Week Six, Part 6 - Singin’ the 1L Blues

On Friday after supper, I drive Terri and the girls from South Bend to Michigan. The plan is to drop off Steph and Lauren for weekend visitation with their dad. Then Terri and I will continue on to Reading, Michigan, the one-stoplight town where my grandmother lives.

The trip does not begin well, a reflection of a stressful and sexless week.

I’m sullen. There’s only one place I should be tonight: my cube in the Kresge Law Library. Unless I get a handle on the substantive classes, I’m gonna flunk out. Torts is whizzing by me. Contracts could get ugly if I keep sloughing on my prep. In Crim, I’m lost when Professor Dutile compares the holdings in two or three different cases. CivPro has me feeling like an imbecile. During the last two weeks, I haven’t known the answer to any significant question from Professor Bauer.

Terri’s grumpy. She complains about work at AT&T. “My contact at Berkel is furious because an employee got an unauthorized calling card. So I rang up New Jersey and ripped on someone in corporate.”

Stephanie, age seven, has turned into the eggshell girl. She cries almost every night when Terri puts her to bed. "I didn't get to spend any time with youuuuuuuuu."

"Stop it," Terri will say. "We’ve been glued together since this afternoon. You walked around the block with me. We played Checkers and two games of Lion King."

"But I didn't get to read to youuuuuuu," Stephie sobs.

Only Lauren, age five, seems to be doing okay.

After an hour in the car, we stop at the Michigan border north of Angola, Indiana. Terri’s ex-husband is late as usual. More wasted time, I think. After twenty minutes he arrives and without apology loads up the girls.

Terri and I drive on in stony silence. I’m unhappy, she’s unhappy, we’re unhappy.

Life was easier ten months ago, I think. No wife. No kids. No mortgage. No case briefs. No Socratic method. No tuition bills.

Terri starts to cry. “This has been the worst week of my life, and tonight is par for the course." Her tears soften me. I reach out and put my hand on her shoulder.

She tells me more about work. Her biggest client, an infomercial company, is building a call center in Texas. It wants impossible assurances on price and performance. She adds that Stephie is being teased by the boys in AWANA for not finishing her Bible memory book from last year.

Then Terri listens as I sing the 1L blues. Too old. Too dumb. Too poor.

Like a mental health professional, Terri pats my knee, then she musses my hair. “You’ll do great,” she says. “Don’t get wigged out.”

By the time we get to Reading, Michigan, equilibrium has been restored. I feel stronger, more resolute.

My grandma, Lillian Frantz, meets us at the door of her five-room bungalow. Over a glass of homemade tomato juice, we talk about the weather and her garden.

She asks about law school and I mumble that “I’m learnin’ a lot.”

Grandma, who is a 1934 grad of Waldron High School in Michigan, says she had one year of law in 10th grade. After graduation, she wanted to be a secretary in a law firm, and a business college in Jackson offered her a scholarship. “They had it set up so I could live with a family and do a little bit of light housekeeping – but not enough to affect my homework.”

“Did you go?” Terri asks.

“My mother wouldn’t let me!” Grandma exclaims. “She’d always lived in the country. Baldwin. Hudson. Prattville, which isn’t even a town anymore. She didn’t think the city was any place for a country girl. That was her attitude and I had to abide it.”

Instead of college, Grandma worked four years in a factory, then married Arthur Hack.

“After your mom was born,” she says to me, “I took in washing and ironing. The nurse’s outfits were fun. You had to have them damp and your iron couldn’t be too hot or you’d scorch ‘em. I’d make dresses for 75 cents.”

Terri asks when she started doing hair.

“I was 43 when I went to beauty school,” she says, “the grandma of the class. One gal was 17, so at first I was pretty self-conscious. But I got through it all right.”

Wow! I never knew about Grandma’s interest in law or the details of her re-education. Terri catches my eye and I know she’s noticed the similarities.

I smile at Terri and think that, no matter how law school turns out, I’m glad we're in it together.

* * *

Week Six, Part 5 - Torts: Boobus Americanus Learns Negligence

In Torts, Professor Rice finishes up the chapter on privileges and begins the next doctrine: negligence. In our casebook, this topic alone consumes over 500 of the 1,200 pages.

Rice jokes: “Though the subject matter cries out for a full and intelligent treatment, I’ll try to keep it simple for Boobus Americanus,”

He happens to be looking at me, though I’m sure it’s coincidental.

Rice turns to the whiteboard and writes:

1. DTY
2. BRCH
3. CSTN
4. DMGS

"These are the four elements of negligence," he explains. “Duty. Breach. Causation. Damages.” Rice combines them in a sentence. “You are negligent if you breach a duty, but you are liable only if the action causes damages.”

