Advisory Opinions - Killing Zombies at the Justice Monastery

Episode Date: May 2, 2023

A case before the Supreme Court may bring the axe to the long zombified Chevron deference. Sarah and David also take a look at: -North Carolina’s flip-flops on gerrymandering delaying the inevitable -A 94-year-old’s legal fight against property seizure gets a hearing -Is the distinction between History and Tradition a bait and switch? -Supreme Court Ethics are in the news again... (yikes) -Q&A from 1L’s Show Notes: -In Ruling with Major Political Implications that Potentially Moots U.S. Supreme Court Decision in Moore v. Harper Independent State Legislature Case, North Carolina Supreme Court, on 5-2 Partisan Vote, Holds Partisan Gerrymandering Claims Cannot Be Brought Under State Constitution -What happens to Moore v. Harper after the latest North Carolina Supreme Court decision in the partisan gerrymandering case? Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and we've got fun stuff to cover today. We'll do a little Supreme Court housekeeping and updates. We will then do a nice deep dive into the Tyler v. Hennepin oral argument on whether the government can take grandma's condo. Then there's been a lot more Supreme Court ethics news. We'll do a skim. We'll skim over. I don't know. It's now like up to 27 stories or something we'll do

our best to to brief you on all of that uh then we got a listener question what is the difference between history and tradition in that good old text history and tradition test that we talked about in the last episode and finally it's that season incoming Incoming 1Ls, they have questions. And 1, 2L, rising 2L has a question as well. So we'll try to get to some law student questions here at the end. All right, David. A couple Supreme Court housekeeping items. One, Morvey Harper, this is the independent state legislative case coming out of North Carolina about whether a state Supreme Court can have any role in congressional federal redistricting maps or whether that is a privilege, duty, etc. left only to the state legislature by virtue of the U.S. Constitution

that's been pending. However, after the election, the partisan makeup of the north carolina supreme court flipped and they re-heard the case which we'll get to that in a second but the decision's finally out and not surprisingly they flipped and said that in fact um no the the state supreme court has no role in that the state legislature is going to draw the maps um the supreme court the u.s supreme court had already asked for briefings on whether even the north carolina supreme court taking the case to hear it again was mooting the case what that did to their jurisdiction i find it sort of interesting, David, because generally speaking, the U.S. Supreme Court has jurisdiction over a final judgment of a state Supreme Court. There was no question that when the North Carolina Supreme Court decided this, it was a final judgment.

But when they just decided it, now that we have the opinion, they specifically say that they vacated that exact order that they issued before. There's a question of how, you know, we talked about this a little bit before. Think of it as like having the pen, right? Like when you're editing something in a group who has the pen, like not everyone can edit it at the same time. Once the Supreme Court takes the pen, there's a lot of confusion on how the North Carolina Supreme Court just then suddenly magically also had the pen. Two people can't have the pen. Two courts can't have the pen. But there we have it.

North Carolina now claiming that they had the pen all along. There's been some discussion then on like very fun intricacies of mootness doctrine. And then the sort of SCOTUS realists, if you will, are like, none of that matters. They're going to dig the case. Dismiss as improvidently granted. They don't need to make mootness law here. They can just get rid of it. And for any justice who was working on a majority opinion or a dissenting opinion, they can

now issue it as a statement regarding the disposition of the case. David, what say you? Yeah, I see that as the, I'm not going to say inevitable outcome here, but nearly inevitable outcome here. There's really literally at this point, the appealing party has now won the case. So just to make it as blunt as possible. So there is nothing right now for the appealing party to appeal to the Supreme Court. The original appealing party is now the victor. So there's nothing to appeal. And so you would have to have a new appeal by the losing party. appeal by the losing party. But yeah, Sarah, at this point, it seems as if the North Carolina Supreme Court just sort of, I don't know if it yanked the pen back or if it conjured another pen,

the Uber pen, that is going to trump the Supreme Court pen. but you're right. It is highly unusual after a final judgment to just go ahead and reopen the case and issue a brand new final judgment because you've got a partially new court composition. All of it is very unusual. All of it is very strange, and all of it ends up in one of the two most consequential cases this term, up in one of the two most consequential cases this term probably not happening probably which is really unfortunate in some ways because we're about to cycle into the 2024 election season and independent state legislature doctrine is going to come up it's gonna come up so it is but there is good news on that front which is that there has been a pending cert petition out of ohio uh that cert petition was filed in november of last year and uh it's just been hanging out and uh that's the exact same thing a state supreme court versus

a legislature over congressional redistricting i think think the court was holding this little card in its back pocket just in case something went wrong with Moore v. Harper. So to the extent Moore v. Harper gets digged, which I think everyone thinks it will, Huffman v. Neiman will be your next vehicle. Welcome to next term, Huffman. Huffman v. Neiman has less ring to it than Morvey Harper for some reason. It's true. It's very true. You know, it's funny because there were all these lawyers weighing in on how the North Carolina Supreme Court could basically do this without the double pen conjuring problem. Oh, no, this is a different case somehow. They're not vacating their previous case. The North Carolina court's like, we vacate that previous case in North Carolina courts.

Like we vacate that January 23rd order. Yeah. Oh, womp, womp. So, uh, thank you to Derek Muller and Rick Hassan over at election law blog for your

very helpful writeups. We can put those in the show notes for people who want to go a little deeper on digging mootness and why it's all just a little foobar on more V Harper at this point. Can something be a little foobar given that given the actual meaning of the acronym? See, this is like my beef with the word snafu. Like we now misuse it entirely. Yeah. Yeah. You're right. Yeah.

A little foobar would be like slightly disintegrated. That's right. Yeah. Uh, next up, we did have a cert grant this week. That was super fun on Monday morning. David,

the moment has finally arrived. Loper bright enterprises versus Raimondo. David, the moment has finally arrived. Loper Bright Enterprises versus Raimondo. David, can I tell you a little bit about this case? Please tell me about this case. Well, don't get too excited right off the bat, but it has to do with fisheries and federal water. Magnuson-Stevens Act governs the management of fisheries and the National Marine Fisheries Service may require vessels to carry federal observers on board to enforce agency regulations to prevent overfishing but who pays these observers well the agency says that you the fishermen should pay the observers and they're the agency right so you, the fishermen, should pay the observers.

And they're the agency, right? So they get to decide what their own rule means. Congress has been silent about that. The statute doesn't say one way or the other who's supposed to pay these nice little federal observers. So there's a lawsuit pending. And David, David, the court just granted question two of that suit. And question two is whether the court should overrule Chevron or at least clarify whether statutory silence about the matter of payment constitutes an ambiguity requiring deference to the agency.

Chevron was heading towards zombie precedent. Maybe it had already gotten there. Are we about to kill the zombie? It really looks like the zombie is, either the zombie is about to just go ahead and be killed or completely incapacitated to the where the zombie can no longer moan about the land. This is an interesting, interesting case, one that I had been kind of looking at for some time as a potential Chevron vehicle.

