One L (34 page)

I told her, in so many words, she was okay—to tell herself she was okay.

Annette arrived in a few minutes.

“It's over!” I shouted when I got in the car.

I've been repeating that to myself for the past few hours. It will probably take a couple of days for me to believe it. The first year of law school. It seemed sheer myth when my friends lived through it. Now I have, too. It is over. It is over.

When Roscoe Pound, who eventually became the dean of Harvard Law School, entered as a first-year student in 1889, he was required to take courses in Torts, Criminal Law, Property, Contracts, and Common-Law Forms of Action, a nineteenth-century version of Civil Procedure. He mastered the law by reading cases; in class, his professors taught in the Socratic method. In a way, things were easier for Dean Pound than they were for me and my peers in the Harvard Law School class of 1978. He was able to pass the bar exam after only a single year of legal education. And he did not have to add an elective in the spring.

But, of course, the resemblances between Dean Pound's first year and mine are striking. For nearly a century now, American lawyers have been bound together by the knowledge that they have all survived a similar initiation; it is something of a grand tradition. For me it was an experience of great extremes. What was bad was awful. But what was good often approached the ideal. I was regularly inspired and invigorated by what I was studying, and I seldom lost the feeling that I was making good use of myself. The riches of Harvard Law School—its students, its faculty, its eminence and its traditions, which are always a presence—yielded for me a time of towering excitement and great fruitfulness. In many ways, it was the best year in the education of this person who must be counted as now entering something like the twentieth grade, and everything considered—everything—I would probably do it again.

Yet it would be a decorous pulling of my punches not to say that I believe there are many ways in which the wealth of Harvard Law School is magnificently squandered. The century-old curriculum we inherited from Dean Pound is badly in need of change. Early in May, I attended an open meeting on legal education. It had been called by a group of first-year students, and despite the pressure of exams, 175 students arrived, most of them 1Ls. The size and mood of the crowd left little doubt of common dissatisfaction with many aspects of first-year education. The students were addressed by a panel of professors who had taught in the various 1L sections. Perini was among them, but so were a number of the youngest and most liberal members of the law school faculty. Looking at them and at the students spilling through the aisles, Perini asked his older colleagues on the panel, “Are we the Christians here, gentlemen, or the lions?”

Either way, I realized that the same array that faced Perini that evening will confront law teachers of his philosophy in the future. A new generation of law school teachers—some of them students who were in that room, persons shaped by different experiences, and many, like Nicky Morris, outspokenly opposed to the old ways—will soon hold sway on law school faculties. Even Perini freely acknowledged the handwriting on the wall.

“There will be change,” Perini admitted. “Not even I can claim that the Harvard Law School is the greatest and most divine institution in existence.”

Many of the directions for that change in the first-year curriculum are self-evident. At places more progressive than HLS there are already smaller classes, more opportunities for students to write and to make contact with the faculty, differing formats for evaluation of student performance, election to the Law Review without reference to grades. Harvard Law School itself is a far different place than it was in 1970 when my college friends entered. There was no such thing, then, as passing a professor's question in a first-year class; no teachers who, like Morris, tried to stress the broadest humanistic outlines of the law; no midyear exams. The case method, which once meant a reading diet of nothing but case reports, has given way in recent years to the addition of journal articles, of writings which make the learning of the law less a piece-by-piece puzzling through and more like the real lawyer's task: a comparison of new elements against a known context.

No doubt the changes will go on. Fresh from the front, I would add two observations about the specifics of legal education as I experienced them in my first year. That night in May, the faculty panel roundly agreed to the continuing vitality of the Socratic method. I would not differ directly, but the peculiar privilege which Socraticism grants a teacher to invade the security of every student in the room means that in the wrong hands it can become an instrument of terror. I never felt that my education gained by my being frightened, and I was often scared in class. Law faculties have too long excused, in the name of academic freedom, a failure to hold colleagues within basic limits of decency. They must formulate and enforce an etiquette of classroom behavior which insures that teachers cannot freely browbeat and exploit their students. To refuse leaves them in a subtle but persistent state of moral abdication. I know that it is hard to think of law students, headed for a life of privilege, as being among the downtrodden; and I also recognize that classroom terror has been a fixed aspect of legal education for at least a century. But the risk, the ultimate risk, of allowing students to make their first acquaintance with the law in such an atmosphere, in that state of hopeless fright, is that they will come away with a tacit but ineradicable impression that it is somehow characteristically “legal” to be heartless, to be brutal, and will carry that attitude with them into the execution of their professional tasks.

