Advisory Opinions - From 1918 to 1968

Episode Date: June 1, 2020

David and Sarah discuss the latest news out of the Supreme Court including the court denying a California church's lockdown challenge, Rep. Justin Amash's plan to introduce legislation to end qualified immunity for police officers, Sen. Tom Cotton's call to invoke the Insurrection Act, the president's call to label ANTIFA a terrorist organization, and a return to their debate over law school. Show Notes: -Supreme Court California church ruling -Judge Willett opinion -David's Sunday newsletter -Nancy's video from the Nashville protest Learn more about your ad choices. Visit megaphone.fm/adchoices

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Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And once again, we have no shortage of things to talk about. Actually, we had a little trouble before we started trying to figure out what order to take things because there are so many important things happening at once. So we're going to kind of go chronologically in importance.

We're going to start off with the freshest of fresh news, which is a basically no news Supreme Court order day that has some relevance for what we call Supreme Court bingo. Well, we don't just call it Supreme Court bingo. What Supreme Court nerds call Supreme Court bingo, which allows us to sort of try to predict who's going to write which opinions, which then allows us to try to read the tea leaves of how those opinions will come out. We're also going to talk about Justice Roberts' order where he joined four Democratic-appointed judges, justices on Friday to refuse to issue an injunction on behalf of churches who are seeking a wider opening in California. That was a very, very, very interesting order and extremely relevant to a lot of the pandemic-related debates about religious liberty. We're going to talk about qualified immunity again because Justin Amash, a friend of the pod, Sarah, Justin Amash, is going to be introducing legislation to repeal qualified immunity.

So we're going to talk about what that might look like. We're going to talk about the president's decision via tweet, as I'm not quite sure that has any actual legal effect, to call Antifa a terrorist organization, what that means, if anything. We're going to talk about a U.S. senator threatening no quarter to writers, looters, and insurrectionists and why that's unlawful. And then we're actually, believe it or not, going to leave more room by popular demand for the law school conversation, which we kind of gave short shrift to actually last time because we thought that our podcast was running long. So believe it or not, in all of that, we're going to actually give more time to the law school discussion. And before we dive in,

I want to remind everyone that this podcast is a production of Dispatch Media. Go to thedispatch.com to check us out. We'd love if you became a member. We'd love if you subscribe to this podcast and also if you rate us positively on Apple Podcasts. But now on to the main event. Sarah, you have Supreme Court news for us. So at 10 a.m. today, we got four opinions and it was basically like clean out the closet opinion day. There was ERISA, which nobody ever, as a clerk, by the way, like you like arm wrestled to make sure you didn't have to write an ERISA opinion. There's an arbitration opinion. And the Puerto Rico bankruptcy opinion, which could have been really interesting, but everyone thought it would be 9-0 upholding the board appointments. It was, so it became less interesting sort of by that.

And then an immigration opinion on a convention against torture that again, unless you're very into immigration law, you're, oh, and habeas. Did I forget the habeas one? Anyway, lots of opinions, but none of the big hit parade cases. However, what that means is that the only cases left from October are the Title VII cases. The only case left from January is the Blaine Amendment case. So Supreme Court bingo style. What that tells us, the only justices not to write for October sitting, Roberts, Ginsburg, and Kavanaugh. However, Ginsburg wrote two opinions

for the December sitting. On the one hand, that means probably Roberts or Kavanaugh are writing the Title VII does sex include sexual orientation and gender identity. Interesting. On the other hand, if the four liberal justices are on the majority side, Ginsburg would be the one assigning the opinion, in which case she could assign it to herself regardless, which is sort of the limitation of Supreme Court bingo. Sorry to say, folks. On the Blaine Amendment case, we're down to Roberts and Breyer

for January opinions that have yet to be written, which basically tells us nothing. So Supreme Court bingo, kind of a letdown today. I don't think we're left knowing a lot more about how any of these cases will turn out than we were at 9 a.m. this morning. So in other words, Supreme Court bingo is slightly more accurate than reading chicken entrails, but... Maybe not. Maybe less, because you feel like you know something, but you don't. Okay. Well, moving from the vagueness of Supreme Court bingo into the precision of an actual Supreme Court decision, Supreme Court denied an application for injunctive relief from the South Bay United Pentecostal Church from California Bay United Pentecostal Church from California that was attempting to challenge the order of Gavin Newsom, the governor, that placed temporary numerical restrictions on public gatherings to address the pandemic. State guidelines currently limit attendance at places of worship to 25% building capacity or a maximum of 100

attendees. Now, whichever is lower, whichever is lower. So they brought this order, brought this request for an injunction to the Supreme Court. They had lost at the Ninth Circuit, lost at the trial court. We're trying to get the Supreme Court to enjoin enforcement. And let me just begin by saying, well, we'll cut to the chase. And as we noted, 5-4 with Justice Roberts joining the majority, the Supreme Court joining the four Democratic appointees, the Supreme Court denied their request for an injunction. And I didn't even have to really read very far into the opinion to know this was coming because it begins like this. This is Justice Roberts. The governor of California's executive order aims to limit the spread of COVID-19, a novel, severe, acute

respiratory illness that has killed thousands of people in California and more than 100,000 nationwide. At this time, there's no known cure, no effective treatment, and no vaccine. Because people may be infected but asymptomatic, they may unwittingly infect others. When you lead with that, Sarah, it's not looking good for the church. No, you know where you're going, real quick. Yes.

And I would say this, and then I'd love to get your reaction. When you get down to the core of the opinion, Justice Roberts was basically channeling us from our analysis early in the pandemic. We're not credited in the opinion. We're not cited in the opinion. in the opinion. We're not cited in the opinion, but I'm pretty sure this is our stuff. Okay. But he, what he's basically saying is, well, I'll just, I'll just read the core, the guts of the core paragraph. The precise question of when restrictions on particular social activity should be lifted during the pandemic is a dynamic and fact-intensive matter

subject to reasonable disagreement. Our Constitution principally entrusts, quote, the safety and health of the people, unquote, to the politically accountable officials of the states, quote, to guard and protect, unquote. When those officials, quote, undertake to act in areas fraught with medical and scientific uncertainties, unquote, their latitude must be especially broad. Where those broad limits are not exceeded, they should not be subject to second guessing by a, quote, unelected federal judiciary, unquote, which lacks the background, competence,

and expertise to assess public health and is not accountable to the people. Short answer, as we've been arguing for a long time, during pandemic, state authority to guard public health is at its apex. Your thoughts? Yeah, I mean, on April 1, let's say, I think this opinion would have looked stronger, and I think it would have been 7-2, 9-0, etc. What we've also said is as time goes by, that deference wanes somewhat, and we're in a grayer area of deference. However, I am zero amount surprised that Roberts sided with the deference slash nonjudicial engagement, as listeners have heard me say before. I think this is the era of Roberts non-engagement, yet to be seen on some of our hit parade cases. But here's what I found. Here's where actually the dissent and the Roberts opinion seem to really actually disagree.

actually disagree. Roberts says similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time, like in a church. It exempts or treats more leniently only dissimilar activities. Grocery stores, banks, laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods of time. The dissent, on the other hand, basically says, no, I think those are similar activities and maybe more to the point, if you specify churches as a certain type of gathering, regardless of whether they're similar or dissimilar, you're raising some at least red flags on whether you're violating the First Amendment. I think that sums up a lot of what's going on at the court this term to me.

