HaCKeRz KrOnIcKLeZ 3/HaCKeRz_KrOnIcKLeZ.iso/anarchy/essays/term/lss.txt

Text File | 1996-04-27 | 46KB | 727 lines

LAW, SOCIAL SCIENCE, LITERATURE, LAW SCHOOL,
AND PERSONAL STATEMENTS


Law School Admissions: Why Bother?
    Stately and plump, Harvard Law School admits just  850 to yield a class of
550; for Yale, fewer than 400 admitted brings a svelte class of 170. Ever battling
its late entry and the suspectness of a West Coast address -- ônewnessö coupled
with the perception that sunshine vitiates seriousness -- Stanford Law School
admitted 435 to make a class of 180 for the class of 1998. For the most part,
students admitted to Stanford either go to Stanford, go to Harvard, go to Yale, or
donÆt go to law school.
    Five-hundred fifty plus 150 plus 180 equals 880. Eight-hundred eighty is
just 30 more than 850, which implies that Harvard, which was first, still is first
when it comes to circumscribing the legal elite. In other words, if Harvard
effectively locates the 850 students who will be divided among itself, Stanford,
and Yale, why bother worrying about what Stanford does, who it admits? As this
reasoning goes, Harvard has taken care of things. Harvard defines the 850
students, implying that the admissions procedures of the latter two are
superfluous -- like so much, parasitic on Harvard.
    Not so. First, it matters, year to year, for as long as StanfordÆs and YaleÆs
classes are small and HarvardÆs is big, who Stanford and Yale reject. Stanford
rejects contribute importantly to the SchoolÆs reputation. Stanford admits 400
compared to HarvardÆs 800. Assuming considerable overlap in application
patterns, many of HarvardÆs last 400 admitees were likely rejected by Stanford.
The perception, widely held, that attendance at Harvard means one could have
gone anywhere is false; rejection by Stanford serves as a reminder of the
propositionÆs falseness. The presence of Stanford rejects at Harvard is another
way of saying Stanford is good because, as everyone knows, Harvard is good.
    More broadly, it is possible to play renegade in this game as Stanford
apparently did several years ago by admitting ôolderö students and reaching
outside the 850. Thus it does, or can, matter who Stanford admits in the sense of
Stanford making an original contribution to the 850 who will compose the first
year classes at Harvard, Yale, and Stanford. What is being rewarded or
predicted when an applicant is considered -- particularly something that differs
from the competing schools -- can materially alter, for good or for bad, the
profession by deliberately attempting to send a different sort of person into the
law.
    Without belaboring the laborious topic of which are the ôtopö law schools,
a few general observations suffice to justify the narrow focus on Harvard, Yale,
and Stanford. They are commonly ôrankedö as the top three law schools by U.S.
News and World Report. Prospective law students know about the U.S. News
rankings, its several ôtiers,ö its methodology. Some have nearly memorized the
rankings. Others will tolerate massive personal and geographic dislocation in
order to attend the number 12 rather than number 13 law school. A ôfallö from a
second-place tie to third place inspires at least as much out-of-class
conversation as all of the substantive law taught in the first year does.
    The separateness of Harvard, Yale, and Stanford is most evident in the
Supreme Court. A seven-Justice majority could, in a lawless and ultra-realist
moment, declare its law schools to be not just functionally, but legally, superior --
strict scrutiny for decisions produced by judges from lesser law schools! (And
Ruth Bader Ginsburg, having spent two of her three law school years at Harvard,
could make it eight, leaving only John Paul Stevens, first in his class at
Northwestern, to dissent.)
    At a minimum, there is no equal protection for law school graduates.
Supreme Court clerkships are common at Harvard, Yale, and Stanford, where
even the valedictorians of schools lower down in the hierarchy have a hard go of
it. One guide to law schools has referred to Harvard, Yale, and Stanford as the
ôHoly Trinity of American legal education.ö Being dead last in the class at any of
the three would likely not be a bar to conventional law firm employment. In 1948,
Robert Swaine of Cravath, Swaine & Moore wrote, ôThe firm has taken most of
its associates from the law schools of Harvard, Columbia, and Yale,ö
suggesting that the ôHoly Trinityö is both a static entity and fluid in its internal
composition. More recently, one Boston law firm known to have a penchant for
Harvard graduates, Ropes and Gray, has even created a ôlifetime associateö
position for a New England School of Law alumnus. Anecdotes from other firms
in other cities suggest similar practices. The ôbadges of inferiority,ö struck and
decried in Brown v. Board of Education, remain permanent fixtures within the
legal culture, with an educational rather than a racial underpinning.


Whom to Admit: Literary Woman or Economic Man?

