by Scott Turow
"You'll be okay," I told him now.
"Oh, sure. I figure--the hornbook, the outlines--I'll get up in the B range. From there, who knows."
"Uh-huh," I said. I asked about his weekend.
It was okay, he said. He'd gone to a party Friday night. Sandy Stern was there and they'd spent the evening talking about who was going to make Law Review. Stephen had categories all marked out. At the top were "sure ones," which meant Shearing. For some reason he didn't include himself in that group. He was one step below, among the "good possibilities." There were others who he'd decided were clearly "out," because they were not working hard enough. Andy Kitter was "out" because he had fallen in love.
"I figure people who make Law Review deserve it," Stephen said. "What a prize, huh? Fifty hours a week in hell."
I made a sound of assent.
"I hear the firms really get down on you if you quit," he said. "I don't know. You've got the grades anyway. Well," he went on, "these exams really aren't bothering me. Not like first semester. I felt like hell then. I figure I'll be cool about these. I don't feel any anxiety yet," he said. "Not yet," he said, before he got off the phone.
Late in April, the registrar's office made available forms and pamphlets so that the as and 2Ls could register for courses for the following fall. Amid the gathering fears roused by exams, it was nice to know that someone actually thought we would reach the second year.
Like many of my classmates, I had frequently looked forward to being an upperclassman. For one thing, there would be more free time. We'd all be beyond that struggle to familiarize ourselves with the law's strange language and logic. The work would be easier, and there'd also be less of it to do. At HLS, second-and third-year students are usually not allowed to enroll, even voluntarily, for as many course hours as are required in the first year.
For 2Ls and 3Ls, much of that unoccupied time goes into extracurricular activities, including a wealth of student organizations that work on law-related problems which affect the world beyond HLS. Three student-edited legal journals cover developments in the specialized fields of civil liberties, international law, and legislation. Student research groups, like the Legislative Research Bureau, harness the free legal manpower floating through the law school's halls to delve, at the request of those affected, into contemporary legal problems. There are also organizations, such as the Legal Aid Society, involved in the direct deliveiy of legal services to the poor.
Nearing the end of the year, many 1 Ls were eager to participate in those groups next fall. And we could see other appealing freedoms in the year ahead. Often we had spoken wistfully of the more relaxed atmosphere in upper-year classes. In some, the Socratic method is forsaken. Professors lecture, taking questions from the floor when they finish. Where the Socratic method is employed, it is sometimes treated with disdain. In December, Gina reported that she had sat in on a Commercial Transactions class in which nine persons consecutively had passed. The professor had employed the screw-your-buddy tactic, calling on the student beside the one who'd failed to respond, and had ended up going down an entire row. "Pass." "Pass." "Not me." "Not me, either." "Sorry." "Maybe next time." Gina told the story to a group of us at lunch and we were all gleeful. Those would be the days.
Most important, the curriculum in the second and third years is far more flexible. About 150 upper-year courses are offered, and not one of them is specifically required. Every student decides on his own what he or she will take. For the second year, the faculty recommends a series of what they call "basic courses"--Constitutional Law, Accounting, Corporations, and Taxation, which is essentially a study of the provisions and policies of the U. S. Internal Revenue Code--but you are free to disregard those suggestions. Some students view the inclusion of Corporations, Taxation, and Accounting in the faculty's recommendations as an effort to direct students into business law. But even professors like Nicky Morris, politically radical in their perspectives, agreed that the basic courses dealt with material important in almost every area of practice. Even a criminal prosecutor, for instance, could not handle many kinds of fraud and embezzlement cases without knowing something about a corporation. Morris, however, was not as encouraging about the courses themselves.
"You have to take Corporations," he explained to the study group one day late in April when we had lunch with him, "because the stuff is so boring that if you aren't threatened with an exam you'll never make yourself read the hornbook."
Nicky's attitude toward Corporations was symptomatic of sentiments toward the work of the second and third year in general. It may all have looked rosy to a 1L, but 2Ls and 3Ls seemed to regard the last two years as being little more than a forced march, and many of the faculty had not much more enthusiasm for what went on.
Problems in the second and third years of law school are not unique to Harvard. Professors Herbert Packer and Thomas Ehrlich, both of Stanford, writing for a Carnegie Commission study on legal education, pointed out a sense of shortcomings in upper-year education everywhere, and named that as one of their prime considerations in recommending that law school be abbreviated to two years.
As a first-year student, I am hardly able to pose as an expert on the inadequacies of the second and third years. I can, however, after my months in the hallways, report the consensus of upper-year students' complaints. One problem is that the subject matter is often far from compelling. Usually the courses are much more specialized and technical than in first-year classes--Corporate Policy Planning, Labor Arbitration, Maritime Law, are examples. Another difficulty is that employers are knocking on the door, calling students out, and many are eager to move on. Classroom doings are likely to seem abstract, dull, and inactive when compared to what happens in practice. New clinical courses, which give upper-year students detailed instructions and experience in trying cases and representing clients, are often far more popular than traditional classroom fare.