Yeah. Yeah. You know, I think that you're exactly right to label sort of the sliding scale. And this is something we've talked about for a while. On April 1, this is 7-2, maybe 9-0. There's going to be a point at which this flips to five, four, the other way, and maybe seven, two, and perhaps as time goes on nine, oh, and we're talking about when is that magic moment?

And there's no single doctrine of constitutional law that would tell us when that magic moment occurs. But I would say there would be a way in which a law could be fashioned that would bring us to that magic moment. For example, if you if Governor Newsom loosened restrictions on lectures, concerts, movie showing, spectator sports and theatrical performance, but not churches, you would see it because that would be seen as specific targeting. I think what was interesting here was the disagreement between Roberts and Kavanaugh on essentially what are the comps? What are the relevant comps? And so what Roberts said is the relevant comparable to the church are these very specific kinds of entertainment-style mass gatherings.

And Kavanaugh's not quite buying that. Kavanaugh's talking about in stores and other places, you're spending time in close proximity. Certainly with— I don't—this is where I disagree. I think there is a distinction between going in and picking up some to-go food and leaving the restaurant versus sitting next to someone in a pew for an hour and a half. And Kavanaugh includes restaurants, retail stores, pet grooming shops. Hair salons. Hair salons. However, he also includes—I'm getting to that.

Okay. He includes, which I do think are pretty relevant offices where in theory you're spending all day um uh factories hair salons i think are closer call and just for good measure and for no particular reason he includes cannabis dispensaries which seems like just a little like poke it It's a little troll. That's what it looks like when a Supreme Court justice like it's that's almost like a little troll tweet embedded into a Supreme Court opinion. Yeah, this is actually a pretty short, by the way, it's a short opinion by Roberts. It's a short dissent from denial by Kavanaugh. We'll definitely

include it in the notes on the website, I think, because it's highly readable and it's just up to, I mean, you don't need a law degree to decide who you agree with on this. Right, exactly, exactly. And because, you know, this is one of those really unusual situations in the law where, in a way, the way going back to the founding, the way in which the importance of states to control and to protect public health is both well-defined as a principle but poorly defined at its limits means that we're going to face this sort of gray area, I would say, for a while, especially as it looks like the death rate, for example, is while it's declining, it's declining slowly on the pandemic. And we've just recently opened up, so there's going to be a lag in many states. So there's going to be a lag time where we're going to have to wait and see whether the opening up has led to a spike. It's just a giant gray area. And if you make me and I fully recognize that this is a gray area. I fully recognize this is hard. But if you're going to make me choose between the Roberts of the Kavanaugh position right now, I'm choosing the Kavanaugh position in large part, not because of the grocery stores, but because of the office buildings, because of the factory floors. And I look at the rights, the ability to freely exercise your

religion is at least as essential as opening an office building, as at least as essential as maintaining an open factory floor. And so that's where I'm on the Kavanaugh side on this. Although I'm not surprised where Roberts lands and I'm not furious at him. If you give him a few more weeks or months and things continue to go down and the death rate continues to go down, I wouldn't say months, a few more weeks and the death rate continues to go down, I wouldn't say months, a few more weeks, and the death rate continues to go down, and he's still here, I'm getting more agitated. I think that having judges in this case decide whether state officials should decide

whether offices are more similar to churches or to laundromats is just not a job for the justices. What I am sympathetic to is that churches are treated separately in the guidelines. And I don't fully understand why California didn't say all places of entertainment for extended periods of time or all places of large gatherings where people are in close proximity for extended periods of time, including but not limited to movie theaters, churches, sports events, and sort of do that as a blanket statement, it would have been easier legally. statement would not have, it would have been easier legally. Right. Yes. Yes. But I do think,

I do think that, that in some ways, in most states, this is going to take care of itself through the political price process. In most states, you're going to have a, a strong reaction from the people of the state that again, as the pandemic hopefully eases, that as the death rate eases, as the rate of positive diagnoses eases, there's going to be a greater demand for freedom, and the political process is going to be responsive to that. Which, by the way, is the way it's supposed to work. Exactly. So in most places, this kind of stuff is going to be, quite frankly, mooted relatively soon, I think. I hope, because if it is, that means that the pandemic is relatively under control or

getting more under control. But for now, we're in a gray area where a 5-4 majority is going to say state authority is still at its highest. And so I think what this does is it sort of puts a pause on this litigation, perhaps, or not put a pause on the litigation, sends a signal to the states and sends a signal to the lower courts, at least for the next few weeks, where the Supreme Court stands. Yep. All right. Let's move on from the pandemic to the next crisis. From 1918 to 1968. Yes, exactly. In my newsletter on Sunday, I was referring to Michelle Goldberg, who in the New York Times The Argument podcast was put in perspective really for us this year so far. I mean, we began in 1974 with an impeachment. We moved to 1918 with a pandemic, stampeded to 1929 with an economic crash,

and now we're going through, thankfully, a less fatal version of 1968 with widespread urban unrest. So, wow, it's a lot for all of us to take in. So let's just start with, there are two things happening right here. We're in the midst of happening right here. We're in the midst of twin outrages. One is the killing of George Floyd, which one of the officer who actually had his knee on the neck of George Floyd has been addressed for third degree murder, which is a claim under Minnesota criminal law. And just as an aside, Sarah, I just want to tell everybody, just because I'm a lawyer does not mean I know all the details of Minnesota criminal law. But hopefully we'll have some people who will be able to help us with that in the future. We'll see. But you have this horrible outrage of what happened to George Floyd, which fits in with the context of the horrible outrages

that have occurred in too many times over the recent years, including, you know, although it wasn't a police officer, it was a former police officer who shot, who chased down Ahmaud Arbery and his son shot and killed Arbery in Georgia. And so you have this horrible police killing. Then you have rioting. So what are you going to do about the the problem of police brutality what are you going to do about the problem of rioting and we're going to talk about some of the legal

aspects of both so let's start with the problem of police brutality and this connects again i'm sure you know friend of the pod justin amash was inspired by us here um he announced by on tweet last night that he's introducing the, quote, ending Qualified Immunity Act to eliminate qualified immunity and restore Americans' ability to obtain relief when police officers violate their constitutionally secured rights. And in a letter announcing this, he described the background. And I'll just read a paragraph of it. As part of the Civil Rights Act of 1871, Congress allowed individuals to sue state and local officials, including police officers who violate their rights. Starting in 1967, the Supreme Court

began gutting that law by inventing the doctrine of qualified immunity. Under qualified immunity, police are immune from liability unless the person whose rights they violated can show that there is a previous case in the same jurisdiction involving the exact same facts in which a court deemed the actions to be a constitutional violation. You and I have talked about this a lot. You know, listeners know where I stand on this. I strongly dislike qualified immunity. I do think it is responsible for part of the atmosphere that exists in some departments and amongst some officers of a sort of a feeling of legal impunity in their actions. It's complicated. There's also collective bargaining rules and other things that come into play that can contribute to sort of a police sense that they're above the law.