Those objections to heavy-handed Socraticism are, in a fashion, only a part of a larger concern with legal education of which I began to become conscious after my conversations with Gina last fall. The law is at war with ambiguity, with uncertainty. In the courtroom, the adversary system, plaintiff against defendant, guarantees that someone will always win, someone lose. No matter if justice is evenly with each side, no matter if the issues are dark and obscure, the rule of law will be declared. The law and the arbitrary certainty of some of its results are no doubt indispensable to the secure operation of a society where there is ceaseless conflict requiring resolution.

But a lot of those attitudes toward certainty seem to rub off on the law world at large. Many of the institutions of legal education show a similar seeking after sureness and definition, a desire to subdue the random element, to leave nothing to chance: the admissions process, where statistical formulas serve as the basis for decision; the law school classroom, where all power and discretion are concentrated in the professor; the stratifications so clearly marked in the law school population, with the best students segregated on the law review, and the faculty remote from all; and the notion of the meritocracy, the attempt to rank and to accord privilege by some absolute standard. All of these things amount in my mind to a fighting of the war against ambiguity and uncertainness in quarters where it is not called for, where the need which supports the custom of the courtroom is not present. Not even the law can abolish the fundamental unclearness of many human situations, but in the law schools there is precious little effort made to address the degree to which human choice is arbitrary. We are taught that there is always a reason, always a rationale, always an argument. Too much of what goes on around the law school and in the legal classroom seeks to tutor students in strategies for avoiding, for ignoring, for somehow subverting the unquantifiable, the inexact, the emotionally charged, those things which still pass in my mind under the label “human.” In time, I came to take that quality in legal education as another of those forces which could make me less a person than I'd like to be, that foe I'd come here to meet.

Courses like Morris's and Zechman's which emphasized the uncertainties and contradictions inherent in the law are signs of what I consider progress. But students still see the operation of the law only in a secondhand and thirdhand way, as it is revealed in carefully prepared case reports. Learning to think like a lawyer should involve more than the mastery of an important but abstract mental skill. Were I king of the universe—or dean of Harvard Law School—I would supplement case reading with use of other devices—film, drama, informal narrative, actual client contact like that provided in the upper-year clinical courses—seeking to cultivate a sensitivity to the immediate human context in which the law so forcefully intervenes.

Reforms like that, like others which look to be on the horizon, seem to bode well for us all. A more humane and humanistic education in the law strikes me as far more fitting than a schooling characterized by terror and the suppression of feeling for those persons who, in time, will become this society's chief custodians of justice.

8/21/76

Grades came in at the middle of last month. Despite the calm and distance of the summer, the familiar apparatus of reaction set in place the instant I saw the envelope. My fingers shook and I felt the rush of all that teetering ambivalence. Please, I asked somebody, no Cs, even as I hoped for something exceptional.

The grades were the same as first term, half As, half Bs. I got an A in the Policy course, a B-plus in Property; an A-minus from Nicky, a B from Perini. Good marks, I knew; they probably put me somewhere in the upper quarter of the class. I felt lucky. And still I was nagged by a desire for more.

Within a few days, Gina, Stephen, Karen Sondergard—all scattered around the country for the summer—had called for the first time since the close of school. The conversations were convivial, but each turned in time to grades. The names and marks of those who'd made the Law Review from Section 2 had leaked out by now. Brodsky. Jenner. Sandy Stern. A couple of the quiet ones I never would have guessed. But not Stephen. (He had been right about his Property exam and sounded as though he was already regaining his sense of humor). Not Kyle. Not Weiss. Not Hochschild. Not Shearing. Not me. Many were nearer than I was, but I still felt cheated. My sense of jealousy and denial left me dizzy for a day.

My enemy, that greedy little monster, is still in there rattling his cage. I guess I will be contending with him always.