And I'm actually a little bit surprised to tell you the truth that we are now, right now in the year 2023, squarely addressing the constitutionality of Chevron, a lot of smart people said, I don't see Chevron being taken on so directly. I see it just being trimmed and trimmed and trimmed over year after year after year. And that might be what happens here. But by golly, they took it head on. They have taken it head on. So they've got an out. They can do something other than completely overrule Chevron, but they're taking it straight

on and taking it straight on sooner than I thought they would, to be honest. Let me tell you why I think Chevron should be thinking about its last meal. There were two questions presented in this cert petition. Question one was whether under a proper application of Chevron, basically, there is this grant of power to begin with. And then question two is, should the court overrule Chevron or clarify on that statutory silence? The court explicitly said they are not considering question one, meaning they don't want to talk about whether Chevron can be correctly applied here. They're not interested in continuing to talk about Chevron. That's not good for Chevron.

No. No. All signs are pointing to Chevron's demise here i and good good i'm glad and you know look the the rendering of chevron as zombie precedent had been underway for some time i mean this is something that should not surprise anybody at all but we've seen a number of of legal doctrines that have sort of walked about the land. Lemon. Lemon. Forever. I mean, Smith has still got some life left in it.

I mean, you know, it's mostly zombie, but it's been mostly zombie for a long time now. So, yeah, this is the coup de grace, it appears. It appears. We'll wait and see. But I'm with you. I think the smart money is saying it's a coup de grace. And what does this mean? I think it might be worth talking a little bit about because our audience, some of our

audience knows exactly what we mean when we talk about Chevron. But we've got a lot of new listeners. knows exactly what we mean when we talk about Chevron, but we've got a lot of new listeners. So, essentially, when you're talking about Chevron, this is a case that got the title of the gas station Chevron, but it is not about gas. And it's essentially a rule that says when a statute is ambiguous or unclear, the judges are going to defer to agency interpretations of statutes. And so, as a practical matter, what this has done, it has given federal agencies, executive branch agencies, a considerable amount of practical lawmaking power because they have been able to essentially become the agency of the gaps.

And when it is not entirely clear what Congress has intended or Congress has left things vague or there's some uncertainty, then that is a loophole in lawmaking powers that the administrative state drives straight through to say, we're going to make rules. We're going to make rules with the force of law, capitalizing on ambiguity. And so it turns the executive branch in many ways from a branch of the government designed to execute the law to a branch of government that makes law, that it then executes. And so this is something that creates an instability in the constitutional system because the executive branch is not supposed to be a law-making entity. And so here we have a world in which the Supreme Court the administrative state clipped to a pretty

um to a pretty consequential degree i'd say fair fair enough summary there sarah i agree with everything except the last like five words will getting rid of chevron make any difference anymore because chevron has been sort of increasingly zombified um and by the way we've used this quote before but you have to do the Justice Scalia 1993 quote about Lemon. Remember, this is 1993. This was 20 years ago. Sorry, 30 years ago. Justice Scalia was talking about Lemon

as some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad. So we don't really take credit for coming up with the term zombie precedent. It very much comes from the late night horror movie Ghoul of Lemon. But David, I think Chevron's always been insane constitutionally. This idea that you defer to an agency about what statutory power Congress gave it? Yeah. What?

That's deferring to your teenager on what their curfew is. Guess what? The curfew is pretty late. That's great. It's an ever-increasing grant of power. And then when Congress is... Now, look, we're not getting into all of Chevron. There's Chevron Step Zeros, Chevron Step One, Chevron step two, and ambiguities have to be involved. Uh, but like here where

there's a silence rather than ambiguity. I mean, that's even more absurd. Congress is silent about it. And so now we let the agency decide, but, um, as you can imagine on the ambiguity question, agencies kept finding a lot of ambiguity that could get their curfew later. Even under, say, for example, the Administrative Procedure Act, that this sort of arbitrary and capricious review of regulations, the most deferential standard of review, once again, for readers or new listeners, there's generally three different standards of review that courts will apply to legislative enactments. apply to legislative enactments. Arbitrary and capricious means that the legislation is almost always upheld or the challenge regulation is almost always upheld because it will be upheld unless it's just totally arbitrary. It comes from a meteorite from outer space. Where did this come from? Then there's intermediate scrutiny, which we rather cynically say means whatever the judge wants, whatever the judge wants, the judge gets. And then there's strict scrutiny, which means almost always the challenge regulation is

struck down. So very few regulations or laws can survive the strictest scrutiny. But what we've seen is time and again in recent years, the court taking this most deferential standard of review, arbitrary and capricious, and bulking it up, injecting it with human growth hormone, getting a little creatine in it, and then just going ahead and striking down administrative enactments with abandon. And so, we've already seen the court kind of radiating disgust towards what it sees as regulatory overreach. And that has been applied to Democratic administrations and also to the Trump administration. But here, I think you're right,

Sarah, this is the beginning of the end for Chevron. And a very fair question, if the courts had already been demonstrating real skepticism towards new administrative enactments, then how much of a practical difference will it make going forward? That's fair. That's entirely fair. And again, I just, yep, we'll see. All right, good grant. That'll be OT23. We will definitely look forward to that oral argument. And I think I know which justice is going to be leading the way on questions for that one. Justice Gorsuch has long been zombie stalking Chevron, wanting to finally kill that one. Do you ever, did you ever see Zombieland?

Oh yeah, it was actually very good. And I don see Zombieland? Oh, yeah. It was actually very good. I don't like zombie movies. No, it was incredible. Do you remember that scene where the Woody Harrelson character is in the amusement park and he's in this candy stand or whatever

and he's got all of his ammo laid out and his weapons and he is ready for the onslaught that's gorsuch getting ready for this oral argument uh all right next up we had the tyler v hennepin county oral argument and david i've been waiting for this one this falls under one of my categories where no, nobody else thinks this is the most fun case of the term, but I do. 94-year-old Mrs. Tyler owed $15,000 in back taxes, late fees, penalties on those late fees, yada, yada. I think her actual taxes were actually pretty small at the time, but she doesn't contest any of it. She owed $15,000 to the government on

her property. She didn't pay it. And so they took title to her property. Then a year later, they sold it for $40,000. And Hennepin County was like, thanks. And they kept the other $25,000 that she didn't owe them. And the question for the court is, A, is that a violation of the takings clause? And B, in the alternative, is it a violation of the excessive fines clause? Because they don't say they were owed that additional $25,000. David, I actually think there are very interesting questions raised here, but from a threshold matter, you had nine people who thought that Mrs. Tyler was owed $25,000. Yes. Like nobody was feeling very sympathetic to the government of Hennepin County here. That being said, though, again, there were

actually good legal questions. So you had Pacific Legal Foundation arguing on behalf of Mrs. Tyler, and then you actually had the Solicitor General's office come in and argue as a friend of the court with a different theory. Because under this takings idea, okay, fine, we all think it's a taking. You can feel the taking in your gut. But when is the taking? So Mrs. Tyler is arguing that the taking is when they sold it for $40,000 and pocketed the $25,000. Right. But that doesn't make a lot of sense. They took title to her property a year earlier. The government, the United States government, the Solicitor General's office, argued that the taking occurs when they took title.

