Is 1L one hell? Survival tips from a law professor

10. Don’t Wait for the Ball

Many students complain that law professors are just hiding the ball, asking a series of questions without just telling students the answer. For my own first two months as a law school student, my notebook was largely blank because I kept waiting for the answer, which like Godot never came, just more and more questions. I wrote this limerick to express my mistaken attitude.

His friends used to tell Socrates
Now really, don’t be such a tease
Just give us the answer
And things will go faster
And thinking would be such a breeze

But obviously you shouldn’t wait for the ball or the answer. Instead, what you need to understand is the analytical structure of questions relevant to an issue, the range of valid positions, arguments made for and against them, and the process of thinking through them. Because, unfortunately, thinking isn’t such a breeze, and there is no simple ball that is hidden, but rather an array of balls that you need to learn how to juggle.

9. Don’t be boring

We are a polite people, but one can take that too far. A British professor once told me, “Americans are too damn polite, so that a conversation between them consists of each person trying to say what the other person would have said had it been their turn to speak. And that isn’t a real conversation at all.” Don’t be afraid to disagree or be provocative, or even to try on positions you aren’t quite sure about. And don’t close your minds to those who disagree with you. You may find that they are more convincing than you thought, or that discussion with them deepens your understanding of just why they are so wrong.

8. Don’t Ignore What Other Students Say in Class

Now, I don’t say this out of any painfully polite sentiment that everything your classmates say is sound and interesting. It isn’t. And I just told you not to be too polite. The reason to listen to fellow students in class is that, through student comments, professors often teach important lines of arguments or limits with those arguments. Even if you wanted to focus only on what the professor thinks, that may be hard to discern from what they actually say, because  professors often just take the opposite position of whatever the student happens to say, to make sure that both sides are developed. So professors may be enthusiastically pushing a position they don’t actually hold. Even if the professor has a position that is revealed during the class, that doesn’t mean it is the gospel or the only thing you should learn, because we’re all trying to prepare you for a world where many judges don’t agree with us – as perplexing as that is – and where the laws, issues, or jurisdictions may differ from the ones we are discussing.

7. Focus on the Forest, Not the Trees

Students often spend huge amounts of times methodically briefing details about case facts, procedural history, and holdings, and memorizing them all. Don’t. It’s a waste of time. As a student, I didn’t cite a single case in any first year exam I took. Professors use case facts and variations to develop doctrinal points, issues, principles, and broader theories. The point is not to know the cases themselves, but to understand the larger points made from them. The cases are only illustrations of the general issues and positions, and a means to the end of understanding them. So brief those larger points, and subordinate cases to what’s really important — the issues, valid positions, arguments, and reasoning about them.

6. Read Before and After Class

I once had a student who all semester complained that he couldn’t follow the class discussion – it was too confusing. Then, at the end of the class, during exam period, he came into my office said, “You know, the class actually makes a lot more sense, now that I’ve done the reading.” So reading is certainly important. But I think people often fixate too much on trying to understand everything when reading the assignments before class. Often the biggest payoff comes to re-reading the material right after the class, when you can incorporate what you have learned during the discussion.

5. Don’t Just Settle for Blackletter Law

There is a lot of blackletter law and it resolves a lot of cases. So not surprisingly, students often take comfort in just memorizing it. But professors don’t spend a lot of time on it in classes. Why? Is it because law professors are evil and enjoy torturing students with the confusing parts? Well, sure, that’s part of it. But mainly it is because we figure that after 17 years of schooling with top grades, most of you already know how to read. To the extent just reading the rule resolves the issue, we kind of think you got that covered on your own. We may spend some time at the beginning of classes summarizing the basic structure of the blackletter law, but that doesn’t mean that is the main thing to focus on and that you can just snooze through the following question and answer period. It is comforting to focus on the blackletter law because it is the clearest, but the debated issues are what you really need to focus on.

