#017: Mark Joseph Stern - Legal Journalist

This transcript was generated by AI.

Mark Joseph Stern [00:00:00]:

I often write paragraphs upon paragraphs that I then totally just delete and never think about again. But those were useful for me because those helped me explain really to myself what was going on here. And I I pride myself on being, like, an easy edits. I really rarely fight with editors because when an editor cuts four paragraphs from a peace of mind. I don't see that as a wasted time on my part. I don't see that as a great tragedy because those paragraphs helped me wrap my arms around what was going on here. They helped me understand what was happening. And if the piece is better without them, that's fine. I was able to make the rest of the piece stronger because of these paragraphs that I wrote that ended up not really being necessary.

Jonah Perlin [00:00:42]:

Welcome to How I lawyer, a podcast where I talk to attorneys from throughout the profession about what they do, why they do it, and how they do it well. I'm your host, Jonah Perlin, a law professor in Washington DC. Now let's get started.

Jonah Perlin [00:00:57]:

I wanna welcome Mark Joseph stern to the podcast. Mark is a staff writer at Slate Magazine where he covers the courts and the law as an analyst and supreme court correspondent. He's the author of the book American Justice 2019, The Roberts Court arrives, and a graduate of both Georgetown University and the Georgetown University Law Center. Go hoyas. Welcome, Mark. Thank you so much. Happy to be a double hoya on this hoya podcast. I wanna start by asking you about your path to legal journalism that you work slate before you attended law school, was this always your plan to both become a trained lawyer and a legal journalist?

Mark Joseph Stern [00:01:35]:

It was not my plan. I doubt it's anyone's plan. What happened was my senior year of college, I had actually already gotten into Georgetown Law And I I had a lot of spare time. I I was doing college part time, and I thought, wouldn't it be fun to take on an internship? And I saw tweets, Slate was hiring an intern. And so I said, I might as well apply because everyone else on the face of the planet, I adore Dahlia Lithwick And any opportunity I have to be in the same room with Dahlia, I will seize upon. So I applied, and I got in because I had done some writing previously not super serious stuff, but just a little light commentary on places like Daily Coast, which would just publish anything you wrote. And so I was able to show that I record. And I started as an intern, so a jack of all trades, and I didn't write a ton. And I also did not get to meet Dahlia because she was at that point taking a year long leave living in Israel. So that didn't quite work out, but it did give me a motivation to stay with sleep. just so I could at least get to meeting Dahlia. And I continued after the internship writing Sort of whatever slate wanted me to write. I did a lot of stuff at that time about creationism and intelligent design and the battle to have taught in public schools are funded by the government. I grew really close with slate science editor, and a lot of times in the media, your relationships with editors will matter more than your particular interest coming in on on a specific subject. Mhmm. And so she steered me towards some interesting topics. And then I was facing down law school, and I I was ready to jump ship, but SLAIT's editor in chief at the time David Platz was like, hey. Our readers are really interested in LGBTQ stuff, and marriage equality in particular was a huge issue then. This was in 2013. it's just after the supreme court had struck down the federal ban on recognition of same sex marriage. And so he asked if I would like to stay on as a contract writer mostly focusing on that issue as it winded its way through the courts and and similar LGBTQ issues. And I said, sure, if course, always nice to have a little bit of a side income when dumping out tons of cash on law school. So as I started law school, I had one foot world. I was at Georgetown Law full time, but I was still writing periodically you know, obviously, not every day, but periodically for slates, and so I never ended up taking my myself entirely out of the media world.

Jonah Perlin [00:04:02]:

Got it. Got it. How did you manage to both be in law school and do writing on the side I had enough trouble fixing my breakfast when I was in law school. How'd you manage?

Mark Joseph Stern [00:04:13]:

People always ask that, and I looking back, I agree that it was course, a lot of work, and it did sometimes require sacrifices. So after my 1 year, I I had written for for a larger and gotten an offer, but I decided I'd rather go full time with slate over the summer. I I decided I wanted to sometimes prioritize my writing career. But, really, I found, at that time, I found writing to be a fun outlet. I found it to be not hugely challenging. A lot of my articles would be about, like, the district court decision that had invalidated a same sex marriage ban. And I could churn out 600 words on that during, like, lunch break in between classes. And I I I don't mean that to be boastful. Like, it it just you've got into the rhythm of these things. And I found that it dovetailed nicely with my training and, like, legal research and writing because I was learning how to both write for lawyers and and judges and opposing counsel, but also how to write for a general audience and how to keep it legible and an intelligible to people who aren't totally steeped in this stuff. I developed a strong distaste for legalese during this time, and I I think that the 2 kind of paths complimented each other nicely.

Jonah Perlin [00:05:29]:

And I will talk a little bit about audience later. But for now, I just sort of wanna fill out the story a little bit. After you do this during law school, what made you decide to day and go full time in the journalistic world after you graduated?

