Advisory Opinions - Law Schools vs. Conservative Scholars

Episode Date: January 21, 2025

David French makes his long-awaited return to Catholic University of America after thatincident for a live Advisory Opinions taping with Sarah Isgur and two special guests: Joel Alicea, director of the Center for the Constitution and the Catholic Intellectual Tradition, and Trevor McFadden, a district court judge for the U.S. District Court for D.C. The Agenda: —A Jewish joke then a Catholic joke ... —Constitutional law is now mandatory? —Breaking down the originalist court —Learning corpus linguistics —Law school incentives and Top 14 schools —Satan v. United States? David? —Can anyone explain transactional law? —Q&A Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgo, that's David French, and we are coming at you live from Catholic University, the law school here. David, it's a real treat, it's a snowy day. We made our way up here though, beautiful campus. Ah, the memories. When I drive up to Catholic University, there was something that happened here.

Oh gosh, September of 2019, I had a little debate with Sorib Amari at Catholic University called the Melee at CUA. And I may have lost my temper in the debate, Sarah. So I have to come back and redeem myself by being relentlessly calm and kind, no matter how mean you are to me in the questions. But no, it's a real pleasure to be here.

I love Catholic University and this is, it's a real pleasure to be here. I love Catholic University and this is, it's a beautiful campus, a beautiful place. And my entire experience is not the melee at CUA. I also have had other good experiences here. Well, I hope some of the students take that as a challenge. You can't get under your skin. We have two guests with us today. Professor Joel Alisaia is the Associate Professor of Law

and Director of the Center for Constitution and the Catholic Intellectual Tradition. And we have Judge Trevor McFadden. Judge McFadden is a judge on the DC court here, but more importantly, we work together at the Department of Justice. And more importantly than that, I knew his wife before I knew him. I knew when he was just a boyfriend.

That's right. Yeah. You might have known her longer than I've known her. Oh. Okay. We'll compare notes after. You and I are having flashbacks to eight years ago where we were spending a lot of time together. One of the cool things about your background is also that you're a police officer after undergrad and before law school, which has to be pretty interesting as a judge. You've sort of been at the various steps. You haven't been a criminal defendant, but you've you've done everything else. What we're going to talk about today is the state of legal academia, the incentives in legal academia, how well it's serving law students, how well it's serving legal professionals who are actually going out and arguing in front of some of these judges and courts. And there's no one better to start with than you, Professor Alessia. You in fact have your students here. It was the

first day of your Con Law class. That's right. And I asked you what you started with and I actually think it's worth like, do you hash a little Con Law 1L year for us here at, wait it's also the Columbus School of Law, is that Christopher Columbus? That's right. Okay so the uncancelled Christopher Columbus. He will never be cancelled here. Well side note, I really liked that once Christopher Columbus has been cancelled then they discovered like he was a Jew. And I was like, that's, that figures. That feels so right. But here he is still Catholic at the Columbus School of Law, Catholic University. And you started Con Law for your 1Ls. And in my Con Law class, we went to the same-

It just got awkward. No, it's good. If you believe in Jewish Christopher Columbus, I don't know what we're doing. We went to the same law school. And so in theory, Kamala was not required at our law school. That's right. And is it not? Not required. Not while we were there.

I think it now is, but it was not while we were there. And in fact, when I took Kamala, it was famously the constitution was appendix B. Not even A, y'all. B. So how's your class going? So it's not Appendix B. We start this semester on teaching constitutional law, structure, separation of powers, and federalism to 1Ls this semester. Many of them are in the room liberalism to 1Ls this semester. Many of them are in the room today. I just walked over here from the first day of class, and I usually start Con Law 1, especially by doing a kind of an overview of the whole Constitution, just walking through every provision of the unamended Constitution to give a sense of what each provision is about, very briefly, obviously, but also to give them

a roadmap of what we're going to be covering moving forward throughout the rest of the semester. And I think it's important for students to read through the whole Constitution at some point and to get some sense of what each provision is about. But that was not my original idea. That was an idea that I picked up from my teacher, Justice Kavanaugh, who taught me separation of powers at Harvard Law School for a semester. And that's what he did. He started with a guided

tour of the Constitution on the first day of class, and I was so struck by that and thought that it was such a good idea that I implemented it myself. But I feel like this is going to weird out listeners who are like, but how else would you do it? I mean, we have right now, even set aside how you might have done it 50 years ago. Right now, the Supreme Court is interested in the text, the history, a throw in tradition and precedent kind of in that third bucket together. So, like, of course, you'd be reading the text of the Constitution. And, right, you would probably want to go into the history of how you got to those words, right? They didn't come out of nowhere. James Madison

wasn't that original. So it might confuse them to why what you're saying is special. Well, I think that in a lot of constitutional law courses, the text plays very little role in the instruction of constitutional law. And that's because so much of current Supreme Court doctrine law. And that's because so much of current Supreme Court doctrine departs from the text in significant ways or doesn't engage with the text in an extensive way in the opinions themselves. And because a lot of professors want to teach current doctrine, as I do as well, obviously, the text kind of recedes into the background. But I think it's important to bring the text into the foreground as we're talking about these cases so that you're not just learning current doctrine,

but you're also learning how has current doctrine potentially departed from the text? How might it realign with the text by this court in future years so that you know where doctrine might be moving and not just where it is currently? Yeah, so maybe current law schools tend to do precedent history text.