4. Law Is Not Distinct from Policy

Students often act like there are two subjects being taught – law and policy – the law part which they apply in figuring out how the law resolves particular cases, and the policy part which they apply to answer the question of what the law should be. Don’t make this mistake. Policy is the just continuation of law by other means. After all, what do we mean by “policy” in law other than arguments about what legal outcomes we should deem best? If you don’t have arguments on that topic, judges will be influenced by your opponent who does, so your opponent will win any area where blackletter law does not provide a clean answer as applied to your case. It can also be hard to understand what the blackletter law means or when it should apply, unless one understands the policies it furthers.

3. Ask What Future Parties Would Want

In addressing policy questions, one gets relatively little out of asking what the best outcome is for the two parties to the litigation, because they are in court precisely because they disagree about that. Instead, generally the best approach is to ask: “What Would Future Parties Want?” Often the answer is clearer before vested interests are acquired, when benefits to one party can be traded off against harms to the other. Or one might want a rule that is more likely to flag the issue to future parties, and elicit what they would want.

2. Go Meta

It won’t surprise you to learn that legal policy analysis often leads to unclear or conflicting conclusions. In these sorts of situations, it is often useful to switch to the meta-question of framing issues around who best is placed to decide the question. Every time one side argues that X is the best outcome, the response can be not only that Y is a better outcome, but also the meta-argument that judges are not the best placed to decide whether X or Y is best, so judges should defer to some other set of actors, such as legislators, agencies, or contracting parties who have chosen (or would choose) Y. Just remember the old saying, “Anything you can do I can do meta.”

1. Realize the Difference Between Being Confused and Understanding the Confusion

Often students have the following the experience. They read the materials and thought the law seemed pretty clear. Then they went to class. And now the issues seem confusing. So they wrongly conclude that class is actually lessening their understanding. What this reaction misses is that often the correct understanding is that the laws and issues are unclear. There is conflict about what the doctrine means, when it applies, when it trumps other doctrines, and what justifies it, and the same set of issues can be framed in multiple ways. Realizing this doesn’t mean you are confused; it means you understand the confusion.

Others leap to the opposite conclusion that all legal issues are confused. But that doesn’t follow. Some things are resolved, and there is a structure to thinking about the unresolved issues. Unfortunately, sometimes students get so focused on spotting ambiguities and conflicts that they begin to jump at shadows, straining to find ambiguities and conflicts everywhere, even when they don’t exist. You have to understand the confusion that exists without seeing nothing but confusion.

Perhaps I can best explain this with a saying from Zen. So here it is, quite literally, your moment of Zen.

Before I studied Zen, mountains were just mountains and rivers were just rivers.
When I first took up the study of Zen, mountains were no longer mountains and rivers were no longer rivers.
But now that I am a Zen master, mountains are once again mountains and rivers once again rivers.

There will come a time for you this year when legal mountains no longer seem like mountains and legal rivers no longer seems like rivers. But have some faith that when the year ends, and you are a law master, that saying will actually make sense.

Prof. Einer Elhauge ’86 graduated first in his law school class.

Celebration 55: A Record Retrospective

This past week, Harvard Law School played host to Celebration 55: The Women’s Leadership Summit, which marked the 55th anniversary of female enrollment at the law school. Some of the 13 women in the 500-person law school class of 1953 were present, joined by Supreme Court Justice Ruth Bader Ginsburg, who attended HLS from 1956-1958. While the events of the week of been reported elsewhere, The Record thought it worth be worthwhile to take a look back at what the law school was like in 1953. Below, we have reprinted a story published on the front page of the Thursday, October 22, 1953 edition (Volume 17, Number 4) of The Record. While many glass ceilings remain firmly in place, we would be remiss if we did not acknowledge the progress HLS and America have made over the course of the last half-century. And we have the courageous 13 women of the Class of 1953, as well as sojourners like Ruth Bader Ginsburg, to thank for much of it.

Forum Finds ‘American Girl’ Dedicated to Purpose of Hooking American Male

The American Girl is personable, charming and dedicated to one lifelong purpose: hooking the American Male. Chances are that she will succeed too, if she stays dressed and leaves her blue jeans at home. These may have been the conclusions reached by the panel of speakers at the first session of the Harvard Law School Forum held in Sanders Theater last Friday Night.