But then you've got a different problem. The government at that point doesn't have a liquid asset. They can't give her any money. So then what? They become the real estate agent for Mrs. Tyler. What if there's a huge stock market crash? So they owed her $25,000 the day they took title based on the fair market value on January 1. But by the time they sell it on August 1, you know, a huge thing has happened, COVID or whatever. And now they can only sell it for the $15,000 that she owed. Do they now owe her $25,000 from just the Hennepin County kitty? And so when that taking occurs, actually is going to matter a great deal to this. Another interesting legal question, I thought, though the court didn't think so, was raised by Hennepin County over the standing issue.

As in, do you have an actual injury if your property is worth $40,000, you owed $15,000 to the county, nobody's disputing that, you had a $50,000 mortgage, and you owed $12,000 to the county. Nobody's disputing that. You had a $50,000 mortgage and you owed $12,000 in back HOA fees, i.e. you're not going to get any of that $25,000. So where's your injury? Now, I said it was an interesting legal question, but I still think it comes out that she has standing because just because I owe money to a lot of people doesn't mean you don't owe me the money even if I have to turn around and go pay it to people. Right. But I can't tell you how much the court was wholly uninterested.

Well, I would say rightfully so, because the court's not there to adjudicate the other claims on the property. So there might be defenses. And they're not in the record. And there were a lot of things but uh neil caught y'all doing his best to make fetch happen fetch is not going to happen that was that was an unfortunate little uh jaunt into having uh i think like five justices tell him to stop talking about standing basically and not in a particularly nice way just stop but i i enjoyed

thinking about it so david though to the takings question what do you think when did the taking occur when did they start owing her money how are they supposed to know how much money they owe her yeah that's a it's actually an interesting conceptual question because the reality is, while you believe you know the value of real property, it's all a projection until it sells. You can sit there and you can do comps and all of that stuff, but it's all just a projection until it sells. And so, I think it's very difficult to sort of say, well, we know the value of the taking is computed as of the moment of the taking. You could say that the value, the taking happens when title is transferred, but the value of the taking is not determined until the sale.

And so, that's how I would resolve it because otherwise the value is conjecture until the actual sale, assuming the sale is done the way real estate sales are done in a normal course of business so that you're able to get a fair market value price for it. But that's how I would resolve it. The taking occurs when title is seized, but the value of taking is determined upon the resolution of an expeditious sale. But what if they then decide not to sell it? They decide to turn it into a park instead. Well, that would be, I would say at that point, what you're going to have to do is you're going to treat the seizure and conversion into another use as a sale. A sale to the state.

A sale to the state, at which point you would have to do the conjecture based on comps and market value and all of that in a way that's... But if assuming you're going to make a sale into the marketplace, the way I would fashion the rule is the taking occurs. When the seizure occurs, the value of the taken is determined after.

And again, I would emphasize expeditious sale. In other words, you're under an obligation to put it up for sale as soon as it's feasible because real estate markets fluctuate. And if you're going to convert the property to something else, then you've got to do the normal real estate valuation process. There were some moments that, as Justice Kagan at one point said, that made the mind rebel that were asked of the Hennepin County side. For instance,

what if you owed $5,000 tax debt on a $5 million house for the government to sell the house and keep the surplus? Yep, was the answer from Hennepin County. What if it was you owed $10,000? Could they seize your $100,000 bank account? No, said Hennepin County. To which it was like, wait, you want to go back to some originalism here. Real property is the most highly protected right at the time of the founding. What are you

talking about? That the bank account has more protections than the property and look the answer to that which i think um well nine people found unsatisfying i don't know what the rest of you will think uh was that land comes with certain obligations as long as they're reasonable so for instance having to pay property taxes is not a taking um and so therefore the government can seize your land uh that's sort of where that went yeah you kind of got to make the leap but you do get into this problem of then forcing the government to sell land all the time the problem is that a whole bunch of other states managed to do this just fine minnesota while not a total outlier, is a mostly outlier.

In most other cases, even where it gets kind of messy, you still have some ability to get back the delta between what you owed and what the property was worth. There was this case called Nelson. And we don't need to get into exactly how you get your money back in Nelson. But basically, you have some amount of time to ask for your money back. And that's the big difference. Here, you're not getting your money back. Your choices are you sell the property and give the government your money. Or the government sells your property, takes your property,

and then sells your property if they want to. And they keep it all at that point. The property is theirs. And this case is called Nelson. And remember, I mentioned this was Pacific Legal Foundation representing Mrs. Tyler. Pacific Legal Foundation is known for being quite libertarian in their property rights arguments. And the person arguing the case is an expert on eminent domain and these property right issues. And this is her passion. This is her first Supreme Court oral argument, as I could tell. She had

second chaired one in the past. And there's two types of oral advocates, the sort of, I'm up here all the time and I argue everything, the generalist oral advocate. And then there's the expert oral advocate. This was an expert on eminent domain. And so Justice Barrett asking, it was just, it's one of the most charming moments that I heard this term. So I just want to do the whole thing. Please share. Let me ask you a question. Would you be satisfied if the statute was similar to the one in Nelson that permitted the surplus to be recovered. Ms. Martin, for the purposes of this case, yes, Your Honor. Justice Barrett, why for the purposes of this case are you reserving the possibility of challenging Nelson itself? Ms. Martin, I personally don't like Nelson, but there's laughter in the courtroom. Okay, but that's not the

question. For the purposes of this case, I'll accept your qualification. Do you agree that under Nelson, if Minnesota had the sort of conditional redemption built into it that the New York statute did in Nelson, that the Fifth Amendment would be satisfied? Ms. Martin, I mean, I'm not going to go that far, but I will say that this case is distinguishable on that basis. And because there is no opportunity to claim the surplus in this case unlike in nelson even if you think nelson is binding it's completely distinguishable justice kagan then jumps in why do you personally not like nelson i love that and so i mean this is an advocate's dream you actually now you have the nine people who matter to this case that's not before you and you just get to like vent your rage at this other case and justice kagan just asked you to do

it so after the laughter subsides she says because i think it's problematic it suggests that you have to bring a takings claim before the taking has even occurred and that would people, it kind of flies in the face of this tradition that the best way of putting a person on notice from a taking is to actually take the property. And at that point, you can then go claim your just compensation or file your takings claim if they have not offered just compensation. Anyway, it was just this great moment. An expert who's getting their first Supreme Court argument gets teed up to like be like, all right, what other cases are you here to talk about?

Yeah, just like tell us. What's tell us eminent domain person. What's your beat? So just overrule all the cases justices while you're inflamed about this one. Let me tee up another one for you since we're here today. So congrats to Christina Martin on your first argument. Obviously, everyone thinks it went very well for you substantively, but that was a nice moment as well.

Yeah, yeah. It would always be great. It's always great, Sarah, to pocket a 9-0 in your first argument, which I think this might be a 9-0, like a 9-0 in outcome and with some concurrences, but I suspect she's going to pocket a 9-0 in her first argument. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking

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Supreme Court world entirely, we did have a listener question about the difference between history and tradition, you know, in that whole text history and tradition test. And we did the walkthrough of those religious cases and establishment clause cases. And I was quoting that sort of original Justice Scalia quote on history and tradition. And this person said, what is the actual, what's the word tradition doing there? What work is it doing? What is the actual, what's the word tradition doing there?