Knowing that, I must admit that I made many of the rough spots in the past year far harder for myself. I met up with a lot of my own ugliness, and learned more than I wanted to about how deep it goes. I suppose that is part of the education, too. Which is not to say that the first year at Harvard Law School would do to everyone what it did to me. There are many people who would be wise enough to head back out the doors after a couple days.

But those are not the people who usually come through those doors in the first place. It is those of us compulsively pursuing some vague idea of distinction who are most likely to aspire to the Harvard Law School, and for us the year is going to take its toll. In a funny way, I think law schools as institutions attract the people least suited to them at the start. We are men and women drawn to the study of rules, people with a native taste for order. The first year, when we do not know the language or how well we are doing, when professors seem only to be posing riddles every day, is bound to throw us for a loop. And at Harvard, that driven quest for prominence which brings us there, leads us, once we arrive, to an almost inescapable temptation to scramble, despite obstacles and ugliness and bruises, for what sometimes looks to all of us to be the very top of the tallest heap.

So we come vulnerable, and the place does little to protect us from ourselves. There were people who managed the year with more grace than I did; others less. But all the conversations I have had with my law school friends over the summer, have returned, almost obsessively, to the year past and the question of exactly what it was that happened to us. Something exalted. Something fearful. We all reported at least one summer nightmare about Rudolph Perini. And we each admitted to wonder—and moments of real pride—when we thought about the persons we were last fall.

In a few weeks, it will be fall again and the Harvard Law School will open its doors to another entering class. As we did, they will bring with them their academic accolades, glittering like rows of military medals; they will bring a hunger for the law. They will bring their own great talents, energy, ambition, intelligence, charm. They will bring their enemies unmet.

“It will be so strange to see them,” Gina said when we spoke recently about the coming year. “They will be One Ls.”

“No doubt, I would write a different book ten years from now emphasizing different events, expressing more or less concern about certain elements of my education.”

—One L
, Preface

Each line is still inside me. I remember every word before it's read. However idiosyncratic my experience may have been, in writing
One L
I did not exaggerate either my excitement or my torment. When I turn the pages all the sensations whirl again within me: the panic and ferocious worry, the racing desire to understand, and a ubiquitous parched heat, as if the fervid pace of learning had sucked me dry. I shake my head. My lord.

Was I nuts? I suppose the years since law school have forced me to admit I am not a garden-variety personality. Even by the skewed scale of law students, I am a good deal more compulsive than the average, and my fears of failure, especially at that time in my life, were profound. In the heat of law school, there was a kind of toxic fusion of these excesses; I wavered in the fumes. For those of more durable construction, day-to-day survival was likely to be less of an adventure.

Nonetheless, I doubt that the first year of law school is an easy time for many people, even today when some of the defects I complained about most, particularly severe application of the Socratic method, are less and less common. At Harvard, two experimental sections are now taught in which professors in the major first-year courses will often conduct class together, comparing and contrasting the way certain central concepts are handled in different subject areas: varying approaches, for example, to the utilitarian notion of cost-benefit analysis in the law of torts, contracts, and crimes. But these changes, admirable though they may be, do not seem to run deep. I have been back at Harvard on occasion, and 1Ls, to my eye, still frequently exhibit high anxiety and a common sense of being unmoored by the education they are undergoing.

Whether or not I am correct in these estimates, time has not changed my recollection—I still believe that my own experience was very much as it is reflected here. I would still criticize the same things: The classes were too big, the teaching methods too severe. The competition at the end of my first year was ungoverned. And the two years that followed, though far more comfortable, were seldom as engaging. Law school did prove, in my judgment, to go on too long-two years would be adequate to absorb the benefits of the present curriculum—and it was, all in all, too much of a forced march.

Indeed, in some ways, I am less sanguine about legal education than I was when I left Harvard in 1978. Although it probably violates some rule of proportionality to be complaining about anything more than a decade later, the years since have sharpened my sense of disappointment about the way law school fails the legal profession. I am not talking about the fact that law school does not teach the manifold skills required by practice, although it certainly does not. I am speaking instead about a matter of vision. To explain, I must add some of my own observations after ten years in practice.

