[music]
Lucy Chin: Hello, and welcome to Experto Crede, a podcast where we explore the legal scholarship published annually by the Minnesota Law Review, and the experiences of authors, staffers, and editors who put it all together. I'm your host, Lucy Chin, Lead Online Editor for Volume 108, and today, I'm joined by three of my MLR colleagues, Managing Editors Lindsay Maher, and Randa Larsen, and Articles Editor Tyler Blackmon for a discussion on the student note-writing process. Welcome. Thank you all for being here.
?Lindsay Maher: Thanks for having us.
?Randa Larsen: Thanks for having us.
Tyler Blackmon: It's great.
Randa: Excited.
Lucy: Today we have you all here because you are three of the 3L editors who have notes published in this year's volume of Minnesota Law Review. We're going to talk about the note process and your experience with your pieces. Just by way of quick introduction, Randa published a note in Issue 2 entitled, Banishing Federal Overstep: Why Protecting Tribal Sovereignty Justifies a Narrow Reading of the Indian Civil Rights Act.
Lindsay published a note in Issue 3 entitled, American Dream: Social Pressures and Lackluster Regulation Allow Multi-Level Marketing Companies to Function as De-Facto Pyramid Schemes. Tyler published a note available in Issue 4 entitled, The Good, the Bad, and the Unconstitutional: State Attempts to Solve the Defendant Class Action Problem.
With that introduction, I'm going to pass it over to you all. I'm wondering if each of you in turn could start with your own introduction of your note, maybe a bit of background on the topic itself, and how you became interested in the topic in the first place. Randa, let's start with you.
Randa Larsen: Yes, for sure. Randa Larsen, Managing Editor, and my note centers on Federal Indian Law. It's looking at the Indian Civil Rights Act, and whether or not banishment constitutes detention under the habeas corpus provision of said act. It's really an interesting-- It's through the lens of like a circuit split. It's a really interesting dynamic between protecting tribal sovereignty, and then also individual tribal members' civil rights.
I look at, specifically, whether tribes should be able to banish individual tribal members from their ranks without being subject to federal judicial review and scrutiny through the Indian Civil Rights Act. Yes, I don't know what more to say. [laughter]
Lucy: That's great. Okay. Tyler?
Tyler: Sure. Yes. Mine is all about civil procedure. For anyone out there who's a civil procedure nerd, this is for you. Mine looks at what are called defendant class actions. If you think about class action litigation in this country, the vast majority of them are plaintiff class actions. It's a group of plaintiffs who all get together because they can't really afford their own litigation, and they sue a few defendants.
The federal rules, and as my note shows, most state rules allow the exact opposite to happen as well. The sort of example that I like to use is, imagine that Netflix decided it wanted to sue all of its subscribers who were violating password sharing rules that it had come up with via contract. They classed an entire group of defendants, and then tried to sue them all, and then chose the defendant who they wanted to actually see in court, obtained a judgment against them, and then invoice all those folks, and make them pay a small bill. That's really what the federal rules allow technically.
The states have tried to solve all the problems that come with that. As you can imagine, there are really two big problems that come with allowing defendant class actions. One is an administrability problem. Federal judges and state judges who have had to handle these cases, have just had a really difficult time trying to administer these cases. Then, there's a lot of due process issues as well.
When the states have come up with their own rules around defendant class actions, a lot of them have tried to fix the problem that is in Rule 23, the Federal Rule about class actions, by experimenting on how they can change defendant classes. I call them the good, the bad, and the unconstitutional. Very long story short, the good being what Maryland has done to get rid of defendant class actions, which is my preferred solution, and keep plaintiff class actions.
The bad being throwing out the baby with the bathwater, and getting rid of all class actions altogether, which is what Virginia and Mississippi have done. Then, what I think is-- I always say, "Clearly unconstitutional." Most of my editors always try to get rid of the word "clearly", because [chuckles] you don't want to say that in a piece like this. I think it's clearly unconstitutional, which is the practice of mandating that people can't opt out of these defendant classes, because even in plaintiff class actions, the Supreme Court has said you have to allow class members to be able to opt out of litigation.
I think what the defendant class action, or the states who are mandating that these people can't opt out of the class actions, are doing some unconstitutional things. That's a very long-winded introduction to my piece, but it's a complicated quirk of civil procedure.
Lucy: Awesome. Lindsay?
Lindsay: Sure. My piece, as the title indicates, is focused on multi-level marketing companies, and I have had an interest in the multi-level marketing industry long before I started law school, which is why I chose to write this piece. I think the crux of the whole-- My interest was, how are these legal? That was a question I started with. The piece looks at the legal history of the multi-level marketing industry, and how it has developed since its really quite long history in the United States.