But Amash wants basically wants you to be able to sue a cop and get money when they violate their when they violate your civil rights. Sarah, this this came on the heels of a great listener email that was like, OK, we get it. David wants to get rid of qualified immunity. What comes next? Are you just saying like, get rid of it? Or is something going to replace that? And I was like, oh, really good point. We haven't talked about what comes next in part because the conversation over qualified immunity seemed a little pie in the sky. I don't think it is anymore. The Supreme Court has eight cert petitions pending on this question. There's been a lot of pressure for them to look at this issue again.

Interestingly, I wonder if Amash's introduction of this law will perhaps dissuade the court from taking those right away. They may wait to see whether Congress is going to address this. But regardless, we're having a national conversation about qualified immunity, among other national conversations we're having right now. So I did think it was worth looking at some of the ideas of what could come post-qualified immunity, whether it's from the court, from Congress, etc. I think what Justin Amash is talking about is just literally getting rid of qualified immunity and nothing replaces it. I think that is unlikely to

garner a majority of support in both houses of Congress and a presidential signature. But in theory, folks, like, of course, you could. Congress can just tell the court, no more qualified immunity. Anytime a state official violates a constitutional right. We're done. What do I think the result of that would be? I think that all of a sudden, whether the state official violated a constitutional right would get a lot more heightened attention from the courts. They would be less likely to find a constitutional violation if there's no second prong of qualified immunity to go after. As a practical matter, I think you're quite right about that. Yeah. So, okay. Legal weed moment, but bear with me.

Back in the day, let's, you know, from qualified immunities birth to about 10, 12 years ago, you'd have to do exactly what you think you'd have to do as a judge. Was there a constitutional violation? And then, was it clearly established or does the officer or state official get qualified immunity? or state official get qualified immunity. However, then a case came along called Pearson that basically said, that's a bit of a onerous burden to put on courts, to have to always decide whether there was a constitutional violation before you could reach the question of whether there's qualified immunity, when oftentimes we know there's qualified immunity. And so they said, you don't always have to decide whether there was a constitutional violation first. You can just skip right ahead to whether there's qualified immunity and kick the case. And it's up to you,

judge. So guess what happened? If you're telling me, again, a former law clerk, that I could write a 40-page opinion, 30 pages of which are whether there was a constitutional violation, or I can just write a 10-page opinion on whether qualified immunity applies, and I've got a bunch of other drafts to write. And then I know what you're thinking. How could you possibly then ever have clearly established constitutional violations if the judges no longer have to even decide whether there was a constitutional violation? Ding, ding, ding. You are a very smart listener. That is one of the problems.

So, on court remedies, the first thing they could do is undo this Pearson case and say that you always have to decide whether there was a constitutional violation because that's the only way we're going to then be able to establish, quote, clearly established law prong. Second, we could change what clearly established law means or clarify it or something. Right now, it has to be so factually similar, but then there's circuit splits on how factually similar it needs to be. And let me give some versions of how to do that. I think there's a lot of people, one of whom is on this podcast right now, who think that there's a big difference between these split-second decisions that officers are making in the field,

difference between these split-second decisions that officers are making in the field and, let's call it, a state public college administrator deciding a First Amendment question where they have endless amounts of time to decide how to do a speech code or something. We'll call that the less exigent situations. Yes. Clearly established law in the latter case where you have all the time in the world to consult your attorneys at the public institution and at the college. And then you just go ahead and violate someone's constitutional rights. To me, probably should get less protection than an officer in the field thinking about a thousand other things who is not, you know, has a lawyer on their shoulder saying, well, actually. Right. So you could make a split second decision versus less exigent situation distinction on clearly established law. There is then a third bucket. Y'all know how I like my buckets. Right now, you are not allowed to look at evidence of bad faith to determine whether they violated clearly established law.

That's because they basically don't want these senior officials being deposed on their sort of subjective mind state at the time that they were promulgating the speech code or anything like that. But what you could do is have objective evidence of an official's bad faith. And that could be just any objective evidence that the official actually realized that he or she was violating the Constitution. And there's lots of things that would fall into that category short of, for instance, deposing them and asking them what they were thinking at the time. So those are sort of the buckets of, I think, areas that the court could weigh into, certainly on the split second versus less exigent bucket. I think that Congress could even create that distinction if they wanted to. And the evidence of bad faith,

they probably could as well. Interestingly, Justice Willett down in the Fifth Circuit has an opinion where he lists all of these possibilities as potential remedies. And then it ends with prudent refinements abound. But until then, as Judge Jones, the judge I clerked for, as Judge Jones explains in today's principal dissent, the Supreme Court's unflinching, increasingly emphatic application of clearly established law compels dismissal. So those are some of the remedies, David. What say you? Yeah, it's no question a complicated situation and rendered complicated because this is judge-made law. I mean, we just need to put that out there. The Civil Rights Act of 1871 does not contain any provision for qualified immunity at all. If you read the actual text, there's just no provision for it. And so this is judge-made law, taxed. There's just no provision for it. And so this is judge-made law, and judges have been making and tweaking and remaking and tweaking this law for a very long time. And so it's the

mess that you could imagine that it would be. So I think one of the issues here isn't so much isn't so much under what circumstances should there be compensation as who pays the compensation. So the most sympathetic point of view for a cop is, for example, wait a minute, are you saying you want cops bankrupted for split-second decisions made in the heat of an arrest. That's an unacceptable burden put on people who put their lives on the line to protect the American public. And you're really going to tell us that if that chokehold that the department tells them is okay, or that hold that their police training tells them is okay goes bad, then you're going to, they're going to be bankrupt. You're going to take their house,

you're going to take their cars. Well, that has a, you know, that has a real feel of, wait a minute, no, no, that's not what I want. But then again, you'll have other fact situations where you'll have, wait a minute, if this guy sick to police dog on a surrendered suspect, yeah, he should feel the pain. And so you have this real, this kind of sense of innate fairness that comes up that on the one hand says, why would you second guess split second decisions? And then on the other hand, some of those split-second decisions are really, really, really bad, and these guys get off scot-free. And I kind of think of it, I think there is a way through this that can be inspired by, and I'm referring to one of the great movies of modern history, Sarah, here. Paul Blart Mall Cop. I don't know if you, are you familiar with