Mark Joseph Stern [00:05:42]:

So it was really Donald Trump's election, frankly. So after law school, I took and passed the bar. I was still at slate, but I was considering getting a a full time job in the law. probably, like, advocacy civil rights work. I was never going to go into big law. I I was just not that kind of person. But when Donald Trump won, I felt like I was at a real fork in the road. And I I felt I wanted to use my skills to push back and fight against Trumpism and all that he represented, and and I thought, what is the best way I can do that? And I I decided that there are so many amazing lawyers out there. There are a lot of really fantastic brilliant civil rights attorneys, civil liberties attorneys who were ready and willing and able to launch that court battle against Trump's policies. And I myself was probably better suited to work on the more public facing side of this effort by which I mean translating what those terrific attorneys were doing for a lay audience, which by which I just mean people who are not lawyers and and helping to publicize and bring attention to the horrible and often illegal and unconstitutional policies that Trump was handing down that these attorneys were fighting again. And so I came to that conclusion in part because I had noticed throughout law school, especially toward the end, A lot of those attorneys who are I consider just total geniuses, much smarter than I am, would message me and be like, can you help me translate this new lawsuits to the public? Can you help me, like, bring more attention to this this issue to to the public? Because this is a real threat, and people just aren't getting it. And there's all kinds of downstream consequences when people don't get it. that these groups may lose their funding. They may lose public support. They they might not get as much attention where in the media, which that attention can contribute to donations. The ACLU basically Liberals were tithing to during the Trump administration years, but there were a lot of other really worthy groups. And so I decided, for now, at least, I'm gonna I'm gonna put both my feet for the most part in in the world of journalism. I I have worked on the legal side a bit, I have contributed to some Amicus briefs in cases regarding trans rights, but I generally have focused on journalism because I think that's where I'm best able to use my talents to fight for what I believe.

Jonah Perlin [00:08:05]:

What what you say is really interesting in the sense that law is being practiced out loud and in public and that matters in a very robust way. I think it may have changed. I'm curious of your views, but is this different now that lawsuits whether you're bringing them or defending them, they're not just being litigated in the courts, but they're also being litigated on Twitter and on Facebook and in the media and on blogs in the Court of Public Opinion. Is that a big shift that we're seeing in sort of legal advocacy? It's a huge shift, and it is a positive and salutary shift in in my view. Say more about that.

Mark Joseph Stern [00:08:48]:

Back in the dark old days, if you just to take a really basic example, if you knew of a lawsuit that some state attorney general had filed against the president's say, Probably the most that you knew about it was a summary of it that you read in The New York Times or The Wall Street Journal. And that summary probably watered down the issues for for lay readers, understandably, and didn't really get into the meat of what was going on. And might sometimes make the issues sound blander than are. And in the age of Twitter and digital media, that that kind of journalism, I think, is unacceptable and totally anachronistic. because what happens now is if you learn about a lawsuit, I hope you're reading about it in an article that has a very prominent hyperlink to that lawsuit. So if you're interested, you can click through and read it. If you're on Twitter, you can take a screenshot of a part that interests you or infuriates you, and you can tweet it out. And you can engage in a dialogue with other people who may know more or less about the issue and really suss out exactly what's going on here and feel your way towards better understanding and expert keys of legal issues even if you don't have a JD. I think that the lay audience has become much more fluent in the law over the last 4, 5, 6 years. in part because they've had so much more exposure to just primary source documents. Right? They've been able to read the complaint. they've been able to put their eyeballs on the page of the supreme court decision and say, wait a minute. This is nonsense. John Roberts is making up this rationale, the strike down part of the voting rights act, and I don't have to rely on Adam Liptak who I love. but I don't have to rely on Adam to explain what's happening to me. And so that process has led to a lot more battles about what's happening in the courts on Twitter, on other forms of social media. I think in the press legal issues, and I think that's really important, and I think it's a huge forward.

Jonah Perlin [00:10:47]:

And I guess do you think it also changes the way that lawyers either write or perhaps lawyer should write? Because they know that audience is out there in a way that it wasn't just even a few years.

Mark Joseph Stern [00:10:50]:

So that's the other piece of this, and I think there's good and bad there. So I think that sometimes you see lawyers pandering to the general audience and putting stuff in their briefs that are obviously just designed to attract social media attention to shine a spotlight on some particularly clever turn of phrase to get attention to their cause when it's not really deserved. And sometimes you do see overly cutes you're irritating legal writing. And I should note that this is not just lawyers. This is also judges. Right? So you see judges like James Howard Don Willard on the 5th Circuit who may sometimes thread the needle, but more often than not, in my view, go too far in writing in a kind of cutesy way that's obviously designed to draw more clicks than substantive agreements or -- Mhmm. -- given disagreement. I think for lawyers, the better side of this has been that they want to write more clearly. They want to use less legalese. They want to they want to do legal writing in a way that ensures that non legal people can understand it. And that that has to be good, I think, because I'm firmly convinced I always believe that it is possible to explain any legal issue without resorting to legalese. I I just don't think there's anything out there that cannot be described in a legible way to nonlawyers. I mean, I I don't know if you're familiar with the case, Home Depot versus Jackson from a couple terms ago about The class action fairness act, and it's about, like, 3rd party defendants and removal from state to federal. It's such a complicated mess. I spent a very long time translating that one. And I was not sure if if it was gonna land because it was just so complicated, but it ended up being really well read. and based on the reaction to it, based on comments and and stuff I saw on social media and readers, emails, people understood it. Like, they got what was going on here. They totally grasped this super complicated case that frankly, most individuals in the supreme court press kind of ignored because well, so I I think it's really Like, lawyers are grasping the fact that if you're filling your roof with legalese, it's not just annoying for the judge. It's not just annoying for opposing counsel. It's annoying for everybody because these are these are federal courts and sometimes state courts that are supposed to represent us and work for us and they should not be conducting their business behind a smokescreen of unintelligible legalies.

