Mike Spivey: Welcome to Status Check with Spivey, where we talk about life, law school, law school admissions, a little bit of everything. We’re in the law school category. I am joined with Stanford Law Professor Orin Kerr, who just has a remarkable interest in helping out students who are going to law school, students who are in law school. We cover the gamut—how to prepare to start law school. What is it going to be like? How do faculty think about what they’re doing to prepare you? How do faculty become faculty members?
Many listeners will already know the name. He’s an amazing asset for law school applicants and law school students. We’re joined by Orin Kerr, who’s here to help us all out understanding what the process is like. Without further delay, this is me and Orin.
Orin, great to see you. I am not only honored to have you, I’m honored that you said over email, tell me if this is legitimate, that you are a somewhat regular listener to our podcast.
[1:13] Orin Kerr: All true, yeah. I’ve learned a lot from the podcast. They don’t usually let professors know that much about the admissions process, so I’ve used the podcast as a good way of keeping informed on how things are going.
Mike: Are you very curious by nature?
Orin: It always is important, I think, to know how students are dealing with admissions, how students are dealing with the job process. You know, the more you can learn about what’s going on at a school, the better I think you’re going to be as a teacher. I try to stay informed, but it’s tricky, and the podcast has been a great resource for me, so thank you.
Mike: Thank you for listening. We’ll get to a little bit of what’s going on with students entering where you help with, but let’s start with you. I know you started at GW. You were undergrad at Princeton, correct, and then JD from Harvard? Did you know you wanted to be a faculty?
Orin: Yes.
Mike: You did? Okay, how did that start?
Orin: I was just one of those people that really loved law school. You know, I was sitting there in class thinking, “This is really interesting. I like this discussion. I wonder what that case really means, and I wonder what lower courts have done with that case.” And when I was in practice, I thought the academic side of things was really interesting. I kept wanting to stop and think about, “I wonder how these areas intersect,” and so I was always drawn to the academic questions.
And I should say my dad was a professor. I’m what sometimes are called “profspring”—children of professors, or at least one. So my dad was a professor of civil engineering, and I naturally, I think, was just drawn to the academic side of things. It started in law school, but really, when I was in practice, it was an option that I thought, “Okay, I think I’d really enjoy that.” And fortunately, I’ve been very lucky, and I have.
Mike: Yeah, so I’m not surprised. I just listened to a podcast with Arthur Brooks; you might know the name. He’s a Harvard professor. Right. He talks about happiness and finding meaning. And Rich Roll asked him, “How did you get into being a professor?” and he said, “Well, my dad was a professor.”
For a law student who goes on to become a faculty member, is it normal that genesis starts from your experience in law school, or does it start three to five years out as a practicing lawyer? “Hey, I actually like that academic setting. Let me go back.”
[3:05] Orin: I think starting earlier and earlier, because the lead-in, the number of years it takes to prepare the resume to get a teaching job, has just gotten longer and longer. So the earlier you have an inkling that that’s something you’re interested in, the more likely it is you’re going to sort of set yourself up for the kind of resume that schools are going to look for when they hire. So, I think it’s pretty common to know early—although, there’s a whole range of different kinds of professors and then there’s a whole range of different kinds of backgrounds, so it does vary, I think, a lot. I just happened to have at least an idea when I was in law school.
Mike: Yeah. Well, I can tell you practiced law, because you’re going to disclaim everything and say, “It’s never binary, Mike.” Right.
Did you do it the old school way? And what was the old school way? And we’ll talk about the new school way. And I think there’s one interesting trivia point in there. Did you take a semester or a year off while in law school to clerk on the Supreme Court?
Orin: Well, I was a junior professor, so I taught for two years and then clerked a second time around.
Yeah, so there’s been a change in how people become law professors, broadly speaking. It used to be the way to do it was you went to a good law school, did pretty well grade-wise, practiced for a couple years, and then applied to teach, usually writing an article or something like that to show that you could do the scholarship side of things. You didn’t really need a whole lot of preparation before you went what they call “on the teaching market,” you sort of applied for a teaching job.
And this is 50 years ago, 60 years ago, when this was, like, really the norm. Schools would just, like, hire a young practicing lawyer and say, “You seem like you’d be a good professor,” and there you go. And that has really changed over the last 20 years in particular. Now it’s much more common for people to have done a lot of scholarly writing before they show up to be professors, and about half of new entry-level law professors—and this is sort of the classic tenure-track, non-clinical professors; I’ll talk about different kinds of professors in a minute. About half of the regular what they call “podium professors,” tenure-track folks, have PhDs in some sort of discipline. So they might have a PhD in psychology or economics or history or whatever it might be, and then they write half in their field and half in law. And they may not have practiced at all, or they clerked for a year and that’s it.
And so there’s much more of a move towards professors that could almost teach in any department, but happen to teach in law. Whereas the old-fashioned approach, which is definitely like where I’m coming from, is more like lawyers who happen to be academics, rather than academics who happen to be in law schools. Not that I practiced a lot compared to full-time practicing lawyers, but I practiced some, and I practice a little bit today, and so much more the old-fashioned lawyer model than the new approach.
[5:41] Mike: Yeah, we just had Dr. Nita Farahany at Duke talking about “cognitive extinction.” So she did it the new way. You did it the old way.
So this started around, I think, when David Van Zandt was Dean at Northwestern. I think he started hiring people with PhDs. And my theory—and push back, please—coming from the administrative and now consulting side of things, I always see this through a lens of, “We can move up our peer assessment scores in the rankings,” which by the way, I get a lot of those phone calls, Orin. “How do we move up our peer assessment scores?” And the answer is, you move up in the rankings for a set number of years, and it’s a lagging effect. Rankings movement moves peer assessment; peer assessment doesn’t move rankings. But maybe Van Zandt said—tell me if I’m wrong, because I love pushback. Second best is getting someone to my opinion; the best is having someone change my opinion. So I could be wrong. Van Zandt said, “Oh, our peer assessment’s going to move if we have all these scholars joining us with PhDs.” Do you think that’s maybe an accurate way of looking at it, or am I looking at it wrong?
