Surviving The First Year of Law School as a Woman

Okay, you're in. Now what? First of all, lighten up. You've probably heard the stories about how hard law school is on women, especially the first year. But there's a reason for the rigors of the first year, and it's not just to make childbirth seem painless. Because women report having such a hard time understanding and participating in the first-year exercise, I'm going to take some time to explain why it takes the shape it does, and thus why some of the first year would be hard to change. So, we're going to be talking about ways you female readers can cope with the first year.* The first way is to understand that some of it is not aimed at making you un-happy. That's not to say that the worst excesses are defensible; they aren't. We'll talk about that, too.

Gender aside, there are two good basic books for everyone: Law School Basics, by David Hricik (Los Angeles: Nova Press, 1997), and The Eight Secrets of Top Exam Performance in Law School, by Charles Whitebread (San Diego: Harcourt Brace, 1995).


The Secret of the System

A lot of the first year of law school is the product of the American legal system, particularly the common law system, which we got from the English centuries ago. The common law system depends on applying the principles in old decisions to new problems, so lawyers, who are going to run the system, need to think along those lines. Accordingly, the teachers can't just ask you to learn "the law" by memorizing a bunch of information about what the law is. They have to ask you to stretch your thinking to new situations, which is harder than memorizing and often seems scary to people of any gender, and, from all reports, particularly to women.

Although the common law system is an historical accident, most English cultures and colonies like the United States retain it, because it serves valuable political and social purposes. So when you're sitting there trying to figure out what in the world could be in the mind of the scary, Kingsfieldish old man running the place who just called on you out of the blue to tell him what the law would be in a weird situation you never heard of before, you're not just caught in a Kafka novel. You're participating in a completely understandable and quite legitimate historical institution of reasoning from old cases to new ones, which is going to be a lot less scary once you understand how it works.

Statutes: The Legislature's Laws

In the United States and most common law societies, law comes from two places: the judges, who make what we call "common law," and the legislators. You probably remember from American history that the legislatures "make the laws," so let's start there. The legislatures, like the U.S. Congress or the Illinois state legislature, or the Chicago City Council, meet and decide how they want people to act. They then enact what they want done in something called a statute. Regardless of the way the legislative body is selected, the issuance of general commands from a central government authority that people are then all expected to obey laws old as civilization itself. From Egypt to Rome to France to China, whoever governed from the top issued orders to the rest.

So, say the legislature doesn't want business people to get together and agree that everyone will charge the same price, thus eliminating the benefits of competition for the consumer. The legislature says, as the United States Congress said in 1890, that people should not engage in "conspiracies, combinations or agreements in restraint of trade." Nonetheless, and despite the law against combinations, people do all sorts of things: They merge, they wait to see what the competition is charging and snuggle right up behind, they require customers to buy all their products if they want any of their products. It's impossible for the legislature to anticipate all these developments, so, after the statute is enacted, the American (and English) systems assign to judges the task of deciding how to apply the legislature s directions ("no conspiracies in restraint of trade") in any particular case.

There are many techniques for figuring out the legislative will: the language of the statute, what the legislators said while they were considering it, what was happening in the society at the rime, and the extent to which the law seems to invite judges to interpret the language to fit a changing society. As the process of interpreting and applying the statute proceeds, a body of cases filling in the meaning of the statute develops.

One of the requirements our legal system imposes on this process is that the applications be consistent, that is, we wish to avoid having the law apply one way to one American and another way to another one. So we don't want to forbid Microsoft, for instance, to insist that you buy its Web browser if you want its dominant operating system while allowing some other software provider to do the same thing. We don't want the First Amendment applied so that Democrats have protected political speech and Republicans do not. Consistency serves two important political values: that citizens are equal before the law and that people, even the people operating through corporations, are able to anticipate what the law requires so they can plan their affairs. How would you like it if there were no signs indicating the permitted speed on the highway or if the police could impose one speed on you and another on your brother?