Jonah Perlin [00:13:18]:

Yeah. I so I teach a class or I have taught a class to pass on legal writing for judicial law clerks. And one of the things that we talk about in that class is walking that line between being accessible and being funny or cute. Mhmm. And it's very hard. I think particularly for new lawyers who are still getting their feet wet, maybe the judges don't have an excuse. But, certainly, the first is really hard to thread that. But I agree with you. I think it's super important. Can you talk a little bit about your trans process? Like, how do you take an opinion? Like, the one you mentioned or any opinion that's sort of complicated and legal and start thinking about how can I explain this to a larger audience.

Mark Joseph Stern [00:13:52]:

Yeah. So, of course, the first thing I do is I I make sure I understand it myself. And look, I'm not a specialist in class actions. just run with that example. Like, I'm not a specialist in the class action fairness act. I did not come to the table with, like, deep knowledge of what was going on there. So the first thing that I do is, of course, I read the opinion, and I read concurrences into sense. And I try to figure out of course, what the court held and where the areas of disagreement were. This sounds obvious and basic, but you have to start somewhere. Then what I usually do is I go to Skotis blog if we're talking about a supreme court opinion, and I read a bunch of briefs. And not just the party's briefs, but Amicus briefs. And there are a a couple different groups that write consistently terrific Amicus groups that I always look out for. So for instance, the constitutional accountability center, a really great group that does aggressive originalism and textualism. their briefs are always just so clear and powerful and have been cited by supreme court justices or or sometimes alluded to, and it can help me understand where the majority or the descent is coming from, like, how they reach this point and also what the context and background for this debate was. Like, why we're having this huge fight over whether this lawsuit against Home Depot And Citibank is gonna be in a state court or a federal court. Like, why does that matter so much that it's created this incredibly divisive 5 to 4 split? with -- Right. -- in this instance, Clarence Thomas joining the Liberals. Like, those are a lot of red flags that something is up here. Right. So once I've really mastered case and and read the briefs and gotten the context in the background. Often, I will reach out to an expert. Usually, I would say a lot professor, sometimes an attorney who worked on the case. Of course, if you're talking to an attorney who worked on the case, they're going to have their ensland. So you've gotta make sure you're not just buying hook line and sinker into their spin on the case. But in that case, I I was able to reach out to the guy who argued for the that because it was about 3rd party defendants, this terminology gets very complicated, argued for the guy who was wronged in the case. And he pointed me towards some points in his own arguments that were really helpful. So then I went back and I listened to the oral arguments. I often do that. If I didn't listen the first time around, I'll always listen if I'm writing about the decision. If I did listen the first time around, I'll probably go back and listen to parts the oral arguments when I'm writing about the decision, and I'll be able to feel really confident that I understand this case that I'm gonna explain it correctly that I I I just crossed all my t's and dotted my i's. And frankly, I think that what I just described is, like, the best part of my job. because people pay, like, what, down $60,000 to go to law school. And I can just call people up. I can just call up a law professor and be like, explain this super complicated issue to me for an hour, and they'll be like, absolutely. And I just love that. It's so amazing that I can reach out to professors or super accomplished attorneys or supreme court litigators and be like, teach me, and they'll do it. it's an amazing perk of this job. It's, like, worth having the job just for that perk, I think. Mhmm. And I think it's a really great way to develop your understanding of areas of the law where you might not have a lot of expertise if you are a journalist covering a wide range of legal issues.

Jonah Perlin [00:17:25]:

Mhmm. And it sounds like you the first sort of fight to summarize that first step, it's become the world's maybe not greatest expert, but close to the greatest expert and then teach it to someone else. Right? But then how do you translate? You now you've increased the amount of information that you've gathered How do you think about summarizing it and breaking it down unlike, say, a law school case brief, which is really just trying to get the high level?

Mark Joseph Stern [00:17:43]:

Right. So, of course, you have to zero in on the real heart of the dispute, and you have to sometimes make some sacrifices cutting outside issues or secondary arguments, cutting the fat away because readers I I come to the table thinking that readers are smart Readers are competent. Like, readers will meet you where you are, and they will work to try to wrap their minds around what you're telling them. If you work to try to make intelligible, but you don't wanna ask too much of them. Right? You don't wanna force them to spend hours and hours reading the same paragraph just to try to understand what I I try to find the heart of the dispute and translate it in a way that my editor who All my time at SLAIT has not had a JD, has not been a legal expert, can understand. And this is a place where having an editor is super helpful. And I think having an editor who's not a lawyer can be really helpful if you're a legal journalist that might sound counterintuitive. But you wanna be able to sell it to your editor. And -- Mhmm. -- I say sell it because sometimes I will tell my editor I wanna write about this case that talks about issue x, y, and z, and they'll be like, I have no idea what that means, and I'm highly skeptical that you will be able to explain it coherently. And I love that because I take it as a challenge. And I'm like, I am gonna sell it to you. I'm gonna make you understand what is going on here. Even though when I first described it, you thought there was no chance you ever could. So I try to have, like, my editor or the the average reader, the average slate reader in mind, and I also try to turn the case into a story. To to the degree that I can, I think if you go back and look at a lot of my articles about supreme court cases, the opening paragraph, will be about a person, not even directly about the case. In the case of this Home Depot versus Jackson cases, about Mister Jackson, who was allegedly wronged by Home Depot, who was scammed into buying this water system that he did not need. And, unfortunately, then pushed into this debt that he did not deserve and then preyed upon by debtors. And that's a very human story. That's a story that a lot of people can relate to. It's not intimidating if you start an article, and it's about classic story of somebody getting scammed. And so I I try to make readers dip their toes into the water. Here's the story. Here is the human conflict at the heart of this case. And once you start to empathize with the person at the heart of the case or once you start to think about this as a story. I I think you let your guard down a little bit and you're not as hesitant to try to exert a little more effort to understand what a cross claim is if you've never taken civil procedure. And so as much as I can turn a case into a story about a human being, I will. And as much as I can center that person and their flights rather than getting into all of this complicated side stuff that can too easily turn into legalese, I will. Because I think readers are always really happy to follow a narrative and follow a story and get to that conclusion that they're naturally curious about from the start.

