Rising Star

by David Garrow

  After Obama was a twenty-two-year-old Tufts graduate. “I’m Jennifer Radding. I have no idea how I got in,” she said. She remembers that Barack was among those who laughed, and “he knew I was a bit of a jokester,” Jennifer explained. Jeff Richman had just graduated from the University of Michigan, and Sarah Leah Whitson was a brand-new graduate of UC Berkeley with family roots in the Middle East. The high-powered group featured strikingly diverse experiences. Diana Derycz had spent five years in Mexico as a child and was working part-time as a professional model. Fisher had studied in Australia for three years during and after graduate school, Barack had lived almost three years in Indonesia, and Whitson had spent summers with relatives in Syria, Jordan, and Lebanon.

  O group instructor Scott Becker, a twenty-five-year-old 3L who was a graduate of the University of Illinois, found himself supervising a group of 1Ls some of whom—Rob, Mark, and Barack in particular—were older and more worldly-wise than he. The first day’s mandate was to conduct some sort of attorney-witness Q&A exercise, and when it was over, Barack immediately introduced himself to the obviously brilliant Rob Fisher, who was seven years his senior. “We instantly became friends,” Fisher recalled. Rob’s intellectual enthusiasm and energy belied his thirty-four years. In 1986, New York University Press had published his book The Logic of Economic Discovery: Neoclassical Economics and the Marginal Revolution. The book’s title purposely mirrored Karl Popper’s famous The Logic of Scientific Discovery, and the major figure in Fisher’s work was the late Hungarian philosopher of science Imre Lakatos, whose scholarly work in Popper’s empiricist tradition was vastly better known than his role as a hard-core Stalinist in Hungary’s post–World War II Communist Party. Fisher’s focus was what he termed “A Lakatosian Approach to Economics,” and his volume had garnered enthusiastically positive reviews in scholarly journals. “The book effectively demonstrates the applicability of the philosophy of science to the history of economics,” one reviewer wrote, adding that “the argument is crystal clear and largely persuasive.” A second observed that “the reason neoclassical economists like Lakatos so much is that his philosophy is intended fundamentally to explain the evolution of physics,” since “neoclassical economics wants desperately to be a social physics.”

  Fisher remembered from the first day that Barack “recognized he was in a playground for ideas,” one where he could exercise “his love for intellectual argument.” It was a passion that Rob shared, and from that day forward the somewhat unlikely duo would become an inseparable pair whom scores of classmates recall as the closest of friends. Barack remembered his initial experience of Harvard Law School similarly. “I was excited about it. Here was an opportunity for me to read and reflect and study for as much as I wanted. That was my job,” and a much easier one than what he had confronted at the Developing Communities Project. “When I went back to law school, the idea of reading a book didn’t seem particularly tough to me.”

  The four fall 1L courses gave Barack some large books to read, and he needed to read them with painstaking care. In Contracts, Professor Ian Macneil, a 1955 Harvard Law School graduate who was visiting for the year from Northwestern University, had assigned his own Contracts: Exchange Transactions and Relations, 2nd ed., which was more than thirteen hundred pages long. In Civil Procedure, the text for the year, Richard H. Field et al.’s Materials for a Basic Course in Civil Procedure, 5th ed., came in slightly shorter, at 1,275 pages. Section III’s fall semester of Civ Pro was taught by Professor David L. Shapiro, a 1957 summa cum laude Harvard Law graduate and former Supreme Court clerk, but in December Shapiro would become deputy solicitor general of the United States, and the course would be taken over for the spring semester by Stephen N. Subrin, a visiting professor from Northeastern University Law School.

  In Criminal Law, Professor Richard D. Parker, a 1970 Harvard Law graduate and another former Supreme Court clerk, assigned Paul H. Robinson’s brand-new Fundamentals of Criminal Law, a mere 1,090 pages. And in Torts, Professor David Rosenberg, a 1967 graduate of NYU’s law school who had taught at Harvard since 1979, would use Page Keeton et al.’s Cases and Materials on Tort and Accident Law, which at 1,360 pages was the bulkiest of the four.2

  After the long Labor Day weekend, 1L classes commenced on Tuesday morning, September 6. For Section III, their first class session was Contracts with Ian Macneil, whom the members of Barack’s O Group had already met for a brown-bag lunch in his role as their faculty mentor. Since Macneil was almost as new to Harvard as they were, the assignment had little practical value, but the Scottish Macneil—in private life he was the eminent forty-sixth chief of Clan Macneil—seemed like a nice man.

