by Scott Turow
The complaints about the group came out at once: too disorganized, too uncommitted, rudderless, overaggressive in discussion (Aubrey’s point, aimed at me, I think), and too many people.
That last was Kyle’s complaint, and he kept hammering at it.
“We’ve got too many people. We can’t have effective discussions. We can’t concentrate on anything. We’re going to keep BS’ing.” Finally, Kyle said, “We’ve got to narrow the group to four people, five at the most.”
The suggestion pretty plainly was that we throw somebody out, and it offended me. I was telling Kyle exactly that when Sandy Stern, guileless or guilty, suddenly spoke up.
“You’re not going to throw me out, are you?” Sandy asked. “Not just because I’m in two groups?”
Two? we all asked. Sandy quickly admitted that he was part of another group which had been busy all term outlining courses and preparing review notes. He had joined our group too, he said, because we seemed more interested in high-minded, speculative talk about the law, which he felt was missing in the other.
“Hey,” Terry told him, “we don’t wanna do that kind of jiving around anymore. We wanna start putting it all together now.
Sandy refused to take the hint. He sat there pulling at his big scraggly moustache and proposing compromises: One day, with him present, we could speculate. On a second, without him, we could review. As a last hope, he even offered to make copies for us of the outline he was preparing for the other group.
It did no good. Kyle, pointedly, kept repeating. “Somebody’s gotta go, someone has to.”
I told Sandy that it should be his decision. I said that I was against his sudden exclusion and that if he wanted to stay it would be okay with me, but I also told him that I felt it had been deceptive to conceal his membership in the other group, and that so far as I knew, everyone always assumed study groups were exclusive.
Sandy debated my points but finally said that he would do whatever we preferred. Aubrey seemed to hold the crucial weight and he shook his head no. He had wanted a smaller group from the start.
With apologies issued all around, Sandy gathered his books and departed. We stayed to plan further activities for the group. But the whole event stayed with me all day. I felt a frustrated pity, angered by Sandy’s obtuseness but ashamed that we had been so hard-nosed as to boot him. What difference is it to us really if he thinks he can handle being in two groups? I was disturbed by what had emerged in each of us. Kyle had been ruthless and Aubrey a little matter-of-fact. Terry all along was bothered by Sandy’s mincing way and was visibly anxious to have him gone. I had hardly been stalwart in defending Sandy’s right to stay.
When I told the story to Stephen tonight on the phone, he was dismayed.
“That goddamn Kyle,” he said.
I admitted that none of us had been shown to much advantage this afternoon. I’m beginning to get some idea of what might be involved in meeting my enemy.
“Yes, Mr. Turow?” Professor Mann said, looking down at his seating chart to be certain of my name.
It was the fourth week in October, and we were discussing inchoate crimes—crimes attempted or solicited, but never completed. The case concerned a man who’d come into a bar, drunk and obviously disturbed. He’d brandished a gun, threatened a number of patrons, and finally, with the gun at the bartender’s head, had pulled the trigger. The gun had not gone off. Mann had asked us how the case would be classified under the Model Penal Code. The members of the section had paged through the code and come up with various suggestions: assault, attempted murder. Mann himself had asked if this were possibly attempted manslaughter. I had the answer to that, a very clever one, I thought, and raised my hand.
“It can’t possibly be attempted manslaughter,” I said. “Attempted crimes have to be intended and manslaughter’s an unintentional offense.”
People smiled around me. I heard somebody say, “Ah!” I’d got it. A good point.
Mann glanced down from the ceiling and looked at me kindly.
“Don’t you hear the wind whistling behind you?” he asked. I froze.
“I’m afraid you’ve gone through the trapdoor,” he said, and as I sank lower in my seat, he explained that an intended attempt at murder, given mitigating circumstances like drunkenness or insanity, could be classed as attempted manslaughter under the code.
I’d made a mistake. It wasn’t the blunder of the year, but I felt horribly embarrassed—worse than that, corrosively ashamed. This seemed to be happening to me a lot recently—raising my hand to say things which were somehow inappropriate or flatly wrong. And none of us found it easy to endure our classroom errors, let alone on a regular basis.
“Isn’t it awful?” Stephen asked me one day after he’d muffed an answer in Civil Procedure. “I haven’t felt that bad in years.” Gina said she brooded on her mistakes for hours.
As the year had worn on, classroom performance had assumed an increasing importance. We now engaged in close assessments daily of how well people had done in class, especially when they’d been called on, almost as if it had been an athletic event. “Jack was terrific today.” “Yeah, but I felt bad for him when Perini nailed him on that question. Mclerney really saw that all the way. She is smart.”
The reasons we all put that kind of stock in what happened in class were complex. Superficially, I suppose it was no more than a further sign of how competitive we were with each other. But there were a number of environmental effects which had recently begun to exaggerate the drive and ambition within each of us. For two months now we had all been doing exactly the same things day in and day out, listening to the same professors, doing the same reading, making the same discoveries. Moreover, there was little time to find more personal outlets outside of school. For many of us, then, the feeling had grown pronounced of being faceless, lost in the mob—and the only kind of distinction available was to be known as good, bright, quick, adept with the law. Thus a striving for a sense of identity began to be mixed in with our hopes for success.
