One L (3 page)

9/3/75 (near midnight)

Tried tonight to read a case for the first time. It is harder than hell.

When I started, I thought the Legal Methods assignment would be easy. The memo from the boss was straightforward. A man named Jack Katz is “our firm's” client. Katz, who had worked for years as the comptroller of a company that makes raincoats, was fired a few months ago by the president of the corporation. His name is Elliot Grueman and he is the son of the man, now dead, who hired Katz ages ago. Grueman and Katz differed about expansion plans for the company; when Katz carried his objections to a member of the board of directors, Grueman showed Katz the door.

The memo from the boss indicates that Katz probably doesn't have a leg to stand on. It looks like Grueman had every right to fire him since Katz did not have an employment contract. But still, the boss says, read this New Hampshire case,
Monge
v.
Beege Rubber Company
, which may indicate some limitations in an employer's right to discharge a worker.

OK. It was nine o'clock when I started reading. The case is four pages long and at 10:35 I finally finished. It was something like stirring concrete with my eyelashes. I had no idea what half the words meant. I must have opened
Black's Law Dictionary
twenty-five times and I still can't understand many of the definitions. There are notations and numbers throughout the case whose purpose baffles me. And even now I'm not crystal-clear on what the court finally decided to do.

Even worse, Henley asked us to try our hand at briefing the case—that is, preparing a short digest of the facts, issues and reasoning essential to the court in making its decision. Briefing, I'm told, is important. All first-year students do it so they can organize the information in a case, and the various student guide books make it sound easy. But I have no idea of what a good brief looks like or even where to start. What in the hell are “the facts,” for instance? The case goes on for a solid page giving all the details about how this woman, Olga Monge, was fired primarily because she would not go out on a date with her foreman. Obviously, I'm not supposed to include all of that, but I'm not sure what to pick, how abstract I'm supposed to be, and whether I should include items like her hourly wage. Is a brief supposed to sound casual or formal? Does it make any difference how a brief sounds? Should I include the reasoning of the judge who dissented, as well? Is this why students hate the case-study method?

Twenty minutes ago, I threw up my hands and quit.

I feel overheated and a little bit nervous. I wouldn't be quite so upset if I weren't going to be reading cases every day and if understanding them weren't so important. Cases are the law, in large part. That fact came as news to me when David explained it this summer. I had always thought that the legislature makes all the rules and that judges merely interpret what has been said. I'm not sure where I got that idea, either in high school civics or, more likely, from TV.

Anyway, that is not right. When the legislature speaks, the judge obeys. But most of the time, nobody has spoken to the point, and the judge decides the law on his own, looking to what other judges have done in similar circumstances. Following precedent, that's called. Much of what lawyers do in court, apparently, is to try to convince judges that the present situation is more like one precedent than another.

This system of judges making law case by case is called the “common law.” I am a little embarrassed that I did not understand what that meant when I applied to law school, particularly since the first page of the HLS catalog says that the law school prepares lawyers to practice “wherever the common law prevails.”

Well, tonight the common law has prevailed over me, beaten me back. I suppose it will not be the last time, but I feel frustrated and disturbed.

I am going to sleep.

 

The Methods class the next morning made me feel more at ease. We met in a small group of twenty-five and Henley's teaching manner was casual. He first handed out a sample brief of the
Monge
case. It resembled the brief I had done only in that both were written on paper, but I felt some comfort in knowing that I now had a model to work from. Then he slowly led us through the case itself, unpacking the mystery of many of the details which had so confused me the night before.

Henley explained that there are fifty-one independent court systems in the country, those of each of the states and that of the federal government. Most of the systems, however, are constructed the same way, with three levels of ascending authority. On the first level are the trial courts, where a judge or a jury initially decides each dispute. Above there are the appeals courts, composed only of judges, where all losers by right can seek review of the trial record and reversal of the trial decision. Finally, on the highest level in both the state and the federal systems, are supreme courts in which selective review is made of appellate decisions. Typically, a supreme court will hear only cases of broad significance or ones in which the law on point is especially murky.

Henley told us that almost every appellate and supreme court decision made in the United States, whether in state or federal courts, is published, and he showed us the various shorthand citations used to indicate where each case can be found in the endless series of report volumes issued by the states and by private publishers. By the time Henley had finished those explanations, and had gone briefly over the
Monge
opinion itself, he had made things clear enough for me to feel some real pleasure in recognizing how much order had followed on what had previously seemed befuddling and complex.

And yet the experience of having been so confounded the night before had a definite effect on me. The first year of law school was no longer something I'd heard tales about and was trying to imagine. I knew for myself now how frustrated, how sheerly incapable of doing what I was supposed to, I was liable to feel. I tried to take it with good humor but that realization also touched me with the first genuine wisps of fear.

