“He’s in outer space,” Ned Cauley told me one day. “We’re not learning Civil Procedure; we’re learning Nicky Morris’s theory of rules. What’s going to happen to all of us when we go into a courtroom and make a motion under Rule Twelve E? Do you think the judge is going to give a damn whether it’s a model of legal informalism?”
But the majority of the section were enthusiasts and I was among them. Like Ned, I had come to law school for professional training, but I was also looking for something more, something which was lost when teachers concentrated more directly on the kind of professionalizing Ned desired. In those classes, law study was treated primarily as the means for learning the circumscribed skills and customs of a sort of elevated priesthood. The uniqueness of legal thought was emphasized. In consequence, I and many other classmates were often left with the sense of a gap between legal ideas and those we had known in other areas of study. Nicky was out to efface that boundary.
“The law,” Nicky said at one point in the second term, “is a humanistic discipline. It is so broad a reflection of the society, the culture, that it is ripe for the questions posed by any field of inquiry: linguistics, philosophy, history, literary studies, sociology, economics, mathematics.”
Nicky did not touch on all those subjects, but his teaching was always animated by a sense of the law’s search as unlimited and profound. In . Morris’s class I found myself launched once again on that kind of scrutiny of the most fundamental assumptions regarding the way we lived each day—the manner in which we treated each other—which had seemed so important when I had come to school. Each time I walked into Morris’s classroom all that rapturous discovery of the first six weeks returned. And I knew I would leave after each meeting with the same crazy feeling, half heat, half thirst—the sensation of being nearly sucked dry by excitement.
2/11/76 (Wednesday)
Life around the law school at the moment is consumed by the Ames competition, politics, and flu. It seems as though everybody has been bitten by the same bug. Annette was sick three days last week. I was out on Thursday. The classes all resound with coughs and sniffles.
The Massachusetts primary is drawing near and many of the candidates seem to feel obligated to touch base at that august American institution, the Harvard Law School. It’s not the students’ votes they’re after—most of those belong to Udall, as mine does, or to Fred Harris. Some candidates, I guess, come to meet with HLS profs, many of whom are advisors to the various campaigns. More of the pols, I think, just want to latch hold of the law-school name so it can be boosted throughout the campaign. “Well, when I spoke to that question at Harvard Law School . . .” I’ve tried to see them all. First through was Jimmy Carter, the Georgia peanut farmer, way back in September when most people didn’t know who he was. Many of his lines sounded like bumper-strip slogans, and he was incredibly, even disturbingly, neat about his person. Friday, Scoop Jackson proved dull and unimpressive before a crowd in Austin. Shapp, Mo, and Harris will be by before the end of the month.
I feel more relaxed in school now than I have all year. The promises the 2Ls and 3Ls made me—that someday it would be easier to read a case—have finally come true. Something fell into place after Christmas. It’s still not like the funny papers, of course, but comprehension is fluid, line by line. Even with Ames, I have more free time than in the worst moments last term, and after the draft brief, I should be able to knock off weekends for a while. I can be with Annette more often now. A few days ago, we actually got out for a movie in the middle of the week, and I’ve also reorganized my schedule somewhat, getting up with A. in the mornings so we can have coffee together before she heads off to teach.
As for classes, I am still enjoying the elective, Law and Public Policy. Sternlieb has spent the first weeks trying to acquaint us with the social-science skills he considers invaluable to policy planners. Right now we’re doing statistics and the Bayes theorem. Last week it was game theory. Before that, we had another heavy dose of economics, going over marginalism, Pareto optimality, and cost/benefit analysis.
Along that line, I have some advice for anybody considering law school: take some econ before you come. The policy course is the fourth of the year to place considerable emphasis on economics. The free market in Contracts; allocation theory in Torts. In Property, Fowler has introduced us to something called Coase’s theorem, an economic approach to the distribution of property rights. Even Nicky on occasion has talked about rules in terms of their costs and benefits. In all instances, econ has been introduced as a rationalizing principle, a way to make more sense of the many hard choices in the law.
For those of us without any background in the subject it is sometimes heavy sledding. Nothing is surer to turn on Sondergard’s tears than prolonged talk of economics. Another section has been in a state of muted rebellion all year against their young Contracts professor who follows an unyielding economic analysis, which, for a lot of students, is like not being allowed to come up for air.
I am still not certain how seriously I should take this stuff. Much of what we’re taught about economics seems to disguise some of the crueler assumptions of the free-enterprise system, and I often feel that econ is no more than a subtle way to get us to buy in on a businessman’s vision of the world. What do you say about a system of thought which presumes that everyone acts out of self-interest?
A sociologist with years of econ, Stephen is an outright skeptic. He thinks economics does little more than repeat what is already known. He told me a joke to illustrate the point. Three men are starving on a desert island when they find a can of beans. The first, a strong man, wants to tear the can open with his teeth. The second, an engineer, proposes that they open the can by dropping a heavy rock on it from a great height. The third is an economist and he has a plan of his own. “First,” he tells the other two, “you must assume we have a can opener.”
