When Dean Schill first invited me to speak this evening, I turned instinctively to memories of my own Entering Students Dinner . . . 43 years ago.
I vividly recall that evening, in this very room. Phil Neal was the Dean, I sat over there (point), at my table were, among others, my still very good friends Barry Alberts, Bart Lee, and Judy Mears (one of the very few women in my class), and the speaker was Grant Gilmore, one of the most distinguished legal scholars of his generation.
But to my surprise, when I thought back to Professor Gilmore speech, I found no memories. I drew a total blank. I had no recollection whatever of what he said, or why.
After reflecting on this for several days, I came to the reluctant and depressing conclusion that such is the likely, if not inevitable, fate of most talks on these sorts of occasions. Students are too distracted, too anxious, too eager to get started, and too curious about one another to hear anything we say on an occasion such as this.
With that rather dreary insight in mind, I decided to scale down my aspirations. If I cannot leave you this evening marked indelibly with some profound wisdom concerning the role of law in American society, then perhaps I can at least offer you something more modest to help you in the days immediately ahead.
I do have memories of my first year in the law. Perhaps the most vivid of these recollections, indeed, one that occasionally haunts my sleep to this very day, concerns an incident that occurred the day before my first class – the day before I lost my innocence.
First year law students are, according to the dictates of tradition, custom, and precedent, invariably force-fed the myths of “The School”—whatever school it happens to be—upon their arrival. I don’t know what it’s like here today, but when I arrived in 1968, second and third year students enjoyed nothing better than to torment the newbies with tales of misery and dread. It was a form of hazing, of initiation, not unique to law school, but surely developed here as a genuine art.
In my day, the ultimate terror for the entering student was one Geoffrey Hazard, professor of civil procedure. Professor Hazard was widely regarded as a witty, clever, and entertaining teacher. Upper class students were quick to add, however, that he was also the cruelest, nastiest S.O.B. ever to wield the Socratic sword.
His philosophy, we were told, was quite simple. Students must learn to think on their feet in the very worst of all imaginable circumstances. If they could weather the worst, they would then do fine in the rather less hostile conditions of the real world.
Hence, no student was permitted to end a recitation until he or she had been thoroughly humiliated by the master. Hazard would use all of his considerable skills to manipulate, confuse, obfuscate, deceive, contradict, and ultimately demonstrate with a dramatic flourish that each of the student’s six proffered solutions to the problem contradicted the other five and, worse yet, that each was utter nonsense, as anyone could plainly see. As the myth had it, Hazard more often than not left them weeping in the aisles. In at least this one instance, the myth was in fact not all that far of the mark.
The message, then, was clear. Be inconspicuous at all costs. Do nothing to antagonize the man. Avoid being called upon. Do not volunteer. Be invisible. Hide. Under the desk if necessary.
Now, as luck would have it, on the day before classes began I was wandering about the library with another first year student – Elliot Schnitzer -- trying to acclimate myself to this strange new environment. We were seated at a table on the fifth floor, chatting, when a young, handsome, casually dressed, obviously confident fellow swaggered over, and in his best upper class manner snarled, “Well, well, I see the new crop has arrived.”
By this time, frankly, I had grown weary of listening to condescending second and third year students, and never being one to mince words, I promptly snarled back, “Screw you, buddy.” Without even a blink, he smiled a peculiar sort of smile and sauntered off. When I turned back to my companion, he was ashen. With a tremble in his voice, and terror in his eye, he informed me in a whisper that the target of my effrontery had been none other than Geoffrey Hazard himself.
I suppose I needn’t relate to you the dread with which I approached Civil Procedure. Each day I waited, suspended in a state of perpetual fear, for the moment of truth. Now, there’s a moral to this story, and it is quite simple. However maddening things may occasionally seem to you in the next eight months, I assure you, from personal experience, they could be very, very much worse.
The truth is, that for most of you, the first year of law school will likely have its emotional ups and downs. There will be moments of real insight, excitement, and discovery.
