Week Four, Part 4 - Socratic Method, The Home Edition

The absence of Professor Rice doesn’t mean I don’t think about Torts. The cases we would have covered deal with basic defenses to intentional torts such as battery, assault, and trespass.

At home during supper, I decide to test Stephanie and Lauren, ages 7 and 5.

"Here's a question for you,” I say. “Get it right and you can be a lawyer."

"Okay!" says Lauren.

"You know how when somebody does a bad thing, you can go to court and get money from them?"

They nod.

"Okay, tell me if you can get any money in this case." I clear my throat and wink at Terri. “A farmer in Iowa had an extra house on his land. It was old and no one lived there. In fact, to keep people away, the farmer locked the doors and boarded up the windows. He even posted a sign: ‘No Trespassing.’ But someone, the farmer didn’t know who, kept breaking in. This trespasser would smash bottles and leave cigarette butts on the floor. Finally the farmer got angry and decided to solve the problem forever.”

I take a bite of chicken cordon bleu. “Mmm, this is good. My cooking’s gettin’ better, if I don’t say so myself.”

“Mark!” says Stephie. She has stopped eating to listen.

“It’s the Dijon mustard that gives it some zip, don’t you think?”

“Mark!!” says Lauren.

“Oh, yeah. Where was I? The farmer decides he’s going to set a trap. He rigs the bedroom so if anyone opens the door, a shotgun will go off."

"Boom!" says Stephie.

“The trespasser comes back again. He doesn’t know about the trap and there’s no warning sign. When he pries open the door, you guessed it.”

“Boom!” says Lauren.

“The shotgun blows off a chunk of his knee and he's in the hospital forty days. When he finally gets out, one leg is shorter than the other. He limps to the courthouse and sues the farmer. Can our friend, Mr. Trespasser, get any money?"

Stephie says “no” right away. Lauren thinks for a while and says, “Yes.”

I press her. "Even though he was breaking into the house and vandalizing it?"

Lauren changes her vote to “no.” Terri agrees.

"Nope,” I say. None of you get to be lawyers. The farmer had to pay the trespasser $30,000.”

“What!?” Terri protests.

“That’s right. To quote Professor Rice, ‘You can't use deadly force to protect property, even if it’s the Hope Diamond.’”

Terri asks, “What about self-defense?”

“Doesn’t apply, “ I say. “The house was deserted." I lower my voice an octave. “In Iowa, it’s a point of law.”

* * *

Week Four, Part 3 - Contracts: Skeptics-To-Be

On Tuesday morning there’s a crowd around the 1L message board. Professor Rice has been called to New York on a family emergency. No Torts class on Tuesday or Thursday.

“And Rice doesn’t do make-ups either!” someone says.

Most of us are giddy enough to jump up and down. We suddenly have an extra ten hours this week, figuring in both class and prep time. Any sympathy for the Rice family is not expressed.

Before we can enjoy our Tort-free morning, however, there’s Contracts class. In the last two weeks, Professor Kaveny has hit us with a string of doctrines: mutuality, equitable and promissory estoppel, justifiable reliance.

“Just plug the facts into the legal theories,” she says like a first grader could do it. “Play the cases off one another.”

Students down front nod, their pens poised. The rest of us stare sheeplike.

Kaveny picks up on our confusion and offers an aside. “You’re probably thinking, ‘What the heck is going on here?’ The casebook doesn't look like any text you've ever had. The workload is prodigious. You’re being asked to manipulate ideas you’ve had limited exposure to. It’s challenging, no doubt about it!”

I nod. She’s got that right.

“Well, first year is all about learning a language. Words like ‘restitution’ and ‘reliance’ can be used properly! Learn how different rules can bear on the same facts. As an attorney, you're going to have to cobble and cut your client's facts to fit these doctrines.”

We discuss the case Local 1330, United Steel Workers of America v. United States Steel Corp. “Here we have the sad situation of Youngstown Steel,” Kaveny says. “The court has thrown down a red flag. No recovery!”

Kaveny challenges us: “Within the framework of the law and the grammar of the contract, can you come up with a claim to allow the steelworkers to recover? Be creative. Push the envelope!”

Since Kaveny went to Yale Law School, I’m guessing this is the New Haven method. After two or three lame ideas from students, Kaveny offers one of her own, then shrugs. “Well, if we'd been really creative, we'd have gone to business school.”

There’s more New Haven speculating with Hoffman v. Red Owl Stores. It's a case where a businessman sold his bakery and moved to a new town as part of an agreement to open a grocery store. Red Owl then changed the terms of the deal, wanting more capital. Hoffman sued, arguing that he had "acted to his detriment in reasonable reliance on Red Owl's promises."

Kaveny asks, “If you were Hoffman's lawyer, what would you have done to protect him?”

“A letter of intent,” says one student.

“Binding arbitration,” says another.

A student suggests that Hoffman’s basic problem was that he wasn’t skeptical enough. “A good lawyer would have shown him what could happen if everything went wrong.”

“Good!” Kaveny comes out from behind the podium. “As a lawyer, sometimes you need to be a skeptic.” She pauses. “And God knows, at some point these next three years will turn you into one.”

* * *

Week Four, Part 2 - The LSAT

I wish I’d had a master plan like Heath's. No, my decision to take the Law School Admissions Test was a simple response to “Whaddaya do with yourself once you move to South Bend?”

Bright idea. Leave behind the tax bracket for teachers and become a lawyer. Three years of perusing Supreme Court decisions and I’m a dynamo with monogrammed cuff links.

Notre Dame is famous for its law school, Terri tells me. And it's right up the street. National reputation. Great football. Meet big-time attorneys at alumni functions.

Right before my last Christmas in Minnesota, I sign up to take the LSAT. The $75 is a little present to myself. For Law Services to actually report my score to one of America's 180 or so law schools, it's another 75 bucks.

I need help studying. In early January, I prevail on my brother John to take the LSAT too. He’s not serious about law school, but thinks he can beat me on the test.

We each buy a Barron's study book for 15 dollars. Every night at the kitchen table we abuse our minds in timed practice exercises. We can get the right answers – it just takes too long.

The test has five parts: analytic, reading comprehension, writing, and two of logic. Analytic is the toughest. It's story problems created by psychos. "Thirty-five diplomats are sitting around a trapezoidal table. The 20 women speak Mandarin while two-thirds of the 15 men talk Gaelic. If there's a full moon, who sits across from Diplomat D?"

Three Pillsbury seniors – Mark Sherid, Dan Van Loh, Nathan Sproul – are also taking the exam, so we join forces. Every Friday the five of us get together and take an entire three-hour LSAT.

By late January, John and I agree on the need for expert counsel. We each shell out 299 smackers for Prepmaster, an intensive review held in a Minneapolis hotel. There with 30 other attorneys-to-be, we spend an entire weekend analyzing LSAT problems.

Our instructor is a Hamline Law School grad moonlighting from her job with the St. Paul Port Authority. She shows us the elusive art of solving analytic questions with diagrams. Unfortunately, I score worse on Sunday's practice test than the initial one on Friday. Not what the ad promised.

In early February, I order six practice exams ($42), even though I've concluded the LSAT is like an IQ test – you can't exceed your quotient. Will I have money for food this winter?

LSAT-day is February 12. We drive to Mankato State University. Big breakfast at Hardees – another five greenbacks toward The Cause. John and I make a gentleman’s agreement: whoever scores the highest gets treated to a steak dinner.

The test takes all morning. I chose to work through the multiple-choice questions at a careful pace. My perfectionism gets the best of me. Instead of simply marking the answer I think is correct, I read all the other answers and make sure each of them is incorrect. In every section I run out of time.

Sweaty palms, hand cramps, headaches, facial tics. I have all the stress symptoms ever recorded.

Law Services sends our results in late March. My raw score is 75 out of 101. That lands me in the 84th percentile. Not bad, not great. I'm happiest to have nipped ol' John. Hello, Golden Corral.

