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 the judge may have to accept without question all kinds or 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 fist-fight. 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.”
The remark struck a number of people, and as we left class for lunch, I talked about what Nicky had said with Gina Spitz. Gina came on as the last of the tough cookies. She’d just graduated from Barnard and she was full of the bristle of New York City. She was big, feisty, outspoken, and glitteringly bright. But what Nicky had said had touched her in a way that left her sounding plaintive.
“They’re turning me into someone else,” she said, referring to our professors. “They’re making me different.”
I told her that was called education and she told me, quite rightly, that I was being flip.
“It’s someone I don’t want to be,” she said. “Don’t you get the feeling all the time that you’re being indoctrinated?”
I was not sure that I did, but as Gina and I sat at lunch, I began to realize that for her and many other people in the section, there was a crisis going on, one which had not yet affected me as acutely.
On one hand the problem was as simple as the way Nicky had put it. Students felt they were being forced to identify with rules and social notions that they didn’t really agree with. In Contracts, for instance, it had already become clear that Perini was an ardent free-market exponent, someone who believed that the national economy should function without any government regulation. Perini quickly succeeded in showing us that many of the common-law contract rules reflected free-market assumptions. When he threw the floor open for comment about whether those free-market rules were desirable or not, Perini’s fearsomeness made it hard to contest him.
But there was a subtler difficulty in our education, one which went to the basis of legal thinking itself and which became especially apparent in class. We were learning more than a process
of analysis or a set of rules. In our discussions with the professors, as they questioned us and picked at what we said, we were also being tacitly instructed in the strategies of legal argument, in putting what had been analyzed back together in a way that would make our contentions persuasive to a court. We all quickly saw that that kind of argument was supposed to be reasoned, consistent, progressive in its logic. Nothing was taken for granted; nothing was proven just because it was strongly felt. All of our teachers tried to impress upon us that you do not sway a judge with emotional declarations of faith. Nicky Morris often derided responses as “sentimental goo,” and Perini on more than one occasion quickly dispatched students who tried to argue by asserting supposedly irreducible principles.
Why, Perini asked one day, is the right to bargain and form contracts granted to all adults, rather than a select group within the society?
Because that was fundamental, one student suggested, basic: All persons are created equal.
“Oh, are they?” Perini asked. “Did you create them, Mr. Vivian? Have you taken a survey?”
“I believe it,” Vivian answered.
“Well, hooray,” said Perini, “that proves a great deal. How do you justify that, Mr. Vivian?”
The demand that we examine and, justify our opinions was not always easily fulfilled. Many of the deepest beliefs often seemed inarticulable in their foundations, or sometimes contradictory of other strongly felt principles. I found that frequently. I thought, for example, that wealth should be widely distributed, but there were many instances presented in class which involved taking from the poor, for whom I felt that property rights should be regarded as absolute.
Yet, with relative speed, we all seemed to gain skill in reconciling and justifying our positions. In the fourth week of school, Professor Mann promoted a class debate on various schemes for regulating prostitution, and I noticed the differences in style of argument from similar sessions we’d had earlier in the year. Students now spoke about crime statistics and patterns of violence in areas where prostitution occurred. They pointed to evidence, and avoided emotional appeals and arguments based on the depth and duration of their feelings.
But to Gina, the process which had brought that kind of change about was frightening and objectionable.
“I don’t care if Bertram Mann doesn’t want to know how I feel about prostitution,” she said that day at lunch. “I feel a lot of things about prostitution and they have everything to do with the way I think about prostitution. I don’t want to become the kind of person who tries to pretend that my feelings have nothing to do with my opinions. It’s not bad to feel things.”
Gina was not the only classmate making remarks like that. About the same time, from three or four others, people I respected, I heard similar comments, all to the effect that they were being limited, harmed, by the education, forced to substitute dry reason for emotion, to cultivate opinions which were “rational” but which had no roots in the experience, the life, they’d had before. They were being cut away from themselves.
Many of the people with these complaints were straight out of college. In thinking about it, I concluded that having survived the ‘60s, held a job, gotten married—having already lived on a number of principles—made me feel less vulnerable to a sense that what we learned in class would somehow corrupt some safer, central self. But there was no question that my friends’ concern was genuine, and listening to them made me more self-conscious about the possible effects our education in the law was having on me.
At home, Annette told me that I had started to “lawyer” her when we quarreled, badgering and cross-examining her much as the professors did students in class. And it seemed to me there were other habits to be cautious of. It was a grimly literal, linear, step-by-step process of thought that we were learning. The kind of highly structured problem-solving method taught in each of Perini’s classes, for instance—that business of sorting through details, then moving outward toward the broadest implications—was an immensely useful technical skill, but I feared it would calcify my approach to other subjects. And besides rigidity, there was a sort of mood to legal thinking which I found plainly unattractive.