What work is it doing? And that's a good question. Interestingly, Judge Newsom on the 11th Circuit has actually weighed in on this just a little bit in a concurrence, concurring with himself, by the way, which is always the most fun part. And I want to read you that footnote. As then Judge Kavanaugh summarized, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text history and tradition, not by a balancing test such as strict or intermediate scrutiny. The first step, in other words, is the only step. I largely agree with that assessment. And then here's the

footnote, he says. I say largely because it has never been clear to me what work tradition is supposed to be doing in the tripartite text history and tradition formulation. The duly adopted and ratified text of the Second Amendment, as originally and thus historically understood, governs the interpretive inquiry. To the extent that, quote, tradition is meant to stand for the original, i.e. historical, public meaning of the words on the page, it is duplicative. And to the extent that it is meant to expand the inquiry beyond the original public meaning, say, to encompass latter answer is, it's not. Let's get rid of it, from an 11th Circuit judge. I'm curious if you have thoughts on what work tradition could be doing in the history and tradition test. Yeah, part of me just thought for a minute it was duplicative, sort of a rhetorical flourish.

Text history and tradition just sort of rolls off the tongue, but you generally tend to give each word its own meaning when you've got a series of words. And tradition sort of as tradition means a longstanding practice versus history, which is a longstanding practice might be an aspect of history, but a tradition is not necessarily tied to actual history. So, for example, you could have traditions tied to mythological events. For example, you know, this is our long traditional holiday celebrating Athena's victory over the hordes of Hades. Well, there was never an Athena victory over the hordes of Hades, but the tradition persists nonetheless. And so, in that sense, I think of tradition as being much less valuable than history, especially if tradition is rooted in sort of a false

conception of history. But I do see, when I think about it, I do see the terms as somewhat distinct. when I think about it, I do see the terms as somewhat distinct. But again, I'm not necessarily persuaded that tradition is better than or equal to history. But all of this goes to my general side eye that I'm beginning to show towards text history and tradition more generally versus the wisdom of the levels of scrutiny. But I don't know. What do you think, Sarah? Well, I'm very concerned that Judge Newsom has a good point here that this is an originalism workaround. If originalism didn't tell you maybe the answer or tell you what you want to hear, try just tradition. It can be later. It can be whatever you want. To the extent that's what tradition means, obviously, that's wildly problematic, as he points out. But for me, I guess when I first

thought about the question, I was like, okay, the only way for me to understand what tradition means is to take out text and history. But just said, we look to the tradition of gun regulations in the United States, or it said, we look to the history of gun regulations in the United States. What is the Venn diagram? What isn't included? What isn't part of the overlap of those two Venn diagrams. And for me in that sense,

perhaps history implies legal history, meaning codified legal history, as opposed to tradition, which is not codified, but ritualized. That's what tradition means to me, at least, as opposed to legal history. But you have to then read in the word legal history, by the way, to history, because otherwise, I think history does include both the codified and non-codified traditions. So I too am at a bit of a loss. Again, you can sort of come up with non-legal tradition versus history. You know, as you said, David, Santa Claus is a tradition, but it is now also part of

our history. Right. So it feels like tradition. It's hard to think of a concept of tradition that isn't a subset of history. Exactly. So what's it doing there? Yeah. So we have, for example, a tradition of racially discriminatory gun control regulations.

That is also part of our history. And so in some ways, isn't it ultimately kind of rhetorical flourish if you're talking about a whole and a subset of the whole? Well, look, here's my bottom line. Dear law students or those incoming 1Ls looking for something to write on, this is ripe for a law review article, a law school note, but like a good one. So someone dig into this. Tell us what Justice Scalia meant. What is the word tradition doing? Do everyone a favor, because I actually think this is one of those law review articles or notes that has a chance to

get cited down the road. That's good advice. Good option expanding advice for a young law student. Or a young lawyer. This is good associate work out there. Absolutely. I mean, David, for longtime listeners of the podcast, you may remember that one husband of the pod used his paternity leave to write a law school note on the history of qualified immunity in 1871. So, you know. A very productive use of time when Nate was napping. A very productive use of time when Nate was napping. There's wonderful photos that I have framed in his office of him. I have strapped Nate onto him because I need a break, probably to do this podcast, honestly,

although I don't specifically remember. And he's typing away about absolute and qualified immunity in 1871 with a little sleeping nugget. So yeah, everyone has an opportunity to write good law review notes, but this is the one that I want to read now, history versus tradition. Love it. All right, up next, oh, the ethics conversations. I'm getting tired of talking about all of the new stories about Supreme Court ethics, not because I'm tired of talking about Supreme Court ethics, by the way, but because the stories keep getting dumber. So last time we talked about Justice Gorsuch

selling a property in Colorado to a guy who didn't know that it was owned by Justice Gorsuch, was a big Democratic donor who had no interest in buying off justice gorsuch and also was an avid fly fisherman who lived in colorado so had every reason to want this property that was good for fly fishing well you forgot that you forgot the very important part of oh yeah and for which justice gorsuch legally adequately disclosed the sale according to any fair reading of the rules of ethics sorry yes and filled out all the forms correctly and abided by all the forms correctly requirements yes so speaking of which so we have a new one along those lines and it's not even news because we've this has been covered repeatedly the chief justice's wife is a legal recruiter. And while she doesn't recruit Supreme Court practice people, she does do placements at

law firms that have Supreme Court practices. And so the blaring headline is that the chief's wife has made $10 million on basically these, you know, what do you call them, David? You know, fees that you get. Yes. Payment from law firms that had cases that practiced before the Supreme Court. Of course, that $10 million wasn't in a year or anything like that. This is over the course of a decade plus. Still a lot of money. She made a lot of money doing it. I mean, but-

Not as much as a law firm partner would, for instance. No, that's very true. Very true. And I've talked about this before, David. I am willing to hear people who want to talk about this. I really am. I'm very open to the conversation, but you're going to have to understand where I'm coming from as the wife of someone who has a law practice. What would you have me do?

I am also a lawyer. Right. So you're going to have to come up with a way for these wives, and for some reason, it seems to always be wives, to still be allowed to work. I think that the chief justice's wife, her name is Jane, she's found pretty much the least um conflicted way to still work and do what she was trained to do she's not practicing at some law firm that has cases before the court she's not practicing before the court she's not filing amici as by the way um many a spouse or child has done in lower courts in fact i, I believe that Ruth Bader Ginsburg's daughter filed an amicus brief before the court at one point. So yeah. And then David, as you noted in

the Gorsuch situation, the chief has abided by all ethics regulations in regard to this. That's how they know exactly how much she made. Yeah. So two things here. If you go back to the original report on this, to me, there are two things that really stood out to me. One was the report included a statement that her compensation was directly in line with what you would expect for the service she was providing. So in other words, that $10.3 million, that's a lot of money. I mean, that's a lot of money, but guess what? People at the apex, apex predators in the American legal profession make a lot of money. And she is at the apex of this part of their legal profession. And so she's going to make a lot of money. Now, then the next part of this is, so number one, this compensation is not out of line.