Accordingly, all democratic societies now have legislatures that set forth general rules in statutory form and some mechanism of interpretation of statutes that aspires to the standards of equality and consistency As a result, most people's activities in the late twentieth century are governed in large part by statutory law

Judicial Decisions: In Common Law

Unlike other democracies, however, common law systems not only allow judges to interpret the legislature's laws, they also allow judges to make nonstatutory law, called common law. Common law is not a product of God or nature; it is an inheritance from " our English antecedents. The institution of the English common law goes back quite a ways to before the Norman Conquest, when English society was mostly governed by local custom, with its roots in Anglo-Saxon Germanic tribal culture. After the continental William of Normandy conquered England, one of his institutions of governance was the King's Bench, a group of royal judges who roamed the countryside delivering the king's justice to people with disputes all over the place. As there were few statutes, most judicial pronouncements administered justice according to the immemorial custom of the localities. As the national part of the system began to emerge with the unification of the English nation in the early Renaissance, the little local customs began to be merged in a national system of judicial orders declaring the law common to the whole society.

At this point, the English had a king and a Parliament of sorts, so they had the option to adopt the top-down statutory system, where an authoritative legislature or executive told the people what to do about everything. Or they could have taken all the common law decisions together and consolidated them into a code that was then passed by the legislature. But although the English did engage in some legislating, they refused the option of legislative dominance or legislative codification, and common law continued to be made one case at a time by the judges sitting all over England. This was the system; as it was transferred to the United States when the first English colonists arrived.

With some exceptions-namely the states like Louisiana, which adopted the civil code from the French before they were bought by the Anglicized United States-the English common law system took root and dominated the developing legal systems here. Even after the American Revolution, when some states declared that they would no longer follow any rules simply because they had prevailed under the English common law, the English system was so powerful that the states abandoned their independence and returned to the lines of cases brought over from England in the years before they parted company with the Mother Country.

So common law is judge-made law inherited from England and maintained after the American Revolution and, indeed, to this day.

Judge-made law is a pretty weird idea. As legal historian Lawrence Friedman aptly expressed it, "What [the legislature] can do in a month's intensive work, a court can do only over the years-and never systematically, since the common law does not look kindly on hypothetical or future cases." Instead of the efficient legislative system, over the years, a common law court will decide a series of disputes presenting a legal issue. In the purest case, a court starts from what was customary in Germanic England. The court will say, for example, that a farmer is liable for letting his cow wander out and eat your crops, a kind of bovine trespass. In later cases, the court may say what's liability for the cow is also liability for the pig, and the farmer is responsible for the damage Porky does, too. Slowly, the court will develop from those early recorded cases a larger doctrine of responsibility for damages by animals. As the court confronts each new situation, it is also answerable to the values of consistency, in the interests of . equality and foreseeability, that drove the process of statutory interpretation.

Tied by the political commitment to equality and foreseeability, as the doctrine develops, the common law court will try to make the new decision consistent with the old ones. The body of the old cases functions sort of like the statute in our legislative example to limit strictly what the judges can do, although most students of common law admit that common law judges are freer than judges bound by the legislature's expression of its will.

Judges try to tie each common law decision to past decisions for another reason, too. The freedom of the common law judge is problematical, because in a democracy, unelected judges don't have an obvious claim to tell us what to do. As the administrative machinery of the Crown, the English judges in the old days had some claim to participate in whatever made it okay for the king to tell people what to do-over time, a mixture of superior force and divine sanction. In America, the judges are creatures of the states (the common law is much less of a problem on the federal level), and the states try to avoid the "democracy" problem by electing the judges or by having elected officials appoint the judges from a panel of recommendations based on "merit." Still, having only remotely accountable professional judges make or apply a lot of the laws governing our lives is anomalous in a democracy. But both systems exist, and judges try to solve the "democracy" problem in common law cases in part by pretending that they are just discovering and declaring what the law has always been rather than just doing what they think is right. So applying past cases to new situations is very important to the, legitimacy of the common law system.