Right, I think that's basically right, yeah. So I think I'm the oldest person here on the panel by a month or two. So, but I'm very curious, judge, how were you taught constitutional law? And what was the, what was the, what presence did originalism have in that instruction? Because I was taught constitutional law in 1992,

and there was not much about originalism at all. I had an outstanding teacher, but it was nowhere near the dominant strain of legal philosophy. It was definitely on the outer edges, definitely. And it was taught as being on the outer edges. Yeah, no, I agree. Thanks so much to both of you for having me and to Catholic for hosting this event. I went to University of Virginia, and I'm proud to say, Con Law was required, but it was not an originalist class,

by any means. We did have some great originalist faculty on staff, but my professor, she was terrific. And I think she did a nice job of trying to tease out different sides of an issue but it was not based on, really was not based on the text. You kind of go through the seminal cases and my main recollection from Conlaw is my one conservative friend and I like looking at each other across the big seminar room,

and I could just kind of see him getting angrier and angrier. Like, here it comes, here it comes, and then there'd be some question, like, this is preposterous, how can you do this? And everybody else would be like, oh, it's terrible. So yes, it was not a Professor Alessia class, I'm sure. You know, when I was taught it, I was taught originalism in the same way that I was taught

Growing up in a very fundamentalist Protestant sect in the south the way I was taught about Catholicism Which hang with me you thought my Jewish Columbus thing was on Well, this thing was awkward. I know. It's about to get a lot more awkward. What's the matter? But you know, when you grow up in a very strict religious community, the way you are often taught about other points of view

is all the ways they're wrong, right? So it's not that you're taught about them, you're taught against them, if that makes sense. And so what you learn about it is very partial. It's very fragmented. It's incomplete. And that's how I would say I was taught about originalism in law school.

I wasn't taught about it. I was taught against it. And I think that's probably still true at a lot of law schools where maybe we can be thankful that originalism is even mentioned. But it certainly is not taught by scholars like Professor Alessia and other scholars you see at Notre Dame, at Scalia Law, who understand it, who've been making these types

of arguments and research themselves. But it's kind of weird. We listen to a lot of Supreme Court oral arguments. And we comment frequently that I think it's odd that when you have five originalists on the court and a sixth conservative member of the court, that you would ever send someone to argue your point of view who is not fluent in originalism or text history and tradition.

And yet it seems to happen every single day. And I remain baffled and at least as a second language or something. And I'm curious just from their own incentive structure, why you think that's not happening? Well, I think that especially at the top schools, they feel somewhat immune from the potential ramifications of their students going forward without that kind of preparation because they feel like they're going to get a lot of great students no matter what they do and how ill-served their students are by their method of instruction.

But at a school where you really do care about instructing your students well and preparing them effectively for a life in legal practice, it's essential for them to understand how to make arguments in an originalist mode, even if they're not originalists, right? In some ways, especially if they're not originalists, because it might be a foreign way of thinking for them, so it's even more important for them to learn it. Again, even if that's not to say that they need to be originalists or that they agree with these types of outcomes, but

if you're going to be an effective advocate, you need to know how to speak to an audience that is composed of judges that are predominantly originalists or at least very sympathetic to originalism. And that's why I spend a lot of time on the history of these provisions in my CommLaw courses and try to integrate some originalist theory into the courses for my students just be familiar with that Not at all to push originalism on them, but for them to be effective advocates later on judge How much are your clerks? How much are you doing remedial education for your clerks when they show up? Because now that we're in the era of multiple clerkships I'm also curious how many are coming from circuit courts to you versus going to circuit courts and how you're sort of

I mean and the clerkships are supposed to be a fourth year of law school or fifth or sixth as it's turning into. Yeah, so I've got my three clerks with me today. All of them are coming from circuit clerkships and I think we're really privileged in the DC District Courts, the caliber of clerks that we're getting has been a long time since I have hired anybody who was not much smarter than I am. Thankfully, I kind of the remedial issue is not a problem for me, but a lot of that is because of very intentional screening, looking for students who've come from law schools where originalism is not considered a dirty word, looking at the types of extra curricular activities that they've done, things like Georgetown

does an originalism boot camp, Heritage Foundation does a clerkship academy, there are the Blackstone fellowship. Academy, there are the Blackstone Fellowship, there are ways that people can help prepare themselves even if they're being ill served by their law schools. And that's really important because certainly as you point out, Sarah, I mean, to be an effective Supreme Court advocate, surely you've got to be conversant with originalism, but it's not just in the Supreme Court. It's I think one of the most interesting areas of the law right now is Second Amendment jurisprudence. And that's being dealt with in trial courts all over the country.

And so, you know, how can you be a good public defender? How can you be a good prosecutor? How can you be a good district court law clerk if you don't have some basic understanding of this cutting edge area? We have spent many frustrating hours and advisory opinions talking about the state of Second Amendment jurisprudence, and we're just podcasting. I can only imagine sorting that through, and we have expressed sympathy for circuit and district court judges sorting through the Second Amendment right now.

But, you know, one of the things that I think is interesting, that I think is a pitch to make to law students who might be very much not originalists themselves, may be very frustrated with an originalist court, is that to remind them that if you can speak it fluently, you can actually win. You can actually persuade. And when I think about this, I think about the Bostock case because I remember, I don't know if it was David Cole from ACLU argued that for me if I'm wrong, I'm pretty sure it was David Cole. But he walked into that argument speaking fluent originalist and as if he had an audience of one, Justice Gorsuch. It felt like he was walking in speaking fluent Gorsuch. And I feel as if too many people, when they think through originalism, they think of it

as a foregone conclusion what originalism means versus no, it's the beginning of a debate, but it's a debate conducted within certain parameters versus a discussion entirely of outcomes. Yeah, I think we've seen that in some of the very interesting separate opinions from Justices Barrett and Kavanaugh, for example, in the Rahimi case, the Second Amendment case, so going back to Second Amendment and its unsettled nature, you see real disagreements there about the implications of a historical-based methodology for how to think about the Second Amendment.