    Given that it matters where one goes and who is admitted to law school,
the question arises: what sorts of people should Stanford Law School admit?
Diligent people? Brainy people? Older people? People who have had jobs prior
to coming to law school? People who will be good law students? People who will
be good lawyers? People who will be rich lawyers? People who will be famous
lawyers? People likely to donate an appealing building, one that might persuade
a student inclined to attend Yale to attend Stanford instead?
    Those with high grades have presumably been diligent; those with high
LSAT scores are thought to be smarter. Or at least good test takers are
assumed more capable of taking in the information and returning it to a blue
book in a condition resembling that in which it was received. Do we want high
test scores coupled with low grades, possibly a proxy for laziness? Or high
grades and low test scores, possibly a proxy for extreme diligence in the face of
limited abilities. But high grades/low test scores might also be a proxy for having
established close relationships with light-grading college professors, or for
having absorbed the collective wisdom at any college that points the way to
classes where AÆs are easily gotten. Work experience, while it can provide a
store of greater knowledge, can also be viewed as either useless or even an
encumbrance to the extent that law attempts to remain an autonomous
discipline, beyond the reach of ôpolicy,ö of politics, of social science, of all
sources of information and experience deemed outside the law.  No Brandeis
Briefs on the post-college experience, in other words.
    Whether the diligent person, the lazy person, or the experienced person
turns out to be a good student is measurable, at least within the limits of the
grading system. Whether someone will be a good lawyer, is harder to gauge.
Income is a faulty measure in that it would lead to the conclusion that fifth year
associates, of mediocre ability at a mediocre law firms about to deny them
partnerships, are more skilled lawyers than Supreme Court justices who are paid
less. At the same time, mere notoriety associated with an exalted but lower-
paying legal job (judge, professor) is not itself a guarantee of merit, unless future
notoriety is, in itself, defined to be meritorious in that it brings notoriety to the law
school. Additionally, problems of prediction and measurement (whatever is being
predicted) are greater the farther removed the admissions objective is from law
school itself. Academic performance in law school is easier to predict than
professional greatness, although the two are sometimes correlated, sometimes
not.
    As a consequence, law school admissions offices  engage in only a
modest sort of prediction of the first type above. The emphasis is on who will be
successful first year law students. In addition to the problems of prediction and
measurement, economies in the admission process make anything more
ambitious  -- such as exhaustive psychological and intellectual appraisals of
each candidate --  unlikely.
    I will, therefore, take the current components of law school admission as a
given: grades, LSAT, recommendations, and an essay. Within those givens, my
purpose here is to explore whether something slightly more beneficial to law
school and the legal profession than a respectable correlation between
quantitative measures before and during law school can be ventured.
    Specifically: would Stanford Law School, and by implication the legal
profession, be improved if it sought to admit what Professor Robin West calls
ôliterary womanö ?
     Literary woman exists in metaphoric opposition to ôeconomic man.ö
ôEconomic man is,ö Professor West describes, ôpeculiarly capable and peculiarly
disabled: He knows everything there is to know about his own subjective life, and
nothing whatsoever about the subjective lives of others.ö  Economic man is both
capable and disabled according to the standard terms of microeconomics. He is
capable in that his choices, market and otherwise, define the good so long as
they are executed without coercion on another and so long as he is not himself
coerced. He is disabled in that the similar choices of others are unassailable.
    The chief consequence of the economic man paradigm arises in the
second prong, economic manÆs disabled condition. As Professor West asserts:
Although economic man is perfectly rational with respect to
knowledge of his own subjective well-being, he is at the same time
utterly incapable of empathetic knowledge regarding the subjective
well-being of others. He is unable, in economic terms, to ôcompareö
the ôrelative intensityö of the subjective pain of another with either
his own pain or with that of others. Although the technical,
jargonistic language of the law and economics movement hides the
point, the economistÆs insistence that economic man is unable to
make ôintersubjective comparisons of utility,ö when translated into
common parlance, amounts to no more than an admission (rather
than an assertion) that he lacks even minimal empathetic skills.

Economic man, in other words, suffers from ôempathetic impotenceö  -- a
condition that might be worth trying to avoid in admitting a law school class
    Literary woman, on the other hand, is virtually defined by not just a
capacity for empathy, but by possessing empathy in abundance. The literary
temperament brings with it attributes that might be thought desirable in law
students and lawyers::

    The ability to make ôinterpersonal comparisons of utilityö is,
in simpler language, the ability to empathize with the pains and
pleasures, the joys and sorrows, and the happiness and suffering
of others. The claim that we are incapable of making such
comparisons is simply the claim that we are
nonempathetic[...]Through reading, hearing, and telling stories, we
do precisely what economic legal analysis insists we are incapable
of doing. We reach an empathetic understanding  -- a grasping --
of the subjectivity, the pain, the pleasure, the happiness, or the
sadness of the other. When we read with understanding, we not
only understand the happiness or pain, but to some degree we
take it on as our own.

