Episode 74: Deborah R. Hensler
Stanford Law School Legal Professor and Co-founder of the Law and Policy Laboratory
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For the first time, the podcast features a trailblazing guest who, despite having had a major impact on law and policy globally, does not have a law degree. Join your host MC Sungaila as she dives deep into a conversation with Deborah R. Hensler, Ph.D., the Judge John W. Ford Professor of Dispute Resolution at Stanford Law School, and former inaugural chair of the RAND Institute for Civil Justice. Professor Hensler discusses her pathbreaking research and policy work on asbestos litigation and class actions, and describes her unique approach top identifying and addressing emerging issues and global trends in the law.
Deborah R. Hensler
Deborah R. Hensler is the Judge John W. Ford Professor of Dispute Resolution and Associate De for Graduate Studies Emerita at Stanford Law School, where she teaches courses on complex and transnational litigation, the legal profession, and empirical research methods. She co-founded the Law and Policy Laboratory at the law school with Prof. Paul Brest (emeritus). She is a member of RAND Institute Civil Justice Board of Overseers and the Berkeley Law Civil Justice Initiative Advis Board. From 2000-2005 she was the director of the Stanford Center on Conflict and Negotiation.
Prof. Hensler has written extensively on mass claims and class actions and is the lead author of Class Actions in Context: How Economics, Politics and Culture Shape Collective Litigation (2001) and Class Action Dilemmas: Pursuing Public Goals for Private Gain (2000) and the co-editor of Tl Globalization of Class Actions (2009). Prof. Hensler has taught classes on comparative class actic and empirical research methods at the University of Melbourne (Australia) and Catolica Universidc (Lisboa) and held a personal chair in Empirical Legal Studies on Mass Claims at Tilburg Universit) (Netherlands) from 2011-2017. In 2014 she was awarded an honorary doctorate in law by Leupha University (Germany). Prior to joining the Stanford faculty, Prof. Hensler was Director of the RANC Institute for Civil Justice (ICJ). She is a member of the American Academy of Arts & Sciences and American Academy of Political and Social Sciences. Prof. Hensler received her A.B. in political science summa cum laude from Hunter College and her Ph.D. in political science from the Massachusetts Institute of Technology.
In this episode is one of my favorite people in the whole world, Professor Deborah Hensler from Stanford Law School, and also previously from RAND, still serving on the advisory board there. Professor Hensler, welcome to the show.
I'm glad to be here.
You have such an interesting mind and way of thinking about problems that are not purely academic, a bridge between how things are coming to fruition in the real world in litigation, internationally and nationally, and then your scholarship. It’s unique to you in terms of how you look at those problems, but it's very helpful to practitioners as well as academics. You've had many different roles and many firsts as a woman in those roles. First, I wanted to ask you, before we get into all of that, how is it that you decided to go to law school and get into the law business to begin with?
That's a good place to start because I thought this was something you knew about me, but maybe you didn't. I have never gone to law school. I am not a lawyer and I am not law trained.
That is completely unbelievable.
There are many stories, some I could share, when other people have discovered that. I will share that I was proposed for an award. I won an award some years ago in an area that I've researched and written a lot about. I was later told by one of the members of the nominating committee for that award that there was a big argument on the committee as to whether I was a lawyer. There were some members on the committee who knew that I'm not a lawyer and others were disbelieving.
The short story is in high school, I had become very interested in politics. I came from a medical family where my dad wanted all his daughters to become physicians. My older sister is a physician, but at some point, I learned enough so that I understood that many people in politics, particularly in congress and my aspiration was to be a US Senator, then many people were lawyers. I thought, “What I need to do is go to law school and become a lawyer,” but there was no one in my family that was a role model for the law except my sister, who I'm very close to had a very close friend who was in law school. I went to her for advice.
The advice I received was that I should do my undergraduate degree in Political Science. I went to college in New York City at a time when it was still all women and I majored in Political Science. This is a theme for my story about careers, which is so much as serendipity. In the very first year, I had a Political Science professor who was new at the college. His background was that he did empirical research, particularly research focused on people's political attitudes, essentially based on what most people would think of as political polls. These were academically designed.
It was a revelation to me that you could do research in which you would ask people about their experiences and their attitudes with regard to government and what they wished the government would do and not do. It was very unusual for the college at the time to require his class to participate in that kind of research, go out and do interviews. Some of the young women were very taken aback by this idea. This was New York City in the early ‘60s. Girls came from protective households. The moms and dads didn’t want them going out, ringing doorbells and asking people questions.