Because of the way the common law develops, and because the process of interpreting statutes resembles the common law process in its obligation to be faithful to the statute, evenhanded, and predictable in applying prior principles to new cases, law school education in the first year especially concentrates on teaching students the skills they need to participate in the common law (and statutory) system. This curriculum consists of presenting the students with a sample of the body of existing cases in different subject matter areas, introducing them to the existing body of law, so to speak, and then pressing them to figure out how that existing body of law might apply to new cases that may come up. All of this is supposed to teach them the method of common law decision making. Usually, a course or two will involve an area, like criminal law, dominated by statute, so the students can learn how the process differs when the foundational authority is a statute, rather than a very old case.

The First Year:An Overview In some ways, it doesn't matter what subjects the law schools include in the first year.

Most first-year curricula imperfectly perform these tasks. The first year of law school is usually the worst at teaching the structure of the American legal system, although they make a pass at it in the basic course on civil procedure. In addition to the blatant failure to inform students of the history and structure of the , American legal system, the traditional first-year program also makes the mistake of trying to teach students the statutory and common law methods methods I've just described and the con- tent of the substantive law-of torts or crimes, for example-at the same time. In a third mistake, the traditional first-year pro-gram tries to teach the substance of the law, the structure of the legal system, and about a dozen other things lawyers eventually need to know using indiscriminately what law schools call the.

The Socratic method, loosely defined, is the process whereby the teacher asks the student to answer a question and then engages in a dialogue with the student starting with the student's first answer. Since you will hear Socrates invoked a lot in the first year of law school, you should know that the law school "Socratic" method is a procedure with only the remotest resemblance to the legendary father of Western philosophy. Law teachers often misuse the label "Socratic" when they are asking questions that can only be answered by guessing at the meaning of something completely arbitrary, like the meaning of the numbers following the name of a case (I'll be explaining this in a minute) or asking the student to recite the facts that gave rise to the case. On the other hand, asking people to apply the reasons for the nonenforcement of contracts by minors to the problem of the older-acting sixteen- year-old, as we discussed in an earlier article, is closer to the authentic Socrates, because, the teacher is trying to accomplish three legitimate Socratic goals: one, to get the student to probe the reasons underlying the first position the student espouses; two, to get the student to see the limits of the application of the reasons underlying his position; and, three, to get the student to see basic intuitions about the goodness and fairness of the larger enterprise-in my example, the law of contracts.

Although the relatively authentic "Socratic" part of the law school method has its uses in training people for the American legal system, participating in the Socratic dialogue is often painful, so many people have arisen in recent years to criticize this way of doing business, and some schools are trying to move to a more humane system or to limit the use of Socratic method to its appropriate sphere. But, like the old math, the confused and irrational technique of first-year law teaching has lots of support among people who like social arrangements that terrify the powerless and sort people out into hierarchies with rewards for those at the top and pain for those at the bottom, regardless of whether they train people to be lawyers or not. (The real Socrates' students, you may recall, rewarded him with the choice between exile and poison at the end of his life.) Fortunately for you, one response to this nonsense has been the proliferation of a number of books intended to explain the why and how of the first-year experience-and, coincidentally, to explain the structure of the legal system-so that you can succeed despite the evil inclinations of the people defending the Socratic method to the last drop.

The Content of the First Year in a Nutshell

THE STRUCTURE OF THE AMERICAN LEGAL SYSTEM

A legal system exists to prescribe and enforce rules for behavior to govern the members of a particular society. In the United States, the legal system exists to prescribe and enforce rules of behavior for people living in the United States. A common and influential way to think about the process whereby a bunch of people come to live within a legal system is to imagine them wandering around in some prehistoric time without a legal system, killing and raping each other. Life is, famously, "solitary, poor, nasty, brutish, and short." Either eventually the strongest comes out on top and imposes his will or the people agree somehow they'd be better off with limits on what can be done-or people gradually develop practices of doing things one way and not another, as they see what works. Within some geographical area, the people in power order the others to do some things and forgo others, or the people all agree to do some things and forgo others, usually un-governed killing, or people just stop doing some things and do others until any other way seems strange. A society of sorts is born, and the legal system develops to produce the official list of things done or forgone (lawmaking) and to be sure the list is made real (law enforcement).