There will also be moments of some frustration. As you struggle to learn and to master new and often quite subtle and complex skills and concepts, you will test, not only your intellect, but your patience, your diligence, and your confidence as well.
I still remember the first case I ever read. It was the evening of the incident in the library with Professor Hazard, and I was still more than a bit shaky. I was also, by the way, an instant celebrity in my class – Elliot made sure of that.
In any event, that first case was Hawkins v. McGee, a landmark decision in the law of contracts. The first word of the opinion, the very first word, was “assumpsit.” Well, I spent the entire night trying to figure out precisely what an “assumpsit” was, or did, or looked like. The more I read, the more confused I became. Every time I thought I had a handle on it, it slipped away. It was, indeed, a seamless web.
The next morning, in contracts, my first law class ever, the professor, sure enough, devoted the entire class to an analysis of “assumpsit.” Now, I’ll let you in on a little secret. As I sat there, listening to the discussion, I gradually came to the stark realization that everyone else in the room understood “assumpsit.” The questions and answers flew back and forth, and I was in a fog. My confusion deepened to despair. I was in deep trouble, and I hadn’t even got to Civil Procedure yet. What was I doing here, anyway? It was already clear that I didn’t have the “knack,” that I couldn’t “think like a lawyer.” And who wanted to be a lawyer anyway—I wanted to be an archaeologist.
As if I weren’t miserable enough, immediately after class, some now forgotten, smart-aleck classmate grabbed me by the elbow and gushed at me, dripping enthusiasm, that the class had been fantastic, that it had all now come clear, that it was simply exhilarating. I could have cried. Indeed, I wanted to go home – not to my dorm room, but to New York and to the safety of my parents.
Instead, I went to lunch. Some students at the next table were jabbering away about, of all things, “assumpsit.” I listened. They were wrong. At least it seemed so to me. Hesitantly, I ventured an opinion. We argued. It began to make sense, but only sort of. We argued some more. We began to formulate and re-formulate all sorts of hypotheticals to challenge one another’s points.
“Yeah, but what if…” Just like in class. The discussion became so absorbing that we almost missed Civil Procedure. For better or for worse, although I didn’t know it yet, I was already on the road to becoming a lawyer. And suddenly, to my surprise, it was exciting.
To learn the law, you must do the law. You are here, not to digest a body of rules in the quiet of your room, but to engage in and to master a process. You are here to reason, to sharpen and refine your powers of analysis, to learn to discern and to articulate distinctions and similarities that were previously invisible. You are here to learn the art of lawyering.
The case method, which will dominate much of your first year, is designed, first and foremost, to facilitate that goal. It presupposes three primary resources. First, there are the cases. They are the grist. They are there, not to provide answers, not to spell out “the law,” but to serve as a catalyst for thought. They are there to puzzle you, to challenge you, and to provoke you. Do not take them for granted, for as you will learn, even the seemingly simplest cases are often far more complex than might at first blush appear. That, indeed, is why they are there. Read them, not to “learn the law,” but to do the law.
Second, there are your professors. Although we hope to serve several functions in the classroom, perhaps the most important is that of model. By questioning you, by engaging you, we lead you through the process that you ultimately will master. We attempt to teach by doing with you in your presence. By reasoning with us, by challenging us, you will learn to do law better on your own.
Remember, too, that we do not exist only within the classroom. We are available. Do not hesitate to visit us in our offices, to invite us to lunch, or to seek us out after class. If you make the effort, you will find that we have the time, and the inclination to share it with you.
Third, there are your fellow students. They are your most important resource, for it is in your discussions, your arguments, and your debates with one another that you will learn best what you are here to learn. Share your ideas, your thoughts, and your questions; challenge one another; talk with one another; do law together. When all is said and done, you are your own best teachers.
Another classmate of mine was known, affectionately, as Phantom. He went to class alone, ate by himself, and spent the rest of his time locked away alone in his dorm room. From the best we could tell he did two things in there. He read and virtually memorized every available hornbook, and he played fictional White Sox baseball games by lying on his bed and throwing a tennis ball against the opposite wall.