Orin: I think that’s part of it. But I think the bigger picture is one of a shift in law schools towards an academic model. Law schools are funny things at a university. So, at one level, it is a professional education—like, we train lawyers, right? Like that’s what we’re trying to do. We’re trying to get people so they are going to be competent lawyers over the course of their careers.
And yet we’re in universities, at least most law schools are in universities, and so we’re trying to do the same thing as professors in other areas are trying to do, which is advance scholarly ideas and come up with new approaches and learn about the legal world. And the thought behind the move towards PhDs that, listen, the really hardest part about the job, or the part that’s sort of the most difficult to evaluate is, how good a scholar is somebody going to be, and a really important question is how active are they going to be? You might get tenure five years in, and then you’re there for another 30 or 40 years, and is the person still writing or not?
And somebody who has a PhD really has, like, a depth of insight into a field, and they are going to really advance the ball and be very serious as scholars. Whereas somebody who’s been a practicing lawyer for a couple years shows up at a law school, maybe they’re not going to be such great scholars because really, at heart, they’re kind of practical people. They’re more lawyerly people. And there’s sort of a sense of, maybe those PhDs are really going to be the ones that advance the scholarly agenda more broadly. Some of that might be U.S. News ranking, but I think it’s also just a sense that that’s where the great ideas are going to come from.
I kind of think this is oversold, and that really the key question is going to be, who creates the great ideas? Who writes the great scholarship? Not who has a credential, PhD or not. And I think in some ways, PhDs may hurt. It may draw people away from what’s legally important and make it harder for them to see those questions. So probably the mix is what you want, but a lot of junior people are going to come in. Maybe they’ve practiced a year, or they haven’t practiced at all. They have a PhD. That’s more the current approach.
So it’s still a mix, but we’ve moved away from the old-fashioned, just, somebody who’s been an associate at a firm for five years sort of shows up as an assistant professor, which is the way it used to be done.
[8:46] Mike: Yeah, you mentioned “mixed.” Because the flip side of the coin of the new way would be, I could put an argument out there that the number one complaint I hear from hiring partners is—of course, this has probably been for the last 200 years, so this is nothing new, but—”Why aren’t you giving us students that can hit the ground running?” One pushback would be, “Yeah, someone with five years practicing law and then who becomes a sitting faculty member, versus five years getting a PhD, that person practicing law might be intertwining at the podium, to use your reference, might be intertwining a little bit more on the practicality of hey, in this courtroom setting, we’re going to talk about what it was like to actually try this case,” versus, “Here’s the who, what, when, why, and how I learned when I was getting my PhD.”
Orin: Having done it yourself, you’re going to just do a better job, I think, teaching it. You’re going to make a more realistic picture for students. I teach criminal procedure, for example. Having written a motion to suppress, having responded to a motion to suppress, and then you’re teaching what goes into a motion to suppress—like, just having at least some experience, and I don’t think I have much. Compared to somebody who’s been a practitioner for 20 years, I did it briefly. But just to have done it, I think, is really helpful.
The hard part in terms of making graduates practice-ready, you use that phrase, and that’s one you hear a lot, is that there’s so many different kinds of legal practice. Some of the things you’re always going to have to learn on the job. Like, how do you figure out what the deadlines are for your filing? What goes at the top of the filing? What goes at the bottom of the filing? That’s all stuff that I remember when I showed up at the U.S. Attorney’s office, and it was, like, the first time I was actually litigating, and they said, “Here’s a go-by.” That’s what they called all these. “So here’s a standard example. here’s a couple examples of what this motion or response to a motion is supposed to look like. Follow these.” And so you’re like, “Well, wait a minute, what comes at the top of a motion?” And it’s like this, “Comes ye, the United States Attorney, blah, blah, blah, through and by undersigned counsel,” and you’re like, “What is that?” and that’s just a phrase that’s been used for hundreds of years in the law. You go back to, like, 18th-century filings, and they’re still using that phrase, and that’s where it all comes from. And so, those are things you just learn when you’re there. And it’s really localized. It’ll be, like, that office, or that kind of practice.
So the fact that graduates are not practice-ready is not bad if the things that you need to learn are things you can learn in, like, an hour, and that are really specific to the practice.
Mike: I would also say—I get a kick out of this “not practice-ready,” because let’s say you, Orin Kerr, decided, “All right, I’m going to dedicate my life to making them only practice-ready and not teaching them how to think or the underlying foundations,” they would then complain about how you made them practice-ready. They would say, “Orin’s a great guy”—there are aggressive law firms out there, I’ve seen them, and there are law schools that take the amicable approach to the court. However a law school were they teach them to be practice-ready, the same hiring partners would say, “They taught them all wrong.”
[11:27] Orin: Yeah. I think the ideal legal training is you get the foundations in how to think through law. The classic line, “How to think like a lawyer,” I think is real, because basically, “how to think like a lawyer” is “what is a good lawyer going to say in response to hearing about this case?” Client walks into your door and says, “Hey, I have this problem. What do you think?” The top lawyer is going to be able to say, “Okay, you’ve just told me the situation. I think there are two issues that really matter in the law. Here are the questions I have for you as to how to resolve them.” That’s what a lawyer is going to be thinking if they’re really good at it, they really know the law.