The really loose legal standards that have been applied to the industry by the FTC, by the state and federal regulators. It looks at all of that, and explores how loose those regulations are. Then, it also-- The piece also focuses on why people actually join MLMs, and how that contributes to the problem being so large, that so many people are financially injured.
The piece also takes a look at the social pressures that are inherent in a multi-level marketing scheme, which I think very briefly, is they are legally pyramid-structured companies that recruit other people to join. Only about, we'll say, 1% to 10% of people ever make any money off of being a part of one. The part of that structure involves being a part of a community, and recruiting your friends and family to be within the MLM with you.
That makes it really hard to leave because it's not just about your own individual decision. It's about the community that you're now a part of that means something to you more than just a business. The piece recognizes that there's more to this than just loose legal standards. It's some human nature aspects of why people join these companies. Then, talks about some regulations that would be really helpful to put in place on the federal level to help federal and state regulators actually regulate the companies, and be really clear about what is a pyramid scheme, and what is a legal multi-level marketing company.
I'm using quotes around that for people who don't watch this video. [chuckles] The other solution is something that will be interesting to see. The FTC has a regulation that was passed in 2008 that requires companies that are putting out as a business proposition that you are starting your own business. Those kinds of companies have to disclose the potential financial impacts for new people who join.
At the time that regulation was passed, the MLM industry lobbied really hard to not be included in that rule, and they were successful. That rule does not encompass multi-level marketing companies. The other thing the piece proposes is that rule be amended to include MLM companies, because at the end of the day, that is what they're doing. They're selling a product, but they're also selling the opportunity to sell the product. That is-- Those are the two suggestions that my piece ends with.
Lucy: Okay. These are very diverse issues, all with legal hooks, and definitely in the realm of a law review article. They also touch on pretty broad policy questions, legal questions from Federal Indian Law, to civil procedure, to marketing and business corporations. I'm wondering if each of you can talk about how you narrowed that really broad legal topic into what ultimately became your note topic. That is a challenging process for those of us who have been through it. If you can share a little bit about how you ended up putting a point on the note that you ended up producing, and that will be published for us. Maybe Lindsay, we can start with you, and go the other direction.
Lindsay: Sure. I, in the writing process, I knew I wanted to write about MLMs. I'm sort of like obsessed with them. [chuckles] I knew I wanted to write about them, and I knew I wanted to talk about why it is they exist, and why they're so prevalent in the United States, and honestly, around the world, but largely, in the United States. As I was writing, I kept getting feedback from my editors that were like-- That more or less they were like, "I'm sorry, I don't understand the difference between a pyramid scheme and an MLM. Can you please make it more clear?"
At some point, I was like, I think that is actually the point. It's not-- There's not a clear delineation, and that is on purpose, so that I was able to hone in on what I wanted to talk about as I was researching, and as I was writing. I think, in addition to that, I was interested in the behavioral part of it, because there's, I guess, maybe what you would call a legal realist, there's just more to life than just the law.
I was really interested in talking about why people do the things they do, and then it isn't just like a financial incentive. That is why I chose to make that such a big part of the piece. That was the most interesting part to write about, I will say. I'm glad that I went that route, but that's how I got to where I was with the, I guess, the focus of my piece.
Tyler: Yes, I think a good lesson for listeners is there's more to life than the law, so--[crosstalk]
[laughter]
Lucy: That can be the takeaway, the subtitle of the episode.
? Randa: Title of that.
[laughter]
Tyler: Yes, so similarly I really like class action litigation. I think I really fell in love with it just in my first year of law school in a very first semester of taking civil procedure. That's when we first learned about Rule 23, and how to go through class action litigation. To me, there's just a lot of collective power in a bunch of folks being able to stand up together against a corporation.
That is the traditional plaintiff class action litigation that you see out there. I did that work my first summer when I was in law school, worked at a plaintiff side class action firm, and want to continue doing that even beyond law school as well. My 1L summer, I was working at a firm researching a memo on class action litigation, and ran across a case that dealt with the defendant class action, and described them as, "As rare as unicorns." That quote just really stuck with me.
I tucked that away back in my brain, and thought, "That's really interesting." Because when you talk about class action litigation and civil procedure, you don't-- It's always assumed that the plaintiff class is what you're talking about. It's just a really understudied aspect of class action litigation. One of the things that editors will tell you when you're writing a note is to just make sure that your contribution to the legal scholarship is novel, and that you're not writing about something that plenty of other people have written on.