At one o'clock, the Methods group met with our BSA advisor, Peter Geocaris, to hear his suggestions on what we should expect in the next few days. Peter attempted to lay things out fairly, advantages and drawbacks, and in light of my experience the night before, I tried to pay some attention to his occasional warnings. Regarding classmates, for instance, he reminded us of our mutual talents and the amount we could learn from each other. But he also described the peer pressures which would soon develop, to perform well in class, and the race which he said would begin in each section to make the Law Review.

Among our teachers, too, Peter indicated that we would find both dark spots and bright. The overall quality of teaching was high, Peter said, but certain individuals were more agreeable than others. On the more positive side seemed to be Nicky Morris.

“He's thirty-one and he's easygoing,” Peter said, “and he is very, very smart.” Morris, Geocaris told us, had graduated from the Harvard Law School when he was twenty-three years old. He had been first in his class, president of the Law Review, and had attained the highest academic average since Felix Frankfurter was a law student. After that, he had been a clerk to one of the justices of the U.S. Supreme Court for a year, then counsel to United Farm Workers, before he'd begun teaching. “Nobody has ever called him a slow learner,” Peter added.

About our Torts professor, William Zechman, Peter knew almost nothing, except that he was returning to teaching after a long absence. But Peter had had a class the year before with our Criminal Law teacher, Bertram Mann, and he was not enthusiastic. Mann was the former United States Attorney for the Southern District of New York. He was well-informed, Peter said, yet often confusing in class.

But the direst warning of all was reserved for Perini.

“He's a great teacher,” Peter told us, “but not an easy one. When I was a 1L, the first person he called on was a national champion debater and Perini had him on his back in forty seconds.”

Always be prepared for that class, Geocaris advised. Know what every word in a case means; and if your study has been shoddy, don't bother to show up: it would be a long time before you forgot the humiliation of being caught unready.

The lecture on the library which we heard next was full of the same mixture of good news and bad omens. The librarian nimbly described where the important books were located and when and why we would want to use them—the sets of state laws, the volumes of case reports, the treatises and encyclopedias and journals, the gargantuan indices which could help you sort your way through all of that. If you knew what you were doing in the library, you could solve the most complex legal problems in the world. But it was plain in listening that that kind of skill would not be developed merely by taking the walking tours of the stacks which the librarian suggested or doing the reading on legal research. You would have to go up there and work with the stuff, fail, get frustrated, try again.

I was willing to do it. I was determined to do it. By the end of the day, that had become my reaction to all of the signs of hard things ahead—a new purposefulness, hardy resolve. Everything I'd encountered so far—the law, my classmates, the great pace of discovery—had left me in deep thrall and I was bent on making sure that continued. I would have the best of it, I decided, whatever the obstacles.

Over the weekend, I studied hard. I did not want to feel again the helpless ignorance of the other night. I outlined carefully the chapters of text assigned in both Criminal Law and Contracts, then I went over the two cases Perini had given us, a number of times. I did scrupulous briefs for both cases, each word weighed, every angle considered. I rehearsed what I would say if called on. I paged through the law dictionary until I had virtually memorized the definition of every term important in the opinions. I was going to be ready for Perini,
totally
prepared.

I was too absorbed to notice that I had already been lured onto enemy ground.

Learning to Love the Law

9/8/75 (Monday)

Just a note before I leave for school.

Today is the start of regular classes. We will now commence “normal” law school life. The 2Ls and 3Ls will be present and the section will begin the schedule we'll be on for much of the year. This semester we'll have Contracts, Civil Procedure, Criminal Law, and Torts. The latter two courses last only one term and they'll be the subjects on which we'll take our first exams in January. Second semester, Contracts and Civil Pro continue, Property will be added and we'll each be allowed to choose an elective.

We've been warned that today's classes—Criminal and Contracts—will not seem much like Legal Methods. The courses we begin now are considered the traditional stuff of law school, analytical matter, rather than mere how-to. Unlike Methods, these courses will be graded, and they'll be taught by professors, not teaching fellows. The classes will be made up of the whole 140-person section instead of a small group. And, most ominous to me, the instruction will be by the noted “Socratic method.”

In a way I'm looking forward to Socratic instruction. I've heard so much about it since I applied to law school—it will at least be interesting to see what it's like.

The general run of student reaction is most succinctly expressed in a comment I heard from David this summer, the day he showed me around the law school. He was kind of mimicking a tour guide, whining out facts and names as he took me from building to building. When we reached Langdell, he stood on the steps and lifted his hand toward the columns and the famous names of the law cut into the granite border beneath the roof.

“This is Langdell Hall,” he said, “The biggest building on the law school campus. It contains four large classrooms and, on the upper floors, the Harvard Law School library, the largest law school library in the world.

“The building is named for the late Christopher Columbus Langdell, who was dean of Harvard Law School in the late nineteenth century. Dean Langdell is best known as the inventor of the Socratic method.”