And that’s what teaching someone to think like a lawyer is. Like, what’s relevant? What’s not relevant? What do I need to know? How strong is this case? And those are the things that law school traditionally kind of excels at teaching. It’s those big picture, like, how to figure out what’s relevant, what’s not relevant, what’s important, that matter. So law schools, I think, could do a lot better job at merging the practical part of this and the big-picture part of this. But being practice-ready is only part of the picture for schools, I think.
Mike: Maybe in 5 or 10 years they’ll require you to have a PhD and 5 years practicing experience.
So for our listeners, mostly college students who are going to law school, before we move on to what it’s like being a faculty member, if you were to script out, “Okay, I get you want to become a faculty member,” what’s the pathway you would give them? I know it’s not “definitely get a PhD” or “definitely practice.” Are there other little nuggets in there? What would you tell them?
Orin: So, the first thing to remember is that there are a lot of different kinds of law professors. Then there’s the kind that I talked about a minute ago, the traditional podium professor, tenure-track, and for that, I think really it’s how interested in the scholarship are you? It might require getting a PhD. The credential is certainly helpful. Or, a lot of the people that take that path have graduated from top law schools, have things like clerkships and all that kind of traditional credentials. So that path is still an important one.
The other thing, there are a lot of other kinds of professors, though. There’s clinical professors—professors that are not typically writing law review articles and teaching large classes, but they are running clinics, little in terms of number of students but practical programs for students, maybe it’s 10 students a semester, focusing on representing clients in a particular area. So that really is more of a combination of legal practice and the academic world that’s running a law firm from the school, essentially, in the clinic.
There are legal writing professors who are teaching usually that first-year legal writing class that every student’s going to have. Teaching the basics of how to write legal documents and how to cite and all that important, how to represent clients, and practical stuff that’s legal writing focused.
There are adjuncts. The basic idea of an adjunct at a law school is usually a practicing lawyer, usually in the same town or city as the law school, who part-time just comes and teaches a class, usually because it’s a fun thing to do. I did this once when I was in practice. And so that’s a very part-time position but a way of maintaining a role in an academic setting. You’re a professor; you’re just not full-time. You’re full-time as a practicing lawyer.
And so the paths for those different directions are different. But I would say show up in law school, see how much you like law school, see the kinds of things that interest you, see the kinds of practice options that interest you. Keep in mind the scholarly side of things. You probably will have an opportunity to write a paper with a professor or take some class that’s like a paper class, some sort of seminar. And if you’re taking that seminar and you just love it, and you think, “God, this is so much fun, I love writing these papers,” being a professor might be for you, because that’s a lot of what we do. But just keep your eyes open, and think about those different paths as you go through law school.
[15:05] Mike: My undergrad degree was in philosophy from Vanderbilt, then I got an MBA at the University of Alabama, and they asked me to stick around and teach business ethics. And I said, “Well, I liked ethics, and now I like this business thing, so why don’t I give this teaching thing a try?” And it was fun. What did me in was the research. My research area for my PhD was goal-setting. I just wasn’t that into the scholarship part, which is not a great way to be a tenure-track—I could be an adjunct today, to your point. And I think it’s good for students or applicants to realize. You can go off and work in mid-law, solo, biglaw, and you can be an adjunct. The school in your town’s going to love you, probably.
Orin: And I have to tell you, there are amazing adjunct professors at every law school. It’s pretty incredible. As a student—we were talking about that divide between the scholarship side and the practice side and being practice-ready—you know, a lot of times, adjuncts are the best resources in terms of being practice-ready, in terms of learning what it’s really like to be in a field, because they’re in court all day, and then they show up at night. They might be in court 9 to 5, and then at 6:00, they’re in the classroom. And it’s incredible, it’s wonderful that practicing lawyers do that and make that opportunity available to students.
So if you’re a student thinking, “I want to get a mix of more academic perspectives and more practical perspectives,” one option, of course, is clinics. But the other is, you might want to take a class with an adjunct professor who’s a real expert in their field, and that’ll add in that practical side, too.
Mike: Yeah. You mentioned it in your video, which we’ll link in our show notes, but go to the office hours. Get to know your faculty—not just the tenure-track, but get to know the clinical and the adjunct. And that might open people’s eyes to, “Hey, I do want to be an adjunct.” “I do want to practice law.”
I mean, our firm uses two law firms. One is an adjunct professor who’s at a mid-size, smallish law firm, and the other is Gibson Dunn, and when people try to smash us, we hand it over to Gibson Dunn because that’s what they do 24/7. But when people are just looking for me to be an expert witness on a case or whatever, we work with the adjunct professor who’s in a mid-size firm.
To your point, get to know the school, get to know the setting, get to know the faculty, and there’s multiple routes ahead of you. It doesn’t have to be tenure-track.
I do have one funny tenure-track story. You might find it funny. When I was at Vanderbilt early on, a mentor of mine told me about our soon-to-be chancellor, Nick Zeppos. When he was a tenure-track faculty member—and I’d love for you to interpret this for me—in every faculty meeting, he never spoke, ever, not a word, until he got the tenure offer. And then he lit up. You know, it was like Dr. Jekyll and Mr. Hyde. What is the political game in there? He’s retired; he’s not listening to this podcast. Is there a political mindset to that? Was he so risk-averse at saying the wrong thing?
[17:41] Orin: I mean, people in the academic world talk about this. I never know if it’s really real, and I think these concerns are really overblown. But the classic reason why somebody would do something like this is they’re worried about their peers reviewing them. I mean, it is—when you come up for tenure, it is your coworkers who are deciding, do you get to stick around or not? Technically, they’re only recommending it to the dean, who recommends it to the president of the university, but as a practical matter, they’re deciding whether you stick around.
