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Re: Barrett and Clerkships

Post by Anonymous User » Mon Sep 28, 2020 11:13 pm

Anonymous User wrote:
Mon Sep 28, 2020 10:01 pm
Anonymous User wrote:
Mon Sep 28, 2020 3:31 pm
I took a lot of classes from ACB at NDLS pre-nom CA7. There were a few profs at ND who favored ideology (and ideological students) over intellectual firepower, and she definitely wasn't one of them (complete opposite tbh).
Did she seem like the type who would actually hire counterclerks?
Same NDLS anon here:

Yes. My class specifically had a handful of grads who were feeder material but across the spectrum politically. One of them jumps out specifically as one of ACB's favorite students, was left of center (they clerked for a feeder or two post-grad, and not in ACB's neck of the political woods), and no doubt she would've hired this person if they came down the road a few years later.

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Re: Barrett and Clerkships

Post by Anonymous User » Tue Sep 29, 2020 11:34 am

lavarman84 wrote:
Mon Sep 28, 2020 10:12 pm
nixy wrote:
Mon Sep 28, 2020 4:48 pm
To be fair, this is consistent with everything I’ve read about her (though I don’t share her politics). If you think hiring someone who’s conservative is de facto dumbing it down, that’s one thing, and if you think everyone outside the T6 are mouth breathers who could only get hired to SCOTUS for being ideologues, that’s another thing, but neither are really objective assessments of the impact ACB’s appt would have on SCOTUS clerks.
I'm not a fan of Justice Thomas, but I'd argue one of the things he does right is go outside the t14 law schools for candidates. To the extent ACB does that, she'll have my respect.
I 100% agree with you here. I've always respected Thomas for that, even though he won't hire from so-called "liberal" schools (for example, he refuses to hire from Emory but had no problem with UF).

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Re: Barrett and Clerkships

Post by Anonymous User » Tue Sep 29, 2020 11:35 am

https://www.usatoday.com/story/opinion/ ... 551086001/

This is an interesting read—two of her former law clerks who are apparently of different political/ideological backgrounds. Even though I'm absolutely not a fan of Barrett's judicial philosophy, from everything I've read she seems like an excellent mentor and boss.

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Re: Barrett and Clerkships

Post by Quichelorraine » Wed Sep 30, 2020 6:32 pm

Anonymous User wrote:
Tue Sep 29, 2020 11:35 am
https://www.usatoday.com/story/opinion/ ... 551086001/

This is an interesting read—two of her former law clerks who are apparently of different political/ideological backgrounds. Even though I'm absolutely not a fan of Barrett's judicial philosophy, from everything I've read she seems like an excellent mentor and boss.
Confirmation-eve op-eds by former clerks attesting to their boss's ineffable brilliance and fairness are the campaign biographies of op-eds. I'm glad she's a good person and an excellent boss, but I didn't think that was actually in question.

Things I learned from this:

1) Her intellect = towering. Presumably, it's in compliance with all local laws pertaining to facade work.

2) She has "uncommon humility" (although not rare humility, which as a former Magic: The Gathering player feels like a slight burn, but whatever).

3) She smiles and smiling is nice and lifts everyone up.

4) She wakes up early (in my book this means CANNOT BE TRUSTED).

5) If you were feeling sick, she'd let you take the day off. Which seems . . . good, albeit basic. But she'd also do something extra, like bring in "baked treats," which actually doesn't make sense because if you're at home, you can't enjoy the "baked treats" (can we not commit to a specific subcategory here? Cookies? Muffins? I hope the Ghost of Al Franken brings this up at confirmation) that are somewhere other than where you are. Also, and just my two cents: if I'm feeling a bit wobbly in the tummy, I do not want to smell anything, let alone baked treats.

Another reason to be vaguely suspicious of these things: I imagine there might be a touch of please-please-please-bring-me-back-upon-your-confirmation signaling? I mean, at least one of the two authors here has narrowly-missed-out-on-SCOTUS-credentials, indicated by the double COA clerkship.

Anyway, this post is brought to you by my fear of a First Amendment Lochnerism future and also my indefatigable bitterness at USA Today rejecting all of my op-eds while deciding to publish this.