Jonah Perlin [00:20:47]:

Yeah. I think that's particularly there's this movement in the legal writing community that I'm a small part of about legal storytelling and actually centering the parties and telling a story in lots of legal documents where they were often not centered. Anne Ralph, who's a professor at Ohio State, wrote a whole article about how complaints are exercises and storytelling. and it sounds to me like you also are doing that work in terms of making it accessible.

Mark Joseph Stern [00:21:11]:

That is my hope. When it works out well, that's the goal. Sometimes it can be very difficult. And I like I said, never impossible. Sometimes it can be very difficult to find that human drama. especially when we're talking about appellate litigation where sometimes the facts in question happened, like, 10 years ago, and it it all is, like, in the midst of the past. We we want to revive that drama and find that spark so that readers feel like they have a of interest in it. There's something at stake here. And and like I said, they they wanna read through to the conclusion to satisfy that curiosity.

Jonah Perlin [00:21:45]:

So I've had several students, and I have some great colleague who were journalists before they became lawyers. And it sounds to me like one of your jobs is bringing that journalistic mindset and approach and audience to writing. Are there moments where it is really important that you had a JD and traditional legal training to do your job? Yes.

Mark Joseph Stern [00:22:05]:

However, when young people say I want to become a journal lawyer, as I call it, should I go to law school? I always tell them no unless you happen to be secret loaded because I cannot in good conscience tell someone to take on $200,000 of debt if their end goal is to go into a profession where the starting salary may be tragically paltry. Now look, SLAIT is a unionized workplace. I was thrilled to be on the organizing committee and the bargaining committee. We have made huge strides toward pay equity. Not all of the media is, like, a a terrible underpaying scourge, but it can be very difficult to find solid, well paying, reliable job -- Mhmm. -- in this business and you don't have the option of selling out for a couple years and working at big law to sell your soul and make 6 figures right off the bat if your goal is just to do journalism. So I I always tell people it's not worth it. But at the same time, I'm really glad that I did it, which I understand is paradoxical, but I'm glad I did it. because I feel like law school was such an enriching experience for me and gave me such a deeper understanding of these issues And even if I didn't necessarily dive deep into a particular issue like the class action fairness act -- Mhmm. -- it gave me the tools to interpret and digest those kinds of complex legal issues. And those tools are sometimes, I think, the most important things you walk away law school with. So I am glad I I went to law school, and I learned so much about such a wide array of legal areas, and I think it makes my writing better, not just because of the substance of what I learned, like I said, but because it taught me a a different approach to the law and to legal writing. I think it gave me a lot of great connections. There are professors with whom I've stayed in touch. It helped me better under stand how professors communicate with each other, although my dad is a law professor, so I did have a start there. But I I think I I would not be where I am today, were it not for my JD.

Jonah Perlin [00:24:13]:

And do you think that's sort of a problem that there's this great disconnect between how much it costs to go to law school and how hard it is to become a a legal journalist? Are we losing something as a result of that, or can non legal trained journalists handle the mantle?

Mark Joseph Stern [00:24:20]:

Non legal trained journalists can handle the mantle. There are great journalists out there who do not have JDs who write brilliantly about the law. However, I do think that's really difficult to pull off, and I do think it's unfortunate that you cannot gain that professional expertise. You cannot become a trained lawyer without taking on such such an immense amount of debt. In the old days, they're used to be a 1 year program at some places. I believe Harvard or Yale for people who wanted to write about the law but didn't wanna take on all of the debt and and time and energy and resources of law degree. And that's what Linda Greenhouse did, one one of the greatest legal journalists of all times. She's not a lawyer. She does teach law at Gail Law School. Right. But she took this 1 year course that gave her the tools that she needed without weighing her down with all of the extraneous knowledge about, like, Erie, for instance, which I still retain for some reason and cannot manage to purge from my mind.

Jonah Perlin [00:25:17]:

I think everyone who goes to law school has no choice but to let it sit at the front brain even when you don't need it. So so can you talk a little bit? I mean, most of the listeners that listen to this podcast, I hope, are lawyers and law students and people who aspire to be lawyers. Can you tell me a little bit about the day in the life of a journalist? And what you do when you wake up every morning?

