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Volume 25, Number 1 & 2 (2001) reprinted by permission Legal Studies Forum RES IPSA AND FOX HUNTING LOWELL B. KOMIE Property Law Professor Lynn Baker Students in jeans. Back packs. T-shirts. Some with water bottles and Cokes. I count six students with lap-tops. They’re certainly dressed differently than we were. We wore jackets and ties. There were only two women in our class and they wore jackets and skirts and stockings and heels. We were all so formal and conventional. I ask the woman next to me if I can look at her book. Property—Dukeminier & Krier. A few late stragglers come in and head toward seats. The door is left open to the Arizona sunshine. So far the students respond with almost canned laughter at whatever Baker says, like a TV audience at a morning show. She’s leaving for Minneapolis after class—laughter—why should she want to fly up there in the middle of winter. She doesn’t know—-laughter—but she’ll be in her office for one hour after class and invites the students to come and see her. “I won’t think you’re stupid,” she says. “Also, you don’t have to call me when you can’t come to class. I get these answering machine messages with these exotic stories. They really aren’t necessary.” A young man comes in late, head down, bleary-eyed, long hair, beard, sack on back. Baker is now talking about a case, legal standards for occupancy. It’s about hunting a fox. Baker: What is the legal standard involved here? Student: The animal’s natural liberty is deprived. Baker: What is this concept of natural liberty? Student: It’s in my notes. Baker: Never trust your notes. Trust what’s in the book.—laughter—No TV. No video games. So people had to go out and hunt, right? So what are these opinions about? They’re not about hunting. Aren’t they about how judges behave? “There are two categories of judges,” she says. “There are those who follow the Formalist approach: ‘I’m just a judge, I’m not a legislator; and my job is to apply the law . . .” I like her. I can tell the students like her. The material’s boring, but she has a special energy that transcends it. I realize that I’ve never been in a law school class taught by a woman. There were no female professors at Northwestern University School of Law in 1954. 1 remember the two women in my class. One was our school librarian who was taking an advanced degree. The other was a young woman from Milwaukee who became a judge and died of cancer very young. She was my friend as she was everyone’s friend in the class, a very bright, wistful and charming person. I think about her now as I listen to Baker lecture. I remember my friend and our Property class. We took the course at 8:30 a.m. and we were barely awake, trudging into the classroom from our dormitories and listening to the professor lecturing about fee simple and fee tail, remainders, executory interests, the statute of uses. Was that Property or Future Interests or were they combined? I can’t remember if there was one course or two. Did I ever use any of these concepts in my 40 years of law practice? Not that I can remember. I was a poor student though, and coming back to law school this morning, even after 40 years of practice, makes me remember the young man, filled with fear and uncertainty and I am him again, even if only for a few moments, and I keep my head down hoping that Baker won’t call on me. I count the number of female students. There are 28, about half the class. We never thought about the lack of women in our law school. We just assumed that women didn’t want to be lawyers. We just assumed that it was a male profession and we didn’t concern ourselves with opening it up to women. Now Baker is talking about the types of law a Formalist judge looks to in making a decision: statutory law, common law, treatises, law review articles, the underlying contract. I am very poor at taking notes. We used notebooks, 3-ringed notebooks with lined paper, and we separated the classes with yellow pages with plastic insert tabs. The woman in front of me takes very orderly notes neatly outlined in black ink and occasionally in red ink for emphasis. She has an L.L. Bean book bag with separate compartments for her pens. Computers lightly clack behind me. The woman in front of me reaches into her book bag and brings out a packet of photos. I look over her shoulder and watch as she selects two, folds a piece of yellow legal paper over them, and passes them to the woman beside her. The friend unfolds the note with the hidden photos. She inspects the photos of the boyfriend and smiles without turning her head. She then refolds the note and passes the photos in the yellow paper under her desk to a third woman. Times haven’t changed—we used to do the same thing. The third woman is busy counting out her bus or Coke change, stacking rows of coins on her desk. She carefully inspects the flutes on the edge of each coin. She levels the change in even rows and then unfolds the note and smiles. Her Property book is opened to a photo of a bewigged English jurist in robes. Could I sit through this every morning at my age, 68? No. But it doesn’t seem to bother any of them. This is the institutional study of law, the Socratic method of study. Case law. One by one. Precedents. Teaching you to think like a lawyer. Does it have to be like this? What would I do with these students? Have them stand in eviction court and listen to people tell their stories about why they can’t pay the rent? They’ll really learn about occupancy then. If you sit through 50 Chicago Housing Authority eviction cases before your case is called, you’ll learn very quickly. You’ll learn never to take another eviction case. But Baker isn’t really talking about foxes or occupancy, she’s talking about how you learn to analyze cases. She tells the class that the bottom line “doesn’t matter in law school. What matters is ‘showing your work,’ and”—pointing to notes she’s made in black grease pen on the board—“this is showing your work.” She means you have to show her the issues, the