And some of those disagreements are principle disagreements, not just contingent ones. And so I think you're right, David, that it's a mistake to think of originalism as monolithic or as only leading to a conservative, coded politically conservative outcomes when applied faithfully. Justice Scalia famously wrote several opinions that sided with criminal defendants in ways that were contrary to his political preferences, but that he thought were just required by an originalist methodology. Okay. On the flip side, our current Federalist Society students

who are immersed in text history and tradition and originalism, what are they missing out on? What's the next thing? What's the next language that students need to be fluent in? Maybe on the left, maybe from somewhere else. And is that, are law students such a, sorry, law schools, such a lagging indicator on where the legal profession is and actual law, that this is sort of, by the time we're teaching them

originalism, the world will have moved on to something else anyway. I'm skeptical that that's gonna happen. I think originalism frankly has been with us since the founding and we just forgot about it for a few decades along the way. Like 15 of them.

Fifteen of them. You know. We're just becoming an old country at this point. I think you raised an important point, Sarah, in that what my pitch to law students, to law schools, frankly, would be for diversity of viewpoints, that you're certainly, I'm looking to hire future litigators and they cannot be assured of litigating in front of an originalist judge. Even if you have an originalist judge, she may well be bound by very non-originalist

precedent. And so, I don't think there's the suggestion here that it's originalism or nothing. I think well-trained attorneys need to be able to make the best arguments for their clients. And that may be an originalist argument, perhaps it's not. In terms of what's cutting edge, I mean, something that I've been learning a lot about recently is corpus linguistics. I knew you were going to say corpus linguistics.

When anytime you hear a judge say something I've been learning a lot about, it all ends in corpus linguistics. It certainly does not mean I mastered it, but I still- Explain to these 1Ls here what corpus linguistics is. We're so cutting edge. We've had a whole podcast about corpus linguistics. Go listen to the podcast. But I would, my nutshell would be, it's almost like a Lexis Nexus for a certain era of texts. And so you have these databases that will pull up original sources from whatever time period you're looking for. And so if you're doing, you know,

second amendment arguments, you can go back and look at how these terms, keep and bear arms would have been used in newspapers, in statutes, in cases, but around that time to help you understand how these terms would have been used. But it's- Side note, isn't it odd that any part of originalism would require modern technology to do it? It certainly makes it easier.

You can't do good originalism without AI. Right, right. But that's weird. But, court-versed linguistics is not just an originalist. The cases I've used at all have both been, one was a statute and one was a sentencing guideline. And so, you know, using, looking to how certain terms were used at the time those terms were put into the governing text helps elucidate the meaning.

So, you mentioned a point that I think is really... It's always been very interesting to me about the legal academy, and that is viewpoint diversity or ideological diversity, however you want to phrase it. It seemed to me that if you're gonna look at the legal academy versus say the humanities in elite education, the legal academy always did a little bit better on having different voices in the faculty, but only a little bit better on having different voices in the faculty, but only a little bit better. There was always a very dominant strain.

I remember I was speaking about this issue several years ago to a group of students at the University of Kentucky Law School, actually. And I was talking about, well, the Legal Academy does better than the humanities, but it still has a lot of work to do. And a professor at the school got very angry and was saying the Legal Academy is quite diverse and he named all four of the conservative professors that he could think of at Harvard and Yale.

And I was thinking, if you can name them all off the top of your head, that's not all you're kind of making my point, right? But I feel like things in the sense the sense is that they're the legal academy seems more open maybe than some of the humanities. But what do you see as the state of openness to diverse points of view? I do think that there is more openness in the legal academy than in a lot of the faculty of arts and sciences across the country to viewpoint diversity. I think that that's because there is still an orientation towards argument and debate in law school just by nature of the profession, right?

And so it would be very strange if law schools just had a complete absence of contrary viewpoints. That being said, they're not doing great. It's still the case that the number of originalists or politically conservative law professors at the top, very top law schools, there is a very small number, right? Again, you can probably name them all fairly easily, at least the ones that are out and not just kind of quiet about it. And I think that that is a real problem, not only because it deserves those students, those students are not going to be exposed to the best arguments on all sides of a given issue, especially the students who agree with their faculty on the left of those faculties, those students

in particular will not get exposure to contrary viewpoints and that will inhibit their ability in legal practice to be effective advocates or to go out and just be better citizens in understanding different viewpoints. But it also creates this problem where those schools then feed into the most elite parts of our society. And so, those people who themselves don't have a good appreciation for different viewpoints become culture formers and culture makers that reinforce that kind of obliviousness. And that's really destructive, I think, which makes it important, therefore, to have schools like this one, like Catholic University's law school, where we do have a broad range of different viewpoints represented on the

faculty and where you have all within the ambit of the Catholic mission, but different viewpoints that teach our students different points of view and allow them to be better trained for legal practice. There also seems to be a real issue though of conservatives not wanting to go into academia potentially. And I know there's some chicken and egg, right? If you don't feel welcome, if you don't think you're gonna get the job, then you don't apply for the job. But also, there was sort of at least in my time in law school, this stereotype that the liberals were interested in sort of more the low-paid

public service and the conservatives were going to go make money. So yeah, they weren't going into academia. They're not thinking thoughts. They're gonna go, you know, represent Exxon and club some baby seals. God damn it. So I think that that is just a really lame excuse. Like it is it just excuse. It's the kind of excuse you can tell yourself if you already have a very low opinion of the people with whom you disagree, because you can just kind of dismiss them as not particularly intellectually sophisticated. And I think that the reality is that there are a lot of conservatives who have the credentials and the capability to be great legal scholars