I mean, my go-to example when I'm talking to other people about it is, unsurprisingly, last year, a lot of people wanted to write about abortion for obvious reasons. That's great, but it's really difficult to make a unique contribution to the legal scholarship as a student in that very large debate. This one, the defendant class action just seemed, because not many people were writing about it, it seemed like I could actually do something here, and have a very unique contribution to the scholarship.
Very few people have written about defendant class actions, because they are fairly rare. No one, I think, has written about how states have handled defendant class actions. I knew I wanted to critique the entire idea of defendant classes, and I also knew I wanted to look at how states were doing it. I tied those two things together to say, "Okay, there's problems with the federal rule, and how much due process they're offering defendants here."
We've got a natural experiment here with the states. They're trying to solve this problem too. Instead of just trying to very theoretically solve the problem, let's just look at the solutions that have actually been implemented in the states, and evaluate them. That's how I literally read every single state rule and statute about defendant class actions, all 50, and tried to come up with a pattern, and categorize them.
Yes, I think that's how I ultimately honed in on this particular topic is, I knew I wanted to do class action stuff. I knew that this was a rare, interesting thing, and I knew that what I was contributing to the scholarship was unique and interesting. To be honest, I have a background in working in state legislatures, and I could see myself bringing this piece to state legislators and saying, "Hey, you have a law on your books that is clearly unconstitutional. You should think about changing it. Here's a very long article as to exactly why."
Lucy: Unapologetically, clearly, unconstitutional.
Tyler: I keep saying, "Clearly", but I think my editors would disagree with that. [laughs]
Lucy: Okay, Randa?
Randa: Yes, similarly, I knew I wanted to do my note on either tribal law, or Federal Indian Law. Personally, that hits home for me. I'm a descendant of the White Earth Band of Ojibwe. Native issues, whether legal or not, are at the forefront of my personal life. I try to make it at the forefront of my academic life whenever I can.
When you're given the opportunity to write a note about anything that interests you, I'm going to do that, because, there aren't a ton of academic opportunities in Indian law, at least at the University of Minnesota, we have a couple of great classes, but I really wanted to hone in on something specific, where I could focus on one topic, and go really in-depth on it, and not just get this general overview of Federal Indian Law.
I was looking around, and I came across a circuit split on the topic of banishment, Indian Civil Rights Act. Circuit splits are weird and tricky, because I don't want to get put in this box like you have to go this way, or this way. The more I researched it, the more I was like, "Oh, there's a lot to this." Like Tyler was saying, Federal Indian Law in legal scholarship is pretty underrepresented, and reported.
A lot of it is so-- It varies across time. What's written today in Federal Indian Law is so different than what was written even five years ago. It's constantly evolving. I figured I could add something in that realm, and examine a topic that is not discussed like banishment. I didn't know that banishment was a thing that happened, but I know a lot about it now, probably too much.
That's how I narrowed it down. I wanted to learn something new that I didn't know about, and just work from there. I mean, examining it through a circuit split was also really interesting because the circuit split is decades old. One case came up in, I think, the '90s, and then the other case was 2019, or more recently. Then, some other cases, or other circuits are still like discussing it.
Yes, I'm trying to think of what else to say on that. I just think that working in Federal Indian Law is super important. Even if I don't go down that road practice-wise, I think as long as I could use the note-writing process to explore an interest of mine that might not become a career, but still worth looking into and adding to the legal scholarship on it, is really valuable.
Tyler: If I could just add to, and I think one common theme you'll see throughout all three of our topics is, we found it interesting. I think that's just worth highlighting, because for so many reasons, I guess, two big things I would highlight is, one, you're going to spend a lot of time with this piece, if you take it from idea stage all the way through publication.
We started working on our note topics a year and a half ago, and we are still working, [laughter] I'm still about to submit my final piece in a week or two. That's just a long time to spend with one topic. Just for folks who are thinking about trying to choose topics of their own, I would just really emphasize find something that you are so interested in, that you want to do it for a year and a half.
Frankly, when you go through the publication process as well, that's a criteria as well. You want to have something that other people are going to want to read. Even if, think about things that are novel, and all of that, but also just interesting.
Lucy: Yes, and that was definitely a thread that I was hearing through your all's answers to that question is that notes, which may be, on first glance, seem like a term paper, or a academic project, right? Actually, aren't that at all. It's an opportunity to take something that you've always been really excited, or interested in, or that has a very personal resonance for you, and just explore it from a new perspective.
It feels exciting that cut across all of your answers, that you have a lot of freedom and autonomy in the note-writing process. There's some scariness to that, but also a lot of excitement for making something that contributes to legal academia, but also, is like a deeply exciting and personal process. On that note about narrowing your topics, and ending up at publication a year and a half later, I wonder if you can talk about some of the fun parts of the writing process, some of the challenging parts of the writing process.
