rubino: Oh, interesting. So now we just work harder. Good news.
Joe Patrice: Yeah. March 12 —
Elie Mystal: To put a woman on the show, you’ve got to be working hard. Isn’t that just the rule?
Kathryn Rubino: Don’t worry. They’re also still making me do my other podcast.
Joe Patrice: March 12, 2015, so it’ll be our six years in a couple of weeks.
Kathryn Rubino: Six years, okay.
Elie Mystal: We really started this near ‘The Ides of March’.
Joe Patrice: Well, on the 12, but yeah, so we were few days before.
Kathryn Rubino: A week off.
Joe Patrice: Week off of The Ides, yeah.
Kathryn Rubino: So what have been the big changes in the legal industry over that course of time? Obviously there was the Trump Administration.
Joe Patrice: I mean, I think that’s the big one, yeah.
Kathryn Rubino: Yeah, that’s pretty big.
Elie Mystal: Well, one thing that I — one of the changes for me is that I’ve followed the legal industry less and less but since in the last six years, so there’s that. But certainly, I think one of the underreported aspects of the Trump era and what that did to legal industry was that it made kind of pro bono work great again. There was some fantastic pro bono work done by big law firms. Not Jones obviously. All the people to the left Jones they, let’s say, are really taking on cases that you kind of couldn’t have done without the kind of big law backbone kind of into it to really try to in many ways help some of the vulnerable people that were being targeted by mainly Trump’s justice department. So I wouldn’t put Mayer Brown’s pro bono efforts on the level of the ACLU or actual social justice organizations. But when Mayer Brown kind of I want to say single-handedly again, but takes a leading role in beating back the TPS determination to take temporary protected status away from Haitians sheltering here. That’s high-end really socially valuable work that just there wasn’t as much of during the Obama years. So I think that pro bono departments in general in big law deserve a lot of credit for their stepping up and taking on, regardless of political controversy, taking on worthwhile cases.
Kathryn Rubino: Yeah, and I think the kind of corollary to that is as they are getting more acclaimed for their work is more firms are letting you bill more of your time and count those hours towards your bonus numbers at the end of the year. So it really shows that firms are not just committed for the headlines but are committed to actually paying their associates for that work that they’re doing, which is a good thing.
Joe Patrice: Yeah. No, definitely true. Today, we’re actually in a whole different topic, I mean related, but I’ve been following a big thing that’s been going on on the Twitter sphere is this conversation about the Hollywood Foreign Press Association being an entirely white institution and yet controlling the Golden Globes which is an important part of the industry they’re claiming, though in fairness, probably not, but whatever. The point is —
Elie Mystal: Important to some.
Joe Patrice: The point is a conversation came up about the differences between performative efforts and real efforts, and that actual institutional power sharing and stuff like that is not something that tends to be happening. Instead there’s a new hashtag. I understand that and I think that’s probably true and I understand the idea — now carrying that back to that conversation. I understand the idea of some people saying that these firms offering, you can bill 200 hours to this, so long as you still get your other 2000 from getting Exxon’s help is something that can feel performative, and I understand people who might be frustrated by that. But looking back since 2015, it’s good to have anything.
Kathryn Rubino: Yeah, and I think that these things are not unrelated, but it’s also important for the firm to say, the hours you spend on pro bono matters still count towards your numbers requirements at the end of the year. It’s very important, first of all, to make sure that folks at the firm are able to do that work. It also shows on the bottom level that this is something that the firm cares about and it’s something that the firm is willing to actually have resources they dedicate towards it. It’s not just individuals kind of researching in a library, but there’s actual dollars that are directly related to it that the firm is giving in order to make sure that the best representation for these pro bono matters is given. I think big picture doesn’t, and I don’t think any firm is going to see some significant hurt their pocketbook as a result of this.
Joe Patrice: Oh no, never. That’s just a general truism. It has nothing to do with this.
Kathryn Rubino: Sure. The pandemic was surprisingly good for big law.
Joe Patrice: Best year on record for the top firms.