So that's a very important thing. This compensation is not out of line. So then it said, and I'll read, in a prior statement at the Times, a spokesperson for the Supreme Court said that the justices, including Roberts, are attentive to ethical constraints and obey laws governing financial disclosure. The spokesperson also told the Times that the Robertses have complied with the code of conduct for federal judges. Here's the key. Citing an advisory opinion, finding that, quote, a judge whose spouse owned and operated a legal or executive recruitment business need not recuse merely because a law firm appearing before the judge engaged that judge's spouse.

a law firm appearing before the judge engaged that judge's spouse. Okay. Directly on point. Directly on point. And let me put this in context for listeners who aren't familiar, who might not be familiar with the legal profession. When you have questions about the ethics of a practice, one of the ways in which you seek to the gold standard method for result, the gold standard is by either seeking and relying upon an advisory opinion or finding an advisory opinion on point and relying upon that. So in other words, what happens is sometimes an ethics body will receive a query from somebody covered by the rules of ethics. And in that query, they'll say, what is the position of the governing body on this situation? And if they give you an advisory opinion covering you, that's the gold standard.

And Sarah, when I was in the practice of law, I had at least one, and time is hazy when you're this old, Sarah, maybe another, but at least one situation where literally I was an older associate, I was talking with the partners, and we had an ethics question arise. And what did we do? We contacted the Bar Association, obtained an advisory opinion, and relied upon the advisory opinion. Why would we do that? Because that's the freaking gold standard. That's where you know you are trying to comply with the rules of ethics when you've got an

advisory opinion on point. I just wish there was some more context along those lines because as soon as I read that, I thought, the story here is they dotted their I's and they crossed their T's. wish there was some more context along those lines because as soon as i read that i thought the story here is they dotted their eyes and they crossed their t's that's the story here um so yeah this one this one was something else man all right but there is a little more to this story because let's now add in the next one which is notre dame and Mason Law School pay for justices to come teach classes at their law school and sometimes those classes are somewhere else they're not like on campus so for instance uh Justice Gorsuch teaches a course in Italy for George Mason Law School

and this was like OMG these two conservative schools are paying justices to teach. Justice Kagan is paid to teach at Harvard Law School, and there is a pending case from Harvard University at the court, and she is not recused from it, nor do I think she should be, by the way. And it just gets to this narrative that is clearly being pushed by those out there that want to delegitimize the court, in my view. And so I'm getting a little sick of it. If you actually want to change the ethics rules, change the ethics rules. But stop trying to make things sound sketchy that all the justices are doing because you don't like the side of the individual justices that you're talking about.

I'm going to get this slightly wrong, but Justice Breyer owned something like five homes and was a member of the French Academy. Do you know how much time you have to spend in France to be a member of the French Academy? Justices are showing up at Bohemian Grove back in the day. And by back in the day, I mean very much within this century. All sorts of things that nobody's mentioning in these stories. And instead it's how dare Justice Gorsuch go teach.

If you want to change the ethics rules as Gabe Roth, for instance, does at Fix the Courts, then okay, let's change the ethics rules. But stop telling me that these people who are following the ethics rules are somehow sketchy, whatever that means. And yes, I am setting aside still the Justice Thomas Harlan Crowe house exchange situation, which he was clearly supposed to disclose. And as far as I know now has amended his financial disclosure to reflect that or said he is going to. Nobody's disputing that that was left off. I'm not disputing it. So this leads to then, okay, what do you do about it?

There's a couple of proposals on the Hill. You've got some separation of powers problems, of course. Senator Schumer invited the chief justice to come sit down for a little chat in front of the Senate and the chief justice was like, oh, thank you so much for the invitation. I will be reorganizing my sock drawer that day and will not be able to attend. Citing separation of powers, the chiefs don't appear to be grilled by senators. Neither does the president. No, thank you. Oren Kerr had an interesting Twitter thread idea on this. I'm no expert in judicial ethics, but if it were up to me, I'd consider a Supreme Court ethics rule that you might call the, quote, pay your own way and no awards rule. It would go like this. First, no one can give you anything

that has pecuniary value. If it has pecuniary value, you have to pay market for it. If your best friend wants to have you over for dinner, you pay them for it, or you bring your own meal. If you meet a friend out for a drink, you each pay. If a law school invites you to speak, you pay your own flight and hotel. If you spend the night at a friend's place, you estimate value and pay them. So basically, no gifts that have value that can be estimated in money. Possible exceptions for gifts from close family members. Second, raise the justice's salary so they can afford these kinds of incidental things. Would the justices lead sort of weird lives under these rules? Maybe a bit, but that's okay. They live weird lives anyway. I definitely agree with that last part. It's a weird life to be a justice on the Supreme Court, undoubtedly. But here's the problem.

If you do that, justices aren't speaking at anything anymore they're not going to pay their own flight and hotel i don't care if you raise their salary they're not going to teach at law schools they're not you know i think they actually still would speak at judicial conferences because that's like as you mentioned their weird lives would be the only time they're allowed out of their little cages um but otherwise, you would massively curtail the amount we'd ever hear from justices. He doesn't mention, by the way, book deals. But for instance, justices write books, and they are allowed to keep the advance proceeds, et cetera, from writing the book. Now, that's an avenue for corruption in theory, right? This is outside income.

Right. But then they just won't write books, and you're never going to know what justices think, how they think about the law, et cetera. I mean, Justice Scalia wrote, I don't know how many books, a zillion of them. We use them all the time. Law students use them. I recommend them all the time. Making Your Case is one of the great books for undergrads too. So I haven't seen a rule that I think is great yet. David, have you? So I haven't seen a rule that I think is great yet. David, have you? I haven't seen one that is great.

I do think there is a version of the pay your own way that would be for something along the lines of perhaps non-use of commercial, use of non-commercial travel. In other words, to deal with the private jet problem or whatever i think there are ways in which you can uh craft rules that avoid some of the things that i think some of the things that make you go hmm which would be you know some of the the pj private jet travel and things like that um but the core the core issue here to me is not,

is the Supreme Court corrupt? Because you have not uncovered anything here. And again, we're putting aside the Clarence Thomas land sale, putting that aside. We both, everyone is in agreement that should have been disclosed. But aside from that,

what your, the headline is, justices comply with ethics rules. It's for the large amount of this. And then the controversy to the extent one exists is, should the ethics rules permit this? And this is where the Supreme Court, narrowing that hospitality exemption, had already recognized perhaps some problems. So I think here what you're talking about is how much do you want justices involved in the life of the law outside of the narrow role of being a Supreme Court justice? And I think the actual reality is you do want justices involved in the life of the law outside of that narrow role, just like you want the circuit court judges that we have talked to

on this podcast. Now, note, when you have heard us talk to circuit court and district court judges on this podcast, you have not heard them opine on the cases before them. You've not heard them project how they're going to rule on cases. I think the strongest substantive argument was Judge Rao saying she hates Chevron. Well, guess what? I think at least four other justices do as well, as we've just learned. So, how much do you want them involved in the life of the law? I think you want them involved more rather than less. them involved in the life of the law. I think you want them involved more rather than less.

