by Scott Turow
“John Yolan has changed his mind,” Stephen told me one day in the library.
“Fine,” I said, “give him the outline.”
“With a quid pro quo?” Stephen asked.
“With or without,” I said. “Just give it to whoever wants it. Terry is right.”
After that Thursday afternoon in that classroom, I tried not to let myself fall into that tangle of fears again. There were times I felt it happening and would work hard to resist. One day I found myself pacing back and forth in the law-school gym, muttering, “I’m okay, I’m okay,” trying to keep in mind that I had some worth which would outlast exams. But I felt it was important not to give in. I knew where I stood now. I knew what I was against.
I had finally met my enemy, I figured, face to face.
5/13/76 (Thursday)
Last Contracts class with Perini. He has been fearsome all week, complaining about absences and roasting the people he’s called on. He does not want us to go out with the impression he is soft or that the exam will be easy.
Today, though, he was mellow. Students have been collecting gifts for him. They were presented at the beginning of the hour—a portrait of a famous Contracts commentator, a large rusty steel coil so he would “have a nice spring.” Then the class rose to sing to him:
Offer, acceptance, consideration, The peppercorn theory, a free-market nation, Mills versus Wyman, Klockner “v” Green—These are a few of our favorite things.
He followed with a rousing lecture on assignment of con-tracts—the procedure for selling your rights under an agreement to a third person—then closed with a schmaltzy peroration. It had its nicer moments. He apologized to Sandy Stern for past insults; he told us not to panic on the exam and said—as no one else has—if we do just blank out with fear, to come see him. He told us what a good group we were, but he could not resist a parting crack about the Incident, and its transformation to a public event. “It’s been hard,” he said, “to be constantly defending my behavior to people who don’t understand what goes on in here.” And he also resorted to a heavy sentimentality which approached bathos. He told us that we were all his family, that we were all his friends.
“He’s got a lot of nerve,” Gina said afterwards, “terrorizing me all year, then saying he’s my friend. He’s not my friend.”
Wade, I understand, compared today’s remarks to Nixon’s farewell speech.
I don’t know why I can’t forgive Perini for his excesses; he has his talents as a teacher. The cruelty, I guess. The class rose to give him a standing ovation as he left. I could not bring myself to get to my feet.
5/14/76
(Friday)
I’ll never enter a classroom again as a first-year law student. Final classes today.
Fowler, with rare warmth, offered some fatherly advice about the exam before he finished: “You people worry too much about these examinations. I’m still not sure what we test—time management, perhaps. Your problem is that you all want to be number one and no one can be in this kind of group. Oh, someone will be, by the numbers, but not really.”
Half an hour later, Nicky wound it all up. He told us he has worked for years to teach law in a way which he feels reveals the inherent interest of the subject matter. He warned us of the stultification we would likely feel as upper-year students and offered to do what he could—supervise papers or other kinds of research.
He was walking the length of the room as he spoke.
“There is an immense amount of talent in this group,” he said. “I have had my best year yet with you and I thank you for that.” He kept right on strolling and went out the door. He left all of us on our feet, applauding behind him.
Then the realization: It was over. Our year together. Exams are personal, you and the books and the test you write. This was really the last moment for Section 2. I kissed Karen, hugged Gina. I shook hands with Terry and Stephen and Aubrey. I thought about the kind of wonder. and admiration with which I regarded my classmates in those first few weeks, and then about what has happened to all of us of late. Harvard Law School, I thought. Oh, Harvard Law School.
I went home feeling numb and a little depressed.
Spring exams are another of the traditions of the first year of law school. A few years ago, things were far worse at Harvard, and at many other schools, than they are now. Students would take five exams in five full-year courses; there were no tests beforehand and students had no indication of how they were doing. In many instances, the exams were given on a “closed book” basis, which meant students could bring nothing with them into the examination area—no books at hand for comfort, no pretense that students weren’t expected to have the body of law in a subject memorized cold. In the spring, first-year law students would go even crazier*than we did. Friends who were at Harvard and other law schools in those days have repeatedly told me the same stories about suicide attempts and about students moving into motels to get away from the madhouse in the dorms.
For us, midyear exams and the knowledge that each final was “open book” lessened some of that pressure. But still it was no cakewalk. I found the experience, coming on the heels of everything else, a lot like being sent out to run a four-minute mile after just having finished the marathon. We had four tests inside of seventeen days, thousands of pages to digest and hold together. At the end of the first term, by comparison, we had nearly a month to prepare for our tests in Torts and Criminal. I had no sense this time of any elegant confluence of knowledge taking place. The house was being built, but it was a rush job, with a lot of bad corners and no fine seams. I went over outlines, old tests. The study group met on a couple of occasions. For the most part, it was just cramming, day after day. Sixteen, seventeen hours. Half an hour for dinner. Six hours to sleep.
The first exam, four days after classes ended, was in Law and Public Policy. The night before, Gina called me. She sounded kited with fear, and for an instant her anxiety seemed to travel down the wire and take root in me. I’m okay, I told myself when I got off the phone, I’m okay. I slept soundly that night, and every other. One whole year, but it looked as though I was finally getting the better of my fear.