Is there things that stick out to you as particularly important parts of the year and a half, year plus that you've spent on this note-writing endeavor that you would maybe want other folks to know about?
Lindsay: Well, my piece, just like, I guess, contextually got published yesterday. When I posted about it, I was like, "Writing this was a dream and a nightmare." [laughter] To that end, I think that I felt quite nervous the whole time about making something that people would want to read, and that I was doing good research, and that just, I find that come to be paralyzing, and I don't think I'm alone in that.
It's really hard to actually just write stuff, even if it's bad, you just have to like write stuff down. I found that pretty challenging. I think the other thing I found challenging was letting go of things, once I had already written it. Particularly, I got some feedback from my faculty advisor, and some other faculty. One of them was like, "I think you don't need this whole section. I think you just cut this." I was like, "What? No, everything in this is like essential."
I don't think anything I'm saying here is like something that any person who's written something has never felt before. It's not like a unique take, but I do think as someone who's never done it before, so if there's some 1L who just joined a journal, who's like, "I wonder what a note-writing process is like." I think that happens for most people at some point.
That's just, you get really attached to what it is you're talking about, and you don't want to-- Just get creative with it after a while, because it feels like you're set in what you want to do. I found that challenging. I think the research was easier than I thought, because we have amazing librarians at the school, and they were really helpful in, both the legal research and the more like behavioral psychological research that I wanted to do.
They found amazing pieces for me to work from. That was fun because I like reading other people's research, especially, on this topic because in the behavioral world, a lot of people are like, "What is going on" Have recently been really interested in it. That was cool to read, and it was fun to put it together. Yes, certainly, people, I think, try to tell you how challenging note-writing is, and then you do it. Yes, it is hard. [chuckles]
Randa: I was nodding vigorously during everything Lindsay was just saying, I'm just like, yes, it's such a proud moment to-- Especially, when it comes to publication, you're like, "Wow, I did that. I spent a year and a half working on this, and now it's done." It's hard to let go of it at that stage too. I think challenge-wise, personally, I found challenges trying to find people to read my paper that knew Federal Indian Law, and were able to like talk about it.
My faculty advisor, amazing, love her. She's so great, but she's not an expert in Federal Indian Law. Didn't really know much about the topic, but a fantastic writer. She was able to help me in so many ways, but I had to go outside of MLR and outside of Minnesota Law in general, just to find people and be like, "Is this like a good topic? Am I saying the right thing?" Those conversations are so hard too, because I flip-flop so much on my-- Just like whole argument.
I would wake up in the middle of the night, and I'm like, "I need to switch everything." I [chuckles] think of it totally differently. Then, eventually, it's like getting that out of your head, you have to pick one. That was a challenge for just the general topic of my note. I had another one. There's so many challenges. [chuckles] It's hard to like pinpoint a couple, but in general, it's just being proud of what you've been able to put on paper, and the amount of people that have like faith in what you're putting on paper, is valuable to legal scholarship, I think it's really helpful and important, and definitely a confidence boost. [chuckles]
Tyler: Yes. I don't know about you all, but I just still have like a lot of nerves about putting it out into the world. I've done so much work on it for the last year and a half, and it hasn't quite hit published yet, but it's about to. I don't know. I still have these back of my mind fears that someone out there is going to be like, "You fundamentally misunderstood federal rules of civil procedure. Why did you consider this very obvious point?"
Lucy: Clearly unconstitutional.
Tyler: Yes, exactly. [laughs]
Lucy: Not so clear.
Tyler: I do think that's-- I do think both of you have talked about this, but it is the value of making sure that it gets in front of other people. You do have to overcome that pride of authorship, because I think my instinct is to not want to show it to other people because I'm afraid they're going to point out a bunch of flaws with it. You just have to get over that because, for example, I showed one draft of it to a civil procedure professor, and he did point out fairly obvious thing that I wasn't considering.
I'm very grateful that he did that before I had published, because I would have made a incorrect assumption about how a thing in civil procedure works. I would just say for people who are thinking about going through this process, please get over that pride of authorship, and make sure that you get it in front of subject matter experts, and those sort of things, because they are incredibly helpful.
I will just say too, I'm an articles editor. It means that I spent my 2L year doing a lot of site checking. Then, I spent a lot of my end of 2L year, beginning of 3L year working with other professors doing edits above the line. It is strange, frankly, being on the other side of that. I think I just began to value a lot more that feedback, because we go to school with incredibly smart people, and they all of a sudden are no longer just your peers, but your editors.
Just trusting that they can be really invaluable to your writing process. I think it's just a good lesson for future career as well, to just really rely on your colleagues, to put a fresh set of eyes on things, and help you improve your writing.