But what looked to me to be the biggest trouble was also the most obvious. In order to reach the second and third years, students must pass through the first year, and by then many have already had the stuffing kicked out of them. They have been treated as incompetents, terrorized daily, excluded from privilege, had their valued beliefs ridiculed, and in general felt their sense of self-worth thoroughly demeaned. If you get knocked down often enough, you learn not to stand up, and after being a Harvard 1L, a silent crawl to the finish line looks to many students to be the better part of valor.
Looking around the hallways, I often saw the 2Ls and 3Ls as a sad, bitter, defeated lot. I met repeated instances of those attitudes all year: Peter Geocaris's wounded ruefulness about the Law Review; the many 2Ls and 3Ls I consulted in the spring who told me that there was not a course at HLS worth taking; or the entire third-year class, who on the eve of graduation elected as Class Marshall a man who had pledged to remind every class member annually of the degrading manner in which they had been treated, so that none would ever give a dime in alumni contributions to the Harvard Law School.
The 2Ls and 3Ls recover, I'm certain. David has told me that most of his classmates reported a great thrill in starting practice and in discovering again that they were the talented people they had thought of themselves as being before they came to HLS.
But I'm not sure if that is not too late to dissolve some of the ill effects.
"It makes me so unhappy to see what happened to all the people Sonny started with," the wife of a 3L friend said to Annette and me one night near the end of the year. "They're all such good people, and they're all so cynical now. They just do everything they have to and they ridicule it at the same time. They all swore the first year they'd never go to corporate firms, and now they just took the job because it was sort of expected. And most of them have already promised themselves they're going to hate it. It's just classic alienation."
As for me, I knew enough now about HLS and myself not to vow that I wouldn't fall into any of those typical attitudes. I would just do my best. I tried to select m
y courses for next year carefully. A lot of 2Ls and 3Ls told me that was pointless. Second-year and third-year registration is often a large-scale repetition of what went on with first-year electives in December: oversubscribed courses, waiting lists, the registrar pushing students out of classes like checkers. I had heard the same rumor a number of times that one 2L had been bumped from so many courses the preceding fall that he'd simply withdrawn from school for a year.
Still, I persisted. I checked on each professor, conferred with upper-year students, sought faculty advice. I registered for the basic courses and also for classes in Legal History, Evidence, Law and Philosophy, Antitrust, Labor Law. As I prepared my schedule I followed two ground rules, which seemed to me the most important in making law school palatable: One was that I would not submit myself again to a teacher who ran his classroom like the Star Chamber. I did not care if a professor was known as the greatest formulator of the law since Hammurabi--if he was said to treat his students harshly, I passed him by. Second, I tried as often as possible to choose classes with small enrollments. Upper-year courses are often taught in groups as large as 250. Facing numbers like that, I knew no professor could deal humanly with students.
Maybe my plans for next year would not work out. But I saw no point in conceding early. As it is, if the folklore is in any way accurate, I have two years to learn all about feeling hopeless, feeling bored.
In the last week of April, Nicky Morris made an announcement in the wake of which the year dissolved into disgrace. That was no fault of Nicky's. He meant well. But it was typical of the reactions which had attended him all year that things did not play out straight.
As we neared the end of the year, I had come to regard Nicky Morris as a teacher of exceptional generosity. He was more aggressively concerned with his students' well-being than any other professor I knew of at HLS. He was unflinching about sharing his time with us, in his office or after class. In the practice exams he gave occasionally, I saw a sincere effort to lessen our anxieties and provide the feedback we so badly needed. With his frequent criticisms of the HLS grading system, I felt Nicky was hoping to demystify and lessen in importance what was for many of us the most painful aspect of the year. And in his classroom approach to Civil Procedure and law in general, I perceived Morris as attempting to make legal education a richly intellectual enterprise, provocative and appealing to those going through it.
I admired Nicky Morris enormously, and many members of Section 2 shared my sentiments. But more students--although they enjoyed the class--had less regard than I for Nicky personally. They found his hipness phony, and in one of those inevitable student slanders referred to him as "Beat Nick." His frequent talk about grading, they said, was a deliberate attempt to add to grade pressures, an indication of how much stock Nicky himself put in academic standing. And in his classroom conduct, despite the easygoing procedures like passing, those people insisted that Nicky was egotistical and insensitive, eager to put his students down. -
It was true that there had been moments when Nicky was less kindly than he should have been. He frequently seemed to belittle the best student remarks, implying they were unoriginal or routine. I never wholly set aside the feeling that Nicky was competing with us, trying to prove that he was still, as billed, the greatest law student at HLS since Frankfurter. Yet over time I'd also recognized that competition between professors and students is just within the nature of the Socratic method. In May, I went to an open meeting on legal education in which one young professor characterized Socraticism as "placing a premium on being able to outdraw a student at twenty feet." I imagine that it is a taste of that kind of daily confrontation which draws many former law students back to become law professors.