We did that. I learned from him how to turn that kind of information called data into the basis for analysis. Now they're incredibly primitive means of analyzing data, but at the time, they were state-of-the-art. I learned how to do this analysis. Ultimately, I even co-authored an article with this college professor.
This was exciting to me. At the same time, my sister's friend, who can continue to be my mentor with regard to law school, was describing what she was doing at law school. It sounded incredibly dull to me. Amusingly, given how much research I have done on tort litigation, what I thought it sounded dull, as she was taking this thing called tort law. It sounded about failing to change the concept of injury and loss, etc.
I decided I didn't want to go to law school. It sounded very boring. I got old enough to realize I was unlikely to become a US Senator, but on the other hand, I could go and get a PhD in Political Science and learn more about how to do research with my focus. How people relate to government has remained my focus. I went to MIT because the idea of doing empirical research was still quite new in Political Science. MIT had a program that focused on that and interestingly focused on policy research, although I didn't realize that at the time. Serendipitously, I got a degree in Political Science, but I got a lot of training in doing policy analysis.
Without taking all the time it would take to describe my personal trajectory, I met my husband in graduate school. We moved together to Los Angeles. He was teaching in the Political Science Department at UCLA and is part of a story about women and women's careers. UCLA had a very bad record with regard to appointing women to tenure-line professors and had a nepotism rule, which as translated, almost always meant that they would recruit a male, and then let's say they couldn't hire a female partner because that would be nepotism.
I couldn't even be considered by the Poli-Sci department if they had wanted to. It wasn't at all clear that they would have wanted to. I had a research position, which they were allowed to hire me for a few years and then the RAND corporation recruited me as a methodologist because I knew how to do empirical research. There was no law program at RAND at the time, but there was criminal justice program. I had never done research on criminal justice. That was quite well-established. I had been at RAND for about six years and had built the capability at RAND at their request to do large-scale data collection, essentially, some surveys for public policy projects.
I was being a methodologist, not a political scientist. I was the senior person. They had never hired somebody to do this before. After doing this for 5 or 6 years, I was in my early to mid-30s at the time, I was sensible enough to know that at that stage of your life, you don't want to be the senior person in your organization because how are you going to learn more? I was thinking about, “How could I move on?” It was complicated. We have children. We were a two-career family.
Through my husband, I initially made some contacts with RAND and someone had hired me as a consultant on a project. At this point in time, serendipitously, RAND Corporation made a decision that they needed to build a capacity in that methodological area. Having done that, six years later or so, I was thinking that I need to move on. RAND announced that it was starting this new program called the Institute For Social Justice, which is the program you know, and you were the chair of the board essentially. That this program would do research on the civil side of the courts focusing ironically from my perspective on tort litigation that I thought was good.
I literally walked into the office of the then number two person at RAND who was heading up this effort and who had recruited me to this other position. I said, “I have a degree in Political Science. I'm not doing that now. I'm doing all this methodological support. I'm a political scientist. Surely I know something that would be helpful about courts.” Since it was a new program and was funded with contributions from the private sector, which was very unusual at RAND, there weren’t many people who wanted to join the program. There was a small group of us.
There were five of us and I was the only woman. I was also at that time one of the few senior women at RAND, one of the few women with a PhD. When I joined RAND, there was only one other woman with a PhD in that 1,000 person corporation. Five hundred of those were researchers and you needed a PhD to take any leading role.
I was part of this group. You could tell this as a story that says, “Risk-taking is good.” I wasn't aware of this at the time. No one had scoped out this area. No one owned it. Other areas in the institution were owned mainly by men and often by RAND at that time and domestic policy by economists. I was a political scientist. I wasn't an economist. I had different kinds of training and I was a female, but here was virgin territory.
That's what I was thinking even in the beginning when you said, “Most of the work that RAND was criminal justice-oriented at the time and it might not have been a great fit in that regard,” but that meant that you stood out from all of that. You had a different set of skills. When this direction opened up, you were positioned for that and there weren't people who had owned an area for a long time. It was open for exploring.
My specific set of skills, which at the time were in short supply at RAND because I was brought in to bring those to that capability and the fact that there was this new program, so you weren't coming up against people who had very set ideas about what should be done. The third factor, which you and I both discussed at other ABA sessions, is mentoring. The man who was the second in command, who I don't think you ever met, was Gus Schubert.
He brought the Institute for Civil Justice to RAND. It was his brainchild. He was dedicated to it. He had been the person who had recruited me for this other role. We knew each other. He was my mentor at RAND who supported me and ultimately appointed me as research director and then as director. He had retired by the time I left RAND, but he was still active.