    The law does sometimes take the literary tint suggested that Professor
West suggests it lacks. The standard criminal law approach to finding otherwise
criminal conduct to be justified includes the requirement that the accused, in
claiming self-defense, establish either an imminent or immediate threat of
serious bodily injury. Meeting the imminence requirement is problematic in the
classic hard case of a woman who kills a battering spouse or boyfriend while he
is sleeping. Such a woman finds no refuge in a strict and legalistic -- unliterary --
understanding of what it means to be in imminent danger. Sleeping husbands
not only present no obvious imminent threat, but their sleeping state provides an
opportunity for escape, suggesting that killing him fails to meet the
ôreasonablenessö component of the self-defense test, as well. As one court put
it, ôa battered woman cannot reasonably fear imminent life-threatening danger
from her sleeping spouse.ö
    The reality, however, might be in the details. The dissenting opinion in the
Stewart case works with the same factual narrative yet reaches a different
conclusion about imminence (beyond its finding that imminence, not immediacy,
should be legally controlling). What was for the majority a source of escape
becomes, for the dissent, evidence of a mental state that did not comport with
generally held notions of rational behavior: ôIgnoring the truck and car outside,
although she had the keys in her purse inside, she ran over a mile to the
neighborsÆ house and pled with them to keep Mike from killing her.ö  (This
happened after the husband had already been killed.)
    A similar message evolves in BrowneÆs When Battered Women Kill:  that
absorbing the details typical of abusive relationships expands our view of what is
reasonable and imminent. The naked fact -- killed sleeping husband -- takes on
a different aspect when seemingly trivial details  bring the observer into a
precise set of human circumstances and challenge abstract, syllogistic analysis.
Those who write about Battered WomanÆs Syndrome share Professor WestÆs
aim in dislodging the typical legalistic response to these cases (sleeping, thus
no imminence, thus no reasonable self-defense) and replace it with a more
nuanced response that is sensitive to narrative particulars. In this regard, a
battered woman speaking before a law school seminar is a source of
comparable authority to the Model Penal CodeÆs four-part test for self-defense.

    While Professor WestÆs rendering of the two types, economic and literary,
will likely leave most with a preference for the literary -- seemingly a deeper,
more perceptive, creative, and, above all, more empathetic person -- the
purpose of this paper is not so much to advocate a policy of favoring ôliterary
womanö in StanfordÆs admission process. Instead, and despite more or less
sharing WestÆs literary bias, I will attempt to raise questions suggested by
WestÆs analysis.
     Assuming there is such a thing as ôliterary woman,ö are there predictors in
the existing admission process that suggest who she might be? Then, assuming
we find, admit, and enroll her, what sort of a student will she be -- what grades
will she get, what will be her out-of and in-class observations, and what might be
her out-of-class social patterns? Or, alternatively, what sort of a student is  she,
under the assumption that literary women and men already are attending
Stanford Law School? Anecdotally, what seems to be the ratio of economic man
to literary woman? Do we want more or fewer literary types? And, finally, how is
the literary temperament likely to interact in the legal culture outside of law
school? Or, to put that last question more provocatively: is the empathy, love of
detail, and non-economic ponderousness of the literary mind doomed to be
devoured in a hierarchical law firm if not before, in a law school that is
predominantly a path to the law firm? Is literary woman ôtoo radicalö? Or does
she simply work within the established legal patterns -- as in the battered woman
example, where the imminence test is modified rather than eliminated? Will she
have a transforming, humanizing effect on the institutions she touches? Or is
literary woman already implicitly favored in the admission process, and has she
already had her effect in law schools, law firms, and throughout the legal
culture?