I think one of the aspects of a functioning court system that is, I think, really quite good for the legal profession is the interaction between judges and lawyers, between judges and law students. Let me share with you a tweet, Sarah, and this is a tweet that I think nails something. This goes to the Notre Dame and George Mason storyline. This is from friend of the pod, Will Bode. Will Bode says, the real story is that the ideological orientation of the rest of the legal academy has created an opportunity for two especially excellent law schools, Notre Dame and George Mason to thrive. And what does he mean by that? It would be controversial for Harvard, for Yale, for Stanford to bring Justice Saylito

or Justice Kavanaugh to teach. And Kavanaugh used to teach at Harvard to bring some of these justices to teach. You think it wouldn't be controversial? Just ask yourself what happened to Judge Duncan at Stanford. So it would be controversial, contentious, extremely divisive on many campuses to bring the more conservative justices to teach on campus. So in this marketplace of ideas that exists in higher education, some law schools that said, you know what would not be controversial for us, but would all be upside is bringing Supreme Court justices to teach. And guess what? Supreme Court justices are allowed to teach.

They're allowed to teach. I'm also not sure Court justices are allowed to teach. They're allowed to teach. I'm also not sure what the corruption interest is here. The corruption or even appearance of corruption. Let's use the most extreme example, which is Justice Gorsuch getting paid to teach in Italy. It's a gorgeous teaching environment, no doubt. He does some sightseeing in the afternoon, no doubt, etc. What's the corruption though? I think, Sarah, the corruption theory is different from the way you and I tend to think of judicial corruption, which is a person with an interest before the court is trying to provide a judge with a benefit that will allow the judge or that will incentivize the judge to rule for them. That's

how you normally think of corruption. But I think these reports are thinking of corruption in a different sense. They're saying conservative institutions and conservative individuals are trying to reaffirm the conservatism of the justices. And so that the justices are being pulled into an ideological bubble of mutual benefit where the conservative institutions get to reaffirm the conservatism of the justices and the justices get their conservatism reaffirmed in ways that they find enjoyable, such as teaching in Italy, etc. That would be sort of an ideological corruption kind of argument. Justice Kagan has spoken to George Mason though. Bingo.

What? One thing that was in the story was that George Mason had an event where all of the justices came except for Roberts. All of them. So again, if you've got rules that allow for the payment of these folks to teach and they get paid to teach, there's not a scandal. I mean, when I was in law school, we had multiple judges who taught at the law school. And we knew they were paid to teach at the law school.

They were providing a service. They were paid a market rate for it. And it was good for law students. It did not cross my mind that Harvard was corrupting Judge Breyer, who was a First Circuit judge at the time, and was teaching administrative law at Harvard Law School. And it was one of the most popular courses at Harvard Law School was Judge Breyer's administrative law class. He taught it during a January term, not controversial. When you and I were at Harvard for our live podcast and for a Federalist Society weekend and a Faith and Veritas weekend, podcast and for a Federalist Society weekend and a Faith and Veritas weekend, I met with a federal judge who teaches at Harvard Law School. No hint of corruption there. And so, I think you're, and let me just get to this ideological point. If you look at Justice Gorsuch, if you look at

Justice Thomas, if you look at the judges who, justices who are under fire, Justice Thomas is Justice Thomas is Justice Thomas is Justice Thomas. Like his jurisprudence has been very consistent. You understand who Justice Thomas is. Same with Justice Gorsuch. If I'm looking at corruption, I'm looking for inexplicable changes in judicial reasoning. I'm looking for weird outlier type cases i'm this is it it strikes me as strange that when you have some of these justices for whom their judicial philosophy has been apparent for years and years and in some cases decades consistently applying that judicial philosophy um i i guess i'm kind of stumped by the corruption argument there and sort of this

quote-unquote ideological basis. But again, if you want to change the rules of ethics to essentially take the justices and throw them in a monastery, the justice monastery, and they are completely cloistered, I mean, you're free to do that, but I don't think you should think that that is a cost-free exercise. That is a costly exercise for the legal profession if you do that. Also, you're free to do that,

but you still run into the problem of what the punishment is if they decide no. Right. It's impeachment. It's the same thing you have now. David, one more Supreme Court justice making news. Justice Alito made some news himself. Do you want to run us through that Wall Street Journal piece?

All right. So there's a piece in the Wall Street Journal by James Taranto and David Rivkin. And it's a Justice Alito interview. So Justice Alito providing some insight in a mid-April interview in his chambers and some insight as to the investigation of the leaker. And so the bottom line is, and this is the key sort of takeaway, and so the bottom line is, and this is, this is a, um, this is the key sort of takeaway

and it is this quote, I personally have a pretty good idea who is responsible, but that's different from the level of proof that is needed to name somebody. This is justice Lito talking. I was part of an effort to prevent the Dobbs draft from becoming, it was part of an effort to prevent the Dobbs draft from becoming, it was part of an effort to prevent the Dobbs draft from becoming the decision of the court. And that's how it was used for those six weeks by people on the outside as part of the campaign to try to intimidate the court. So the takeaways here are Justice Alito says he feels like he knows who it is and that the purpose was to intimidate. And he talks about how it led to assassination efforts.

And most notably, someone was arrested near Judge Kavanaugh's home with the intention who arrested for having the intention to kill Judge Kavanaugh. So that's the top line takeaway, which then led to a lot of people on Twitter saying they know who it is. The they know who it is. The court knows who it is. And Sarah, you have some skepticism, I think, about that, that they absolutely definitely know who this is. I would have some skepticism as well. Anytime you've got a different level of proof than that needed to name somebody, that means you don't really have that much certainty. But that's the top line takeaway. And I do think the other thing

is, the one thing that's important about this is, I do think sometimes it's important to hear from people who have been subject to the kinds of threat environment that have been created by our ridiculous ideological atmosphere that we live in right now, to describe and to talk about what that's like. People need to chill out and return to normal order and turn down the temperature a little bit. And it's important for Justice Alito, I think, to get that message out. But I'm not convinced by the top line. I'm not convinced they actually know who it is. Sarah, what are your thoughts? No, I mean, I don't think this is any different than the theories that have been out there on who it is, what the motivations are.

You and I walked through the different sort of motivation options and came to the same conclusion. And one thing we said was the people in the court who know the inner workings of how opinion negotiations were going know exactly the motivations of the leaker because one version, for instance, that it's a conservative trying to hold together the votes would know whether the votes were shaky, for instance, and they would know whether that theory made any sense. So I very much buy into the theory of the motivations of the person who did it. I very much do not buy into the, and we know who did it. Right. Because by virtue of not having enough evidence to talk about that publicly or to put

it in the report means you don't actually have the evidence. Right. That's exactly where I am. To say we know, but not well enough to name the person is not a we know, right? And he didn't say we know. He says we have a pretty good idea, but that's different from the level of proof needed to name somebody. And in my view, that's different from the level of proof needed to name somebody. And in my view, it's not really a pretty good idea. But, you know, I'm not in their head. I don't know what the state of the evidence is.

