One L (22 page)

I studied almost lethargically, sifting through the huge outline—it was over 400 pages—which we'd put together. Most of the pre-Christmas work seemed now to have been purposeless. Time and Torts had pushed almost all of it out of my head and I made a note to myself to avoid getting enmeshed in that kind of project in the spring. I had to cram everything back in again.

On Sunday night, I had no trouble sleeping. Annette, who'd been snowed out of school, drove me home after I'd picked up the exam Monday morning. I looked the test through while in the car. Because of the nature of the material, the narratives in Crim tests are often burlesques. They frequently read like parodies of the last act of Hamlet, with people being murdered all over the stage. But this one was down-to-earth, realistic, about a prostitution and theft ring of the kind of which there must be a dozen in every large city. The exam described the apprehension of the ring's members through the use of police decoys and a bugging. We were instructed to act as assistant district attorneys assigned to write a memo listing possible charges against those arrested and evaluating the admissibility of each piece of evidence which had been gathered.

At home I worked the first few hours in the same kind of listless way I'd studied. I paged through the Model Penal Code, looking up crimes—waiting, I guess, for things to fall into place. They didn't; and at about 11:30, I panicked. I'd wasted more than a quarter of the time and I was sure-positive—that now I really would fail. The adrenalin came then, but for some reason it was too much. My body overdid it. I turned white, and crazy things seemed to go on inside my chest. I had a peculiar kind of arthritic reaction, maybe just because the rush lasted so long, and the joints throughout my body became too painful for me to work sitting down. I had to write on my feet, but I finished in time, getting back to school through the snow and the rush-hour traffic on schedule.

Afterwards, we tried to celebrate. Annette and I went out with Terry and Aubrey and their wives, Donna and Arlene. Aubrey drank a vodka Gibson, then a bottle of Beaujolais and three or four beers. I also got roaring. But exams and that amazing wash of panic had left me limp.

When I got home I made a note in the journal:

I feel rotten. I feel wasted. I have finished my first term at the law
.

In the aftermath of exams, I felt bitter and cheated. After the long buildup, some kind of letdown was probably inevitable. And in part, my disappointment really had little to do with the tests themselves. In reviewing, I'd seen how much of my elaborate daily preparation for classes had not been worthwhile. The finest points of the cases, which I'd stayed up to all hours struggling to comprehend, were not merely irrelevant to the exams, but had also proved to be beyond the grasp of my memory. I promised myself not to be as relentless in the term ahead.

Yet even granting that I was victim of my own excesses, there were other aspects of exams which for me took a relish out of law school that was never quite restored. All along, 2Ls and 3Ls had told me that I'd never been through anything like a law exam, and they were right. But that did nothing to enhance my respect for the tests. I felt insulted by them—there's no other way to put it. Finals were regarded with an institutional earnestness which had left my classmates and me believing for months that the tests would offer some consummate evaluation, not simply of how well we'd learned, but—almost mystically—of the depths of our capacity in the law. Exams were something to point to, a proving ground for all the hard and sincere labor. And instead they had been intellectual quick-draw contests, frantic exercises that seemed to place no premium on the sustained insight and imagination which I most admired in others, and when they occurred, felt proudest of in myself.

When I returned to school, I found that most of my classmates seemed to share my feelings. People were incredulous now that these peculiar, limited instruments would be the sole basis for our grades. Reports of the haphazard way professors marked finals—comparing the papers against a checklist of salient points, giving no more than a few minutes to each test—only heightened the sense of injustice and frustration. And there was another group who continued grieving over errors. We'd all made mistakes, grand-style blunders and omissions. It's natural in the midst of that furious rushing. There is no such thing as a perfect law exam. Chris Henley told me later that touching on about sixty percent of the possible issues is often enough for an A. But some people could not be convinced that lapses were expected, and walked around for weeks making wan jokes about having their bags packed.

Distress over law exams is nothing new. The student outcry for reform, for the opportunity to be evaluated through papers as well as tests, or by way of more frequent and less charged examinations, has been heard for years, and has in large part been rebuffed. Some faculty members frankly admit that they prefer not to spend the additional time that the alternative systems would require. Students sometimes suspect there are other reasons for the faculty's resistance to change. The professors are persons who did quite well on exams; in fact, they all owe much of their present position to that success. It is difficult at moments not to see them as merely perpetuating the regime on which they base their sense of authority and self-esteem.

Tom Blaustein offered a limited defense of exams when I told him how angered I had been by the whole process. He admitted that he preferred to get papers from his students and that traditional law exams hardly measured the full range of qualities important in a good attorney.

“But over the long haul,” Tom said, “they do give you some reading on the way your mind works in certain situations—one skill. And if you're making a career choice—or if someone is making decisions about you—it's better to know that than nothing at all.”

Maybe. Even conceding Tom's point, I'm still not sure that that one quality should be allowed to determine so much of who gets what jobs, who teaches, who clerks, who gets the Law Review's training in legal scholarship. But the truth is that exams have so dominated my year as a law student that I have no objectivity about them. We'll all end up as lawyers anyway, entering a world of fine opportunities, and in the end I've tried to write off exams as a quaint professional custom, another rite of passage for the novice.