During spring break Terri and I meet with Anne Hamilton, director of the Admissions Office at Notre Dame Law School. She says the median percentile of those accepted is 83. It's a sign, I think.

I begin collecting letters of recommendation and start writing a personal statement. Hmmm. Need something noble and altruistic. Application fee: $45.

Owatonna lawyer Steve Smith tells me the most common reasons for attending law school are political aspirations, prestige, salary.

Not me. I apply because I spent so much time and money getting ready.

***

Week Four, Part 1 - Honest to a Fault

Early on Monday morning, I drive up to Notre Dame Law School. In the passenger seat beside me are my laptop case and a sack lunch. Today I’m brown-baggin’ it as my Igloo, a red and white mini-cooler, has disappeared. Granted, the Igloo’s not chic, but I’m still peeved. The cooler has served me well for ten years.

Just south of the football stadium, I drive through an automatic gate into my assigned parking lot. It’s reserved for grad students, and most of the cars are from out of state. Since I’ve been a Hoosier for almost a year, my Toyota Corolla has an Indiana license plate. It’s awful – a garish sunset over a silhouetted barnyard. “Amber waves of grain” reads the slogan. I zip past a Ford Explorer and two Jeep Grand Cherokees. Further on is a GMC Jimmy with a “LWYR 2 B” vanity plate. Must be nice, I think. I park in the corner between the Mendoza College of Business and Senior Bar, the on-campus drinking establishment.

It’s about a half mile to the law school. I walk across the street and past Notre Dame stadium. For being hallowed ground to so many, the facility is unimposing, more like a brown-brick warehouse. There’s no landscaping around it. Not even grass. Just blacktop now being used for faculty parking.

At the law library, I look around for my Igloo cooler. No luck. I settle in and review my case briefs. Preparation-wise, Monday is bearable. There are only two classes and I’ve had all weekend to prep. My biggest worry is that I haven’t been called on yet. Socratic Stress Syndrome ("SSS"), they call it, and I’ve got a bad case.

I make small talk with Heath Weaver, a fellow 1L. He’s a little younger than I am, married, wearing a snazzy sweater vest. His claim to fame is that he actually grew up in South Bend. On top of his books is a LSAT study guide. I joke that Notre Dame is making him retake the entrance exam.

“No, no,” he says. “Once was enough.” He tells me that he teaching an LSAT review course for Kaplan.

I shiver. “Glad to have all that behind me.”

He laughs. “Why, what’d you get?”

I blink in surprise. How well one did on the LSAT is a personal question.

“About the 85th percentile,” I say, rounding up a smidge. Since it’s obvious he wants to tell me, I ask Heath his score.

He says, “94.”

“That great,” I say, trying to sound gracious. “What was your secret?”

Heath says he prepared for one entire year.

“A year!” I say. “Then you should’ve gotten at least a 96.”

Heath looks offended, so I slap him on the arm. “Just kiddin’.”

Lunch is quick as my new bag only holds half of what the Igloo did. Where did I leave it? Then, between bites of ham sandwich, I remember. Last Friday, as I was loading my car, I set it down on the sidewalk behind Senior Bar.

I hurry out the parking lot. Back under an elm tree, right where I parked on Friday, sits a red and white cooler. Sure enough, it’s mine, sour milk and all.

Wow! I can’t believe no one walked off with it. Either there are a lot of honest students at Notre Dame or none of them would be caught dead with an Igloo.

* * *

Week Three, Part 6 - CivPro: Sue All The Bastards

By the end of the week, I’m exhausted. Every night I’ve stayed up late reading and writing. In sum, I’ve briefed 33 cases, compared to 24 last week and 9 the first.

I know I should start revising my class notes, by now a tangle of alien words and sentence fragments. First, though, I need to spend some time on the library assignment in Legal Research and my office memo.

Ironically, despite my efforts, it doesn't feel like I’m learning much. There’s little chance to reflect on what I’ve heard in class. Right now it’s all about survival of the fittest.

Of the substantive courses, Civil Procedure seems the most manageable. We’ve spent five classes on Pennoyer v. Neff, the case about the unpaid lawyer. “The law has not remained frozen,” Professor Bauer says, but we’re starting to wonder.

Bauer uses Pennoyer to review the traditional bases of personal jurisdiction: presence, citizenship, consent, agency. Then he introduces us to the concept of notice.

After we’ve squeezed every drop of goodness out of Pennoyer, Bauer announces that we’ll now work faster. He pauses. “On second thought, I can't imagine us going much slower.”

We spend the next class trying to figure out hypotheticals about personal jurisdiction. Each one is based on “A from Minnesota is suing B from North Dakota in a court in Minnesota.”

In the last hypo, Bauer manages a Pennoyer reprise. The question is, “In a suit for divorce, can A serve notice to B in North Dakota?”

“Yes,” Bauer says. To explain why, he has us turn back to Pennoyer. We read about a state’s "absolute right” to prescribe the conditions of the marriage relationship.

Bauer straightens up and thumps his fist on the podium. “It was good law back in 1877, and it’s good law now.” We laugh. If Bauer is Captain Ahab, then Pennoyer is Moby Dick.

On Friday we discuss Hess v. Pawloski, a case dealing with “implied consent” to personal jurisdiction. Bauer notes that Hess, decided in 1927, comes exactly 50 years after... Pennoyer v. Neff.

The facts are simple. Hess, a citizen of Pennsylvania, drove a car that struck and injured Pawloski, a Massachusetts resident. Pawlowski sued Hess in Massachusetts to recover damages for personal injuries and won at trial. Hess appealed. The U.S. Supreme Court upheld the Massachusetts statute giving the state court personal jurisdiction over non-residents who used its roads and were involved in auto accidents.

Bauer says that implied consent is “a legal fiction to permit the exercise of jurisdiction.”

At the end of class, Bauer tells a Hess-like story from his days at Hah-vard. “I went to law school in Cambridge,” he says. “While I was there, I had three accidents. And each time my car was stopped!”

We laugh. Bauer is emphatic and animated, the illogic of situations still at odds with his “procedural” world-view.

“Once I was at the bottom of a hill in a snowstorm. The second took place at a stoplight. And one was in alley where a truck backed into me!” Bauer rages against the bad drivers. “Fortunately, I managed to sue all the bastards and finance my education.”

On the way out, I bump into John Edgar. He shakes his head like he can’t take it any longer.

“What’s wrong?” I ask.

“That driving story. Even his anecdotes are on point!” John says. He turns his wheelchair at right angles to cut through the traffic.

I call after him. “But at least we’re done with Pennoyer v. Neff.”

* * *

Week Three, Part 5 - Legal Writing: Memo Re Underage Drinking

I'm early to Legal Writing, a class which meets every Tuesday and Thursday. The professor is Teresa Phelps, who holds three degrees from Notre Dame (BA, MA, PhD). She's stylish, dressed in a silk jacket and long skirt, and looks to be about 50. Her blond hair is cut short over the ears and combed straight back in a style best described as “miniature Golden Dome.”

Last week on the first day of class, Phelps introduced herself. “I grew up in Philly and have three children, ages 30, 28, 26, and three grandchildren. And I’m probably the only person who’s been on both Jeopardy and American Bandstand.” She alluded to her son-in-law, baseball pitcher Jamie Moyer. “ERA has a whole different meaning in my discourse community than for him.” She neglected to mention her husband, ESPN commentator Digger Phelps. And she said nothing about her memoir, The Coach’s Wife, though it’s displayed front and center in a lighted bookcase outside the dean's office.

Today's topic is the "office memo," an analytical document mixing fact and law. Professor Phelps tells us we will write three of them during the semester.

“In a law firm, office memos are used to translate a client question into a legal one,” Phelps says. “They’re often written by associates to someone higher in the firm who will make a decision about how to handle the case.”

Using an overhead projector, Phelps shines a sample memo on the front screen. There’s an objective listing of facts, a paragraph stating the legal issue and answer, then a section of analysis.