  But in the classroom, Macneil’s use of the traditional Socratic method brought out an utterly different personal demeanor. Most members of Section III would remember their first class at Harvard Law School for the rest of their lives. They had been informed five days earlier, in the semester’s initial number of the weekly, mimeographed HLS Adviser newsletter, by both Macneil and David Shapiro, what to read in advance of Tuesday’s classes. Macneil’s reading included the preface to his casebook, in which he repeatedly used the Latin abbreviation “e.g.” and also stated his somewhat iconoclastic definition of the course’s core concept: “contract encompasses all human activities in which economic exchange is a significant factor—marriage as much as sales of goods.” That highly inclusive definition distinguished his text from others. “Thus the range of activities treated goes beyond those traditionally associated with the doctrinally structured first year contracts course.” Organized with an eye toward “functional patterns, rather than doctrinally,” the book “focuses on the negotiational and remedial processes that continuing exchange relationships generate.”

  Ian Macneil began Tuesday’s 9:00 A.M. class by telling Section III’s 140 students that no matter where they had gone to college, no undergraduate education had taught them to read as carefully as they would have to in order to succeed at Harvard Law School. “For example, I bet you don’t know what the difference between i.e. and e.g. is,” he remarked while glancing at his seating chart and randomly calling upon Alicia Rubin, a 1987 graduate of Harvard College.

  Rubin knew enough Latin to nail the answer cold: “i.e. stands for id est, that is, and e.g. is exempli gratia, for example,” she replied. “That really ticked him off,” she recalled, because Macneil had not anticipated an immediate correct response. “Well, Miss Rubin,” he said, “let’s see if you’ve done the reading for today. Can you define a contract?” Rubin “had not even bought my books yet,” and “so I fumbled around” trying to answer. Seated next to her was Michelle Jacobs, a 1988 Harvard College graduate who quickly realized that John Houseman’s fictional contracts professor in the 1973 film The Paper Chase was, at least in Ian Macneil’s classroom, no Hollywood exaggeration. “Oh my god! It really does happen!” Jacobs remembered thinking.

  Jacobs knew that Macneil “had this bizarre definition of contract that was in our reading,” and “I had written it down, and I kept trying to give it to her,” but Rubin was focused only on Macneil. “Then he said something to the effect of ‘Don’t embarrass yourself further. Please leave the room, do the reading you were supposed to do, and then come back and see if you can take a better stab at it.’” David Attisani, a 1987 graduate of Williams College, watched the exchange and thought it “idiotic.” So did Eric Collins, the African American Princeton graduate who was in Obama’s O Group. He recalls thinking that “if this is how law school is, I’ve made a mistake.” Rubin said she rose, “borrowed somebody else’s textbook,” and headed for the door. Richard Cloobeck also remembered the scene. “It was a very, very powerful moment, and he was such an asshole.”

  In the hallway, Rubin read through the preface of Macneil’s casebook. “It seemed like an eternity, but it probably was only ten or fifteen minutes.” She went “back into the room,” and “then he calls on me again.” Rubin tried “to stumble through some kind of response,” but
Macneil “picked me apart again.” She felt “absolutely mortified and miserable,” but finally the class ended. “It was just a horrible first day of class,” Rubin recalled, but a few minutes later, in a nearby hallway, an older student she did not know came up to her. “He put his hand on my shoulder and was like ‘You know, you did a really nice job.’” He introduced himself as Barack Obama. “He was giving me this little pep talk,” and Ali Rubin was hugely appreciative. Barack’s comments were “really nice.”

