by Scott Turow
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 precedents. 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.
During the week we each handed in a memo describing our research and initial analysis of the case. Friday we met for the first time with the advisor we had been assigned by BSA to discuss what we had found. Her name was Margo Sakarian. She was small and dark and extremely pretty. Like Terry, she was from New Jersey. Ames is probably the bane of the BSA Advisors’ year. They must supervise half a dozen Ames teams, all working on the same case, and read through reams of memos and draft briefs, checking each to be certain that the various legal formalities which Ames serves to introduce have been observed.
Margo was harried and a little short with us in our first encounter.
“You guys forgot the facts,” she told us at once. Each of us was to summarize the facts of the case in the memo. We’d both overlooked it. Terry was nonchalant.
“Look,” he told her, “if we can’t get the facts out, we don’t deserve to be at Harvard Law School.”
She didn’t like that response.
“They’re supposed to be here. You guys have a draft brief due in two weeks. Don’t forget the facts in there.”
She made a few more comments about our memos, mostly mild complaints, then left. I could see she had not made a big hit with Terry. HLS had managed to accentuate everybody’s eccentricities. Stephen had become more nervous. I’d gotten louder and more insecure. Terry seemed increasingly sensitive to criticism. That made sense. He had pulled himself a long distance doing things his own way and in this highly regimented atmosphere he felt a threat to the independence he valued. He resented anything which felt like control. Right after the Torts exam, when we’d had lunch, he’d sworn that he would mend his ways and start going to classes again—he had been too frightened facing that test. But in the first week of the new term, while we were on our way to Civil Procedure, he had suddenly done a little dance and sung out, “Ooo, 000, I’m gettin’ that itchy feelin’, just can’t sit.” He’d laughed and socked me in the arm and headed off for the library. If anything, his attendance was worse now. He was learning law his own way, reading through the biggest law-school library in the world.
As we watched Margo leave, he said to me, “Hey, that girl’s a little snooty, don’t you think?”
I told him not to worry about it. We had two weeks to research and write a brief. That seemed like a lot to do.
Contracts and Civil Procedure continued in the second term. As time went on, however, I found my attitude toward each course different than it had been in the first semester. In Contracts a single event had worked a remarkable change in my perspective.
Perini had finally called on me to state the case.
It had happened in the final week of the first term. In a way, I had brought the trouble on myself. Perini apparently teaches Contracts at the same pace each year and with the end of the first semester imminent he seemed anxious to hit some sort of benchmark. I was unwise enough to delay him with a question at the opening of class.
“What about the effect of the contracts cla
use of the Constitution,” I asked, “in yesterday’s case?”
“What about Bard v. Kent?” Perini replied. “Today’s case. Why don’t you tell us about that?”
The class laughed vigorously, as we all usually did when Perini had somehow taken advantage of one of us. I smiled as I opened the casebook, but I knew this could have come at a more welcome time. I’d been so well prepared in so many instances in the past. That day, I didn’t even have a brief. With all the work in the face of exams, I’d skipped the case abstract as well as the morning cram session. And the case was hard. We were deep in the murk of the “consideration doctrine,” one of the law’s perpetual mysteries, a concept as elusive as transubstantiation. No contract is complete unless both sides have proved consideration. In general, it is some evidence that the transaction is intended to be a positive exchange, a bargain and not the giving of a gift. Consideration can be the payment of money, or something as slender as a promise. Perini had called consideration “the conceptual analytical core of the course, our most challenging topic.” My luck.
“The case is in the California Court of Appeals in 1942,” I said, my voice quailing a bit as I started.
“Court of Appeals?” Perini cried.
Lord, already, I thought. I couldn’t see the mistake. “California Supreme Court,” Don beside me whispered. I was so nervous I thought I’d said that.
I corrected myself and went on, more or less reading the facts out of the casebook. The suit involved a fairly shady-looking operation in which a lawyer who represented an elderly widow had made use of his power of attorney to lease himself some of her real estate. He’d then sublet the property at a handsome profit. When the widow died, new and more virtuous lawyers, hired by her estate, sued, hoping to bust the first attorney’s lease. The only way out was a lot of fancy footwork with the consideration doctrine, and the opinion, which held for the estate, was closely reasoned.
I was fairly nimble with Perini’s questions about the case, but had more difficulty when he asked me to compare it with others we’d read in recent weeks. Most of the time I sat there with a look of profound concentration or made weak responses—”weasling,” Perini called one of them—before he went on to someone else, Clarissa or Hochschild or Cauley, for answers. I’d done well enough, though, that he returned to me throughout the period with more questions.
In the next twenty-four hours, I was the object of the kind of assessment I’d practiced on everyone else. Terry, forever generous, told me it was the toughest case of the year. It wasn’t. Stephen also praised me lavishly. Aubrey, on the other hand, seemed to think I could have done better—he asked if I had read Perini’s hornbook, in which, apparently, all the answers to the questions I’d missed were contained. A number of persons made it a point to tell me I had looked relaxed at those moments when Perini had come to stand directly over me.
To all of them I gave the same response: I was satisfied. I had not been great, but I fell into no swoon over an imperfect performance. In December that had seemed evidence that I was developing some perspective on the HLS achievement ethic, resisting that impulse to write off as worthless or a disgrace all things not done superbly.