Beyond the Literary, Beyond Women
    Although Professor WestÆs scholarship grows directly out of Carol
GilliganÆs work around the idea of a distinct feminine ôvoice,ö it would be
needlessly narrowing to take so literal a view of ôliterary womanö to contend that
she is, necessarily, a she. The stated purpose of favoring empathetic lawyers is
that they are not ôhardened to others,ö  but able to step into the unfamiliar
aspects of others. Thus while a strict reading of Gilligan and West might suggest
that men are by nature not inclined to empathy, it is through the literary
experience itself that men can
acquire a capacity for empathy in the same way that women can sharpen theirs.
    Men in the seminar, for example,  were far from unmoved at hearing the
story and feeling the manner of the battered woman who spoke to us. And when
a first year constitutional law course reads Chief Justice Warren BurgerÆs
rendering of homosexuality -- ôCondemnation of those practices is firmly rooted
in Judeo-Christian moral and ethical standards.ö  -- men are at least equally
capable of locating in BurgerÆs reasoning a literary deficiency in his inability to
imagine the legitimacy of a different sort of life. All of the dissenters in Bowers
were, in fact, male, as are all of the homosexuals strictly affected by the
decision.
    The compact idea of ôliterary womanö dissolves further when, in addition
to men being plausibly among the literary, we find that favoring the literary is not
exclusively a way for views more or less on the political left to prevail. The most
famous and recent invocation of literature in support of a position generally
associated with the political right (opposition to flag burning) arises in Chief
Justice RehnquistÆs Texas v. Johnson dissent. Rehnquist begins by quoting
Ralph Waldo Emerson, moves to Francis Scott Key, and includes all 62 lines of
John Greenleaf WhittierÆs poem Barbara Frietchie -- something that elicited
snickers from my Constitutional Law class at Harvard Law School in 1990.
Whether the snickers arose from the studentsÆ dislike of poetry as such, poetry
in judicial opinions, the legal position of the Rehnquist dissent, or Rehnquist
himself is, without more, unknowable. But the incident does suggest that a law
more informed by literature would find skeptics of all political views, despite
WestÆs focus on the likelihood that ends traditionally associated with the left
would tend to received a more favorable hearing under a more literary reading of
the law . Literature, in other words, is not per se progressive.
    In fact, the quoted literature, far more than specific Constitutional
doctrine, is controlling in the Rehnquist dissent, a dissent joined by Justices
White (who wrote the majority opinion in Bowers) and OÆConnor (the CourtÆs first
woman). Alliances grounded in the literary are, therefore, uncertain both in their
political valence and the tendency of a particular lawyer, judge, or Justice to
adopt a relatively literary persona. It is equally plausible that one will be moved
by Edmund White toward as deeper understanding of sexual orientation as one
will assume a bleak view about the possibility for social transformation through
politics after reading All the KingÆs Men, where it is possible to find an
empathetic association with Willie StarkÆs strict Machiavellianism, an empathy
that obliterates all other empathies.
    WestÆs focus on ôempathyö as the chief and nearly exclusive result of
raising literatureÆs profile in the law also understates the consequences of
favoring the literary in the law and law school admissions. Just as empathy
implies more than socially progressive outcomes, literature implies more than
empathy.
    Literature, particularly poetry, is also about metaphor, which can be seen,
alternatively, either as a tool either for communicating the ineffable or previously
misunderstood (about battered women, for example) or for obscuring the just
and obvious (myth, of the bad sort). In gaining a title --  an authoritative
metaphor -- Post-Traumatic Stress Disorder was effectively accorded an
existence, an existence that, while scientifically dubious,  can hold sway with a
court in excusing criminal conduct. Thus insofar as literature trains oneÆs
capacity for the construction of metaphor, it is not unambiguously in the service
of constructing metaphors that sharpen the general understanding of what is
true.
    Literature, particularly prose fiction, is also about narratives. As extended
metaphors, narratives hold powers that can also cut both toward and against
accuracy. For every triumphant narrative that can be seen as deepening our
understanding of how things really are, one can generally imagine an equal and
opposite competing narrative. In the Stewart Battered Woman Syndrome case,
the majority was no less assiduous in its attention to details while reaching a
result adverse to the battered woman defense.
    Thus favoring the ôliteraryö over the ôlegalisticö is no reliable strategy for
indirectly rigging outcomes. Bernard Goetz is to urban vigilantism what Peggy
Stewart is to the Battered WomanÆs Syndrome. Shooting someone in the back,
someone who asks for five dollars, looks bad and unreasonable until, out of
GoetzÆs underlying personal narrative, the picture of a reasonable bigot starts to
evolve in the same way as that of a reasonable battered woman did.  The forms
of law are not without lasting utility where, as with Goetz, basic notions of