Lindsay: I will add one small thing, at least for me, I was-- I had anxiety about people reading it, but I also was very ready to accept all edits from editors. Just being like, "You know what? Yes, you're right." I'm just going to accept everything. I think something else that came out of this that was positive, and good for me, was to actually be like, "Oh, no, I don't-- You're wrong." Or, "I don't agree with that. I don't like the way you're phrasing it," like taking more control, and saying like, "I do know what I'm talking about. I don't have to just accept what an editor thinks of my writing."
Even though, majority of it is really helpful and great, but there are some things where, as the author, I was like, "Oh, well, this is why when professors get annoyed that we make so many line edits," they're like, "No, I don't agree." I think as a-- Especially, as a staffer, I was like, "Who cares?" I'm like, "Oh, well, yes." They can be gracious to a point, but at some point, they're going to be like, "This is still my writing, and I know what I'm talking about." I guess I like-- It just gave me more confidence to want my own voice in something, and to be more firm about it.
Lucy: Yes, I like that you all are drawing out both this, I guess, this dual reality of writing as a very communal process, and editing, and the legal worlds is this very communal process, and this feeling of confidence and empowerment that comes with the process of writing a note. The note-writing process, I think is presented often as a pretty singular activity.
You will take this idea from brainstorming to fruition, and then, you'll publish it. As I like collaboration, so I guess maybe that's my bias showing, but it's nice to have exposed to folks that it's actually, at the end of the day, is a single person product, but the process of getting there is really iterative, and very communal. That is, I guess, a bit more process-oriented, or those questions were about the process.
I want to go back to the content of each of your notes, because they are really interesting, and really quite diverse in terms of what you all are talking about in argument, and notes as a piece of advocacy is an interesting idea, I think, as well, not just a piece of academic writing that goes into a journal, but a real practical tool that somebody might look at one day.
I'm curious if, in turn, each of you would mind talking about your key argument, your key takeaway that you want a reader to get out of your piece, and then also who that target audience is, and maybe how that target audience informed your writing process. It's a lot of compound-- That's a compound question, so not the best. [laughter] Not the best formatting of a question, but curious if you might talk about that. Tyler, if you want to start.
Tyler: Yes, I guess the very short answer is, I would say, the lesson of my piece is to be skeptical of defendant class actions. [chuckles] I think that has a few different audiences. Primarily, just given the nature of mine, it is state legislators who often have the ability to change these rules, or their state Supreme Courts. The way that these rules are promulgated, it varies by state.
I quite literally do plan to send my note to some legislators in some of these states that I think are especially problematic to just lay out the case of why some of these, especially, draconian rules around defendant class actions are really bad. Also, I think it will-- We'll see, but I actually think it could be helpful for both litigants and judges who are dealing with these cases.
The structure of almost every note, I think, is to go through the mechanics and the background information on your topic before reaching a conclusion, or the advocacy side of the note. When you write stuff like this, I think you often see cited in cases, or certainly future law review articles, that portion of it, the explanation of the mechanics of it, is often what gets cited, because someone has sat down, and just spent many hours thinking through every possible thing that could happen with a particular topic.
For me, I think that's one thing that I bring to the table for this scholarship is just, really thinking through line-by-line of how a defendant class action would operate in the real world, and how it has operated. I think it's helpful for judges and litigants who are dealing with defendant class actions to just get their minds around how they operate, and what are some of the problems.
That's not exactly advocacy, but it's almost a manual for people who are trying to deal with this problem. In fact, I've talked to a lot of people about [chuckles] defendant class actions along the way, and I've had three or four different people who are dealing with this issue. I had to send them various drafts of my piece, because they were dealing with defendant class action, and just had no understanding of it, and there's not much scholarship out there.
I think it will, hopefully, be helpful for people who are dealing with this issue. I think a couple of different audiences then. It's legislators and policymakers who can fix this problem, and then, also, litigants and judges who are dealing with it, as they come up.
Lindsay: Do you want--[crosstalk]
Lucy: Randa.
Randa: I can go. I think the biggest takeaway from mine in super general terms is, tribal sovereignty is important. That's ultimately what I come down on, and it needs to be preserved. I go through-- I start my argument really talking about threats to tribal sovereignty through federal courts. This was also-- This goes back to a challenge in writing my note.
I wrote most of it before Brackeen came down. It was like-- [chuckles] I had in my mind how Brackeen was going to go, and I'm like, "We're going to be so screwed. Federal Indian Law is going to be done. What's going to happen to tribal sovereignty?" That didn't happen. Yay. [chuckles] Very good. I did have to rework some of the frameworks. Brackeen is still-- Leaves some things open.