The American legal system is more complex than most, because the Revolution that established the United States separate from England was an alliance of the various colonies, which then became states, and the people who wrote the Constitution setting up the national government were in no position to replace the states. So there is a national legal system, created by the United States Constitution, consisting of the federal legislature (the Congress), the executive (the president), and the federal judiciary (the federal judicial system). There are fifty state legal systems, the creatures of the Colonial charters and eventually of the state constitutions, each of which has its own legislature, executive, and judiciary, and there is the District of Columbia! The federal system is often described as one of "dual sovereignty." Wherever you live, you are subject to two systems-your state system and the federal system. Sitting here in Arizona in January of 1998,1 must obey all the traffic laws and criminal and consumer laws of Arizona, as well as the federal laws against racketeering, restraint of trade, and employment discrimination.

Each judicial system has courts to hear and decide disputes, usually called trial courts, which both decide the facts and interpret and apply the law. The systems also include courts to hear appeals from the trial courts, usually only on grounds that the trial court made a mistake of law. Most judicial systems have not one but two levels of appeals courts, the highest being the Supreme Court. Most legal systems make and apply criminal law, which is the law governing relations between the government-representing the whole society and the individual or company, and civil law, the law governing relations between two private parties. Most criminal law is statutory; much civil law is statutory but much civil law also remains the province of the judge-made common law. By constitution and statute, many disputes can only be decided by a jury of some number of laymen and women; other disputes may be decided by a judge or by both.

Much of what trial courts decide is not recorded for public consumption. The opinions of the courts of appeals, intermediate and supreme, are recorded, but, since most appeals are only about law, the recorded opinions include only enough of the facts to explain why the case was decided the way it was. The court opinions are recorded by the agencies of government themselves; for example, Ohio records the opinions of the Ohio courts in the "Ohio Reporters," both appellate and supreme. The opinions also appear in regional reporters maintained by commercial reporting services; Ohio cases appear in the commercial system published by a company called West Publishing, reporters for the northeast part of the country. The "citation" of the cases is nothing more than the name of the parties, the number of its volume in the reporter system, the name of the reporter system, the page of the volume, and the date.

So the most famous of all modern American legal decisions, the Supreme Court ruling in Brown v. Board of Education of Topeka, Kansas, desegregating the public schools, has the following citation: 347 U.S. 483 (1954), which tells us that the case involved at least two parties, Brown and the Board of Education, that it was reported in volume 347 of the official reporters the United States government produces for Supreme Court decisions, beginning at page 483, and that it was decided in 1954. The West system reports the case at 74 S. Ct. 686.

The teaching of the notation system is a good example of a misuse of the "Socratic" method. In the printed report of Brown in those two volumes, the numbers appear under the title. This probably looks pretty strange to you, although you've doubtless heard the case described dozens of times. This is because the legal system has a set of terms and forms it uses that lay people rarely see. Some traditional first-year teachers abuse the Socratic method by trying to get the student to intuit what these notations mean in an abusive exchange in front of the entire first-year class. I've actually seen professors try to "teach" the notation and reporting system in a travesty of the Socratic method by asking some hapless student during the first few days of class what court decided a particular case. The student says she doesn't know. The teacher asks whether there's anything in the case in the book the student has been assigned that might reveal the name of the court. The student, caught like a deer in the headlights, stares at these meaningless notations, 347 U.S. 483, say, as if the book would talk. The teacher moves to another victim.

In less than one tenth the time it takes for a room full of students to guess at what the notation system means, I've just taught you what it means. If asked to defend their behavior, the offending teachers would say they're teaching the students that nothing in a reported case decision is meaningless or unimportant. Nonsense. Much of what you're assigned in the first year is meaningless or trivial, and much of what you do need to know can be taught directly, rather than by making you guess about what it might mean. Once you know that 347 U.S. 483 (1954) means you're looking at a Supreme Court case from 1954, you'll never pore over the notation again. Ditto with who's the plaintiff and who's the defendant and the fact that on appeal the name of the party appealing usually appears first in the case name regardless of whether they were the moving party in the trial court. This stuff only deserves time-consuming attention because it's strange. Simple instruction makes it familiar.