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Re: Barrett and Clerkships

Post by Anonymous User » Wed Sep 30, 2020 7:18 pm

Quichelorraine wrote:
Wed Sep 30, 2020 6:32 pm

4) She wakes up early (in my book this means CANNOT BE TRUSTED).
Seconded! Of all the wonderful things I'd say about my judge if ever called upon to write a puff op-ed, the fact that he was as groggy dragging himself into the office at 9:30 as I was might have been the most endearing.
Last edited by Anonymous User on Wed Sep 30, 2020 11:17 pm, edited 1 time in total.

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Re: Barrett and Clerkships

Post by nixy » Wed Sep 30, 2020 7:35 pm

Anonymous User wrote:
Wed Sep 30, 2020 7:18 pm
Quichelorraine wrote:
Wed Sep 30, 2020 6:32 pm

4) She wakes up early (in my book this means CANNOT BE TRUSTED).
Seconded! Of all the wonderful things I'd say about my judge if ever called upon to write a puff op-ed, the fact that he was groggy dragging himself into the office at 9:30 as I was might have been the most endearing.
my people!

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Re: Barrett and Clerkships

Post by Anonymous User » Wed Sep 30, 2020 11:10 pm

nixy wrote:
Wed Sep 30, 2020 7:35 pm
Anonymous User wrote:
Wed Sep 30, 2020 7:18 pm
Quichelorraine wrote:
Wed Sep 30, 2020 6:32 pm

4) She wakes up early (in my book this means CANNOT BE TRUSTED).
Seconded! Of all the wonderful things I'd say about my judge if ever called upon to write a puff op-ed, the fact that he was groggy dragging himself into the office at 9:30 as I was might have been the most endearing.
my people!
This is the only reason I'd ever go back to my firm's NY office after my clerkship (rather than DC). Nothing beats a 10:30-11:00am office-wide start time.

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Re: Barrett and Clerkships

Post by MarkmanPapers » Wed Sep 30, 2020 11:26 pm

Anonymous User wrote:
Tue Sep 29, 2020 11:35 am
https://www.usatoday.com/story/opinion/ ... 551086001/

This is an interesting read—two of her former law clerks who are apparently of different political/ideological backgrounds. Even though I'm absolutely not a fan of Barrett's judicial philosophy, from everything I've read she seems like an excellent mentor and boss.
These kinds of op-eds (see also Feldman, Noah) should be immediately yeeted into the trash. I get whatever individual professional reasons people in elite legal circles/academia feel like have to write these, fine. Here, as Quichelorraine notes, one of them might be angling to get one of those first SCOTUS slots ACB will have available, etc. But that does not mean that us mere mortals have to take these op-eds seriously beyond the narrow professional self interests that led to them being written.

A SCOTUS seat is a lifelong appointment made under our current political arrangements specifically because of one's judicial philosophy. While someone being a "bad person" on an interpersonal basis might be relevant, people who sit at the apex of the American legal profession vouching for the woman being put on the court to shred legal access to reproductive rights (among other things) being alright because she was polite to them in professional settings is...a really bad look on the entire elite tier of the legal profession.

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Re: Barrett and Clerkships

Post by replevin123 » Thu Oct 01, 2020 1:35 am

MarkmanPapers wrote:
Wed Sep 30, 2020 11:26 pm

These kinds of op-eds (see also Feldman, Noah) should be immediately yeeted into the trash. I get whatever individual professional reasons people in elite legal circles/academia feel like have to write these, fine. Here, as Quichelorraine notes, one of them might be angling to get one of those first SCOTUS slots ACB will have available, etc. But that does not mean that us mere mortals have to take these op-eds seriously beyond the narrow professional self interests that led to them being written.

A SCOTUS seat is a lifelong appointment made under our current political arrangements specifically because of one's judicial philosophy. While someone being a "bad person" on an interpersonal basis might be relevant, people who sit at the apex of the American legal profession vouching for the woman being put on the court to shred legal access to reproductive rights (among other things) being alright because she was polite to them in professional settings is...a really bad look on the entire elite tier of the legal profession.
bad look on the entire elite tier? so says your philosophy. Reasonable minds can disagree on the power and legitimacy of the court in its substantive due process jurisprudence, regardless of their views on the individual value or "right" at issue (which for many is beside the point because for them the whole game is about who gets to decide what). These kinds of op-eds help to reinforce what is increasingly lacking in today's political climate: that reasonable minds can disagree on deep legal issues.

