by Scott Turow
Some black students also complain of a quiet prejudice within the law school itself. Minority candidates are admitted with grades, and especially LSAT scores, sometimes lower than those of their white classmates. While the LSAT has been shown to be a far less effective measure of a minority student’s likely law-school success, the discrepancy, combined with the failure of minority students to get the consistently high grades required for Law Review, has sometimes fed insinuations that minority students at HLS are not as capable as their white peers. Yet even conservative faculty members like Perini have given up any skepticism about the ability of minority students to thrive at HLS. “Blacks and women have achieved parity in the law school,” he told us the day we had lunch with him. “There was a period at the start, when the admissions push began, when you would find the lowest grades going to minority students, but there’s very little of that now.”
Despite the good spirit of his remarks, Perini was one of the few professors who seemed actually self-conscious in his dealings with blacks and Latins and women. He was inevitably softer in his interrogation of all of them, and he’d had an especially hard time bringing himself to call on females. It was December before he asked a woman to state the case, and that was only after rumblings about his failure had been heard in the Women’s Law Association, the female students’ organization.
That women would complain of something like that—unequal footing on grounds stalked by terror—is indicative of the relentless feminist spirit abroad at HLS. WLA is active in recruiting female applicants as well as in encouraging the hiring of more female faculty (at the moment, four women teach at Harvard Law). On the whole, women probably insist on their rights more aggressively than any other minority group at HLS, but that may well be because they have more to complain about.
The law has always been one of the most overtly sexist professions around. Courts and law firms have long been known for a concerted old-boy atmosphere, like that of an English gentlemen’s club, and women still encounter significant resistance to any role for them in law when they seek jobs and clerkships. Nor has the war been fully won within the law school itself, even among fellow students. Some men are self-conscious in dealing with women on an equal footing--I keep wanting to say, “Now in response to the remark of the little filly in the first row,- Ned Cauley told a group of us one day, “but I know that just wouldn’t go over” and others seem to cling to old patterns of response with no self-consciousness at all. Karen Sondergard said she quit one study group because she felt her opinions were ignored solely because she was a woman. And another classmate bluntly told me, “I’m glad to have all these women here. Just gonna make our degrees that much more valuable when they’re all at home raising babies.”
The degree to which women traditionally have been excluded in the law world is illustrated by the fact that Harvard Law School did not admit women until 1950, long after male minority-group members of all shades and religions had been welcomed on campus. Even after the sudden jump in female enrollment of recent years, many WLA members continue to believe that it is lower at HLS than it should be. Another Boston area law school, at Northeastern University, now admits an entering class each year that is half female, and WLA has encouraged the Harvard admissions office to follow suit. At present the law school has a more conservative policy, following a program of what they call “sex-blind” admissions, which means that applicants are evaluated without reference to gender. In recent years the percentage of women in each entering class has correlated closely with the percentage of females in the applicant pool.
The long-standing prejudice against women among the male legal establishment may well be due to the competitive nature of the law as a profession. In the courtroom, there are always victor and vanquished, and a gentleman is not supposed to feel at ease engaging in combat with a lady.
At moments during the year, it sometimes appeared to me that my female classmates were not themselves entirely comfortable with the open aggression that law and law school demanded. In class, they tended to be retiring. Clarissa and Myra Katchen both spoke up often, but the rest of the twenty or so women only rarely volunteered. Moreover, if I could believe Gina, many of the women were sometimes even more uncomfortable than the men when they were called on.
“I know how this sounds,” she told me once, “but a lot of the women say the same thing. When I get called on, I really think about rape. It’s sudden. You’re exposed. You can’t move. You can’t say no. And there’s this man who’s in control, telling you exactly what to do. Maybe that’s melodramatic,” she said, “but for me, a lot of the stuff in class shows up all kinds of male/female power relations that I’ve sort of been training myself to resent.”
The general reticence of women about the aggressions of law-school life and the legal world is probably a current handicap. It may even account for the fact that women, like the racial minorities, have tended to be underrepresented on the Law Review. But the more conscious I became of the problems endemic to the law school and the law, the more I saw that aversion to aggression as one of the great assets women bring to the legal universe. By custom the law world has been rigidly patriarchal. Many of the psychological articles I read about law school accounted for the harshness of relations between professors and students by relating them to the stereotypic Freudian struggle between fathers and sons. A powerful figure parades before a group that always before has been made up primarily of young men. The older male flexes his muscles, assails the young ones, demonstrates his control over them, while they grow both eager to imitate him and increasingly resentful. In a way, those patterns of envy and subjugation are repeated throughout the legal world, with the old men always standing on the shoulders of the young ones. Law Review members do cite-checks for professors’ articles; clerks write opinions to which judges put their names; law-firm associates slave over the most tedious aspects of the partners’ cases. It all continues until one day you suddenly are a professor, a judge, or a partner-doing what was done to you.