Mark Joseph Stern [00:25:47]:

I have such a great life. I have to tell you. I I'm I'm not to not to brag too much. But I get to pursue my intellectual curiosities with very few limits. It's such a joy to be able to cast a really wide net. and look at all of the legal disputes before me and pluck out the ones that interest me the most that I want to write about the most. I can't imagine a better job. I I just think it's the best. And so a day in the life for me is often waking up, taking the dog on a walk, having my coffee, and figuring out what decision from a court, maybe the Supreme Court or an appeals court or a state Supreme Court, what new lawsuits, what executive order or bill -- Mhmm. -- once a year when Congress actually passes something that that poses a legal question that I can write about. and I just get to tackle it, and I get to use all of the tools I described before to master this subject as best I can in a few hours and explain it to others in a way that nonlawyers will understand. And, generally, just because of my interests, I gravitate more civil rights stuff, civil liberties stuff, LGBTQ equality, women's equality, racial justice. But I'm also really interested in some wonky stuff. I like I do I do have a bit of a passion for civil procedure, just a little. It is -- Despite your joke about Erie. Right? Despite my joke about Erie. I think we all agree it can be a fun puzzle to put together from time to time. I'm really interested in jurisdictional questions that may that make conceal deeper substantive disagreements. I was just reading this cert petition to the Supreme Court that's like it's an eerie question. It's all jurisdictional, but it's about whether these cities in California can sue these fossil fuel companies in state court, or whether it has to be removed to federal court -- Mhmm. -- and and litigated under some federal common law that doesn't actually really exist. And that's really important and really interesting. But If you didn't take Syspro, it's gonna be pretty hard to wrap your head around what is going on here, and I am able to usually, hopefully, wrap my head around it. And even if I don't write about it immediately, put it in my pocket and and bring it out at some future point, And today, I was just looking at this Washington Supreme Court decision in validating mandatory life without parole for offenders who were 18 or 19 at the time of their their crime and thinking this court has issued a lot of really great decisions. recently. Maybe I'll do some kind of piece that that looks at a handful of them and tries to draw some kind of conclusions. about where this court is going, about what this means for the future -- The possibilities are endless. I use which path to follow, and it's always a lot of fun.

Jonah Perlin [00:28:38]:

And one of the things that strikes me just by your answer is how much you have to consume in order to create? And I guess my question is, how do you consume media? How do you choose what media consume? How do you find all these cases? Are all are they all reader tips, or do you have some secret Twitter feed that you've put together, what's your strategy there?

Mark Joseph Stern [00:28:56]:

So definitely a big part of it is Twitter. And if you are interested in getting a really broad cross section of decisions and lawsuits across both state and federal judiciary is I think it's really important to figure out who to follow on Twitter, how to cultivate a good sort of follow list because Twitter can be a top success pool lots of terrible people on Twitter. There's nothing to stop them from telling you that you're the worst person in the world every second of every day, and you've gotta be aware of that. But Twitter can also be such a wonderful resource for picking the brain of this random like trial attorney in Kansas who's got this really crucial case before a trial court, before a judge I've never heard of who -- Mhmm. -- might DM me and say, hey. You should look at this. This is important. I always appreciate those tips, and I do get a fair number of tips. And, of course, I I have to say no to most tips. They don't have time to cover everything. But -- Right. -- I always say, I really appreciate this. Perhaps I'll come back to it. I try to follow people who cover their own state Supreme courts. Even though local journalism is still dying, unfortunately, there are people who are committed to covering their state supreme courts, and I always follow them. And I always try to give credit when I write about them. This is something that's really important because I absorbed so much knowledge that has been amplified by others, I try really hard to say as first supported by or as explained by or John Doe noted on Twitter or whatever, the people deserve the credit for fishing out those important decisions and amplify them. And so I I also just I'm an avid consumer of judicial opinions to such a degree that I think there's something wrong with my brain. I I I don't know why, but I'm just at my happiest when I'm reading a judicial opinion. And it can be any kind of opinion. I love reading all of them. I devour them, and I do read pretty quickly. And, also, in part because of my law school training, I'm able to figure out which parts of the opinion are really important. So if there's a big 4th Circuit decision on some media issue like the 2nd amendment. I know that I can skim past the 30 pages on standing. That's just so much spilled ink because that's not really what this is about, and I'm gonna go get to that substantive section and focus on that. And putting all of this together, I spend a lot of time scrolling on Twitter. Some of it is wasted time that I regret, but I would say a majority of it is really useful for hunting down and finding these opinions and lawsuits and and other legal documents and absorbing them and figuring out how or whether I want to work with them and try to bring them to a broader audience.

Jonah Perlin [00:31:33]:

Yeah. And that too, right, is a product of journalism that you probably wouldn't have been able to do or at least wouldn't have been able to do in the same way even 10 or 20 years ago and certainly longer than that. That said, is it a challenge? One of the things that I dislike so much about what the law does is we put behind these walls. the decisions that are supposed to be of the people. That could come in the form of Pacer, the federal way that opinions are given out. Is is that ever a problem for you? The ability to simply just access opinions to read.

Mark Joseph Stern [00:31:50]:

So this is a problem near and dear to my heart as expressed in my current Twitter bio, which I believe says, do you have a link to the ruling? I do see that. I I have launched a kind of informal, but very vigorous campaign to get everybody who has access to any kind of legal documents and is talking about them or writing about them to upload them to some kind of public websites and provide a link to everybody. These are not copyrighted documents. Right? The supreme court's work is not copyrighted. They should be available to all. But Most judiciaries don't care that much about transparency. They don't care that much about making these opinions widely available, and some of them may actually like that Noddle whole lot of people are reading their work. They think it might tamp down potential controversies. The same goes with lawsuits, a lot of lawsuits. You'll read a brief Reuters bulletin that says so and so lawsuit was filed on x or y, but there's no link to the lawsuit. If you wanna figure out exactly what it says, You might have to reach out to an attorney on the case and be like, please send me a PDF of this because otherwise, you don't even know the case number to go to Pacer pay the exorbitant fee just to find it. Right. So I think this is like a a collective solution that we all need to be a part of. We all as people interested in the law and people interested in transparency and greater public understanding of the law, we all have an obligation when we see these legal documents, these primary source documents to upload them and provide a link for everybody else. My preferred public link is Document Cloud, they work with media outlets. If if you're listening at home and you work with with the media outlet, I urge you to create a document cloud account, but there are other places like described that I don't like their format as much, but it gets the job done. You can just download the the opinion, upload it, and then tweet out a link and everyone can read it. And I'll tell you, if I do that, if I'm the first person to tweet out a public link to some really big district court decisions say, you will see tens of thousands of people clicked on it in Reddit because you see the metrics there. And that just shows you how much interest there is among the general public in putting their own eyeballs on the page of these opinions and not just taking other people's words for it.