The noted social anthropologist, Earl Wilson, was the first speaker. He seemed to have one chief thesis-Women Look Better When They Are Dressed. Proceeding on the thory [sic] that proof of his point was to be found by reducing his arguments to their barest essentials, Mr. Wilson took his audience to a nudist rendezvous near Egg Harbor, N.J., and proceeded to describe in some detail his adventures therein. When he wasn’t talking about nudism, he was talking about Earl Wilson. Both subjects, we thought, seemed pretty much exhausted at the end of his half-hour discourse.

Having duly taken Mr. Wilson’s point to heart, we were immensely relieved to find that the next speaker, Magda Gabor, had taken the precaution to dress before coming down to Sanders. Having heard that she was, and presumably still is, the subject of some pretty serious international discussions, we were anxious to see what the fuss was all about. We did. Here was a woman. An utterly lovely and vivacious Continental, her every accent and mannerism seemed designed to display in all its vigor great charm.

Not that it matters much, but her comments on the American Girl may be stated briefly. Naturally, she is good looking, intelligent, and possessed of a charming personality. But in addition, it was a pleasure to learn that She can light her own cigarettes (but would prefer to have one handed to her already lit), open the necessary doors by herself and walk, virtually unaided, down a street. The American Male, on the other hand, is a Conqueror. Pure and simple. But at least the Harvard man conquers with sartorial taste enhanced with the usual conservative tie.

Al Capp rounded out the panel of speakers. What he spoke about we will never know for it seemed that every sentence of his was punctuated by an infectious grin and accompanied by a belly laugh which was contagious enough to be caught up by the audience.

Oh yes-he did say something after all. If Mr. Wilson was obsessed by nudism, Mr. Capp was almost apoplectic about blue jeans. He just didn’t like them and that was that.

One saving grace to this program was the moderation of Felicia Lamport. She was urbane and witty and kept the audience continually off balance with a series of incredible puns. (Sample: The subject of tonight’s program is “The She Around Us.”)The next session of the Forum will meet in the New Lecture Hall on Oct. 30. The program is entitled “Banned in Boston.” Our impression was that this last one should have been.

Published October 22, 1953

Lost in Laredo


This is a dispatch from Laredo, Texas, the last town on Rt. 35 before Stetsons turn to sombreros and Homeland Security no longer has your back. It’s 11:30 at night and I’m writing from a $69 suite in the Rio Grande Plaza, a peeling tower of gold plate and tinted glass built downtown during an optimistic stretch of the ’70s. To my right, beneath the window, Border Patrol crawls along the river in Suburbans with their parking lights on; to the left is a Trinitron as old as the hotel, hue and contrast stuck at full-tilt, and I’m on it, because four hours ago, I placed eighth in the annual La Costea International, the world’s largest hot-pepper eating contest.

“I know I’m in for some pain,” I deadpan to the local NBC affiliate as I tie my bib, “but these are the sacrifices we journalists must make to bring the truth to our readership.” That readership, dear readership, is you. And the reporter nodded, because he’d heard of me, “the writer from Boston” who’d shown up at every city function for the past three days. I’ve never appeared in print before, but the words you’re reading, the Record’s “commissioning” of this article, are part of a devil’s bargain that since Thursday has opened every door and led me to be among the most recognizable faces of the fourth estate in Laredo.

This all began when, channel surfing on a wave of Irish coffee at 3 a.m. after Thanksgiving, I came across the Travel Channel’s 2002 documentary, Ten Best Eating Contests. The images were spellbinding: crab legs sticking out of an obese man’s mouth, the Japanese guy who dips his hot dog buns in water to slick his esophagus, key-lime pie mashed into the beard of an effeminate Hemingway impersonator. Maryland, Coney Island, Key West: each region’s once-quaint food mythology one-upped the next in spectacles of grotesque autoconsumption. Laredo, a city that sounds like a truck model and from which I’d never met a soul, intrigued me most of all, and its contest, to see who could consume the most La Costea-brand jalapeno peppers in 15 minutes without vomiting or fainting, sounded so exotic, so wonderfully ritualistic, that I decided I had to compete. My dad, ever up for kitsch and bonding, was happy to oblige.