That's not what my note's about. It was interesting to frame my note, and this issue of banishment in the larger discussion of what it means to preserve tribal sovereignty and tribal rights, while also taking into account individual tribal members, individual civil rights. Yes, it was a tricky issue. Ultimately, tribal sovereignty is really important. I'm hoping that, I hope everybody reads my note, no matter in what position they're in. I think that it's really-- I'm just going to feel like I'm tooting my own horn.
Lucy: No, toot away. Go. [crosstalk]
Randa: Toot-toot.
Lucy: Everyone-- [crosstalk]
Randa: [crosstalk] Yes, like, "Read my note if you want to learn about Federal Indian Law." I think I lay it out really nicely, just historical context. It is specific to banishment, and how courts have addressed this banishment, and the Indian Civil Rights Act issue in particular, and that whole realm. I think it does really talk about the general threats that have happened over the course of time to Native peoples in the United States.
I think that, that would be valuable for, yes, like Tyler was saying, that stuff does get cited by courts, or law review articles. I did a lot of work in a lot of different legal sources and other sources. I hope a lot of people read this, [chuckles] and just in general, take something away from it, and see how important, not only tribal sovereignty is, but how important knowing the connection between tribal law and tribal nations, and the federal government and state governments really are. It's this incredibly detailed and hard to parse out. I hope people read it, and take advantage of my work, because I did it. [chuckles] I parsed a lot of it out for you, so use it.
Lindsay: Well, I think the crux of my note is that, most MLMs are pyramid schemes, and they should be held accountable, and they're not. That's the TL;DR. I wrote my note, it's aimed at policymakers and regulators to point out both the obvious, which is something many people, many students specifically, I will say I used a lot. I cited a lot of student notes about MLMs in the last five years.
A lot of us are interested in these, it turns out. They're-- Tyler and Randa have both been talking about doing all this like background stuff. I've read six student notes, where they all did that. I was like, "That's not the interesting part of my note." The interesting part of my note is thinking about how to make policy that isn't just looking at the legal background, but is considering what it is that the people in the MLMs actually want.
Is the solution for MLMs not to exist? I think, when I went into writing the piece, that would be what I would say. Yes, they're bad, they're predatory, they're fraudulent, they shouldn't exist anymore, but considering people's reasoning for joining them, it's like, people want something like that to join. That's why so many people join them. To make law, laws that deal with that, and the fact that they are predatory, you have to think about both.
I think my note is aimed mostly at policymakers to be-- Just say, you need to think about both things, in order to make good policy. The other thing that I tried very hard to do was make my piece accessible to people outside of the legal community. I would love for people to read my note who don't attend a law school, are not a professor, aren't lawyers, because I think that it's important for people to just be able to read about things, and it doesn't just live in obscurity in a law review.
Because I think people think MLMs are fascinating. They're like, "Ha ha, aren't they pyramid schemes?" I don't know. Then, they move on. I would love for someone to read my piece, and be like, "Oh, okay, that's interesting. Now, I understand it better. Now, I really think that someone should do something about this." My audience that I was thinking about was, obviously, legal minds thinking about how to solve this issue. Also, just people who might be interested in the topic, and making sure it's useful for both of those groups.
Lucy: It should pop up as suggested reading after someone watches the Hulu documentary on MLMs.
Lindsay: Correct. Yes. After the LuLaRoe documentary wraps, a little pop-up should come up and be like, "Learn more. Go read this 55-page note." [chuckles] Everyone will do it. I think, they'll love it.
Lucy: Before we move on to my next question, I just want to give a little shout out and appreciation. I think that you all took such care with your notes. That really came through in how you're talking about them, in the reading that I've done. I feel like it's such a special opportunity to have you all here talking with one another, and talking about your process, because it really just goes to show that, these notes, as with the articles we publish, as with articles that are published across many legal law reviews and journals, are like labors of love, and really are important for scholarship, and important for advocacy.
That takes us into my next question, which is, you all have talked about students writing these notes that you hope people read them, that you hope they inform policy decisions. I'm curious to hear maybe a bit more generally your take on the role of student scholarship in legal academia. We have, I think, 15 notes being published by student authors, and it's common among law reviews to publish, and amplify student work. That feels very exciting to me. I'm curious if it feels exciting to you all, and why it feels exciting, [chuckles] if so. Yes, I just showed my hand there. Again, not a great interview question, but, yes, it feels important.
Lindsay: I keep wanting to make jokes about objecting at a trial. [laughter] It's just like my brain has been-[crosstalk]
Tyler: You've been her too long.
[laughter]
?Lindsay: It has moved to just be like legal jokes, and that is so heinous.