who never seriously consider a career in academia because they are just relentlessly sent the message throughout their educational formation that this is not a career for you. Because if you try to go into legal academia, you will face unrelenting hostility. And that kind of message does filter down. So, I have so many conversations, so many law students and young lawyers who are interested in academia and in scholarship, where most of the conversation is just like, is this even really plausible for me because of the barriers I would face as a conservative? And that is just not a conversation that has to happen on the other side. On the other side, the barriers to entry to academia are

very high for anyone, right? It's a very hard job to get no matter what your viewpoint is. But those on the left side of the spectrum just don't have to have those types of conversations about, gosh, what kind of hostility am I going to face, both in getting into the academy, but also if I'm lucky enough to get into the academy from my colleagues and even potentially from my students, right? And that is something that really does deter a lot of people from going in. You know, the dynamic, I was looking into these, some of these numbers after, gosh, was it Judge Duncan at Stanford who was shouted down? So I was looking at some of the numbers and it was saying that the legal profession

is to the left of the general public, just by bit. I mean, the median lawyer is to the left of the just median non-lawyer American. The legal academy at large is to the left of the legal profession. Elite law students, elite schools are to the left of the legal academy. And then the faculty at the quote elite law students at, quote, elite schools are to the left of the legal academy and then the faculty at the, quote, elite law schools are to the left of the law students at that school.

And so it just keeps moving more left in sort of your median political view, the more that a school climbs up the rankings. That is kind of mirroring much of the rest of education in the United States. We're now reaching a point where you cannot talk about the college experience as one thing ideologically. If you go to Princeton and you go to Chicago, they're going to be different experiences now. If you go to Columbia or you go to Vanderbilt, very different.

That's not even including the like your SEC schools, which you're going to have, again, very, very different, or your CCCU schools. That's the Council for Christian Colleges and Universities. Is the Legal Academy diversifying to the same extent? And maybe this is a good opportunity to talk about some of the things that Catholic has been doing to distinguish itself. But my sense is that the Legal Academy is also diversifying itself a bit. It's not one big blob as much anymore. Yeah, I think that's true. I think that there are

two kind of tracks to think about. There's the extent to which dominant current institutions that have traditionally been predominantly been served by the left, like Harvard and Yale, Stanford, places like that, the extent to which they hire people with different viewpoints, especially conservatives. And then there's the other question about, well, what about alternative institutions that build up little enclaves for those who are not part of this dominant view within the legal academy. And the latter is really an example of, you know, Notre Dame and George Mason and here, Catholic University, which doesn't mean that those schools only have conservatives or those

schools only have originalists. It's just that they are actually more faithful to the true purpose of a university and a law school, which is to recruit people who are the best and who are pursuing the truth honestly, and to expose their students to the diverse range of viewpoints to better equip them for legal practice. And that is actually what all these law schools should be doing. Obviously, Catholic University and Notre Dame have a different component in that we have an explicit Catholic mission, right?

And that also affects the kind of community that we have an explicit Catholic mission, right? And that also affects the kind of community that we're building here. But it does mean that our students get exposure to faculty and to resources that they would not get at a lot of other institutions, and I think in that way are better equipped to go out into legal practice than they would be if they graduated completely oblivious to contrary viewpoints from a lot of other places. All right, Judge, let's talk law school incentives. You have the US News and World Report rankings. It seems to dominate academia, not just law school academia, but we talk about the T14.

They're the only game in town. The T14 refers to the U.S. News and World Report's determination of what the top 14 schools are and why it ended up being 14 that we care about instead of any round number. I have no idea of the history of that, maybe you do. And so what we've also done then, we've talked about viewpoint diversity, but I want to talk about a different type of diversity, which is just experimental educational diversity, diversity in terms of what you're focusing on. Because if everything is based on US News and World Report, and they value X, Y, and

Z, the schools are all going to chase X, Y, and Z, right? What's the law that once something, once a measure turns into a metric, it ceases to be a valuable measure anymore. I feel like we must be there and way past there when it comes to legal academia. And so we're basically churning out the same law schools over and over again, because of those metrics. And indeed we've had some, at least one, I'm thinking of criminal indictment

related to trying to game the system and lie about, you know, lost schools. I think that was undergrad. I think that, I think it was Columbia. So how does that affect legal academia and what are we supposed to do about it when the money follows news and world report? Because the students follow US news and world report, et cetera. I mean, there was a, there was a report that a trustee

at the University of Florida burst into tears at the decline of Florida's ranking under VIN SAS, like the US News ranking. You've got trustees bawling about this. So how to break out of this prison, Judge? Well, I guess as a consumer of law school's production, that is law students, I certainly am, you're aware of the rankings, but I also, I don't think that is the be-all and the end-all. Okay, where did your three law clerks go to school?

Let's test this. Oh, dear. You're not going to spell platitudes to school. Let's test. Let's test this. Oh dear. You're not going to spell platitudes to me. UVA, Yale, and Cornell. How interesting that those are all in the C14. That's true. Cornell's not. Last year I had a law student from Notre Dame. I Actually, I do, one of the things that Justice Thomas is kind of famous for is looking quite broadly and bringing in top law students from whatever the law school is.

Of course, in the reverse, Justice Scalia had the famous line, the schools may not turn a sowsier into a silk purse, but those top schools are unlikely to turn a silk purse into a sowsier, so I don't bother to look anywhere else. Like they're taking the silk purses, right? So like there might be silk purses elsewhere, but I know these are silk purses.