Be that as it may, I’ve too often had the feeling that the professors are saying, “Assume you’ve had economics.”
Ames went on. The 1Ls gave most of their attention to research and writing, and the professors. seemed to make allowances. Nicky tailored his assignments to conform to the competition’s schedule. Perini suddenly began to lecture, rather than calling on a student to serve as target or foil. As the due dates for briefs neared, attendance fell off in each of the courses. In Property, where absences had been high from the start of the term, as many as a third of the students were sometimes missing. At the start of one session, Fowler looked around the room and said, almost sanguinely, “Well, let’s see who’s here.” –
For all the hard work that students put into Ames, those labors seemed to reflect genuine interest, rather than the normal patterns of panic or pack-running aggressions. There were the familiar extremes, of course—people going so hard they missed sleep for three nights, others who claimed to have written their briefs without reading any of the cases they’d cited—but most of my classmates seemed to take Ames as a welcome diversion. As opposed to exams, moot court offered a real opportunity to demonstrate and to see for yourself that you had acquired some competence with professional tasks. And the process of working through the cases firsthand and shaping your own argument provided a novel vantage on the law at a time when the daily preoccupations of the classroom had begun to seem routine.
“It’s the only damn thing in law school that makes sense,”
Aubrey said about Ames. He was increasingly disenchanted with school and professorial abstractions. “It’s the only thing all year that prepares you for practice.”
I shared much of the general enthusiasm for Ames. The First Amendment issues in our defamation case—the questions of which citizens were public figures and why speech about them should be less restricted—turned increasingly subtle and challenging as I worked them through, and I took real pleasure in the research. There were of course some aspects of Ames I was less keen on. One of the purposes of moot court was to acquaint us with the proprieti
es of the case citation—the shorthand notations used in all legal writing to indicate in which court a decision was made and the volume in which the case is reported. A judge, or opposing counsel, will often want to review the cases you point to for support, and accurate citation is thus another of the dull, lawyerly skills you cannot go without learning. Our Ames briefs were required to conform to the scheme of citation developed by the Harvard Law Review, and as I prepared to begin drafting, I found myself spending hours deep in the library stacks checking on nervewrackingly small details, such as the page number on which quotations I’d be using appeared in each of the two or three report series issued by different publishers.
But on the whole, I enjoyed the work of moot court. The brief provided another of the opportunities we seldom had to try legal writing and to gain more familiarity and control over the law’s impersonal rhetoric. I was beginning, I thought, to feel a little more comfortable with it.
The only large difficulty I encountered with moot court had nothing to do with what was required of us. The problem was personal, for I was having trouble dealing with Terry. He had never mustered much excitement about Ames, and I’d only dimmed his enthusiasm further by unwittingly grabbing off the part of the case, the Constitutional issue, which he later admitted had interested him more. As a result, Terry appeared to become even more determined to do things his own way and at his own speed. He paid little attention to external requirements. His work was listless and sporadic, and much of the research he did was careless. In the memo conference, Margo had given him suggestions on ways to approach his end of the case, but he refused them, preferring an erratic legal theory of his own. He seemed to have a vague idea of winning the case by concocting an entirely new approach to the law of defamation, relating it to the concept of fault, even though his thinking was unclear and there was little support for what he was saying among existing authorities.
“Look,” he told me a few days after our conference with Margo, “that girl is all wrong. She doesn’t really understand this case. The issue is all different.”
I asked him if he had the cases to prove that.
“There’re pages of cites in the legal encyclopedias,” he told me.
“Have you read any?” I asked.
“There’re hundreds of cases,” he repeated.
In the following weeks he did not seem to read many of them. As the deadline for the draft brief approached, it became apparent that he would never complete work on a part of the case that he’d promised to cover. I took over the research and writing myself, without much overt complaint. It wasn’t worth it, I figured, to strain a good friendship. I had to pull my only all-nighter of the year in order to get my portion of the brief ready, and when I reached school on the day it was due I was disgruntled to learn that Terry had not finished his half. We had the long President’s Day weekend ahead, however, and Terry assured me that he’d finish the brief in the next day or two and get it to Margo, who would still have two days to look it over before our next conference, scheduled for Tuesday.
Annette and I left town for the weekend, but Terry found me by my locker as soon as I got to school on Tuesday morning. He had a funny smirk as he approached.
“Hey,” he said, “that girl’s gettin’ a little impatient with me.”
I asked what that meant. He explained that he hadn’t finished the brief yet and that Margo, angry now, had called him the night before.
“Terry,” I said, “this isn’t funny. You’ve got to get that done.”
“It’ll be done, man,” he said, “it’ll be done. I’m goin’ to the libe right now. I’ll write it this morning. She’ll have it by noon. We don’t meet her until two.”