Jonah Perlin [00:34:09]:

And I think great it's a as you said, it's a problem that we all have we lawyers have to help fix. We, as advocates in our own court systems, have to fix, and it's so important. I do wanna get back to your personal But I wanna follow-up on one thing you just said, which is you can see the clicks. I'm curious about how the role of analytics and actually seeing the comments and discussing with your followers, people who like you and people who might not like you so much, how that plays into your writing and your career.

Mark Joseph Stern [00:34:52]:

Slate like pretty much all digital media outlets does track to the nth degree. Who is reading our work and and how long they are reading it and how many unique visitors are reading everything page. We have all of that, and it's available to every writer. So I can go open it up and look whenever I want. I know that some people spend a lot of time looking at their metrics, I try not to because I don't think that's the only measure of success for a story. I might write a piece that is really aimed at a relatively narrow audience. The number of people who care about the EEOC's general counsel is pretty small. That's not a huge universe, but I'm interested in it. I think it's an important issue. And so I'm willing to write that piece knowing that it's not gonna do gangbusters traffic. I think the most important match when you're looking at your own stories is not clicks, but average time engaged. And this is something that we measure. We can see the average reader has spent, say, 1 minute 55 seconds on this article. And that is so important because if I write a really long piece about a really important ruling and the average time on the page is less than a minute. I know I did something wrong. I know that I did not translate this clearly enough or grabs the reader quickly enough or introduce the narrative swiftly enough to win over their attention, to earn their attention, really. And I do use that metric to help, I think, correct my own work in the future. I I I work hard keep readers engaged, not just because it's what advertisers wanna see or whatever, but because it's what's important to me. Now with regard to feedback, I don't read the comments that are written on the page at Slates, and that's just a personal policy that I've had for a very long time, and it has served me quite well. But I do, of course, look on Twitter. Mhmm. Slate tweets out every article I write. I tweet out most article I write. I don't always remember to do it, but I'm interested in feedback and engagement, and I'm interested in critiques. And I do take good faith critiques to heart, and I'm I I try to sometimes respond to people who say, hey. I I think that this is wrong or I think you may have missed something here or I I disagree strongly here. Some people are just troll. Some people are just bad faith actors who are trying to get in your head. and make it impossible for you to do your job. You have to filter those people out. But there are a lot of people who are genuinely as interested in this stuff as you are and want to help you do better work And I try to find those people and really highlight their voices because it's important that not everybody is just patting you on the back and saying good job. It's important for people to engage with your work and point out potential weak spots and and help you do better next time.

Jonah Perlin [00:37:33]:

So you've said that your coverage of a specific Kansas religious freedom law in 2014 was kind of an important moment in your career. Can you talk a little bit about that event and how it's shaped you today?

Mark Joseph Stern [00:37:39]:

Yeah. So I guess this all seems quaint now in the days of super turbocharged religious liberty exemptions. But back in in 24 18, it was a relatively controversial and novel idea that states would allow people to discriminate against LGBTQ residents in all walks of life. There was this rash of legislation being introduced, and it seemed like each bill was pushing further and further towards more open legalized discrimination. And this Kansas bill, I remember vividly. I was just I think, scrolling through Twitter, and there is this great local Kansas reporter who tweeted that this bill had been introduced. And I I don't remember this specifics, but maybe it had already been approved by a committee or it had been fast tracked. It wasn't just a random crazy legislator who had introduced a crazy bill because that does happen. and it's important not to just amplify those bills because they exist. This was a bill that had a real chance for success, but it hadn't garnered any kind of national media attention. So I at this point, I guess I had been in law school for about a year. So I was pretty good at reading legislation, and I should say that's one of the most important skills you learn in law school, just how to read legislation. because if you have never had any training in that and you open up a bill, you're gonna be like, what is this? Why does it start with five pages of definitions for things that it hasn't even mentioned yet. Right?

Jonah Perlin [00:39:01]:

Right. Or you skip ahead and didn't read the definitions and your view of the bill is totally wrong.

Mark Joseph Stern [00:39:10]:

Yeah. Do you understand? So I was like, okay. I'm gonna read this, and I'm gonna figure out if this is accurate because it sounds pretty extreme. And then I read it and I was this is actually more extreme than the Kansas reporter was suggesting. Not that that reporter hadn't done good work, but that there were so many accepts that it it sounded as if, say, an ambulance driver could refuse to take a a same sex parent to the hospital because he opposes same sex marriage same sex parenting that people who work for the government in really basic essential services could refuse to to serve or process the paperwork for LGBTQ people. It could say, oh, you're trans, so I'm not gonna, like, do your property tax and I tried to explain all of that in a clear way that was not super alarming. I think I did call it an abomination in the headline, but mostly focused on the facts so that you could read this piece in a couple minutes and then you could walk away really grasping the basics and understanding what the threat was. And that was my first piece that just really blew up and really, as we say, went viral, although we don't say that anymore because of COVID, but we said it at the time. Right. And it it it started a a national conversation about this bill and ended up, I think, contributing to the defeat of this bill. The the state house, I don't remember if one chamber or both chambers did end up taking a vote, but the bill ended up going down. And I think it dissuaded a lot of other legislators in neighboring states from from introducing or passing similar legislation, I think it did help to draw a line in the sand. Okay. Maybe we're going to say we want wedding vendors to be able to discriminate, but we're not gonna go so far as ambulance drivers and civil servants and employees of the governments. And I I thought that was an important moment for me because I saw the impact of my work in such a powerful way. I'm not taking loan credit for this just to be clear. I think I was one voice of many voices, but I do think I was one of the earlier voices helped to ring the alarm about this. And today, this bill is not law in Kansas in some part because I really figured out early that it was a huge threat and something I needed to focus on and and explain to a broader audience.