basis of your reasoning; she isn’t interested as much in your answer, she’s interested in how you arrived at your answer. She wants to see your reasoning. She glances at her seating chart and selects a name. (That also hasn’t changed.) “Mr. B., why do judges write dissents?” Mr. B. doesn’t answer immediately. He’s wearing a purple-flowered shirt and has a large Coke bottle on his desk. He then answers easily, and isn’t upset about being called on. We didn’t like being called on. We were content to let a few students do the talking. “Judges write dissents because they disagree with the majority opinion,” he says. It’s a simple and obvious answer. A “bright line” answer. I realize that it’s the second time during the hour a student has been called upon. There has been a very low level of student participation. So that hasn’t changed either, at least in this class. I think Baker’s taking it easy on them because of late night law review preparation the night before. I think she’s carrying them for the day, and of course she’s flying to Minneapolis after class. She has it timed carefully, and after lecturing for a few more minutes and calling on a few more students, she ends the class. I go out in front of the school between classes and stand alone on the front stairs. The next class will be Torts. Some of the students drift into the main hallway and sit on banks of overstuffed chairs and talk or read their cases. The air outside is very fresh. There are flowers and bushes and palm trees. It’s a beautiful law school, a low, one-story modern white building surrounded by gardens, much different from Northwestern’s grimy gothic cathedral in the center of Chicago. I talk to several students in the courtyard. None of the men seem interested in talking to me and aren’t curious about why I’m going to their classes. The women are cordial but a little hesitant. One woman is a CPA and has returned to law school after 10 years. She wants to specialize in tax fraud. Another is an ophthalmologist and is interested in health law. Another is a young married woman who is in business with her husband in Tucson. They have two sons and she wants to be a corporate lawyer. The last woman I talk to tells me about her sister who had a horrible and prolonged death from cancer and was kept on life support systems against her will. The woman is in law school because she wants to specialize in health care law and the right to refuse treatment. So there really is a difference between these law students and my classmates at Northwestern. Most of us had come to law school directly from college. Very few of us had any significant work experience. “I feel it’s a privilege to be here,” the CPA said to me. “We’re really a privileged few, you know, a very small percentage of the population.” I saw only two black students, both men. We had just one black student in our class. So that hasn’t changed. I also didn’t see any Hispanic-American or Native-American or Asian-American students in the class. That doesn’t mean that they’re not in the school. I just didn’t see them in this class although maybe I missed them. My law school class of the mid-1950s had no minority students other than the two women, one black student and a Hawaiian student. Later, when I look through the catalogue, I see that the University of Arizona College of Law has other black students and Hispanic and Native--American students. I see their faces staring at me in the catalogue and read about several clerkships offered to minorities and scholarships. There were no scholarships or clerkships for minorities when I went to law school. 11:00 a.m. Torts Professor Dan Dobbs Torts. What do I remember about torts? Almost nothing. Proximate cause. The Palsgraf case. I haven’t had a tort case in years. I specialize now mostly in estate planning and probate. When I opened my office as a solo practitioner in 1956 I always had a few clients or friends who came in with personal injury cases, mostly minor automobile collisions. I would negotiate settlements with insurance adjusters and seldom file a law suit. We were in no way as litigious as lawyers are today. Associate Dean for Academic Affairs Kay Kavanagh had given me a copy of a commencement address Dobbs gave to the law school class in 1990. I read it as he begins to lecture. “You are, of course, college graduates as well as professionals. It is given to college graduates to do two grand things. One of them is to continue the life of the mind, which is education’s aim. You can read history with understanding; you can view great art with pleasure; you can open your mind and feelings to plays and movies. You have access to all the urban artifice and all the humanizing pleasures that go with it.” One of the urban pleasures he recommended was to visit the Phillips Gallery in Washington, D.C., and view Renoir’s “The Boating Party.” Another was to go to England and read the original of Andrew Marvell’s (1621-1678) “To His Coy Mistress.” I have been to the Phillips Gallery and seen “The Boating Party.” I have never been to Cambridge, but I have always loved “To His Coy Mistress.” I preferred, as a law student, to use that poem as an instrument of seduction but whenever I tried it, it never worked. Oh, well, Andrew Marvell isn’t going to teach you how to make big bucks in personal injury law, but neither will Professor Dobbs. But Dobbs will introduce you to some ancient legal concepts, like res ipsa loquitur (a thing that speaks for itself) in medical malpractice cases. In other words, conduct that in itself constitutes a prima facie case of negligence without further proof. He calls on a woman who is a nurse, a case involving a woman and baby who died in delivery. Talking about the standard of care. Duty of care. Malpractice is a species of negligence. Dobbs: What evidence do you find that the doctor was negligent? Violated the standard of care when this woman arrived at the emergency room? Student: They just threw her in a hospital bed. She should have been put in critical care. The doctor had called