Ralph Nader has asked me to share some thoughts about law study, derived from fifty-one years of law teaching. For most of those years I have opened my torts class with the case of Nader v. General Motors, which I believe to be a very good example of the kind of societally useful work lawyers can do. Aware that Ralph has said that “the Socratic method is a game only one can play,” I will remark that you will be fortunate if you have some teachers who will give you room to play the game.
My observations[1] begin with a lesson about the importance of questions. When I was a new law teacher, it was my good luck to have down the hall one of the all-time greats of the profession, Leon Green. I had the honor of being assigned to teach a course he had invented in the 1930s called “Injuries to Relations.” He generously gave me a copy of his teaching notes. I was too proud to look at them at first, but after a couple of weeks I sneaked a peek. I found that for every case — in a class he had invented and had taught for more than thirty years — there were two or three pages of single spaced notes that he had pecked out under a green eyeshade with his 1910 Olivetti typewriter. And almost every line in these detailed notes ended with a question mark.
After all these years, Green was still asking himself questions about the cases. It may not be apparent to you this early, but I can tell you that this is what lawyers do — with their partners and associates, and even with themselves. Of course, this is also what their adversaries and judges will do all the time.
Lawyers must always be asking questions, and formulating the questions is often more important than the answers. Indeed, perhaps the most important single skill you will take from law school is how to state an issue — how to craft an interrogative sentence that frames the problem before the court. If you can state an issue, you are an appreciable way to the answer.
On education in general, I have in mind Lincoln Steffens’ remark, “It is possible to get an education at a university. It has not been done often.” Sir Edward Bridges, described as one of the most formidable of the permanent civil servants in the British government, asked a man who served in the British foreign ministry during World War II what he had learned. He replied, “I have learned, Sir Edward, to distinguish between the various shades of gray.”
A related point concerns language — the plasticity of words and the opportunities that presents for lawyers. A few summers ago we spent a few days in a little village in Maine called Southwest Harbor. We found a little cafe not far from our hotel. The first evening we enjoyed a dish called “pasta primavera.” I liked it enough that I was disappointed to find that it was not on the menu the next evening. However, there was a dish labeled “fettucini vegimi.” I asked the waitress — who was the same waitress — what that was. “It’s what you had last night,” she said. “Last night they called it pasta primavera.” She shrugged. I do not shrug. For my purposes, the point is an important one. “It’s what you had last night,” except that it has a different name. In the process of legal education, that is the sort of thing you will learn to discern. You will also learn that one cook’s pasta primavera may have a very different sauce from a dish that another cook also calls by that same name.
Thus, you will learn to discern both similarities of concept in different words, and differences of concept in the same word. For example, there are at least thirteen or fourteen different words or phrases to describe one of the most important concepts in tort law.
Law students, especially those raised by a generation of helicopter parents, often whine. For those who may need a bracing antidote to the tendency to whine, I offer a letter to a Harvard alumni magazine from a lawyer who became a law student just after service in Vietnam as a company commander. Responding to a contemporary’s criticism of legal education, he conceded that he shared “to a very limited extent” the judgment that the process was “difficult and demanding.” However, he observed that he was “profoundly grateful during every day of my three years at law school that (a) it was conducted indoors (b) I had the luxury of devoting my time wholly to reading, writing, discussion, and other purely intellectual activities; and (c) no one was trying to kill me.”
This leads me, inevitably, to a brief commentary on the fact that in some sense, law school involves competition. Any activity that includes a ranking system such as grades is inherently competitive. And it is a fact that everyone in law school receives grades. I can tell you a little about what grades really mean: They are a basic test of analytical skills in a highly pressured context. They give many people a leg up on jobs. What I wish to emphasize is that the rankings that grades represent — which are rather crude anyway — are in no way your measure as an individual; they tell those who learn about them nothing regarding your personal worth. They do not necessarily measure diligence, industry, attitude, judgment, or character.
Michael Boudin, now a senior judge on the federal court of appeals in Boston, once essayed a checklist of the elusive qualities that make up the prized element of judgment: “An ability to gauge in advance the reactions of others to events and arguments; a sense of calm or self‑discipline, enabling one to separate and prefer the reasoned response to one based on emotion; a willingness to make decisions and to do so based on incomplete data; a certain seriousness of mind, and perhaps an instinct for order or pattern.”
It is perhaps relevant at this point, and in the context of the flowering of the notion of “political correctness,” to add some thoughts I give my torts students: “Torts deals with particularly controversial subject matter. It is literally a blood-and-guts course. In the first few weeks, you will encounter, at points of high tension, issues of gender, race, politics, police behavior and corporate power. With these controversial things on the menu, let us be clear about this: there are no politically correct, or incorrect, ideas. There are only ideas that more, or less, withstand the test of argument.”
In a year in which my wife and I pursued master’s degrees at Harvard, we lived on Trowbridge Street. We had no laundry machine, so every few days I would gather up laundry and take it to the graduate dorms at Harkness Commons where there were machines. While I waited for the machine cycles to finish, I would stop in at dorm rooms to chat with people I had known from National Student Association congresses. I was then in a graduate year of history, but it struck me that the law students I talked to — although they were working very hard —seemed to find law school quite stimulating.
My father had gone to law school — the hard way, at night, in the midst of the Great Depression — and I wrote him, asking, “what is being a lawyer?” In a remarkable, concise response that among other things described many things lawyers do — a letter I have treasured — this rare man wrote this memorable sentence: “When I studied law, it was my ambition to fight injustice.” You will wind up in many different kinds of jobs, some practicing law and some in other occupations. But you will all be lawyers, and I enjoin you to remember, now and then, the greatest mission of those who call themselves lawyers: To fight injustice. To do justice. Rare words, indeed.
[1] These observations are amplified in my book Law School Without Fear, coauthored with my wife and colleague Helene Shapo.