One L (27 page)

On the afternoon I'd spoken with Mike Wald about grades, I'd asked him if there really was any justification for all of it.

“A lot of people will tell you,” Mike said, “even a lot of professors, that grades are essentially for employers. The alumni give quite a bit of money to this law school, and most of them are members of the firms which interview here. They want to have some way of believing they're making meaningful distinctions between applicants. They see somebody for what—a twenty minute interview? They know they need something else to go on. If a firm does a lot of real estate law, then maybe they can pick between two people because one had a B-plus in Property and the other one had a B-minus. It's all crazy,” Mike said, “but I can tell you that the firms are the ones that really scream when the faculty talks about pass/fail.”

I looked at Mike a second.

“That's commerce,” I said, “not education. That's just product packaging.”

“Some would say,” Mike told me. He smiled first, then he shrugged.

In recounting the February commotion surrounding grades and future membership on Law Review, it is well to note that at about the same time some interesting changes were taking place among those students already over at Gannett House. Late in February, the Review announced that Susan Estrich, a 2L, had been appointed president. It was the first time in the eighty-nine-year history of the Review that a woman had occupied the position, essentially that of editor in chief.

It had been a good year for minorities and the Law Review. Earlier, Christopher Edley, another 2L, had become the first black member since the late 1940s. Considering the Review's standing as one of the legal world's great points of arrival, both developments went to underline the gains being made by minorities at Harvard Law School and in the law world at large.

In the America of a decade or fifteen years ago, it is all but certain that many members of my class would not have been there. In the recent past, however, there has been an astonishing rise in the enrollment of women and racial minorities in American law schools. There are three times more black and Spanish-surnamed law students in U.S. law schools than in 1969, and the growth in female enrollment has been a kind of social miracle—an 1100 percent increase in the past twelve years. Nearly a quarter of American law students are now women. In my class at Harvard ten percent of the members were black, three percent Latin, twenty-one percent female. As the year had worn on, I had watched with some interest to see how those working their way up from the short end of the stick were doing around HLS. The answer, in brief, was very well.

Racial relations at Harvard Law School are probably better than in any setting in which I've found myself for many years. Even compared to the hip racial scene in the Bay Area, HLS seemed remarkable for its lack of tension. There are black and Latin student organizations at Harvard Law School, and my minority classmates were active in dealing with the special problems that faced them. Yet there was little of the effort I'd seen around other universities by blacks and Latins to keep themselves icily separate. We all felt free to be together without strain or self-consciousness. That was probably a product of the outgoingness of HLS's minority students, who are as gregarious as the rest of us, and also of the fact that few people enrolled at Harvard Law School, no matter what the barriers of the past, can think of themselves, in relative terms, as deprived.

Which is not to say that everything is gravy for those students. In the entrenched legal world, there continues to be significant discrimination in hiring and, after that, in promotion. Most employers, the great majority, are anxious to find good minority lawyers, but there are still large corporate firms which are exclusively white and where the absence of black and Latin and Asian lawyers is excused for a variety of reasons, including the prejudices of clients who must be served. This year the interviewer from one large all-white Chicago firm allegedly explained to a black 2L that the firm was just being outbid by competitors who “have their quotas too.” That remark, and others, led the 2L to file a complaint with the placement office, where the law school has instituted a program to end hiring discrimination. Each interviewing firm is required to submit data on the number of its minority partners and associates, and the law school has promised to exclude any employers shown to be biased.

Some black students also complain of a quiet prejudice within the law school itself. Minority candidates are admitted with grades, and especially LSAT scores, sometimes lower than those of their white classmates. While the LSAT has been shown to be a far less effective measure of a minority student's likely law school success, the discrepancy, combined with the failure of minority students to get the consistently high grades required for Law Review, has sometimes fed insinuations that minority students at HLS are not as capable as their white peers. Yet even conservative faculty members like Perini have given up any skepticism about the ability of minority students to thrive at HLS. “Blacks and women have achieved parity in the law school,” he told us the day we had lunch with him. “There was a period at the start, when the admissions push began, when you would find the lowest grades going to minority students, but there's very little of that now.”

Despite the good spirit of his remarks, Perini was one of the few professors who seemed actually self-conscious in his dealings with blacks and Latins and women. He was inevitably softer in his interrogation of all of them, and he'd had an especially hard time bringing himself to call on females. It was December before he asked a woman to state the case, and that was only after rumblings about his failure had been heard in the Women's Law Association, the female students' organization.

That women would complain of something like that—unequal footing on grounds stalked by terror—is indicative of the relentless feminist spirit abroad at HLS. WLA is active in recruiting female applicants as well as in encouraging the hiring of more female faculty (at the moment, four women teach at Harvard Law). On the whole, women probably insist on their rights more aggressively than any other minority group at HLS, but that may well be because they have more to complain about.