  David Shapiro’s first session of Civ Pro featured a discussion of Goldberg v. Kelly, a 1970 U.S. Supreme Court decision protecting the due process rights of welfare recipients. Richard Parker’s Crim Law and David Rosenberg’s Torts also started the semester without incident, but each morning Section III’s Contracts class met with Macneil, the room was riven with tension as the students waited to see whom he would call upon next. “If someone’s terrified, they’re not learning very well,” recounts Amy Christian, a magna cum laude 1988 graduate of Georgetown University who later became a law professor herself. She “couldn’t stand” Macneil’s classroom style, and most of her classmates soon felt likewise.

  Making things worse, Macneil demanded that students initial an attendance roster each morning to demonstrate who was present. American Bar Association accreditation standards for law schools mandated that students actually attend most of their classes, but in 1988 the majority of law professors, at Harvard and elsewhere, paid little attention to this requirement. Macneil’s policy, followed by angry warnings when it was discovered that some people were signing in for absent classmates, roiled Section III even further. “People felt it was juvenile,” Lisa Hay, a 1985 summa cum laude Yale graduate, recalled. The practice was “really juvenile for a professional school,” agreed Martin Siegel, a 1988 highest honors graduate of the University of Texas.

  “Relations between Macneil and the class broke down very severely very quickly,” Mark Kozlowski explained. In class Macneil came across as “a very angry person,” remembered Morris Ratner, who had just graduated with distinction from Stanford. The “toxic atmosphere” made the course “a disaster,” the exact same word that David Troutt, a biracial African American 1986 graduate of Stanford, used when recalling the day Macneil “cursed at me.” Aside from Macneil’s attendance policy, there was also the burden of “how demanding he was in terms of the volume of material that you had to cover and also because of how ruthless and unforgiving he was of people who weren’t prepared,” explained Paolo Di Rosa, a 1987 magna cum laude graduate of Harvard College. “He really humiliated people who weren’t prepared.” Michelle Jacobs came to believe that Macneil “liked humiliating people.” Jennifer Radding remembered the day Macneil called on her about secured transactions. “I’ll never forget it—obviously I’m still traumatized all these years later,” she joked equivocally. Greg Sater, like Ratner a 1988 Stanford graduate with distinction, felt Macneil was “really verbally abusive to people,” and Sarah Leah Whitson found him “so angry and critical and disparaging of students.” Di Rosa used the same adjective as Sater—“abusive”—to characterize Macneil, who was “just a monster,” and Di Rosa agreed with Amy Christian that the result was “more fear than respect.”

  Rob Fisher was the only student who had spent six years at the front of a college classroom, but he fully shared his classmates’ view that Macneil was “a horrible professor” and Contracts “was the most painful course.” Fisher and Mark Kozlowski, also older, both quickly grasped that Macneil’s idiosyncratic approach was profoundly simplistic. “He had one idea,” Fisher recalled, “that contracts are relationships.” Kozlowski was even more dismissive, viewing Macneil’s focus as “a pointless effort to apply absolutely standard social science rhetoric to contracts.” Even worse, “he spent a lot of time on his theory and not a great deal of time on learning contracts,” which quickly led many in Section III to believe they were being shortchanged relative to friends in other sections. “There was a sense that Section III was not learning contracts at the same level as the other students and learning the doctrine,” recalled Tim Driscoll, a 1988 summa cum laude graduate of Hofstra University. “People just really thought that they were not learning contracts law, and they were getting cheated,” agreed Gina Torielli, an older student who had graduated from Michigan State with high honors.

  Jackie Fuchs, a 1988 summa cum laude graduate of UCLA who before college played bass guitar alongside Joan Jett in the Runaways, agreed that Macneil was “very hard to get along with,” but she felt he simply “did not know how to relate to people in their twenties.” Kozlowski was less charitable. Not only was Macneil “extremely antagonistic in class,” he repeatedly “would simply insult people to their face,” and not just young women like Ali Rubin. Mark remembered a conservative white male politely saying he did not understand a question, yet Macneil responded, “It’s a point that would be obvious to any intelligent person. It’s not obvious to you.” Shannon Schmoyer, who had graduated summa cum laude and first in her 1987 class at the University of Oklahoma, summed up Section III’s view of Ian Macneil: “he was an embarrassment to Harvard Law School.”3