And so there are people who are particularly risk-averse who say, “I’m going to be quiet when I’m on the tenure track, and then once I’m tenured, I will be more vocal.” I’ve actually never noticed a shift. Usually, people are who they are. That’s just the way it is. And, partly it’s because in law schools—law schools, for historical reasons, have high tenure rates. And so, the hard part for becoming a law professor is that initial tenure-track job. That’s incredibly competitive. It’s super hard and something to spend years on. The actual rate of getting tenure once you get there is something like 90% or something like that. It’s very high, in the big picture. So it’s much higher than in other fields. So I don’t think people really have to worry about that, but you do hear that. It’s like a common joke about how people change their behavior when they get tenure.
Mike: And I gave you the extreme example. When I was at Vanderbilt and WashU and Colorado, I’ve seen some really nervous faculty members when they’re up for tenure. When something’s really important in your mind, it’s all you can talk about. Think about someone going through a divorce or being sued. It was just 24/7. Were you in that state?
Orin: It varies. It depends on the culture of the school. When I went on the entry-level market—that is, I’m looking for that first job—I interviewed at a couple different places, and where I went was GW, George Washington, which was fantastic. And when I interviewed at GW, they said, “You should know, when people join the tenure track here, everybody gets tenure. Very high tenure rates. It’s assumed you’re going to get tenure. We’re going to be clear you’re going to get tenure, and you don’t have to worry about it.” And then I interviewed at Northwestern—you mentioned David Van Zandt, the former dean—and David Van Zandt gave me a speech about how, if you start to tenure track at Northwestern, you only will get tenure if you happen to obtain true national prominence, and otherwise you weren’t going to get tenure. And I was like, “Uh, I’ll be going to GW.”
Mike: It was a horrible sales pitch! “You have a 2% chance of getting tenure here, Orin.”
Orin: So that helped me make that decision. I was fortunate in that I was at a school that I kind of knew where I stood, made it less stressful. It’s going to be stressful for everyone, but it was less than it could have been at another place with lower tenure rates.
Mike: Do you think that was a “please don’t throw me in the briar patch” type sales pitch? I mean, I’m going to guess Van Zandt wanted you at Northwestern. I saw a sign in a subway once when I was in Philadelphia, “Wharton’s great, too bad you can’t get in.” It’s such elitist advertising; it’s hilarious to me as someone who has a marketing background. But do you think he was doing that, or are there schools where it’s really hard unless you gain national prominence to get tenure? Was he being up front with you?
Orin: Hard to know. I mean, I didn’t know him well enough. I only met him that one time. I suspect the idea was to indicate that Northwestern was going to be taking academics incredibly seriously and that—only come here if you’re really going to be ambitious. And I think that’s probably what was going on. Of course, as a person interviewing for the job, “We may kick you out in five years; don’t buy a house if you move here,” was kind of how I interpreted it.
Mike: “We supply you with three-year lease condos.”
Okay, so you were at GW, then USC, then Berkeley, and now, recently, since 2025, Stanford, correct?
Orin: Yes.
[21:04] Mike: Okay. I’m curious about so many things, but I know a lot of lawyer friends who say, “It would be great to be a faculty member.” What they’re not getting is, there are hidden headaches to every job, too. What are the pros to being a faculty member that you just love? What brings you meaning? What are the hidden cons? And then, if you’re up for it, is there a difference between GW and Stanford, or GW and USC and Berkeley and Stanford?
Orin: Yeah, so I feel incredibly blessed every day to have this job. I love being a professor. I think it’s amazing. I love teaching classes. I teach in fields that I’m really passionate about. I love talking about the cases, and I love talking about the issues and how the court is evolving, and I just care a lot about these topics. So to be able to basically, like, walk into a room and get to talk about them, I love that. Give me more classes. This is great. I love the teaching and student interaction. It keeps you engaged and fresh, and you get to see—every semester, you sort of have to really start from scratch and think through the field, and it’s just—I love it.
And I love the scholarship part of it. I’m a weird person who just writes law review articles for fun. That is what I like to do. You know, when I start an article, and I think I have an idea, and I go onto my Microsoft Word and I start typing and I go, “I think this actually could work. Wait a minute. Let me try that again.” And my mind just sort of starts focusing on that, and it’ll be something, I’m walking down the street, and I’m thinking about it, just constantly thinking, and I’m loving it.
Mike: This always happens when I’m walking, Orin. It always happens when I’m hiking. I’ll have an idea to write a blog or for my book. What’s an example of something that just struck you and you’re like, “To hell with it, I’m going to research this thing”?
Orin: I mean, sometimes it’ll just be connections between different subjects, or a way in which this area of law matches that area of law, or different ways of solving puzzles that courts have identified. A lot of my scholarship is practical in the sense that I’m interested in, like, what are courts struggling with? What’s, like, a real problem, or a problem that’s going to be happening in, like, new technology that courts are going to be grappling with in 5 years or 10 years? And so, a lot of my articles are like, “Here’s this thing courts are struggling with, and here’s different answers, and here’s the best one,” is a classic thing I’ll write. So I’ll just be thinking about new articles, it’s just what I like to do for fun. So for me, the law professor job is just very well suited to me, and I feel very blessed to be able to do it.
The part that no professor likes—and the thing that all law professors will talk about as the worst part of the job—is grading exams, which is miserable. The line that I heard as a junior professor from a senior colleague was, “I teach and write for free. I grade for the pay,” or “I need the pay for the grading part.” But that’s actually the whole purpose of the salary, is just to make sure you can grade. And what makes it hard is that, let’s say, there’s a typical one, a three-hour essay exam. It could take you 20 minutes, 40 minutes, an hour to grade it. If you’re really a bad grader, you could do it in, like, 10 minutes or something like that. But how hard you work at it, how well you grade—you never get a grade on your grading. And so you’re comparing, say, 70 students in the class, and you’re trying to make sure you’re really fairly grading all 70 relative to each other, because there’s going to be some curve you match, and everybody writes a different exam, and some questions are slightly better, and some questions are slightly worse. And everyone makes mistakes, they just make different mistakes, and you have to evaluate how serious was that error compared to other—it’s sort of stressful to make sure, how am I doing this as fairly as possible? And you hand in your grades, and then you move on, and it takes up a lot of time if you do it well, and it’s not fun. That’s the only part of the job that is not great, and, you know, I’ll take it. It just goes with the territory.
