Influencers with Andy Serwer: Heather Gerken

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In this episode of Influencers, Andy sits down with Yale Law School Dean Heather Gerken to discuss opening up law schools for more economic and racial diversity, tackling free speech on university campus’, and educating the next generation of lawyers and leaders.

Video Transcript

[MUSIC PLAYING]

- In this episode of "Influencers," Yale Law School Dean Heather Gerken.

HEATHER GERKEN: Our job isn't just to train people to go into a courtroom or file a brief. Our job is to train people to lead, to change the world, and to make a difference.

I always tell our students, we have a tradition. It's not just a tradition of conversations across divides but a tradition of friendships across divides. And so we are really thinking hard about how you keep that up in a world where in the outside world, everyone is at each other's throats.

We know we have to teach all of our grads for their last job, not just their first job.

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ANDY SERWER: Hello, everyone, and welcome to "Influencers." I'm Andy Serwer. And welcome to our guest, Heather Gerken, dean of the Yale University Law School. Heather, so nice to see you.

HEATHER GERKEN: Thank you so much for having me, Andy.

ANDY SERWER: So I know one thing that you're very excited to talk about is that you recently extended full-tuition need-based scholarships. Talk to us about that and why that's so important.

HEATHER GERKEN: You know, one of the most important things at this moment in time is making sure that everyone is at the table for the conversation about our future. And you know this, I'm sure-- law schools have-- law schools are not doing as good a job as they need to do about ensuring that legal education is accessible to everyone.

And so we did something that no other law school has done, which is to give full-tuition scholarships to the students whose families are below the poverty line. So just to baseline that, that's $26,000 for a family of four. And those are the most entrepreneurial students on the planet. But when they come to law school, they have a completely different experience of it than our middle-class kids who are also on scholarship.

So there was this day in the spring when we were able to send out an email just to say to 50 students, next year is on us. It was an extraordinary moment. And in some ways, this has been a long-time project for me. When I was-- in 2016, I invited over the first-generation professionals. They had just started a group to talk about law school. And the students came to my house, and we're sitting and we're eating.

And all of a sudden, the dam broke. And those students started asking me questions that most law school students don't worry about. So they would say things like, I don't know if I should print out my cases because it's $50 to print out cases for this semester. I don't know if I should buy my textbook because that's a couple hundred dollars, and I could be sending that money home. I don't fly home for Thanksgiving, even if my scholarship award lets me do it because I don't want to have another dollar of debt added to my family.

And that was so important and so powerful in shaping this program because what you realize is, even though we have the best scholarship program around-- 75% of our students are on it; we have the lowest debt load of any of our peers-- those students don't have a safety net. They're not like our middle-class students. In fact, they are the safety net for their own family. And so what it has meant for these students to lift that burden off their shoulders so they don't have to think about it has just been remarkable.

ANDY SERWER: Do you think the legal profession, Heather, is further behind in terms of economic diversity than, say, medicine or business schools? In other words, is it more of non-meritocracy economically, historically?

HEATHER GERKEN: It's a really good question. I actually think this is a shared problem, to be frank, because to get into the finest universities in the world, a lot of students have a leg up on the way in. And that has advantaged them systematically over time, even when people are doing their best. And so I think we all need to double down.

And that means a couple of things. It doesn't just mean scholarship, although that is incredibly important. But it also means reaching out and finding those students and pulling them into the pool. And just to give you an example, we have 80% more students who are first-generation college students in the class in five years.

We went-- when I started as dean, we had a 10-year average 32% students of color. And we started building out pipelines, reaching out to students, doing the affirmative work you need. We are now 55% students of color. And by the way, our scores have stayed steady or gone up. That is what law school should be doing at this moment.

ANDY SERWER: Maybe we should take a step back and talk about Yale Law School. Give us a précis-- how many students go there, what is its status versus the other law schools, what differentiates it versus the other top law schools.

HEATHER GERKEN: Yeah. So we're tiny. We only have 200 students in a class. So Harvard Law School by comparison has 600 students in a class. But we punch way above our weight. So what the law school is known for is graduating an incredibly heterogeneous group of people who make a huge difference in the world.

