Following up on my previous posts:
Michael Dorf (Cornell), Malcolm Gladwell Mangles Casuistry:
The fourth season of Malcolm Gladwell's podcast Revisionist History includes a great deal of material of relevance to lawyers. Episodes 1 and 2 critique the LSAT and time-pressured law school exams on the ground that they reward quick thinkers at the expense of slower-but-deeper thinkers. There's much in those episodes with which I agree. For just about all of my 27 years in law teaching I have given either 24-hour or 8-hour take-home exams rather than 3-hour in-class exams for exactly the reason that these episodes underscore: The real-life practice of law often puts time pressure on attorneys, but (except perhaps during a trial when an attorney must make split-second decisions whether to object to proffered evidence) rarely does actual legal practice involve the kind of time pressure that the LSAT and in-class exams place on test-takers.
That said, these episodes overclaim. For example, Gladwell contrasts chess grandmasters who are the best speed players with those who are the best players at a normal pace. Fair enough, but Gladwell fails to recognize that even those he calls tortoises are better at speed chess than nearly everyone else in the world, while even those he calls hares are better at normal-pace chess than nearly everyone else in the world. And likewise in law. Time pressure is a source of variation in performance, but it's not the only source and rarely the most important. Time pressure will affect the performance of various excellent lawyers differently. Some excellent lawyers are truly outstanding under time pressure; others are excellent; some are merely very good. By contrast, incompetent lawyers will be incompetent at any speed.
In the balance of this post, I want to focus on another set of flaws in Season 4 of Revisionist History. Episode 5 begins a three-part mini-series on casuistry--a method of moral reasoning closely associated with the Jesuits. The word casuistry is sometimes used as a synonym for sophistry or fallacious reasoning, but Gladwell uses it in its original and literal sense, as case-by-case reasoning rather than deductive reasoning from general principles. (Casuistry derives from the Latin casus, meaning case). I share some of Gladwell's appreciation for this form of reasoning, but I think his key illustrations misfire badly.
Howard Wasserman (Florida International), More on Malcolm Gladwell:
Mike Dorf critiques the fourth season of Malcolm Gladwell's Revisionist History, which contains several episodes relevant to law and legal education. In particular, the first two episodes criticize the LSATs as the gateway into legal education. The basic argument is that the test's tight time constraints favor "hares" who think and react quickly over "tortoises" who take longer to think and analyze a problem, while the practice of law is more for tortoises.
But at least the first two episodes (I am midway through Ep. 3) are worse than Dorf suggests. The problem is that Gladwell tends to pick a thesis, find evidence that undermines one variable in furtherance of that thesis, then conclude (or assume) that his thesis has been proven, without exploring the other variables or other obvious explanations for the result. Dorf describes this as Gladwell "overclaim[ing]." ...
At some level, criticizing a podcast for not following and tying down every argument is similar to doing that to a blog post or twitter thread (although not fully--the first two episodes ran 79 minutes, time enough to tie-up obvious loose ends). But Gladwell purports to uncover the real story and offer real understandings, theories, and solutions to problems. It seems fair to hold him to the obvious flaws or incompletions in his arguments.