The law has always been one of the most overtly sexist professions around. Courts and law firms have long been known for a concerted old-boy atmosphere, like that of an English gentlemen's club, and women still encounter significant resistance to any role for them in law, when they seek jobs and clerkships. Nor has the war been fully won within the law school itself, even among fellow students. Some men are self-conscious in dealing with women on an equal footing—“I keep wanting to say, ‘Now in response to the remark of the little filly in the first row,' ” Ned Cauley told a group of us one day, “but I know that just
wouldn't
go over”—and others seem to cling to old patterns of response with no self-consciousness at all. Karen Sondergard said she quit one study group because she felt her opinions were ignored solely because she was a woman. And another classmate bluntly told me, “I'm glad to have all these women here. Just gonna make our degrees that much more valuable when they're all at home raising babies.”

The degree to which women traditionally have been excluded in the law world is illustrated by the fact that Harvard Law School did not admit women until 1950, long after male minority group members of all shades and religions had been welcomed on campus. Even after the sudden jump in female enrollment of recent years, many WLA members continue to believe that it is lower at HLS than it should be. Another Boston area law school, at Northeastern University, now admits an entering class each year that is half female, and WLA has encouraged the Harvard admissions office to follow suit. At present the law school has a more conservative policy, following a program of what they call “sex-blind” admissions, which means that applicants are evaluated without reference to gender. In recent years the percentage of women in each entering class has correlated closely with the percentage of females in the applicant pool.

The long-standing prejudice against women among the male legal establishment may well be due to the competitive nature of the law as a profession. In the courtroom, there are always victor and vanquished, and a gentleman is not supposed to feel at ease engaging in combat with a lady.

At moments during the year, it sometimes appeared to me that my female classmates were not themselves entirely comfortable with the open aggression that law and law school demanded. In class, they tended to be retiring. Clarissa and Myra Katchen both spoke up often, but the rest of the twenty or so women only rarely volunteered. Moreover, if I could believe Gina, many of the women were sometimes even more uncomfortable than the men when they were called on.

“I know how this sounds,” she told me once, “but a lot of the women say the same thing. When I get called on, I really think about rape. It's sudden. You're exposed. You can't move. You can't say no. And there's this man who's in control, telling you exactly what to do. Maybe that's melodramatic,” she said, “but for me, a lot of the stuff in class shows up all kinds of male/female power relations that I've sort of been training myself to resent.”

The general reticence of women about the aggressions of law school life and the legal world is probably a current handicap. It may even account for the fact that women, like the racial minorities, have tended to be underrepresented on the Law Review. But the more conscious I became of the problems endemic to the law school and the law, the more I saw that aversion to aggression as one of the great assets women bring to the legal universe. By custom the law world has been rigidly patriarchal. Many of the psychological articles I read about law school accounted for the harshness of relations between professors and students by relating them to the stereotypic Freudian struggle between fathers and sons. A powerful figure parades before a group that always before has been made up primarily of young men. The older male flexes his muscles, assails the young ones, demonstrates his control over them, while they grow both eager to imitate him and increasingly resentful. In a way, those patterns of envy and subjugation are repeated throughout the legal world, with the old men always standing on the shoulders of the young ones. Law Review members do cite-checks for professors' articles; clerks write opinions to which judges put their names; law firm associates slave over the most tedious aspects of the partners' cases. It all continues until one day you suddenly are a professor, a judge, or a partner—doing what was done to you.

The reluctance of the women in the law school about participating in these traditional and often unjust relationships was to me one of the happiest portents I saw all year. We are moving toward a time when today's numerous female law students will be female lawyers, and a prominent force in the legal world. It is to be hoped that they will bring with them sensitivities to the uses of power, of the kind which Gina described. If they do, they can make the legal world a fairer one, a place less distorted by some of the hard things men alone have tended to do to each other in the past.

3/13/76 (Saturday)

The Ames competition finally came to a conclusion for Terry and me on Thursday night, when we gave our oral argument. As usual I approached the event with trepidation. Terry was determined to stick to his half-assed theory about defamation and fault, and I couldn't imagine what the judges were going to do to him. In addition, there were complications now on my end of the case. Last week, the U.S. Supreme Court handed down another opinion relating to the First Amendment issue in
Gantry
v.
Wilson
. The Court had redefined “public figure” again, and from what I'd heard, the new formulation would all but exclude the minister. It sounded like disaster for us, kind of a bitter pill after all the work.

Had this been a genuine appellate argument, the court would have rescheduled it to allow my opponent and me to familiarize ourselves with the new case. BSA was not that generous, and so I spent much of Wednesday slogging through the opinion. I wanted to be prepared. I didn't care that much about winning or losing, I told myself, but I had no wish to leave the room feeling as faltering, careless, and inarticulate as I had after the Methods motion in the fall. I drew up a long outline of what I wanted to say.