“Just get it done,” I said again. “I don’t want to end up flunking this thing.” That seemed like a vaguely realistic concern now. Word was that each year there were a few as who took Ames too lightly and ended up having to repeat the entire Legal Methods program the following year. I was happy to let Terry go his own way so long as I was not going to get dragged down with him, but now I was beginning to worry. He seemed stranger about the whole business daily.
I met Terry at two and together we went toward Pound, where we were scheduled to see Margo in a conference room on the third floor. I asked if he’d finished the brief and Terry assured me he had; but as we rode up in the elevator, he was obviously agitated, fidgeting, rolling his shoulders.
“Hey, listen,” he said. “I’m pretty bugged about this. I went in to see that girl, what’s-her-name, Margo, at the BSA office, to make sure she got the brief, and, man, she was reading my thing and when she saw me she really went through the roof. I mean, she told me I was going to have to do the whole thing over again, that I was wrong.”
That was what I was afraid of. “What did you say?” “I told her it wasn’t my life,” Terry answered.
“Look,” I said, “that’s not a subtle approach.” When I looked at Terry I could see a hard gleam coming into his eyes. He was powerfully angry.
“Well, it’s not my life, man, is it?” he asked.
I agreed that it wasn’t, backing off. We went down the hallway in silence. Outside the conference room, Terry grabbed me for a second.
“You go first in this thing,” he told me. “I’m still hot. I’ve gotta get myself under control.”
My half of the conference was fine. Margo raised points with me, trying to make sure I understood the dimensions of my argument. I didn’t agree with everything she said. But by and large I appreciated most of her suggestions.
When she turned to Terry, however, it was obvious they had remained irritated with each other. Margo handed Terry back his brief. It was handwritten—typing was required—and her remarks appeared in a large scrawl across the back of each page.
“I’m sorry my comments sound a little nasty,” she said, “but I was really angry when I read that. You cite two cases. And you never stated the facts. That’s supposed to be at the start of your half of the brief,” she said to Terry. “I told you guys before that how you state the facts is important.”
Terry answered again that there was nothing to stating facts.
“You said that last time,” Margo told him. “It was supposed to be done now. And how can you hope to convince the court when you only cite two cases?”
“I cite CJS, Prosser, ALR,” Terry answered.
“Those are encyclopedias,” she said, “hornbooks. They’re not cases. They’re not law.”
For a moment, the two of them debated with increasing heat. Terry insisted he had done things the right way and after briefly attempting to maintain an icy restraint Margo became slightly sarcastic. As they replied to one another, each would look to me for support. Margo was right, I knew; but I also recognized how much Terry valued loyalty. I tried to show nothing.
Finally, Margo decided to be plain.
“Your arguments are just incredible,” she said to Terry. “They make no sense. Really. This thing with defamation and fault—you’re going to embarrass yourself if you say that in front of the court. You’ll embarrass Scott.”
Terry popped. His eyes filled with the same outraged gleam I’d seen in the hallways and he leaned forward in a belligerent animal posture. His hands were in fists, and now and then he struck the table. For an instant, I was afraid he might hit Margo.
“You’re just making up rules,” he told her. “I don’t care if everybody who’s ever done this sees it your way—they’re all wrong. You’re wrong! You’re just abusing your power as an advisor. You’re trying to push me around. You give me cases in black and white. You show me! You don’t know what you’re talking about!”
At last he bulled away from the table and pounded from the room. A moment after he left, Margo began crying.
“I’m just trying to help you guys,” she said.
I sought to comfort Margo as best I could. I apologized for Terry, but I felt badly shaken by the way he’d reacted. He’d frighten
ed me, and obviously Margo as well.
I didn’t see Terry until the next day.
“You tell me what you think,” he said. But then he added his own version of the events. “I was wrong,” he told me. “I mean, I shouldn’t have backed off. I mean, I was too apologetic.”
I stared at him, incredulous. Then I called him a name and walked away.
Late in the year, when I described HLS to a friend who is a doctor he compared it to a hospital ward. He said that both were places where the inmates frequently found it hard to stay close with anyone. People were under too much tension, in extremity, often too busy saving themselves to think about preserving relationships.
I think that’s true. My friendship with Stephen never quite recovered after first-term exams. With Terry, Ames remained a barrier between us. We both cooled off in a couple of days and Terry even agreed that he was too harsh to Margo. But he never apologized to her. Instead, he became determined to justify his behavior, to prove that the screwball theory about defamation he’d designed made sense. As the final brief and then the oral argument approached, he worked furiously to locate cases or law-review articles which lent some credence to what he maintained. He never found them. I tried at first to dissuade him from his reasoning, then finally attempted to understand what he was saying, but I failed on both counts. As we went through the remainder of Ames, I often told myself that it was just Harvard Law School, now and then it made all of us nuts. But in the deliberateness of my efforts to objectify, to be fair to Terry, I recognized a distance which had not been there before.
2/17/76 (Tuesday)
I saw Stephen today after Law and Public Policy. He had read a notice on a bulletin board and when he informed me of what it said, a little wiggle went through my belly.