Eureka! Facts-issue-holding-analysis. The pattern of an office memo echoes the case briefs we write for Torts, Crim, CivPro, and Contracts.

Phelps recites a series of hypothetical facts for us. “Teaching Assistant Mike Starzan invited his Legal Writing class over for a drink. They in turn told undergrads to come. Two hundred people showed up! Beer was sold at three dollars per cup. Nobody was checking ID’s. The law students discussed legal writing. After complaints by some neighbors, the police arrived and arrested 20 students for underage drinking. Mike Starzan comes to your office and asks two questions: ‘Am I personally liable?’ and ‘Is Notre Dame liable?’”

The class is silent. Phelps has draped the lawyer’s mantel on our shoulders. For the first time, a client wants our legal opinion.

Phelps points to a girl on the front row. “In this legal scenario, what’s your source of primary authority?”

“Some kind of liability law?”

“Good. An Indiana statute. Since this assignment is closed universe, I’ll give you a copy of the law. As you write your memo, be careful. There are ambiguities in the language.”

Phelps moves away from the lecture desk. “I operate on the assumption that all of you come to Notre Dame Law School with good writing skills. In no way is Legal Writing a remedial course.”

She's clever, I think, giving us both a compliment and a little warning.

Phelps adds, “'Office memo' is a deceptively simple title for a formal document. Writing it will be the hardest thing you do this semester.”

* * *

Week Three, Part 4 - Affirmative Action

It’s probably a time-waster to attend clubs and societies at Notre Dame Law School, but I find it easy to justify since I’m usually hungry and there’s always free food.

The St. Athanasius Debate Society meets once a month during lunch. Today the topic is affirmative action in higher education. About 25 students, all dressed casually, bunch together on one side of a classroom.

I settle into the back corner with a Mountain Dew and two slices of pepperoni pizza. There are no plates or silverware, only napkins.

While I eat, I page through The Observer, looking to see if a prof from the anthropology department answered Pieder Beeli’s challenge. Nothing. Not even a James-and-the-Giant-Peach-like “Shut up, you little grub!”

The debate starts and I listen with interest. On each team there are two students, a 1L and 2L, following an informal agenda of opening statements and rebuttals.

A black female and white male argue in favor of affirmative action. The effects of institutional racism still exist, they say, and affirmative action is a social imperative to right past wrongs.

The anti-affirmative action side is composed of two white males, Ben Pugh and Ray Tittman. Pugh argues that the Constitution requires color blindness and that affirmative action poisons race relations.

Tittman, the final speaker, tells us about his personal experience with affirmative action. “A couple years ago, a friend wanted me to apply at Georgetown Law School. I said, ‘No, no,’ but he kept bugging me. Finally, just to humor him, I got an application. One of the questions required me to check a racial category. Although my family is white, they had lived in Africa for three generations, having emigrated from the Netherlands. I wondered if this qualified me as an African-American.

“To find out, I called the Equal Employment Opportunity Commission, and the EEOC said it did. So I checked the box. I still didn't think I had much of chance since my LSAT score was in the 91st percentile and my GPA was 3.4. The mean at Georgetown was something like the 94th and 3.6.

“As to the rest of the application, I scribbled out quick answers by hand. I didn't even bother to type ‘em. Then, in two weeks I got word back that I’d been accepted. And I started getting congratulatory phone calls from the Black Student Union!

“I decided I better set the record straight, so I wrote Georgetown and told them that I’m white, but also about my family and what the EEOC said. They wrote me back, revoking my admission. I got a lawyer and threatened to file suit. Georgetown made an accusation of fraud to the Law School Data Reporting Service. The press got involved and there were a bunch of stories. In the meantime, I got accepted at Notre Dame, which was my first choice all along.”

The black students in the back row with me don’t look happy. Dorphine Payne, one of the debaters, is standing nearby. Her arms are crossed and she says in a too-loud voice, “Can you believe this guy?”

Tittman ignores her and brushes the hair off his forehead. “On the Notre Dame application, the categories were White, Black, Asian, Hispanic, and I had checked the appropriate spot. The upshot of the whole incident was that I agreed to write a Georgetown a letter saying I no longer wanted to attend, and they agreed to drop the fraud charge.

“Aside from changing my view on the fairness of affirmative action," Tittman says, "the only lasting change is that the Georgetown application now says ‘Black’ instead of ‘African-American.’”

That’s the end of the debate, though Dorphine announces that she doesn’t see what Ray’s story “has to do with anything.” I laugh to myself because she sounds like a third grader.

Neither side has directly addressed the concerns of the other. And to my surprise, case law on the topic has been generally ignored. The only exception is a short discussion whether California Regents v. Bakke, a 1977 case, constitutes "good law." In Bakke, the Supreme Court ruled that an admissions policy at the UC Davis School of Medicine was unlawful. The program had set aside 16 out of 100 spots for minority applicants.

I grab another slice of pizza on my way out. In the abstract, I don’t have strong feelings about affirmative action. To my knowledge, I've never benefitted or been hurt by it. If my spot at Notre Dame Law School had gone to a less qualified applicant, however, I’m sure I’d be torqued.

* * *

Week Three, Part 3 - Torts: Stand & Deliver

Professor Rice strides into Torts, his eyes darting over the class. He crosses himself and leads us in prayer. Then he tosses a stack of photocopies to the students on the front row.

As the handouts circulate, Rice says, “My method for taking attendance is ‘visual reconnaissance.’" He cups his hand at eyebrow level. “I look around and see if anyone's here.” We laugh.

Other profs at ND Law seem to agree. If you don’t come, tough. It’s your loss. Only one class, Legal Ethics, has a sign-in sheet.

Rice tells us there are three bases for tort liability: intent, negligence, and strict liability. We turn to Brown v. Kendall,” an 1850 case from Massachusetts. I’ve read it twice, but still don’t understand the legal aspects.

Rice scans the list of students. “Mr. Hickey.”

Mike Hickey raises a tentative hand. His face turns red and it now matches his hair.

“From now on, when you're called to a brief case, stand up!” Rice barks. “There are very few courts where you can lounge back. Part of the law school process is learning how to stand up and talk about a case.”

Yikes! Rice is taking Socratic pain to a new level. Hickey gets to his feet, shaky as a toddler.

“My job is not to harass you, but to argue against you,” Rice says. “This will help you someday in New York City municipal court.”

Hickey looks doubtful.

Rice asks, “Well, did you like it?”

“Like it?” Hickey rubs his hands on the front of his corduroys.

Rice pretends to be exasperated. “Yeah. Like. It?”

“What’s the antecedent of ‘it’?” Hickey asks.

Rice looks at the ceiling as if seeking divine help. “Where’d you go to school?”

“Georgetown.”

“Major?” Rice asks.

“Philosophy.”

“That explains everything!” Rice waits for the laughter to die down. “Did you like the holding?”

“Can I ask you another question?”

“You just did,” Rice says. More laughter.

“Are you asking if I thought the outcome was just?”

The bantering continues with all the laughs at Hickey’s expense. Rice backs up to review the facts. Defendant Kendall tried to stop two dogs from fighting by beating them with a stick. In the process, he injured the eye of Plaintiff Brown, who was standing nearby.

Professor Rice questions Hickey on the meaning of ordinary care, due care, extraordinary care. What if both the plaintiff and defendant are using ordinary care? Conversely, what if both are not using ordinary care? How about if the defendant is using ordinary care and the plaintiff is not? Rice twists the issues like he’s playing with a Rubik’s cube, then he thanks Mr. Hickey for an outstanding job.

I find the terms confusing and the legal points meaningless. It doesn’t help that Rice talks fast and mumbles at the end of his sentences.

Just get it down the best you can, I think. You can figure everything out later.

* * *

Week Three, Part 2 - What Might Have Been

Before leaving for class on Wednesday, I get a phone call from Jaimy Gordon. She’s a creative writing teacher at Western Michigan University and author of several books, most notably She Drove Without Stopping. Jamie asks why I have yet to show up for class this fall.