the PBEU, the Paul Blart Extended Universe? I am not. I'm aware of the front cover of the movie, I suppose, which has him on a segue. True. No, we have an entire network of private security guards, even armed private security guards that work for celebrities, that work for malls, that work for other installations, work for neighborhoods. None of these people are entitled to qualified immunity. immunity. But what ends up happening if Paul Blart puts you in a chokehold or if a security guard for like Ariana Grande roughs you up, you can sue that person and they're generally going to be indemnified unless they've engaged in incredibly malicious and intentional unlawful conduct. And so I think the reality what you would have if you lift qualified immunity, if you would have a situation where nine instances out of 10, you would have an indemnity. The cop would be indemnified by the deep pocket, by the state. And now the negative of that indemnity would be that, well, that's a bit

less of a deterrent on the cop. The positive of that indemnity is in those nine out of 10 times, you're the positive of that, and those nine out of 10 times, you're not bankrupting the cop for the split second decision. And if you want to pierce the indemnity or if the indemnity is going to lift, you might have to show a certain degree of actual malice or a certain degree of intentional misconduct. And I think that in the bottom line, we're not going to see, and there would not be support

for a lifting of qualified immunity that left every single cop walking the streets exposed to personal liability, taking their house for the split-second decision. What you would see is a lifting of qualified immunity that prevented people who had been deprived of their civil rights as a result of these split-second decisions from having no recourse at all. And I think that that's probably where it would end up. That's my theory. I mean, first of all, big difference between what we're asking

Ariana Grande's security guard to do versus cops every single day and the use of force that they're authorized to use. But I take your point. Second, don't you dare denigrate Paul Blart's service. Second, yes, you're right that they'll be indemnified the vast majority of the time. But let's look at the Connick versus Thompson case, which was basically an intentional Brady violation case that I've mentioned before, wrongful imprisonment. The guy was about to be put to death. They find it later. It doesn't really matter. He gets a $14 million award against not the district attorney, obviously, to your point. The district attorney was indemnified then by the New Orleans DA's office. But a $14 million award against the city of New Orleans, basically,

would have bankrupted the city of New Orleans. And I think you end up with a little bit of a jury problem, even potentially, where they think it's a deep-pocketed city that can pay these things out, it doesn't take many $14 million awards for a municipality to go bankrupt, David. So I think you make it so much easier that you run into other problems on the other side. Well, municipalities get insurance. Municipalities get insurance. Would you, if you were an insurance company and they lifted qualified immunity, are you insuring any of these municipalities? I'm not.

My rates are going to go way up. No, I think the bottom line that we have here, though, is we have a fundamental problem. We have a fundamental justice problem in this country. And that fundamental justice problem is that Congress has passed a law that says if your civil rights are violated, you can receive compensation. And the court has intervened and says, no, almost never. And so what we now have a situation is if the state violates your civil rights, you can almost never, not never, but almost never receive compensation. And often when you see these, it's a big problem. And often when you see these.

It's a big problem. And often when you see these settlements, the interesting sort of backstory around a lot of these settlements that you'll see for police brutality is that, truth be told, some of these cities probably could amount a qualified immunity defense. But the political pressure is overwhelming on the city to do something. So some of these settlements, even when you see some settlements paid, some of those settlements are, quite frankly, probably not entirely necessary under existing qualified immunity authorities. So I think the bottom line is if Congress, I think the bottom line is a private citizen who has had their civil rights violated should receive compensation. That would then create incentives, very strong incentives on the part of cities and municipalities not to violate the civil rights of their citizens. Very strong incentives. So yes, insurance rates would go way up. One of the reasons why insurers might bail on this is because guess what? The civil rights of citizens are

violated a lot. That's a problem we have. And so if you go back, there are two Ferguson reports. There were two Ferguson reports after the Michael Brown shooting in 2014. Report number one got tons of attention. And report number one said the hands up, don't shoot narrative was false. That was from the Obama DOJ. There was no, all the meaningful evidence said that Brown was the aggressor, that this was a lawful and justified police shooting, that the rioting in response to it, they were rioting in response to a lawful police shoot. And that got a ton of press. And that was, I believe, one of Politico. I can't remember which fact checker, but it was one of the fact checkers lie of the year was hands up, don't shoot. There is also a second report.

And that second report detailed in just excruciating, provided excruciating detail about the systematic way in which that police department essentially used its poorest and most vulnerable citizens as the department's ATM. most vulnerable citizens as the department's ATM, and was systematically engaging in misconduct that was heavily disproportionately racially impactful. And these are sort of the day-to-day civil rights violations that occur far from the headlines of a gruesome shooting or a horrible event like George Floyd. And this is what is creating – these violations create much of the simmering resentment that exists just below the surface. And we've got to be able to do something about this. And we cannot be shielding public servants from the – at the very least, the financial consequences of unlawful actions. So it's hard. I don't have a great answer. I think it will ultimately end up with a form of indemnification, and that indemnification would wake up municipalities to such an extent that

they would have to start maybe thinking really hard about how to limit civil rights violations and perhaps have a lighter policing touch for minor offenses. Why does somebody have to be arrested for selling Lucy cigarettes, for example, Sarah? Why don't they just get a ticket? That's not a constitutional violation. it. That's not a constitutional violation. No, no, no. But what started was what started the Eric Garner killing. No, I understand. Okay. I take your point. I think overall, I think this is better for Congress to address. It was their law to begin with. However, I think the court could step forward. I think the distinction between exigent circumstances and non-exigent circumstances would be an easy place to start. And we'll keep monitoring more orders next Monday at 9.30 a.m. to see whether they take any of those QI petitions.