“Legal thinking is nasty,” I said to Gina at one point in our conversation, and I began to think later I’d hit on a substantial truth. Thinking like a lawyer involved being suspicious and distrustful. You reevaluated statements, inferred from silences, looked for loopholes and ambiguities. You did everything but take a statement at face value.
So on one hand you believed nothing. And on the other, for the sake of logical consistency, and to preserve long-established rules, you would accept the most ridiculous fictions—that a corporation was a person, that an apartment tenant was renting land and not a dwelling.
What all of that showed me was that the law as a way of looking at the world and my own more personal way of seeing things could not be thoroughly meshed; that at some point, somehow, I would have to learn those habits of mind without making them my own in the deepest sense. I had no idea quite how I’d go about that, but I knew that it was necessary.
“Every time we have one of these discussions in Criminal,” Gina said, “I want to raise my hand and say, The most important thing is to be compassionate. But I know what kind of reaction I’d get from Mann—he’d tell me, That’s nice, or just stare at the ceiling. I mean, am I wrong?”
I agreed that she was not, either in predicting Professor Mann’s answer or in the opinion she’d expressed.
“It’s a problem,” I said, and I realized it was one that nobody yet had shown us how to solve.
10/7/75 (Tuesday)
Perini’s class remains the biggest show in town. In the other courses the profs have all backed off a little. In Torts or Procedure or Crim no one has been asked to state the case in full since the second week. When you’re called on in those courses theprofessors ask you only a question or two and then go on to someone else, or fill in with their own comments. Nobody likes getting called on. But with Nicky you can pass when you don’t want to speak; and with Zechman, now, you can pass when you don’t know the answer. You can always tell Mann that you are unprepared.
But in Contracts there are no excuses once you hear your name called, and being selected for the day’s case remains a dramatic event. Despite some detours, Perini usually returns to his chosen interrogatee with more questions, so you remain on the spot throughout the hour; and Perini rarely comes on soft or unimposing. The study group continues the furious cramming and rehearsing in the period before the class in case it turns out to be the day for one of us to give the big performance. “The contract was voided for mistake.” “No, no, unilateral mistake.” “No, mutual mistake as to essence.”
There are, however, rewards for being called on. Word is it only happens once. Perini makes large checks on his seating chart beneath the name of the person whom he selects each day. We all have noticed.
The tension in the class is often terrific as we wait to see who the day’s victim will be and then what Perini will do to him or her. Maybe for that reason, there is more laughter in Contracts than elsewhere. Also, in fairness, Perini has quite a sense of humor. He is often brilliantly funny, and he can take a joke as well.
On Monday, he was making a point the long way around and he asked us, “Did anyone see the late movie last night?”
There was a spatter of giggling at once, painfully ironic. I think most of us are still too overwhelmed with work to even glance at a television set or the late movie.
From the back of the classroom, someone yelled, “Was it assigned?”
It was the biggest laugh we’ve had in class all year and Perini laughed along with us.
Today he called on Hal Wile to state Boone v. Coe, an old Kentucky case. Hal is one of the easiest-going people in the section, but he struggled today, first with his nerves and then with the case. He obviously didn’t have a brief, nor did he appear to have read the opinion very well, if at al
l. He started out haltingly, reading the facts directly out of the book. He said that the parties had made an oral lease for a year.
“Well, that’s the whole case, isn’t it?” Perini said.
He had a hard look on his face and it was clear that he was angry. The question he’d asked would be a dead giveaway on whether Hal had read the case at all. One of the points later in the opinion is that oral leases aren’t valid if made for a year or longer.
The kid beside me, Don, whispered, “Oh, brother.” We’d all heard dark rumors about Perini’s reaction when he found a student unprepared.
Hal, across the room, was looking into the casebook, desperately seeking the answer. Finally, he looked up and said almost sweetly, “I did see the late show.”
The laughter was wild, partly from the relief. Perini smiled a moment, then waited for the class to quiet. He called on another student; but before he did, he got in a line, tart and a little foreboding, of his own.
“Believe me, Mr. Wile,” he said, “it shows.”
At the start of October, many of the upper-year students began to appear each day in professional dress. The men moved through the corridors in a phalanx of three-piece suits in pinstripe and flannel and the women put on dresses and nylons and high-heeled shoes.
It was interview season at Harvard Law School, the two-month period when representatives of about 800 law firms and government agencies from all over the country arrive to present themselves and to choose the 2Ls and 3Ls who will soon join them. The third-year students were seeking permanent jobs, to commence as soon as they had taken the bar exam the following summer. Most would become associate attorneys in large urban law firms. The 2Ls were looking for summer work as clerks—again, most often in big private firms.