And so that was his excuse. Yeah, and I'm a huge admirer of both of those justices. I would say, when you look at where, what justices law clerks have gone on to make a difference in the country, I would have a hard time thinking of any justice whose law clerks have not gone on to become judges and law professors and just speak into the public sphere the way that Justice Thomas's clerks have done. There's probably a number of reasons for that, but I think one is his very intentional attempt

to go away from just kind of the quarters of power. I think there are things that it's not just judges, but alumni can do, citizens can do. If you want to see your law school putting out law students who are able to work in a variety of situations and respond to a variety of justices, you should be looking for viewpoint diversity. And Judge DePar spoke on some of these things in his Joseph Story lecture this last fall. But, you know, write to your dean, say, you know, I love contributing to my law school, but I'd like to make sure that the law school is not just...is not missing this opportunity to put out litigators who can properly address the current Supreme Court. Most of us have our taxpayers in a state that funds one or more law schools.

Is your law school, the state law school, is there viewpoint diversity there? If not, maybe that's something that you should be writing to your state senator or your governor about. What about boycotts from the judges? Oh, so I am not boycotting any law school. Obviously, I've got a Yale law grad with me today. I'll assume Yale would definitely be boycotting. That's the one.

I'm a huge fan of Judge's hoe and Judge's branch. And I think, frankly, the attention that they brought to bear on this issue has probably been really helpful. Yale has hired an Alito clerk just within those last year, Professor West, Keith Whittington. I think I'm optimistic that law schools, even in the T14, and perhaps especially in the T14, are recognizing that they may be out of step with where the rest of the country and the courts are. And I'm looking to provide some of that viewpoint diversity. Adam Chapnick I think that that's really important, but

it's also important for schools that are already homes to a broader range of viewpoints to themselves just become top ranked schools, right? Not to just wait to see if Harvard and Yale can become more intellectually diverse. But I think it's very encouraging, right, that Notre Dame is a top 20, top 25 law school in the current rankings, that George Mason is top 30, top 35. We here at Catholic University jumped, I think, 28 spots last year. We're projected to jump another 20 spots this year. We're moving up very rapidly and attracting the kind of high-quality faculty and students

as a result. So, we just got Jen Mascot, who came over from George Mason. Thomas Clark. Thomas Clark. And Mark D. Jorolome came over from St. John's, Kevin Walsh from Richmond. So these are high quality scholars that we've attracted because of this effort to create a community that is welcoming to scholars who are excluded from a lot of the rest of the academy or at least don't face the same

kind of cultural environment that they would have here. Which again, I want to emphasize does not mean creating a monolithically conservative or originalist school. It just means making creating a law school that is actually true to the purpose of law schools. One that actually is open to viewpoints that much of the rest of the academy does not take seriously. So it's shifting gears a little bit from sort of the ideological viewpoints to just the practice of law itself.

How are law schools doing now in actually preparing people to practice law? That was the one thing. I will say I loved my three years in law school. I had a great time. I did not learn how to practice law. Most of my teachers were critical legal theorists. So I had a lot of critical legal theory.

I had very little originalism. So when I started practice, I was handed a file and told to draft a complaint. You might as well have asked me to construct this space shuttle for all I knew how to draft a complaint, you might as well have asked me to construct this space shuttle for all I knew how to draft that complaint. I could have absolutely heard the fact pattern and tell you how to press historically marginalized peoples that I could not draft a complaint. So here are we on teaching students to actually practice.

And should we be? And should, yeah, that's a great, I guess I'm presuming that we should, should we be? So again, as a consumer of the law school products, I absolutely hope that law schools are preparing their students to be lawyers, to be litigators. I'll tell you a positive note that I think might have been different since, or more common since you went to law school, David, and I wonder what Professor Alessia would say about where we are now.

I think clinics are a great opportunity, something that I really encourage law students to consider, especially in your 3L year. I did a prosecution clinic, worked in a little Commonwealth attorney's office in the middle of Virginia, and I got to do a, handle a number of trials, including a few jury trials, as a third year, using my third year practice certificate. And, and so that gave me a lot, a lot of experience and confidence and excitement about going on to become a prosecutor. So I think, and of course, there are Supreme Court clinics, there's defense clinics, there's a number of ways that I think law schools look to get their students out into actually practicing law. And I'm a huge fan of that.

Internships are another great opportunity, and especially for law students who might find themselves at a law school that doesn't have a lot of originalist scholars, interning for a, a, a judge or in a, an organization where you might be able to get some of that, um, experience and, and opportunity to see originalist arguments considered, I think, is a real help. I won't say that I had no clinical. I did do a clinical with the U.S. Attorney's Office in Eastern District of Massachusetts, but they had any answering prisoner petitions. And one of them was a lawsuit against Satan and the United States government, suing-

Represent. No, I was representing the government. Yes. I mean, Satan's co-counsel was pretty interesting, but literally suing Satan for making him commit the crime and suing the U. the US for prosecuting him for a crime that Satan made him commit. But that made me learn about, this was a very useful thing from law school,

there's actually precedent. Did y'all know this? About lawsuits against Satan? United States, ex-Rail Mayo, the Satan and his staff. Yes, it's a 1971 case. I actually did read that in law school. Did you read that in law school? I thought you were going to say you worked on that case and my job was about to drop,

but then I saw it was 1971. And you were about to make another thing. I was. That was way too late for me. Right. Yeah. Yeah, after your time. Yeah.