I apologize and give her the bare-bone facts, explaining that I withdrew from the MFA program by letter.

She’s supportive and gracious. "Congratulations. Notre Dame has a great law school." Jamie mentions two profs that she knows.

We talk a little about writing and the creative process. She emphasizes the need for discipline and the publish-or-perish nature of higher ed. “Your novel portion was promising,” she says. “I hope you’ll finish it.”

“Maybe this summer,” I say. “Right now I’m drowning in case law. I started late and have no context.”

“Your background fascinates me,” she says. “The Armenian name and your time overseas. You were the brainiest person to apply.”

I laugh. “The last two weeks, I’ve felt anything but.”

"We expected scores like yours from someone at Harvard, not a little, religious school.”

“As they like to say at Pillsbury, not so long ago Harvard too was little and religious.”

She laughs. “Pillsbury, yeah. What denomination was that?”

“Baptist.”

“Which kind?”

“Independent.”

“And that’s where you taught too?”

“Yes.”

"Did you really believe it or were you just working there?"

“I’m a believer.”

There’s a long pause. “Well, if you decide you don't like law, I'm sure this program would continue to be an option.”

“I appreciate that.”

We hang up and I sit at my desk for a moment. Around me are signs of the writing life. Research files. Manuscript copies. John Gardner’s On Moral Fiction.

I get four boxes from the crawl space, and then I pack without stopping. Everything about my life as an English teacher and would-be novelist gets boxed up and stacked in the closet. There, I’ve cleared the deck. The only book on the near shelf is Black’s Law Dictionary.

I drive up to Notre Dame, a little slower than usual, thinking about what might have been.

* * *

Week Three, Part 1 - Crim: Exceptional Circumstances

“Purple Funk” is the Monday headline in The Observer, and it pretty well describes the mood on campus after the upset by Northwestern University.

I see Kevin Patrick at lunch. “You were right about the ‘perennial Big Ten doormat’ being better than advertised.”

He dunks The Observer into a recycle bin. “Yeah, but I never thought we’d lose.”

Professor Dutile starts Criminal Procedure with, “‘The game's not important,’ I said to myself... with my head in the oven.”

He points out that of the 75 entries in Friday’s guess-the-score contest, only one person picked the Wildcats. Dutile calls out the name, Dan Overbey. Gentle boos rain down on the ex-cop from Florida.

“I played the percentages,” he protests. “Northwestern had a better chance of winning than me predicting the spread against this many people.”

Now why can’t I be smart like that, I think.

Dutile turns our attention to the case at hand. In Johnson v. United States, narcotic agents smelled opium coming from a hotel room. They knocked and Johnson opened the door. The agents arrested her and without a warrant searched the room, finding – surprise! – opium and smoking paraphernalia.

In 1948 the Supreme Court held that a warrantless search will only be upheld in cases of “exceptional circumstances,” such as where a suspect is fleeing or evidence is about to be destroyed. In Johnson’s situation, the officers should have first gone to a magistrate and obtained a search warrant. Conviction overturned.

Johnson is the first case that provokes me. I’m frustrated by the holding, and all my sympathies are with the men in blue.

Dutile’s take on the case is hard to read. His questions flesh out all angles of the debate. I like it when he asks, “Do you suppose the Court would have been so quick to reverse if Johnson had been charged with a triple homicide? If we're going to be consistent in our principles, the nature of the crime is irrelevant.”

That evening I tell Terri about Johnson while we walk around the block.

She asks, “And do you want your hotel room searched because a cop thinks he smells drugs?”

“Go right on ahead. I’ve nothing to hide.”

Terri looks at me like I’m channeling some third-world dictator. “I don’t want the police searching my house without a warrant!”

“Why not?”

“I remember how it felt when I got served my divorce papers. There’s a police car in the driveway. A deputy knocks on your door. I had piano students in the house. It’s embarrassing!”

“Hmm. But suppose the target wasn’t you, but Cliff next door. And rather than divorce, it’s a homicide. Can you still be consistent in your principles?”

Terri slips her arm around me and hooks her thumb in my belt loop. “It’s obvious you’re not getting enough sleep,” she says softly. “That’s the only principle I see.”

* * *

Week Two, Part 9 - Upset!

The pre-game celebration for a football game at Notre Dame is an American festival. As if by magic, 100,000 fans appear, buzzing about the campus. Nerf balls and frisbees fill the air. Rows of marigolds bloom in immaculate beds.

Holding hands, Terri and I push through the crowds to the law school. We’ve missed the “Tailgater of the Century,” but there’s still plenty to do. I show Terri my classrooms (locked) and the library (deserted).

We walk upstairs to the third floor atrium. I point out my study cube. “This is where I read the paper.”

She stares at me, one eyebrow arched in suspicion.

In the student lounge, we mingle at a reception for the “Notre Dame Law School Community,” which appears to mean anyone willing to eat free weenies and chips.

I point out the Pillsbury College pennant now hanging from the ceiling. Terri is also a Pilly grad – captain of the Comet cheerleaders, in fact – and wants a closer look. We walk up, hands clasped behind our backs, and admire the white letters on blue felt. True to his word, the president of the Student Bar Association has hung the pennant beside one from Cornell University.

I scratch my chin. “Hmm. I forget. Which school is in the Ivy League?”

Notre Dame stadium holds about 60,000 people. The other fans are here to tailgate or just hang out. Terri has lived in South Bend for ten years and I’m surprised at how many people she knows. We bump into two of her co-workers from AT&T, Lisa and Emily. Both are ticketless but seem not to mind.

"Home games are great," Lisa says. "It’s the only day of the year you can roll out of bed and have a beer."

A half hour before game time we head into the stadium. Northwestern, wearing their hideous purple, is on the field warming up. The “Mildcats” are a 28-point underdog. Notre Dame is ranked in the AP's Top Ten, appropriate for the winningest college football team of all time.

Terri and I find our seats in the student section. We’re in the corner of the north end zone about 30 rows up. Most of the students are wearing “The Shirt.” It’s a blue pullover with a specially designed motif about Notre Dame football. Proceeds from its sale go to support student-run clubs and an emergency aid fund.

I tell Terri that I should be studying.

She gives me a pitiless look.

“I bet some of my classmates are.”

“We didn’t enroll at Notre Dame to sit at home on Saturday afternoons!”

“You’re right. One afternoon is nothing.”

I scan the crowd for classmates. The more I see, the better I feel. Kevin Patrick is two rows behind me. John Edgar is in the handicap section right below the press box. I don’t see Susan Wilson, but remember that she’s gone home to Kentucky. Every other weekend she drives six hours back to see her family.

Students crowd in around us and begin to chant, “Here we go Irish, here we go.” Clap. Clap. “Here we go Irish, here we go.” We stand on our bench and join in.

I pull out a small packet of CivPro flashcards from my pocket. The top one reads, “When you're confronted with a jurisdiction problem, what seven points do you consider, in order?”

I flip it over and read the list: “1 - subject matter jurisdiction; 2 - personal jurisdiction; 3 - notice and opportunity to be heard; 4 - service of process; 5 - venue; 6 - removal; 7 - waiver.”

Beautiful, I think. I can meditate on this card all game.

The Notre Dame marching band highsteps onto the field, then Coach Lou Holtz leads the Irish to the near sideline. I can’t believe how close we are to the players! When they butt helmets and slap pads, I can hear it.

The band begins to play "America the Beautiful." Our section is already standing. The rest of the crowd rises to its feet and begins to sing.

For us, though, the moment is interrupted as a male student staggers down our row. He’s reeks of alcohol and there are nacho cheese stains across the front of The Shirt.

“Gotta pee! I gotta pee!” he says, words heavy and slurred. Nearby students point and laugh.

Notre Dame kicks off and stops the Wildcats cold on three plays. After the punt, ND’s offense comes on the field.

"Watch us march it in for a touchdown," I say.