In singling Nicky out for criticism on this score, I thought I saw in my classmates a reaction which mirrored what had gone on with me after I had been called on by Perini. Only when I was less desperately frightened could I feel my resentments of him; only toward Nicky, the least fearsome of our teachers, did many people dare express their anger over some of the most consistently offensive aspects of law-school life--the antagonism between teacher and student in the classroom, their distance outside of it, the indignity of being examined and marked. It was dangerous to feel hostile toward Perini or Isaac Fowler--they seemed capable of any retaliation. Nicky, on the other hand, was committed to liberal tolerance; and like me with my Contracts reading, there were students in the section who could not resist the temptation to abuse. Whenever time was short, it was Nicky's assignments that were ignored. People would pass when called on, smirking like adolescents. And because Nicky was so patient, students brought him grievances that never would have been aired elsewhere. They pushed him. They challenged him. They tried to manipulate. And Nicky remained good-hearted, responsive, sincere, which was what led to his announcement on that last Friday in April, at the start of class--the announcement which sent the year into decline.
"There is a lot of concern," he said, as he paced at the front of the room, "that some study groups are producing huge outlines and course guides for the exam. A lot of people apparently feel that they're really up against it, competing with these collective efforts. So, if the class agrees, I have decided to change the plans for the exam a little bit to allow the collectives and the individuals to go at it more evenly."
Nicky's purpose was to ease tension, but as had happened so often, his effect was exactly the opposite. Much of that had to do with the state his audience was in already. By the end of April things were rapidly becoming overheated within Section 2. Although we now had experience with exams, the demands were greater this term. There were four courses to review for, not two. And the schedule was a more formidable obstacle. Exams would begin only a few days after classes ended on May 14. In January, most of us had had the comfort of Christmas vacation before the tests. That had given us the opportunity to escape the trips and neuroses we all laid on each other. Now there was no release. Exams would begin a few days after classes ended. In the dormitories, I heard, they were already crawling the walls; we were all feeling considerable heat. Gina claimed that the only way she was keeping herself whole was by leaving school promptly after the day's final class so she could escape the anxiety-ridden conversations now so frequent in the hallways.
Under that pressure, the bonds within the section were starting to yield. For much of the year, the members of Section 2 had been strongly supportive of each other. True, there were petty jealousies, but we'd held together well enough for Mann to pay us that compliment about mutual protectiveness, in the last Criminal class of the first term. But to a significant degree, I think that first-semester grades had had an atomizing effect. We were no longer on equal footing. There was genuine envy now, and a real race for the Review, and in the next ten days, I would see and hear of and take part in conduct which was shameful.
And Nicky's announcement sent us off in that direction. The actual content of what Morris said fit the intent he'd described--to even things up between groups and individuals. He restricted the scope of the potential questions he might ask on the exam and that, in theory, should have made it easier for people to prepare without the aid of study groups or group outlines. But in the section's current state of anxiety, it was more the emphasis, the implications, of Nicky's announcement that people took hold of. By his calling attention to what study groups like ours were up to, students felt as if Morris had tacitly endorsed, even urged, group work. And by altering his plans for the exam, Nicky seemed to acknowledge the potentially powerful effect of the study-group outlines.
Thus panic set in at once. People who'd remained convinced that groups were no longer worth it for them, quickly lost that conviction. Within twenty-four hours some groups long dormant had revived, and other persons were casting about nervously for groups to join. Now everyone began outlining Civil Procedure, as well as some of the other courses, especially Property, where it was becoming clear nobody understood Estates in Land.
The most vigo
rous new study group was headed by Kyle Schick. Over the first weekend in May, Kyle put together a huge sixteen-person cooperative which became busy at once outlining Property and Procedure. Some people thought that was treacherous--because, as I later learned, it was Kyle who had gone to Nicky in the first place to complain about the group outlines.
As exams neared, I was told many times that Kyle was openly confessing his desperate desire to make the Law Review. He felt Review membership was indispensable in getting where he wanted to go in a career as a law teacher, and I imagine that he was driven to Nicky by a fear like Weiss's--that those with outlines had an advantage he could not overcome. Before exams were over, Kyle had lodged similar complaints about other people with other professors. In each case, I'm sure that Kyle . Got a good hearing, because he had gone to great lengths to cultivate our teachers all year. He'd involved a number in consultations concerning his on-campus business; he'd had the teachers to his house for parties. He'd even tried to assuage Perini's wounds, sending him--as only Kyle would dare--a long congratulatory note after Perini had finished a series of lectures in our class on "conditions," a complicated subject involving questions about those contract terms whose violation creates a breach.
I know that Kyle did not like Nicky Morris much. He'd told me that. He voiced the familiar complaints about Nicky's ego. But he still invited Nicky out on weekends to play softball, and visited him in his office to talk over deep issues in Procedure. I'm sure Nicky trusted Kyle; and in case he didn't, I was told that Kyle induced Phyllis Wiseman, who was normally quite reticent, to come with him the day he lodged his objection about the group outlines. Phyllis was a sympathetic figure. She had a family to look after, kids. Nicky had kids too. When Phyllis told Nicky that these study-group efforts frightened her because she could never spare the time to match them on her own, I'm sure Nicky understood. Phyllis's problem--genuine, sincere--made the situation clear. Nicky did what he should have, and I imagine Phyllis was grateful for his announcement. I imagine Kyle was too.