While not especially illuminating, I think these op-eds have some value:
(i) They remind people that political disagreements can be respectful and show acknowledgement of a worthy adversary (unlike the terrible debate we just saw).
(ii) They help to humanize the other, which goes to the reasonable minds point. Not everyone you disagree with is evil, immoral, or wants bad things for people. They might just have a different legal view and believe in a different path to get to generally the same outcome that you want: a better, safer, happier country/world where people are free.
(iii) They're simply informative in a personal, interesting way. We get to learn a little bit more about the person we're all talking about.

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Re: Barrett and Clerkships

Post by Quichelorraine » Thu Oct 01, 2020 12:38 pm

replevin123 wrote:
Thu Oct 01, 2020 1:35 am

bad look on the entire elite tier? so says your philosophy. Reasonable minds can disagree on the power and legitimacy of the court in its substantive due process jurisprudence, regardless of their views on the individual value or "right" at issue (which for many is beside the point because for them the whole game is about who gets to decide what). These kinds of op-eds help to reinforce what is increasingly lacking in today's political climate: that reasonable minds can disagree on deep legal issues.

While not especially illuminating, I think these op-eds have some value:
(i) They remind people that political disagreements can be respectful and show acknowledgement of a worthy adversary (unlike the terrible debate we just saw).
(ii) They help to humanize the other, which goes to the reasonable minds point. Not everyone you disagree with is evil, immoral, or wants bad things for people. They might just have a different legal view and believe in a different path to get to generally the same outcome that you want: a better, safer, happier country/world where people are free.
(iii) They're simply informative in a personal, interesting way. We get to learn a little bit more about the person we're all talking about.
Eh. I'm with Markman here. These kinds of op eds can be illuminating, but they usually aren't. These aren't; to the contrary, they're classics of the genre. Feldman's is, pretty much, "I know her, and we rubbed elbows, and traveled in the same circles, and she's definitely smart enough/accomplished enough/credentialed enough/nice enough to be on the Court." The clerks, meanwhile, saw how wonderful and brilliant and inspiring she is, which: great! Most of us are not going to be clerking for her.

As to your points about humanization/respectful disagreement:

The problem with treating politics (and let's not kid ourselves: the Supreme Court is a political actor) as a debate society is that "mere politics" affects people. Now, I agree with you completely that humanizing your adversaries is a good thing, and a sign of a healthy democracy and civic culture. But: I mean, check out the Best and Worst Judges to Clerk For thread. There's no shortage of the following description: "Extremely conservative, but a super sweet guy. Great to work for."

(In fact, lots of people in the United States would be in for a hell of a shock if they worked in DC for even a month or so. Those people acting like warring camps on C-Span? Lots of them get along perfectly well off-camera, and are even pretty friendly. Does that mean that, say, cutting funding for contraceptive services is any less of an important issue? Goodness no.)

I do not doubt that Judge Barrett is a lovely, smart person. I do not doubt, for a second, that she "deserves" to be on the Supreme Court, at least as elites define it: she has impeccable credentials of the sort that set Harvard profs' hearts aflutter. I do not doubt, moreover, that she embodies a judicial philosophy that I 1) stridently disagree with but 2) completely acknowledge should exist and can exist.

But none of that really matters, does it? That isn't the point of this. The point is that she's being appointed on the eve of the election and will flip the power structure of the Supreme Court, potentially for the rest of our lives. Whether she'll be a consistent vote for the Alito wing is yet to be seen, but she'll surely be a more consistent vote than, say, Ginsburg was. We can pretend otherwise, but we'd be kidding ourselves. And that vote difference will matter. It will matter to criminal defendants in one way, LGBTQ people another way, and the Chamber of Commerce a third way. But it will definitely matter. You may feel differently about how it will matter, and if you're lucky, most of the changes won't affect you personally. But things are going to change and knowing that she's brilliant and inspiring and classically credentialed informs me not one iota.

