by Scott Turow
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, 11,s, 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 Us. As 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 Us 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 lLs 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 qqestioning 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 f
irst 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."
Late in January, the moot court competition began. At Harvard, the competition is an annual memorial to James Barr Ames, a renowned law professor who died early in the century; and in all its phases, the competition is usually known simply as "Ames."
Moot court competitions are yet another of the universals of first-year education at most American law schools. Like the Legal Methods program, of which Ames is technically an extension, moot court seeks to acquaint the beginning law student with some of the practical aspects of being a lawyer. Students prepare and argue appellate cases--cases on which there is already a trial decision against one another, and at HLS all arguments supposedly take place in the mythical state of Ames. Every 1L is required to take part in the program. Those who enjoy their initial experience in moot court can, at Harvard and most other law schools, go on in their second and third years to what is called "upper-round competition," where there are money prizes and considerable honor to the winners.
First-year Ames features nothing so glamorous. There is only a single argument, in which it makes little practical difference who wins. Anyone with the inclination can go on to the upper rounds. In many regards, Ames is just a grander version of the summary-judgment motion 'we prepared for Legal Methods, which was, in fact, partly intended to ready us for moot court. Again, students work in pairs. Once more we would have to write a brief althoughfor Ames the formalities of legal citation were to be observed--and again we would argue to a mock court, though there would be three judges this time instead of two, and one of them would be a member of the law-school faculty.
The great distinction, however, between Ames and what we'd done in the fall was that for moot court no one was going to hand us the case law as they had in Methods. Now we would be in a position more like the one in which practicing attorneys often find themselves. We'd be presented with an abbreviated version of a trial record and assigned to argue on appeal either for or against the trial court's decision. From that point forward, we'd be on our own. We would have to analyze the case, figure out the matters in issue, and then retreat to the library and find the best law to support our side. The period from the time the record is first received to the date of the argument is about six weeks, so the work on Ames is expected to be extensive. We'd be closely supervised by 2Ls and 3Ls, usually from BSA, which presides over first-year Ames. Prior to theargument we'd have to prepare a research memo and a draft of our brief as well as the final brief itself. I'd been told that for many as Ames became the primary event of the winter, with more time invested in it than in any of the classes, which usually lolled into doldrums during the period.
In the kinds of cases as could argue, we had considerable choice. BSA offered thirteen cases, all fictionalized, but each relating to an area of law touched on by the first-year subjects. In addition, there were a number of "alternative" cases, sponsored by many of the upper-year extracurricular groups like the Environmental Law Society or the Civil Rights--Civil Liberties Research Committee.
I had asked Terry to be my partner and together we decided to request assignment to a BSA case on defamation. It was a subject Zechman had not reached in Torts and we were both interested in learning something about it.
On January 30, we went to the BSA office to pick up our trial report. It was a lulu. The Reverend Edward Gantry was minister of a church in Pound City. Previously, he had been the pastor of a congregation in a nearby town, but he had been dismissed in reproof for his antiwar activities. Now, Ralph Wilson, one of Gantry's former congregants, writes the reverend, irate that Gantry is still disgracing the ministry. He threatens to make public a distorted version of the events surrounding Gantry's discharge unless the Reverend Mr. Gantry resigns his current pastorate. Rather than allow the story to reach his congregation as pernicious gossip, Gantry reads Wilson's letter to the Pound City church members and explains his point of view. Nonetheless, he is fired again. He sues Wilson for the defamation contained in the letter and wins.
On the appeal, Terry and I were assigned to the side of Wilson, the letter writer. It made no difference that he sounded like a clod. The principle of advocacy we had been taught all year was that he deserved full and unbiased representation. We would have two lines of attack. Defamation occurs when someone publicly makes remarks, in print or by word of mouth, which are untrue and damaging to another's reputation. In Gantry v. Wilson, it was the minister himself who had chosen to allow the letter's content to be known. One issue on appeal would be Gantry's role in making the defamatory material public. The other was a Constitutional matter. On the face of it, there is some conflict between the law of defamation, which restricts what people can say about each other, and the First Amendment's guarantee of freedom of speech. For many years the U. S. Supreme Court has been seeking to reconcile the two principles, and the most recent doctrine is that short of reckless disregard for the truth, you can say what you want about somebody who is considered a public figure. Therefore on appeal, we would also argue that the minister was a public figure within the meaning of the law.
On Saturday morning I met Terry at the library to begin the research. The night before I had gone through Gilbert's on Torts and the Prosser hornbook and absorbed the outlines of the law on defamation. Now I was interested in more specific points of the law, which meant reading cases. In arguing to the Supreme Court of Ames, we would be contending that the trial judge had followed the wrong law, the wrong prece
dents. We would have to present the court with cases decided on similar facts which came to results more favorable to our client. .
Normally, an attorney doing that kind of research would not look far beyond cases which arose in his own state. Cases from other jurisdictions do not have the same precedential effect in court. But the moot court competition was set up in such a way that the common law of the state of Ames was comprised of all the reported cases of every state in the nation. Those volumes occupy a good part of the enormous vaulted top floor of the huge Harvard Law School library and much of the lower stories.
Nevertheless, the job was not quite as forbidding as it sounds. The private company which publishes most of those reports analyzes each opinion in an elaborate code. By resorting to huge digests, and sometimes the treatises and legal encyclopedias, it is possible to follow the code and to find cases from all around the country on the point which concerns you. Problems remain. To avoid misleading the court, before you cite a case--call it Black v. White--you must be certain that it has not been overruled, as sometimes happens, or that other judges have not criticized the opinion as badly reasoned. Therefore it is wise to check, at least cursorily, every subsequent case in which there has been a reference to Black v. White. That means resort to another index, which lists those references, and then, usually, going over each one. Finally, if you are new to all of this, like most first-year law students, you'll find that the cases you read tend to expose smaller weaknesses in your argument which you hadn't noticed, each one of which must be shored up by more cases and citations. It's like unpacking a molecule, only to find that the molecule contains atoms, the atoms contain parts, and the parts particles.
The research can be needless but Terry and I had sworn to do a creditable job without going crazy. By the end of Saturday, I thought we'd made a good start. I had more or less appropriated the Constitutional issue and been through a few Supreme Court opinions. Working on the publication question, Terry had already located material all over the library--cases, law-review articles, even copies of briefs. In the hours he'd spent up here while he was skipping class, he'd acquired phenomenal research skills.