proportionality of punishment can do most of the work without literary assistance.
    For those of only a mildly left-leaning political bent, moreover, bringing
literature and literary-mindedness to bear on the law also holds the prospect of
consequences too radical, particularly for those secure and entrenched, whether
as law professors or law firm partners. An acquaintance who is also a first-year
law student at Stanford and an African-American woman, believes that what she
sees as the resistance to a more diverse faculty and the serious inclusion of
critical race theory in the law school curriculum (as something more than a
curiosity) is traceable to a well-founded fear. It would change things. It would
expose absurdities and contradictions in legal education. It would uproot the
very conception of what constitutes legitimate scholarship. It would actually
matter.
    She reasons that curricula have been modified and Great Books lists
radically transformed at the undergraduate level precisely because doing so
represented no institutional threat. There has been no radical outflow. College
is, in its basic ethos, a time for experimentation. A more inclusive curriculum is
just part of the experimentation, not a serious challenge to societyÆs established
structures. Students do emerge from college different from the way they did in
1950 or even 1980, with a greater sensitivity to difference.
    But in leading everywhere, college leads nowhere in particular; its
education is broad, the liberal arts are aimed at no specific institution. ôSocietyö
is too broad a target for radical transformation. There is nowhere, especially for
a 22 year-old, to begin...so they wind up doing little more than correcting their
parentsÆ archaic nomenclature (ôDad, itÆs not Black anymore, itÆs African-
American.ö) and then getting on with life...possibly going to law school.
    Professional school, however, is something else, especially law school.
Law school has a significant scholarly component and the law has a formidably
broad and long scholarly history. Yet just as law is attached to its scholarship, it
is also attached to its benefactor profession, the law, predominately as practiced
in law firms -- stunningly hierarchical and necessary adjuncts to free-market
commerce. Law may be a learned profession, but it is not scholarly in the sense
of putting established institutions and patterns of behavior to the doubting and
deconstructing tests of scholarship -- the tests of the literary mind, especially the
literary mind as imagined in the fullest imagination of ôliterary woman,ö critical
race theory.
    In The Alchemy of Race and Rights, Patricia Williams uses personal
narrative as scholarship. Williams discusses the rules/standards debate not with
reference to case law or doctrine, but in the context of a personal anecdote, her
preference for rules demonstrated by a story about her obtaining an apartment in
New York City. In using the personal narrative technique, Williams challenges
the conception of what constitutes legitimate legal scholarship. The threat,
therefore, is to a relatively narrow class of people: law professors.
    Mari Matsuda presents a more comprehensive threat -- to the very idea of
what constitutes legitimate legal and political ôvoice.ö  Matsuda argues that
ôvoices from the bottomö  -- cadence from the pulpit, rap from the streets --
ought to be admitted as sources of legal authority. The concept is genuinely
radical in two ways. First, ôvoices from the bottomö thoroughly redefines the
content of scholarship, bringing Snoop Doggy Dogg into the debate about
personal autonomy along with, or even instead of, John Stuart Mill.  Second,
the messages of the ôvoices from the bottomö tend to be, though they are not
exclusively, more challenging and candid than the voices from the top.
    It could be that when the rap song says ôwhen youÆre broke you break,ö it
does so with greater reach and resonance than anything before it has on the
topic of poverty-based criminality. The risk, of course, is not just of radicalism but
radical inaccuracy. The emotive force  of a song (or even traditional verse and
prose, not set to music) threatens to overwhelm the more rigorous but less
emotionally compelling message of social science -- that, perhaps, poverty is
not, controlling for other variables, a cause of crime. At this point literature, in all
its forms, is left with but one rebuttal: that it is not just an authority, a
complement to legal doctrine, traditional legal scholarship, and the findings of
social science, but it is a superior authority, an authority more appropriate to
describing complexities, human situations that are not reducible to the
conventional forms of expression found in law reviews and peer-reviewed social
science journals.
    It is on the matter of candor that the personal voices are most upsetting to
law, even a progressive vision of law. One need only witness the enormous
discomfort of law students on confronting a seemingly obvious psychological
finding: people tend to follow authority, even evil authority. Literature cuts
deeper, reaching impulses easily concealed from social science investigators.
Literature, like music, has its impact not through the persuasion of statistics, but
in the simple response of recognition -- ôI know that thought...that sounds like
me...ö
    Camus, in The Fall, undertook to deconstruct the inner mind of an
outwardly conventional man, the first-person narrator who describes his
putatively normal romantic life this way:

The only deep emotion I occasionally felt in these affairs was
gratitude, when all was going well and I was left, not only peace,
but freedom to come and go -- never kinder and gayer with one
woman than when I had just left anotherÆs bed, as if I extended to
all others the debt I had just contracted toward one of them. In any
case, however apparently confused my feelings were, the result I
achieved was clear: I kept all my affections within reach to make
use of them when I wanted. On my own admission, I could live
happily only on condition that all the individuals on earth, or the
greatest possible number, were turned on me, eternally in
suspense, devoid of independent life and ready to answer my call
at any moment, doomed in short to sterility until the day I should
deign to favor them. In short, for me to live happily it was essential
for the creatures I chose not to live at all. They must receive their
life, sporadically, only at my bidding.

CamusÆs project is, as the epigraph to The Fall says, ôto expose the aggregate of
the vices of our whole generation in their fullest expression.ö CamusÆs world is
that of All the Kings Men, in a libidinous rather than a political context. It is a
world stamped forever with the insights of Machiavelli -- ôA man may forget the
death of the father, but never the loss of the patrimony, the coldfaced Florentine,
who is the founding father of our modern world, said, and he said a mouthful.ö
    What Machiavelli said, candidly, so upset all prior political theory because
it banished the quest for the better side of human nature. Empirically,
Machiavelli exposed the inner mind of princes just as CamusÆs narrator exposes
the inner workings of his mind. Normatively, Machiavelli told never to tell...never
to tell what it is that you really seek, but to conceal motives through indirection.
There is plenty of modern resonance here, as when a judge announces his
devotion to ôoriginal intentö in order to get his actual preferences under the
neutrality radar.
    The indirection works, for the most part, until literature turns up in the law,
sharpens our instincts, and presents us as Camus does with unsettling
aphorisms that sound all too true: ôToday we are always ready to judge as we
are to fornicate.ö
    Consider abortion, where the political meets the libidinous. Roe v. Wade
both endures and is burdened by its virtually total lack of candor. It is attacked
as being outside the law, which of course it is, but it could not have been any
other way. Only gradually has candor turned up in the litigated portion of the
abortion debate. In Webster,  Justice Blackmun first broaches the idea that
women, because of their uniquely burdensome reproductive capacity, are
materially disadvantaged by abortion restrictions -- an argument about
anatomical differences under the safe cover of equal protection. Only in
Casey do we start to get closer to candor, when Justice OÆConnor talks of how
ôan entire generation has come of ageö assuming the rights guaranteed by Roe.
    Justice OÆConnor said a mouthful. She is ostensibly talking about law,
about stare decisis, and preserving the continuity of the law. In other contexts,
however, she is not as adamant about precedent. In reversing a permissive
precedent on affirmative action,  Justice OÆConnor showed her facility with
opposing narratives in stating that ôwe do not depart from the fabric of the law;
we restore it.ö Why not the same ôrestorationö in Casey? Some say it is only
explained by a growing animus toward Chief Justice Rehnquist, with whom she
was rumored to have been romantically involved during their time at Stanford
Law School. That is a story for another day, however.
    What is unspoken, but implied, in Casey is something nearer to candor
than any prior Supreme Court abortion decision: that people commonly have
recreational, non-procreative sex; law students do, perhaps even conservative
Supreme Court justices. It would be absurd, therefore, to insist that pregnancy
be the necessary consequence of so common a practice. Law and politics
militate against such candor. The literary quality of such frank admissions
shocks the conscience of a broad public, much as the admissions and
revelations of CamusÆs and WarrenÆs protagonist narrators do.
     When I was writing political speeches, I never had a harder fight keeping
a line in a speech that I did with one about abortion: ôAre we really ready to tell
women they have to grin and bear it when contraception fails and they get
pregnant?ö It cut too close to the reality of the situation; it recognized that while
abortion is about autonomy and privacy and a differential impact on women, it is
also, and primarily, about sex, and about men as well as women. Ultimately, I
took my case to the Governor and he retained the line. One newspaper that
covered the event quoted that contested line and no other, noting that ôall heads
in the room were nodding.ö Male heads as well as female heads nodded
because men know, if nothing else, the purging of abortion rights would mean
either a circumscribed sexual life or the extraordinary financial impact of
supporting a child born of recreation not procreation.
    Still more challenging would be the Snoop Doggy Dogg version of sex
and sexuality, as expressed in a record that sold several million copies: öGuess
whoÆs back in the muthaÆ fuckinÆ house, with a fat dick for your muthaÆ fuckinÆ
mouth...it ainÆt no fun, if the homies canÆt have none...it ainÆt no fun, if the homies
canÆt have none...ö  On that view, sex is inclusive and plentiful, sexual practices
are diverse, and sex, with the assistance of mild hallucinogenic (illegal)  drugs,
is lifeÆs animating force. As such, in the fullest inclusion of ôvoices from the
bottom,ö abortion is a necessary option; conventional morality -- monogamy, law-
abiding behavior, the regulation of oneÆs ôpleasure instinctö  -- is seriously
opposed. What matters is securing the liberty that only the political system can
provide; jurisprudential consistency is of no moment. It is a matter for the next
life or oneÆs progeny, were their either.
    The rap music metaphysics is not without resonance, however, even
among those who have played the straight and narrow with enough attention and
reserve to be admitted to Stanford Law School. For others, however, it is a
slippery slope not only never to be sledded upon, but to be actively denied.

Literary Man and Economic Woman at Stanford Law School: A First Year
Narrative in Three Parts

Part 1: The Erotic Allure of Formalism
    As one ômodel answerö from Professor GuntherÆs 1994 Constitutional Law
final exam put it: ôMuch as I support a womanÆs right to choose whether or not to
have an abortion, I think Blackmun really had to stretch the Constitution to find
that this decision is one that is fundamental to a ôscheme of ordered liberty.ö
    This view of ôordered libertyö is, if not dominant, widely in evidence
among first-year law students at Stanford. It is reminiscent and directly in the
tradition of Herbert WeschlerÆs famously self-abnegating appraisal of Brown v.
Board of Education. Like the model answer student, Weschler liked the result of
Brown but was troubled by the flawed jurisprudence. In relevant part, Weschler
writes:

    Lastly, I come to the school decision [Brown], which for one of my
persuasion stirs the deepest conflict...Yet I would surely be engaged in
playing Hamlet without Hamlet if I did not try to state the problems that
appear to be involved...
    The problem inheres strictly in the reasoning of the opinion...