Yes, indeed. All right, so should we move from the civil rights aspect to the rioting aspect of this nightmarish last week? So one of the things that let me just start with a sort of a thing, an observation about our polarization. And I wrote this in my Sunday newsletter. It depending on whether you're on the right or on the left. I don't know if you've noticed this on your Twitter feed, Sarah, but it feels like there's a dominant tone on the right side, at least of my Twitter feed, that says, now that the riots are underway, you hear a lot less about George Floyd and a whole lot more about the riots. So it's, yeah, of course, police brutality is wrong. Stop the rioting.

police brutality is wrong, stop the rioting. And then on the left, you'll see, except from the most fringe, fringe, fringe voices, look, we don't want rioting, stop police brutality. And so you have the different emphases on the different bad acts, really based on which side of the political spectrum you're on. And I'm just wondering if there's sort of room for all caps on both. Stop rioting, all caps. Stop police brutality, all caps. And I feel like so long as we're sort of just paying lip service to one and emphasizing the other, depending on your partisan breakdown, we're not going to get anywhere on these issues. We're just going to keep recycling this. And I think one of the sort of the apex sort of public statements around the rioting is the main thing are some of these threats that you're seeing about imposing incredible amount of force

on rioters. So the president said when the looting starts, the shooting starts. And he later said, oh, that's just a prediction of a, you know, of a correlation and not a threat. But hard to take that seriously, given the context of his tweet. Today, you had Tom Cotton come in and Senator Tom Cotton from Arkansas. So Tom Cotton tweets, anarchy, rioting, looting needs to end tonight. Agree. If local law enforcement is overwhelmed and needs backup, let's see how tough these Antifa terrorists are when they're facing off of the 101st Airborne Division. We need to have zero tolerance for this destruction. Now, as a bit of background, it is in fact the case that we have deployed regular army units to put down riots in the past. It has not just been national guard. We have deployed regular as just a matter of historical fact, we have deployed regular army units. I believe the last time was the 1992 response to the riots in Los Angeles. Yes, I think that's right. Now, I would say, Sarah, it is a huge leap given the discipline of the 101st Airborne and others to assume that they

would be more violent than the National Guard or the police. I think that is an unjustified assumption, but we'll leave that aside. So someone says, tweets at him, Senator Tom Cotton, Republican, Arizona, Arkansas, suggests using the 101st Airborne to restore order. So Tom Cotton does the quote retweet thing. And he says, and if necessary, the 10th Mountain, 82nd Airborne, 1st Cav, 3rd Infantry, whatever it takes to restore order. No quarter for insurrectionists, anarchists, rioters, and looters. So for those of you who are not familiar with military law, no quarter is a term of art. No quarter is essentially we will take no prisoners. Rather than taking prisoners, we will shoot to kill. It also happens to be a violation of not just American domestic law,

but of the laws of war. Going all the way back to 1863 and Abraham Lincoln signing the signing the Lieber Act in 1863 article 60 says this it is against the usage of modern war to resolve and hatred and revenge to give no quarter so this goes back to 1863. And there's some interesting background in the sense that in 1863, there was a big argument or a real question about how do you treat the Confederates? Do you treat them the way you would treat an army of a sovereign nation or treat them just like criminals? And essentially the Union, although never granting the Confederacy the status of a sovereign nation, ended up largely treating the Confederate army as an army of a sovereign nation according to the laws of war. But here we have in 1863, in the midst of an actual

insurrection, it says it is against the uses of modern war to resolve and hatred and revenge to give no quarter. No quarter orders have been unlawful against the international law of war for well over a century. If any, if the president of the United States ordered the 101st Airborne to give no quarter, they would be bound by law to decline that order. There's not going to be a no quarter order given. law to decline that order. There's not going to be a no quarter order given. If a soldier carried out a no quarter order, they would be guilty of murder, quite frankly. You do not have the ability to shoot on sight lawfully looters. You don't. You don't have the ability to shoot on sight a looter who is running away with a TV, even if you tell him to stop. You don't. You just don't have that right. The only time constitutionally the police can engage with

somebody who's running away is if they believe that that reasonably believe that that person is a threat to the public and holding a TV is not a threat. And so I feel like we need to at least stake out this, that what we're seeing here, I think, both from the president and from Senator Cotton, I don't know if the president knows better, Senator Cotton certainly knows better, that this is performative tweeting for sort of like the aggro MAGA boys of Twitter. It is not a eminent American policy to grant no quarter. And if anyone tried to issue a no quarter order, they would essentially be trying to order soldiers to murder Americans. So let's just kind of draw that line. And weird that we have to do it. Weird that we even have to say it. Any thoughts on that? My contribution to this is etymology,

which I really enjoy in my free time, David. Yes. We've talked about Netflix and whatnot and the Wikipedia holes I go down. Many times they're etymology holes. So I wanted to share some thoughts on quartering the etymology. So the Third Amendment, as you may know, is about quartering soldiers. That means to house soldiers.

And so the most likely etymology of no quarter is that it means you cannot house them, and therefore there's nothing to do with them except kill them. However, Shakespeare used the word quarter in Othello, for instance. Friends all in quarter and in terms like bride and groom. So quarter could also, at least back then, mean a refusal to enter into an agreement, relations with an enemy, attempting to surrender. As in, I will not be with you in quarter. So that's sort of fun. There, that's my contribution. That's a good contribution. Well, let's move on to another concept, and this is the president

appearing to declare Antifa a terrorist organization. And this is based in the fact that we have seen across the country what appears to be in riot after riot a small number of oddly a small number of white protesters, not exclusively white, but it seems like mainly white based on the admittedly anecdotal evidence that we're encountering, that are engaging in deliberate destruction of property, that are lighting fires, they're torching police cars, they're smashing windows, etc. And there is, again, I haven't seen a huge amount of evidence for this, but it's a widespread accusation that this is Antifa violence. I'm not as convinced about that. I'm not convinced that Antifa is as widespread or organized. I'm thinking it's more like young punk violence. young punk violence, not necessarily specifically identified with Antifa as a movement or a cause. But putting that aside. Well, don't forget the 30 million plus Americans we have unemployed largely in retail industries would be made up of this age group and demographic.

Right. My my wife and two of my kids attended the Nashville rally, the peaceful phase of it, and skedaddled when it started to get bad. And what they noticed was exclusively in their field division, the people who were trying to start something with the police were these really young white guys, like looking like older high school age or young college and nancy put up a uh a tweeted video that went viral of a confrontation she saw where a uh one or more white protesters tried to put horse excrement on a police car and this older black gentleman looks at them and very memorably and passionately says, y'all ain't grown, which I think was a very appropriate insult. So designating Antifa a terrorist organization, is that meaningful, Sarah?

A couple reasons that it's not. One, it has been determined that a tweet from the president is not in order. So the tweet alone would not be sufficient regardless, even if, let's say, Antifa were an international organization. And if he tweeted that, which the State Department can designate international organizations to be international terrorism organizations, a presidential tweet would not be sufficient. He would need to communicate that to the Secretary of State. But there's a bigger second problem, which is there is no designation of domestic terrorism for an organization. Now, this has caused some confusion online. Let me try to clarify. There is a definition of domestic terrorism in U.S. code.

It is the same as the definition for international terrorism, except for the fourth prong, which is instead of transcending national boundaries, which is international terrorism, domestic terrorism is primarily within the territorial jurisdiction of the United States. That should make sense to everyone. However, from that point forward, there is no crime of domestic terrorism. And in fact, the crimes that are under the code that includes terrorism, there's a chapter titled terrorism, relate almost exclusively to international terrorism. So let me give an example.