But one thing nags which does not bear directly on me anymore, but is worth mention. Right now admissions at most American law schools are based on predictions of how well applicants will do in school, which is to say how high they will rank on exams. Those forecasts, based on statistical formulae that combine LSAT scores and college grades, are often quite accurate. But that amounts only to saying that American law schools admit people who will be good test-takers rather than good attorneys. Correlations between exam success and worthwhile achievements in the practice of law are speculative at best. Until that connection is better established, the narrow and arbitrary nature of exams will continue to dictate a narrow and arbitrary means of selection for training for the bar. And that is a peculiar state of affairs for a profession and an education which claim to concern themselves with rationality and fairness.

Getting By

1/19/76 (Monday)

A l½L now. The second term begins. Boredom where there once was trepidation. Devices where there once was energy. I have resolved to brief no cases this term. I want to conserve time to read a newspaper now and then, and even on occasion, a novel.

Around Harvard Law School it is just so damn hard to keep a sense of perspective from slipping into exhausted cynicism. In the wake of exams, I still feel the impulse to give the whole joint the finger. Last night, in trying to figure out what elective I should take, I found myself concentrating on profound pedagogical questions. How easy was the course? How hard did the final look in the red book? Could I slide by without much daily preparation?

Before I came to law school, there were even times when I thought of myself as an intellectual.

Archibald Cox, the former Watergate prosecutor, is about as close as one gets these days to being an authentic American hero. A prim embodiment of Yankee virtue, it was Cox, then Watergate prosecutor, who first confronted Nixon over the White House tapes, and in the process, reminded the American people that public men can still be decent.

In a different environment, Cox would be an object of constant worship. About the time I started law school, two friends visited me from Chicago and stood in hushed awe just at the sight of Cox's nameplate beside his office door. But at Harvard Law School, where Cox for years has been a member of the faculty, students are not subject to the same kind of wonder. This year there was a bum rap out on Cox. It was said that he was soporific in the class and—far more repellent at HLS—a notoriously low grader. Given the opportunity to take a course with Cox, most of the first-year class moved stalwartly in the other direction.

In 1972 the first-year curriculum at HLS was reformed. Among many changes, 1Ls, in the second term, were given the new liberty of selecting a course to go with the prescribed regimen of Contracts, Civil Procedure, and Property. The elective courses were to be “relevant,” concentrating less on common law and case reading, and more on subjects and policy matters with greater intrinsic appeal to students. This year, for example, elective offerings included courses on Chinese law, contract theory, broadcasting law, legal ethics, environmental law, and comparative law (which examines the legal systems of other countries), and a course entitled “Law and Public Policy,” normally taught at Harvard's John F. Kennedy School of Government.

It all sounds like a great idea, but the classes have turned out to be watered-down versions of advanced courses, boring to the faculty who teach them and also to 1Ls. As a a result, I—like nearly half of the first-year class—opted for the most traditional selection: Constitutional Law, another basic course. Con Law, which concerns the major pronouncements of the U.S. Supreme Court about the Constitution, was offered in two classes this year. One was taught by a young professor who'd established a glowing reputation with 1Ls as instructor of one of the first-term courses in another section. The other class was to be taught by Archibald Cox.

The rumors bruited among 1Ls about Cox's grading and classroom style were not true, but elective registration took place during that hysterical period in late December before exams when all of us were somehow ready to believe the worst about everything. Enrollment for the young professor's class outran Cox's six to one, and when the dean and the registrar tried to even out the class sizes there was a confrontation with angry students and a lot of fur flying—lotteries, mass meetings, open letters to the class.

As the second term began, seventy students were still assigned to Professor Cox's course—many of them, like me, involuntarily. I tried to keep an open mind in the first two days, but Cox did seem dry; and more important, I realized how little I wanted to take another heavy law course. I was too weary of the stuff. When the Public Policy class opened for the additional registrants, I dashed for freedom.

Law and Public Policy amounted to a crash course in the working skills needed in upper-level positions in government: analytic knowledge (economics, statistics, decision theory), methods of planning, management techniques. The course was taught by the “problem method” developed at Harvard Business School. For each meeting we were assigned a “case study,” a lengthy description of the setting and difficulties facing some potential decision maker. In class, we'd talk through possible solutions. The material and much of what was said about it had a fuzziness typical of social science, a far cry from the hard-edged principles enunciated in the usual law school classroom. Many of my classmates felt they were being outdone somehow. “All of this is crap,” Kyle told me the day before he dropped the course.