So, you know, I think most people think law schools train lawyers. And we train lawyers. Lawyers, we do a great job at that. But we also train people to go into finance and to start nonprofits and to run agencies. And so if you look at our graduates 10 years out, one in five of them is in the private sector, but they're not practicing law. They are running Blackstone, or they're starting a company.

If you look on the public side of it, there's this great, really great story in Bloomberg. And they said, gee, there are a lot of lawyers in Washington who are not doing lawyering work. They're doing policy work. And so they did a chart. And the chart shows one third lawyers, one third non-lawyers. One third Yale Law lawyers. I mean, that is kind of extraordinary given how tiny the place is.

So I think we're known for being a place that has a really wide-ranging education. We may be the only law school that has offered a course in "The Book of Job." But we understand a law school degree to be a thinking degree. We have a set of students who are inheriting an impossible set of problems to solve, and we need to teach them to solve it. And so we have always tried to train broad-gauge, highly analytic, deeply ethical thinkers. That's the goal. And we're known for that.

ANDY SERWER: Yeah, I just want to drill down into that a little bit more. What is it that makes a Yale Law School degree applicable to being a businessperson? We're talking about business here, Yahoo Finance. So what are the skills that would make someone succeed running a P&L, for instance?

HEATHER GERKEN: It's a great question. And I should just tell you that we actually compete against Harvard and Stanford Business School. So we may be the only law school in the country doing it, but we do, and there's a reason why we can do that-- because what law school teaches you is to think.

It teaches pattern recognition. It's highly analytic. It teaches you to problem-solve in a really concrete way. It teaches you how institutions work. It teaches you how to think about both the "is" and "ought," what you ought to do, not just what is. All of those skill sets, when you talk to our grads who are doing finance, who are on Wall Street, they all say that their law school degree-- they say what Bob Rubin said.

Bob Rubin has said his philosophy degree at Harvard and his Yale Law degree were what prepared him best to be treasury secretary. And that's our baseline. That's been our tradition for a long, long time. But we're doubling down on it because I think if you're an institution, you have to change in order to keep up with your best traditions.

So we are building out a leadership program that is ensuring that our students are numerate and not just literate, that it's giving them exposure to technology issues, the kinds of things law schools don't traditionally teach. But we know we have to teach all of our grads for their last job, not just their first job. And so what we are doing is building out on the structure that has always existed that has turned out the Bob Rubins of the world.

We're building out something that ensures that our students really are able to walk into a place on Wall Street to go start a company and really do an amazing job at it. So-- and the proof is in the pudding. They are there. They're every-- if you look at where our grads are, it's kind of extraordinary.

ANDY SERWER: Oh, yeah, I was just looking on the Wikipedia page at the notable alums of the Yale Law School. And was-- there are literally hundreds, yes, in the legal profession-- jurists, senators, judges, et cetera, including four current Supreme Court justices, which is pretty remarkable-- and also people from both sides of the political aisle. And I know this must be challenging for you, increasingly challenging, given divisiveness in our society.

So how do you manage to keep everyone on the same page when you've got people on the political left and the people on the political right?

HEATHER GERKEN: Well, this is a question that every university, every law school is facing at this moment. You know, I always tell our students, we have a tradition. It's not just a tradition of conversations across divides but a tradition of friendships across divides. And so we are really thinking hard about how you keep that up in a world where in the outside world, everyone is at each other's throats.

So we do everything we can to remind our students that you can't be part of an academic institution without engaging with people from the other side. You can't be a lawyer unless you can sympathetically and empathetically reconstruct the best argument for your opponent, to really know what's honorable in their commitments and what's weak in your own.

So those are the traditions of the school, and we're talking about them constantly with our students. I mean, I'm really proud to say that every one of my faculty members, I believe, on the first day of class had this conversation with our students because we are all collectively committed to making sure we don't just train great lawyers but great citizens.

ANDY SERWER: One of your alums, Joe Tsai, a businessman from Alibaba, has set up the Tsai Leadership Program. Can you talk to us about that?

