But we carried those feelings with us at all times. In many ostensibly informal conversations with classmates—in the hallways, the gym, at lunch—I had the feeling that I was being sized up, that people were looking for an angle, an edge on me; I caught myself doing that to others now and then. And especially within the classroom, where the professors’ questions acted to pit the 140 of us against each other, our aggressions were bound to be excited, whether they were acknowledged or not.
The only other option in dealing with those feelings was to give in to them—to seek openly to do well and win recognition and favor. Solely the professors had the authority to award those prizes, and right from the start of the year there was a crowd of students, usually the same ones, who rushed to the front of the room to consult with the teacher at the end of every class. But the most obvious way to score with the professor and your classmates was to be able to answer those befuddling questions that were always being asked. By the beginning of the second week there was a noticeable group who seemed to talk in every meeting, people who raised their hands, faced the professor, and proved themselves less fearful and perhaps more competent than the other members of the section. Clarissa Morgenstern had come to law school after the dissolution of a brief marriage. She was still only twenty-three or twenty-four but she was a commanding figure—tall, attractive, and dressed each morning in the best from Vogue. She spoke in a high-flown, elocutionary style and when called on she would hold the floor for a lengthy statement, not just a one-line answer. Wally Karlin, inspired, perhaps, by his first-day success with Perini, spoke repeatedly; so did Sandy Stern, the MIT engineer from my study group. Other regulars emerged in the next couple of weeks. And there were also a couple of students from large state universities, so accustomed to succeeding by driving through the masses, that when not recognized by the professor, they would, on occasion, shout out their answers anyway.
In general, those people heard from regularly were regarded with a kind of veiled animosity. Many people admired and envied their outspokenness, but for the most part, the regular talkers were treated with an amused disdain.
“I can’t stand Clarissa,” someone told me one day during the second week. “I can’t imagine how I’ll live through all year listening to her. The way she carries on, you’d think it was opera.”
Stephen repeated to me someone else’s remark that Clarissa was “a nice guy off the field, but a terror once she gets between those white lines.”
Feelings seemed widespread that the people who spoke daily were hotdogging, showing off. They were being egotistical. They were displaying the ultimate bad taste of appearing competitive.
With that background, the idea of continuing to volunteer after my initial face-off with Perini left me feeling a strong conflict. There were advantages. I’d been told by 2Ls and 3Ls that you were less likely to be called on off the chart if you raised your hand. And I’d feel more involved in those large classes if I spoke now and then. But it still seemed childish greed to demand the attention of the professors and my classmates, and given the subtle hostility to everyone who talked regularly, the stakes on performing well were raised considerably. If you spoke too often, or frequently proved uninspired or wrong in what you said, you risked being thought a boor. I felt that way now and then about some of the daily speakers.
And I imagine some people felt that way about me, because in spite of reservations, I did begin to raise my hand often. I fell into a kind of second phalanx behind Clarissa and Wally and Sandy and a few others. I was heard from frequently, but not every day. Yet I never reconciled my ambivalence. Whether I spoke or sat silent, whether I was right or wrong, from the time an idea entered my head until I or someone else had said it, I would sit in class in a state of discomfort.
It seemed a trivial preoccupation, but finally I tried talking to Aubrey about it, since he tended to volunteer as often as I did.
“Two classes out of every five,” Aubrey told me at once. He’d worked out a formula, an emotional calculus, to tell him how often it was appropriate to speak.
I had trouble believing he was serious, but he nodded his head. I kidded him a little bit about it, but in the next few days I found myself keeping count.
9/22/75 (Wednesday)
The bad teachers, Mann and Zechman, seem to be getting worse.
Through last week, I tolerated Mann. In fact, I remained somewhat interested in the course. But today I realized that my middling reaction thus far to Criminal Law is the result of what Mann subtracts from a subject that actually fascinates me.
Mann is still wandering around the front of the classroom talking to himself. Half the time his remarks are too disconnected for me to make sense of them, and when I do understand what he’s saying I’m disappointed by the sort of cramped, sociological style of his thinking. There are moments when you can see how large and subtle his mind is, but usually he tries to stuff big questions into little boxlike categories. We’ve spent all this time talking about the use of criminal sanctions in terms of how junkies, madmen, drunks, juvenile delinquents—persons clearly incapacitated—should be treated. Answer? They should not be confined without a fair hearing. Terrific. But what do we do with the unmad, undrunk, unyoung who know what they’re doing and who menace us all? How can we protect ourselves from them without losing our sense of principle and decency?—those questions Mann prefers to brush off. Perhaps we’ll reach them later in the course, but my impression is that our time for being philosophical is now.
As for Zechman, I’m still lost in there, along with ninety-nine percent of the section. People remain befuddled and angry. Class was called off today and I did not even have to go into the classroom to know. I heard the cheer go up from a hundred yards away.
