The uncertainty of the law…and what I should be learning
My first week of the notorious “1L” year (first year at Cornell Law)
It was Thursday and my first official week of classes was over. I celebrated by making dinner for my husband and me. After a week of eating meal-prepped red sauce pasta, chicken noodle soup, and lentil soup, I had been daydreaming about preparing “McFadden-style” 热干面—hot dry noodles covered in velvety tahini, sesame oil, two spoonfuls of MSG-laced ‘Laoganma,’ soy sauce, scallion, crunchy bits of celery, and a cube of ‘fermented tofu’ fished right out of its boozy brine. The salad was lettuce, cabbage, carrot slaw and pineapple juice, plus a little salt. The noodles were topped with thick slices of pan-fried beef salami.
The process of making dinner was soothingly familiar at the end of a week bursting with newness. There were new rhythms of life—I leave at about 6:30 AM to commute about an hour to school, driving about 25 minutes into and through the narrow crowded roads of Ithaca city, and walking 20 minutes from the commuter lot. I have not yet confronted the dilemma of how to carry all of my books to class, since I had been using provided printouts this last week.
There were also new people. I share all of my classes with a cohort of about 30 people. We had a chance to bond during orientation the week prior. On a day at the ropes course, we did absolutely unlawyerly things. Captured below is the “flying squirrel:” we hitched climbing harnesses to a long rope and ran like sled dogs in an uncoordinated, chaotic manner to lift a person on the opposite side of the pulley up into the air.
What caught me most off guard this week was the mental exhaustion from new concepts. The material was not laid out to us in a simple, linear manner—after all, the law is not linear. It is more like a web of nodes. To understand one node, it is best if you understand the nodes around it. Thus the most difficult moment is grasping the first node that has no points of reference. (This is assuming there are even coherent nodes able to be grasped. Jurisdictions overlap. People change their minds. Overarching concepts quickly spill into inconsistencies and exceptions.) Rather than walking up a carefully laid path of bricks, we were thrown into the lake of knowledge.
On our second day of Contracts, we reviewed a case where the owners of one property agreed to supply the owners of a neighboring property with water from their well for a flat rate of $3.00 a month (this was 1962). They did not draft any rigorous legal agreement, but a contract was nonetheless formed. Soon, however, the relationship broke down and the owners of the well accused their neighbors of using “too much water.” In response, they vindictively shut off the water for hours at a time.
In the ensuing legal battle, the neighbors who had no water sought compensation for what they had suffered (which, if you’re wondering, they struggled to show was anything much.) When discussing this in class, one classmate referred to this compensation as a “fine.” The professor took issue with this. The classmate was probably using “fine” as a synonym of ‘what the court charged,’ but he understood it as ‘that value which the court undertakes to charge.’
“Not a fine,” he corrected.
“Sorry, compensatory damages,” she said, using the term in the case.
“Why would they not fine someone for breaching a contract?” the professor asked the class.
I was stymied. It was all money at the end of the day, was it not?
(One of the challenges I faced this first week was not knowing which terms were ‘technical’ (“Terms of Art”) and which were everyday English language. I would have conceptualized what I was reading differently if I knew some terms mattered more than others—or if I knew what was being excluded when a term was used, i.e. “compensatory damages” instead of “punitive damages” or a “fine.” This is an example of the growing pains of picking up that first node in the web.)
However, when I reviewed the material later this week, I understood why we did not refer to these damages as a “fine.” The crux of the question rested on who decides the value of the contract. Contracts carry the value imputed by the two parties who formed it, not the court. For instance, the neighbors were willing to pay $3.00 a month for the water, but someone else may have offered $25.00 a month for the water. A company may pay $3 billion to buy out another company to acquire its assets, or it may do so to eliminate a competitor. The value realized depends on the parties involved. Contracts are foremost the result of private ordering by autonomous individuals.
Courts may not meddle in what should be exchanged, but they are interested that something is being exchanged. Protecting the integrity of contracts helps the world go round. This is why a contract does not need to be an ‘official legal paper’ in order to be brought into courts—news to me! That piece of paper does force details out into the open so that there are fewer misunderstandings, the parties treat the agreement more weightily, and it helps courts adjudicate more fairly should the contract be breached and end up in court.
Unfortunately, written contracts have a different reputation for everyday consumers and employees: rather than feel like we are free to enter into the contract and realize its value, we feel like we are “signing away rights.” Entities with legal resources embed protections for themselves in the fine print—they are not interested in ensuring the other party is equally protected.
And where does at-will employment fall in all this? The relationship is not legally binding, as many white-collar workers are intimately aware as the last round of layoffs swept across the technology sector. You might have a job today, but not tomorrow. Is this not a contract, implicitly formed with the exchange of services for wages? Then what are the terms of this contract? Workers are constantly inundated with obligations: they sign ‘conduct’ agreements, agree to norms that set standards for good performance, compete with each other to generate the most value for their company, and create lasting intellectual property that belongs to the company. To what obligations should the company be bound? Severance pay, retirement benefits, mentorship structures, quality of life? What happens if it’s the only good job in town? Does the company have the right to depress your hourly pay, even if you might be doing the same job as someone else being paid twice as much?
There was also new conduct, the infamous back-and-forth of the Socratic method colloquially called “cold calling.” Around three students are chosen to be cold-called each class and they don’t know in advance. These lucky three are expected to answer in round-robin fashion the professor’s questions for the remainder of the 55-minute class. The rest of the students silently watch, or sometimes raise their hands if they think they have a better answer.