I became a part of the Institute for Civil Justice, a founding group. I helped shape the agenda. Some of the things about my identity that you've discussed with me are a product of the fact that we made a point of doing lots of talking to stakeholders and eventually also as director of the institute. I took on responsibility for fundraising.
I needed to meet, get to know and listen to people who had various perspectives on the civil justice system. Not all of which I shared, but which I understood, I needed to understand. Not just to help my program be successful but also to do research that might have some chance of affecting policy because policy analysts do not make policy. At best, it can help shape it.
Some find law school incredibly challenging and love learning how to become a super legal analyst, but others feel that what they’re learning is very removed from the real world.
In that process of doing research, needing people and talking, I engaged a lot with the legal academic community. I understood one of the things that it took a very long time for other RAND analysts to understand. When it comes to legal policy, when you're talking about private law, private civil litigation, public enforcement of securities law, etc., legal academics have a very significant role in shaping policy because legal scholarship is used in part as a basis for judicial opinions. I was in contact with people in the law school community locally. I can remember people from UCLA and USC. I'm not sure who it was who pointed this out to me, that if we wanted RAND's research in this area to have any influence, we knew that we had to publish for a larger audience.
The law clerks and the advocates wouldn't be searching there, although later we did. My first experience with RAND was your work and your reports through RAND on various tough issues involving complex aggregate litigation, asbestos and things like that. Being known for that, you're right, most people would need to put it somewhere where it's easier and we're where they are. They are on Westlaw. We need to put it there.
I was encouraged by people I had got to know to write law review articles. I was invited to academic legal symposia. Many of my colleagues are an economist who did a fair number of write for the academic economist community and had little interest in writing for law reviews, not peer-reviewed. They looked down on them. I was learning from people at these conferences. You know Professor Francis McGovern from Duke University School, who died in an accident several years ago. He had a major influence on the development of aggregate procedures and court management of mass litigation.
I met him early in the beginning to conduct research on asbestos litigation. He very generously provided legal advice. I used to cite him frequently in my law review articles and for a memorial symposium for which I contributed a piece. I realized that we were going back and forth citing each other during the evolution of mass torts. The question was whether the class actions could be used to resolve mass tort, the role of multi-district litigation, all of these issues that you're very familiar with as a lawyer who has worked in the area of complex litigation.
I had become engaged with this community, I was in touch with some of the people who have had a major influence on it. Ken Feinberg is another one of those people. I wrote for a British publication a brief review of the Netflix movie Worth, which describes the 9/11 compensation program and Feinberg's role in it.
I learned so much from those people that I was always very enthusiastic about being involved with the legal academic community, which set me apart somewhat from my other RAND colleagues. At some point in that story, Professor Judith Resnik, who was then at USC, who I had got to know, I remember quite clearly, she and I were having lunch together and she said, “Why don't you come and teach with me at USC?”
I said, “I'm not a lawyer.” She said, “That doesn't matter because we'll teach a class on mass torts. We'll co-teach it, and together we know different things. We'll teach a great course.” She proposed that to the vending and they thought it was a good idea. They invited me to teach with her as an adjunct while I was at RAND. Ultimately, even after Professor Resnik left with her husband for Yale, I stayed on at USC and regularly taught different classes for different years. I accidentally became a law professor.
I was thinking, “I can't imagine doing this without a Law degree.” To me, that explains how you attack problems from different perspectives and why you have this much more multi-disciplinary approach to looking at problems and figuring out how to solve them. I'm trying to think of like a good example of how you bring the different pieces, threads and perspectives together.
The one that comes to mind immediately is the conference that you did with RAND and the law school. You brought all of these different stakeholders internationally, judges from different countries, lawyers from different countries on both plaintiffs and defense counsel looking at aggregate and class litigation using the VW Litigation as an example.
To work through and talk through problems in a confidential Chatham House Rules way, but from that principals came and a lot of cross discussion was had between people grappling with the same issues on different sides of the V and litigation, but also grappling with them in different judicial systems around the world.
Having those forums or discussions itself helps problem-solving and shaping the answers to tough questions. It might be, for example, that these particular judges who are grappling with the same issues around the world might not otherwise have an opportunity to talk to each other about how they look at the issues and how they handle them. It's a unique ecumenical way of looking at problems.