THE COMMON LAW "CASE" SYSTEM

Because the common law method proceeds from Germanic custom lost in the mists of time (the cases rarely refer to this anymore, but I thought you'd like to know that the common law didn't come to the English directly from God) to cases decided and reported in England to cases decided in the American state courts in the eighteenth and nineteenth centuries after independence to the cases a particular court decided yesterday, a lot of the first-year curriculum consists of reading cases. Remember, once a court-say, the Ohio Supreme Court-says what the common law is on something in Ohio, then that court and all the trial and intermediate appeals courts in Ohio are bound to follow it. The first-year casebooks put together a set of case opinions from the courts of appeals of the various states to sketch a picture of what the current state of the common law is on the core subjects it addresses and a little bit about how it evolved to that point. I'm going to use examples from several fields of law, because the method is the same in any common law course.

In torts (roughly, the law governing civil injuries), for instance, the casebook might contain several chapters. Each chapter would include a sample of opinions on an important aspect of the law of torts. For example, there would be chapters on each of the following subjects: (1) negligence, or the standard we use for tagging someone with responsibility for the harm his acts do to someone else, (2) causation, or the relationship we require between someone's negligent act and the harm that ensues, (3) contributory negligence, or the defense we allow when the victim acted like a damn fool, too. Instead of just telling you that we consider someone negligent when the risk of harm outweighs the cost of taking precautions, say, failing to put a biting dog on a leash, the casebooks present actual opinions in appeals from cases where people failed to leash their dogs, sped in rainy weather, left manholes uncovered, etc. From these opinions, you are supposed to piece together a picture of the law of negligence. From the piecing process, you are supposed to learn how lawyers piece together the picture of any field of common law from similar case materials.

Since each state is sovereign as to state law, as a technical matter, the Ohio decisions in the casebook, for example, only govern the Ohio courts, so the Ohio tort law can be completely different from the Illinois tort law. Given the common English roots, the law rarely differs completely from one state to another, so the casebooks usually contain a sample of cases from around the country to give you a general view of what the law of torts usually looks like. After all, who knows where you may wind up practicing? In any event, from the questions after the reported cases and from the imaginary cases ("hypotheticals") your teachers ask you about, you are supposed to learn to predict how a court, faced with these old cases, and bound by the norms of equality and foreseeability, might act in a new case.

Note that there is no sure answer to how a court would act in a case it's never seen before. That's why teaching you how to narrow the range of possible future outcomes by thinking beyond the existing cases through hypothetical questions is legitimate. On the other hand, there is absolutely only one answer to what 181 U.S. 56 means. There is only one answer to what the highest court in the state of Ohio is. There is only historical material to tell us why the court system looks the way it does. That's why using questions and answers to teach you these hard and fast facts is stupid. That's why all first-year curricula should start with a straightforward lesson about the legal system, rather than requiring you to figure it out from a set of case materials.

The casebooks include mostly appeals court opinions, because the "law" doesn't resolve factual disputes, such as whether it was really your dog that bit the plaintiff. Courts need to know the facts, and later courses like Clinic and Trial Advocacy will teach you how to present the facts. For the first year, we're mostly not interested in facts. You're interested in knowing what the law would do if the facts were not in dispute. That is the role of the court of appeals. The trial court decides what the facts are, establishing the record, or story, the law will address, as well as deciding what the law is and how the law applies to that stow, but the courts of appeals review only what the law is and how it applies. Such questions include, for instance, whether the "law" should make you responsible for your dog's bite, even if it never bit before. If the victim teased the dog. And so on. By the time you see a court addressing these legal questions in law school, the facts are already decided.