The Policy test, another eight-hour exam, was all right. Sternlieb had handed out a case study about the Public Health Service in advance. It was the setting for one of the two questions, which asked what steps we would take inside the organization if we were trying to push a program of neighborhood health centers. Writing my answer, I felt I had finally done something worthwhile on a law-school exam—a careful, well-reasoned response. For me, I decided, these tests were a crap shoot: Sometimes I’d screw up, sometimes I’d pass; now and then I might even do something I was proud of.
I headed to school for the Property exam, a week later, feeling almost cheerful. Maybe I’d do something worthwhile today. I didn’t. It was one of those four-hour jobs and I just babbled on, fueled by adrenaline. In the aftermath, there was a lot of controversy. Some years ago, Fowler had published a law-review article evaluating a proposed zoning ordinance for a town in Illinois. One question on the test asked students to evaluate a proposed zoning ordinance for a town in Michigan. An “open book” test at HLS means no holds barred, and several students had come into the exam with copies of Fowler’s old article, from which they more or less abstracted their answers. Kyle had gone at once to Fowler to complain. Fowler treated the matter indifferently and asked Kyle to leave the office.
Many people had also been dogged to the end by the Estates in Land. Terry was able to answer only two of the four questions. Stephen also felt he had not done well and was also unhappy about his Con Law exam earlier.
“You heard it here first,” he told me. “Stephen Litowitz will not make the Law Review.” He brightened in a few days, however, when he’d surveyed the other chief contenders—”the supercompetent people” was the way Stephen put it—and found that they too had had trouble with the test.
Nicky’s exam, two days l
ater, was more or less as promised. Everybody had his outlines and crib sheets ready. While working on the test, I looked a few times at the Procedure outline we’d put together. After all of that, I suppose it proved somewhat useful.
Facing the Memorial Day weekend there was only one test left, in Contracts on the first of June.
6/1/76 (Tuesday)
So it all comes down to Perini. It is only fitting that he provided our travail at the end.
I just could not handle studying this past weekend. The way Perini had taught Contracts—one rule followed by a million exceptions—meant prolonged efforts at memorization, nearly unbearable after this three-week grind. I pored over the hornbook, but I could only sit half an hour, forty minutes at a time. Nor do I have enough respect for Perini left to care much about his evaluation.
I saw Kyle skulking through’ the hallways when I got there this morning before the test. He is normally so robust, but I guess he felt it was all on the line here, and he was cowering like a wounded animal, literally walking hunched beside the wall. I did my best to rattle him, came on chipper as a sunbeam. I tried to detain him in conversation while he was obviously chafing to go look at an outline one more time. Oh, I was the very soul of menace, and I still don’t feel ashamed.
Then I went into the test room. I come to these four-hour numbers with a virtual traveling commissary: earplugs, paper, four pencils, four pens, three rolls of mints, two packs of cigarettes, a cup of iced coffee, a Coke, two chocolate bars, a pencil sharpener, an extension cord for my typewriter. As I unloaded all of this equipment I took a lot of joshing from around the room. Thirty-five or forty of us would be typing. It was nice that for a minute we were all bound in, laughter again.
At nine the proctor handed the exam out. It would be unlike Rudolph Perini not to give the hardest tests at Harvard Law School. The questions covered nine single-spaced pagesNicky’s exam, by comparison, was three sides doubled. Before the test I was told that we would be taking the same exam as another section, with two differences: Our test would have five questions instead of four, and the other section would have eight hours.
I went through the exam in the same desperate rush. I didn’t pretend to do much thinking. At 11:15 I looked up the first time and realized it would all be over in two hours. I was giddy at the thought. The last question was a disordered series of phrases from various nursery rhymes. Perini asked us to describe the possible contract they might form, what the problems in its enforcement might be, and what common interpretative dilemmas were suggested. Perini, I thought, you are still not cool.
When time was called at one, I walked back and forth at the front of the room applauding. I hooted, I hollered. I went out to the arcade where BSA was serving beer and drank four cups fast. Aubrey was also pie-eyed.
“Well,” he said, “all that stands between you and a J. D. is six thousand dollars.” He meant the tuition.
With Terry, Gina, and Mike Wald, I went out to lunch. When I got back, I emptied my locker into my backpack and called Annette, who’d volunteered to pick me up.
On the way upstairs from the phone, I ran into Phyllis Wiseman. It hurt me to see her. After holding to that steadiness, that distance, all year, she had lost her grip. For her, the final holdout, the last month has been too much: the stuff with Kyle, the dismal atmosphere, and the crunch and exhaustion of the tests themselves.
She was worried that she had not done well, that her family, her friends would not respect her. She was badly depressed.
“I did a little better than so-so last term, and now,” she said, “I just mixed it all up . . . It’s always so sad around here.”
I told her, in so many words, she was okay—to tell herself she was okay.