 

To a great extent, law and lawyers are in their heyday in the United States. Lawyers' incomes continue to rise and their prominence in the society at large seems ever-increasing. The most popular show on television at the moment is about daily life in a law firm. As our notions of privacy have changed and as venerable institutions like churches and schools have come to speak with less uniform authority, the courts have emerged as the arena where debate is most often conducted concerning matters—often highly personal ones—about which we find ourselves profoundly in conflict: the right to abortion, the means to achieve racial and gender equality, the propriety of surrogate motherhood, or the appropriate treatment of contagious, life-threatening disease. Like an encroaching sea, the law has taken over areas that were once reserved from it as matters of conscience. Perhaps because the law seems to know more of the answers, the legally trained continue to show up in increasing numbers as leaders in areas outside the law. These days a law degree, for instance, seems to have replaced a cigar as a requirement for Hollywood mogulhood.

And yet the law remains in some manner a troubled profession. In spite of the prominence of law, lawyers themselves are far less well regarded. Many lay people do not like lawyers. And to a surprising extent, lawyers often do not like themselves.

Since Watergate, when the nation discovered that a legal education seemed to be a common attribute of everyone who planned the burglaries, destroyed documents and tapes, and, when need be, lied under oath, there has been open distrust of the legal profession. In annual Gallup polls measuring public regard for various callings, the legal profession for years has approached the absolute-zero point represented by so-called sales consultants of pre-driven automobiles. During a recent evening with a group of male friends, the non-attorneys stood around and told lawyer jokes, which have apparently supplanted ethnic humor.

In a way, some of this hostility may be viewed as a problem of expectations. Because the law deals so much with principle, lawyers are expected to be principled. Because questions of right and wrong, lawful and illegal, dominate each lawyer's daily contemplation, lawyers are presumed to be better able to discriminate such concepts and to observe them. To many, it is not an acceptable defense to say that lawyers are no less vulnerable to temptation than anybody else; somehow, people think they should be. Moreover, to the extent that it is recognized that a legal education, and the practice of law, may tend to elucidate the vague and quickly shifting nature of some of these boundaries, lay persons are too often left with the impression that lawyers are sophists, able to skip nimbly along the lines, knowing how to raise the chalk without stepping clear out of bounds.

Some of these suspicions are simply the result of misunderstandings, but it would be disingenuous of me to claim that I have found the American public's distrust of lawyers baseless. The path from law school led me to the United States Attorney's Office in Chicago, where I was a criminal prosecutor for eight years, principally involved with what are called public-corruption cases. Usually this meant some species of bribery and usually, given the nature of the cases I was assigned, the people I prosecuted for giving or taking what was not supposed to be offered or received were lawyers. I prosecuted lawyers for paying off tax-assessing officials, and tax-assessing officials for taking the money those lawyers offered. I prosecuted a judge for shaking down dozens of attorneys who appeared before him, and I prosecuted a lawyer who achieved a victory in a preliminary hearing in a drug case by paying the judge $300 to rule in his favor. I prosecuted lawyers who sold narcotics with their clients, and lawyers who lied on their tax returns. I even helped prosecute the Attorney General of Illinois, who was convicted of income-tax fraud for, among other things, not reporting $5,000 in cash, which was handed over as a supposed campaign contribution by a lawyer who appreciated the $100,000 in state legal business that the Attorney General assigned him each year. Furthermore, these experiences came in an atmosphere that was, politely put, rough-and-tumble. There are alligators in the swamp who are more mannerly than a few members of the criminal defense bar in Chicago.

All in all, this provided me with what I sometimes refer to as a proctologist's view of the legal profession. One of the unexpected pleasures of private practice has been encountering the leagues of honorable lawyers who labor every day with a greater uprightness than what I was accustomed to. And whenever I hear discussions that characterize the profession as a dark cabal, I am at pains to say what I believe to be true: I know more remarkable people who are lawyers, persons of diverse capacity and round wisdom, than in any other calling. I like lawyers and I relish being among them.

And yet the fact remains that there is a good deal of misbehavior in the profession. Any lawyer who doubts this ought to ask himself what he thought—and said—about his opposition in the last highly contested matter in which he was involved. Suspicion runs deep through this supposed fraternity, and most lawyers, in candor, will admit to having been exposed, almost routinely, to conduct by other lawyers that crosses the lines of the acceptable, the ethical, and, more rarely, the lawful.