Feminist and other critics of the first-year experience criticize this appellate case method for its denatured quality. Where are the people, their stories, their reality? Maybe the court has cast out some fact that might make us feel differently about the rule it announces. Lani Guinier makes a nice point that if you could see the case from the moment the plaintiff walked into your office and told a story, you might see alternative ways that the parties could have resolved their differences. Since this kind of counseling is a lot of what lawyers do, it ill serves the ends of legal education to present the basic material to first-year law students with the facts so limited that only conflict is possible and there has to be one winner and one loser.

While I sympathize with the disconnected feeling the casebooks create, newer and more progressive casebooks often lead you up to the appellate opinion with more background, and Guinier makes the best argument for this approach-to prepare law students to counsel resolution, mediation, compromise.

On the other hand, for purposes of learning what the actual common law rules are, which is a big part of what law school must do, cases, like life, often contain a lot of facts and issues you don't need to know for purposes of the first-year courses, so the editors try to cut them down. You'd go nuts if you had to do all the reading, often twenty or thirty pages of edited cases per class, in the form of hundreds of pages of unedited cases, much less get the factual story from the get-go. Worse still, even if the stories leading to the conflicts were told in all their richness, I think a lot of the denatured quality of the experience results from the assumptions the legal system makes about the interests that matter to women, rather than the fact that we don't know if the biting dog in a dog bite case was a poodle or a Scottie. It's not that they're leaving something out, it's what they're leaving out.

What a Case Looks Like

Let's say owner's dog, Fido, allegedly bites victim. Think of yourself as the victim for a moment. You might think the pain of the bite is not the will of God, but the fault of owner, and that the owner should take some of the hurt onto himself, at least by taking some money and giving it to victim. Since owner and victim aren't living in anarchy in some prehistoric world, there is a legal system to decide such claims. Victim resorts to the legal system in this case, the common law trial court of the state of the inci-dent-to try to share his pain with the owner. Victim becomes a plaintiff As a plaintiff, victim files a complaint against owner, who is thereby transformed into a defendant. The complaint tells the story to the court. Defendant then files an answer, denying what defendant thinks isn't true. Think of yourself as a defendant. You might say the dog did not bite the victim, or it wasn't your dog, or assert defenses, like that plaintiff tormented the dog. Or defendant might file a motion to say the facts don't matter the law doesn't compensate for dog bites, and the case should be dismissed.

If the court denies the motion to dismiss, most civil systems allow the parties to nose around in each other's business to establish the facts, a process called "discovery." After discovery, the defendant or the plaintiff may move the court again, this time for summary judgment, saying, we now know the facts plaintiff tortured the dog and, as a legal matter, defendant is not liable for what plaintiff brought on himself, or that plaintiff's conduct doesn't matter, and defendant is still liable. Note that the trial court is deciding a question of law at this point. These decisions usually generate memorandum decisions that in some systems, like the federal system, are collected in the official or regional reporters (and sometimes not), but that are always available in the case file.

If the court decides that discovery has produced an ongoing factual dispute, with defendant continuing to deny that the dog bit the victim or to contend that plaintiff tormented the dog and plaintiff arguing to the contrary (the dog doesn't testify), the court may deny the motion for summary judgment and send the case to a jury or decide the facts itself and decide who should win. The loser can appeal, but except in rare cases, the loser cannot appeal the jury finding that the dog did or did not bite the victim or that plaintiff did or did not torment the dog. The appeals courts don't want to see the witnesses (or the dog) again, so they just leave the facts where the jury found them. Appeal is only from the trial judges' legal decisions, like that it doesn't matter legally whether or not plaintiff tortured the dog. That's why appellate opinions assume facts, include only the facts necessary to present the problem for the law to apply to, and seem oddly removed from life. Despite the abstract quality of appellate opinions, it's interesting to know whether people can be held responsible for what the animals they own do, especially if you might one day represent the dog owner. If this is not interesting to you, I advise you to reconsider your decision to go to law school at all.