In other words, much as Weschler supports desegregated schools, he thinks
that Warren really had to stretch the Constitution...
    The allure of the law, for many like Weschler and the model answer
producing student of Gunther (himself WeschlerÆs student) is the language of the
law itself, its structure and its constraints. Sacrifice, whether it is ôgiving upö Roe
or Brown, is taken to be a symbol of commitment to genuine principle. The
tendency is recurrent at Stanford Law School...much as I sympathize with the
plight of the homeless, I have separation of powers concerns if the courts
mandate a level of funding for homelessness programs (first year
property)...much as I sympathize with toxic tort victims, there is no basis in
established causation doctrine for recovery here (first year torts)...all acts of
restraint, of sacrifice, and restraint knows no part in the most extreme, nihilistic
renderings (Camus, Snoop Doggy Dogg, or Bernard Goetz, or the man who robs
a bank because of Post-Traumatic Stress Disorder) of what began simply as
ôempathetic woman.ö The fullest extension of the literary is where volition
answers only the commands of desire, and all desire -- political or sexual -- is
excusable in its criminal consequences if a compelling narrative attaches to it
and to us in the telling.
     Where restraint is still operative, encouraged, and admired, one can both
support the ôpro-choiceö position and, yet, and a matter of law, as a professional
matter...in a gesture that adds a layer of complexity and professionally viable
nuance to a first-year law studentÆs personality...oppose the mechanism by
which the ôpro-choiceö position has been secured, knowing all the while that
taking such a position is of no consequence...after Casey, Roe is secure, and,
anyway, first-year law students arenÆt likely to affect the law...

Part 2: The Pragmatic Allure of Conformity
    One student wrote the following cover letter to a judge, for whom he
hoped to clerk:
    I am a second-year student at Stanford Law
School writing to apply for the position of Law
Clerk...
    I assume my writing skills, analytical
ability, research proficiency, and other mundane
skills are on a par with most other qualified
applicants, and I am confident that I have honed
them just as much in law school. Other than that,
I am not sure I am outstanding in any single
respect, but I do believe I am well rounded. As my
resumΘ indicates, I lived in Paris, France from
the age of seven to eighteen. I then attended
Hampshire College, a relatively ôalternativeö
college...
    After that I worked for two years in
Washington, D.C., first as an intern in Congress
and then as a lobbyist and research associate for
ACORN, a relatively ôradicalö organization working
on a variety of issues affecting low-income
families...
    Having temporarily satisfied my alternative
and radical urges, I have focused at law school on
legal issues surrounding the business and finance
world...
    My recommendations are being written by
Professor Crawford, who I work for and is
intimately familiar with my work, as well as
Professors Janet Halley and Professor Goldstein,
who I know less well but who assured me they would
nonetheless write typically laudatory
recommendations.
    Thank you for your consideration. I look
forward to the opportunity to meet with you.

    It was widely believed by fellow law students, when the writer of the letter
asked if he should use it, that he should not.

Part 3: The Ambivalent Allure of the Erotic

    In October, four first-year law students engaged in what came to be
known as ôgroup sex in Crothers,ö which it was, except that it happened in Menlo
Park, not Crothers. At the end of the encounter, one of the four students is said
to have remarked, ôLaw school is cool.ö
    Evidently, it became less so. Acrimony broke out among the group of four,
seemingly because the student who thought the encounter ôcoolö had found
more value in the retelling of it than the others.  The three who had remained
silent cut off relations with the talker.
    Then, near the end of the school year, in the heavily-attended Law School
Musical, one of the four -- not the one who had told about the adventure -- sang
a song called ôStanford Law Sexö:

ThereÆs things you try to hide
And things the whole school knows
ThereÆs 2Ls you trust
And 1Ls you donÆt

ThereÆs things that youÆd expect
And things youÆd never guess
No one expected good sex in law school
But baby we did it and it was the best

Sex is natural -- Sex is good
Not many 2Ls do it
But many of them should
Sex is natural -- Sex is fun
Sex is best when itÆs...five on four
    Six on three

The student who had been previously censured for tell the story publicly was
perplexed.

Implications for the Admission Process
    How might StanfordÆs admissions process located and admit either more
or fewer students of a literary temperament? There is little to go on. The
transcript can show a penchant for literature courses, but as the foregoing
analysis suggests, ôliterary womanö is something more than one who tends to
take literature classes. The LSAT is no assistance. Recommendations are
unreliable. Many applicants write their own recommendations (the offer to do so
was made to me; I refused) and, even if they donÆt, are unlikely to solicit one that
will be either strictly unflattering or revealing in an unflattering way.
    All that is left in this application process of modest aspirations is the so-
called personal statement, a purportedly literary act. The personal statement is
suspect in the same way recommendations are; its authorship is unverifiable. I
did write my own, and as a service to those who read application folders, I end
this paper by offering the following deconstruction of my own personal statement
that I submitted to Stanford Law School (and Harvard and Yale):

Application to Stanford Law School
Personal Statement
Robert C. Byrnes (004-58-9690)

    My boss turned to ask me the location of an obscure
Boston street.
Comment: Purely a literary device to start the statement