Jonah Perlin [00:41:28]:

Wow. Yeah. I I I guess the other curiosity I have is how do you how do you do this and how do you do it so quickly? One of the things I am amazed at by journalists is just generally how they can put out such quality work, but on such tight deadlines. Are there any tricks that we only mortal lawyers can learn from sort of deadline journalistic writing?

Mark Joseph Stern [00:41:49]:

I think that the most important two words in the English language are good enough There is so much perfectionism in the legal profession, and I totally understand why and where it's coming from. And look, it can be stressful to think, like, I better get this exactly right because hundreds of thousands of people are gonna read it and judge me on it. I will say sometimes hundreds of thousands of people will read an article of mine before anyone notices a typo So don't worry. Don't people are not always paying that close attention. But it is stressful, and you do wanna get right, but you have to balance that desire against the interests of timeliness and the interests of really getting out what you have to say while the moment is right. Timing can be everything in this business, and getting a piece out that's pretty good that explains a really huge big important splashy new lawsuits in an hour can be just better in every way than getting a perfect sistine chapel level piece out -- Mhmm. -- on the same topic 5 hours later. So you have to make that kind of bargain with yourself. You have to do the balancing in your head where you say, I get that I could keep perfecting this or I get that I could keep writing and make this longer. I get that I could expand on these different issues, but I have it in a good place here. I'm satisfied with it, and I've decided that it is good enough. In terms of general speed, this is a skill that I think you just pick up and you develop. Reading legal opinions as a so well is a skill You get better at it as you go. Writing about legal opinions is very similarly a skill, and something that I think you do become more proficient in as you go and you figure out where you can cut the fat. Like I said, you can figure out which sections you might skim or skip because they aren't that important. And over the course of many years in my case of doing this job, you get to a place where, yeah, when a supreme court decision comes down, that's really important. I can have a piece out in less than an hour, and I'm proud of that. Even if it's not the single best piece that's gonna be written about this decision, You got it out early. You helped to shape the narrative. Right? Your voice became one of the most important in the discussion about this. And that may be really more important and more influential than having every single piece of prose in that piece be spot on and, like, Emily Dickinson level poetic. 

Jonah Perlin [00:44:10]:

And for the students listening, what what I loved from that answer also is you talk about quantity over quality. Right? If you do it enough times, and you've seen enough, it just does get faster. I think that's true for legal writing, and it sounds like it's true for the writing you do as well.

Mark Joseph Stern [00:44:33]:

Oh, absolutely. I I'm such a big fan of learning by example and learning by doing because it's the only way that I learn. Like, I I could sit here and try to master some really complicated legal opinion that just came down from an appeal court without writing a word for 8 hours and get nowhere, or I could sit here with my computer and go back and forth with the opinion and try to write about it and try to assess it out and get somewhere pretty quickly because I'm doing, I'm working. And, similarly, over the span of years, over the arc of my career, I think, just by relentlessly writing about opinions and reading opinions and doing this over and over again just by putting words on the page even if I end up deleting a lot of them. I'm able to say what I want to say and and do it quickly enough that it still matters and makes an impact. So your first drafts are not the same as your ultimate drafts. Is that accurate to say? that is generally accurate. Of course, if I'm getting something out in less than an hour then -- Sure. -- you know, the it's probably gonna be mostly a first draft. But No. I often write paragraphs upon paragraphs that I then totally just delete and never think about again. But those were useful. for me because those helped me explain really to myself what was going on here. And I I pride myself on being, like, an easy edit. I really rarely fight with editors because when an editor cuts 4 paragraphs from a peace of mind, I don't see that as a wasted time on my part. I don't see that as a great tragedy because those paragraphs helped me wrap my arms around what was going on here. They helped me understand what was happening. And if the piece is better without them, that's fine. I was able to make the rest of the piece stronger because of these paragraphs that I wrote that ended up not really being necessary.

Jonah Perlin [00:46:09]:

It's what I always tell my students, right, writing is thinking. And so if you sit there just thinking without actually putting words on a page, you're doing yourself a disservice.

Mark Joseph Stern [00:46:20]:

Exactly. And that's what I was trying to get at earlier. If you sit around and try to think through an opinion for 8 hours, you're not gonna get very far. But if you write it out and you write the explanation as you see it and you put the words on a page, you will get somewhere.

Jonah Perlin [00:46:34]:

Mhmm. And is that different? I know you recently published a book, which is a very different genre, very different project than a sort of 1 hour coverage of the Supreme Court. Can you talk a little bit about how you are able to change into that very different long form genre?