Moving from the Cases to the Future

As a technical matter, you don't need to read the dog case to find out if people are liable for their dogs' bites or not. You could just read a summary of existing cases in the form of rules. Such summaries exist; they are called treatises, and they tell you what the law is so far. The law school bookstores and libraries are full of such study aids, in the form of commercial outlines and academic treatises, and some of them are quite helpful to a beginning law student. What the treatises don't teach you is how to put together a picture of the law from the pieces the cases provide; they just hand you the picture already painted. So if you get a legal problem that hasn't been analyzed in any treatise, you're going to have a rough time figuring out what the cases mean. More importantly, the treatises and commercial outlines don't teach you how to try to figure out what the court would do with a case that differed from the existing dog decisions, say a cat case. So the outlines won't help you much when your first client comes in with a ferocious feline. The painful and snail like process of the first-year classes are intended to teach you both those skills: how to piece together a rule from a lot of case summaries and how to predict how a court will act in a future case.

Now that you know what you're going to learn, before you plunge into the crucible of learning these lessons in the traditional first-year curriculum, I'm going to give you a preview of the technique.

Remember our earlier articles, involving the rule that a sixteen-year-old could not conclude a binding contract? There we began by assuming that under the case establishing the rule of eighteen as the age of contract competency, a sixteen- year-old could not make a binding contract. Then we speculated that the court, when confronted with a case of another sixteen- year-old, reached a different result. Since the system requires consistency in the interests of equality and foreseeability, when the same court decided what looked like the same case differently, the court had to make a distinction between the two cases. The court did so, focusing on the undisputed evidence in the second case that the sixteen-year-old misrepresented his age to the seller. From this, we learned that the sameness between the two cases was misleading, because the similarity was limited to the fact of chronological age, where there was another area of fact of interest that was different-deliberate wrongdoing on the part of the party trying to get out of the contract. We learned that if the party trying to get out of the contract deliberately misled the other party, the court would not allow a litigant to profit from his own wrongdoing.

A WOMAN'S GLIDE TO LAW SCHOOL

Recognizing that the rule had two legs-physical age and innocent behavior-we next asked ourselves what the same court would do when confronted with a case that differed from the first case, in that the party was underage but not completely innocent, but that differed from the second case as well, because his act of misrepresentation was not intentional but circumstantial-say, he lived in a dorm normally occupied by people eighteen or above. Would the court treat the different case the same as the sixteen- year-old case, giving chronology primacy in the decision, or would the court treat the different case the same as the intentional misrepresentation case, allowing the misleading circumstances to trump the chronological factor? Any decision requires the court in the third case to treat different cases the same. If the court put the innocent but misplaced sixteen-year-old case into the underage category, it would mean that contract law defined the cate-gory of competent contractors tightly and heavily as a function of chronology. If the court put the sixteen-year-old college dorm case into the intentionally misleading sixteen-year-old category, it would mean that competency to contract is broadly construed, allowing more transactions to take place. Without any act of any legislature, the competency requirements of the law of contract would be changed-or clarified-slightly.

How can a student answer the question about what to do with the dorm-dwelling sixteen-year-old? The underage sixteen-year- old case means we want a role for chronology. The misleading sixteen-year-old case means we don't want formal chronology to exclude any concerns of fairness or specificity regarding particular defendants. Maybe some of the words the court used in one of those cases gives a hint about what it would do with a case that fell in the middle. For instance, maybe the court in the misrepresenting sixteen-year-old case said, "In light of the conscious and strategic behavior of the defendant in intentionally misleading the seller, we find that he is more than mentally competent enough to hold to his contract." In that case, we would know that the court would likely require quite a dose of intentionality before it would suspend the basic eighteen-is-enough rule for contracting. It's important to read the cases carefully to try to find out what the court thinks matters or for direct hints about what the court would do next.

Iiy the First Year Seems Scary

The first-year classes are scary, even when the reported opinions give you some clue, because it's scary to interpret them with two hundred of your classmates staring at you. But they are really scary, because teachers sometimes ask the "next case" question when little or none of the information available in the casebook tells how the new case should be decided. Either of these versions of the "Socratic" method leaves many women feeling completely buffaloed. They're assigned reading. They do the reading. They're asked questions. The answers aren't in the reading, or if they are in the reading, they are far from obvious. They feel the way you probably do right now-all you want to do is know the answer to the dorm-dwelling sixteen-year-old case and move on to learning the next lesson.