So in that way, these op-eds, and especially the one from the clerks, sound a discordant note. The world is full of great, nice, kind, smart, towering, adept-at-baking inspiring people who strive to make my daily existence materially worse. Maybe they do not do so "on purpose"—my reproductive autonomy as a woman of childbearing age is just an incidental causality of their disagreement with the scope of non-Lochner substantive due process, and my ability to bring suit in court as opposed to being locked into mandatory binding arbitration arises out of respectful disagreement about the scope of the Federal Arbitration Act and the wisdom of class actions.

The debate about the effect she will have is the right one. It's the one that matters. The Feldman and ex-clerk stuff, motivated at least partly by apparent self-interest, does not.

She deserves to be there. I can't wait to see what she does to me.

(This post brought to you by my existential dread spilling over into public posts on internet fora like these, because my other option is to join Twitter or something.)

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Re: Barrett and Clerkships

Post by replevin123 » Thu Oct 01, 2020 1:41 pm

I understand and generally agree with you, Quichelloraine. These op-eds are not the main point or issue and are very small in meaning compared to the real disagreements on judicial philosophies and their impact on real people. So they shouldn't carry much weight for the substantive debate. But I maintain they have some value in the surrounding dialogue for the reasons I noted.

In your reply, you said "strive to make my daily existence materially worse" and that your condition is viewed as an "incidental causality." I think this is the kind of language takes away from the substantive debate (but I acknowledge the significant potential impact to you and your personal justification for expressing your disagreement this way). I see it as disingenuous to link her (or others') judicial philosophy with striving to make some people's lives worse or with indifference to the consequences to individuals. Many originalists and textualists, like you, are genuinely trying to work toward a better world. These op-eds have some use (even if minimally) because they help us put the person in the proper camp. Are they striving to make people's lives worse or are they genuinely trying to improve people's lives? Structuring a system of law necessarily requires some dealing in the aggregate, e.g. reasonable belief that legislatures should make these types of decisions rather than courts (absent amendment) because that promotes a freer society.

So it's one thing to say "if she is appointed, many people will suffer because the law could/will change in such a way" vs. "she subscribes to a philosophy that wants to make people's lives worse" or that she wants to make people's live worse.

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Re: Barrett and Clerkships

Post by Quichelorraine » Thu Oct 01, 2020 3:13 pm

replevin123 wrote:
Thu Oct 01, 2020 1:41 pm
I see it as disingenuous to link her (or others') judicial philosophy with striving to make some people's lives worse or with indifference to the consequences to individuals. Many originalists and textualists, like you, are genuinely trying to work toward a better world.
To be clear, my "striving" comment was mostly about the purer politics of the legislative and executive branches. There are plenty of lovely people in elected office whose policies, which they believe in strongly, make me worse off. I agree with you that I think very few people come to work each day trying to hurt people, although they do exist.

On the court end of things, I don't disagree that many originalists and textualists are trying to genuinely work toward a better world, but we all have different ideas of a better world. Thanos wanted a better world! (Disclaimer: I have not seen the movie.)

In some versions of "better," I do not do that well. So I would hope you would agree (or, at the very least, see why I am not being disingenuous) that it is not irrational to position respect for people who identify as originalists somewhat secondarily to what originalism might do to people I know whose identity is slightly less rarefied.

Judicial philosophy does not exist in a vacuum. Things judges do happen to people.
These op-eds have some use (even if minimally) because they help us put the person in the proper camp. Are they striving to make people's lives worse or are they genuinely trying to improve people's lives? Structuring a system of law necessarily requires some dealing in the aggregate, e.g. reasonable belief that legislatures should make these types of decisions rather than courts (absent amendment) because that promotes a freer society.
Sure. And to be clear: I did clerk, and I drafted plenty of opinions that essentially sounded like, "Party A was brutally mangled in a threshing accident. She brought suit against Powerful Entity B. Powerful Entity B argues that her claim is preempted by the National Threshing Accident DGAF Act. While we sympathize with Party A, we agree with Powerful Entity B that her suit is clearly barred by the plain text of the Act. Accordingly, we affirm the judgment of the district court." So I'm no stranger to cruel and unjust outcomes embedded in our system of jurisprudence, even for those who would prefer to the contrary.

