by Scott Turow
A sociologist with years of econ, Stephen is an outright skeptic. He thinks economics does little more than repeat what is already known. He told me a joke to illustrate the point. Three men are starving on a desert island when they find a can of beans. The first, a strong man, wants to tear the can open with his teeth. The second, an engineer, proposes that they open the can by dropping a heavy rock on it from a great height. The third is an economist and he has a plan of his own. "First," he tells the other two, "you must assume we have a can opener."
Be that as it may, I've too often had the feeling that the professors are saying, "Assume you've had economics."
Ames went on. The 1Ls gave most of their attention to research and writing, and the professors. seemed to make allowances. Nicky tailored his assignments to conform to the competition's schedule. Perini suddenly began to lecture, rather than calling on a student to serve as target or foil. As the due dates for briefs neared, attendance fell off in each of the courses. In Property, where absences had been high from the start of the term, as many as a third of the students were sometimes missing. At the start of one session, Fowler looked around the room and said, almost sanguinely, "Well, let's see who's here." -
For all the hard work that students put into Ames, those labors seemed to reflect genuine interest, rather than the normal patterns of panic or pack-running aggressions. There were the familiar extremes, of course--people going so hard they missed sleep for three nights, others who claimed to have written their briefs without reading any of the cases they'd cited--but most of my classmates seemed to take Ames as a welcome diversion. As opposed to exams, moot court offered a real opportunity to demonstrate and to see for yourself that you had acquired some competence with professional tasks. And the process of working through the cases firsthand and shaping your own argument provided a novel vantage on the law at a time when the daily preoccupations of the classroom had begun to seem routine.
"It's the only damn thing in law school that makes sense,"
Aubrey said about Ames. He was increasingly disenchanted with school and professorial abstractions. "It's the only thing all year that prepares you for practice."
I shared much of the general enthusiasm for Ames. The First Amendment issues in our defamation case--the questions of which citizens were public figures and why speech about them should be less restricted--turned increasingly subtle and challenging as I worked them through, and I took real pleasure in the research. There were of course some aspects of Ames I was less keen on. One of the purposes of moot court was to acquaint us with the proprieties of the case citation--the shorthand notations used in all legal writing to indicate in which court a decision was made and the volume in which the case is reported. A judge, or opposing counsel, will often want to review the cases you point to for support, and accurate citation is thus another of the dull, lawyerly skills you cannot go without learning. Our Ames briefs were required to conform to the scheme of citation developed by the Harvard Law Review, and as I prepared to begin drafting, I found myself spending hours deep in the library stacks checking on nervewrackingly small details, such as the page number on which quotations I'd be using appeared in each of the two or three report series issued by different publishers.
But on the whole, I enjoyed the work of moot court. The brief provided another of the opportunities we seldom had to try legal writing and to gain more familiarity and control over the law's impersonal rhetoric. I was beginning, I thought, to feel a little more comfortable with it.
The only large difficulty I encountered with moot court had nothing to do with what was required of us. The problem was personal, for I was having trouble dealing with Terry. He had never mustered much excitement about Ames, and I'd only dimmed his enthusiasm further by unwittingly grabbing off the part of the case, the Constitutional issue, which he later admitted had interested him more. As a result, Terry appeared to become even more determined to do things his own way and at his own speed. He paid little attention to external requirements. His work was listless and sporadic, and much of the research he did was careless. In the memo conference, Margo had given him suggestions on ways to approach his end of the case, but he refused them, preferring an erratic legal theory of his own. He seemed to have a vague idea of winning the case by concocting an entirely new approach to the law of defamation, relating it to the concept of fault, even though his thinking was unclear and there was little support for what he was saying among existing authorities.
"Look," he told me a few days after our conference with Margo, "that girl is all wrong. She doesn't really understand this case. The issue is all different."
I asked him if he had the cases to prove that.
"There're pages of cites in the legal encyclopedias," he told me.
"Have you read any?" I asked.
"There're hundreds of cases," he repeated.
In the following weeks he did not seem to read many of them. As the deadline for the draft brief approached, it became apparent that he would never complete work on a part of the case that he'd promised to cover. I took over the research and writing myself, without much overt complaint. It wasn't worth it, I figured, to strain a good friendship. I had to pull my only all-nighter of the year in order to get my portion of the brief ready, and when I reached school on the day it was due I was disgruntled to learn that Terry had not finished his half. We had the long President's Day weekend ahead, however, and Terry assured me that he'd finish the brief in the next day or two and get it to Margo, who would still have two days to look it over before our next conference, scheduled for Tuesday.
Annette and I left town for the weekend, but Terry found me by my locker as soon as I got to school on Tuesday morning. He had a funny smirk as he approached.
"Hey," he said, "that girl's gettin' a little impatient with me."
I asked what that meant. He explained that he hadn't finished the brief yet and that Margo, angry now, had called him the night before.
"Terry," I said, "this isn't funny. You've got to get that done."
"It'll be done, man," he said, "it'll be done. I'm goin' to the libe right now. I'll write it this morning. She'll have it by noon. We don't meet her until two."