  Not all of Barack’s time and energy during the fall semester’s first weeks were devoted to his casebooks and class time. The law school’s Hemenway gym was indisputably a dump—a word that a dozen alumni used for the facility—but its convenient location made finding pickup basketball games easy, as long as yoga classes or volleyball matches were not taking place. Only a few hours after reassuring Ali Rubin how well she had coped with Macneil’s onslaught, Barack late that afternoon went to Hemenway and found a group that included twenty-two-year-old African American 1L Frank Harper, a magna cum laude graduate of Brown University, and four African American 2Ls: Kevin Little, Leon Bechet, Frank Cooper, and Kenny Smith. African American 1L David Hill, a 1986 high honors graduate of Wesleyan University, soon joined the regular late-afternoon mix.

  When a student intramurals league got started shortly into the semester, a half-dozen of the black Hemenway regulars, including Barack, came together briefly on a team they called BOAM: Brothers on a Mission. “We weren’t very good,” remembered Kevin Little, perhaps HLS’s top basketball devotee. All during that 1L year, Barack spent a good deal of time on the basketball court, but “he didn’t want to hang out afterwards,” Leon Bechet recalled. “It seemed like he always had a schedule . . . like he had a mission and he had a purpose.”

  With the 1991, 1990, and 1989 classes together, Harvard had more than 150 black law students on campus that fall, and the BLSA chapter seemed to have as much energy as their 1988 graduating class. BLSA scheduled its own orientation event for 1Ls soon after their arrival on campus. David Hill remembered how “Barack is holding court” and other new students “thought he was not a 1L” as they listened to him. “People were very surprised that this guy was a 1L simply because of how he was handling himself.” An evening or two earlier, standing in the checkout line at the Star Market in Porter Square, just up from the law school, Barack had introduced himself to an African American woman he recognized from the first day’s financial aid orientation session. “I think we’re both at Harvard,” he said to Cassandra “Sandy” Butts, a 1987 graduate of the University of North Carolina at Chapel Hill. Butts was in Section I, but “we certainly bonded over some of our challenges in the financial aid office,” and she, like Rob Fisher, became a close friend of Barack’s in their first days at Harvard.

  Butts was with Obama and David Hill at that BLSA gathering when 3L Sheryll Cashin approached. Cashin too recalled other students listening as Barack spoke. “Within a couple of minutes, all of the people around were just hanging on his every word.” Barack was “dressed kind of shabbily,” and “I remember him talking about community organizing.” Also listening was one of the youngest 1Ls, Christine Lee, a 1988 Oberlin College graduate who was still a few days shy of her twenty-first birthday. Lee had spent her early childhood in Paris, but when she was ten, her white mother lef
t her alcoholic African American father and took her to live in Boerum Hill, Brooklyn, where she grew up as the black daughter of a white single mother. From Christine’s youthful perspective, Barack sounded “kind of full of himself,” because “he acted like he’d come from a whole life of work in the trenches rather than just a little stint after college.” Barack “seemed pretentious,” and “I immediately did not like him.”

  Barack remembered listening to and first meeting Derrick Bell at that BLSA orientation, but he was not immediately drawn to any of the five African American men on the law faculty. Even though Charles Ogletree was an untenured visiting professor, the 1978 Harvard Law graduate was an enthusiastic cheerleader for the school’s black law students, and by mid-September, Ogletree had begun convening the first of four fall semester “Saturday School” sessions during which he hoped to reassure black 1Ls that they should not allow self-doubts to prevent them from succeeding at Harvard Law School. Derrick Bell and David Wilkins joined Ogletree, as did Charles Nesson, a white 1963 summa cum laude Harvard Law graduate who had worked in the U.S. Justice Department’s Civil Rights Division before joining the Harvard faculty. Ogletree was at pains to stress that the Saturday-morning sessions were “not a remedial course,” and BLSA leaders, like Ogletree, used the gatherings to encourage black 1Ls to become active in and seek out leadership roles in a variety of student organizations. About forty students attended the initial meeting, and Obama’s black classmates remember that he rarely if ever attended “Saturday School.”4