Indeed, this distrust of lawyers for one another is part of what I would call generally the legal malaise. Many lawyers do not like to practice; they regard themselves as imprisoned in gilded cages: highly paid, well regarded, and unhappy. In 1987, I published a novel called
Presumed Innocent
, and its success led many to wonder whether I would go on practicing law, as I have. But nowhere was the disbelief at my decision greater than among attorneys, who have told me by the score that they would throw over their practice in a moment if they had the same opportunity.

Some of this is romantic, grass-is-greener stuff. But the fact is that life at the bar is hard. The nuts-and-bolts work can be frustratingly detailed or numbingly routine—and the environment sometimes dismal. On one side stands the adversary, of dubious ethics and limitless zeal; on the other, the client waiting hungrily for favorable results. Between them is a stressed-out existence of economic pressure and ceaseless competition, a parade of deadlines, obdurate judges, unreturned phone messages, lost weekends and evenings, a Sisyphean struggle to catch up.

And yet I have found practice, for the most part, a kick-fast, tough, and keen. There are finite tasks to be accomplished which require intellectual sophistication, a quick grasp of facts, and diverse personal skills—guile, judgment, persuasiveness, and the ability to project the force of personality. Every case and every client is in some aspect unique, yet similar enough that you can take predictable pride in recognizing your own increasing skill. The human settings, and the complexity of legal questions, engage me just as thoroughly as when I was 1L, wondering whether a contract was formed when I ordered a hamburger. Most important, there is often profound satisfaction in having done your best to aid someone in need.

What, then, is the problem? If you push the average unhappy lawyer hard enough, he or she will usually come out with something like: What is it worth, in the end? What good am I doing? One of the best-known lawyers in Chicago once extolled my job as an Assistant United States Attorney, comparing it favorably to his lucrative practice as a commercial litigator. What do I care, he asked, if his robber baron wins, or mine?

That is, of course, the rub. A lawyer may do his job very well, but he does not set the moral agenda. The ends are established by the client, not the attorney. It is the lawyer's obligation to carry those goals forward, within the limits of law and ethics. It is his job to be a competent professional, to do well, without regard to whether he is doing good.

I became a government lawyer because I wanted to avoid that box. I chose a client—the United States—which I believed most often stood on the right side. Although as a younger lawyer I was involved in many cases that I found morally ambiguous—how much pleasure can you take in prosecuting immigration cases after seeing
El Norte
?—the bulk of my efforts was directed toward ends I felt worthwhile, especially the preservation of democracy, which I perceived to be the real aim of all those public-corruption prosecutions. And yet how many cases were lost because of my failure to communicate adequately to the jury, or their inability to understand what had been well enough explained? How many judicial decisions did I confront that were simply wrong? Much of my work as a prosecutor was tossed aside last term when the Supreme Court decided to reject forty years of case law and reinterpret the federal mail-fraud statute. And how often was I myself involved in a process which, for all the worthiness of its goals, was inevitably flawed by human incapacity? It was corrosive to my faith when, years along, I finally realized that many of those convicts I called to testify against their cohorts were, despite all my zeal and cajoling, not providing an unswerving version of what occurred in the past. I was not the judge. I was not the jury. I was not the witness. I was just the lawyer. All I could do was my job, as well as I could. There was no guarantee I would do any good, no world reform. Once that recognition dawned, private practice was not far off.

This dichotomy between doing good and doing well, which so deeply troubles the legal profession, should be familiar to those who have read
One L
, for its roots reach into legal education. As I noted, one of the most painful aspects of law school is what students often experience as the sense that they are being taken away from themselves. Deeply developed values and beliefs are challenged and generally exposed. Students learn that for every argument there is a counter. The plasticity of the law is taught. Moreover, most of what takes place during the supercharged and often coercive atmosphere of the first year goes to emphasize what I would call a culture of professional competence. What matters, professors tell you time and again, is not that you come up with the right answer on exams but that you reason powerfully and recognize countervailing arguments in areas where there are no accepted solutions. Rationality is a human attribute worthy of being prized. But lawyers trained in law schools generally come away with the feeling that adherence to a larger world of values is somehow discouraged. For the idealist is substituted a technocrat. The do-gooder is now someone who aspires only to do well.