Oops! Notre Dame running back Randy Kinder fumbles. Northwestern scores several minutes later.

“It's okay,” I tell Terri. “The final score’s gonna read 48-17. Say you heard it here first.”

Kinder never sees action the rest of the half. He sits on the bench, towel over his head. Ah, yes. Public humiliation second only to the Socratic method.

The student section is still noisy. “We are” – clap, clap – “N.D.” Clap, clap. We do helicopter hand signals to accompany the kick off. But under the hot sun and dismal performance, we begin to wilt.

At halftime the Irish are down 10-9. I try to be confident. Terri asks why Coach Holtz keeps calling the same running play up the middle.

I rub Terri’s shoulders. She says she’s ready to go. Her back hurts and it’s a lousy game.

I convince her to wait until we see how the Irish do in the second half. That takes all of one drive. Notre Dame looks clueless.

As we walk out of the stadium, Northwestern scores again. Now the score is 17-9, Wildcats.

The crowd outside is subdued as well. We cut through the tailgaters to our car, about a mile away.

On the ride home, I listen to the game. Notre Dame scores, closing the gap to 17-15. Then they get the ball back.

Still time for a Joe Montana finish.

Instead, Northwestern stops the Irish on a 4th and 2.

Game over.

The radio announcer says, "Of late, the defining moments for Notre Dame have not been positive."

Just my luck, I think. My first game at Notre Dame and I witness one of the most stunning upsets in college football history!

* * *

Week Two, Part 8 - Crim: Search & Seizure

Our first topic in Criminal Procedure is the Fourth Amendment prohibition against unreasonable search and seizure. Professor Dutile makes a few introductory remarks about the overriding issue of civil liberties versus the state’s duty to ferret out crime.

“It’s a balancing act,” he says, “and the real fighting is where the line should be. I don't care where you end up, only that you're more enlightened.”

Dutile picks up the class roster. “Let’s talk about Katz v. United States, the most important Fourth Amendment case ever decided.”

Uh-oh. Time for some Socratic method. Heads go down to avoid eye contact and students pull out neatly written briefs. My heart rate quickens and I try to find comfort in my hard-to-pronounce surname. Too bad it’s not three syllables longer.

“Ms. Wilson,” Dutile announces.

From the far corner, Susan Wilson raises her hand. Like me, she’s “non-trad,” meaning over thirty and married. Before law school she was in health care, first as a nurse then an administrator. I’ve talked with her several times. She’s pro-life and told me Notre Dame Law was her “dream school.”

Question by question Dutile teases out the facts of the case. The bookie. The illegal betting. The listening device on the phone booth.

We move on to the holding. In 1967, the Supreme Court ruled the government’s attachment of a listening device to the outside of a public telephone booth was an unreasonable search.

“Now before Katz, what was the test to determine whether there was a search?” Dutile asks.

“If the police or somebody came on the land,” Wilson says.

“Whether there was physical trespass. Good. The old language was ‘penetration into it.’ That would work up until the 1900's. I could go inside my house and talk to someone, confident that there would be no invasion. Now with electronic devices, all those bets are out the window, and the court is changing the test.” Dutile pauses. “Ms. Wilson, what’s the Katz rule based on?”

“An expectation of privacy.”

“What type of expectation?”

“A reasonable one.”

“Good. ‘Reasonable expectation of privacy’ has become the phrase for capturing what Katz is all about.”

“Ms. Wilson, suppose the person whom Katz had been talking to ran to the police. Is the evidence okay to use?”

“Yes.”

“Why?”

“Because there’s a known risk when you speak to someone. There’s no reasonable expectation of privacy.”

Dutile cranks up the “hypo-machine.” Suppose Katz has a loud voice and a police officer overhears? Suppose while Katz is on the phone, he has his ledger on a shelf and an officer sees it? Suppose Katz is speaking softly, but an officer has the unusual but not unique talent of reading lips? Suppose the police officer is a lip-reader who’s across the street with binoculars?

On and on we go. In every instance Dutile presses Susan as to whether the evidence is okay to use. Dutile doesn’t give us his take on the hypotheticals. It’s all Opinion By Wilson.

Dutile says, “Our role as lawyers is not to know the answers to the five million specific situations, but to be aware of the issues.”

The period is almost over. “One last thing about Katz. First impression is that the government lost. Actually they won, big! Why? Because the Court said electronic eavesdropping could be used Constitutionally.”

Before we leave, Dutile says we’re going to have a contest. He passes out squares of paper and tells us to guess the outcome of Saturday’s football game against Northwestern University.

I jot down “48-17, Irish” and turn it in, convinced of my own genius.

* * *

Week Two, Part 7 - Deadly Sins

My failure to study Dean Link’s 60-80 hours a week cannot all be blamed on duties at home, unfortunately. I’m responsible as well. Too often I read the newspaper when I should be briefing cases. In my list of the Seven Deadly Sins of Time Mismanagement, it’s number one.

Every day around noon, I stop by the law school lounge and pick up an Observer, the student paper at Notre Dame. Contrary to the conventional wisdom, I think it’s a great read – although compared to Pennoyer v. Neff, most anything is. About half the articles are student generated, the others pulled from the AP wire.

The Observer often has a piece about Notre Dame football, so I start at the sports section on the back page. There are several articles predicting which freshmen will earn the most playing time. In one, the author bemoans wide receiver Randy Moss, the prize recruit who got away. Another speculates on the chances of quarterback Ron Powlus to win the Heisman Trophy.

In the middle of the Observer are the editorial pages, called “Viewpoint.” The most interesting letter to the editor is from Pieder Beeli, a graduate student in physics. On the topic of biological evolution, he takes umbrage with the neo-Darwinian “fish to man theory that is dogmatically taught” at Notre Dame.

Beeli challenges the professors in the anthropology department to respond with proof of one instance where “an organism gains beneficial genetic information... from random mutational events” as it “develops to a state of greater complexity.” In his last paragraph, Beeli goads them a bit: “After 136 years of Darwinism, they certainly should be able to produce one example.”

Beeli is like William Jennings Bryan, a lawyer and three-time presidential candidate for the Democratic Party. Bryan would offer to pay anyone $100 for proof that man evolved from monkeys. In 1925, Bryan helped prosecute a biology instructor who violated a Tennessee law against teaching that man had descended from lower order animals. State of Tennessee v. John Scopes was the first “trial of the century.”

I’m interested to see if any anthro profs respond to Beeli. It’s an important debate, I think, extending beyond science to legal and religious ideas such as justice and morality. To quote Oxford’s Richard Dawkins in River Out of Eden: A Darwinian View of Life:

In a universe of electrons and selfish genes, blind physical forces and genetic replication, some people are going to get hurt, other people are going to get lucky, and you won't find any rhyme or reason in it, nor any justice. The universe that we observe has precisely the properties we should expect if there is, at bottom, no design, no purpose, no evil, no good, nothing but pitiless indifference.

Interesting, I think. No justice. No evil. No good. And certainly no Seven Deadly Sins.

* * *

Week Two, Part 6 - Contracts: Promises Gone Bad

On Thursday, Professor Cathy Kaveny adjusts the scarf around her neck, then begins Contracts by saying, “You need to figure out a way to have a life during your first year. Because you know what? It's not going to get any easier when you're in a law firm!”

We must look tired. I know I am. So far this week we’ve had to read and brief 21 appellate cases. Friday will add another three or four. That’s a lot of heavy lifting.

Kaveny continues. “You can't just keep saying, ‘I'll defer life until I make partner.’ A law firm will expect you to behave as if you've got nothing but eternity to devote to them.”

We turn our attention to the cases. In Contracts, it seems that once I wade through the legalese, I can understand the general concepts.

To my surprise, the case law is colorful and often amusing. As we work through the section on damages, the common theme is promises gone bad.