    ôYou know that from your bike messenger days,ö he
presumed, correctly. He added: ôProbably the best job youÆll
ever have.ö
Comment: A true fact, having been a bike
messenger...probably included to suggest a unique background
and to be cast in ironic juxtaposition to my current job at
the time (Chief Speechwriter to the Governor of
Massachusetts)

    Bill Weld could never have been a bike messenger,
living outside the expectations of his social class. For the
first time he (public figure, prominent family) showed a
streak of envy.
Comment: Bill Weld is Governor...narrative suggests close
contact, detailed conversation with a powerful person,
despite having been a bike messenger...first application to
Stanford, during bike messenger phase, did not
succeed...need to establish legitimacy for law school

    And he might have been right. Some jobs dominate your
mind, others your body. Biking dominated my body, but my
thoughts were always my own. A romantic image of life as a
bike messenger survived my actually doing it.
Comment: Unrepentant about deviant way of life...but the
time comes to get serious, take a respected job, go to law
school...

    Growing up, I also had a romantic image of politics. I
remember watching Governor Dukakis speak on television, when
I was in high school. d words seemed to have been delivered
from the heavens. I had no idea his speech had been written
by an actual person, and that for DukakisÆs successor, that
actual person would be me.
Comment: Reinforces the idea that Massachusetts governors
are significant political players...Dukakis the Democratic
nominee in 1988...also reinforces my connection to the
legitimate and the powerful...

    The romance of politics also survives. In my work, I
live beyond the expectations I had for myself, and my
thoughts can live beyond me, as well.
Comment: I am not a cynic...I believe, especially in the
mainstream sources of power and rights...the days of bike
messenger nihilism are behind me

    In a bar, I once watched Governor Weld deliver a gay
rights speech I had written. There were no cheers, but there
were no derisive remarks -- a small victory for tolerance. I
told Weld his gay rights position would probably be his most
significant contribution as Governor.
Comment: I am a right-thinking, Bowers-hating progressive,
just in case the affiliation with a Republican made you
wonder...Am I gay?

    And while my mind can never be entirely free writing
his speeches, it can travel paths I once thought off-limits
to people like me.
Comment: I have come far, confronted and vanquished doubts,
cynicism...I am hopeful and life-affirming...yes I said yes
I will Yes.







.
  James B. Stewart, The Partners, Simon and Schuster, New York, 1983, p. 16.
  Robin West, Economic Man and Literary Woman: One Contrast, 39 Mercer L. Rev. 867-878
  Id. at 869.
  Id.
  Id.
  Id.  871-872.
  State of Kansas v. Peggy Stewart, 243 Kan 639; 763 P.2d 572; 1988 Kan.
  Id.
  A. Browne, When Battered Women Kill, Ch. 8, ôEven Unto Death,ö pp. 131-158. The Free
Press, New York, 1987.
  See, for example, State of Kansas v. Joan E. Hodges, 239 Kan. 63, 716 P.2d 563; 1986,
where, in a decision finding ôimminentö the proper jury instruction rather than ôimmediate,ö the
court relates that at ô[a]round 2:00 a.m...the defendantÆs stomach was upset and she went to the
convenience store to get some Di-Gel for herself and some Skoal for her husband. She returned,
went into the bedroom...ö
  Id. at 875.
  In Bowers v. Hardwick, 487 U.S. 186, where Burger also affirmingly notes BlackstoneÆs
description of sodomy as ôthe infamous crime against natureö and ôa crime not fit to be named.ö
  In addition to providing a finer understanding of homosexuality, West also refers to race and
battered women as issues that would benefit from a more literary treatment.
  Law and Social Science Seminar, Stanford Law School, February 5, 1996.
  Id., January 30, 1996.
  Mari Matsuda, ôLooking to the Bottom: Critical Legal Studies and Reparations,ö 22 Harv. Civ.
Rts.-Civ. Lib. L. Rev. 323, 323-342 (1987)
  This is all the more contentious when the inclusion of Mill or any philosopher at all is opposed
by some, such as Charles Fried, who see no room for disciplines other than law within legal
scholarship.
  Albert Camus, The Fall, Random house, New York, 1956, pp. 67-68.
  Robert Penn Warren, All the Kings Men, Harcourt Brace Jovanovich, New York, 1974, p. 393.
  Camus, at 77.
  Webster v. Reproductive Health Services, 492 U.S. 490 (1989)
  Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. (1992)
  Aderand Constructors, Inc. v. Pena, 518 U. S. (1995)
  Snoop Doggy Dogg, ôAint No Fun,ö on Doggystyle, Death Row/Interscope Records, at track
#12, (1993)
  see  Walter Michael, Ebbe B. Ebbensen, and Antonette Raskoff Zeiss, ôCognitive and
Attentional Mechanisms in Delay of Gratification,ö in Journal of Personality and Social
Psychology, February 1972.
  Herbert Weschler, ôToward Neutral Principles of Constitutional Law,ö 73 Harv. L. Rev. 1 (1959



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