Last week, we seemed to take a definite turn for the worse in there. Still confused about what “intent” is, we began our study of intentional torts. The first discussed was assault. Zechman took a straightforward case and turned it into a maze. A man pointed a rifle at another’s back. The gun hadn’t been fired and the victim was unaware that he was in any danger. The court held that there was no assault, which made sense, since there had been no personal injury.
But then Zechman started with his questions.
What if the victim had been facing the gunman? What if the rifle was loaded? What if it wasn’t? What if, instead of a gun, a recording of a landslide had been played behind the victim’s back? What if the gunman had pointed the rifle at the sky, but fired it? What if the gun had discharged accidentally? What if the gunman had meant to pull the trigger?
No one could even begin to sort through it all. The students again left disgruntled, even outraged, and this time Zechman chose to take notice.
The next morning he came into class and wrote on the board: “Assault: intent to cause harmful or offensive contact or apprehension of that.” Facing the class, Zechman strained to seem pleasant, but he was obviously a little bitter.
“I am giving you this definition because the level of anxiety in the class seems to have reached such extreme proportions. I hope you realize how little such a definition tells you.”
No matter how little it told, everyone I saw carefully wrote the sentence down. But if Zechman had provided any relief, it didn’t last long.
“Now let us commence our discussion of battery,” he said, “returning to the gunman of yesterday whom we left shooting at the sky. Let us assume that the gunman intended to frighten the victim and that those actions indeed constituted assault. Imagine now that a duck was flying overhead. The duck was hit by the gunman’s bullet, wholly inadvertently, and fell from the sky, striking the victim. Battery?”
For the next two days we talked about that goddamn duck. No answers, of course. No answers!
Amazingly, there are a few people who seem to like what Zechman’s doing. I talked on Friday with Leonard Hacker, one of the kids who went to school in England. Len was a philosophy jock at Cambridge and he thinks Zechman is
wonderful.
Far more people seem to have given up. There are a number now skipping the cases and reading the hornbook instead, Professor William Prosser’s Handbook on the Law of Torts, another famous first-year aid, usually known simply as “Prosser.” I have a copy I haven’t cracked yet, but that may not be true by the end of the week.
9/23/75 (Thursday)
Henley very much liked my memo for Legal Methods. Nice to get the stroking, but after three years as a writing instructor I’d probably have been dismembered if he’d told me I couldn’t put a sentence together.
We now have the next chapter in the story of Jack Katz, the fired raincoat-company employee. Henley passed out another memo from our mythical senior partner. Katz has come up with an old letter which may pass for an employment contract with Grueman. It’s close enough so that we’ll soon be bringing suit in Katz’s behalf.
9/25/75 (Saturday)
The student life is still a treadmill, class and books all day, closed up in my study briefing cases every evening. And never enough sleep. The only time I get to see Annette, during the week, is over dinner. On the weekends, thus far, I’ve managed to take off Friday and Saturday nights for movies, music, restaurants; but even then I’m sure I’m not the best of company. Right now, law’s my greatest enthusiasm, yet after losing me to the legal world all week, it’s the last thing Annette wants to hear about. Even when she’s willing to listen, the strange language and the intricacy of all of it makes it difficult for me to convey just what’s so exciting. To A., I’m sure it all seems a jumble and a bore. I continually make resolutions to talk about other subjects, which I somehow never keep.
In those first few weeks, I gradually became aware that second-year and third-year students were moving through a world much different than that of a 1L. Upperclassmen have no required courses and their work load is lighter. Many participate in the numerous law-related extracurricular activities from which 1Ls are usually excluded. Much of the energy of 2Ls and 3Ls does not go into school at all. They are busy looking for work for the forthcoming summer or after graduation, a process with which most as are not involved.
Yet what made the 2Ls and 3Ls seem most distinct was simply that they had survived their first years. They were initiates, part-way attorneys, people no longer fazed by the things which confused us. All of my classmates seemed to have some second-year or third-year student on whom they relied for advice, and I was no exception.
I often solicited wisdom from Mike Wald. Even more frequently, I would go with questions to our BSA advisor, Peter Geocaris. Peter was a generous guide in acquainting me and my cohorts in our Methods group with the customs of the law school. I was intrigued from the start by the earnestness with which Peter regarded HLS’s institutions. Other upperclassmen came on jaded about the school and about studying law. But Peter took Harvard Law School quite seriously.
One day in mid-September I was talking to him about the amazing pace at which the first-year students seemed to be driving themselves, the amount of work we were doing, and the relentless stress we all seemed to place on doing that work well.
“That’s what I love most about the law school,” he told me. “People want to come here because they think it’s the best and they demand the best from themselves. There’s a real standard of excellence here, a standard of achievement.”
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 lLs 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 lLs 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?” r />
“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.”