• A woman sues her plastic surgeon because he failed on his promise to make her beautiful.
• An aunt promises her eight-year-old nephew $3,000 but never gives him the money.
• An auctioneer promises a “New Model Ford Free” but then refuses to hand it over.
• An uncle promises to pay his nephew $5,000 to refrain from smoking, drinking, and gambling until he turns twenty-one.

“Once you’re in a practice, you’ll need to be able to brief a case in five minutes,” Kaveny says.

Wow. That’s like telling a driver’s ed student he’ll someday be racing at the Indy 500.

Kaveny of course takes quite a bit longer than five minutes to unpack each decision. There’s plenty of nuance in a simple doctrine such as “pure gift promises are not legally enforceable.”

What’s most unusual about Contracts, though, is Kaveny’s approach to the Socratic method. Instead of singling out students at random, a la Bauer-Rice-Dutile, she asks for volunteers. “It’s painful for me to call on you,” Kaveny says. “It stops me from being affirming.”

I’m glad for a break. Maybe in the resulting calm I’ll “figure out a way to have a life.”

* * *

Week Two, Part 5 - Scared Spitless

Dean Link’s pointers about law school have me worried. If it takes 60 hours a week to succeed, I’m at least 10 to 20 short.

During the day I’m fine. The 1L schedule allows for two or three hours between classes. Usually that’s enough time to get familiar with the cases, though I’m scared spitless at the thought of being called on.

In the evenings I want to study more, but have been unsuccessful. It wouldn’t be fair if I didn’t lend Terri a hand getting supper ready and cleaning up. At AT&T, her job has both the technical challenges of telecom and the pressure of a sales quota. And when long distance service goes down on a big account, the stress is seismic.

Stephanie and Lauren, ages 7 and 5, need attention. Usually Terri does school work with Steph while I help Lauren on her piano lesson. Then we switch. Terri does piano with Steph, and I read to Lauren. If all goes well, Terri and I squeeze in a walk around the block. About 9:30, we put the girls to bed.

After that I try to study. Twice in the last week I haven’t made it to bed, falling asleep on the couch instead. At 5:00 a.m. I wake up, disorientated, casebook still on my chest like a blanket.

On Wednesday I stop by the announcement board, more out of habit than interest. The female student next to me is reading the 2L notices. She’s wearing blue jeans and a cotton top. There’s a wedding ring on her finger and she looks about my age.

I say hello and introduce myself.

Her name is Mary Wiggins. Before coming to Notre Dame Law School, she was an engineer at Hewlett-Packard.

I ask where she did undergrad.

“Northern Arizona University.”

I shake my head, unfamiliar with it.

"It was real small for a state school, about 15,000. Maybe a thousand in my major."

I tell her how when Terri was interviewing Notre Dame students for AT&T, the common refrain was "I started out in engineering but switched to marketing."

Mary laughs. “It happens everywhere. At NAU we would parody the calculus formula for area under a curve. Instead of ‘the limit of x as it approaches zero is y,’ we’d say, ‘the limit of an engineering GPA as it approaches zero is a marketing degree.’”

“That’s good,” I say.

“And ‘the limit of a marketing major's GPA as it approaches zero is an education degree.’"

“Hey, watch it! I used to be a teacher.” I tell Mary how I moved to South Bend when I got married. And I mention that it’s hard finding study time.

“Can’t do it at home,” she says. “You’re always gonna be interrupted.” Her tone is matter of fact, like an engineer.

“But I think I’d feel guilty if...”

“Nope. Can’t feel bad about it.” She turns to leave. “And one more thing about being married during law school.”

“What’s that?” I ask.

“You won't need birth control anymore."

* * *

Week Two, Part 4 - Ethics: Tips For Law School Success

Unlike most law schools, Notre Dame puts Legal Ethics front and center. It’s a required class for all 1L’s, and the professor is Dean David T. Link.

“Even though Ethics is only one-hour, it’s the most important course you’ll take,” he says. “The majority of practicing lawyers don’t understand ethics. At Notre Dame, it’s pretty clear we do.”

Nearing retirement, Link still has a booming voice, deep although a bit affected. His bachelor and law degrees are both from Notre Dame. After graduation, he worked five years at the U.S. Treasury Department, then four as a tax attorney at Winston & Strawn in Chicago. He’s been dean for 20 years. It’s the longest tenure in the country, he tells us, making him “dean of the law school deans.”

He gives an overview of first year. “We try to teach you some substantive law and procedure. We introduce you to the skills of legal research and writing. And we seek to sensitize you to questions of ethics.”

Link takes a step to the right and unbuttons his double-breasted suit coat. To my amazement, he swings his foot up on the table next to the podium. His leg is bent at an angle reserved for track runners trying to get loose.

“The most important thing we do, however, is introduce you to legal analysis. We’re teaching you to think like a lawyer and perform legal reasoning in a highly competent manner.”

Link pauses to pull his sock up to mid-calf. He’s flashing a bit of hairy leg, and I hear snickers behind me.

“Let me give you some tips for succeeding in law school,” he says. “Recently in New York, I met with an alumnus who’s head of the corporate division at a major firm. He said these insights were the whole key to his success.”

1. Plan to study 60 to 80 hours per week. This includes the 15 hours you spend in class. Frivolous activities... like eating... do not count. You can't do it in less than 60.
2. Get yourself an appointment book. Write down what you plan to do, then what you actually did. Calendar yourself and keep a time sheet. Most lawyers bill by the hour, and even those who don't must justify their time.
3. Brief your own cases. It’s how you learn to do legal analysis. The briefs in those ponies aren’t very good. Don’t use them as a substitute for your own work. Remember, it's not the product, but the process. And be sure to ask yourself “Is this decision just?”
4. Attend and participate in class. Even if you’re not called on, try to think of the answer. If you don’t understand something, then put an asterisk in your notes to follow up.
5. Stay ahead. If you brief after class, then you've lost the experience of legal analysis. And you've diminished the value of class.
6. Use study groups to review and discuss your work. Don’t misuse them by dividing up your classes.
7. Take one night to do a weekly review. Use it to bring your briefs and class notes together. At that review, do a summary listing. We called ‘em “dope sheets,” the list of one-liners you never forget.
8. Use the faculty wisely. If you don't understand a particular doctrine, then come talk to us. Like the IRS, we’re here to help.
9. Remember that preparation for final exams does not start that week. Pace yourself. Review everything every week. Use past exams to see what the teacher wants. Some professors demand every detail. You can tell by how they ask questions in class. Take the practice exams at mid-semester seriously.
10. Understand the logic of legal reasoning. Actually, it’s quite simple, a sort of propositional or if-then logic. If... if... if... if... if, then... this must be true. Peppering this logic is a little bit of intuition. “Yeah, if I follow that line of thought rigidly, I'd do ‘x.’ Instead I think I'll do ‘x-sub-1.’” Note that each case has limited meaning on its own. See it in logical relation to the ones before and after, what Dean O’Meara called “the never-ending tapestry of the law.”

As if to signify his lecture is done, Link slides his foot off the table. He tells us that next week we will watch To Kill A Mockingbird as a springboard to our discussion of moral philosophy.

“Keep in mind what we’ve just reviewed,” Link reminds us. “Law school is not like undergraduate where everything will suddenly brighten up for you.”

* * *

Week Two, Part 3 - Law School: A Cut Above

Getting student tickets for University of Notre Dame home football games isn’t as easy as I had hoped. For some reason, perhaps my wait-listed status, I am not issued a ticket application . To get one, I spend an hour on Monday afternoon in line at the Joyce Center box office.

There are other fans in worse predicaments. A girl with blond hair halfway down her back tells the ticket clerk, “My ex-roommate is a graduate student doing field research in northern Minnesota. She wants to know if I can get the tickets for her.” The clerk shakes her head “no.”

Next up is a man in his 40's who identifies himself as a faculty member. "I signed up for my tickets in the spring, but moved over the summer. Apparently the tickets were sent to my old address.” He too gets no relief.