[24:30] Mike: One thing we love at our firm about our job is, I get to talk to people who keep me young at heart. I post on Reddit every third, fourth day. I try to make jokes and keep up with their sense of humor. And every year I get a little bit more detached, right? I can remember, like, 14 years ago saying on a different message board, “I’m super cereal,” which was a South Park quote, and everyone died laughing. They got it immediately. There was a spoof on Al Gore. He couldn’t say the word “serious”; he always said “cereal.” Now I’ll try to make jokes, you know, and like 5 people will laugh instead of 50, but it still keeps me young at heart. Interacting with students, helping people, writing blogs that help people, all that stuff I can relate to.
The stress part, obviously, I can’t relate to that. But we love our jobs at Spivey Consulting. We light up when we talk about them, and I saw you light up. So that’s a big plug for being a faculty member. Is it different at Stanford versus GW or USC?
Orin: It’s the same basic job. 80% of it is similar, or 90% of it is similar. You’re teaching the same courses. And this is, you know, a remarkable part about law school. Almost every law school is going to have a large part of the curriculum in common, and the professors are going to be from the same basic background school-to-school. Slight variations, but a lot is in common. So the basic idea of the job—going into class, teaching classes, meeting with students, grading exams, writing scholarship—that’s going to be the same at any school.
Big variations, I think, are teaching loads can vary. That makes a big difference. You know, you teaching two classes a semester or one class a semester, that’s going to be a really big difference in terms of, you know, how much time you have for that. And semester system versus a quarter system actually makes a huge difference.
Mike: Oh, you were at Chicago. Yeah.
Orin: Yeah, and Stanford has a quarter system, which has taken a lot of getting used to. Teaching a class over 14 weeks or 13 weeks versus teaching a class over 9 weeks, you really have to, like, cut out the part that is less essential to fit it into nine weeks. So that makes a big difference.
But different schools have different traditions, and there’s a lot of self-selection going on, too. The kind of students—as you mentioned, I taught at Berkeley recently, and now I’m at Stanford. And there’s sort of a self-selection part of that. There’s some students that, they’re at Berkeley because they know about Berkeley and Berkeley’s tradition, and they’re really into that. And there’s just going to be kind of a different mix of students in terms of backgrounds and interests and to some extent politics. So every school’s going to have a slightly different flavor they attract, but it’s a pretty similar job. And wherever you go, you’re going to have the same basic dynamics, same basic case book. It’s all going to be pretty similar for the student experience in that sense. So the variations are relatively small.
[27:10] Mike: The best people I know and the worst people I’ve known are law school faculty members, and let me tell you what I mean by that. I can think of people like David Becker. He was probably in his late seventies when I got to know him. He was a professor; he was still doing it. And he passed away in his 80s, and I cried the day he passed away. I’d never heard him once brag about himself in seven years of knowing him. He would introduce you to people and just brag about them, and when he would introduce me to people, he would brag about me. So much of my career success has come from people like David Becker and many others. If I started listing them, Orin, that would be the whole podcast.
Many of the greatest people I’ve known are law faculty members who’ve taken an interest in me when they never had to. On the flip side, I wrote an article about elitism in law school. I had faculty members bossing me around when I was in my twenties, “How dare you come into my classroom and give a tour?” Well, this is the moot courtroom; I had no idea you were going to be standing there talking to a student. And horrible things said to me by tenured faculty members. It’s this overt grandiosity masking covert insecurity is what it is.
Do you see that more at a higher-ranked school than a lower-ranked school, or is that just, some people are insecure and it manifests as grandiosity?
Orin: I’ll offer a general answer, which is, I think people are people, and there’s always going to be a mix of people wherever you go. I think probably law professors are more normal and personable than professors in other fields. I don’t know if I can really say that, but relatively speaking, the classic quirky academic type, there are more normal people in law schools than in some other departments. But I think people are people, and there’s always going to be great people wherever you go, and maybe more complicated people wherever you go. I should say, of course, all my colleagues are amazing. And so everyone’s perfect where I am. Stanford actually is quite amazing; it’s a wonderful place.
Mike: It doesn’t correlate to you with the prestige of the school. I came up with a new word this morning, and we do this. Anna and I have a word, “permutators.” You wouldn’t be able to guess what that is, but in admissions, a permutator is someone who says, “If I get a 168 on the LSAT, what are my chances at Stanford? If I get a 169? If I get a 170?” And our response is, “You’re going to drive yourself crazy. Get the LSAT score, then ask us what your chances are. Stop permutating.” So my word this morning was “step counters,” which is, I’m a step counter. I count every day on my app how many steps did I get, and it’s a pathology, Orin. It’s based on, I get dopamine from having the number be higher; that dopamine comes from having parents that gave me a lot of praise for doing well in school, if I did well in school, and even more for doing well athletically. And I think at places like Yale, where you taught at, Stanford, it’s the highest level of step counters. You have these people who get the most dopamine from achievement. So that’s why I’m interested in this difference between when you were at GW. I did sense a little difference when I was at Colorado versus WashU and Vanderbilt. I think there were more step counters at Vanderbilt, and that’s not a bad thing. It’s not a bad thing to get dopamine from success.