It's interesting that you use the term ecumenical, and I understand why you use it. It stems from my training and personal comfort level in doing policy research, which is distinguished from many academic forms of academic narrative research. Policy risk search starts with real questions and real problems. Often, for an organization like the RAND Corporation, which is supported by doing contract and grant-based research, people and organizations come to RAND saying, “There is this problem.
We think women would be helpful to know this and that.” They don't come saying, “There's this economic theory that says this is how markets should be regulated,” or there is a political doctrine that says, “This is how tort compensation should be allocated. They come instead saying, “We think there's too much uncertainty. What will be the outcome of tort liability claims?”
We think there is too much litigation and there ought to be more use of other dispute resolution procedures. Often, what we said when I was at RAND was the sponsor's research or the clients, didn't ask the right questions. They would come with a problem and they say, “RAND needs to do X.” We would try and understand the problem from their perspective but also from others' perspectives.
Sometimes we would say, “We can do research that will try and ask this question that you're asking us to answer, but in order to advance policy in this area, there are these 2 or 3 other questions that need to be answered.” Taking that mindset to what has now become my legal academic career is almost as long as my policy analysis career, much to my surprise.
I teach classes in a similar fashion. You know this because you've appeared as a guest in my class. Starting with my US-centric complex litigation seminar and now my global litigation seminar, I always invite people to one or more plaintiff's attorneys or attorneys who are representing defendants. I taught a seminar a couple of years ago on opioid litigation. I not only had the leading defense attorney for Johnsons & Johnsons, I had who was representing the Sacklers. I had Ken Feinberg, who was talking about the use of bankruptcy court.
I had one of the leads from the New York state AGs office because, in that litigation, the state AGs played an extremely important role. Each of those practitioners, sometimes I also invite federal and state judges, has a different perspective on whatever the problem is that we're thinking about, which could be class actions or other forms of aggregate litigation.
In a vanilla course using traditional casework, you wouldn't hear all those voices. The students would be reading appellate court decisions, US Supreme Court decisions, and federal circuit decisions, which sometimes would speak to those issues, but often wouldn't. As you know, as an appellate litigator who has experience at the trial court level, appellate justices don't understand what is going on at the trial court level. I was exchanging emails with a seasoned arbitrator about one of the recent decisions the US supreme court handed down regarding arbitration. I said, “I think that part of the opinion that he was highlighting reflects what I've often thought, which is the Supreme Court justices don't understand how arbitration works.”
He and I agreed that we couldn't think of any supreme court justice who had ever represented a party in arbitration or arbitrated. If one realizes wholly on court opinions as so much of legal education does, you're missing so much about the realities of the system. What you appreciate about my work and other practitioners who have become good friends is that I'm interested in what you guys are doing. Since I don't have a Law degree, I don't bring a deep understanding of substantive legal doctrine in a lot of areas, but in the areas I teach, I learned so much from people who were actually doing the litigation and therefore making law.
That's what I bring to my students. There was a period, at the moment, multi-district litigation is very high profile and has been the subject of a lot of debate and a lot of conferences. It was authorized by statute in 1968. Through the ‘80s, most law professors had never heard of it. They didn't write or teach about it. I can remember, I don't think this would be true now, but certainly years ago, I would have students write to me excitedly about this summer law firm job and say, “I was the only one in the office who knew what an MDL is.”
Now I'm teaching about the increasing importance of the international dimension of civil litigation with cases arising out of the same facts, like cases arising out of VW that are going on in parallel in other courts. They're not the traditional international commercial dispute that is largely dealt with in arbitration.
They're domestic law disputes, but they involve the same multinational defendant. As you and I have discussed, often, the plaintiff's attorneys from different countries are coordinating, sharing information and strategies, and we saw some of that at a roundtable at Stanford that you participated in. I was talking with the most Australian judge. He happened to mention that one of the big litigations before in his court, his roundup litigation. He said, “There's the Monsanto litigation.”
I hadn't thought about it. I know it's everywhere in the US.
I led a policy lab at Stanford on climate change litigation. NGOs in that space are coordinating and sharing ideas about how to use litigation, not even necessary to achieve an outcome in court because these cases are novel. They ask courts to do things that many jurisdictions, including the US judges feel are beyond the court's purview and therefore not just to shovel, but the cases attract a lot of attention and they can be used to help build a social movement that might ultimately support more effective litigation to limit and the stop climate change. That's global. I'm fascinated by it.
Moving on is challenging but also kind of wakes you up, if you will.