He points at DTY. “What is the standard of care? To act like a reasonable man. What would the reasonable guy do? What would he foresee? Would a reasonable man stop at the railroad crossing and look both ways? Yes. With negligence, what’s the test? Foreseeability. That differentiates it from Brian Dailey intent.”

Rice lowers his pen to CSTN. “Now, how do you prove causation? By a probability. Did Dr. Thumb's negligence cause this injury? You need an expert to come in and say ‘more likely than not.’” Rice then comments on the difference between questions of fact and law.

No doubt that after 25 years of teaching, Rice has a clear view of the issues. To me, though, it’s all gobblydegook. I’d much prefer an introduction that’s more systematic, less elliptical. An outline would be nice. With definitions, please. I feel like I’m being left to rot by the side of the road. Whatever happened to "keep it simple"?

Rice calls on a student, Chris Putt, to give the facts in Lubitz v. Wells. It’s an 1955 case from Connecticut. A man left his golf club lying in the backyard where his son (James Wells, Jr.) and nine-year-old Judith Lubitz were playing. The boy picked up the club and swung it without warning. Lubitz was injured and her family sued Mr. Wells for negligence. The trial court ruled against Lubitz. On appeal, the court upheld the ruling: “A person cannot be shouldered with responsibility for acts which portend no harm.”

Rice asks, “Mr. Putt, on what basis could the father be liable?”

My mind is blank and I'm glad I'm not the one on the hot seat.

“If he could have foreseen the danger,” Chris says.

“Good. In your opinion, could the defendant be liable for leaving out a power tool?”

“Yes.”

“A non-power saw?” Rice asks.

“Maybe.”

“A power lawnmower?”

“Probably not.”

“An enclosed backyard pool?”

“No.”

“Ever see a fence that kids couldn't get over?”

We laugh.

Rice buzzes through nine more cases. Blyth v. Birmingham Waterworks. Gulf Refining v. Williams. Chicago B. & Q.R. v. Krayenbuhl. Davison v. Snohomish County. United States v. Carroll Towing. Vaughan v. Menlove. Delair v. McAdoo. Trimarco v. Klein. Cordas v. Peerless Transportation. Whew!

Class ends with, “With these early cases, try to get a sense of a reasonable man. On the exam, just spot the issue and make a judgment about foreseeability.” Rice assigns us another fifty pages in the casebook, then strides out of the classroom.

Like reasonable law students everywhere, we whine ‘n moan to our classmates until we feel better.

* * *

Week Six, Part 4 - Law School Rankings

During lunch I sit in the student lounge on the steps created by the recessed floor. Chowing down beside me are two classmates from Notre Dame Law School. It's the usual gab: where you from, what'd ya study, why ND.

Above us are the 100-plus pennants from the undergraduate institutions represented in the law school. The collection includes my alma mater, Pillsbury College, though I notice the blue felt is fading after only five weeks.

Andy Bojko ("boy-ko"), Dan Gag ("gog"), and I discover that we share more than weird surnames. All three of us grew up in Minnesota.

"Ya, sure, you betcha," I say.

Andy went to high school in Apple Valley, a Minneapolis suburb, and then to Princeton University. There he majored in philosophy. Dan's from Mankato, a city of 40,000, about a half hour north of the Iowa border. He graduated with a degree in business management and pre-law from Hamline University in St. Paul.

Neither one has heard of Pillsbury College, not even Dan who lived 40 miles away.

"There's advantages to a small school," Andy says. "Bet you got good grades."

I nod. "About a 3.8. How ‘bout you?"

He laughs. "Only two A's in four years. And those were gifts."

"Was it hard gettin’ into Princeton?

"Nah. Because of soccer I could pretty much choose where I wanted to go," he says in a matter-of-fact tone. He was captain of a state championship team at Apple Valley High School.

That's surprises me. Andy's short, maybe 5'9", and doesn't look particularly jock-like. With his brown hair and square features, he resembles Sean Astin, star of Rudy.

Andy says he visited Stanford, Duke, and UVA before choosing Princeton. "It seemed to fit me best." As for law school, he says, Notre Dame was the highest-ranked institution to accept him. "Now, though, I'm starting to worry."

Andy points to a black-and-white poster taped to the wall. The caption reads:

"CONCERNED? It's YOUR Future!"

A graph shows Notre Dame’s decline in the U.S. News rankings: 19th in 1990, 20th in ‘92, 26th in ‘94, 39th in ‘95.

"Join the SBA Ranking Committee.
Get involved – Agitate for Change!"

Dan says the fall-off last year was due to an administrative snafu in reporting the job placement of recent grads. We've all heard the same. Still, a rank of 39th is unacceptable.