[30:12] Orin: First of all, I think this is lawyers generally. I’m not sure it correlates in any way to “prestige” of the school or something like that. I think it’s just, lawyers are often drawn from that crowd. That’s kind of, to some extent, who we are. But there’s also a real law school culture aspect of this, I think. Different schools lean into that or don’t. There’s, like, a culture in each law school, where it may just be kind of considered inappropriate to be too grade-focused or aggressive in class, whatever it might be. And so I think it does vary school to school.
In my mind, I think University of Chicago, maybe, is the apex of, “I’m trying to succeed. I’m going to learn as much as I can.” Chicago’s just an absolutely fantastic school. It’s just sort of traditional in its focus on, I think, grades, and it’s got a ton of gradations in the grading process, in its very quirky system. And then there are other schools that are much more—they emphasize how laid-back they are.
Mike: That’s fair. I think that clearly Stanford has a great culture, and students talk about that. And to be clear, 97% of faculty I know are wonderful people. You wouldn’t be on this podcast, by definition, if you were in that 3% that think that they’re better for being a tenured faculty versus a clinician or a legal writing professor, because that kind of phenotype would not agree to be on our podcast. They would say, “I’m above this podcast.” So what you’re saying is, yeah there’s that 3%, maybe you’ve seen them more and maybe you haven’t, but that 3% is not specific to these tier-based of elite schools, it’s just people are people.
Orin: People are people.
Mike: Okay, fair.
Orin: Yeah, instead I was like, “Oh man, I get to be on Spivey’s podcast? That’s awesome. I listen to that one.”
Mike: I could name you two to five people off the top of my head who would never agree to be on our podcast; they see us as inferior, they attack us online, and it’s because of their deep-seated insecurities. But thank you for being in the 99% who wouldn’t be like that.
Let’s talk about another similar passion of ours, which is helping out people for free. I mean, we both put a lot of content out there. You do it all the time. The three pillars of being a faculty member are teaching, scholarship, and service. So maybe this is in the “service,” but I think you’re just doing it because you’re a good guy. You have a free video, two free articles, and I think you do it because there’s a lot of people who have no idea what that first month or that first year of being a law student is like. If you want to talk about some of the advice you give in your articles and your video—I certainly can, because I just read both of them and watched the video—but if you want to just leave what with the most important highlights to you are and why you do it.
Orin: Yeah, let me start with why I do it. So, you know, some people show up in law school and they’ve got a ton of insider advantages. Their parents are lawyers, or they know a lot of lawyers. They kind of have been read into the system. And in a lot of ways, law school and law is just a language. It’s like a language and a culture, and the more you kind of understand the language, the better. In a lot of ways, the beginning of law school is supposed to be when you learn the language, but people show up, and they feel like they should already know it because some people around them know it. And they get psyched out, and they feel like they’re not going to be able to do well in it.
I remember actually going back to my own law school experience, like, midway through my first year, being at lunch with a bunch of friends. and we went around. We were talking about, like, did we think we were going to be good lawyers? Did we think we were good at law? And this is at Harvard, so presumably, people are probably going to be pretty good lawyers. We all went around the room, and each of us said, “Oh, no, I’m going to be a terrible lawyer. I don’t understand what’s going on in class. I’m not good at this.” And I strongly remember having that reaction of like, “I may have made a mistake. I really like law, but I don’t think I’m good at it.” Getting psyched out in law school is really common.
And so what I’ve tried to do is write things and post things to help people that are new to law school, don’t have a lot of connections, get that leg up, get that advantage, so they’re not walking in the door feeling like they’re behind. And so I wrote—I think this is my most-read academic article, which is How to Read a Legal Opinion: A Guide for Law Students, which, from what I can tell, is relatively widely assigned for entry-level law students. I took away the copyright protection, so it’s freely available to everyone, which probably helped.
Mike: Yeah, I just read it. It’s not more popular than your comical spoof of Immanuel Kant and Justice Roberts’ ruling?
[34:24] Orin: Yeah, that was another Green Bag article that was fun to do. But the one on how to read a legal opinion is really talking to a first-week, first-day, first-year law student. Like, you’ve just been read an opinion. How do you do this? And it is immersion learning. And I talk about this in the video. I posted a video just last year on that first month of law school and how to think about it. It’s immersion learning. It’s like learning a foreign language when you’re in high school, and they walk in the door, and they start speaking to you in the foreign language, and you’re thinking, like, “I don’t know how to respond. I don’t know this language. I’m here to learn it.” And they know that. They’re just speaking to you in the foreign language on the thinking that the fastest way to learn is to just jump into the deep end of the pool, and you’ll figure it out.
Mike: Is it? When I watched your video, I could remember walking into ninth-grade Spanish and Mrs. Patton was like, “Hola, Miguel, ¿cómo está?” I looked behind me. I didn’t know who she was talking—and is that the best way to learn? Because I didn’t know those words.
Orin: Yeah. I’ll put it this way. The thinking behind it is, like, a little bit of altering the expectations and creating a little bit of tension there is going to trigger a sense of, like, “Wait a minute, I need to learn this. This is a new world that I’m entering, and I’ve got to get up to speed.” Whether it actually works in ninth grade, I don’t know. I don’t teach ninth grade. But the idea in law school at least is, first day of law school, first of all, to assign cases—which is usually what professors do on the first day—to walk in and then, you know, to have maybe a brief introduction, but then otherwise to just say, you know, “Mr. Jones, what were the facts of State v. Whatever?” And it assumes that they have some idea as to what’s going on.
And every first-year professor is going to know, of course, a lot of them are going to be like, “What is going on?” And so it’s just understood, just like that ninth-grade class, people are going to look and be like, “Wait, what?” And so from the professor’s standpoint, they don’t expect everyone to know the answer. In fact, it’d be really weird if people knew the answer. It’s more setting the expectation that this is a new language and creating a way to learn it.