Yeah, but that was, I relied on, sorry for the diversion. Okay, I want to push back on the idea that law school is supposed to teach you how to be an actual litigator for a couple of reasons. One, I love the clinics. And I think doing that, especially 3L year is super great. And because it lets you try different hats on to see like, well, I thought I want to be a prosecutor based on no information except law and order. And now maybe I do, maybe I don't. But I actually think spending two years learning

about the theory of the law, why we practice the law, A is good. And B of course, I actually feel like law school can be a bit of a conveyor belt. Like you get on the conveyor belt and it drops you off at Whiten Case or something at the end. I felt like I had nobody told me. I mean, I went into law school having watched all of the law and orders.

Full disclosure, that is what I knew about law school. I went and visited Justice Holmes's grave in Arlington Cemetery. And I was like, check, I'm ready for law school. I didn't know about transactional stuff. I still don't actually. No clue what they're doing out there. Of my four, there was like a group of four of us

in our 1L section two went on to transactional stuff. I do not know what they do. They've tried to explain it to me and I'm still quite lost. So having two years where we don't tell people you need to already know what you're doing, we need to draft a complaint, all of that, I think is good, or at least should be pushed back on that it's not good. I guess I would say that I don't think these have to be mutually exclusive.

So I teach civil procedure, for example, in addition to ConMall here at CUA. And when I teach civil procedure, in addition to covering Iqbal and Twombly and getting my students to understand the theory behind pleading standards, I also have them draft a complaint and I also have them evaluate a 12b6 motion, one that actually exists so that they can read it and see what this looks like. And I think that you don't want to just, as you said, you don't want to look at law school as just a way to teach you how to write a complaint, but you also don't want to ignore that skill set in teaching the theory.

You want to integrate theory and skills together. And I think that that is something that schools like ours do really well, but that a lot of top schools don't do as well because they tend to only emphasize theory. I just don't see why that has to be the case, why you have to choose one or the other. By the way, I am having this wonderful moment flashback. So Joelle and I did not overlap in law school, but he followed me as Federalist Society President after I was gone. And I just, I remember the day you became Federalist Society President. And here you are, like all grown up,

teaching your own law students. And it's so crazy. Sarah can get you on the older and the younger age thing. Like she can get you both directions. We have this, gosh, it's now what, a 25-year-old email chain. And as you become Harvard FedSat president, you get added to this email chain and all the old presidents like give you grief and threaten you. And I remember threatening you. And it's just a fond memory. Yeah.

No, that support was really invaluable at the time. Support. I think it was like, don't mess it up. Okay, any last minute big picture of thoughts on the state of legal academia from either of you guys before we do Q&A? Along the lines of things that law students can do if you find yourself at a law school that does not properly reflect the viewpoint diversity of current legal community, you

can do something about it. I'm not the only consumer of law school. You are as well. And go meet with your dean, meet with the hiring chair. I mean, if law school hired 10 white men for faculty positions in a row, you can be assured there would be appropriate concerns from affinity groups, from law students, from alumni wanting to meet with the law school dean, wanting to meet with the academic chair. You are in a similar position if you are being denied the diversity of legal viewpoints that are reflected in the broader legal community. That's a great point. Yeah. All right. We have a microphone to pass around.

And just to be clear, while someone's raising their hand out there, your question does not need to be related to anything we talked about today. So if you've got a Judge McFadden question on any of the interesting cases or how he met his wife, that's fair hand. What we said about him-

Checking from Sarah, though. Yeah, yeah. What we said about him when she first mentioned him. We're like, we, I don't know. Hi. I'm a fan of your podcast as it is, so it's very cool that you're here. My question is, how do classic legal conservatives, fusionists, originalists, defend our institutions like the Federalist Society from what seems to

be new fads on the American legal right that seem only concerned with power. I think of what Senator Hawley said after Boe's stock was handed down when he questioned whether it was originalism was you know still useful or worth it anymore. How do we go about defending our traditional legal philosophies? I'm going to let them answer that, but I do have two notes. One, it's one of my favorite lines, right? He says that this is what we've been fighting for with originalism. We haven't been fighting for very much. I don't mean favorite that I agree with it. I mean, it's such a perfect encapsulation of that viewpoint. Second, you said that David Cole argued that

case. It was actually pam carlin from stanford Oh bostock. Yeah, okay, just noting fact checking in real time Okay, i'm out. So I think the The way to push back is just to Reintroduce the the foundational principles and explain them in a way that is accessible and potentially acceptable To those who are criticizing them on the right. So for example, you've seen some of the move in kind of the vein of your question from a lot of social conservatives and especially a lot of Catholics actually, after Bostock,

criticizing originalism and textualism from a natural law point of view. And my own scholarship responds to that and the scholarship of some of my colleagues here, like Kevin Walsh responding to that by re-explaining originalism and grounding in a natural law perspective. And I think that's important to do, to not just dismiss those critics, to not just say, well, they're just their they're only resultorians or something like that. They often have legitimate criticisms that are motivating part of their unhappiness.

And you want to address those criticisms as close to on their own terms as you can, and not just kind of marginalize them. So I think that that has led to a fruitful debate within the conservative legal movement over the last few years on the natural law side of things about the relationship between originalism and natural law. I would also think, I also think that in some ways, the force of the critique of originalism has been blunted since Dobbs. So if you go to Bostock, Bostock was before Dobbs. And the argument in Bostock was, wait, if originalism can lead a Justice Gorsuch or Justice Roberts to essentially, in the view of critics, change the meaning of Title VII,

then what is originalism? Originalism is just as malleable as anything else. And then the other thought was, well, originalism is so process oriented, it doesn't ultimately yield any outcomes worth talking about. And then the Dobbs decision happens, which was a very originalist opinion, a very originalist opinion. And so sort of this idea that classical liberalism and originalism sort of is in as a judicial philosophy is not going to yield any sort of this idea that classical liberalism and originalism sort of is in as a judicial philosophy is not going to yield any sort of substantial change was just detonated with that decision.