Dan's about my height, stockier in build, with a wide face and glasses. I'm envious of his pre-law background. He says it was only beneficial for the first two weeks, but I don't believe him.

"Did you consider staying at Hamline for law school?"

"No way! It's ranked, like, 158th." Dan says some of his undergraduate classes were taught by profs from the law school. "That's another reason I didn't go there. They had this attitude of 'the law school's crap but I'm brilliant.'"

I ask Andy, "What about Princeton Law? Did you apply?"

He smirks. "No such institution.”

"Really? I thought all the Ivies had a law school.”

"Nope," says Andy.

"That's why the rankings are a joke," Dan says. "Add the non-existent ‘Princeton Law’ to any questionnaire about ‘reputation' and you've got a Top Ten school."

* * *

Week Six, Part 3 - Contracts: I Will Brief No More Forever

What I don’t tell Professor Kaveny during our conversation is that, since she doesn't call on students at random, I’ve quit briefing cases in Contracts. On both Tuesday and Thursday I come to class “naked,” without any prep whatsoever. It’s like the first day all over again.

As we discuss the cases in Chapter 2, Part 4 (“Obligation Arising From Unjust Enrichment”), I jot down the facts and issues as best I can. Sure there are some gaps in my “analysis” of Marvin v. Marvin, a 1981 California appellate case, but I soon know the basics. When actor Lee Marvin of The Dirty Dozen fame dumped his live-in girlfriend, Michelle Triola (a/k/a Michelle Marvin), she sued for half of the 3.6 million dollars he had earned during their five-plus years together. Her celebrity lawyer, Marvin Mitchelson, argued an oral contract existed. In exchange for Marvin’s undying love and promise of financial support, Triola provided wife-like services.

The trial court, on remand, ordered Marvin to pay $104,00 to be used for Triola’s “economic rehabilitation.” Marvin appealed. The press called it a fight over “palimony.”

Kaveny asks, “What do we glean from this case, aside from the principle that you don’t change your name unless you’re married?” We laugh.

A girl in the third row raises her hand. “We learn that for Michelle, the last five years were a flaming waste of time.”

Kaveny smiles. She points out the main argument used by the appellate court to modify the trial court’s judgment in Marvin and “delete therefrom” the $104,00 in economic rehab. In short, there was no obligation for Marvin to pay Triola anything. A court “may not create totally new substantive rights under the guise of doing equity.”

Yeah! Good call. I want to cheer.

After class, I rationalize that my on-the-fly approach to Contracts is more efficient. Instead of flailing about in a mudslide of dicta, I’m getting precisely what Kaveny thinks is important.

Still, I’m embarrassed and feel like the greatest living slacker. Next semester, when I’m in a better routine, I’ll do it right.

There’s no doubt I’m falling behind. On Thursday I write in my journal: “need to catch up on my reading, redo my briefs, define key terms, especially the ones I don't understand, meet with Kaveny to make sure I have all the issues down, read Nutshell to get an overview of the topic.”

I’m worried, but not paranoid. In grad school I had plenty of classes where the first half of the semester was a wasteland, but then everything greened up.

And I can define "contract" by memory, thanks to my flashcards. “A promise or set of promises, the breach of which results in a remedy at law, and the performance of which the law recognizes somehow as a duty.” It's small comfort. A definition, no matter how solid, is just a start.

What I need is a Contracts outline, the organized notes of someone who took the class previously. I’ve seen them in Crim, Civpro, and Torts. Unfortunately, both Kaveny and the casebook, West’s Contract and Related Obligation, are new to Notre Dame.

I vow to keep looking.

* * *

Week Six, Part 2 - Konversation with Kaveny

Walking across campus before class, I catch up with my Contracts teacher, Professor Cathleen Kaveny. She’s short and pale-skinned, blonde hair cut like an undergrad, parted down the middle and curled under at the shoulders. A silk scarf is knotted around her neck.

For most 1L’s, law profs have a mystical quality about them. Big brains. Degrees from fabled schools. Handsome salaries. Most importantly, the ability to determine our futures by the grades they give.

"Hi, Cathy," I say. Since coming to Notre Dame Law School, I haven’t heard any student address a prof by first name. But, I figure, we’re outside the class and she’s about my age. Kaveny graduated from Princeton in 1984, then went to Yale University for her Master of Arts (1986), Master of Philosophy (1990), J.D. (1990) and Ph.D. (1991).

“Hello.” She seems to recognize me from Contracts, but doesn’t know my name.

Good, I think. Don’t want her to start calling on me!

I ask Cathy how she likes teaching. Last year she was an associate in health care law at a big firm in Boston, Ropes & Gray.

