One L (9 page)

The phrase “standard of excellence” reminded me of a Cadillac commercial and I tended at first to dismiss what Peter had said. But thinking it over, I understood. I had already noted in my classmates, and sometimes in myself, a demand for achievement which went beyond a mere orientation toward success or competition. As Peter suggested, there was something about Harvard Law School which inspired people to use their capacities fully, to do things in a way that would make them proud of what they'd done and of themselves. I regarded that as something affirmative, and in time it was Peter himself whom I began to see as the embodiment of all of that. In Methods class he always spoke of law and lawyer's work as something sober and exalted. He regularly talked of “achievement” and “excellence,” and when he did, mention of the
Harvard Law Review
was seldom far behind.

To Peter, the Review seemed the symbol of those things around HLS he most admired, and at times he appeared almost fixated with the subject. In his first meeting with the Methods group during registration week, Peter had explained that he was not a member of the Law Review. I had been struck by his tone of apology, and also that that was nearly the first thing he'd told us about himself. Peter's talk about the Review always sounded that way, half awe, half sadness.

To me as a 1L, the
Harvard Law Review
was an object of deepening mystery. I knew a little bit about it, but I could not understand why the words “the Review,” were such a constant, if suppressed, murmur around us. Professors on occasion mentioned “the Review” in class, and there seemed to be an article about the Law Review in the law school newspaper each week. Before I'd started law school, lawyer friends had teased me by saying they were sure I'd “make the Review.” Now and then, even other 1Ls would mention the Law Review. By the end of September, the Law Review had begun to seem the centerpiece of that world of upper-year privilege in which 1Ls were not included.

Finally, one day about that time, Terry and I bumped into Peter in Harkness. I asked him if he'd have time to answer a question: “What's the Law Review?”

Peter looked at me queerly. “It's a magazine,” he said, “a legal periodical.”

That much I'd come to understand. Law reviews, produced at almost every law school in the country, are the scholarly journals of the legal profession. In the reviews, articles appear which suggest some answer to a particularly troublesome legal problem or which survey a tangled field of law, attempting to set it in some new order. The authors are usually law professors, often members of the faculty of the school publishing the review. Nor are review articles treated as any kind of idle scholarship. I'd already read a number of opinions in which law review articles were cited as authorities. Because judges and lawyers are apt to rely on them so substantially, Review articles are held to an unyielding standard of accuracy. One of the chief tasks in publishing a law review is to make sure each written piece has been scrupulously checked over for errors, right down to the case citations and footnotes—a process generally known as “cite checking” or “subciting.” That is a tiresome job, and the reluctance of faculty authors to do that kind of work may account, in part, for the fact that the membership of law review staffs is made up entirely of students—the only professional journals published by students, as Peter noted during our conversation.

Even knowing much of that, I remained quite fuzzy on many of the simpler details of the Law Review's operation.

“Like how do you get on it?” I asked Peter, after he and Terry and I had sat down together in the lower lounge in Harkness. “It's only 2Ls and 3Ls, right?”

“Right,” Peter said, “but you get it for first year grades.” He explained that the top five or six people in each 1L section would be elected the next summer. Then in the fall of our second year, there would be a writing competition for others who wanted to make the Review. “That's going on right now for the 2Ls,” he said, “and it's a backbreaker. About ninety people trying—maybe ten, twelve'll make it. At some schools like Yale, law review's all by writing competition, but here it's mostly grades.”

“And once you get on,” I asked, “what do you do beside cite-checks?”

“Write Notes.”

Terry asked what a Note was.

“Sort of a junior version of a faculty article,” Peter said. “That's basically it: you're like a junior professor when you're on the Review. You help the faculty with their articles. You do work of your own. You go over each other's work.”

“And it takes a lot of time?” I asked. I had heard that.

Peter laughed. “Say, forty, fifty hours a week?”

“Plus classes?”

“If they get time to go.”

I said it sounded worse than being a 1L and Peter agreed—much worse. Review members considered a Sunday away from law a cause for celebration.

“So, hey, what's the angle?” Terry asked. “I mean, what do they get out of it?”

Peter shrugged. “Faculty contacts? There are just a lot of things that come your way when you're on the Review.”

“Like?”

“Teaching,” Peter said. “At all the big-name law schools, you can't get a faculty position unless you were on law review where you went to school. And a lot of them end up with Supreme Court clerkships, too.”

A judicial clerkship is a job working for a year or two as a research assistant to a judge. The clerk seeks out the law on various points and helps the judge in writing opinions. Clerkships are prestigious and enviable positions for new law school graduates and I recognized that working for a justice of the U.S. Supreme Court would be in a category of its own. Yet to me the rewards of Review membership still sounded meager compared to the obligations, the dry work, and the hours.

“I still don't understand why people treat it as if it's something holy,” I said.

“It's an
honor
,” Peter answered. “It's the honor society around here. The cream of the cream. The
Harvard Law Review
is the oldest law school journal in the country. It's respected. It's like being on the Supreme Court of law reviews. If you're a Review member, it just stays with you all your life.”

“And did you want to be on it?” Terry asked.

Peter wound his head around, nodding emphatically a number of times.