So that’s at least the idea behind it, but what I’ve tried to do is, especially for first-generation law students, people whose parents maybe didn’t go to college but also certainly didn’t go to law school, to let everybody know, “This is the world you’re in. This is the language. This is what you should think about.” To try to even the playing field against those that maybe have those insider advantages.
Mike: Yeah. So the tension thing, I think there’s research that would support that. Kelly McGonigal is a professor at Stanford in the psychology department. I don’t know if you know the name; she wrote a book called The Upside of Stress. Weirdly, I’m Facebook friends with her, so we’ve talked about dogs on each other’s pages. So I’m going to name-drop her to try to get her on this podcast. So there is some upside to that stress. I think what you said in the video and what you just said now, what’s great for people to hear, which is, if you look at it from the faculty members’ perspective, they’ve seen this for 20, 30, 40, 50 years. No one is expecting perfect. How could you? Anyone who’s done something for the first time—being a law student—it’s a disaster. Anyone who’s brought a baby home from a hospital, like, you know, they’re on their phone, “How many ounces,” whatever. It’s an example I just heard. Anything anyone’s done the first time.
One thing I tell students—tell me if this is good advice or not—new students, what I say to them is, you’re going to be enamored with the faculty and how smart they are. There’s always this premium put on IQ; it’s interesting. Guess what? In 20 years, when you’ve been teaching or learning or practicing something for 20 years, you’re going to be a freaking expert. You don’t have to be overwhelmed with these people. They’re great. They’re super, super great at what they do, at teaching a specific topic. You’re going to be just that great in 20 years. So don’t feel intimidated at law school.
[37:58] Orin: I’d say a couple things. First, don’t feel intimidated, because part of it is, especially that first year, especially that first week—think about the nature of a law school classroom, just how it’s physically set up. The professor’s at some sort of lectern, and the students are in some sort of, you know, circular bowl or some room. It’s, like, a concert or something like that, where the professor’s the musician, and they’re going to play some hits or something like that. It’s set up like that must be the person who knows what they’re doing. And relative to students, of course, you hope they know what they’re doing. But the whole room setup is one designed to make the person who’s looking at the front sort of feel like, “Okay, that person is the one to learn from. They’re the ones who are taking that role.” And so it’s natural to feel intimidated.
And as I mentioned in the video, not only should you not think you should be perfect, the student that answers questions perfectly, especially in the first year, is actually kind of a disappointment to the professor. They don’t want students to answer things perfectly, because if I’m teaching first-year criminal law and a student answers, the first week, a series of questions perfectly—what do I think? I think, “This student’s parents are lawyers, and they have told him exactly how to go about this.” Or someone’s gotten an outline from a previous year, which somebody went crazy and wrote down every question. And that’s not learning. That’s just parroting back what somebody happens to know.
What a professor wants is actually a typical answer. Because the whole learning is when you go from, “Here’s my typical answer. Here’s what I kind of think the answer might be,” to, “Wait a minute. The way a lawyer will think about this is more complicated, because they’re going to have to think about what’s the role of courts versus legislatures, or what’s that doctrine, or what’s the history of that.”
It’s sort of a journey that the professor wants to take you on, and in order to take you on the journey, you need to kind of make that first step, which is the typical step, not the perfect step. If you’re like, “Hey, Professor, I’m already at the destination, you don’t need to take me on this journey,” the professor’s going to be thinking, like, “Why am I here?”
Mike: Right.
Orin: What you want is, like, the typical wrong step, and then the professor says, “No, no, not there, over here,” and then you get to the destination. So, in a lot of ways, go into class with an open mind, but don’t feel like you’re being graded on your answers. You’re not.
Mike: Yeah. If I had one macro theme for this podcast, and when you and I were messaging, I was like, “Orin would be perfect for this,” it tracks with—we had Terry Real, who’s this famous therapist. We had him on our podcast, and he talked about how it can feel like hazing, with that rock star at the front, and you’re being graded on a curve, and you’re being thrown into the fire. And at the PhD level, it’s, “Look to your left, look to your right. Okay, those people won’t graduate with their PhDs, two out of three won’t.” And what Real said is, to this whole notion of this person is the rock star, well, guess what? You’re here. They’re here. Congrats. You both made it. No better, no different.
For people listening to this, they’re going to see your resume, Princeton, Harvard, they’re going to see who you clerked for, and they’re going to say, “Wow, it would be scary to walk into that guy’s classroom.” “It would be scary to be a tenure-track faculty member.” And the reason why we’re so excited to get you on is, it’s not scary. You’re there to help them. You’re there to support them, not to grade them in your head when they’re giving an imperfect answer. The person who gets up there and freezes—I’m going to guess, tell me—you’re encouraging them in your head, “Just keep going. It doesn’t matter if it’s good or bad, just keep going.”
[41:17] Orin: Sometimes a student is unprepared, or maybe they’re prepared, but they’re so nervous, especially, like, in the first month. That totally goes away after the first couple of weeks, but maybe they’re not prepared or whatever it might be, or they’re just freezing. Whatever it might be. First of all, we’ve all been there.
Mike: Who hasn’t?
Orin: We—all your professors were law students. We had that time when we were like, “Oops, forgot to do the reading. I hope I don’t get called. Oh, I’m being called on.” It’s happened to everyone. And so we’re thinking, “Oh no. How can I help? What should I do?” I could just move on to somebody else, just as a practical matter. Somebody who hasn’t done the reading, they’re not going to be useful in answering questions, so that’s not helping anyone. And everybody knows. Sometimes students think the professor doesn’t know. Believe me, it’s clear when it’s like, “Well, and how did the court rule?” and then the student’s answer is like, “Uh, I think they affirmed?” Like, guess what? That probably means you didn’t actually read that case, because you got to know who won in order to understand the opinion. And so we know that. And so pedagogically, what’s the most useful response? You don’t want to make students feel bad. It’s just like, how can we get everybody in a good conversation? That’s the goal.