“So far it’s been good,” Cathy says. “How ‘bout you? Has your first year been stressful?”

I want to gripe (“I’m too dumb and a bit old”). Instead I mumble, “Okay, aside from a certain early morning class.”

She laughs. Her steps are small, so I slow down.

I ask what other subjects she’s teaching.

“Nothing else,” Cathy says. “My load is one-one. Plus, of course, research and writing.”

“Of course.”

“I'm committed to three articles by the end of the year,” Cathy says. “They're breaking us in easy."

“Us” refers to the cadre of rookie profs: the brilliant William K. Kelley (B.A. from Marquette; J.D. from Harvard; clerk for Judge Kenneth Starr and Supreme Court Justices Warren Burger and Antonin Scalia), Pat Schiltz (B.A. from St. Scholastica, J.D. from Harvard, also a Scalia clerkship), Elizabeth Schiltz (B.A. from Yale; J.D. from Columbia).

I tell Cathy I used to be a teacher.

"So, do you want to teach law someday?"

I laugh. It’s like asking the Little Leaguer at the end of the bench whether he wants to pitch in the big leagues. I say, “Only the top students do that."

"Not necessarily. There are former Supreme Court clerks who can't find jobs. A lot of it is luck and timing."

We’re at the door of the law school. Cathy pulls it open for herself and heads in first.

“What’d you teach?” she asks.

“Freshman Comp and an elective or two.”

“Where at?”

“My alma mater, Pillsbury College in Minnesota.”

Cathy shakes her head as if she’s never heard of it.

I mention that the namesake was George Pillsbury, a Minnesota businessman and philanthropist in the 1800's.

Cathy tells me that a latter-day Pillsbury, Charlie, was "floating around Yale" when she was a student there. I must looked confused because she adds, "The Doonesbury character."

I shake my head.

"Charlie Pillsbury was Gary Trudeau's roommate at Yale, and that's who he based the comic strip on."

“Oh!” I finally see the connection: Doonesbury-Pillsbury.

"Yale,” I say, changing the subject. “That's impressive."

"I was lucky," Cathy says. She too changes the subject, asking if I miss teaching.

"Not like I thought."

Cathy says she misses “studenthood.”

"You'll have to teach for a while,” I say, “‘cause you're maxed out on degrees."

Cathy laughs. "There's always med school."

* * *

Week Six, Part 1 - Dream Team

With its 100-plus days of televised courtroom testimony, the murder trial of O.J. Simpson dominates the media. Robert Shapiro. Johnnie Cochran. F. Lee Bailey. Barry Scheck. Alan Dershowitz. How many defense attorneys does one defendant need, I wonder.

To my surprise, however, there’s been no substantive analysis of the case in any of my classes at Notre Dame Law School.

In Criminal Procedure, the class where I would expect regular discussion of the “Trial of the Century,” Professor Dutile steers clear. The brief exception is when Simpson waives his right to testify. Dutile reads us Simpson’s statement to the court: “‘They [the jury] will find as the record stands now, that I did not, could not and would not have committed this crime.’”

Dutile wonders, “Hmm, what’s he really saying?”

Good point, I think. If the record were different, would O.J. admit to the crime?


In Contracts class, the day after both the Simpson prosecution and defense have rested their cases, Professor Kaveny takes the first 15 minutes to ask us a series of questions.

• Do you think there’s enough evidence to convict O.J.?
• Why wasn't there more blood around him?
• Don’t you find it hard to believe that somebody could kill the mother of their children?
• If you have fundamentally different views on police behavior, are you going to have a different level of plausibility?
• Do you think the Simpson trial reflects somehow on lawyers?
• If you knew Detective Fuhrman was racist, would you still put him on the stand? Is this an ethical issue as well as strategic one?

Our answers are prosaic, rehash of the talking heads we hear on the news. Kaveny suggests that people might view O.J. and the trial the same way they look at Elizabeth Taylor and marriage: "Oh, well, that's Hollywood."

She asks how many think Simpson will be found guilty. Half the students, about 25 of us, raise our hands. Only a handful vote not guilty. Kaveny predicts a hung jury.


Dean David Link has an article published in the Op-Ed section of the Chicago Tribune, titled “Law schools must lead legal profession back to its roots.” I read a photocopy of it at the 1L bulletin board.

Link begins, “Whatever the outcome of the O.J. Simpson murder trial, one thing seems certain: Contempt for lawyers – be they tailor-made defense attorneys or hard-charging prosecutors – will grow even greater.”

That may be true, though a bit overstated. Given the facts, it’s more likely that O.J. – not the Dream Team – will be viewed with contempt. And I admit, it’d be "kinda kewl" to take part in a trial so big.

* * *