Mark Joseph Stern [00:46:50]:

Yeah. I loved writing the book because in a way, it was a little bit more of a luxurious process. When I'm writing for slate, I try to be very mindful of how many words I've written, and there's never really a hard limit online. It's not like we have limited numbers of pixels that you can, you know, put on that put on the screen. But I try to keep it under 1500 words and ideally lower than that. I think if you can get a piece around, like, 1200 words that's about a really important opinion, that's terrific. I think sometimes the shorter, the better. If you can get 800 really good words on the page, you might just wanna call it quits because that's that that may be the best version of the piece there is. and the other thousand words you were gonna write turn out to be extraneous. So with a book, you get to take a step back and you get to luxury it a little bit more on your ideas and you get to think through and follow your ideas to their logical consequences. You get to dip deeper into the background. So often, what my editors cut that I have written is like a deep exploration precedent. In 1907, Oliver Wendell Holmes began the debate by writing yada yada yada, you know, going through a night editor is like, nope. this does not matter. And in a book, that does matter because presumably someone who's willing to shell out the money or go to the library and pick up this book, is interested in getting a a more global view of the issues and interested in diving more deeply into them than the average reader who sees a link on, you know, Google News or whatever -- Mhmm. -- and clicks through to slate.com. And so for writing the book, I gave myself more leeway to follow through on these ideas that I have to take my arguments a few steps farther, to dive deeper into background, and to try to make an affirmative statement or draw an affirmative conclusion about each issue I tackled. For instance, and state and the lemon test. I'm I always wanna talk about the demise of the lemon test and all of my church data articles and my editors are like, why does it matter if it doesn't exist anymore. And I'm like, exactly. Why doesn't it exist anymore? In a book, you get to actually say, a hey. Here's what's happening. That's been quietly swayed while the court pretends otherwise, and here's how it started, and here's, you you know, how it started, how it's going. Exactly, Raveen. Yes. And that is a lot of fun, and I think can be a more intellectually engaging project in some ways than focusing more on the present and exactly what's happening now and getting through your argument with the the bare number of words necessary to get there. 

Jonah Perlin [00:49:21]:

through your argument with the the bare number of words necessary to get there. Yeah. It sounds like you really focus on your audience and who your audience is, and when the audience change changes the writing changes. Absolutely. So I have 2 quick last questions. The first one is you do a lot of legal reading, right, in order to be a legal journalist. You do a lot of legal reading. I guess my question is who are some of your favorite legal writers? and that could be journalists, judges, lawyers.

Mark Joseph Stern [00:49:45]:

Oh my god. So many. Okay. So I love I have to say Leah Littmann and Steve Latic, who I count as friends, so I'm biased here. But I I just think they're so brilliant. Melissa Murray, who co hosts a podcast with Leah strict scrutiny, which I highly recommend. Melissa is is is a brilliant writer. I I I have to give a shout out to my dad here, Nat Stern, who is a lot professor, and we've authored a few Laraview articles together. I I just think he's a terrific writer. He's able to condense sprawling complex ideas into very easily digestible articles, and I think he's helped light the way for me in that respect and others. In terms of judges and lawyers so look. Elena Kagan is one of the best legal writers that there is. And when I think that, generally, when law students on the left, wanna figure out how to write, they read Elena Cagan opinions, and I think that's correct. But there are a lot of lower court judges who are also brilliant writers. So I am thinking about judge Jill Pryor on the 11th Circuit. Judge Rosenbaum also on the 11th Circuit to women who are just terrific writers who write in a really accessible way who are always looking beyond this opinion and this limited audience to try to reach out and develop a broader audience so that more people are engaged in these issues. I think Josh Block of the ACLU writes terrific brief According to the the great movie, The Fight, which he was in, he, like, dictates them, which I think is wild. I could never do that. But I think that's so fascinating because they come out great and that pollocently clear. She was unfortunately recently voted out of office, but former chief justice Beasley on the North Carolina Supreme Court. It was really is I think a role model in terms of judicial writing and especially in her last few years on the court courageously tackled very fraught issues of racial justice with such eloquence was able to thread the needle. I I think she should be emulated far and wide because if more people wrote like her, this would be a better profession.

Jonah Perlin [00:51:53]:

Amazing. Thank you. I guess my last question then is the one I always ask, which is if you had one piece of advice for either graduating law students or young lawyers, that you either received and really appreciate it or that you like to give, what would that advice be?

Mark Joseph Stern [00:52:13]:

I guess this is really simple, and I guess this might be a little too simplistic even. But don't sell your soul. It's never worth it. It really isn't. You can't put a price on that. And once you've sold it, it's gone. And I understand that people face really difficult financial hardships and and other conditions that make it very tempting and tantalizing. to sell out even for just a few years, but that's not why you went to law school. And you're not gonna wanna look back on your legal career in 10 or 20 or 30 years and think that's it started.

Jonah Perlin [00:52:46]:

Again, that was Mark Joseph Stern, staff writer covering the law for slate magazine. You can find Mark's work at slate.com or on Twitter at mjs_dc. Although Mark does not practice law in a traditional sense, what I enjoyed most about our conversation was the way in which Mark legal training overlaps with his work as a professional journalist, especially the importance of audience, the benefits of learning by doing, the ability to remember that law is not just some distant set of rules, but is instead a real force that affects our daily lives. As always, if you enjoyed the episode, I hope you'll consider subscribing at how iloyer.com or wherever you get your podcasts. And if you have comments or ideas, I hope you'll reach out to me at howilawyer@gmail.com. or at Jonah Perlin on Twitter. Thanks again to Mark. Thanks for listening, and have a great week.