Kathryn Rubino: Yeah, deeply disturbing; deeply, deeply troubling. But it’s a way to say, you are not less than as a member of the firm, either as a partner, a member, or employee of the firm because you’ve spent time on pro bono. You don’t treat it as a second-class citizen, as second-class kind of work, and I think that that is an important statement that actually translates to the culture of the law firm and kind of changes the way that folks experience life in the firm.
Elie Mystal: Speaking of the pandemic being the best year for law firms. One of the things, and this is more Joe’s part of the store, but one of the things I found interesting over the past, over the Trump era in general is that while we did see a rebound associate salaries, we did see some raises, we did see some larger bonus pools, and we did see the kind of general firms that cannot afford it, following (00:16:12) anyway. I don’t perceive that we saw the kind of salary boom cycle during this economic boom that we saw in like 2005, 2006, 2007, leading up to the crash. I don’t perceive that the numbers, that largest was quite as large, that there was more restraint generally within big law in terms of pumping up associate salaries and pumping up associate bonuses, despite the relatively economic good times.
I bring that up for two reasons. One, what the fuck; but two, potentially, was that a good thing, will that make firms more resilient and have less need to lay off scores of associates when the next recession hits, which will hit at some point because these things are cyclical. What do you guys think?
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Kathryn Rubino: I do like the way Elie just kind of served that add read to you.
Joe Patrice: Yeah, it was amazing. That’s the sort of give and take that co-hosting a show for five years can get, and why you and I are still a little bit off.
Kathryn Rubino: Good call.
Joe Patrice: But still, it’s definitely true. There are two ways I would look at that. On the one hand, there were raises a couple of years ago followed by cost of living adjustments to that raise a year ago. So the firms had actually jumped up the salaries a little bit.
Kathryn Rubino: Bonus pools aren’t where they were in 2016.
Joe Patrice: Bonus tools have been stagnant, yes, but the actual base, we had 2018 jump and then in 2019, they jumped it again for cost of living purposes. So while we haven’t seen the fact that firms are drowning in money and giving out raises, this based on the 2020 year, they did do some stuff beforehand. The flip side is there’s also some reason to be concerned that the revenue jump that we had this year is not sustainable, because a goodly portion of the revenue jump is that we’re not even, not revenue jump, but of the profitability jump, is that they didn’t travel anywhere. You didn’t fly anybody to Topeka to stay in the one five-star hotel there to look at boxes or whatever. Nobody went anywhere and that pushed a lot. There was still legal work being done, but you didn’t have to go to a hearing for six months, so that pushed everything in. Judges became more efficient because they had to. So whole things became cheaper, yeah.
Kathryn Rubino: I think that knowing this is exactly the way that big law by and large has responded to it in terms of associate salary, because this year we saw in addition to the normal bonus pool, the good chunk of the top firms also gave COVID appreciation bonuses, sort of the extra little bit of money. That was like, you did a great job during a pandemic and some people may not like us calling them COVID appreciation bonuses, but it’s true. The money was being collected by the firm regardless and the question is who gets to sharing. Is it just the partners who get to take in that money and share it or are they going to share it with associates who are putting in the hours still? We saw for the most firms either know hour requirement for the COVID bonus or a lower our requirement than they do for their standard bonuses. There’s some exceptions of course, but by and large that’s kind of what we saw.
The other thing that I think firms did very differently in 2020 than they have historically particularly when talking about comparing it 2009 and 2010 is there were a lot fewer lay offs. Layoffs happened. Stealth layoffs definitely happened with covered as many of those as we know about, but by and large the firm said why don’t we cut salaries for a little while. Let’s see how this pans out. We’ll cut everyone’s salary by 10%. We won’t have to cut anybody from our payrolls, and then we’ll figure it out. Most of those firms gave back the money, make whole payments by the end of the year.