The Internet revealed that the Jalapeo Festival, of which the contest is the highlight, is the most plebian component of Laredo’s 107-year-old Washington’s Birthday Celebration, the nation’s largest. The tradition stems from this former capital of the Republic of the Rio Grande’s attempts to overcome its reputation as seat to sentiments of Texan independence. In search of federal pride, they picked the patriotic anniversary closest to a local fraternal lodge’s annual cowboys-and-Indians show and linked them up post hoc. I flipped through the schedule of events: the Comedy Jam for George, the Princess Pocahontas Pageant & Ball, the Society of Martha Washington Colonial Pageant & Ball, the Mr. South Texas Luncheon. Presumably in hopes of a repeat of the Travel Channel coup of 2002, the coolest-sounding events were marked “Invitation or Media Credentials Only.” Emphasis added. Brief affiliations with NPR and the LA Times were invoked to no avail, and so last month, I sent an e-mail to Clinton Dick, editor of this publication, and laid my cards on the table. An article for a press pass. He assented, but I still didn’t think it would work.

Upon our arrival Thursday, the lovely Adriana Arce, press chair for the Washington’s Birthday Celebration Association, passed me my media credentials with a warm and unwary smile. It didn’t make me feel better that within 24 hours, at various VIP events, Laredo’s US Congressman, District Attorney, and Sheriff had wished my readers well, as well as the President of the Celebration, the President of Texas A&M International University, and the kind family of 17-year-old Allison Reyes, Queen of the Washington’s Birthday Parade.

What media coverage the Celebration has received in recent years (a human-interest story in the Houston Chronicle, a breathless think-piece on has focused on the impressive cultural syncretism that has occurred over the last 50 years. Here’s how the story goes: as immigration, white flight and intermarriage have installed a Spanish-speaking, decidedly Latino culture in Laredo, the Anglo exclusivity of the traditional institutions has fallen away and the Celebration has grown to be a democratic, egalitarian institution.

Syncretism, yes; egalitarianism… not so much. The first event I attended as the South Texas correspondent for the HLS Record was the “Seor International,” an awards ceremony held by the local chapter of LULAC, the League of United Latin American Citizens. After the Texas A&M Classical Guitar Ensemble played “Crazy ’bout You Baby,” local talent Phoebe Mara Viaga sang her song “Cruel.” “I don’t want to break hearts like you,” she crooned in Spanish, smiling to a small cluster of press photographers alone in the middle of the empty dance floor. The ceremony was bilingual all right, and everyone looked Latino, and the honorees had Spanish last names. The problem was that bound up in business attire and illuminated by the fluorescent lights of the local civic center, its soul was that of a 50’s Elks Club banquet.

The culminating official event of the Celebration is the “Abrazo Ceremony,” abrazo meaning “hug” in Spanish; one can only assume that the “Hug Ceremony” sounded a little fey to Texan ears. At 8 this morning, two US Laredan and two Mexican Laredan five-year-olds, dressed up in their nation’s traditional formal wear, walk towards each other on the international bridge, hugging at the border while public figures crowd risers on either side. This was, perhaps, the cutest thing I have ever seen. Then, however, the Texas state rep and his counterpart from the Mexican state of Tamaulipas do the same thing, and then the Catholic bishops, and so on, until I was expecting to be sent across the bridge myself to embrace my Mexican fake-reporter doppelganger, whom I would certainly have slipped some tongue to spice things up a bit. At the end, all the Mexicans went back to Mexico, while we headed north in buses marked “Mayor/Dignitaries,” and the gates closed behind us.

That’s not to say the entire city has become Pleasantville en Espaol. There is a constant and vibrant flow across the bridge from Laredo, Texas, to Laredo, Mexico, and the streets on both sides pulse with Tejano music. At many fast-food outlets, half the menu is covered by a sheet offering up northern-Mexican options sold under the table by the women who make tortillas on the McDonald’s grill and gorditas in the Popeye’s fryer. I just came back from a concert held on the same stage on which I’d seen the Society of Martha Washington Pageant two nights ago, where debutantes had donned 100-pound dresses while tracing a choreographed and chelonian path across the stage, a voiceover cataloguing their ancestors’ history with the Society. Tonight, in contrast, the tickets were printed wrong and the sets weren’t ready, but tears soaked the faces of audience and famous balladeers alike, and the whole auditorium stood to sing clsicos about lost love and new beginnings.