Were the issue of Barrett's confirmation simply one of deferring to legislative judgments: great! I'd love to live in that world where we're having that debate, and those are the stakes. I think the concern, though, is that's . . . not quite what's in the cards.
So it's one thing to say "if she is appointed, many people will suffer because the law could/will change in such a way" vs. "she subscribes to a philosophy that wants to make people's lives worse" or that she wants to make people's live worse.
I agree with you that there is a difference in framing, but not always a difference in effect, and that goes triply to communities that are disfavored. And it's fair for people who are scared of outcomes to view banalities about character, baking prowess, and elite resumes as secondary to real-world concerns about outcomes. I view these op-eds as doing what we always do: playing an abstract game about power, philosophy, and I-got-mine outcomes. To me, they are not helpful, because I already assume the nominee's humanity and basic decency.

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Re: Barrett and Clerkships

Post by replevin123 » Thu Oct 01, 2020 3:28 pm

Thank you for your thoughtful responses and a good discussion. I think we get each other's points pretty well here. Wishing you strength in your resistance to entering the Twitter fray! :)

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Re: Barrett and Clerkships

Post by lavarman84 » Thu Oct 01, 2020 4:08 pm

replevin123 wrote:
Thu Oct 01, 2020 1:41 pm
In your reply, you said "strive to make my daily existence materially worse" and that your condition is viewed as an "incidental causality." I think this is the kind of language takes away from the substantive debate (but I acknowledge the significant potential impact to you and your personal justification for expressing your disagreement this way). I see it as disingenuous to link her (or others') judicial philosophy with striving to make some people's lives worse or with indifference to the consequences to individuals. Many originalists and textualists, like you, are genuinely trying to work toward a better world. These op-eds have some use (even if minimally) because they help us put the person in the proper camp. Are they striving to make people's lives worse or are they genuinely trying to improve people's lives? Structuring a system of law necessarily requires some dealing in the aggregate, e.g. reasonable belief that legislatures should make these types of decisions rather than courts (absent amendment) because that promotes a freer society.
I think that's an overly generous take. But my cynicism about originalism probably isn't needed in this thread lol.

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Re: Barrett and Clerkships

Post by Quichelorraine » Thu Oct 01, 2020 5:15 pm

replevin123 wrote:
Thu Oct 01, 2020 3:28 pm
Thank you for your thoughtful responses and a good discussion. I think we get each other's points pretty well here. Wishing you strength in your resistance to entering the Twitter fray! :)
Likewise. I wish I could have your faith in the process and everyone's best intentions. I'd be sleeping a lot better now if I did!

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Re: Barrett and Clerkships

Post by MarkmanPapers » Thu Oct 01, 2020 5:44 pm

Whew, quite an exchange, and thankfully a civil one. I think the others covered most of what my response would be, but just to elaborate on this:
replevin123 wrote:
Thu Oct 01, 2020 1:35 am
While not especially illuminating, I think these op-eds have some value:
I don't have a substantive problem with these details getting into the public conversation, but I think it's better for them to come in the form of some kind of news piece or feature profile of the prospective justice, where (hopefully!) proper journalistic judgment would allow for those details to be in the right context vis-a-vis the actual thing driving the decisionmakers on every side of the process, the nominee's judicial ideology. As the others have said, court nominations are things that have real impacts on real people in the real world, and the problem with these op-eds is that they tend to confuse the issues.

Here's an excellent example. In one of the earliest exchanges of the "debate" on Tuesday night, the president said the following: (at the 04:01 timestamp: https://www.rev.com/blog/transcripts/do ... cript-2020)
[…]we have a phenomenal nominee respected by all. Top, top academic, good in every way. Good in every way. In fact, some of her biggest endorsers are very liberal people from Notre Dame and other places. So I think she’s going to be fantastic. 
Now, if you're a normal voter watching the debate and that exchange, and you aren't up on the debates about originalism versus textualism versus original public meaning and all that jazz, you might think, "huh, the president is meeting our divided moment with a nominee who isn't divisive, and might be a bit conservative, but hey, these liberal people can say good things about this person, so they must be at least a little closer to the middle of the road".