David lowered his hand and looked sincerely at the building.

“May he rot in hell,” David said.

 

The Socratic method is without question one of the things which makes legal education—particularly the first year, when Socraticism is most extensively used—distinct from what students are accustomed to elsewhere. While I was teaching it was always assumed that there was no hope of holding a class discussion with a group larger than thirty. When numbers got that high, the only means of communication was lecture. But Socratism is, in a way, an attempt to lead a discussion with the entire class of 140.

Generally, Socratic discussion begins when a student—I'll call him Jones—is selected without warning by the professor and questioned. Traditionally, Jones will be asked to “state the case,” that is, to provide an oral rendition of the information normally contained in a case brief. Once Jones has responded, the professor—as Socrates did with his students—will question Jones about what he has said, pressing him to make his answers clearer. If Jones says that the judge found that the contract had been breached, the professor will ask what specific provision of the contract had been violated and in what manner. The discussion will proceed that way, with the issues narrowing. At some point, Jones may be unable to answer. The professor can either select another student at random, or—more commonly—call on those who've raised their hands. The substitutes may continue the discussion of the case with the professor, or simply answer what Jones could not, the professor then resuming his interrogation of Jones.

Professors' classroom procedures differ so widely that this description cannot be called typical. Some professors never ask for a statement of the case, commencing discussion with a narrower question instead. Some interrogate students for thirty seconds—others leave them on the hot seat for the entire class. A few professors never do any more than ask questions, disdaining any direct statements. Most, however, use a student's response as the starting point for a brief lecture on a given topic before returning to more questioning.

However employed, the Socratic method is often criticized. Ralph Nader has called it “the game only one can play,” and there have been generations of students who, like David, have wished curses on Dean Langdell. The peer pressures which Peter Geocaris described to my Methods group during orientation often make getting called on an uncomfortable experience. You are in front of 140 people whom you respect, and you would like them to think well of you.

Despite student pain and protest, most law professors, including those who are liberal—even radical—on other issues in legal education, defend the Socratic method. They feel that Socratic instruction offers the best means of training students to speak in the law's unfamiliar language, and also of acquainting them with the layered, inquiring style of analysis which is a prominent part of thinking like a lawyer.

For me, the primary feeling at the start was one of incredible exposure. Whatever its faults or virtues, the Socratic method depends on a tacit license to violate a subtle rule of public behavior. When groups are too large for any semblance of intimacy, we usually think of them as being divided by role. The speaker speaks and, in the name of order, the audience listens—passive, anonymous, remote. In using the Socratic method, professors are informing students that what would normally be a safe personal space is likely at any moment to be invaded.

That feeling might well have made me more attentive in class, but it also left me quite agitated when I went for the first time to take my place in Criminal Law, that day last September. It was a little after 9:00
A.M.
and I hunted down the rows to find my seat. At most law schools, Harvard among them, class seats are assigned in advance. The allotment is random and there is a different seat for each course. Every student's seat number is recorded on a diagram of the classroom which professors normally have before them at all times. Many professors cut students' pictures out of the first-year students' handbook and place them on the chart as well. Students are more easily recognized when called on, and they are also prevented from sitting in the back of the class, out of their assigned seats, a practice called “backbenching.”

Seat assignment is a requirement of the Socratic method. The seating chart allows professors to select students freely throughout the classroom for questioning, rather than awaiting volunteers. I understood the rationale, but still I chafed. I was twenty-six years old, a grown-up, and here I was being told exactly where to place my fanny come 9:10
A.M.
And beyond that remained the disquieting thought of getting called on, and, even worse, the paralyzing little possibility, no matter how remote, that I might be the initial victim. Ineptness could make me a legend. “Remember Turow? Mann called on him and he passed out cold.” I was giddy and ill at ease when I finally took my seat.

As it happened, there was no need for great concern. Professor Mann spent the period making introductory remarks. He called on no one and I'm certain we were all grateful.

About 9:12 he mumbled to himself, “I think we should start.” Then he looked at the ceiling and began to speak. He was a man near sixty, quite meticulous, with a large pomp of white hair and a still, humorless face. He wore a pin-striped suit. As he talked, he moved back and forth, somewhat stiffly, behind the podium.

I had not listened to Professor Mann long before I recognized that he was not a great teacher. Given what Peter had said, that was no surprise. It was not any secret that every section was planned so that the distribution of teaching talent between them was relatively equal, which usually meant that each would have its good teachers and bad. Like other academic institutions, Harvard Law School does not place sole premium on teaching ability in developing a faculty.