And so I have seen a lot less force from sort of the what you might call the more authoritarian or common good constitutionalism. Their arguments have a lot less force post-Dobbs. But also one of the things that's giving the arguments less force is the reality that, as the professor said, look, there are legitimate criticisms that have yielded some of this legal thought. Absolutely. No question.

But then what ends up happening is, this is what happens in the marketplace of ideas, is you bring out new ideas. One thing the Federalist Society is really good about doing traditionally is trotting them out all over the country for debate. And in a lot of the debates it hasn't fared well, quite frankly, because when you start to really press, once you get past the I'm dissatisfied with outcome A, B, and C, once you sort of get past that critique, then what you replace it with, that's where the critique, I mean,

that's where the case really starts to show its strains and its cracks. Because at the end of the day, a thought process, a process does matter. Processes do matter. And while a lot of folks in the New Right like scorn procedural liberalism, you can never get away from process. It exists, it matters. And that's where a lot of sort of the New Right critique

I think has the strains in the argument have really been exposed through a lot of public debate. As a historical matter, I just find it fascinating. The Federalist Society and the world have really been exposed through a lot of public debate. As a historical matter, I just find it fascinating. You know, the Federalist Society and the world of originalism really came as a response to the Warren Court. If the argument is the Warren Court was sort of the platonic guardians,

this idea that we just appoint nine people and we hope they're smart and make some good decisions for us all, and they take things out of the political arena because they know better what it should be. So don't leave these things to the majority. What would have made the most sense in, you know, roughly 1978 to 1985 at that point was to simply

have different platonic guardians from the right. And as Reagan's coming into office and Nice's attorney general, it is a shocking point of history that that's not the way they respond, that instead they respond with process. That's my positive thing to say about it. My negative thing to say about it though is that now, 50 years later, you're at the hard part of originalism. This is the edge cases. The easy stuff has all been sorted out. Like Justice Scalia got the low-hanging fruit. How much fun for him? Now you've got a climb to the top of that tree,

Justices Barrett and Kavanaugh and Gorsuch, for the next 30 years. Good luck. And I think that's going to be open to a lot of criticism because you reach, in some ways, the end of originalism. There's no right answer. Yeah, the Second Amendment context. What's the original public meaning of the second minute as it pertains to a 30 round magazine? Thank you, Judge. Judge. Or is Satan when a party? The second to party there.

By the way, I just want to say I'm not hallucinating and everybody gets their due. David Cole did argue the funeral home trans part of the, it was the. You're right, it was. Yeah, yeah, so everybody gets their due now. Okay, okay. I fact-check David and he fact-checked me right back. That's how it works. Welcome to advisory opinions. Normally this is handled in the editing process.

All right, another question? There was another, yeah, another hand back there. And Judge, no matter what this question is, it's to you. So let's just rush and roulette this. Actually, I want to ask a question with Judge, so that's great. So I am a law student at a T90 school. It's this one.

That's better. How far can I realistically go, and how do I get there? You mean in career, career wise? Absolutely. Yeah. I don't think you are going to be held back one bit by coming out of Catholic. I think there are you might have to work harder. There are probably networks that Sarah had coming out of HLS that some of the rest of us did not have.

Your wife. Wow, that was almost your mama. But I mean, if you look at the lawyers at the top of the administration, both the outgoing one or incoming one, if you look at lawyers who are really making their marks in the marketplace. They are talented people who work hard. And I think your diploma, where your diploma is from, will never matter more than it matters your first job out of law school. After that, you're looking at any employer is looking at, well, how did he do at his last job? And what does his boss say about him? And do people like him? And so those types of factors, this is a building block. And of course course law school is a very important building block. But a lot of it is part of the point I think we've been trying to make here today is that

as much as the name on the diploma, it's what are the building blocks that you are acquiring in law school. And if you're at a school that's going to give you the ability to make arguments, successful arguments for your client, you're getting a good education. And that is by no means encapsulated in the US News and World Report rankings. I would say nothing, there's no such thing as a perfect meritocracy. But as a general matter, good lawyers tend to do well in the United States of America. And one of the most prospective altering experiences that I had was leaving Harvard Law School

and then going and practicing law in Kentucky. I was, in almost every case, I was the only Harvard lawyer in the cases. And there were times, guys, especially early in my career, when I was just only Harvard lawyer in the cases. And there were times guys, especially early in my career, when I was just brutalized in court, like it was ugly. They were better than me. I was, they were just better lawyers than me, especially at that stage in my career. And it showed in outcomes.

It showed in their, you showed in their success. And one of the things that I have told young lawyers is, if you have the skillset and you work hard and you have an opportunity and you will get an opportunity, you really have tremendous potential, just tremendous potential. There's just no question about it. And I would echo what the judge said.

There are some doors that swing open more easily depending on the ranking of the school, but a human being still has to walk through that door and perform. I will never forget sitting down. I was co-counsel in a case in Kentucky in a rural courthouse. And I was the, I was younger, he was older, and I was basically just helping him research and things like that. He was arguing the case. He was brilliant. And he demolished, demolished a legal team. I can't remember the firm, Skadden, somewhere, as a top, top team, top, top firm. And I'll never forget sitting with him in this bar after, and he's got that Kentucky accent, and he just takes a sip of his beer and he goes,

"'That old boy from New York thought I was dumb "'cause I talk funny.'" You know, it was a great lesson. Credentials are nice. Performance matters, and you're gonna have an opportunity to perform. Just know that, understand that. You're gonna have an opportunity to perform, and you're gonna be an opportunity to perform. Just know that, understand that. You're gonna have an opportunity to perform.