At 30 to 90 students a class, the probability of being chosen is small. But on Wednesday, at 2:30 PM, my Civil Procedure professor asked a long question that picked up on the previous day’s material, looked down at her student directory, and said, “Allison?”
I was completely caught off guard. My head still swirled with details from the previous three classes. Could he lawfully roll the tank in the park? Was it negligence or restitution under which he claimed the damages – or was ‘negligence’ from my ‘torts’ reading? Who gave consent…or is it ‘assent’? Which jurisdiction did Congress try to give, original or a ‘third’ extraneous one?
“Could you repeat the question?” I asked. She repeated it and referenced a specific page number, but I couldn’t grasp what she was asking for. “The issue,” she repeated. “Uh, the issue is …” I read off the page. She moved on. “Abraham? Are you here?”
Being voluntold to answer a question put forth by the professor, rather than being able to volunteer when I thought I knew the answer, threw me off my game. It was refreshing. It also leveled the playing field because everyone was out of their depth. How can you guess what the professor is looking for in a somewhat open-ended question without knowing the law or the professor? Even students who raised their hands, thinking they had the right answer, usually did not give an answer that satisfied the professor. (I myself was one of those students. I extrapolated something from the text, but it wasn’t what my professor was thinking.)
Before she returned to me asking a new question, my professor said, “Are you with us now, Allison?” There was humor in her voice. I chuckled and spoke as loudly as I could, “Yes, I think so.” This was the same professor who, when asked by another student how her week was, remarked, “I’m good, except, I’m thinking about my tomatoes… which have grown big, but they haven’t ripened. And I’m wondering if they will ripen.” It was mundane, unexpected, and honest. The whole class giggled at her response.
Cold calling doesn’t factor directly into one’s grades, so there is room to make mistakes. Yet figuring out how to answer cold calls still seemed to matter. The questions and answers were the content of the class.
But what were we learning, exactly? If we could get the right answers, would we be better lawyers? When was a question a ‘right answer’ question, and when was it a matter of interpretation? After all, our textbooks are riddled with questions. “The court tends to rule like x…but what if y? Or z?” So which questions were an exercise of thinking like a lawyer? Sometimes students answered incorrectly and the professor just moved on. Other times, students answered ‘incorrectly’ and the professor chased that thread of reasoning, leaving the previous thread untied. Was that student’s response something we could consider, or what we ought to consider, or was it entirely wrong altogether? Sometimes, Professors seemed to toy with us, like they just wanted to know what we were thinking and hadn’t totally decided themselves. Or perhaps this was all a rite of passage and next week it will all make sense.
Anyone familiar with Legally Blonde should know that its sketch of the ‘first class’ is entirely accurate, from questioning the student if he were sure (without giving any indication that he was), down to alleging that “a legal education is like speaking a new language.” My Constitutional Law professor walked in speaking Spanish to prove the point.
Not all classes were this enigmatic. On the opposite end of the spectrum, my Contracts professors asked questions with one right answer. He sometimes gave hints in how he asked the question: “Given that punitive damages are not typically considered in contracts, what should the jury have given as a verdict?” He sometimes coaxed the answer out of the student by stating where they veered wrong. He didn't go off on tangents but fully had in mind what he wanted to cover that day. (Falling in the middle, my Civil Procedure professor had in mind what she wanted to cover, she just took her time getting there, i.e. not prompting students or hinting what parts of their answers were correct).
I wondered whether these differing styles reflected the professor’s personality, pedagogy, or the discipline we were learning. For instance, was Constitutional Law by nature a more ‘interpreted’ discipline where there was no right answer? Or was my Professor more interested in getting us to push the boundaries of our reasoning? Or perhaps she personally enjoyed the ambiguities of the law? I certainly hoped there was a rationale, and that it was not just the Socratic method obscuring what content we really needed to learn.
I discussed this with a student who thought it was pedagogical (thus intentional). The professors who veered off on tangents and whose classes were more enigmatic focused on the rationale behind the court’s finding. The enigma arose from not yet knowing how lawyers reasoned, and from the challenge of trying to understand a judge’s reasoning and poke holes in his argument. The professors whose classes seemed straightforward focused on the rule – what the court found.
Being out of school for two years, I had forgotten that in any new environment, there is an adjustment period not only for the new material but also for the professor’s teaching style. A peer advisor later related that it took her about a month to adjust.
What helped me in week one
For anyone in law school or soon-to-be, this is what helped me in week one.
Be prepared to read the cases multiple times beginning to end. (A friend at Yale recommended this– thanks Teddy!)
Review the “Quimbee” brief if the case doesn’t make sense. (Teddy also recommended this to me.) I didn’t use it in week 1, but I noticed that my classmates who used it last week felt a lot more ‘in the loop’ about what was going on in class. I have a subscription now.
Before class, get a sense of three main ‘headings’ and mentally or physically Earmark where they are in the text
Rule: Usually it is the answer to the question posed by the entire case, like “A gift is a valid contract if executed. Otherwise a promise of a gift doesn’t bind.”
Story: What happened that landed this in court? What is the issue at hand that they are debating? What courts handled this case before it got to the present one (usually we read ‘Appellate’ court writeups). People like to separate these out into ‘Facts’ and ‘Procedural history’ but I find it causes me to lose the narrative.
Rationale: What were the points made by the court that led to its finding? How did the court respond to plaintiff, defendant, and lower courts?
Talk to ‘peer advisors’ (students who are selected for high performance in classes) who have the same professors. They know the professors and the exams.
Thanks for reading!
Past posts: my cycle recap, how to write a diversity statement, scholarship essays, and a comparison of NYU and Cornell.
(Me trying to jump for a bar at orientation)