HEATHER GERKEN: Yeah. It's one of the biggest programs in our history. And it is an effort by Yale Law School to build a curriculum for the next century. So, you know, I was saying about our legacy. Our legacy is we have a pretty eclectic curriculum. We think in a broad-gauge way. But we realize that a traditional law school curriculum just doesn't teach you everything you need to know, and that-- whether you're going to be a lawyer's lawyer and inside a courtroom, or whether you're going to be Joe Tsai and running a company.

So we are building into our curriculum basic numeracy courses that you wouldn't normally get as a lawyer. So I remind our students, everyone needs to know corporate finance. Everybody needs to know stats. Everyone needs to know accounting.

We're teaching tech courses. We can create a pop-up course in AI, something to expose the students. They don't need to be programmers. They don't need to code. But they really need to be fluent in that world if they're going to be able to face the problems that they're going to be facing.

ANDY SERWER: You talked about affordability of Yale, but what about law schools writ large, and maybe some that aren't as prestigious? Certainly it would seem to me that going to Yale would pay off just by dint of its network alone, never mind the education, which is also important. But what about some second- and third-tier law schools and affordability? And does that make sense for students to go to these places?

HEATHER GERKEN: I think every dean-- I mean, I really think this is a collective and an individual issue. So I mean, we had in place, when I started, the best scholarship program in the country. And we still felt the need to build out the Horizon Hurst scholarship program because we realized even with the best scholarship program in the country, we needed to do more.

And we needed to do more in part because the students who are coming from below the poverty line, they-- I don't care if they go into the private sector and make a lot of money. I don't want them paying off loans to us. I want them to pull their family out of poverty. We forgive the loans of their students who do public interest work, just to enable them to launch them. That's at the core of what everyone needs to be thinking about at this moment.

And I think we can all do more. I mean, I'll just say, part of the reason I'm building this program is because I want to change Yale Law School. And just the magic of having 50 students without the burden on their shoulders has been amazing. But I also want to help change how legal education is funded. And one of the great gifts of being Yale Law School is that when we move, others move with us.

And so we really want to inspire others to rethink how legal education is funded because I'm sure you know the model is that everybody takes out loans. That's the model. And I'm proud to say that Harvard and Yale are the only two law schools in the country that are entirely needs-based. So people take out different amounts of loans, but we give more money to the students with the greatest need.

And we graduate our students with the best debt load, and we forgive their loans if we need to. That is not enough. That is not enough to break barriers for the students who come from below the poverty line. But there's a bigger issue, which is that law schools in many places, they're giving out scholarship based on merit, and so they're giving full rides, lots and lots of them, millions and millions of dollars, to the students who don't need it the most.

And it's my view that scholarship money should go to the students who need it most. So we're not just trying to change the amount of money that's being given to support students, we're train-- we want to change it the way it is given out. You know, I really hope that we can challenge our peers to rethink those scholarships to put them in the hands of the kids who need it most. That is the model of Princeton and Yale college right there. That's what they're doing.

It's time for law schools to catch up. It's time for law schools to really get a sense of how an economic inequality works. And that requires a model that doesn't involve giving out full merit scholarship. That involves not making everyone take out loans. And it really, you have to think about not just money for an individual but how a family experiences debt. That's something that needs to change inside the law school world. And so we're hoping to inspire our peers to follow us.

ANDY SERWER: And you yourself were a scholarship student at the University of Michigan Law School, correct?

HEATHER GERKEN: It is. In fact, so I turned down Yale Law School. I was a kid with no lawyers in my family. And Michigan called me, and they decided to create the first Darrow Scholarship and give it to me. And I didn't have any idea the choice I was making, but I knew that it would really make a difference in my life to have that tuition. And it was an enormous gift. I'm always thankful for it.

But the thing I also know is I was probably not the poorest kid in that class. I'm sure of it. And there were kids who needed that money more than I did. And that's what motivates me.

ANDY SERWER: Right. You're a leading federalism scholar. Talk to us about what that means. And you're also a progressive. So are those two things at odds?