But yeah, that was the top line takeaway from the interview. But the motive part of this, everyone talked about everyone has talked about and by the way if that was the motive to create a public pressure campaign what a silly thing to do because the most likely result is to lock everybody in because they don't want to be and we've talked about this they don't want to be perceived as being blown and tossed by the ideological winds they don't want to be, and we've talked about this, they don't want to be perceived as being blown and tossed by the ideological winds. They don't want to be seen as being vulnerable to a pressure campaign. So if you wanted to make sure that was the opinion of the court, there are a few better ways than by leaking that that was the opinion of the court, in my view. So if the person had the desire to create a pressure campaign to reverse the outcome,

their action, in my view, is going to have the precisely opposite effect. All right, David, it's that time of year where the law students have accepted their law schools, they're heading to law school in the fall, and they've got questions for us. But can I make an important announcement first? Yes. Two very key law school applicants, my oldest daughter and her husband, are now ready to make a law school destination announcement. Okay.

So get ready, Charlottesville, Virginia. Arriving in the fall, Camille and Jarrett and two kids. So, yeah. So those are two very interested law student listeners right now in the advice that we're about to give. All right. Here's some of the questions. Do you have any tips for an incoming law student with a dispatch in disposition, especially at a school involved in recent controversies regarding its aversion to conservative legal thinkers? And similarly, we got another set of questions that said from someone who says they're conservative and sort of the Ayn Rand model, but is concerned about affiliating with the Federalist Society when they show up at law school because of the social pressures and the professional repercussions potentially.

So that's question number one. What do we do about that? Number two, as I prepare for the dreaded 1L experience, do you have any recommendations for things I should read, study, or do over the summer before matriculation in August? Okay. Question three, is there anything you wish you had known before attending law school? So David, let's take these one at a time. What should conservative-ish law students do? Should they join the fed soc should they avoid joining the fed soc what what's the good plan my i look i am i am very much of the

camp of let's just call it let your freak flag fly like do not get into the habit of disguising or minimizing your convictions for the sake of professional advancement. That is a tendency that there is a temptation there, especially when entering into what's perceived to be a hostile environment. It's also quite habit forming. And so, if you get in the habit of sort of saying, well, my deep and sincere convictions, And so if you get in the habit of sort of saying, well, my deep and sincere convictions, I'm not going to share them. I'm not going to discuss them for greater career advancement. You're going to end up getting into a position where you're always going to be facing this kind of choice.

Do I continue? There's always going to be reasons to, there are always going to be reasons to hide your convictions if you get into the habit of hiding your convictions. And guess what? The stakes in life only increase. They're actually lower in law school than they are, say, 10 years out of law school or 15 years out of law school. So, if you're going to conceal your convictions now when the stakes are lower, what are you going to do later when the stakes only get higher? And I've heard this from a lot of people. Well, I would be more openly Christian or more openly

conservative or whatever your underlying conviction is, but I need those grad school recommendations or I need, well, guess what? I need the partnership at the law firm is more consequential to you and your family than I need the grad school recommendations, or you just name it. It just keeps getting more consequential. So, go ahead and be, you know, express and live out your convictions. Now, that doesn't mean be a troll about it. You know, that doesn't mean be a jerk about it. Definitely don't do that. But, you know, live out your convictions. And if you find that you are philosophically drawn to the Federalist Society, by golly, join the Federalist Society. The Federalist Society and the conservative legal movement has a real need for people of

real conviction. There are a few people lurking around the Fed Soc these days who I think might be viewing it as a career ladder more than anything else. But I think the Federalist Society and equivalent kinds of organizations need people of real conviction. And don't be afraid that you expressing your conviction is going to hamper your career. Just go live your life. Be who you are. Don't be a jerk about it, of course, but just be who you are. And you might be surprised how much you enjoy law school. And that was my experience. I went for three years in a very, very, very tense time, as people have, as I have said before, and they were three of the best years of my life, even though there was a lot of opposition. But Sarah, what do you think?

Only thing, I love that. The only thing I would add to it is, if you're also not sure of your convictions, don't let other people bully you into not being able to explore what you think about stuff and attending different events because the more you allow outside people to control your own intellectual inputs, again, I think that can be quite addictive as well. Those people aren't

going to be with you in your career. They're not going to be with you late at night. They're not going to help you with your marriage, all those things. There was one student, forget if I mentioned this on the podcast who I heard about, who had accepted a clerkship with a Trump appointed judge and then later on called and reneged basically because she was getting so much pressure from classmates not to clerk for a Trump appointed judge. Those people aren't going to help you in your career. So you just gave in to this group when you're still figuring out who you are, who you want to be, what you believe, all of these things that I think are vitally important. Don't let other people dictate that process to you, whatever it may be. So you don't need to join the Federalist Society,

but feel free to attend an event and feel free to attend one from ACS as well. And don't let the FedSoc kids tell you that you're not allowed to do that. I mean, my God, who are these people? Well, and don't let yourself be bullied isn't just great life advice in general. It's also particularly good life advice for somebody who might be entering, say, the world of litigation. So, if you're going to be entering the world of litigation, you're going to be around, there's various different styles of litigation and lawyering within the litigation context. styles of litigation and lawyering within the litigation context. And one of those styles is bullying. There are people who are like, he's a pit bull or whatever, which always to me was a weird thing because it meant their letters were just especially nasty. That's not really a bully,

but anyway, they will cast themselves as bullies. They're very aggressive. They'll try to intimidate. That's a litigation style. And I think it's really important as a young lawyer to just sort of establish immediately, I cannot be bullied. You cannot bully me out of my position. Period. End of discussion.

Whatever letter you write, however you tweet about me whatever you do you cannot you cannot bully me out of your my convictions and once you establish that as a zone of of protection around you bullying does not work it actually changes your view sort of of the legal profession in general and you find it kind of funny and hilarious when you're dealing with these pit bulls or whatever because they don't actually wait for you outside the courthouse and beat you to a pulp. They just write meaner letters than other people. And that's sort of like as scary as meaner tweets. So just establish that you're not in that you're not bullyable.

And I think that's, again, without being a jerk, you don't have to be a jerk to say, I'm not going to be bullied. That's a good practice for what it means to litigate a case. All right, next up, as I prepare for the dreaded 1L experience, recommendations on things to read, study, or do over the summer.

David, you and I might differ on this, but here's my recommendation. Go on vacation, read nothing, be bored, stare at walls, walls watch grass grow hang out with friends the end i love that advice um to enjoy the time before law school love it i will add one thing and not because it prepares you for law school in any way shape shape, or form, but it does make you feel a little heroic walking into law school, which is kind of fun. Like read 1L by Scott Turow. I did do that. You're right. Not because it's actually prepping you for law school, but it's going to just give you the sense

of, I'm about to walk into an ordeal and like this sense of you know courage and conviction and then you walk in and like people are nice and yeah the work is challenging but folks there want you to succeed and but in the meantime you sort of it's it you get to put on like the the uh figurative camo paint on your face and get yourself ready for the ordeal. No. And it's also just a fun read, but read one L then go to law school and reflect back on one L again. And that that's fun. Yeah. Look,

I didn't go to law school when Scott Turow went to law school. So it's a little hard for me to judge him, but I do like what in the world were you allowing to have happened to your life? You know, his like marriage is falling apart and stuff like it's not that bad but no i didn't go back then so what do i know i went in towards the end of that era the socratic era um so most of my classes were still socratic questioning and yeah it's scary it's not life-altering scary yeah did you read paper chase i i watched paper chase okay you

watch paper chase same yeah same general idea same thing it's it's scary it's intimidating at first but it's not life-altering life-shattering scary um but when else still a great read um all right and then is there anything you wish you had known before attending law school i don't think the podcast is long enough for me to walk through the things i mean that's part of the problem you're attending law school to learn all the things that you wish you'd known before attending law school yeah sorry i'll give you a few things i wish i would have known number one i wish i'd went in I would have known somebody had pulled me aside early. Because remember, long-time listeners will know, I went to law school knowing nothing about the practice of law.