Not all of them, but that was kind of the trend was, let’s not lay folks off, because what happened after 2009 and after 2010, there was entire classes that were missing from the legal market. Trying to find a mid-level associate in 2014 was impossible, because half of them are gone. They were laid off. They found some other work. Maybe they’re legal journalist, who knows. They were just gone from the market. Yeah. So I think that, and a lot of firms knew that that was a problem, who saw that as a backward-looking measure that they kind of reacted too quickly and cut too many folks in those times. The reaction was, why don’t we just start with the pay cut. See what happens.
Elie Mystal: Yeah. A lot of firms thought that was a problem. One thing that I thought back when we started the show, I was so hopeful enough that at some point somebody would look into the collusion that happens all the time throughout this industry, and just nobody ever does. Like nobody’s ever going to care about that, that these firms are magically making decisions pretty much in lockstep for how this entire industry is going to go forward and it’s just we act like it’s a free market of all these individual capitalists making their own business and it’s just — yeah, whatever.
Kathryn Rubino: Well, it’s largely based on public information though, right like Cravath makes a decision, everyone, here’s the decision, reacts to that public information. It’s not like ahead of time. They’ve gone into a room, decided what the decision is. that is an antitrust violation, right. They’re all sitting in a room together and then announced all the same day, all the same hours. What we see is Cravath makes a decision, a day goes by, somebody responds immediately, somebody waits two days, three days. Yes, by the end of it the same reaction is had but it’s based on publicly available information.
Joe Patrice: I get that, and it’s not an antitrust thing for that purpose. It’s actually kind of the definition of a free market. Take information and whatever, but I think Elie’s point is that I don’t care that Cravath and crevasse and Davis Polk and Debevoise and Cleary all have the same bonuses. The issue though is that those folks kind of can push that next tier into trouble. We start seeing firms get in trouble, and we actually have a decent barometer of it, because while a lot of firms did really great out of the recession, we have a few who were seeing, oh they haven’t done made whole payments yet, oh, they didn’t bring back their furloughed people, and we’re starting to see that there’s a tear of law firms that is not able to keep up with the Jones Day’s and they’re in trouble. There is something to the way in which this market is so flat at the top and then everyone else feels the need to follow it that it is the source of a lot of problems within the industry.
Kathryn Rubino: Sure. I definitely think that’s true. I don’t want to takeaway from that aspect.
Elie Mystal: Is there going to be any talent retribution for Jones Day? Is there going to be any — our students at law schools still just like, oh, I OCI’d Jones Day today and interview — is that still happening?
Kathryn Rubino: It depends on the last school.
Joe Patrice: It does depend on law school and everything. I don’t know, but I will say that we did publish that story. I don’t believe it was our own survey. I think it was somebody else’s, I can’t remember, but the brand loyalty survey of the in-house counsel, and the in-house counsel — we do this every year, there’s a survey that somebody who escapes my —
Kathryn Rubino: (00:24:03)
Joe Patrice: Yeah, maybe. Yeah anyway, but whoever does it does a great job of it, and they find out from in-house counsel what law firms you trust. For years, Jones Day has either been one or two on that. They have like really great brand loyalty among in-house people, and this year they fell to — did they fall out of the top ten? I think they may have fallen two 10. But that was the point where I started realizing, oh, there is going to be below back. There is going to be a group of people who go I’m done with this. I can’t stand the drama basically. Like Jones Day for all the crap we give them, most of the work they do is just standard legal work, but that little bit that they do that is not is horrible drama that gets in the way of your ability to do the other kind of work.
Kathryn Rubino: Sure. We saw the Lincoln Project, Midas Touch putting out advertisements not directed at Jones Day directed at potential employees, right, people talent pool, as well as people who use Jones Day as their attorneys, right. It’s not talking to Jones Day anymore, it’s talking to the people who use Jones Day.
Joe Patrice: Yeah. We’ll see if that has staying power, but it seems like it did something at least in the short term. You know what?
Kathryn Rubino: What?
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So did you have another 20th anniversary — 20th anniversary, wow, getting ahead of myself — 200th episode anniversary question there?
Kathryn Rubino: I mean, no, I had nothing in particular. I felt like I was stepping on you last time, so.