That, in turn, led to another problem. As students became more desirous of doing well, they could only grow more conscious of the fact that there was now no sure indication of how much or how well they were learning. Though we’d all been working like Trojans for a couple of months, none of us could even be sure that we’d pass each course. Obviously, odds were in our favor. There are few Fs given at Harvard Law School. Forty years ago a third of the entering class would flunk out, but these days almost no one leaves for academic reasons. Nevertheless, considering the difficulty of the material, the possibility of something close to failure, however remote, sometimes invited contemplation. Though I wanted to do well, for me, and I imagine for others, the less clear my standing became the more my fantasy cycle intensified at the darker end—a few thoughts of wild success obliterated by panicked visions of being thrown out in the street.
The only end to that fear of failure would come when we were examined in January. There would be no grades until then, and the single test would be the sole basis for determining marks in each course. Longing perhaps for the assurance exams would provide—and also hoping to lay the ground for good results—many people, even at the end of October, had begun pointing toward the tests. In the meanwhile we looked wherever we could for signs that we were holding our own. People who had high LSAT scores often speculated about whether the correlation between the test and law-school grades would hold true for them. On a number of occasions I was told that because I was older and married, I was certain to rank high in the section and there were many moments when I halfheartedly repeated that wisdom to myself.
But it was in the classroom, with the 140 of us together facing the professor, that exam competition was most closely simulated; and it was to what happened there that we gave the greatest weight. The more people tended to see classroom performance as an index of standing, the more pressed we all felt to do well. The unofficial ban on outside research had been inad
vertently lifted one day early in October when Sandy Stern had raised his hand in Contracts. We were studying a case about a Pennsylvanian who had volunteered for service in the Civil War. He promised he would send his wife a living allowance of $20 a month while he was away, but he had never paid it. The wife sued for breach of contract and lost. Perini used the case to illustrate the differing ways in which courts treat agreements between family members compared to agreements between persons in business—a theme he returned to often during the year. Sandy, however, had gone far afield.
“I have an interesting note on this case,” Sandy said. “I thought that since the husband had served in the Union army, he would have a Civil War pension, and that if he had died his wife might have received something anyway. So I went to Widener and found the official roll of U. S. Civil War pensioners and sure enough, in 1877 Mrs. Tish, as survivor, began to receive eight dollars a month.”
The reaction from the class to Sandy’s historical probing was a mixture of outraged laughter and the inevitable hissing. Perini, who’d already found that Sandy’s straight-faced doggedness made him the perfect foil, said that he was disappointed—that he’d have expected Sandy, being Sandy, to make a trip to Harrisburg to see if Mrs. Tish’s aggrieved ghost wasn’t still stalking the graveyards.
Yet despite the humor with which Sandy’s efforts were received, it became clear within a few days that they’d served to declare open season on outside work, a month ahead of schedule. A number of people now admitted delving into Perini’s hornbook, and most reported that much of Perini’s classroom commentary seemed to come from there directly. Many men and women began to treat the hornbook as part of the required reading, in hopes of doing well when called on. Even more disconcerting, I suddenly heard that a number of classmates had been observed in the library reading law-review articles, sections of the treatises, the illustrative cases noted in the casebooks. *
“I don’t know what those guys think they’re proving,” Tony Dawes, a classmate, told me one day when I saw him in the library. Tony had regularly studied near the reserve section where the treatises were located and he was telling me about the sudden rush of people from Section 2 who’d begun to appear there. “These professors aren’t dumb. They know what those people are up to. It’ll all come clear at the end of the year. None of ‘em are gonna get any better grades than the rest of us.
Not everyone was convinced that what Tony said was true. Many people felt a new pressure to consult sources other than the casebook, and to put even more time into study. Often I heard tales of students who appeared to those who knew them well to be doing nothing but law 20 hours a day, 140 hours a week—types who were in the library the moment it opened, or who broke their study in their dorm rooms only for half an hour of dinner each night, people who went over their class notes at the end of each day and typed all of them up over the weekend. Those stories were frightening. A standard was being set that not all of us could match. People were getting ahead, it seemed. People were falling behind.
Certainly in class it was beginning to appear that in spite of all initial impressions of parity, there really were some people who had an edge. We had all heard stories about students magically able in the law who appeared on rare occasions like a showing of the northern lights, the kind who would make straight A-pluses on their exams. Some of our professors were said to have been students like that, and we often shared speculations on whether there was anyone similarly gifted within the section. Lately it had started to look as if there were some likely candidates. In recent weeks, two or three people had begun to speak up in class who showed something more than what had been demonstrated by Clarissa and Wally Karlin and some of the others who had talked regularly from the start of the year. Clarissa and Wally were on again and off. Many of their remarks were things the rest of us had merely felt too abashed to say. But the people now emerging, armed with native talent, and often with intelligence gathered in the library, seemed to make frighteningly penetrating comments every time. And unlike the kind of humorous distaste with which Wally and Clarissa and the others were treated, these people—”the stars,” they were sometimes called, bitterly—occasioned feelings close to loathing, and often for no other reason than the kind of fear many of us felt in comparing ourselves to them.