Joe Voter watching that likely doesn't have the context we all have that these op-eds are making the very narrow point closer to "[nominee] is a nice and decent person to those in their professional sphere, like me, but I do disagree strongly with their judicial philosophy". The op-eds' actual impact in the political sphere (which again, is the real thing happening here) is clear in that debate night example. They allow for a "confusing of the issues" in the consideration of the nominee, shifting things to her conventional, very good gold star credentials and chambers manner, and not what she actually thinks about the law.

That's the problem.

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Re: Barrett and Clerkships

Post by oacre » Thu Oct 08, 2020 9:41 am

Will the people who had a clerkship with her for 2021 / 2022 / 2023 etc automatically become SCOTUS clerks upon her successful confirmation? Is that the tradition?

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Re: Barrett and Clerkships

Post by YA_Tittle » Sat Oct 10, 2020 1:59 am

oacre wrote:
Thu Oct 08, 2020 9:41 am
Will the people who had a clerkship with her for 2021 / 2022 / 2023 etc automatically become SCOTUS clerks upon her successful confirmation? Is that the tradition?
Not automatically, but they'll definitely have a big leg up down the road. If they all landed clerkships with a feeder like Barrett, they have the stats, and she already had been convinced to hire them once. In the meantime they'll all surely get picked up by her colleagues, and maybe even her replacement on the 7th Circuit if Trump/McConnell confirm one in the lame duck session.

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Re: Barrett and Clerkships

Post by laanngo » Mon Jan 10, 2022 9:12 pm

How much is this going to effect ND in the rankings?

The Lsat Airbender

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Re: Barrett and Clerkships

Post by The Lsat Airbender » Mon Jan 10, 2022 9:57 pm

laanngo wrote:
Mon Jan 10, 2022 9:12 pm
How much is this going to effect ND in the rankings?
which rankings

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Re: Barrett and Clerkships

Post by laanngo » Mon Jan 10, 2022 10:05 pm

The Lsat Airbender wrote:
Mon Jan 10, 2022 9:57 pm
laanngo wrote:
Mon Jan 10, 2022 9:12 pm
How much is this going to effect ND in the rankings?
which rankings
USNWR

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nixy

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Re: Barrett and Clerkships

Post by nixy » Mon Jan 10, 2022 10:22 pm

Not at all. We had this argument already.

The Lsat Airbender

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Re: Barrett and Clerkships

Post by The Lsat Airbender » Mon Jan 10, 2022 10:46 pm

laanngo wrote:
Mon Jan 10, 2022 10:05 pm
The Lsat Airbender wrote:
Mon Jan 10, 2022 9:57 pm
laanngo wrote:
Mon Jan 10, 2022 9:12 pm
How much is this going to effect ND in the rankings?
which rankings
USNWR
which of the USNWR criteria do you think this affects? Lmao

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Re: Barrett and Clerkships

Post by laanngo » Mon Jan 10, 2022 11:09 pm

The Lsat Airbender wrote:
Mon Jan 10, 2022 10:46 pm
laanngo wrote:
Mon Jan 10, 2022 10:05 pm
The Lsat Airbender wrote:
Mon Jan 10, 2022 9:57 pm
laanngo wrote:
Mon Jan 10, 2022 9:12 pm
How much is this going to effect ND in the rankings?
which rankings
USNWR
which of the USNWR criteria do you think this affects? Lmao
peer reputatoin

The Lsat Airbender

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Re: Barrett and Clerkships

Post by The Lsat Airbender » Mon Jan 10, 2022 11:19 pm

Sure, ND's peer score might get bumped from 3.5 to 3.6 -- then they'd be playing with the big dogs, like Emory and UC-Irvine

edit: actually, this was probably already baked into the last round of peer-reputation surveys anyway. ND will have to languish in the 3.5 zone a while longer.

Seriously? What are you waiting for?

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