Joe Patrice: No, not at all. So what should we talk about? Should we talk about — everybody who listens this show knows what Elie’s been up to. I don’t think we need to get like — do you want to tell us what you’ve been up to?
Kathryn Rubino: I think we should let him tell us what he’s been up to but give him a time limit, otherwise this would go for four hours probably.
Elie Mystal: Well, when I was 16 — really I am hopeful you’ll have me back sometime this summer or early this fall because I have a book coming out.
Kathryn Rubino: Yay.
Joe Patrice: Oh.
Elie Mystal: I actually just we can finished, the fact check of the book. It’s called Allow Me to Retort: A Black Guy’s Guide to the Constitution. So like for normal people, I think the elevator pitch is, this is going to explain how to argue against Republicans, blah, blah, blah, but like for law people, it’s like I looked at the federal society and I tried to explain why they suck. The whole book, it says, originalist are wrong about this, they wrong about this, textualist are fucking wrong about this and this and this. So it’s just like 21 chapters of like — well, sorry, it’s 20 chapters of how the federal society is wrong and then one chapter of like they’re kind of right about this. Can you guess which chapter that is Joe?
Joe Patrice: You’re going to talk about stupid land use issues.
Elie Mystal: It’s the takings chapter, but I am —
Joe Patrice: No, I know.
Elie Mystal: Yeah, Republicans have a point on takings, but it’s 20 chapters of shit posting the FedSoc and then one chapter of like the takings. So yes, I have finished editing that. It’s in the fall, kind of looks. I don’t have a link for the pre-order, but when I do, I would like to come back and promote that.
Joe Patrice: Well, obviously. We will have you. That’s exciting news. How exciting?
Elie Mystal: Did you know that books are not —
Joe Patrice: Huge, huge news, huge, exciting new. I should have hit that one before we got this going, but you know.
Kathryn Rubino: Little late.
Joe Patrice: Yeah. Anyway, yeah.
Elie Mystal: Did you know that books are not fact checked. Like the publisher doesn’t pay for fact checks.
Joe Patrice: I mean that makes sense. I’ve read several books that suggest that’s true.
Elie Mystal: I used the fact checker. I paid out of my pocket for a fact checker for the book. The fact checks that came back, there weren’t massive errors, but there were facts that were wrong, because when you write an entire book, you’re going to get things wrong, and like little niggling things that probably would really annoy a person who knew what they were talking about, would make me look dumb. The entire book, I say, Marbury Madison decided in 1801, Marbury Madison decided in 1801. It was decided in 1803. It was over — and I was like, ah, but it would have like five times, I would have looked like a freaking idiot just without the fact checkers. So fact checkers are — I don’t think people who are not in the media understand the critical importance of fact checkers, and it’s an undervalued position that so many publications, and now I’ve learned book publishers, are just not paying for anymore, and it’s hard to understand why, because it’s very rare that a person gets a fact wrong that is the linchpin of their argument. When it happens, it’s real embarrassing like Maureen Dowd just forgetting that Geraldine Ferraro ran for vice president was in particularly embarrassing.
Joe Patrice: In fairness, almost all 50 states did too.
Elie Mystal: But what happens more often is that there are factual issues that the author just in good faith kind of gets wrong throughout their argument that just weaken the entire argument and make one feel that the thing wasn’t researched, and it’s really not always on the author. It’s the publication that’s supposed to have your back sometimes to make sure that you don’t sound like a lunatic, and so few publications pay for that anymore, even in a print world where you actually have time to do this.
Joe Patrice: Well, like having worked on a journal, the importance of fact-checking, that’s most of what you do in your first year on a journal. There’s a value to fact-checking, but there’s also the value of a good fact checker to say things like, and I don’t know if this ever came up, but not just, hey, this was actually 1803, but also you say this point. I think there’s at least a couple other things I’ve read that make that point better, and just offer that. A lot of what I was doing as a journal editor was getting into footnotes and then sending back to the professor, here’s all the things, also here’s like four other cases you should read just in case you might think these are better, and that’s hugely valuable.