And of course, you can’t get more soulful than the Jalapeo Festival.

There are, for better or for worse, numbers by which the modern male is supposed to measure his worth. Depending on your ambient culture, the most crucial values might come from a Scantron or a scale, a ruler or a balance sheet. I will forever see myself as a “25” kind of guy. That – according to the elderly woman charged with looking over my shoulder to make sure I didn’t squeeze out any pepper juice (“just bite and suck, honey, just bite and suck”) – is how many jalapeo peppers I ate between 6:30 and 6:45 this evening. To my left, as the NBC camera sweeps the crowd, I see the horrified look on my father’s face. He is being reassured by the bearded man who had resisted allowing me to register late for the competition until he saw my press pass. As the camera continues to pan, I watch myself hitting my 4-minute plateau, 19 peppers. I
am smiling, swigging Lone Star beer, and chatting with David, the guy from UT Austin competing next to me. In retrospect, I needn’t have been so friendly; I am two peppers more a man than he. I am 76 peppers less a man than the winner, but only 14 peppers less than the third-place contestant. Most of all, I am completely nauseated.

It’s the follow-up interview now. “I would have liked to bring the trophy home for the North,” I shout boorishly into the camera, “but I’m still pleased with the outcome. I feel I am bringing honor and dignity back with me to Boston.” The television shakes as a train passes the hotel carrying Ford chassis north from the maquiladoras, sending my all-access media pass to the floor. The train is one of the 7500 that cross the border here every year, accompanied by 0 passengers. Out the window, it’s too dark to see past the bend in the river to the tracks, but just below me a red and white Suburban flashes its roof lights into a stand of reeds. In the blue glare, I can see people crouching just inches away.

Fenno: A cold day in hell

It was a cold day in hell. There were a lot of signs pointing in that direction, but Fenno was absolutely sure of it once he saw James stroll in ten minutes late to Liz Warren’s bankruptcy class, take off his parka and gloves, and mutter something about having to put chains on his tires. Also, the icicles on his pitchfork rendered it too heavy to use to stab the laptop screens of classmates who had souls and therefore dared to play solitaire or Snood during class. Everyone got high scores!

Fenno decided to figure out what was going on. The easiest thing would have been to ask James directly, but that would have been risking a conversation. Instead, Fenno trudged off in the direction of Areeda. But Stephen said that Arthur Miller had been completely snowed in. Fenno declined the offer of iced coffee.

Off to Griswold. Professor Hanson was crying, and the last day of Torts was still months away. “My Corporations class has ruined Cardozo! I love Cardozo,” he blubbered. Fenno offered him one of the Diversity Cookies he’d picked up in the Lehmann Lounge. Unable to choose only one, Hanson shoved all ten of them in his mouth at the same time, just to be fair. Greatly relieved to have someone to talk to at last, he continued: “Mmmph mmph mmchhk, mmffchk.”

“Yes, you are much too tall to cry,” Fenno replied. Hanson swallowed, slouched a bit, and explained, “They mocked the ‘punctilio of an honor’ speech. They were all laughing at Cardozo. I knew I shouldn’t have let Joe Nuccio read it aloud.” Fenno reached up and gave Hanson a hug. And since he’d attended an ’80s retro anti-war rally in the Square that morning, Fenno knew he was in a perfect position to help out. As he left, Fenno casually dropped a couple “No Nootch” stickers on his chair.

Still not satisfied that all was right with Harvard Law, Fenno sprinted back through Areeda and out the front doors of Langdell. He caught Brent Bickley, Dave Axelrod, Justin Tichauer and Mike Gottlieb taking a study break on the steps. Fenno hailed them: “What’s up fellas?”

“Me and the crew is just chillin’,” said Dave. “We were thinking about maybe going wilding later. Want in?” Fenno paused. He’d heard of this before. Wilding involved sitting outside Pound Hall drinking forties during a seriously in-your-face discussion about the ideal incentive structure for maximum deterrence against insider trading. There was also a lot of shoulder-punching.