"Just get it done," I said again. "I don't want to end up flunking this thing." That seemed like a vaguely realistic concern now. Word was that each year there were a few as who took Ames too lightly and ended up having to repeat the entire Legal Methods program the following year. I was happy to let Terry go his own way so long as I was not going to get dragged down with him, but now I was beginning to worry. He seemed stranger about the whole business daily.
I met Terry at two and together we went toward Pound, where we were scheduled to see Margo in a conference room on the third floor. I asked if he'd finished the brief and Terry assured me he had; but as we rode up in the elevator, he was obviously agitated, fidgeting, rolling his shoulders.
"Hey, listen," he said. "I'm pretty bugged about this. I went in to see that girl, what's-her-name, Margo, at the BSA office, to make sure she got the brief, and, man, she was reading my thing and when she saw me she really went through the roof. I mean, she told me I was going to have to do the whole thing over again, that I was wrong."
That was what I was afraid of. "What did you say?" "I told her it wasn't my life," Terry answered.
"Look," I said, "that's not a subtle approach." When I looked at Terry I could see a hard gleam coming into his eyes. He was powerfully angry.
"Well, it's not my life, man, is it?" he asked.
I agreed that it wasn't, backing off. We went down the hallway in silence. Outside the conference room, Terry grabbed me for a second.
"You go first in this thing," he told me. "I'm still hot. I've gotta get myself under control."
My half of the conference was fine. Margo raised points with me, trying to make sure I understood the dimensions of my argument. I didn't agree with everything she said. But by and large I appreciated most of her suggestions.
&n
bsp; When she turned to Terry, however, it was obvious they had remained irritated with each other. Margo handed Terry back his brief. It was handwritten--typing was required--and her remarks appeared in a large scrawl across the back of each page.
"I'm sorry my comments sound a little nasty," she said, "but I was really angry when I read that. You cite two cases. And you never stated the facts. That's supposed to be at the start of your half of the brief," she said to Terry. "I told you guys before that how you state the facts is important."
Terry answered again that there was nothing to stating facts.
"You said that last time," Margo told him. "It was supposed to be done now. And how can you hope to convince the court when you only cite two cases?"
"I cite CJS, Prosser, ALR," Terry answered.
"Those are encyclopedias," she said, "hornbooks. They're not cases. They're not law."
For a moment, the two of them debated with increasing heat. Terry insisted he had done things the right way and after briefly attempting to maintain an icy restraint Margo became slightly sarcastic. As they replied to one another, each would look to me for support. Margo was right, I knew; but I also recognized how much Terry valued loyalty. I tried to show nothing.
Finally, Margo decided to be plain.
"Your arguments are just incredible," she said to Terry. "They make no sense. Really. This thing with defamation and fault--you're going to embarrass yourself if you say that in front of the court. You'll embarrass Scott."
Terry popped. His eyes filled with the same outraged gleam I'd seen in the hallways and he leaned forward in a belligerent animal posture. His hands were in fists, and now and then he struck the table. For an instant, I was afraid he might hit Margo.
"You're just making up rules," he told her. "I don't care if everybody who's ever done this sees it your way--they're all wrong. You're wrong! You're just abusing your power as an advisor. You're trying to push me around. You give me cases in black and white. You show me! You don't know what you're talking about!"
At last he bulled away from the table and pounded from the room. A moment after he left, Margo began crying.
"I'm just trying to help you guys," she said.
I sought to comfort Margo as best I could. I apologized for Terry, but I felt badly shaken by the way he'd reacted. He'd frightened me, and obviously Margo as well.
I didn't see Terry until the next day.
"You tell me what you think," he said. But then he added his own version of the events. "I was wrong," he told me. "I mean, I shouldn't have backed off. I mean, I was too apologetic."
I stared at him, incredulous. Then I called him a name and walked away.
Late in the year, when I described HLS to a friend who is a doctor he compared it to a hospital ward. He said that both were places where the inmates frequently found it hard to stay close with anyone. People were under too much tension, in extremity, often too busy saving themselves to think about preserving relationships.
I think that's true. My friendship with Stephen never quite recovered after first-term exams. With Terry, Ames remained a barrier between us. We both cooled off in a couple of days and Terry even agreed that he was too harsh to Margo. But he never apologized to her. Instead, he became determined to justify his behavior, to prove that the screwball theory about defamation he'd designed made sense. As the final brief and then the oral argument approached, he worked furiously to locate cases or law-review articles which lent some credence to what he maintained. He never found them. I tried at first to dissuade him from his reasoning, then finally attempted to understand what he was saying, but I failed on both counts. As we went through the remainder of Ames, I often told myself that it was just Harvard Law School, now and then it made all of us nuts. But in the deliberateness of my efforts to objectify, to be fair to Terry, I recognized a distance which had not been there before.
2/17/76 (Tuesday)
I saw Stephen today after Law and Public Policy. He had read a notice on a bulletin board and when he informed me of what it said, a little wiggle went through my belly.
"Grades tomorrow," he said.
I will not pretend that in the weeks since exams, I haven't spent a lot of time thinking about grades. Tomorrow will be when the music gets faced. Like everyone else, I can't help assuming that the results will be highly predictive of my future law-schoolperformance, which in turn will dictate much of what happens to me when I get out of this place.