Elie Mystal: That happens sometimes. Sometimes a good fact-check will be, you say the majority holding — and this is the fact checking from person who doesn’t have any legal training for me, but it’s like you say the majority holding is X, but I read the majority holding and it seems like Y, and it’s a little bit in the gray area between a fact and an opinion, but like it’s always good to hear, basically hear your words right back to you. Do you really want to say that John Roberts said X when you could just quote what he said, and it’s a little bit different? All right, you can just do that and it costs you nothing. So fact-checking is valuable. I paid for out of pocket for this book. So I hope that helps some of the argument. Now, of course, you couldn’t legally fact‑check me. So if I was just wrong about due process, we’re just going to have to live with that.
Joe Patrice: So you paid this out of pocket. So was this out of money that you were getting from the publisher but you had to hand it or was it money the publisher gave you? How do you keep track of all those things? And before you answer that, you went to law school to be a lawyer not an accountant. Take advantage of Nota, a no cost IOLTA management tool that helps solo and small firms track client funds down to the penny. Enjoy peace of mind with one click reconciliation, automated transaction alerts, and real-time bank data. visit trustnota.com/legal to more. Terms and conditions may apply. That was again Nota powered by M&T Bank.
Elie Mystal: My Nota is named Christine. That’s my wife. My wife handles that part of the store, the math part of the store.
Joe Patrice: Does that part of the business and most other parts. But yeah, so okay, yeah.
Kathryn Rubino: Well Joe, what do you think has changed the most since 20 whatever when this started?
Joe Patrice: I don’t know.
Kathryn Rubino: Have you learned any lessons about podcasting?
Joe Patrice: Have I learned any lessons? Heavens, no. No, I do think that a few things have changed. I agree with all the stuff that we’ve already suggested about the industry changing. I think that the law school world is changing not necessarily in a great way and that I think that a lot of the lessons coming out of 2009 are being forgotten and people are flocking back to law schools, despite the fact that the number of jobs has not actually changed too much. I hope —
Kathryn Rubino: Applications are like way up.
Joe Patrice: Yeah.
Elie Mystal: That’s one of the Trump effects.
Joe Patrice: Yeah. I mean there’s a bit of that. My thing that I’ve been obviously for everyone who’s listened and read for the last several months know that my current cause is a bar exam reform and fixing that, and I would hope that there’s some momentum for that. I hope the number of abuses that we’ve seen over the last year should be enough to get something rolling, but we’ll see. I hear California might —
Kathryn Rubino: Have you been following Ms. Elie’s, how they’re telling folks that they can’t use the bathroom over a four-hour our exam and then they just like the increased the length of the exam, still no —
Joe Patrice: Yeah, they doubled it, just because it worked it worked okay last time with only like a third of people being flagged for cheating when they didn’t do anything. So let’s double it.
Kathryn Rubino: That’s the California situation where one-third of folks are flagged for cheating is beyond preposterous.
Joe Patrice: Flagged for cheating and told basically in order to show cause, like we’re not even going to investigate whether or not you were cheating. You have to prove to us you weren’t.
Kathryn Rubino: And especially when you know that the underlying technology targets people with darker complexions.
Joe Patrice: Yes, which is a huge number of that.
Elie Mystal: What did they do to flag people for cheating?
Kathryn Rubino: Being black.
Joe Patrice: Well, it doesn’t necessarily say blinking too much. Well, yes, there’s obviously the race issues and that’s a good part, but not a third of applicants, because we have a shortage of people of color who go to law school in this country. So it’s clearly not that but it’s the whole problem.
Kathryn Rubino: But it’s blinking too much, losing eye contact with the camera.
Joe Patrice: Moving, fidgeting, losing eye contact or they think you’ve lost eye contact because of shadows. Yeah, all of these things register that. No, it’s been bad, and the hope is that this will result in some sort of a push to at least a different kind of exam that tests something that somebody actually needs to know to be a lawyer, and ideally, a world in which we crack down on diploma mill schools and say, you get to be a lawyer as soon as you have a law degree and put it back on the job of a crediting schools, which unfortunately, the last time we had an attempt to crack down on schools, those schools all hired Paul Clement and started suing. So we need something to get back to that. Hopefully, that’s a thing that — it’s not so much a thing that’s Changed. I suppose other than the amount that I care about it has changed. It used to be a mild annoyance to me and now it’s something I think is actually a real tragedy.