Like nothing. I wish somebody had pulled me aside early and said, I know you don't have very much money, but you need to clerk. Like I didn't see the value in a good clerkship until it was too late because I'd already decided to just go on and start the practice of law. So that was a big mistake on my part, not pursuing a clerkship. I also wish somebody had pulled me aside at the end of my 1L year and said, I know you're really, really, really sick of being here, but you need to try to ride on for law review anyway. Because I had this view about both clerkship and Law Review,

like, meh, you know, really, do I need to do that? And all of that seems like work and delaying starting my real job and all of that. Don't be like me. If you got a shot at Law Review, go for Law Review. Try to find a good clerkship early. So, those are two things that I would say. The other thing that I would say is, don't fall for the group study, the siren call of group study.

That's, I firmly believe in that, Sarah, including this. Do your own course outline. Do not, under any circumstances, say, I'm only going to do one-fifth of an outline and the rest of my study group is going to do the four-fifths. Do your whole outline. Now, if you want to share some of that with other people, totally up to you. But if you want to do well, do your own course outline. For me, there was an exact correlation between when I did my own course outline, I scored higher than when I was lazy and did one quarter of a course outline.

So those are my pieces of advice. What about you, Sarah? I think mine's more philosophical. If adolescence is maximizing your opportunities, law school is the pinnacle of that. And that's what you're describing, David, right? Yeah. Clerkships, law review, all these things are still opportunity maximizing. But then it's also important to realize that adulthood, which I'll say is when you then leave law school, is about choosing what opportunities to pursue and closing the door on opportunities. You can't spend your whole life simply, I think,

pursuing a singular path when you're not open then to other opportunities, you miss out. But you also can't spend your whole life maximizing opportunities or you will also miss out if you're just constantly worried about closing any potential door by exploring this door because then this other door might shut. So law school is really the pinnacle of and the end of opportunity maximization. So maximize what you're doing there for three years. Don't waste time when you could be, I mean, everything, right? Socializing with your classmates is opportunity maximizing for at least some of the time. Clinics, writing a law review note, all of these things are opportunities that you're being at least offered in law school.

Take as many as you can. Just Pac-Man them up. Gobble, gobble, gobble. I agree with that. It's an opportunity cornucopia, law school is. So, you know, that's not the time to sort of hole away in your room. I'm glad you said that about relationships. And it's not this everybody can sense from a mile away if you're like, ooh, I'm networking now. Be a normal person, make friends, but do not look at friendships as an impediment. And when you're in law school, all of that time when you spend making friends and bonding with classmates, don't look at that as a sideshow or an impediment. For a lot of reasons, unrelated to career, just personal happiness, forming these friendships. Because some of these friendships you're going to form in law school are going to be particularly good friendships because you're going to have gone

through a shared difficult experience called your 1L year. And shared difficult experiences bond people. We just had my Fantasy Baseball League draft, I believe the 32nd edition of our Fantasy Baseball League draft, which was the Fantasy Baseball League formed my one L year in law school. And those guys are the best. They are, we've had one member of the Fantasy Baseball League as a friend of the pod who was on here, who's the public, the lead public defender in the state of Kentucky. But these friendships have been fundamental to my life since and not, and just put aside the career stuff,

just been, have really been key to my life ever since law school. So I really love that advice, Sarah, about making relationships in law school. Yep. My best friends, I met them on the 1L booze cruise. Still best friends. They're the best. So hi, Jamie, Alex, and Ashley. Okay. And then last thing, David, from someone who just finished 1L. Phew, they said, but now what do I do about electives? Do you have any advice on which electives to take and which ones now that I'm not bound up in 1L required courses? Yes, I do. And every law professor is, maybe they'll agree,

but I think they'll be annoyed. If the class is law and don't take it. If the class is law and don't take it. What? Oh, that's the opposite of my advice. Okay. So explain. Take evidence. Take tax.

Take securities. Take law classes. Learn law. Law and my feelings is not something that is actually going to do much for you in life. David disagrees. Oh my gosh. Okay. So my advice is going to be take about every law and class that you can. Now, it's not going to be, don't do it at the expense of evidence. Take evidence, of course, take evidence. Can you even get out of law? I mean, I thought we had to take evidence. No, you do not. You didn't even have to take con law, David. Do you remember that? You did

not have to take constitutional law. You definitely didn't have to take evidence. Yeah. So take con law, take evidence. If you're going to be in commercial law, take UCC, take uniform commercial code. But you still got a lot of blue ocean there, man. And I filled it with law and classes and I don't regret it. Seriously. And for those who aren't lawyers, it's like law and Jane Austen, law and the Knicks. It's great. I took law and human rights. I took the law and constitutional philosophy. I took the law and I mean, like all of these, which are number one, they're often they're essay based classes sometimes. And then they're easier classes. That's what David's trying to tell you.

Yes, they're easier classes on subjects that you wouldn't take it if you weren't really interested in them. They're often smaller classes, seminar-sized. What's not to love, Sarah? I mean, the law and sports, I'll take that seven times if I could. So, the law and military strategy, I mean, the world is your oyster on the law and classes. Take them. All right. I'll do one addendum david's wrong on all of this except uh do take law and classes from the professors that you want to form relationships with because your evidence classes tax securities all of that will still be large socratic classes

but your law and classes because their seminar format if there's a professor who you want to form a relationship with you want a ta for them with, you want a TA for them, whatever else, that's a good reason to take a law and class. I took some wonderful law and classes from Jack Goldsmith, national security and government lawyer. I took my favorite law and class from Professor Richard Fallon, who's phenomenal at the law school and turned into, it was the professor I bonded with the most,

no question about it, when I was there. Yeah. That's a good reason. Law and sports, because you like law and sports, is not a good reason. It's not a good reason because they're easier classes. You need to take evidence. You need to learn hearsay.

If you didn't take con laws of 1L, although now that is required, I think, everywhere, because I think even Harvard now requires it. But still, take First Amendment law. Take 14th Amendment law. Those are all... Fed courts. Dear God, take Fed courts.

All of those things. Tax. I didn't take tax. I heard tax was an awesome class. I wish I had. But I will addenda my law and for specific professors. Take them all. Oh, my God. Take them all. Oh my God.

Take them all. All right. Thank you, 1Ls. Thank you, rising 2Ls. Best of luck to all of you starting law school in the fall. I'm sure we'll hear from plenty more of you between now and August.

But seriously, don't try to study this summer. Just go sit by the pool. Enjoy your last freedom of mind before they start tinkering in there because it'll never go back uh and thank you listeners for joining us for this lovely spring podcast we'll talk to you again next time Oh, oh, oh Yeah! Oh, oh, oh