Fenno politely declined: “No, too extreme for me, dudes.” Fenno also thought he might not have enough hair product to hang. Brent turned to Justin. “Dude, have any hair product? I just ran out.” Tichauer responded by putting his cigarette out on Brent’s arm. End of conversation.

Fenno took his leave and sloughed back through Langdell. He heard a loud screech overhead. Looking up, he saw the library hawk. It had a crow in its mouth. The crow had a piece of cheese in its mouth. Fenno asked the hawk if he knew anything about the source of the troubles at the Law School. But the hawk wasn’t falling for that old trick. He flew off south, in the direction of the yard. Fenno watched him go, and noticed a strange mist wafting from the roof of Austin Hall. Ever suspicious and handsome, Fenno ran as fast as he could to Austin. It was very dark inside. The front doors creaked open of their own accord. Fenno stepped inside and felt a chill run down his spine. He heard organ music. He turned off his walkman. He heard live organ music. Oh, and some wailing coming from upstairs. He grabbed a torch from off the wall and quietly started up the staircase.

He peered into Ames Courtroom. It was strangely lit, and quiet as the grave. This made perfect sense as soon as Fenno saw Professor Murray reading a blank PowerPoint slide to his ITA class. Fenno felt a tug on his sleeve. Still intent on the rather surreal scene in the courtroom, Fenno drew his arm away. Then he felt something biting into his ankle. It was Allison Caplis. She took his hand and dragged him away from the door. “Fenno! Oh thank God you’re here,” she whispered, somewhat out of breath. “Something terrible is happening in the attic.”

“There’s an attic?” Fenno asked, incredulous.

“Of course there’s an attic. What did you think the ‘70-Foot High Club’ meant?”

“There’s a 70-Foot High Club? At the Law School?! Do we go to the same law school?” Fenno thought this might be a trick.

“Well it only happens once every 15 years or so, but it gets a lot of press,” Allison explained. “But never mind that. Come with me.” Fenno followed Allison up the next flight of stairs, past the Morgan Courtroom. He heard something like tapping on the wall as they went past. “Don’t worry,” Allison said, “it’s just the Tenant Advocacy Project advocating tenancy.” Fenno shook his head. It can’t be as easy as that, he thought.

They arrived at the door to the attic. Fenno put Allison on his shoulders so she could pull the doorknob from the ceiling. They lowered the stairs and walked up. The organ music was very loud, and Fenno could barely see from the clouds of mist pouring down. At the top of the stairs it was almost freezing, but the air had cleared, though it was still dark. In the middle of the room was a 10-foot high cage, and inside was the figure of a man, suspended in the air, shackled, the lower part of his face covered with a muzzle.

A voice came from inside the cage: “Greetings Fenno. I knew you might find me on your own, but I thought I’d give you a little help.” Fenno looked around for Allison, but all he saw was a little white mouse. It wrinkled its nose, then ran into the cage and sat on the man’s foot. “I’m just doing a little research for my latest controversial stand,” he continued. “Funny how easy it is to get research assistants at Harvard Law School. They don’t even ask what they’re researching.” As Fenno’s eyes adjusted to the dim, he saw human shapes hanging from the walls, and he began to make out faces. He didn’t recognize any of them, but that was probably only because they were 2Ls. Each of them wore a dark-colored XXL sweatshirt, with “Property of Alan Dershowitz” on the chest.

“Professor Dershowitz, what are you doing?” Fenno cried.

“I’m just getting a little . . . information,” he cackled. “Surely you’ve heard of academic freedom.”

Fenno was stunned. He scanned the room again. There was a face he recognized. “Clifford Ginn. C’mon, Professor. You’ll never get anything out of him. Didn’t you read his almost poetic attack on the Supreme Court’s disregard for the Fifth Amendment in last week’s RECORD?”

Dershowitz’s eyes opened, and he looked towards the budding Con Law scholar writhing on his wall. “Oh yeah,” he sniffed. “Him I’m just plain torturing. I figure anyone who can’t tell the difference between an editorial in The RECORD and an article in the Law Review deserves it.”

Fenno gave him a thumbs up.