My tale of woe results in a helpful smile. The clerk flips through the plastic box in front of her and pulls out a blue card with my name. She tells me to come back tomorrow afternoon when student tickets go on sale.

Tuesday I return. This time I have to stand outside in a line that stretches at least a hundred yards. I study a bit, but it’s hard in the hot sun.

The guys in front of me are discussing theology. "I don’t think you can prove the existence of God,” says one. He’s shirtless and has “Irene” tattooed under his left nipple. “You can only prove that God does not 'not exist.' Then faith takes you the next step." He takes a last swig out of his McDonalds cup and flips it into the shrubbery.”

Standing behind me is a fellow 1L, Kevin Patrick. We discover we’re in the same section for each of our substantive classes. The odds of that are low. There are two sections of CivPro, two of Crim, two of Torts, and three of Contracts.

I tell Kevin my little theory that if Professor Bauer only grills one student per class, starting with the most pronounceable names, I might be spared.

“Socratic is nerve-wracking, but everyone should experience it,” says Kevin, a veteran of one interrogation. “It’s why law school is a cut above.”

Must be a masochist, I think. As we inch toward the ticket window, I ask Kevin if he considered any other law schools.

He laughs. “Get this. A friend and I are shooting pool at a bar next to a hotel. This is back home in Maryland. My two top choices are Notre Dame and North Carolina, so we’re debating the merits. Because I want a joint JD/MBA, Carolina looks pretty good. It has a better business school, plus cheaper tuition and a warmer climate. But Notre Dame Law School is ranked higher and as a university it offers the intangibles. We argue back and forth until a woman in her 50's gets up from her table and says, ‘It’s none of my business, but if you can get into Notre Dame, you go.’”

I laugh. “Did she give any reasons?”

“Nope, that’s all she says, then walks away.”

“That’s great,” I say.

I keep my how-I-stormed-off-the-wait-list story to myself. It’s a bit of a stigma. I may be on the team, but perhaps I don’t deserve it.

The Notre Dame marching band starts to practice in the adjacent parking lot. We watch the back row of tuba players bob and weave. It’s impressive.

Kevin starts talking football, the lingua franca of Notre Dame. He has his doubts about this year’s squad. “They were 6-5-1 last year and got smoked in the Fiesta Bowl,” he says. “I hope they’re not looking past the first game. Northwestern is returning a bunch of starters, and they’ll play us better than anyone thinks.”

I tell him he’s crazy. Northworstern shouldn’t even be Division I.

We’re finally at the ticket window. I fork over $160 for two packets of season tickets. The price seems high, but I rationalize that in relation to tuition, it’s not so bad.

As I walk back to the library, the marching band strikes up the first bars to the Notre Dame fight song. I can’t help but hum along.

* * *

Week Two, Part 2 - CivPro: Socratic Method

At 10:00 a.m. I’m in CivPro with my casebook and laptop. Professor Bauer strides in and the class quiets down. We’ve spent the week on introductory material: Article III of the Constitution, the Judiciary Act of 1789, and state courts v. federal.

With our first case assigned for today, everyone senses that now comes our baptism into the Socratic method, the question-and-answer technique used in most American law schools.

“Let’s turn our attention to Pennoyer v. Neff,” Bauer says, stroking his beard. “It deals with the worst thing in the world – a client who doesn't pay.” Nervous laughter combines with the rustle of pages.

Bauer scans his attendance sheet, looking for a victim. The room is as quiet as a morgue. “Mr. Kevin Patrick,” he calls out. “Help us with the facts.” Bauer places a check next to Kevin’s name.

Kevin clears his throat. He’s blond, fair-skinned, wearing a cranberry-colored polo. “This case starts out with a default judgment in favor of John Mitchell against his client, Marcus Neff.”

“No, Mr. Patrick! This case did not start with a judgment!! It began with a contract, did it not?” Bauer writes “1. K for legal services” on the white board.

Kevin takes a deep breath. “Yes. Mitchell helped his client acquire land from the federal government.”

“That’s correct,” says Bauer. “Under what law?”

Kevin searches his casebook. There’s an embarrassed sort of silence. It’s worrisome enough to understand the general concepts, much less to master the details.

“As part of the Oregon Donation Act of 1850.”

“Good,” says Bauer. “What happened next?”

“The client left town.”

Bauer writes on the whiteboard: “2. Neff breached by not paying.” We all copy it down. “Now, Mr. Patrick, how do you know that’s true.”

Silence. Bauer strokes his beard, waiting.

“We don’t know for sure,” Kevin answers, a little shaky. “But the context seems to support it.”

“Anyone else?” Bauer scans the classroom, but sees no hands. “We hear Mitchell's side of the story because he drafted the complaint. But we don't know for sure whether it's true or not! We don't have the other side.”

Bauer checks his notes. “What’s a complaint?”

“It’s a list of how you think you’ve been wronged, legally,” Kevin says.

“A complaint is a recitation of grievances asking for relief,” Bauer says. “Mr. Patrick, what was Lawyer Mitchell asking for here.”

“I believe 250 dollars.”

“And what did Mitchell do with the complaint?”

“He filed suit.”

“Where? In a filing cabinet?” Bauer has a little smile on his face, maybe a smirk.

Kevin waits. He either doesn’t know (like me) or senses the question is a throw-away.

Bauer answers himself. “No, with the state court in Oregon. Mitchell pays a filing fee, the clerk stamps the complaint, and gives it a docket number.”

Bauer writes on the board: “3. Mitchell files suit – breach of contract (Mitchell v. Neff).”

We copy it down.

“Our hearts go out to Mitchell,” Bauer says. “He's a lawyer, one of us, and his scum-of-the-earth client doesn't want to pay!”

Bauer outlines the mechanics of “4. service of process.” Constructive service. Summons. Process server. In short, Neff in California doesn’t respond to a newspaper ad with a text of the complaint and summons.

Bauer says, “So Neff’s not in court because as to the lawsuit, he doesn't know squat, to use a technical term.”

“Doesn’t know squat.” I like it. If law school kills me, that will be my epitaph.

“Maybe Neff was just having a great time in San Francisco,” Bauer opines. “What happens next, Mr. Patrick?”

“The Oregon court rules in favor of Mr. Mitchell.”

Bauer writes: “5. Ct. issues default judgment. Feb./1866 for $295.” Bauer checks his watch. “‘Default’ means there’s nobody to argue. A ‘judgment’ is an order of the court.”

Students begin closing their texts.

“For next class, look at enforcement of the judgment and the second lawsuit. Find the issues and the reasons. You’re dismissed.”

About a dozen students walk to the front and cluster around Bauer. “Gunners,” they’re called, the students who aim to please. Most are guys, a few girls.

I shouldn’t judge. Maybe they missed a key point or are fascinated with the material. I didn’t understand everything, but I’m sure I got all the notes down and that makes me happy.

* * *

Week Two, Part 1 - Amazingly Dense

Monday is Labor Day, and I’m up at 5:00 a.m. to work some more on Civil Procedure. Professor Bauer’s assignment sounded simple enough: read the first chapter of the casebook and brief Pennoyer v. Neff. I’ve already spent an afternoon on it, yet made minimal progress.

The casebook author, Stephen Yeazell, writes that “at this point in your legal studies you are still an outsider.”

Thanks! As if I hadn’t noticed.

The text is full of words I’ve heard, but feel no connection to – complaint, joinder, summary judgment. In the margin I define the ones that are most unfamiliar. “Adjudication” - “the determination of a controversy and a pronouncement of judgment based on evidence.”

I find Yeazell’s phrasing more interesting than the content: “absence of compulsion” and “the elaborate game called litigation.” Procedure is the “etiquette of ritualized battle.”

By 8:00 a.m. I’m through the introductory material. Yeazell introduces Pennoyer as “a case whose deceptively simple facts spawned a truly splendid doctrinal elaboration.” Hmm.

I read on. It’s about a lawyer who sued his client for unpaid legal fees! I laugh out loud. If law school is “coming to know the ways of lawyers,” to borrow a phrase from Midnight in the Garden of Good and Evil, then the lesson from Pennoyer must be fundamental.