the hospital and he knew about her condition. She was left without critical care for an hour and 15 minutes. Another woman in the front row is constantly raising her hand and shaking it, but Dobbs doesn’t call on her. “We’re talking about medical res ipsa,” he says. “What about a case of leaving a scissors, forceps and a pack of gauze in a patient’s abdomen? The court is quite willing to apply res ipsa in that case.” The class laughs its nervous--group laugh. The student in the purple-flowered shirt with the Coke bottle on his desk, who spoke in Property, interrupts and asks a question about hospital policy. And so it goes. Dobbs is very patient and generous with the students. Our professors were not as cordial and available. They were much more uptight and restrained, and they were very formal. He moves to the next case. Res ipsa as applied to a large hematoma developed in the rectum, improper application of an enema. More group laughter. The next, res ipsa involving a tube inserted in a nose. Spinal fluid flowing from the nose. No laughter. Another case, drilling into the cranium and tearing the sigmoid sinus. No laughter. I am beginning to feel queasy. I look out the door again at the sunlight. Seven cases are discussed and Dobbs weaves the theory of medical res ipsa around the students and then lets them go. “See you in 24 hours” is the last thing he says to them. Will any of them remember any of this in their practices? Later, I was waiting for the morning train with a friend who’s been trying medical malpractice cases for 30 years. “They’ll not use it,” he assured me. “In 30 years I’ve never had a res ipsa case.” I have only one class left, a Securities Law seminar tomorrow at 4 p.m., with Dean Joel Seligman. I’m anxious to get this over with. Suddenly I want out of law school. I’m too old for this. It may be my low blood sugar, but I need something to eat. Next day—4 p.m. Securities Law seminar Dean Joel Seligman I don’t think they had a course in securities law at Northwestern. Very few firms in Chicago can handle securities registrations. Occasionally, I have had clients who wanted to go public with small companies. I referred them to other firms, but they weren’t major registrations. There are only 14 students in the class. Seligman, too, is flying somewhere. To the Hotel del Coronado in San Diego. A student asks him if it’s a junket. It’s not a junket. It’s some kind of securities law conference. He’s long been obligated to it. He and Professor Baker, both flying out. He promises the students pizza and ice tea next time. He talks about Section 12(b) of the Securities Exchange Act. The difference between the 1933 and 1934 acts. He talks about Manny Cohen and Milton Cohen, former SEC commissioners. The laptops quietly clack on behind me. No student talks. Seligman promises this is the last class he’ll narrate. Case discussion will begin next time. After another 15 minutes and a few polite student questions, Seligman apologizes. America West is waiting. He looks at his watch. He’s gone. One thing strikes me as I leave. None of the women had spoken. Only the men. Is it really true that women law students are less aggressive in class? They certainly were in this class. I stop at Associate Dean Kavanagh’s office and thank her. Deans Kavanagh and Seligman and Professors Baker and Dobbs are far removed from my day-to-day legal world. They and their university have an aura of excellence and civility that is missing from everyday practice. I tell her, “The law students I see here are refined and courteous. They have respect for the professors and this institution. What happens to them? In Chicago, when I come up against young trial lawyers in big firms, they most often completely lack civility. They’re greedy and arrogant—not all, but many of them. Their word is worthless. Is it the big firm culture, the lure of money and power, that changes these young people so quickly?” “We try to model decent behavior,” she answered. Where have we gone wrong and why? Is it the system and legal education that causes the terrible malaise that has infested our profession? Why as a profession have we become so fixated on money and power? My classmates would have been happy to have a job out of law school that paid $100 a week. Only two of the top students got that salary. You would starve on that today. I suppose you need $25,000 to live decently as a single person. But can you make that as a sole practitioner right out of law school? No. So you go to work for a law firm or government or a corporation that can pay you a decent salary. In turn, these employers are often contributors to the law school and conduct interviews at the law school. Perhaps that is the seed of corruption. The law schools are dependent on their contributors and despite the apparent sameness in law school teaching (fox-hunting cases, res ipsa), it is all just cosmetic, a disguise, window-trimming. Our law schools are now part of corporate America and we as a profession have become part of corporate America. We have sold out. Those who don’t want to join up are relegated to small practices and minority lawyers are almost entirely blocked out. How do we change this? I don’t know. But the basic change has to begin at the law school level. We should keep law firms out of the law schools. We should limit the amount of contributions from any one contributor. We should deny government financing to law schools unless more minorities are enrolled. We should refuse to accept private funding from law firms that do not significantly employ minorities. We must have more diversity. And, we must actively pursue it. I don’t have the answer but I do have a conclusion—law school hasn’t changed that much: We as lawyers and people have changed and our values have changed. Editor's note: Prof. Lynn Baker is now the Thomas Watt Gregory Professor in Law at the University of Texas School of Law. She still teaches Property. “Res Ipsa and Fox Hunting,” first published in 25 (1) Student Lawyer 34 (September, 1996). Lowell B. Komie © [1996] |