Kathryn Rubino: Yeah, and we talked at the last episode of the podcast that some folks who are about to take the February exam had asked you for some words of encouragement. How’d that go?
Joe Patrice: Yeah, I actually popped into that chat to give the pep talk.
Kathryn Rubino: Could you really — people actually asked Joe for words of encouragement.
Elie Mystal: Have they met him? Obviously no.
Kathryn Rubino: Apparently not.
Joe Patrice: I offered what I knew. A question came up about conflict of laws that I actually knew the answer to, so I offered that, but I just basically said, look you’re —
Elie Mystal: Somebody asked you a trivia question and you answered it. What a goddamn surprise.
Joe Patrice: Exactly. Well, that’s what they needed to know. My point is though that the, my encouragement was just recognize that this is not the bar exam that anyone else has ever taken. The kind of exam I took is different in substance and form from the thing that you’re being forced to do in front of a zoom camera while it flags you for teaching.
Kathryn Rubino: Half of these folks in Texas haven’t had power or heat for several days, weeks.
Joe Patrice: Oh yeah, they’re making all of them take the test this week, even though they’ve had no heat for the weekend.
Kathryn Rubino: Or power to actually be able to study the materials that are all available online.
Joe Patrice: Yeah. So it’s been real bad.
Kathryn Rubino: Cool cool.
Elie Mystal: I have a 200th episode question for you guys.
Joe Patrice: Yes.
Elie Mystal: This kind of goes off in my Jones Day question. But do you perceive any kind of change over the years especially and especially over the Trump era, anymore kind of resilience to push back against the federal society and conservatives in general within the legal media, because one of the things that I feel strongly is that when we started Joe, we were two of the only people willing to really be out there in media, kind of constantly criticizing the bull crap that Republicans and conservatives do. We were some of the few people who were trying to talk about law and talk about legal issues, but not willing to play both sides, not going to play like, oh, but then, the other advocate legitimately — like we were willing to call non-credible arguments non-credible, sometimes to the face of people making those non-credible arguments.
I feel like especially near the end of the Trump experience, there was more of that in legal media. There was more kind of people saying like what’s going on with Amy Coney Barrett is wrong. It is hypocritical. That’s not fair given what she did to Merrick Garland. More people willing to say that, Trump’s legal arguments at least for election fraud were patently ridiculous and should not be entertained. Nina Totenberg was fighting her inner muse with that. Do you think that was a one-off just for — election fraud was particularly — the big lie was particularly bad or do you see generally legal media kind of more willing to take on some of these really scurrilous and, I would argue on principal arguments that are consistently made by conservatives in legal profession?
Joe Patrice: I think it’s probably a good news bad news. Good news, yes, I think that there’s going to be a lot of pushback against some of these fringe right theories. Bad news, it’s just going to result in the creation of a new tier of FedSoc people that do get applauded. There’s going to be more efforts to, and of course we’re going to listen to what insert middling —
Elie Mystal: George Conway.
Joe Patrice: Obviously George Conway, although I feel as though George Conway is his own like animal at this point, because he’s not even making substantive arguments against these people now, he’s just being funny. So he’s just making jokes. But these mid-tier fed sock people who are just as committed to all the awful stuff that we talked about in the past, but who will get a newfound badge of respect by just not doing the craziest stuff. So it’s good that we found the limit. It’s bad that it’s going to just re-entrench itself in a different way.
Kathryn Rubino: I mean the other part of that which is not kind of specific to the legal media or lawyers, but is that FedSoc as an entity is much more of a known quantity now, right.
Joe Patrice: That’s true.
Kathryn Rubino: Like your average non-lawyer is familiar with FedSoc, have heard that term. You can say, oh, well, FedSoc blah at a cocktail party, that’s not just lawyers, and people have some basis of what you’re talking about. I think that that is a material change.