?Randa: It's the three LOL [unintelligible 00:41:19]
Lindsay: That's right. Yes. Okay. I do think it's important. It's not really something I thought about prior to coming to law school. I think for students, it's-- I think students can have a surprising-- Maybe not surprising, but I think there is a creativity to student notes that I'm not saying professors aren't creative. I think when you're first starting out and you're, really amped that you get this opportunity.
The three of us, I think, clearly were pretty amped to write our pieces. You can do anything. I think if you really lean into that, students can talk about really interesting things that people in the legal academic world are not thinking about. That's an amazing opportunity. I think that actually should be a signal to people who are in the legal academic world like, "Here's a new idea for you to be thinking about," even if that student never writes about it again.
I think that's an amazing opportunity. I think we've all talked about how it gave us confidence in our writing, and in our-- I've seen other student note authors talk about the confidence it gave them to be an "academic" to feel like they can contribute to legal scholarship, and that it's not just like some far-off idea that you really could do it, and here's your opportunity to try it out, and see what it's like. Yes. it is wild that I don't-- I am not barred, but someone let me write a 55-page paper on this topic that I'm obsessed with.
Tyler: Yes. I think for me two things come to mind. One is that, you selfishly-- [chuckles] It is a really good platform for you to be able to watch a legal career on. There is an expectation, at least among some attorneys, for you to publish things like this throughout your career. I think it would be difficult to go from 0 to 60 really quickly without having done this first.
Now, just looking forward, I think it will be easier to write the next thing, given that I've gone through this really intense process for the note. You can-- The thing itself can be really helpful, too, which is my second point, is that, I think sometimes, I've worked with a lot of attorneys out in the field who have been out of law school for a very long time. I'm trying to say this delicately, but they are thinking about-- They went through law school, and they learned the law as it was when they were in law school.
I think it's helpful to have just a constant churn of new students who are seeing the law fresh as it has developed over the years, and come up with new ideas. The classic example of someone who wrote a student note, and launched a career on this is Lina Khan. She wrote about antitrust when she was a student. She saw a problem that, from her perspective of a student, and now she's the FTC Chair, right? I mean, we can't all be Lina Khan. [laughter] I think that we can--[crosstalk]
Lindsay: No one--[crosstalk] Lina Khan.
[laughter]
Tyler: I think that we are a little bit closer to modern problems, and we have that perspective that people who have been out of law school start to lose, as time goes on, and so, I think, Lindsay talked about this as well, but that, I think, is powerful too. We're able to have all this fresh energy about the law, and also connect that with a problem that we see out in the world that's important to us.
Randa: Yes, I don't have a ton to add. I would echo what both of you guys just said. I think, specifically, going back to what Lindsay said about creativity, I think that really has a lot of value in student notes. Law school in general is not-- This is just my view on it, is not a super creative place to be. It's very cut and dry. You learn X, Y, and Z. You prepare for the bar.
You can make it more creative if you want to. One of those ways is through a note to-- This goes back to the first question I think we were talking about, is finding something that you're interested in, or you're passionate about, and writing something that can contribute to legal scholarship. I hope a lot of people read our notes, and I think they will. They should.
Even if nobody does, we still put something out there that's in legal academia. It's in legal scholarship, and not everybody can do that. I think that, that's really valuable. On a personal level, and then, yes, if people read it on a more widespread level, because people come up with new note ideas based off of what old note ideas are. What we'll write about next year, some people might be like, "I disagree, and I'm going to write this note that's completely different from what you had, or support it in a different time and context." I think it's as important for the evolving scholarship door. Revolving scholarship door.
Tyler: I think people do read student notes quite a lot.
Randa: No, people do. [chuckles] Just like even if nobody does, the people will. [laughter]
Tyler: I think I didn't quite understand that too, but Lindsay mentioned this earlier. She read a lot of student notes in preparation. I did as well. There were-- There's not a ton of scholarship out there in defendant class action, [chuckles] but I think a couple of student notes have already been written on this topic. I think that was pleasantly surprising to me. I think that the student notes are right there, and with the rest of the scholarship on being cited in future law review articles. I don't know. It's exciting.
Lucy: Yes, I had that experience as well. Especially, if you're writing about a particularly timely topic, or an area of law that is under-theorized, or underwritten about, you may be relying on student notes. You may be relying on alternative non-legal scholarship as well. In turn, what you contribute is, a part of a pretty small pie, but growing. That's really exciting.
I want to close out with just one more question. Randa, you said that this may not be your practice area, but was obviously super interesting to dive into. Tyler said at the top that you are a civil baddie. I know that this is an area of professional interest for you. Lindsay, you came at this note from an excitement and enthusiasm that is overlapping with areas of professional interest.