Your curiosity and listening to people, like you picked up on certain things when you're talking, “What do you mean by that? What do you mean by roundup litigation?” You’re following the curiosity that leads to connecting all of these dots. In many circumstances, the studies in academia and in the law generally come from interesting legal theory questions that are unresolved in the cases, but that's many years on from what is happening in real-time in terms of putting together cases to begin with, trends in those cases. By the time you got conflicting appellate decisions that people would be discussing, that would be well down the line.
Listening to people and putting together all of these things on the front end, which is your unique skill or talent from your policy work and research, is what lends to the sweet spot of addressing and talking about issues or trends before they've come out in a full-blown way in the case law. You're ahead of the curve, which allows people to have some analysis or ammunition to deal with the problems as they're happening.
It's helpful in that regard. I'm quite certain that it is helpful for students. From your interaction with young lawyers and your own experience, particularly in the first year of training, which is very regimented, many law students and some find it incredibly challenging and they love learning how to become a super legal analyst. Others feel that what they're learning is very removed from the real world and they find it quite frustrating because many come to law school with the thought that they will impact the real world in one way or another.
They're finding it very distant from that. It's hard to stay engaged.
Many students do appreciate my classes because I expose them more without teaching a class that is labeled as issues in X, Y, or Z. I might identify and highlight what the key issues are and often, those are also the issues that people are still debating. Due to my research, I know some of the people who were significant participants in that debate. I can connect them with the students. All of which kept me teaching at Stanford far longer than I ever thought that I would.
You're talking about Southern California, USC co-teaching with Resnik and then doing that on your own. How did you get to Stanford Law School?
I was the director of the ICJ. Professor Resnik had left USC and I had been asked basically to continue teaching the course she and I had developed together then also because of my research in dispute resolution happened, at that point in time that USC did not have anybody who was a so-called dispute resolution expert. They do now, but it was a particular point in time. I was teaching regularly, but as an adjunct visiting what drawer and also, because I was trying to write, protecting some of my time away from my RAND administrative responsibilities by spending time in my USC Law School office. I loved my colleagues there. It was a wonderful collegial faculty. I was continuing to be invited to give lectures.
A group of people at Stanford knew me and my work because every year or so, I would come up there, visit and give a talk. Stanford donated money to create a new chair in dispute resolution. What law schools generally do in that situation, they did a national search. I had published a lot of journal articles. Remember that I published in law reviews come up in Westlaw and Lexis. There were some people there who did know me.
One day literally, I got a phone call that said, “Would you ever consider coming to Stanford? We're interested in considering you for this chair.” At that point in time, our two children were both grown and out of the house, that reason that couples or parents frequently have. My husband had turned himself back into a techie. He had always been an engineer and political science was a diversion for him. He was working with a hot company in Silicon Valley, and they had him commute fairly frequently.
You would be up there and it would be easier for him too.
We could do this. We liked Los Angeles. It wasn't that we were pushing to leave Once USC realized that Stanford was recruiting me, the dean invited me into his office at some point and said, “We didn't know that you might be interested in becoming a full-time law professor, and we'd be happy to have you do that here.” That was tempting as well. It was tempting to make a move and I always loved Northern California. I liked Redwoods and at that time. It seemed like there was more green water here.
As a Stanford grad, I can't say there's anything wrong with your choice whatsoever. It's an incredibly beautiful campus and amazing collegiality.
It was the right timing. I did, at the time, think professionally. I was in my late 50s or so. I thought it would be a nice way to cap off my career. I still thought of myself as basically a policy analyst who had this little side as a part-time law professor. I was like, “This will be interesting.” I'm close to retirement age and then I'll retire, but here I am still. I came to Stanford in 1998. I have been at Stanford for almost the same number of years I was at RAND. I have essentially had two equally long careers. I've been able to keep my hand in the public policy world by being on the RAND advisory board and researching.
Stanford is an absolutely wonderful place to be. I love my colleagues and my students. Over time, when I came to Stanford, I was struck by the fact that the student body was less diverse than it was beginning to become at USC. I was looking out at steemed faces, almost half women, but almost all White. Now our law student body is much more diverse, although it should still be more diverse or faculty is more diverse and we're working to diversify it. The university is also working to diversify the faculty. The students are almost universally a pleasure to deal with. They're so smart. Most of them realize that they've now gotten to this point where certainly, after they survive the first quarter, they begin to feel confident.