Night after night for a year we would hear—thump, “strike one”—thump, “ball one”—thump, “it’s a long fly ball to deep right, it’s going, going” and so on. Phantom may have had the right idea as to how to amuse himself, but he surely did not give himself even a chance to enjoy learning the law. Do not emulate Phantom.
I’m less sure about Garth. Garth was another student in my class. Garth was the ‘60s. Garth cared about “justice.” Class-after-class in Contracts, Garth would raise his hand and, when called upon, ask the professor whether the result was “just.” Class-after-class the professor refused to join issue, asking back whether Garth thought the offer was valid or whether there was sufficient consideration to support the promise. All fall and winter Garth and the professor jousted, Garth with his insistent question, the professor with his equally insistent, seemingly unresponsive questions in return.
Finally, on the very last day of the course, Garth raised his hand and said, “You’ve been brushing me off all year about questions of justice. But look at the very first page of our casebook. It has a picture of the Supreme Court with the inscription, above the portals of the Court, “Equal Justice Under the Law.”” The professor looked puzzled. He turned to the first page of his book, smiled, looked up, and said, “Oh, you must have the student edition.”
The professor was right. Law School is not, and should not be, a free floating three year seminar in moral philosophy. You are here because you think you want to be a lawyer. It is our responsibility first and foremost to help you achieve that ambition.
But Garth was also right.
The attitude of the professor is typical of many lawyers. It is that law and justice are distinct realms, that judgments about justice and morality are essentially arbitrary, and that one ought to do law in an entirely value-free way. But it is not that simple. Although legal questions are not pure questions of morality, the idea that law is a value-free, scientific enterprise is simply false. Notions of “justice”—sometimes as explicit premises, sometimes implicit—often play a critical role in the development of legal principles, and legal discussions that often appear to be highly technical “hardheaded” questions of reason may often involve fundamental questions of “justice” in disguise. As the great legal scholar Karl Llewellyn observed some seventy-five years ago, “ideals without technique are a mess, but technique without ideals is a menace.”
One hears a good deal these days about how lawyers too often act as “hired guns” serving the narrow, selfish interests of their clients. The “hired gun” mentality is, in part, a product of the view that values are nothing more than muddy-headed expressions of opinion, unrelated to “law.” If you keep in mind that legal rules do not exist in the abstract, but affect the real lives of real people, you are less likely to join the ranks of the “hired guns” and you are more likely to have a rewarding professional life.
The most oft-quoted anti-lawyer comment in English literature is Shakespeare’s immortal incitement in Henry VI: “The first thing we do, let’s kill all the lawyers.” It will do you some good, I think, to keep this line in mind. I suggest this, not because this was a precursor of the modern lawyer joke, but because it offers an important insight into the nature of the legal profession. For these words were uttered, not by a disgruntled litigant, but by the conspirators in Cade’s Rebellion who planned to overthrow the English government and to destroy the rights and liberties of the English people. “The first thing we do, let’s kill all the lawyers.” Keep that in mind as you move forward in your education and your career.
Finally, I’d like to close with a brief caveat. You are here to learn a craft. Immerse yourself in it, but do not let it consume you. Leave time and energy for other pursuits and interests. Do not forget that there are gyms, concerts, and books—not all of which are in the law library. If you find yourself tempted to play basketball, or bridge, or the violin… do it!
Be aware, too, that the skills you learn here may take on a life of their own and you may find yourself employing them at times when they are inappropriate. After studying law for awhile, you will never approach a problem or fashion an argument in the same way again. This can enhance your life or detract from its richness. Keep what you learn here in perspective. Let it sharpen your mind and further your goals, but never allow it to diminish your sensitivity. Remember that while you are here you will learn how to win, but remember, too, that yours is not the only game in town. Remember, too, in your dealings with friends and family, that there is a difference between winning an argument and being right.
On behalf of myself and my colleagues, I welcome you to the Law School and to the law. May you flourish.