Joe Patrice: Hey, one of these days won’t be fooled by free pizza. They’re like, oh, I know who you are.
Kathryn Rubino: You can’t buy me with pepperoni.
Elie Mystal: Look, that’s important, because one of the reasons why the FedSoc has been so effective is that they operate generally in secret. They’ve been able to operate without transparency to the point where like even other Democrat senators on the Senate Judiciary Committee aren’t always fully aware of what’s actually happening. The distance, and I tried to insert myself into this fight, the distance between what Sheldon Whitehouse understands about the Republican Judiciary Machine versus what as Dianne Feinstein or Dick Durbin is either willing to understand or admit to about the Republican Judiciary Machine. There are yards between them, right, and I feel like if nothing else, the Trump era has forced the Dick Durbins of the world at least to understand better and more deeply just what the FedSoc is up to. I still think Sheldon Whitehouse should have had his job, but whatever.
Joe Patrice: Fair enough. Well, it looks like we’ve been going for a bit. I hate to bring the 200th episode to an end, because it’s a good one.
Kathryn Rubino: Well, it is spectacular.
Joe Patrice: It is a spectacular. It has been.
Kathryn Rubino: It’s spectacular. There you go.
Elie Mystal: You wind them up for that that time.
Kathryn Rubino: I tried.
Elie Mystal: That’s your fault.
Kathryn Rubino: I like it. I enjoy the sound effects.
Joe Patrice: I just don’t get how you get angry at me because I don’t hit things instantly. I’m like, you know that I can’t actually have both those windows open at once. I have to —
Kathryn Rubino: First of all, I don’t know that. Second of all — see, it’s so good when you do them right that I’m pushing you to be better. That’s my pledge for the next 200 episodes, to make Joe better.
Elie Mystal: You think we’re getting 200 more.
Joe Patrice: I mean, you know —
Kathryn Rubino: We’re going every week, so it’s only going to take us four years.
Joe Patrice: Yeah, it’s going to be a lot easier.
Kathryn Rubino: We’ve got a lot here, grinding. I don’t grind years, I just grind episodes.
Joe Patrice: Amazing.
Kathryn Rubino: It’s true.
Elie Mystal: I love it. She’s not wrong.
Kathryn Rubino: Where’s the lie? Where’s the Lie?
Joe Patrice: Yeah, so excellent. Thank you. Thank you for listening to us.
Kathryn Rubino: I think Joe always try to like bring it back. He’s got some add read up his sleeve or something going on over there and he’s just pissed.
Elie Mystal: Just keep it on the rails. Just keep it on the rails.
Kathryn Rubino: It’s his only job. That’s show pledge to the next 200 episodes. I will keep it on the rails. That’s all I got.
Joe Patrice: Yeah, and broken already. So thanks everybody for listening to both this episode and the previous 199, which I’m sure you can go back and listen through the archives if you feel like it, but we will obviously be back in the future. You should be checking out Elie’s work over at the nation as well as he’s on TV in a ubiquitous way as well as he has a book coming out which we will talk more about when that happens. He should be reading Above the Law as always. Follow us on Twitter. I’m @josephpatrice, she’s @kathryn1, the numeral 1, it’s @elienyc and you should be listening to The Jabot, which is Kathryn’s other podcast, and listen to Legaltech Week, the Legaltech Journalists’ Roundtable that I’m also on. You can check out the rest of the offerings of the Legal Talk Network. Thanks to the sponsors, Contract Tools, Lexicon, Nota powered by M&T Bank and LexisNexis InterAction and —
Kathryn Rubino: Peace!
Joe Patrice: Yeah, there you go.
Outro: The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.
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|Published:||February 24, 2021|
|Podcast:||Above the Law - Thinking Like a Lawyer|
|Category:||Legal Entertainment , News & Current Events|
Above the Law - Thinking Like a Lawyer
Above the Law's Joe Patrice and Kathryn Rubino examine everyday topics through the prism of a legal framework.