The Unite the Right rally in Charlottesville, where the driver, James Field, used his car to plow into a group of counter demonstrators, killing Heather Heyer and injuring many more. If that had been an Al Qaeda member, that could have been an incident of international terrorism. If James Field had used a dirty bomb to do that, it would have fallen under the terrorism code. But using a car to kill someone is not a federal crime of terrorism, even when done in an act of, you know, this domestic extremism cause. Now, we have hate crimes. That's what you see the FBI investigating in a lot of these cases.

But, you know, anytime you have someone using a gun, a knife, Dylan Roof is a great example of something that was, you know, clearly I think you and I would consider domestic terrorism. Right. But he's charged with, you know, murder, hate crimes, things like that, not domestic terrorism. So, no, there's no way to designate Antifa a domestic terrorism organization. And even if you did, it would be meaningless because there's no crime of domestic terrorism. So why do we keep hearing this thrown around more and more? Because it got too hard to explain that. And so now it's just used in press releases a lot. And so the Department of Justice, not surprisingly, put out a statement from Bill Barr that used the term domestic terrorism. And

again, the term is defined in code. Like, that's not crazy. It's just that it's not a crime. So should there be a crime of domestic terrorism is a conversation that's been going on for a long time because there's no question that the FBI has put out reports. They monitor these domestic extremism groups. There's no question they're causing violence. There's no question they are a danger. And then so the question is, do you need it to be a crime or do current criminal laws cover what you need? A, you obviously can get charged by the state for murder, assault, arson, all of those things. And you can get charged federally for things related to hate crimes.

for things related to hate crimes. And then from there, it becomes just a debate that we can all have, Congress can have, over whether you want something else, a crime specifically about domestic terrorism. If you're on the

we don't need more federal crimes, the over-criminalization of the federal code has been rampant. You're going to fall on one side of that. If you're on, I would like Antifa

to be designated a domestic terrorism organization and prosecuted for something more than, you know, if an Antifa member threw a brick through a Starbucks window, right now they're only going to get charged with property destruction. But if you could prove that that person's intent was to, again, under the definition of domestic terrorism, involve violent acts dangerous to human life, violate law, and appeared intended to intimidate or coerce a civilian population to influence the policy of the government by intimidation or coercion, then you could charge throwing a brick through a Starbucks window as something more than property damage.

So that's the debate going on. But a presidential tweet does not make it so. Right. And I would refer people to an excellent article by my friend Andrew McCarthy, who is somebody who's been quite defensive of Trump across many issues during his presidency. But few people know this area of the law better than Andrew McCarthy. And he has this very helpful paragraph, I think, that really distills down why there was a need for a foreign terrorist designation and why there is no need for a foreign terrorist designation and why there is no need for domestic

terrorist designation. And he says this, foreign terrorist organizations operate for the most part outside the jurisdiction of American law enforcement agencies and beyond the writ of federal courts. The designation process was an effort by Congress to impose some American jurisdictional and legal consequences on foreign actors. The designation, for example, makes alien members of a foreign terrorist organization inadmissible to enter the U.S. and it facilitates their removal and enables the Treasury Department to freeze assets of foreign groups and block their financial transactions. It signals to the governments of the countries in which these foreign terrorist organizations operate that

the United States regards the group they are hosting as hostile. The foreign government knows it must either deal with the problem or resign itself to the possibility that we will take forcible action. And then Andy says, none of this is necessary when a terrorist organization is domestic. He goes through code after code, code section after code section after code section that we already have, including laws against seditious conspiracy, which is which criminalizes conspiracies to levy war against the United States. I mean, we don't lack for ability to prosecute, to monitor, to imprison domestic terrorists. We have no lack of that ability at all. So I think part of the history that you're talking about is, however, the term terrorist has a lot of political and cultural weight. And so an awful lot of people will look at something like the Dylann Roof attack, which

fits the classic definition of terrorism, and say, why don't we just call him a terrorist? Why do we call him just a murderer or a mass murderer? He's a terrorist. I agree. I agree. But there is no law that needs to change to prosecute him to the extent to even putting him to death. to prosecute him to the extent to even putting him to death. And so a terrorist designation under law is relatively meaningless, but a terrorist designation sort of in the public vernacular has political and cultural weight that the term murderer doesn't. And so I think going back to the Obama administration, there were decisions made to use a term like terrorist, even though it didn't have a specific legal application that made any difference at all. But it had a sort of a public application that signified sort of the weight and gravity of what had just occurred. That's sort of the way I look at the actual significance of the word terrorist in that

domestic situation i think i agree with a lot of what you said i think we may be getting to a point where a domestic extremist law is becoming more necessary but um but i i withhold judgment until someone in congress actually proposes a real bill to review and see what it says. Yeah, my question would be what loophole, what law enforcement capability do we need? Need is the operative word as opposed to want, but need that we don't have. And that would be my question. But I do think the word terrorist, I am more than happy. I mean, there's a definition of terrorism that the FBI has promulgated that I

think is quite good. And there are people from Dylann Roof to the El Paso shooter. There are any number of the person who drove the, the person who drove over, drove over Heather higher at Charlottesville, they fit the definition of terrorists. They are terrorists and we have all the necessary legal tools in my view, um, to prosecute those terrorists. I think that has been true where death is resulting. My point is members of these groups that are, um death resulting, it would be possible in my mind that a crime of domestic terrorism could be helpful in those cases. Interesting. Interesting.

Well, let's see if anything is proposed. I'm suspecting maybe not. We'll see. So here we are sarah we said we're gonna leave time i know there's just so much um well but i do think we can do a better job yes so a wonderful listener named tom many of you wrote in to say that we gave short shrift to the law school conversation but a listener named tom sent us an outline of what we did wrong, which frankly, it was actually very helpful because I know what we did wrong, but someone writing it out and nice bullet points for me, it's going to be pretty easy to follow here. So David, let's follow Tom's outline of things we didn't do. Yes, let's do it. Have you gotten in front of you? I do. Okay. It's so helpful.

Discussion of cost. We didn't get to the, you know, economics of going to law school. So taking on $200,000 of debt, you're encouraging all these people who have no idea what they want to do with their life to, you know, basically sit in their own version of debtors' golden handcuffs prison. What say you on the economics of law school these days? Yeah, that is a really, really good question. And mind you, I graduated law school in 2008, as every big law offer was either withdrawn or delayed. I mean, you can graduate law school at the wrong time, like 2020. Yes. I graduated in 1994 and full disclosure, paid off my last law school loan in 2008. So paid law school loans for 14 years. There was a time when they had a material,

depending on what I was doing and what my job was, it varied greatly whether those law school loans had a material impact on my lifestyle or did not. There were times when they did. So my general view is this. There are a select number of law schools that are worth the debt. select number of law schools that are worth the debt. And outside of that select number of law schools that are worth the debt because of the opportunities that they give you. Now, law schools, the prestige of your law school does not guarantee any outcome at all. But what it does do

is depending on the prestige, it can give you the courtesy of an employer giving you a look, taking a look at you where they otherwise may not. So there are a select number of law schools, in my view, that are worth the debt. Now, when I say worth the debt, that's also, I'm not thinking about undergrad debt. So my general view is if you are coming out of undergrad with substantial debt, you should think long and hard of whether you're going to go ahead and take on an enormous amount of additional debt on top of undergrad in the absence of the kind of credentials combined with specific career ambitions that will allow you to easily bear that debt. And the reason why I said specific career ambitions is I don't want you to be put in

the circumstance where you're going to have the golden handcuffs that you did all this stuff. You're bound to pay a ridiculous sum of money every month. And therefore, that leaves you with only a very narrow set of career choices that you might land in and find that you hate. And so in that circumstance, I think you have to very seriously consider what kind of debt load you have, what kind of debt load you would incur, what your career ambitions are, and make that decision very, very carefully. Because that... I already... Yeah, go ahead.