At Stanford, there's a culture of not being cutthroat and competitive and building community. In this policy lab that I ran on climate change litigation, it was a pleasure to see the students working together. This project was partly framed to advise RAND on what research they might do on climate change. The product was a White paper for RAND and the students were sitting and writing the paper together. There was one night when because I wanted the product to be good, I was reviewing the product and in real-time, they were modifying it and putting in notes. I assume you do this now in your practice. They were putting in marginal notes saying, “Could you say more year. You need a site there.” It was such a pleasure working with them. I'm not ready to retire yet
That's funny that you're like, “This is a nice little cap off to the career.” Both the students on the work are invigorating. It was a good thing that you made the move because it keeps you challenged and engaged.
I've taught a few friends over the years who had opportunities to make a fairly significant career shift and are not sure whether to do it, then it's very generative because even in the best of careers that a very good organization where you're happy in that organization, after a while, certain things begin to chase and maybe aren't challenging as much anymore. Moving on is challenging but also wakes you up.
If it's too much the same and you're not growing anymore in different ways, then you're just not going to be as engaged or excited about stuff, but if you're challenged, which you are when you have to go somewhere new and exercise some new muscles as it were, then it's going to reinvigorate you. Think what a great combination your experience with RAND together like as a bridge between policy analysis and legal analysis. That's an important role to play and a link between the practical and what's going on in the real world and the academic world.
That is essential to keep it fresh and keep all of that academic work. It’s immediately helpful for those who are grappling with problems that are going on. It’s such a sweet spot when you describe your trajectory and how you brought different things to each place. I think that there are such great lessons in the RAND move in terms of you being unique and some people might say, “You're going somewhere where you have a different specialty or knowledge than anyone else.”
There are some limits that if you're the most senior person in that area, but maybe there are other ways to grow. Because of that uniqueness, you got a neat opportunity with ICJ when it was created. It's almost the same thing with Stanford in terms of you having this unique skillset, that connection with the law and you knew to publish in law reviews so that when they were looking, they would see your work as well. Sometimes people won't take the kind of risks that you'll take or that you take opportunities and see where they'll go and how you can grow from them. There's good teaching from that.
One of your interests in these shows is focusing on women. It would be a whole other conversation to talk about the ways in which, as a woman, I have faced challenges. I’m thinking about what you said about risk-taking, which is interesting to me because, in my personal life, I don't work on myself at all as a risk-taker. I'm quite a conservative person. I got my confidence in life self, which was what we're talking about fundamentally. I suspect with regard to all the women. from at least two sources, I’m 1 of 3 daughters and with no brothers and my father, although I never regarded of him this particularly farsighted or what have you
He was very proud of his daughters and he wanted us all to be physicians. My older sister, fortunately for the rest of us, satisfied that desire for him very successfully. He was disappointed in me, but fundamentally he was always sending signals that we were smart. Whatever we wanted to achieve, we would achieve. I know there's research that shows for many women, at least my generation who have succeeded in careers, that it was a dad and most story that was supportive of his daughters
For me, too, in retrospect, it's when you see or hear stories where that wasn't true that you realize, “Girl or boy child are treated the same in that regard in terms of you can do whatever you set your mind to. Here are some ideas, but you do what is fulfilling to you.” There's no sense of limits. When that comes, particularly from both parents, but from the father as well, it makes a huge difference.
The second thing, which is still in my mind, a part of the story, although many people no longer agree with this, is I went to a public high school in New York City that was one of the so-called special schools that you had to take an exam to get into. It was all girls. Its official description was that it was a high school for intellectually talented young women. The culture of the school was that you are all special. The critique these days is we were all mostly White.
As you get older, you begin to experience a different kind of implicit bias.
We were not on welfare. It was very much a middle class. I had a friend who was Chinese-American from a very poor community in Chinatown but was not very ethnically and certainly racially diverse. It was quite diverse with regard to class. We were all constantly being told implicitly, mostly that we could achieve whatever we wanted to achieve because there were no male students. We played all the roles that are played in high schools with associations, editors of magazines and those kinds of things.
It was very special for many of us because we weren't smart girls. In our previous schools, we had been made to feel that something was wrong with us because we liked to read, did well on tests, or were odd. When I got to that school, it was like you could breathe a huge sigh of relief that you can be yourself, which was something that was valued.
Over the years, it's interesting to me that schools still exist. It's now co-ed and I have fewer of these experiences, but I would be in situations in different parts of the US for a long time. I would be talking to a woman who had an interesting career. I would say something like, “That's interesting what you're doing? How did you become this?” These were not all warriors. They were people in different fields. The person I was talking to would give me this look and would say, “I went to this very special school.”