But in the second term, I found that being called on had even greater significance. I was suddenly no longer a member of that legion who half swallowed their hearts every time they entered the room with Perini. He would not call on me again, and in class each day I suddenly felt almost like an outside observer. Most of my classmates still brought to Contracts the same rapt intensity they had from the start of the year. The effects of the Incident had been more or less expunged. Reportedly, Perini was still bitter about the affair and his public embarrassment. Letters and articles, most of them defending Perini, appeared on a couple of occasions in various law-school publications, but, within the classroom it was all but forgotten. Perini displayed the same domineering charm, and the great majority of the members of Section 2 still thought of him as an inspired teacher and of Contracts as the best class we had.
But not me. My sense of release had a strong effect on the way I regarded the man and the course he taught. Standing next to Perini one day late in January, I was stunned to discover that he was two or three inches shorter than I had thought at the beginning of the year. Truly, he was diminished in my estimate. No longer afraid, I felt my resentments of him more clearly, particularly of his pretensions. In class we were paying a good deal of attention to Article 2 of the Uniform Commercial Code, a statutory scheme devised like the Model Penal Code by a national group of legal scholars and since adopted as the law of every state. Article 2 covers “sales,” and has supplanted much of what was once dealt with in traditional common-law contract doctrine. When you buy something in any store in America, the UCC now regulates many aspects of your purchase. As we had done with the Penal Code in Criminal Law, Perini would compare the holdings of the Contracts cases we were studying with the analogous stipulations of the UCC.
Perini loved to show off with the UCC. Article 2 is a hundred pages of intricate provisions, but Perini seemed to have it memorized down to the commas. Even when he touched on points inadvertently, in an aside, he would press his fingers to his forehead like a sideshow clairvoyant and come up with the precise portions of the code in which an issue was discussed. “You’ll find that, I believe, in 2-617, paren ‘a,’ sub 1.” He was always right, and the class was in awe of his grasp of detail. The first semester he’d made similar citations to his hornbook or to treatises.
There were some among the small group of students who shared my quiet hostility to Perini, who believed those episodes were phonies, scripted events carefully acted out in order to intimidate the section. I did not go that far, although I was increasingly aware that Perini did make errors, albeit trivial ones, often contradicting his own hornbook. What disturbed me in those instances and others like them was the way Perini played on our lack of knowledge and power. He had had twenty years to learn the UCC; we were new to it, vulnerable—and captive. If you came to class, you had no choice but to watch those flamboyant demonstrations, possessing no real standard by which to know if they deserved the kind of open admiration Perini seemed to expect. On the whole, I had the sense that Perini was using the classroom to live out some strange vision of himself and that struck me as a misappropriation of a teacher’s power.
As my esteem for Perini declined, I tended to shirk the work of the course. That was an adolescent reaction, but the only tangible rebellion I could make. On Monday mornings, I found myself running contests with myself to see if I could read through a week’s Contracts assignments in three hours or less.
For me, the compensating time and interest went into Civil Pro. As the second term began, Nicky Morris had stopped talking down to the class. We’d absorbed a groundwork of legal concepts and terminology and Morris had now started on the kind of wide-ranging philosophical tour which Peter Geocaris had said at the beginning of the year was in the offing.
Ostensibly, the second term in Nicky’s course was devoted to close examination of the Federal Rules of Civil Procedure. The federal rules regulate most aspects of how a federal court runs: how actions are initiated, how information can be gathered by each side, the handling of many details relating to trial and appeal. Not only are the rules central in federal courts, but they are also the model for the procedural schemes of many of the states and study of them is an indispensable if unexciting part of most first-year educations at the law.
But Nicky’s teaching of the rules was anything but dull. In late December we had spent a number of days studying Erie Railroad Company v. Tompkins, a 1938 decision of the U. S. Supreme Court, which had proved the intellectual watershed of the course. In Erie, the Supreme Court instructed the lower federal judges to apply state law rather than federal law to many of the cases which came before them. Thus federal courts in different states would often be using differing rules in evaluating the same legal questions.
“By recognizing var
iation in the law,” Nicky told us, “the Supreme Court is accepting the idea that no one rule can be thought of as somehow ‘natural.’ We see the law after Erie only as an imposed order, a response to political and social tradition and not something sent from heaven. The law can change; the law can vary from place to place. And in those changes and variations, the law, like any other social product, reflects the persistent conflicts and contradictions within the society.”
In teaching the cases we read to illustrate the federal rules, Nicky returned to those themes. He demonstrated how each rule, despite a neutral appearance, reflected those “persistent societal contradictions” which he had first mentioned in Erie. He continued to talk about the tension between our common desire that the law be uniform and certain, and our wish that it somehow meet the needs of justice in the individual case. He described the conflicting roles of judges, members of a decision-making elite in a democratic society. Should judges conform to popular sentiments? Nicky asked us. Should judges somehow watch out for the welfare of those who come before them? Should they assist the ignorant, or just apply disinterestedly the machinery of the law? Nicky talked about differing concepts of the duties of the parties to a lawsuit. Should they be forced to aid each other in some kind of higher service to the truth, or were the plaintiff and defendant independent gladiators, going at each other with no holds barred? What is the community’s stake in the just resolution of disputes? How much does the idea of a right require an individual to enforce it on his own?
The questions, the conflicts, were elaborate and Nicky began to work them out in increasing complexity as the term wore on. Some members of the section were infuriated by Morris’s approach. They found it abstruse, confusing, andworst—impractical.