The reluctance of the women in the-law school about participating in these traditional and often unjust relationships was to me one of the happiest portents I saw all year. We are moving toward a time when today’s numerous female law students will be female lawyers, and a prominent force in the legal world. It is to be hoped that they will bring with them sensitivities to the uses of power, of the kind which Gina described. If they do, they can make the legal world a fairer one, a place less distorted by some of the hard things men alone have tended to do to each other in the past.
3/13/76 (Saturday)
The Ames competition finally came to a conclusion for Terry and me on Thursday night, when we gave our oral argument. As usual I approached the event with trepidation. Terry was determined to stick to his half-assed theory about defamation and fault, and I couldn’t imagine what the judges were going to do to him. In addition, there were complications now on my end of the case. Last week, the U. S. Supreme Court handed down another opinion relating to the First Amendment issue in Gant ty v. Wilson. The Court had redefined “public figure” again, and from what I’d heard, the new formulation would all but exclude the minister. It sounded like disaster for us, kind of a bitter pill after all the work.
Had this been a genuine appellate argument, the court would have rescheduled it to allow my opponent and me to familiarize ourselves with the new case. BSA was not that generous, and so I spent much of Wednesday slogging through the opinion. I wanted to be prepared. I didn’t care that much about winning or losing, I told myself, but I had no wish to leave the room feeling as faltering, careless, and inarticulate as I had after the Methods motion in the fall. I drew up a long outline of what I wanted to say.
Thursday night, I put on my three-piece suit—another fall lesson—and drove to school. After evincing blitheness earlier in the day, Terry seemed to be having second thoughts and was now trying to write out his argument word for word. We met our opponents, both from another sectio
n. Terry’s opposite was friendly, small, quick-witted. The guy on my issue, however, looked crooked. His brief had seemed good and Margo had praised it when she’d given us a copy. But consulting his cases, I felt he’d often gone over the line from advocacy to outright distortion. Looking at him now, I thought I detected the same kind of cosmetics—nice suit, neat hair, and dirty fingernails. It may well have been a battlefield reaction.
At 8:00 precisely, our three judges filed in. Ames is sometimes pretty formal, and I’d heard about one group of student “counsel” who were bawled out for not standing when the court entered. Our judges were a little more casual. One was a student from BSA; he figured to be the toughest judge, since he’d been the best informed on the case. The second was a Boston attorney, an HLS alum. The third, and the heavyweight on the panel, was Judge Clarence Mealy, a sitting Superior Court judge who also teaches Trial Practice courses given for upper-class students at HLS. David had told me that Mealy was an exceptionally well-respected judge in Boston and I was glad for the realistic touch, even though I was a little more intimidated.
Terry began, “May it please the court.” He was terribly nervous. He was wearing a gold sharkskin suit and he shifted uneasily as he spoke, choking, wetting his lips. To start, he was able to read from what he’d prepared. Oral argument usually commences with a brief recitation of the facts and questions of the case. This is to refresh the memory of the judges.
Terry did not get much beyond the facts, though, when the court started hitting him with questions. Like everybody else, they were having trouble making sense of his argument relating defamation to negligence. He’d finally found a case that offered some support, but it was from a minor court and from the nineteenth century, and the judges seemed to ridicule him for using it.
“Counsel,” the BSA judge told him, “I don’t even understand why you argued this point.” Judge Mealy, a tired-looking Irishman, appeared somewhat amused. He rocked in his chair, smirking now and then in my direction. You got stuck with this palooka, he seemed to be saying, I feel for you. I tried to remain impassive, watching Terry instead. He was getting angry and frustrated. He began smacking his fist into his palm and he took on a tough, sulky look like that of a bad schoolboy. He’d become downright surly by the time they let him go back to his seat.
I went to the podium next. I had the usual lump in my throat, but most of the time the preparation helped me through. When questions were asked, I felt like I was able to move with the flow. I had composed a broad argument to incorporate the new Supreme Court case. I claimed that the general thrust of all the Court’s opinions was that a person was a “public figure” whenever he or she was somehow involved with the well-being of a community, and that within that community communication about that person should be largely uninhibited. I think it was a pretty good argument. The judges sort of threw my points back at my opponent when he came to the podium later and he seemed to have a hard time handling them. “You’re just making this worse,” the Boston lawyer told him at one point.
When he finished, there was a round of rebuttal; then the four of us left the room to allow the judges to consult. It is usually weeks before a real appellate court announces its decision in a written opinion, but in Ames we’d be getting the word after a few minutes. BSA gives students the option of getting what they call a “competitive decision.” If all the students consent, the judges not only say which side won, but also rank the four, one against another, on the quality of their arguments and their briefs. Terry and I discussed “competitive decision” in advance and ruled it out as being more Harvard Law School sickness. Victory or defeat seemed competitive enough.