HEATHER GERKEN: You know, I write about federalism all the time, but it is not your father's federalism.

ANDY SERWER: OK.

HEATHER GERKEN: So--

ANDY SERWER: Do tell.

HEATHER GERKEN: Yeah. In law, there's a big debate about federalism. And there are a lot of people who think either because of the New Deal, they think you need a powerful national government, or more importantly, the civil rights movement, there's real skepticism about states and the role that they played in oppressing minority groups within their own community. And so as a result, federalism has really not been the darling of progressives.

ANDY SERWER: Getting a bad rap, though, maybe?

HEATHER GERKEN: It has a bad rap. And I have spent most of my academic career trying to convince people to have an open mind about it. So I don't believe in the kind of traditional version of federalism, but I do believe in states and I do believe in localities. They are the sites for changing our democracy. That's where all the work gets done.

It's really hard to start a national movement. But you want to sort of turn the gears of change, you've got to start at state and local. And so that's part of my scholarship. It's also, I'll just say, part of what I do is dean.

So if you want to change the world, if you want to have problem-solvers, students have to stop thinking that everything happens in Washington, DC. They need to figure out how to go back to their own communities and to do the real work of change inside them. So a lot of the work that I do is build out those networks so that students are going back to their communities and changing things.

ANDY SERWER: But wait. Isn't empowering those localities, states, municipalities running in fact counter to federal laws and legislation that you would favor?

HEATHER GERKEN: Well, this is the difference between me and almost everybody who writes about it. I am perfectly comfortable with the federal government playing what I call the supremacy clause trump card. So the federal government has every right to regulate. And I actually-- you know, that's always the thing that people worry about, will rights be enforced?

I think the federal government clearly has the power to enforce important rights within the states. And the states can't shield themselves from it. I think that's crucial. What I, though, see about states is that they help us think about what those rights ought to be. So if you just think about the same-sex marriage movement, states and localities changed what the federal constitutional right was.

And they did that by building it out over time, showing people, showing people on the other side what things look like in the real world. To me, it's a very lawyerly thing. I mean, again, when I talk to you about training our students, we want our students to be able to show the other side what the best argument on the other side looks like. And sometimes that's by showing a real-life example.

ANDY SERWER: Yeah, I guess it's not necessarily conservative, i.e., as you're saying with same-sex marriage. Marijuana might be another example.

HEATHER GERKEN: Marijuana is, in fact. So I feel like you've been reading my articles.

ANDY SERWER: I haven't, but go.

HEATHER GERKEN: Marijuana is a great example, climate change, health care. A lot of the work on the ground that progressives care about is happening in states and localities, and that's true for conservatives as well, right? The work on gun rights and abortion has been happening at the state and local level. So it is a tool for everybody.

ANDY SERWER: Right.

HEATHER GERKEN: And if you're thinking about change, you need to know how to work through.

ANDY SERWER: Think globally, act locally. One of the Yale Law School clinics, specifically the one that you lead, was the center of a major decision last month on opioids in San Francisco. Can you tell us about what happened there?

HEATHER GERKEN: Yeah. It's one of the great joys of my life, is that I get to teach this clinic. We partner with the city of San Francisco to do affirmative litigation. So most cities mostly do defensive work.

So someone gets hit by a bus, then they get sued and the lawyers defend it. The city of San Francisco has this kind of extraordinary model, which was quite rare a few years ago but is building steam in lots of other cities now, which is they do affirmative litigation.

And so my students have worked on just an astonishing range of cases. They worked on the same-sex marriage case at trial. They helped win a nationwide injunction for sanctuary cities. No one gets to help work on a nationwide injunction in a career, and my students were doing it as first- and second-year law students.

And we just had this astonishing victory in the opioids case, which is holding Walgreens accountable for the role that it played in distributing it. And you know every city has been devastated by this. And so it's a chance for the city to speak in a different register than the other lawyers that were there. So it's been-- it's incredibly high-level litigation my students are engaged in; the toughest, most important legal questions around on entirely new legal theories. And there they are, as students, getting to do this work.