“Damn right,” he said. “I wanted it first year and I didn't get the grades; then I tried the writing competition and I didn't make that. There are even a few 3Ls who get elected on second-year grades, and believe me, I didn't join the Board until grades were out. Damn right. I wanted it,” he said. “You will too. It goes through everybody's mind now and then.”

Peter's voice had that sorry edge again and his face was clouded and wistful. Watching him, I realized that there was something about Harvard Law School I didn't yet understand. Maybe something to do with all that striving for achievement. Maybe some part of that enemy that my friend at Stanford had told me I would meet here. I felt baffled, proudly remote, and also a little imperiled.

I shook my head. “I can't see it,” I said. I looked at Terry and he said he couldn't understand it either.

Peter said to both of us, “Wait.”

10/1/75 (Wednesday)

The heavy trucking, conceptually, seems to be beginning in all our courses now. The first three weeks, the professors sort of showed us the blueprint in each subject, the basic principles and terms we had to master before we could understand anything else. Now we seem to be down to actual lessons in how you put the house together. We've moved into the more detailed study of rules in defined legal subjects in each course. In Procedure, we're reading cases on jurisdiction, the very complicated matter of when and how and over whom a court can exert its power. In Torts, we continue with intentional wrongs—assault, battery, false imprisonment—and excuses like consent and self-defense.

As we proceed with that close work, we seem to have started on the traditional classroom routine described by the catalogs and guidebooks. HLS, like many others, is what's called a “national law school.” That means that the laws of no one state are emphasized. Instead, by comparing cases from all over the country we are supposed to get a sense for the general thrust of American common law and the typical methods and strategies of legal thinking. It all sounded like a pretty mysterious process to me when I read about it, but day by day the workings of the basic law school program and the case method are starting to seem familiar.

In Contracts, for example, we are now studying Interpretation, the ways a judge decides what the words in a contract mean. Does he listen to A, who said those words? Or B, who heard them? Does he try to figure out what a reasonable person standing in one of their shoes might think? Or does the judge just take the words for their plain meaning?

The pattern of each class all week was more or less the same. First Perini would call on a student who would state the facts of the case; then Perini would ask the person under fire to identify the kernel issue in the decision. In one case, the plaintiff was suing for ground rent, so the narrower “issue” was whether the word “house” in the contract of sale meant the house alone, or also the land that sat beneath it. With that established, Perini would have the student consider the case's result, asking from whose point of view the judge seemed to have looked at things and what kind of interpretative standard that suggested. Then Perini would ask whomever he was questioning to compare that standard with what we'd seen in other cases. He'd ask the student to reconcile the decisions, to explain the ways they seemed to establish consistent principles of interpretation, and to account for differences through the varying circumstances and facts of each case. For instance, we saw much different interpretative standards employed in cases where the contract was written down, as compared to those in which the agreement had only been by word of mouth. Finally, Perini would touch on what he sometimes refers to as “the deep-thought issues,” and what students usually call “policy questions.” How much discretion do we want judges to have in interpreting contracts? Too much, and the judge, in essence, can compose the agreement himself, rather than the parties. Too little, and judge may have to accept without question all kinds of perjury and injustice.

The other professors do not go at things in exactly the same way as Perini. He usually covers only one case a day, practicing on it that kind of step-by-step analysis. Morris goes over a number of cases, setting them out against each other in a far more straightforward manner, doing much of the work Perini demands from students. Zechman usually transforms a case into another of his peculiar “hypotheticals,” which he alters bit by bit, question by question, so we can see the way each fact relates to the controlling principle. Mann tends to lecture. But in each course, that process of comparing and distinguishing in order to flesh out the law is usually somehow repeated. In Criminal, for example, we're now deep in the mire of the Model Penal Code and the deadly work of learning to read a statute. Each day, Mann has us contrast the code with cases on the same subject; we compare and distinguish common law and statute, the provisions of state law and the code.

That jigsaw puzzling, case after case, piece after piece is a far easier process to describe than it is to practice. The common law is crazy and cases go off in all directions. You can never quite jimmy all of them into place. Today Zechman tied the section in knots by asking us to distinguish between two cases with identical facts and contrary results. Two men had a fistfight. In one case they were allowed to sue each other for battery; in the other they were not because the court considered both to be “wrongdoers.” People suggested every trivial distinction to explain the different holdings: One fight had been with bottles, the other with knives; one fight had been during the day, the other at night. Nobody ever hit on the most obvious distinction: The cases were from two separate states, where the courts simply decided the same question in opposite ways. (I got that from Prosser, not Zechman, who left it all in the air—another example of why that class is like a trip on a runaway carousel.) Usually though, the contradictions are subtler and the patterns are present if you press hard enough. Up and down, back and forth. Hopping from minutiae to the big picture. That process is now fully in gear which is supposed to teach us to think like lawyers.

 

When we started jurisdiction in Procedure, Nicky Morris made what seemed an important comment.

“About now,” he said, “law school begins to become more than just learning a language. You also have to start learning rules and you'll find pretty quickly that there's quite a premium placed on mastering the rules and knowing how to apply them.

“But in learning rules, don't feel as if you've got to forsake a sense of moral scrutiny. The law in almost all its phases is a reflection of competing value systems. Don't get your heads turned around to the point that you feel because you're learning a rule, you've necessarily taken on the values that produced the rule in the first place.”