In the hallway, the four of us drank beer, which BSA had provided, while we waited. Terry was feeling bruised about his treatment and I tried to console him, agreeing that the court had been rough. The guy who’d argued opposite me kept saying, “I’m just glad it’s over.” I agreed with that, too.
Ames cases are constructed such that they can go either way, but in most instances this year the teams which handled our side of the Gantry case seemed to win. Generally, they lost on my point but carried Terry’s, thus overturning the lower-court verdict. We won too, but the opposite way. The decision, when we were called back in, was to reverse the lower court on the grounds that Reverend Gantry was indeed a public figure. I guess I had sounded pretty good. As we headed back to the hallway with the judges for more beer and a postmortem, there was a lot of praise for my argument from the judges and from Terry and even from our opponents. The Boston lawyer seemed to be offering me a job for the summer, repeatedly asking me what my plans were. It had not hurt me any, I knew, that none of the judges had yet actually read the Supreme Court decision.
Out in the hall, Terry soon got into another hassle with the BSA judge, repeating a lot of the things he had told Margo. I just walked away. I’d been listening to all of that for a month and I felt too good now to spoil it. It was moot court, a mythical state, a mass of frictions; but boy, did I enjoy winning. I haven’t felt that kind of outright glee in victory in years. Maybe it’s something else law school’s done to me—more childishness—or a sign of how praise-starved I am. Maybe I just felt I’d finally done something roundly good with the law.
Anyway, I still felt high when I got out of bed yesterday morning and a trace of the tingle remains today. I can see now what makes a trial lawyer’s life go round. All those victories in the courtroom, clean and unequivocal, and the sweet purring of your ugly little enemy when he is finally satisfied.
Because of the tension, HLS is a place where people are usually hungry for a laugh. In mid-March, two of the customary events for poking fun at what goes on around the law school took place.
On a Friday shortly before spring vacation, the April Fools’ issue of the law-school newspaper appeared. The edition carried articles reporting that turnstiles had now been installed in the faculty office building to stem the tide of students seeking to speak to their professors, and that a second campus publication, noting the Law Review’s choice of a female head, had taken affirmative action one step further and installed a dog as editor in chief. (“Streaky woofed, ‘My species had nothing to do with my being elected.”) Another piece said that because students had proved so unreliable in relaying their grades to prospective employers, the registrar would now send marks directly on to the firms, from whom students could request a report in case they wanted to know how they’d done. The April Fools’ issue came out on March 19. No one seemed deterred. As I say, at HLS a laugh is always welcome.
At about the same time, the Law School Show was closing its run. The Show, a musical, is an annual event. If this year’s production was typical, then Harvard Law School is one site which can be safely skipped by Broadway scouts. The number of persons within the law school with both interest and time enough to take part in the Show is so low that many in the cast come from outside. Nevertheless, the Show goes on.
For such a supposedly sober institution, HLS is a place where grade-school-style dramatics are relatively frequent. One L sections often perform skits like the one we had given for Zechman in the last Torts class. In time I realized that all this playacting is a way that students manage to make clear the emotions that are not expressible amid the formalities of the Socratic classroom. Students can show affection, as we did with Zechman, not to mention other feelings more securely demonstrated in the guise of drama. Each year the Law School Show is the student body’s most extensive opportunity to ridicule the faculty, and no doubt that has something to do with the Show’s continued production.
Many of the faculty felt that this year’s offering went beyond the limits of good taste. The sexual habits of some professors were called into question, and there were a couple of teachers who took the brunt of most of the humor. The Incident was often recalled. In one scene a “Professor Preening” took a meat-ax to a student who’d answered “unprepared.”
Perini was sensitive enough about the Incide
nt that he was rumored to have regarded the Show without much joviality. That was unusual for him. In class, humor was the only form of student rebellion he tolerated happily. He had a mild sort of banter going with Sandy Stern all year. Usually he would goad Sandy good-naturedly and Stern, flattered by the attention, would try to respond. In general, Perini had far the better of it, even when the class began to come to Sandy’s aid. One day he called an answer of Sandy’s “predictably confused.” After he’d been hissed, Perini remarked, “I didn’t know you had that many friends, Stern.” But Sandy had his day. Late in the year, Perini was reminding us once more of the importance of precision in lawyer’s work. Be careful of details. “Of course,you can overdo it,” Perini admitted. “You don’t want togo into court looking like the German army marching into Poland in nineteen forty-one.” It was Sandy who shouted out from the back of the room, “Nineteen thirty-nine.”
Other professors displayed a more controlled wit. Stumped by a question in a Criminal Law class, a student told Bertram Mann he was feeling uncomfortable. “I think that’s the nature of the Socratic method,” Mann replied; “we stand here and make each other uneasy.” Fowler, on occasion, could rise up out of his gloom and be almost silly. “Everyone knows what laches means,” he told us in defining a term which had appeared in an opinion: “No one knows what laches means.”