I'm now in touch with many of these women again because of Facebook, and sometimes we share our memories of school. The strongest memory is that for us as young women at the time. It was this signal experience of being valued for what we were or what we could do. We obviously had different strengths and talents. As you were saying and I agreed with regard to the role of dads, we were all being given the support that we could make choices and achieve whatever our choices were. There was a certain amount of unreality to that because no one told us, “You're going to be discriminated against. You'll be the only woman.”
The reality is there are a lot more challenges to it, but you need to have that internal drive and confidence on how you instill that, finding whatever keys there are to instilling that because especially if you're going to encounter all of the other stuff outside, you have to be strong within yourself to persevere in that circumstance.
I had these two advantages that, even though I wouldn't have realized it at the time, it didn't give them the amount of confidence to say, “Maybe this won't work out, but let's give it a try.”
We can talk a bit about some of the challenges you encounter once you're out of those nurturing environments with the family and the school there. What kind of advice do you have for those times that have changed a little bit, but still in terms of navigating either corporate life or careers?
It's reluctant to give advice, in part because I'm an older generation and I made certain choices in a role only minute in certain contexts. I was never in a high-powered private corporate context. RAND is a nonprofit corporation. Particularly, at the time I joined RAND, this is less true nowadays. It modeled itself very much along the lines of the University Academic Research Institute.
There was less attention to logging hours and worrying about productivity. I was not under those kinds of pressure,s then I had the advantage when I enjoined the academia of joining at a senior level. When Stanford first started talking with me, there were different ways. They put the structure of this chair. I was very clear unless we're talking about a tenure position, not on your track. I was too old, in my view.
Why would you leave where you were if you have that?
I didn't have the experience that a young female faculty still have. I'm engaged at the university with a fair amount of those university activities. I'm about to become the vice chair of the faculty. I’m part of discussions about supporting women and faculty of underrepresented minorities. Women clearly still are at a disadvantage. In fact, I had a conversation with the theory senior is a very strong, assertive woman at Stanford who surprised me by talking about her experiences of being at meetings where she would say something and then several minutes later, some male person would say essentially the same thing. There's probably no woman in a professional career, at least that I know, who has not had that experience.
Occasionally, I still have that experience, but it is true, as you get older, you begin to experience a different kind of implicit bias, which is you're over the hill. Fortunately, at Stanford, there are too many high-profile faculty, Nobel laureates, etc., or older, so there's recognition. There’s still a lot of that. It's hard to know what advice when, unfortunately, we still need to talk about very explicit sexual harassment. Women and men who experienced the same kind of harassment need to overcome their concern that we're reporting it and resisting it will harm their careers because it extends and prolongs that kind of bad behavior.
Women who are at earlier stages of their careers can't take on every slide. This is where our discussion about having confidence in yourself comes in. If you have that confidence, you may think that what is going on is not over-the-line harassment, but is just garden-variety, gender bias, you may feel, “I don't have to explicitly call out every one of those behaviors because look at what I'm doing. I need to make sure that other people are aware of what I'm doing. I need to make myself speak up in meetings, even if I'm shy.” I do tell my students that.
Many of us noticed when we were teaching entirely online, on Zoom, for the last years that we had more female participation, that our female students seem to be more comfortable using the Zoom chat, seeing any research on it, but I have had many conversations about it. I thought I perceived that. Zoom, at least for smaller classes, made me more aware of my habits in terms of calling on people. I was much better at not calling on the same person
I would see four people raise their hands and then I would say, “MC first, Carl, Jane, then Sam.” I think it was less likely to call on the guy because he was in my face raising his hand. Occasionally, I do think something happened in a meeting that involved me that I thought reflected bias. Sometimes I feel like, “I'm too old to take this on.” Other times I make myself do that not necessarily for me but because I think it's important to be a role model for other women.
I don’t know what lessons there are in that, except I do think it's helpful for older women who have been successful. Unfortunately, there are now many more in the law firm community than when you first work beyond the associate and there are many more women in legal academia or were not at parody before coming close. Those of us who are ahead, which means we're older, have a responsibility to look out for what's happening to our junior colleagues and say, “I heard Sarah making that same point that half hour ago.”
Numbers matter. Having one person around the table helps some, but it's hard. Having two people is different. I was thinking because some decision had been handed down about what the dynamics may be at the supreme court. We now have three women. We're about to have four women on the court. I remember Justice Ginsburg was once asked, “What would be the right number of women on the court?” She said, “I take it without missing a beat, nine.” We're not at nine, but I bet the dynamics are different, even though those women will come with very different philosophical and ideological perspectives. That's good for the court and people who argue before it, and it's good for their clerks.