One of the most immediate effects of tomorrow's marks is that they will serve as a first cut for Law Review. I admit that the more often I think about being on the Review, the better I like the idea. Over time, it is hard not to be taken with the prominence of the Harvard Law Review. It is quoted in judicial opinions, relied on, deferred to throughout the legal world. In keeping up with Morris's course, I now often go to the Libe to consult the journal articles and I've begun to realize that I would probably enjoy being part of their production.
Not that I expect that to happen. Anybody who gets two Bs tomorrow will probably be out of the running, and I suspect I will be in that category. The word is that almost everyone at HLS gets Bs, although the precise distribution of grades is one of the most closely guarded secrets at the place. The registrar keeps the information under wraps to prevent any efforts at top-to-bottom-of-class ranking, which was dropped in the 1960s. It is generally known, though, that the registrar sends a record of past marks in first-year courses to each professor. Hypothetically, the teachers are free to disregard those figures, but it's a safe bet that most keep the past distribution of grades in mind. The students tend to think in terms of a fixed curve, with a lot of speculation about the ratio of grades. One kid I met in the gym locker room informed me authoritatively that only ten percent of the grades are As. But Wally Karlin said that Nicky Morris had told him that the usual distribution broke down twenty/sixty/twenty, As, Bs, and Cs, with a smattering of Ds and Fs. Whatever the curve in each course, the kind of consistently high performance which leads to Law Review is rare. One thing I know for sure is that after three years, no more than eight or nine percent of each class has the average of A-minus or better which is required for graduation magna cum laude.
Exams were too crazy for me to feel I could predict my grades with any accuracy. I imagine Torts will be higher than Crim. In the past weeks, I have tended to strike little bargains with myself, trying to hold off my dread of Cs, by not thinking too much about the possibility of As. On the whole, I guess I'd feel good about a B and a B-plus. It wouldput me on the track toward graduation with honors, which would be a nice reward after three years of slaving. The real goal, however, is to resist the familiar HLS vibes and to be comfortable with myself tomorrow, no matter what the results.
At the end of Civil Procedure the next day, Nicky Morris gave us a little speech.
"I don't think you should be getting the grades you'll be receiving this afternoon. I've always thought that the first year should be pass/fail. None of you are far enough along for these grades to reflect with any accuracy any of the permanent, highly ineradicable differences between people which are measured by exams. So I urge you not to take these grades this afternoon too seriously. Absolutely nothing that you would like to do in the future in the way of a legal career will be determined by them. Nothing. Not teaching. Not jobs with firms."
Phil Pollack, sitting next to me, leaned over and whispered, "Notice he doesn't mention Law Review."
I noticed. We were all thinking the same thing. Though an admirable effort, Nicky's speech did little to relieve the prevalent anxieties. By the end of the day many people would feel that limits had been fixed.
The plan the registrar had hit upon for the distribution of report cards required all as to present themselves at two o'clock at one of two classrooms in Langdell, to receive their marks. Many of us could picture the stampede to those rooms and resented having once more to submit to the mass. The registrar later explained that that had simply seemed the fastest means of get
ting the reports distributed. As it was, 11, anxieties about grades had appeared to her so pronounced that she'd sped things in her office, so that first-year marks were coming out weeks before those of second-year and third-year students.
I played squash in the afternoon and showed up late in Langdell to avoid the two o'clock crush. At the hour, apparently, there had been a long line. I was told that people had filed into the room and emerged expressionless, the grade sheet clutched against their chests while they mumbled that they had not looked at it. By the time I arrived the crowds had dispersed. Downstairs there were a few people from another section standing around. I heard one ask another how he'd done and the reply: "I won't make the Law Review."
As I headed up toward the room where the grade reports were being handed out, I saw Stephen coming down the staircase. There was more in his face than a smile--his expression was animated by something wild, a profound kind of glee. I did not have to ask.
"You did well," I told him.
He laughed out loud. "A-plus and an A."
"My God," I pumped his hand. The grades were astronomical. "That's Wonderful."
I asked him to wait and hurried on up. The huge classroom was quiet. The woman from the registrar's office removed a long computer slip from a book of them.
"Very nice," she said before she handed the sheet over.
An A-minus in Criminal, a B-plus in Torts. I would not make the Law Review, I thought at once, but I had done well. I felt light-headed, just from meeting the reality of all of this after worrying so long.
I headed down to find Stephen. Sandy Stern had now positioned himself at the foot of the stairs, asking people their grades as they sifted past. Sandy himself had done quite well, an A and an A-minus, but he was not satisfied.
"I'm not sure I'll make Law Review," he explained. Apparently, he'd decided to survey everyone whom he considered competition. When he asked me how I'd done, I felt almost flattered. In the days before, I had not been certain whether I would discuss my marks. Talking about grades seemed a lot like talking about how much money you make--there was no way to be tasteful. Speaking freely risked envy or contempt. Remaining silent seemed to magnify the importance of something I wanted to treat as meaningless. In the end, I made no conscious choice. When Sandy asked, I just blurted.