I didn't agree. I valued the relief of a less tortured approach, as compared with that of the rest of our courses. The class was smaller—70 students—and like all the electives, it contained students from other sections. That was welcome leavening after looking at the same 140 people every day for months. I also liked the professor. Guy Sternlieb was a member of the faculties of both the law and government schools, and a former high official with the Department of Health, Education, and Welfare. He was tall, fortyish, quiet-spoken—and a remarkably decent guy, generous to his students and down-to-earth. In Guy's class you were not called on. If you had something to say, you raised your hand. You were addressed by your first name, and you spoke to Guy the same way. Despite the size of the class, it had the feel of a seminar.

Karen Sondergard was also taking the course, and during the second week she said to me, “You know what's amazing about this class? I realized the other day that it's the only one where I walk in and I'm not terrified. I'm actually
happy
to be here.”

Few of the students in my section would have made a similar statement about Property, our other new course. Property law concerns the rules and devices relating to the ownership of things. Gifts, wills, trusts, zoning, the many sides of real estate law—these form most of the general subject matter. It is a peculiar and often extremely difficult course. The ownership of property is a first principle of Western societies and the rules regulating that ownership are not easily altered without upsetting the entire social scheme. Many elements of property law have not changed since the Middle Ages. Much real estate law, for instance, still shows the influence of feudalism, the doctrines shaped by the needs of the lord of the manor. A lot of those rules no longer make sense and simply have to be absorbed by rote.

But other aspects of the course were fascinating. Despite having been jaded by exams, I felt a good deal of excitement as I read the initial cases and considered the questions they presented. What, really, does it mean to say somebody “owns” something? That that person can use a thing? Or control it somehow? Or just that he is recognized as the owner? Why are certain kinds of use or control legitimate, and others the stuff of thievery and fraud? But as in Criminal Law, I soon discovered that some of my natural enthusiasm was being dampened by my reactions to the professor.

Like most of the people in the section, I had heard all year about Isaac Fowler. Each story made him sound less appealing. One 3L claimed to have taken a total of twelve pages of notes in a term with Fowler. I'd also been told several tales about the snubs and indifference Fowler had routinely shown students.

He was a strange person, small, spare, always in the same tweed sport coat, a moody middle-aged man who seemed to have thought everything over and decided that nothing was worth much. He was, of course, a noted legal scholar, an expert on international law and the UN; but as a teacher he appeared to have burned out years before. For each class he would arrive with a weathered sheaf of notes which he would read as enthusiastically as the instructions off a soup can. In his questioning of students he was gentle at some moments, but far more often he was abrupt and dismissive. “No, no,” he'd say, “that's ridiculous,” cutting off whomever he'd called on. At the start of the term, Fowler had been particularly harsh.

“I'm going to see if these rumors are true that you learned something last semester,” he told us in the first session. The initial cases were all mid-nineteenth-century English reports. With his questions, Fowler tried to befuddle the class, asking for definitions of terms and procedural maneuvers we'd never seen before, trying to drive us into the inferential chasms created by the absence of material which Fowler, editor of the casebook, had cut from the opinions himself. Section 2 was not buying any. We'd seen this routine the first day with Perini; and besides, the class was already indisposed to Fowler by reputation. When somebody could not answer a question, no other hands appeared. By the end of the first class, it looked as if the term was going to be a long, slow contest, one against one hundred and forty.

On the second day Fowler called on Wade Strunk.

“I pass,” Wade answered in his soft accent. Fowler ran his class in the old-fashioned way, in which students were always expected to respond. When Wade spoke my heart clutched and I thought to myself, the Incident, Part II.

“I didn't hear you,” Fowler said.

“I pass.”

“I'm sorry?”

“I pass.” Wade said again, louder, looking straight at Fowler.

“Are we playing bridge or something?” Fowler asked. He stared at Wade, then, of course, called on the person beside him.

Wade afterwards said he had been quite prepared, he was merely trying to establish his classmates' right to remain silent when they chose to. A number of people expressed the opinion that were it not for the Incident, Fowler would have been far harsher, an observation which may have been true. Whatever else, though, that moment with Wade served to make overt the mood of quiet opposition and the determination of some in the class to resist any heavy-handed techniques. In the aftermath, Fowler softened somewhat. But he could not make himself less painfully dull. By the end of the first week, attendance had begun to drop and continued downward the rest of the term. Terry looked in on the first few classes and never came back. Willie Hewitt went out the door in the middle of a session, muttering loudly that he could sleep just as well at home. The man beside me explained that his loud sucking of mentholated cough drops was an effort to keep himself awake during class.

I did not really enjoy Fowler, either. I wished that he would bring more out of the material. I wished, in fact, that I had another teacher. But every now and then something brilliant would escape him. He was obviously a learned man, and he regularly made refreshing little departures, relating classroom problems to literature, anthropology, economics, history. He also had a pleasing, light wit. In midsentence he was liable to interrupt himself with observations such as “Here in Property we study the Golden Rule—he who has the gold rules.” The asides seemed enough to warrant attendance.

On the whole, I shared Stephen's sentiments. At the end of the first week of the second term, as we were heading out of class, I asked what he thought of Fowler.

“I figure it might have been a lot worse,” Stephen told me. “We could have had him first term, and then we wouldn't have known enough to ignore him.”