I know in the context of boards, there's been studies on that. It’s like 1 or 2 is not enough, but 3 can be a tipping point in terms of changing the necessary direction, but it definitely has more of an impact when you have that number. Having 3 is one thing, but having 4 out of 9 will be something altogether different and maybe a different tipping point.
The other thing I think that I'm more aware of that I would not have been aware of years ago is the fact that although I think women in law, as well as in other areas, share certain experiences and challenges, women of color share yet a different set of challenges and that it's all too easy for White women to think that our experiences are going to be the same experiences or haven't been the same experiences of women of color. They carry a heavier and different burden because they're not just running themselves but put in the position of representing women in the law.
We saw this, unfortunately, with the hearings on Justice Jackson. I thought it was quite clear she was being treated differently from Judge Barrett during the court hearing. Some of that was ideological partisan, but some of it was implicit or explicit biases in her case against Black women. The message in all that is we need more diverse people, different genders and different sexual orientations. We need more attention to people who are differently abled and may have different challenges, for example, in practicing the law and people of color. The world is a challenging place to be, but it's exciting.
You continue to stay on the cutting edge of things intellectually but still being engaged, for example, at Stanford, with the faculty senate and being involved in some of these ongoing issues regarding diversity and important things to be involved in. It's good that you're there to lend your voice for that and to advocate for what you believe in and what you think is valuable for the academic community. You're an important voice in all of that.
I like what you said in terms of thinking about others if you're in a position to do something because the example you gave, which happens quite often that a woman shares an idea in a meeting and then five minutes later, a man will say something similar and then that's adopted as somehow the germination of that idea to have someone else that out as opposed to being the person who had the idea to say, “I said that first.”
That doesn't come across too well. When you're in a position to stand up and say, “That is interesting. It certainly does echo, you know what Pam said a few minutes ago,” to make sure that people are getting the credit and ideas are being engaged in recognized is important. Those are small ways to do that, but important ones. Something that someone wouldn't be right or perceived the same way if the person did it for themselves in that setting, having somebody else acknowledge it and see it is important.
Thank you so much for sharing even stuff I had no idea about in terms of your background and how amazing your career has been, how you navigated and move between different environments and different disciplines. It's amazing. Thank you so much for joining and talking about that. I usually ask a few lightning-round questions for the end to tie it all up. Which talent would you most like to have but don't?
I would like to be an artist.
A painter?
I love art and I'm always struck by the fact that I have absolutely no ability to create.
Art needs appreciators. It's a good thing you're in the world. Who are some of your favorite writers?
I'm a great Jane Austen fan. I go to her often when things seem bad. I love a British novelist named Penelope Lively, who has written a series of wonderful novels over the years. Most of them for grounding women and their relationships. Also interestingly, given some of the things I've said in this show highlighting the role of chance in everybody's life, sometimes producing sad outcomes and sometimes producing happy outcomes.
I like to read mysteries. I also have some favorite mystery writers. Andrea Camilleri, who unfortunately is now dead, wrote wonderfully about this Sicilian detective. I love the ways that many mysteries are stories about different societies can give you a fun window into a different society. When I was younger, I loved Hemingway and some of the great American authors, Faulkner and Saul Bellow. There were not so many female authors at the time.
It's interesting what you were saying about mysteries being about a society or a certain point in time. I thought that's a commonality with Jane Austen to some degree too. Given the choice of anyone in the world, who would you invite as a dinner guest or, if it's more than one person, a dinner party?
My children. They fascinate me. They have done fascinating things with their lives and I would love to have more opportunities to sit and chat with them about what they're doing, why they're doing it and what they think they might do in the future. I think they're far more interesting than many names that when might take from the news.
It is a good reminder to take those opportunities when you have them, to have those discussions when you're together. It's neat for you to say that, that you're like, “I'm feeling really like my children.” That's good to know. The last question is, what is your motto if you have one or something that encapsulates your approach to life?
Considering that in the last few years, I've had some health challenges, my motto, which is what I say when people ask me how I'm doing, is, “I'm still here.”
You're way more than that, but that's a good accomplishment given everything that's going on. You remain dynamic and very interesting. As you said about your children, I think you are a very interesting person as well. I appreciate your taking the time to have this discussion and to join the show. I always enjoy my time talking with you. I always come away with new perspectives and ideas. Now is no different. I very much appreciate it.
Thank you very much. It was great fun so talking with you. Someday, maybe I'll turn the tables on you and ask you about you and your career.
It would be fun. I would love any conversation with you.
Thank you so much. Take care.