Ned Cauley, for instance, a lanky man with a strong Maine accent, had by October become the star of Perini’s class. He was exceedingly quick and he also loved contract law. Perini obviously admired him. The extent to which he’d become convinced of Ned’s talent was dramatized one day when he’d gone on another of his treasure hunts across the room, waiting for a student to come up with the exact answer to a question. Suddenly, without looking behind, Perini whirled, pointed, and called out Ned’s name. Cauley gave the response half a dozen others had missed.
Ned performed remarkably every day. And most people in the section made faces whenever his name was mentioned. They groaned. Some told me that Ned was unintelligent, that his success was some kind of academic illusion, and that he did it all by burying himself in Contracts treatises. To an extent which shames me, I often agreed. Somehow, it seemed obvious that anyone who had the right answer that often had to be a con man and an SOB.
When I finally got to know Ned, late in the fall, I found that he was one of the best-humored and most diverse persons in the section. He taught a course in Chinese cooking in the free university—the sort of swapshop of skills run by student government—he knew the theatre, politics, music. If he did well in Contracts, it was because his interest and talents were genuine.
There were of course one or two of the stars who, even with allowances for envy, seemed to merit some of the enmity they generated. Harold Hochschild was a small man with a raspy voice and a head of rusty curls pasted to his scalp. Harold appeared quite arrogant. He had gone to Swarthmore and he often delivered himself of the opinion that everyone else in the section had had a second-rate education. In class, Harold loved to drone on, dropping his head emphatically at certain instants like an orchestra leader on the downbeat. By spring term he had mellowed a good deal, but in late October, Harold was the unrivaled leader in classmate contempt. About that time, I had some contact with him, which allowed me to make up my mind on my own.
In the last week of the month, when we were studying the law of trespass, Zechman had provoked a vigorous class debate. He had given us a complicated hypo about two railroads with adjoining rights of way. Should one railroad’s representatives be allowed to trespass on the other’s property in order to lay there, on a piece of waste land, a drainpipe which would carry away water obstructing the first railroad’s track? For forty-five minutes the argument went on. People who believed in absolute property rights earnestly claimed that the trespass should not be permitted and that the pipe should be removed. Others, with equal force, said that the social utility of a running railroad meant the trespass should be overlooked. It was a fine class. When the session was over, Zechman revealed that his hypo was actually the fact situation of an old Iowa case.
“Who won?” a number of people called out.
Zechman, as usual, gave away ice in the wintertime. “The railroad,” he answered, then wrote the case citation on the board.
After a late meeting of the study group, Aubrey and I went to the library to look the case over. The report volume was missing from the shelf. I saw Harold Hochschild sitting nearby. Suspicious, I went to his carrel. Sure enough, the report volume was lying there unread while Harold studied.
It is, needless to mention, considered bad form around the law school to hoard a book that 140 others might be looking for. I ignored that, and asked Harold if we could look at the case for a second. He fluttered the back of his hand at me to take the book.
Aubrey and I read the report together. The trespassing railroad had to pay for the use of the land, but the court refused to order the drainpipe removed. Given what we knew, the outcome seemed peculiar, although a good compromise of the positi
ons struck by the class. (Later we learned that the Iowa case had begun the first formulation of the contemporary law of nuisance.)
I took the book back to Harold.
“That’s really a strange result, isn’t it?” I said to Harold. He was reading and he didn’t look up.
“I’m not sure which way it went,” I said.
Harold still did not reply. I looked at him for a moment, then replaced the book.
“Thanks again,” I said. Still no answer.
Repeating the story in the next couple of days, I was informed by classmates that Harold had a policy of talking to no one when he studied. No one. He would not be interrupted in the midst of the glorious task. Getting the back of his hand when I picked up the book was miraculous, people said, more than could have been expected had I announced the second coming.
Stephen had a dark, grisly sense of humor and when I told him all of this he began cackling. “You know what’s great?” he asked, laughing. “You know what I love about this place? Hochschild’s going to be number one. He’s the one who’ll get A-pluses. That’s the meritocracy.”
I agreed with what Stephen said, but I had a hard time finding any humor in it. That notion simply depressed me. The word Stephen used, “meritocracy,” kept popping up more and more often. It meant that Harvard Law School was a place where only merit, only raw intelligence and perseverance, both of extraordinary degree, were the sole means of success. Increasingly, I’d become certain that I was short on both counts. I was too exhausted to become a twenty-hour-a-day person, and too slow with the rest of my work to get to outside sources in the twelve to fourteen hours I studied each day. And compared to people like Harold and Ned, I had nothing worth saying in class. I made mistakes—in fact, silly blunders. If lucky, I was mediocre. And my conviction of my mediocrity was sour and unhappy. I had given up a good career, some security and distinction, to be swallowed in the horde, to confront intelligence which overshadowed my own. The shame at what I’d lost and was incapable of doing had become acute; and the day I embarrassed myself by making that mistake in Mann’s class, I was low enough that my feelings worsened into something harrowing.