I was just going to say that debt is often the source of the golden handcuffs more than anything else. So I already said you shouldn't go to law school unless you want to be a lawyer. And this is a big part of that. So instead, I mean, I'm not changing my mind on that. Let me say that, A, I also tell people

to go to the best school you got into. And if that best school you got into is not above a certain ranking level, you probably should go do something else because you won't be able to pay off the debt in a reasonable amount of time. That, by the way, often includes scholarships. Not always. Depends on where the scholarship is. But paying full load at a top five school versus a scholarship at a, let's call it, 30 to 50 school, you want to look at the economics of that. And you may actually be making the incorrect, just monetary choice in that case. And my only other point on that is to pay off the loans as quickly as humanly possible to open up those options that are non-law firm options. Even if you went to law school thinking you wanted to be a lawyer,

there's a decent chance that when you start practicing law, you won't enjoy being a lawyer. there's a decent chance that when you start practicing law, you won't enjoy being a lawyer. And the best way to keep those options open, I lived with my parents the year after law school, David. It was not maybe the best thing for our relationship. They had been empty nesters for several many years at that point because I took some time off. years at that point because I took some time off. But it allowed me to make a really big lump sum payment and unload the dishwasher frequently. And I would just recommend whatever you can do to pay off lump sums. David's 14 year is shorter than a lot of people, but that still sounds really long, David. and it probably did affect some of the choices you were able to make along the way as you started a family, as you're looking to buy a house and things like that. Yes, absolutely. Absolutely, it did.

It affected my career choices early in my legal career very dramatically, in fact. Loan forgiveness programs were much less generous at HLS at the time. were much less generous at HLS at the time. And so you really, if you're going to have any benefit of loan forgiveness, you had to choose a very specific narrow range of public interest work. Clerking for a federal judge was not part of that because the presumption was you're going on

and going to be making a big pile of money. And so I looked at that and figured I couldn't afford to clerk, which was a really bad, that was a, I've missed that, like that experience. It was not great for me to miss that experience. And I directly made that decision because of loan debt. I have a lot of people. Yeah, I mean, that's another, that's another conversation for law students that they're often making bad decisions, bad economic decisions. Like that was a bad economic decision, probably David, to tell you the truth. Like you probably would have made more money because of the clerkship bonus. If you had done the year clerkship, it kind of pays for itself pretty quickly.

And I often see women making the decision not to clerk for a variety of, not to apply to clerk for a variety of reasons related to very practical economic concerns, or I really need to move to this place to start my life because baby clock is ticking. And as someone with 11 days to go, I know what baby clocks are. So we can have a whole different discussion of once you're a law student, what calculations you can make. Okay. I want to get to number two. We touched on it a little, but let me give it another second here on the impact of school choice, which law school to go to. So I said my version, which is you go to the best law school you get into, even if you know you want to be a, you know, a practicing lawyer in Nebraska,

you're still better off going to Harvard. In fact, I have a friend who made this exact decision. David, where do you fall on that? So my, I fall on that is, yes, I agree with you only for the top of the top schools. Top 10? So I would say if you, let's say you're in Tennessee and you want, you know, you want to practice law in Tennessee. Maybe you're going to, you know, join your father or mother in a law practice. There's a specific law firm that, you know that they've built. You want to join it. You want to be a prosecutor in Davidson County, Nashville. You know you want to go. Don't go to Emory Law School. Yes. Why? Why would you do that? One, it's going to be less expensive. Number two, you're going to make all kinds of Tennessee contacts that will inform Tennessee

relationships that will be helpful to you for the rest of your career. You're going to join a larger fraternity of the UT Law School that also has that sort of sense of fellowship and connection that is specifically beneficial in the state of Tennessee. Whereas Emory University School of Law, as good as it is, and it is a good school, is not going to give you the value add based on your career choice compared to what UT would give you. In fact, I think UT would be the, not just cheaper, but just better for you, that degree, even though Emory University may rank above in the rankings. that degree, even though Emory University may rank above in the rankings. Now, if you got into Yale... Footnote, listeners. Footnote. I'm not going to correct David when he says UT and is referring

for some reason to Tennessee as the T instead of Texas. We've gotten some emails about that. I just want you to know now is not the time, but it has been noted in the book of notes. Please continue about Yale. But if you got into Yale, in that circumstance, I would be hard-pressed to tell you not to go to Yale. The opportunities that you would have, the way in which it will open doors even in the state of Tennessee, which is very, very far from Connecticut, would be pretty dramatic. So there is, and I'm not going to tell you which school in the rankings is the cutoff, but I do think that... Yeah, but let me note one other thing about Yale versus Tennessee, for instance, which, you know, as someone from Texas, this comes up actually very frequently, and for me and my husband. My husband went to University of Texas. I went to Harvard. for me and my husband. My husband went to University of Texas. I went to Harvard.

He got into Harvard as a transfer and didn't go. You're competing against all the other people at the University of Texas, UT, we might call it, for those big loss spots. So you better graduate at the top of your class. Me coming from Harvard back into Texas, there's not that many. So I'm not competing against very many people. I don't need to graduate at the top of my class at Harvard to come back to Texas. And so it also gave me a lot of breathing room when it came to looking at Texas firms. To your point about you get looked at, I got looked at by every Texas firm. Whereas if you're coming from the University of Texas, that's not true. They have weird names at the University

of Texas. I think Scott was like Order of the Peregrine or something. I don't know. He graduated like number two, I think. No, I know this. He graduated number two in his class from University of Texas. That's what allowed him to go do all of the things that he has done in large part. order, the higher the place in the pecking order of the law school is, the lower you can finish in your class and still get an interview. The lower the place in the pecking order your school is, the higher you have to finish in the class. So I remember when I was working in Manhattan at a firm, Kramer 11, Neff, Tallis, and Frankel in Midtown. And I was working and called a guy late one night, because that's what you do is you're calling fellow associates at other firms at like midnight and you know they're in their office. And he answers the phone and I heard the