The men and women who are professors of HLS have proved their brilliance many times. In just a few days, I had seen that they were treated as lofty, superior beings, the students plainly in awe of their intelligence and, especially, of their achievements. Most of the HLS professors are themselves graduates of the law school. Wherever they were educated, virtually all were members of the Law Review, and most also ranked at the very tops of their classes. Many were law clerks to members of the U.S. Supreme Court, a very high honor. After graduation, nearly all practiced law for some time, often with great success, and a number have interrupted their teaching careers at points to take on prominent positions in government—assistant cabinet secretaries, presidential advisors, high-ranking bureaucrats. But the capacity for legal scholarship—the ability to speculate about and research the law—remains a primary criterion for hiring faculty, and publication is indispensable. Bertram Mann, I'd been told, had written a wealth of well-regarded studies on victimless crimes—prostitution, narcotics use, gambling—and after the first hour I became certain that his best efforts with the law were there.

I had been told that he taught as if he were talking to himself; that proved to be a telling description. Now and then he would twist himself around and look at us, as if to make sure that he still had an audience; then he would stare back at the ceiling and continue. His comments were only vaguely tied to each other and every remark seemed offhand.

“Of course, I want you to be prepared each day,” he said at one point, “very well prepared. As if this were a tutorial, me and you, me and each one of you. But of course”—he shot out a hand, glancing down momentarily from the acoustical tiles—“of course if you're not prepared occasionally, now and then, why you should come to class anyway; no need to stay away. If it's one of those days, well, then, just say it—just say, ‘I'm unprepared'—and I'll give you another chance, in a day or two—soon after that. No need to worry.”

He paced, nodding now and then to himself. Eventually he began talking about the course. He said that Criminal Law would be unique in many ways. It was the only course that would concentrate expressly on the relationship between government and private citizens. And he also said that it would be the single class in which we would do close reading of statutes as well as cases. Much of our time would be spent on the Model Penal Code, a criminal statute drafted in the '60s by the American Law Institute, a group of legal scholars, and since adopted by a number of states.

I found Terry Nazarrio after class. He asked me what I thought about Mann and I told him you couldn't win them all.

“Seemed like a nice dude, at least,” Terry said. “The thing about not being prepared?”

I agreed.

We had half an hour before our first meeting with Rudolph Perini in Contracts. Terry said he wanted to buy a book in the meantime and I volunteered to go with him. I had bought all mine the week before, but I wanted to get a look at the Lawbook Thrift Shop, where he was heading—a store in the law school where used books are bought and sold.

I'd had lunch with Terry on Thursday and had gotten to know him better. The route he'd taken to law school was a lot different than most everybody else's. He was near my age—twenty-five—but he'd finished college only the preceding June. After high school, by his own account, he'd been a “bum,” hanging around the tracks, but at twenty he'd gotten married, borrowed the money to open a store selling stereos, and started college at night. He prospered. His wife gave birth to twin boys; he opened a second store and hired people to run both while he transferred to the college's day division, where he did phenomenally well. Last December, a large chain had offered him too much money for his stores for him to turn down.

“We had enough,” he told me, “to live good for three, four years. I figured we could do anything—go to Europe, move to California and lay on the beach. But hell, man, I
like
school; I get off on that stuff. I didn't see the odds in grad school. I mean, there're no jobs there and I wanted to be able to do something besides run a store when I finished. So I decided to go to law school. After I aced the LSAT, I said, Hey, try Harvard, you're as good as anybody else. And bingo! Donna's parents, mine—man, they think there's something almost wrong, that they let me in.”

He laughed as he told the story. He was tough, proud, ferociously independent, bright with that incredible city quickness. I admired him.

The Lawbook Thrift Shop was crowded when we arrived. It is run by the wife of one of the law students out of a small office in Austin Hall and it was full of 2Ls and 3Ls hunting course books on their first day back. I told Terry I'd wait outside.

I should say a word or two about law books, since they are plainly the focus of so much of a law student's attention. There are three general categories. The first are the casebooks, the thousand-page volumes out of which class assignments are regularly made. The cases in the book are usually edited and have been selected for their importance in the development in given areas of the law. In the second category, a kind of academic purgatory, are the “hornbooks,” brief treatises produced by well-known legal scholars which summarize leading cases and which provide general descriptions of the doctrines in the field. Professors discourage hornbook reading by beginning students. They fear that hornbook consultation will limit a 1L's ability to deduce the law himself from the cases and also that it will decrease a student's interest in class, since the hornbooks often analyze the daily material in much the same way that the professors do themselves. In the final category, the nether world well beneath academic respectability, are the myriad study aids, commercially prepared casebook and course and subject-matter outlines, and other kinds of digests. The best-known series is the Gilbert Law Summaries. Although law students have gotten by for generations with the aid of these and other prepared outlines, there are members of the faculty who claim to have never heard the word “Gilbert's” from a student's lips. Before I started, I myself was somewhat incredulous that students would buy a course guide rather than prepare it themselves. It seemed to border on plagiarism.