Mike: They’re there to help you. Because when you get your first job, you do not want your boss telling you that you’re not prepared. Because we’ve also been there. So they’re being hard on you early so that you’re prepared for a cold, hard world in reality that’s coming two, three years down the road. They’re actually your friends.
Orin: Yeah, when a judge says, “We’re having a hearing at 2:00,” it turns out, “I’m sorry I didn’t get a chance to prep for the hearing” doesn’t go well. You’ve got to be prepared.
And so the goal, at least, in how this is all set up is to try to encourage preparation, because that’s what you’re going to need to do as a lawyer, and that’s how you learn as a law student. And professors, most of the time, they totally understand if you’re not prepared a certain day, and they’re really just focused on the big picture of making sure students are prepared generally. That’s what’s going to be the best learning, that’s what’s going to be the best as lawyers.
And don’t, as a law student, think you’re being judged in class. You’re not. It’s really about the big picture of the learning process. So you do your best, do your preparation, and don’t stress out about what people say and whether they had the best answer to what the holding was of Hadley v. Baxendale or something like that. That’s actually not that important.
Mike: Right. I love how you talked about, you felt imposter syndrome. Not your words, but when you were going around with your group of friends, you felt like you might not belong. Most law students do. But it goes away. We chit-chatted just a little bit before this podcast. The 20-year-old version of me no way could have been asking former CIA director, four-star General David Petraeus, “Hey, are there aliens in Roswell?” There’s no way. But over time, I’ve done a lot of podcasts, and law students will have a lot of questions thrown their way, and over time, after the first month or the 1L year, that whole anxiety-ridden things, for the vast majority, it melts away. It’s no different for me than having played athletics. The first time I got hit running a play in football as running back, I stopped being nervous because you know what? My head didn’t come off.
[44:10] Orin: Yeah. I think everybody has their own pace, and everybody has their own learning style, and some people are going to be really lucky and do great in the beginning and feel really confident. Other people, maybe, might start off not doing quite as well and are going to have to kind of learn how to learn a little bit differently the next time around. It’s not like you get one shot and then that’s the end of the picture. There’s always going to be time to reassess and learn how to do it.
If you’re a student, take advantage of your office hours to try to learn what’s going on. If you get exams back and you didn’t do as well as you thought you could have, go see your professors, figure out what you could do better the next time, because there are always, you know, more semesters ahead. Give yourself the time to think through, “Am I doing this the right way?” Try it out, and then if it doesn’t, you can make adjustments down the road.
But don’t feel like if everything doesn’t go perfectly then you’re a failure. No one has it go perfectly. Everyone runs into endless barriers. And I shouldn’t say everyone. Once in a while, I’ll meet someone who went to law school and, like, there has to be somebody who’s first in the class, right? I remember actually meeting someone who was a lawyer in DC, and he had gone to Harvard, and he’d graduated first in his class his first year, and he had all these very fancy credentials. And I said, “Wow, you have it all. Like, that’s amazing.” And he said, “I had an amazing first year.” That was his answer. And so he came in first in his first-year class, and he got his fancy clerkship, and that led to another fancy clerkship, and hey, if you can do it, really doing fantastically your first year of law school—recommended. But guess what? Most people don’t. Most people run into problems.
I didn’t do that well my first year of law school. I had to kind of figure out how to do better my second and third year of law school. I wasn’t on law review. And that’s not a “cry me a river.” That’s, like, everyone. Almost no one has absolute success at everything. Everyone is going to be a mix. And so don’t think you can’t succeed if things don’t go absolutely perfectly, because they never go perfectly. It’s always about what happens when they don’t go perfectly. So just keep trying, and you’ll succeed.
Mike: What this all reminds me of is there’s this adage that I hate, which is, “Practice doesn’t make perfect. Perfect practice makes perfect.” No. Law school is about failing. Fail as much as you can. Try to get those failures in now, because down the road, that’s when the stakes are higher, not in law school. Particularly where firms are not even hiring off of grades as much anymore.
I had a wonderful business school faculty member who said, “You know, in business school you’re going to do these things in groups. And Mike, you’re good at marketing and branding, and Stephanie, you’re good at statistics. Well, Mike, you should be doing the statistics stuff, and Stephanie, you should be doing the marketing stuff.” Because don’t worry so much about the grade. Worry about learning the stuff you’re not great at. Fail.
Final thoughts, Orin, other than failure is good?
Orin: I’ve heard it said that the ideal success rate for any major endeavor, career-wise, is about 50%. If you succeed 100% of the time, you’re not trying anything that’s hard, and if you fail at everything, you’re trying things that are too hard. So you want to aim for 50%, where you succeed sometimes and you fail sometimes. If you haven’t failed, then, like, you probably haven’t tried anything that was really that much of a challenge. So, I should say as professors, every successful scholar that I know has a file or a folder on their laptop which is “articles that failed.” Like, they spent months on that one, and it just didn’t go anywhere, and they file it away. They never published it. It just wasn’t a good article. And so people will say, “All your articles are so great.” And it’s like, if someone thinks that, that’s great, but, like, that doesn’t include all the articles that were so bad.
Mike: Right. You don’t see.
Orin: There are all these articles that, we never published them. That’s how life is.
Mike: I would argue my failure rate is 70%, but with the caveat, the 30% of things I really care about, I try to make sure I don’t fail at those.
Orin: Fair enough.
Mike: Let’s end on your success-failure rate, and we’ll wrap it up. We’ll call it a good day. Are you at 50/50, Orin?
Orin: Depends how you count it, but I try to aim for 50/50 as a ballpark.
Mike: Balance is a great note to end on. Thanks so much for joining us, Orin.
Orin: Thanks for having me.
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