unmistakable drawl of Eastern Kentucky. And I said, there is no way you aren't from the South. And he said, yeah, I'm from, I think he said Pikeville or something like that in Eastern Kentucky. And I said, where'd you go to law school? He goes, UK. And I said, wow. I said, how many UK grads are there around here? And he said, not many. I had to finish first in my class to get this interview. And this is years and years and years ago. So that was going, he took the very rare trip from the University of Kentucky to Midtown Manhattan law firm. That's not a common trip. But at the same time, when I was practicing, I left Manhattan and I went and I practiced

at a big firm in Kentucky. So I'm sitting there laden with school debt. And all of my associate peers are graduates of UK with like little to no debt. And they would have this like common way. They kind of made fun of me. They said, oh, Mr. Harvard, you went to Harvard. I went to UK. Look where we both are. Yeah, not untrue. Tough but fair, as they say. Exactly. So I liked the options, but if I knew I was going to be in Kentucky and stay in Kentucky outside of a school like Harvard, I probably would have gone to UK and it would have been

a great decision. Okay. Going to law school later in life, Tom would like us to address. So funny enough, Tom, I feel like I'm a really good person to ask this to, even though I did not go to law school later in life, particularly. My father went to law school when I was 10 years old. Huh. And so I remember him going to law school and the big books and him sitting in a leather chair reading them. And we would watch Law & Order together after that with his crim law textbook. And Law & Order was not on when I was 10 years old, just for everyone ready to fact check this, but it was shortly thereafter. And it's a big bonding thing for me and my dad to watch Law & Order together. He, though, went to law school later in life for a really specific reason.

He knew exactly what he wanted to do. The company that he had worked for, which was his uncle's, he worked for his uncle, went bankrupt. And he really enjoyed it. And all the, he, you know, was like the financial officer or whatever for this very small family owned company. And as the company was coming out of bankruptcy, so the legend goes, he was like, I'm really going to miss this. And my mom said, well, why don't you just keep doing it? And he was like, well, I'd have to like go to law school and do bankruptcy law. And she goes, okay, go do that.

Sort of blowing him off. And then he did. Marriage. So I do think if you're going to go to law school later in life, it's great. There were people in my class, David, and I'm sure in yours who were going as second careers, whether it was military or, you know, one person I know had worked at Microsoft for a long time as a computer engineer. But I do think if you're going to do that, you really then fall under my category of you need to be going for a reason. You need to have a really good idea of why you're going to law school because now you really aren't 25 and wandering the earth. Yeah. Now I'm going to wax philosophical for just a moment, as if I don't do that all the time anyway. But I will say this. I think that,

so I'm just a tad older than Sarah, almost two decades. And so- Look, in the history of the planet, that's very small. and so in the history of the planet that's very small that's very small yeah and so what I have seen is two things one when I was in law school the older students number one seem to appreciate their presence there more and to have a greater sense of purpose and motivation they that's true of just older people in general by the way right they had no very little sense of purpose and motivation. That's true of just older people in general, by the way. Right. They had very little sense of entitlement, no sort of like, I'm here because of inertia. It is, hey, something happened in my life that made me want to go to law school. I'm really thrilled to be here. Here's my plan. And in that circumstance, I kind of envied them in some ways. And I felt like they approached the

post-law school job market with so much more intelligence and sort of so much more foresight than I did. I didn't know what I was doing. I mean, literally, as evidenced by the fact that I just blew off a clerkship and didn't think that that was going to be a big deal. And it's a big deal. And so I've noticed that with older students. The other thing is I've noticed as I get older, there is a point in which you sort of age into frustrating inertia. And that is, I think, the definition of the midlife crisis. inertia. And that is, I think, the definition of the midlife crisis. It is you reach a point in time and you say, this is who I am. And I have almost no ability to reinvent myself from a career perspective. There's just too much water under the bridge. There's too little water after the bridge. And this is just who I am. And I have seen a lot of friends and peers reach that point,

and it's a dreadful point to reach if they're not happy with who they are. And what I would suggest is that if you feel that's coming, law school is a really good way to reinvent yourself and to establish a new path. But I agree with Sarah. You need to have a plan. You need to have a plan path. But I agree with Sarah. You need to have a plan. You need to have a plan. But few things... That plan needs to involve being a lawyer.

But few things allow you to kind of zag in a different direction more dramatically than getting a law degree. And I have seen a number of people do that and do that quite successfully and be very happy that they did it. And one last thing I'll say, although not much later in life, even just a short break between college and law school can dispel some of the idealism about life in the working world that is responsible for a lot of the sadness that people have in the working world. That the gap between what I think it's going to be like and what it is is so big,

it leads to a lot of discontent. If you come into law school with that idealism about the working world already dispelled, I think you're going to be better prepared for some of the, quite frankly, drudgery of early lawyer life that is so disillusioning to lots of people. And with that, let's leave Tom's outline for today. We also got a lot of questions on Malcolm Gladwell's Revisionist History podcast where he did the two episodes on the LSAT, which I listened to in real time and had deep disagreements with. I love Revisionist History with Malcolm Gladwell. and had deep disagreements with... I love Revisionist History with Malcolm Gladwell. Love the podcast.

And I listened to those episodes and was like, nope, nope, not that either. Nope, nope. Wow. Yikes. And I think it deserves its own discussion. So let's leave it here. Tom, thank you.

We're going to pick up on your outline down the road. Now, I will say this about Re revisionist history. Did you hear the one about Elvis? Yes. I ended that one. I'm not ashamed to admit I ended that revisionist history with tears in my eyes. Well, some of it's just Malcolm, that's like peak Malcolm Gladwell because it combines so many of his passions. Yes, yes. And it's fun to listen to people who are at the apex of their passions, if you will. Yeah, absolutely.

But I would encourage you, if you listen to no other revisionist history, and I can't even remember the title of it, but you can find it. It's about Malcolm Gladwell and Elvis, and an Elvis song that he could never sing correctly. He could never quite sing it live. And it is so, it's one of the more powerful 30 minutes. It's really amazing. So I'm just going to leave it there. Really well done. So anything else, Sarah? I think this might be our record long podcast.

Well, I don't know. We might be two minutes shy of the record. Nope. Caleb's saying it's a record. Oh, it's a record. Sorry, listeners, but we couldn't commit the sin of not talking enough about law school like we did last time. At least I would say of all of the mistakes we've made on this podcast, that is the one we got the most negative feedback about. That's true. It wasn't close. That's true. And we make a lot of mistakes. So for that one to get up people's dander. Yes, exactly. All right, let's close it out before we get to any longer.

All right. Well, thank you guys for listening. and we will be back on Thursday, and I'm sure we will have no shortage of things to discuss. So, we will talk to you then. Thanks for listening. This has been the Advisory Opinions Podcast. Bye.