ANDY SERWER: We touched upon this a little bit earlier, Heather, but I want to ask you about free speech on college campuses, university campuses, and what your role is as dean of the Law School. And obviously these issues have come up at Yale, at other universities as well, but some of them high-profile instances at Yale. Is this an instance where you should weigh in, feel compelled to weigh in, are asked to weigh in by your president? Where do you sit there?

HEATHER GERKEN: Oh, well, I mean, this is an easy one. I weigh in whether or not anyone asks me because it is core to being an academic, and it is core to being a lawyer. So you cannot be an academic or a lawyer and not believe in free speech. So we are dealing with the same questions that are happening on every single campus across the country. We get a little bit more news about it because Yale Law School looms pretty large in people's imagination, and so they really care about what's happening on our campus.

But I weigh in repeatedly and clearly to state our values because it's essential that we have this conversation with our community about its importance. I do it at every single orientation. I do it at the beginning of the year. And I'm really grateful that my colleagues are doing it with me because it makes a difference when I can say, I'm speaking on every single-- behalf of every member of my faculty. That makes a difference when you're talking to students.

ANDY SERWER: Right. And I'm sure that means bringing conservative voices and liberal voices on campus and allowing them to speak. And I guess where the rubber meets the road is someone starts asking questions, then it becomes shouting the person down. And that crosses the line, right? And so how do you adjudicate that in real time? That's not your job, but how does one adjudicate that in real time and/or preempt it?

HEATHER GERKEN: Yeah, you know, so we are deeply committed to actually bringing different voices on campus. So with the help of one of our alums, we started an originalism conference, which is immensely important that all of our students get exposed to that kind of question.

Every year, I run a bunch of seminars where I-- you know, you were talking about these friendships. So Bob Bauer and Jack Goldsmith could not be more different in terms of their politics. They're also really close friends. And I invited them, I said, I just want you to do one thing. I want you to disagree with one another and show the students that friends can do that. And show the students, model that for them.

ANDY SERWER: You have a podcast?

HEATHER GERKEN: I do.

ANDY SERWER: What does a law school dean have a podcast for?

HEATHER GERKEN: I mean, my faculty are dazzling. And so I realized that in some ways, we get to see them every day, and yet we don't get to share it every day with people outside the institution. So I've been sitting down with my colleagues, and we talk about their work.

I talked to Tracey Meares, who is one of the finest scholars in the country doing work on racial justice and policing. So there's a clock on Tracy's mantelpiece from her great-great-great grandfather, who bought that clock. It was the first thing he bought when he was freed from being a slave. And that clock has been handed down from generation to generation.

And to have Tracey say, well, when she talks about this extraordinary work she does, why does she do it? It's that clock. It's the fact that her grandmother said, you don't belong to yourself. Your job is to serve your community. I think that's really important.

I think these folks can be so dazzling. They're so smart. They do so much work in the world. But also just to let people catch a little glimpse of the human side of them I think is important.

ANDY SERWER: And finally, Heather, how do you think about your life's work? Still very early in your career. It's kind of a legacy question. Can you sum up what you're trying to do on this Earth?

HEATHER GERKEN: You know, I want to change legal education. And I-- and everyone is working on this, so I don't want to suggest I'm the only one. But if I sort of imagine what I really care about, one is this scholarship program.

If every school in the country did what we did, it would enact a sea change, not just in how legal education works and who's able to come in the door, but it would change everything in terms of what those people can do afterwards. It would free them to go out and make a difference in a way that we are not doing right now as a collective.

And the other thing is I want people to see that a law degree is a thinking degree and that our job isn't just to train people to go into a courtroom or file a brief. Our job is to train people to lead, to change the world, and to make a difference.

ANDY SERWER: Heather Gerken, dean of the Yale University Law School, thank you so much for your time.

HEATHER GERKEN: Thank you so much, Andy. It's just been delightful.

ANDY SERWER: You've been watching "Influencers." I'm Andy Serwer. We'll see you next time.