And you're gonna be able to do it. You're gonna be able to do it. And that's one thing I actually like about the legal profession, Sarah and I have this long running fight over should you go to law school or not. You guys have already failed my test. You're all here. Congratulations, I won.

But I think it's just a tremendous profession, I mean, a tremendous education that puts you on a path, whether it's in law or not, to where there are hard, it's hard to see ceilings. It's hard to see where is my hard and fast ceiling. You're going to absolutely have an opportunity to perform, and you should not feel limited in any way. All right, last question. OK, yeah. Hi, my name is Christopher Dodd.

No relation to the senator. My question is for all y'all, and it has to do with the ideological diversity that's been discussed here. So what can we as law students do to expose ourselves to those diverse viewpoints that we've been discussing this entire time? And I guess that applies for schools that have more ideological diversity like Catholic,

but then also at those other institutions, which are perhaps more of an ideological monolith. Well, I think that there are some models already out there. For example, I know at Yale Law School, the Federal Society chapter there organizes reading groups to go through scholarship on originalism or textualism and kind of teach themselves and expose themselves to this range of views that they're not necessarily getting in the classroom. That's a great entrepreneurial thing to do, right? If you're at a law school where you feel like you're not getting what you need, try to assemble your own syllabus of readings and get some other students to go through them with you. I think

at Yale, they actually get credit for it, which is even better, but if you don't get credit, that's fine. It's still worth doing on your own. I think that technology can really help here where you can form networks with other conservatives at other law schools and do kind of Zoom conversations about some of these topics if you don't have enough of you on your campus who are interested in having those types of discussions. So I think that you can seek out this kind of interaction, this kind of exposure to these viewpoints if you're not getting them where you currently are. And you can just reach out to faculty as well to help you assemble those readings or identify

what you might want to get exposed to. And they should be willing to do that. I'm certainly willing to do that. If someone reached out to me and said, I really need some help figuring out what is the best original scholarship on this clause, I'd be happy to send them some recommendations. Even podcasts hosts help out from time to time when we get emails from law students. Well, you know, it's very easy now to find very thoughtful people who disagree with you and listen to them.

I mean, one of my principles that I teach when I teach is I tell my students, as you get older, always seek out the best expression of the opposing side's point of view. That you should make that a priority. Like if you hear an idea that it sounds off or weird to you or you don't necessarily like it, go read the idea's proponent before you read the idea's opponent. Because then you're going to get the more full picture. Think about to the awkward moment at

the start when I grew up as this very fundamentalist, small, southern Protestant. Well, they didn't even call themselves Protestants because Protestants were going to hell too. But a very, you know, small insular fundamentalist denomination. Joel caught the two there. Oh, that sucks. Well, it was everybody but us. Just everybody but us. But anyway, what I learned was, I learned a perspective from the standpoint of its alleged flaws.

They didn't bring in a priest to talk to us about Catholicism. They didn't bring in a Calvinist scholar from a forum theological seminary to talk to us about Calvinism. Instead, they just presented the caricature. And that is the way so much discourse happens in this country is you learn about a new idea, and then you go read somebody who's ideologically aligned with you, and they'll tell you all the reasons why it's wrong. And this is plaguing us. This is plaguing us.

So I think you have real capacity now to find information and to hear thoughtful voices that disagree with you. Just make it a priority to seek out the best expression of the opposing point's point of view. And it humanizes the opposition, sometimes points out weaknesses in your own understanding of the world. And even if at the end of the day,

you still disagree with it and still think it's really bad, you're actually gonna be much more effective in combating it, cause you understand it and not a caricature of it. I find law review articles really hard to read and I don't just mean like they're boring. They are that and I do fall asleep. But also I literally have trouble understanding them sometimes because you're so deep in the whatever academic world that they're in.

They're really speaking to each other and not you. I love reading modern judicial opinions and judge, I wonder if you have sort of recommendations of how to find good opinions. Like I think the short circuit newsletter is really good. It just like has little one paragraph summaries of circuit court decisions. And if one strikes you as interesting, like go jump in, but it's a good way to hear from a lot of different smart judges around the country and read their writing, makes you a better writer, makes you a better thinker, they're engaging in real facts.

To me, a lot of your articles can be too theoretical for me to understand what they're talking about. How do you go about that? Yeah, I mean, you mentioned Tom Goldstein, I am on Howard Peeling every day and that will often flag most interesting, not only Supreme Court cases, but appellate cases. And that's a great way to find something that is relevant and as you say, often really well written.

I like the Originalism blog too. I think they'll often have a scholarship in particular, but sometimes judicial opinions that are on really relevant topics. So I appreciate both of those. I think you're right. There's kind of this glut of information and being able to find good ways to shortcut advisory opinions. You all as well. I was waiting. You can take your way.

But I gotta say, you all flag a lot of the, most interesting topics, most interesting cases that are percolating around the courts. And I know it's very helpful to a lot of us. By the way, I was whacking law review articles, not to whack academics, but rather, if you're a law student and you're like, I'm not having a good time reading these

and I don't understand them. I just want you to know like, same, you're good. Thank you so much for having us here. Thank you for the questions. Thank you for hosting us. This was a real treat. We talked about how much we have been wanting to talk about the subject.

So all of it, the best. Thank you, Columbus Law School. [♪upbeat music playing.♪