Annette arrived in a few minutes.
“It’s over!” I shouted when I got in the car.
I’ve been repeating that to myself for the past few hours. It will probably take a couple of days for me to believe it. The first year of law school. It seemed sheer myth when my friends lived through it. Now I have, too. It is over. It is over.
When Roscoe Pound, who eventually became the dean of Harvard Law School, entered as a first-year student in 1889, he was required to take courses in Torts, Criminal Law, Property, Contracts, and Common-Law Forms of Action, a nineteenth-century version of Civil Procedure. He mastered the law by reading cases; in class, his professors taught in the Socratic method. In a way, things were easier for Dean Pound than they were for me and my peers in the Harvard Law School class of 1978. He was able to pass the bar exam after only a single year of legal education. And he did not have to add an elective in the spring.
But, of course, the resemblances between Dean Pound’s first year and mine are striking. For nearly a century now, American lawyers have been bound together by the knowledge that they have all survived a similar initiation; it is something of agrand tradition. For me it was an experience of great extremes. What was bad was awful. But what was good often approached the ideal. I was regularly inspired and invigorated by what I was studying, and I seldom lost the feeling that I was making good use of myself. The riches of Harvard Law School—its students, its faculty, its eminence, and its traditions, which are always a presence—yielded for me a time of towering excitement and great fruitfulness. In many ways, it was the best year in the education of this person who must be counted as now entering something like the twentieth grade, and everything considered—everything—I would probably do it again.
Yet it would be a decorous pulling of my punches not to say that I believe there are many ways in which the wealth of Harvard Law School is magnificently squandered. The century-old curriculum we inherited from Dean Pound is badly in need of change. Early in May, I attended an open meeting on legal education. It had been called by a group of first-year students, and despite the pressure of exams, 175 students arrived, most of them lLs. The size and mood of the crowd left little doubt of common dissatisfaction with many aspects of first-year education. The students were addressed by a panel of professors who had taught in the various 11, sections. Perini was among them, but so were a number of the youngest and most liberal members of the law-school faculty. Looking at them and at the students spilling through the aisles, Perini asked his older colleagues on the panel, “Are we the Christians here, gentlemen, or the lions?”
Either way, I realized that the same array that faced Perini that evening will confront law teachers of his philosophy in the future. A new generation of law-school teachers—some of them students who were in that room, persons shaped by different experiences, and many, like Nicky Morris, outspokenly opposed to the old ways—will soon hold sway on law-school faculties. Even Perini freely acknowledged the handwriting on the wall.
“There will be change,” Perini admitted. “Not even I can claim that the Harvard Law School is the greatest and most divine institution in existence.”
Many of the directions for that change in the first-year curriculum are self-evident. At places more progressive than HLS there are already smaller classes, more opportunities for students to write and to make contact with the faculty, differing formats for evaluation of student performance, election to the Law Review without reference to grades. Harvard Law School itself is a far different place than it was in 1970, when my college friends entered. There was no such thing, then, as passing a professor’s question in a first-year class; no teachers who, like Morris, tried to stress the broadest humanistic outlines of the law; no midyear exams. The case method, which once meant a reading diet of nothing but case reports, has given way in recent years to the addition of journal articles, of writings which make the ‘learning of the law less a piece-by-piece puzzling through and more like the real lawyer’s task: a comparison of new elements against a known context.
No doubt the changes will go on. Fresh from the front, I would add two observations about the specifics of legal education as I experienced them in my first year. That night in May, the faculty panel roundly agreed
to the continuing vitality of the Socratic method. I would not differ directly, but the peculiar privilege which Socraticism grants a teacher to invade the security of every student in the room means that in the wrong hands it can become an instrument of terror. I never felt that my education gained by my being frightened, and I was often scared in class. Law faculties have too long excused, in the name of academic freedom, a failure to hold colleagues within basic limits of decency. They must formulate and enforce an etiquette of classroom behavior which insures that teachers cannot freely browbeat and exploit their students. To refuse leaves them in a subtle but persistent state of moral abdication. I know that it is hard to think of law students, headed for a life of privilege, as being among the downtrodden; and I also recognize that classroom terror has been a fixed aspect of legal education for at least a century. But the risk, the ultimate risk, of allowing students to make their first acquaintance with the law in such an atmosphere, in that state of hopeless fright, is that they will come away with a tacit but ineradicable impression that it is somehow characteristically “legal” to be heartless, to be brutal, and will carry that attitude with them into the execution of their professional tasks.
Those objections to heavy-handed Socraticism are, in a fashion, only a part of a larger concern with legal education of which I began to become conscious after my conversations with Gina last fall. The law is at war with ambiguity, with uncertainty. In the courtroom, the adversary system, plaintiff against defendant, guarantees that someone will always win, someone lose. No matter if justice is evenly with each side, no matter if the issues are dark and obscure, the rule of law will be declared. The law and the arbitrary certainty of some of its results are no doubt indispensable to the secure operation of a society where there is ceaseless conflict requiring resolution.