I work through the case. The facts are manageable, but the issue and reasoning elude me. In the last half of the opinion, the sentences are amazingly dense. One reads:

“Except in cases affecting the personal status of the plaintiff, and cases in which that mode of service may be considered to have been assented to in advance, as hereinafter mentioned, the substituted service of process by publication, allowed by the law of Oregon and by similar laws in other States, where actions are brought against non-residents, is effectual only where, in connection with process against the person for commencing the action, property in the State is brought under the control of the court, and subjected to its disposition by process adopted to that purpose, or where the judgment is sought as a means of reaching such property or nature of a proceeding in rem.”

Yeah, well, whatever.

I’ve never been stumped like this. If anything, reading has always been my trump card. I was an English major in college, then a teacher. My GRE Verbal score was “truly splendid,” to quote Yeazell. In the “elaborate game” called the Law School Admisssions Test, I didn’t miss a question on Reading Comprehension. Yet, Pennoyer is more or less beyond me.

I put away my half-baked brief and drive up to Notre Dame Law School, wondering if my academic skills are going to be adequate.

* * *

Week One, Part 9 - Torts: Natural Law

My fourth substantive class is Torts. To be honest I have no idea what the word means. I wonder if other students share my ignorance.

Class begins with “I’m your instructor, Charles Rice.” He’s looks like a military type: lean, perfect posture, white crew cut. His jaw, forehead, shoulders are angular and well-defined. Nothing weak about him. He’s wearing a blue cardigan, white shirt and tie, dress slacks.

On the whiteboard, Rice jots the telephone numbers at his office and home. “Call me any time,” he says.

"In accordance with my practice, I begin class with prayer. If you want, you may choose to join." Rice makes the sign of the cross. "Hail Mary, full of grace..." he mumbles. All around me students blend in and the chorus fills the room. At the end, Rice crosses himself again as do most of my classmates.

“The book is Prosser,” he says. “You will get it and you will enjoy it.” Rice speaks in the staccato of a drill sergeant. “You must brief the cases. And you will be responsible for all the declarative statements of law in the book. You can't think about the law unless you know some.”

Rice turns from the podium to the whiteboard. “When you brief a case, start with the facts.” On the board he writes FCTS. He points to the letters. “Abbreviate! Leave out the vowels. Later on in the semester, you can even leave off the consonants.”

The door opens and two students saunter in. Rice stops, upstaged for the moment. The stocky redhead in front slows down and whispers to the guy behind him. They both laugh like they’re drunk. Rice looks irritated as the latecomers settle in the front row. The redhead takes a noisy gulp of his Gatorade.

“Bottoms-up,” he says.

I’m in shock.

Rice steps forward and grabs the book off the top of redhead’s stack. He holds it up. It’s a bound paperback called Casenote Legal Briefs.

“I don’t want to introduce a discordant note,” Rice says, “but the required text is Prosser. You are not to use canned briefs under any circumstance!”

The latecomers smirk.

Rice flings the paperback away from him like a frisbee. The pages flutter open and it hits the whiteboard with a thud.

I hear a gasp and a few laughs.

“Furthermore, this class begins at eleven hundred hours!” Rice’s voice is loud. “If you're not here at the start, you're not here!

Rice grabs both students by their shirt fronts and pulls them to a standing position. Then he pushes them up the aisle toward the door. The redhead trips and falls into the wall, hard.

“I think we have a battery.” Rice helps the student to his feet.

The back two rows of students stand up and begin clapping.

Rices waves them off. “You upperclassmen, get out of here.”

The rest of us realize we’ve been duped and applaud too. We laugh and talk to our neighbors while the room clears out.

“A little icebreaker to get your attention,” Rice says. “I don't care if you use briefs or an old outline. Bring anything you want to the class – audio, video. You can even bring a lawyer.”

Rice goes back to the board. “Now with the facts, don't just copy them out of the book. Distill them. Don't put in all kinds of trash. Train yourself to synthesize.”

He writes QSTN and below it HLDNG. “Phrase the question in terms of procedure or substance. Then answer it in the holding.”

Next comes RSNS. “At first your reasons are going to be wrong most of the time, but go ahead and try.”

He writes PRNCPL.

“Last is the principle of the case,” Rice says. “For example, assault requires intent. This needs to be a capsule statement.”

Rice looks down at the thick black binder and then back at us. “Torts is the law of damages, injunctions, and personal injuries not looked at as crimes. But sometimes we so involved in the minutia that we forget the big picture.”

He points at a student. “Who are you?”

“Mark Kromkowski.”

“Are you sure?”

The student nods. Kromkowski has dark hair, a poor shave, and heavy glasses too big for his face.

“Where’d you go to school?” Rice asks.

“Notre Dame.”

“Major?”

“Great Books.”

“Good,” Rice says. “Who makes laws?”

“Legislatures, courts, sometimes the executive branch.” Kromkowski is sweating and the glasses have slipped down a bit.

“Are you bound to obey the law?” Rice asks.

“Usually.”

“Usually?” Rice sounds incredulous. “What are you, an anarchist?”

Kromkowski shifts in discomfort and pushes his glasses back up.

“Suppose you’re working on the trial of East German border guards who shot countrymen trying to escape,” Rice says. “Their defense is ‘we were ordered to.’”

“I’d say they’re not bound,” Kromkowski answers.

“How about the trials after World War II for the German doctors who tested anti-coagulants by cutting off some poor guy’s arm. Their defense was that they were authorized and indeed required by the state.”

Rice is marching back and forth in front of us. “You have to address in your own mind whether you're going to adopt some form of legal positivism or natural law.” On the board he scribbles LGL PSTVSM, then NTRL LW. “It’s really an epistemological question.”

Rice points to Kromkowski. “Can you really be sure of anything apart from sensory impression?”

“No.”

“Are you sure?” Rice asks.

“No.”

We laugh at how Kromkowski’s earlier answer has been used against him.

Rice shakes his head. “Every year I get one.”

Rice explains the differences between the points of view. “Legal positivists, like Hans Kelsen who wrote the Austrian constitution, start with the basic premise that nobody can know what’s right or wrong. Nobody can say ‘what is justice.’ The Nuremburg Laws of 1935 defined Jews as non-persons. Is that a valid law? A legal positivist would say, ‘Who knows?’”

Rice pauses.

“Natural law teaches that there's a divine concept of things. According to St. Thomas... who by the way was a graduate of this school... natural law is implicit revelation. We see that everything has a nature and a purpose. The purpose of a car is to drive on land. So if you try to drive it from here to England, you can't. It's not in the car's nature to go underwater.”

Rice hasn’t glanced at his notes since he opened them. He’s looking straight at us and talking from the heart.

“Suppose Kromkowski is trying to decide whether to put oil or molasses into his car. You're his friend and say, ‘Oil.’ He says, ‘Who are you telling me what to do!?’ You say, “Look in the manual from the manufacturer.’ He says, ‘Who are they to push me around!?’”

We laugh. Even though the subject matter is serious, Rice’s tone is light.

“Whatever is in accord with the nature of the item is good. In human beings, we know there are certain basic inclinations: to preserve self and the species, to live in community, and so on.”

Rice talks some about the use of reason and revelation, then finishes up. “Take a look at the perspective in Veritas Splendor and Evangelium Vitae. A person is created in the image of the Trinity to share eternity with God. It’s a life of relation and of self-giving. The model is Christ on the cross.”

Rice looks at his watch. By now it’s 12:15 p.m. “Thank you, Mr. Kromkowski, for your help today. You were outstanding.”

Rice turns to the rest of us. “I went through the philosophy so you can realize the law isn’t Droidsville. Don’t say, ‘I can’t make a decision about that stuff.’ Think and pray about it.” He shuts his binder. “Enjoy this place. It's a great law school.”

The class applauds, then we rush out for lunch.

* * *