I'm curious if you all can close out with thoughts on how you think your note has informed your law school experience, but maybe also your next steps, and how you will approach legal problems in the future? Yes. Some closing wisdom for us.
Randa: I can start with the closing wisdom in whatever capacity I can contribute to it. I think it goes back to what I said. I was able to learn about an area. A specific subset of an area that I knew nothing about. I think that that's really helped my law school experience, because there's no way I would have ever learned about this if it wasn't for the note-writing process.
I don't know when I would have come across banishment in-- Among tribal members without it. I will say, I'm always going to be interested in Federal Indian Law and tribal law. Maybe that will be my career path. I'll be able to come at it with the knowledge and all of the scholarship that I reviewed for my note. Incorporate that in there.
Even if I do something completely different, I think the note-writing process just allows you to be a better writer. Allows you to formulate your thoughts in a more cohesive way. I'm a babbler, and that's going to come across in this podcast, and it's how I write too. The note-writing process really helped me hone in on those practical skills. Then, yes, just the general editing process is super helpful moving forward.
Allows you to communicate with a lot of different people who might not know the contents of your note at all. They might know. I don't know. It just gave me a lot of confidence moving into whatever practice area that I go into. Whether it's Federal Indian Law or not, yes.
Tyler: Yes, again, I think for me, it's two things. One is the process, and then the other is the substance. It's like Randa said, I think just what I learned going through this process was extremely helpful for me. Honestly, the biggest thing for me was how to accept feedback, which is something that I [laughter] constantly need to work on.
That alone was, I think, really helpful. Just thinking about how to write, and trusting that other people will be able to help me in that process, and not have embarrassment that I'm putting forward half-baked ideas, and just let people react naturally to those things. I think that is helpful. The other is the substance though. I think you are going to be a subject matter expert on whatever it is you write, probably, for the rest of your career, right?
Anyone who's-- If Lindsay is working in some sort of consumer protection place, and they're talking about MLMs, they're definitely going to go talk to her like, "Oh, hey, I knew you wrote about this thing." If Randa's-- If certainly banishment ever comes up, I'm certain--[crosstalk]
Randa: I'm your girl.
[laughter]
Tyler: Right? I'm certain if defendant class actions come up in the future that people will probably come to me about those kinds of things as well. It is that opportunity, I think, to just pick a very narrow thing, and really just master that, and become a subject matter expert there as well.
Lindsay: Yes. I think in terms of my law school experience, I think my law school experience has really, probably again, not uniquely, but gone from like, "I know what I'm doing," to like, "I literally have no idea what I'm doing," to like, "Oh, maybe I know," to like, "Oh, I really, really don't know." Now, I'm leveling out at like, "Okay, yes, you learned a lot," but like you can never know the entirety of the law, and that's just like, it is what it is.
A lot of the note-writing process was like in the lowest dip of, you have no idea what you're doing. I think for my law school experience, at the end of it all, it is like, you have to always-- This is going to sound so corny. Sorry, everyone. It's true. You have to believe in yourself to be able to do some of this stuff. A lot of people are going to believe in you, and help you, and push you to do what they think you can do.
At the end of the day, to be able to do some of this stuff, you just have to keep going. You have to be like-- There's no, "It's going to be good. I can do this." Broadly, for me, that was like, you can do law school, you can be a lawyer, you can do the things you want to do. Certainly, I did not like the writing process for many reasons, but it helped me a lot. Here, now I am at three months out from graduation, two months. I'm not keeping track. [laughter] I know other people are.
Yes, I think, do I have wisdom about what it-- It was definitely, it's like it affirmed for me that I'm interested in economic justice issues, and that's what I'm doing after law school too. That was great. I don't think that's everyone's experience with note-writing. I know plenty of people who are like, I actually definitively don't want to do something, now that I've written a note about it."
I think that's also great to be like, "I'm a student. I spent a lot of time learning about something, and it turns out, it's probably good, I didn't choose that for my career," [chuckles] because I think it's boring, or I don't like it. Yes, I have been-- It was formative. It's like the really short version of that for me. Yes.
Lucy: Amazing. Thank you all. What a treat to get to chat with you all about your notes, and to learn a little bit more about the substantive legal issues, but also a little bit more about the writing process, and some of the meta questions that come along with being a published author.
If you're listening to this, you should definitely check out these pieces. They're available on the Minnesota Law Review website, and that along with all the other scholarship we publish is ready, and able to be consumed. Thanks again for being here, and thanks for listening.
[music]
Lindsay: Thank you.
Randa: Thank you.
Tyler: Thanks, Lucy.
[00:54:45] [END OF AUDIO]


File name: Experto Crede S6 Ep 2.mp3
1