Students often don't even have enough breathing room to ask where the answers are supposed to come from. If they can get their heads above water enough to ask the "where" question, they don't have a clue about the answer to where the answers are supposed to come from. Students, and particularly the women students, feel as if they're being asked to play a game with no rules and for which they cannot prepare.

It is not surprising therefore, that Ms. Gentle was "just devastated by the first year" at Fordham. UCLA's first year said that "such a degrading first year completely devastated me, my sense of self was completely ripped away," and state university's star law student Ms. Editor thinks you're "so scarred after first year, all you can do is damage control."
The sad thing is that most women don't start out like that. They come from their college triumphs ready to try to answer the teachers' questions. Minnesota: "The first three weeks of class I raised my hand every day and after a while I felt extremely pretentious and now there are only men who raise their hands in class." And it's not just Minnesota. A group of second- and third- year students from law schools all over the country whom I interviewed at their summer jobs in Phoenix reported almost unanimously that they didn't talk in class themselves and that women generally volunteered and asked questions much less frequently than men did. Fordham's P. "didn't talk much in class." Nor did J.: "I don't speak in class. I feel slightly intimidated." Fordham's J. J. "was not intimidated in college-once I got to law school I stopped." S.G.: "I tracked it. Women speak in first se-mester and not in second semester." Minnesota: "I never talk." Fordham's African American T. put it well: "We [women] are newcomers to the legal profession. As a black person, 1 wouldn't go to a Klan rally looking for support."

How did the first year of law school come to resemble a Klan rally? We have just seen how the first-year curriculum is designed to teach students how to construct a picture of areas of law from a series of common law cases and how to analyze the way a court might approach a new situation. Although this process is unfamiliar to many law students, it's hardly outside the realm of human experience. Philosophy teachers ask their students to reason along until a contradiction is reached; Socrates was a philosopher; that's why it's called the Socratic method. Talmud classes deal with applying ambiguous statutes to new situations. Many of these people had worked as certified public accountants, teachers, actors. As UCLA's Ms. Philosopher told me, "I was a philosophy major and I knew a few people in science and they didn't find the same thing."

And why do women report being silenced while their male classmates are not? Fordham's T: "One or two male gunners challenge [the] professor and have one-to-one with one of our professors." M. J.: "He [the professor] had his guy." At Minnesota: "Who talks?" B.:"The gunners. They raise their hands and say what they feel. I ask myself,'Did they take a public speaking class or did they already go through law school?' . . . There was this guy who by the second or third class just sat in the front and doesn't even raise his hand; it was just him and the professor. The whole need to be the dominant alpha male with the whole truth all the time. It just takes practice to get your guts up ('I'm going to say it; it may be wrong'), [the men] have been doing it since elementary school." Ms. Editor: "Men here walk in with superiority complexes and [they're] unshaken by humiliation in class. They'll get fried at the beginning of class and by the end of class they'll be raising their hands again . . . women feel that you have to earn it, but men feel that they already have it when they walk into class."

When asked where men get the idea from, Editor thinks it's cultural: "The way you feel is a reflection of how you've been trained and you haven't known disadvantage." Or maybe it's Darwinian. Remember another voice from Minnesota: "There's this guy in my class who always talks. One of his male classmates asked him how he knows so much and he answered,'I worked for an attorney and I picked up this stuff.' I [the woman speaking to me] had an opportunity to say the same thing to him and his answer to me is not that he worked with an attorney, but was ' Well, that's just the way my mind works.' "

Like the "natural" lawyer from Minnesota, sometimes the other students act to silence the women. Columbia: "People titter when a woman speaks, younger men, they're awful." "You don't hear the tittering when men speak." Perhaps more destructively, Columbia reports, the men have two categories for their female classmates: "The women are stupid or they are kiss-ass." Male talkers, on the other hand, are "obnoxious." Thus, even smart, high-performing women are categorized as succeeding only by manipulating and pleasing the powerful players in their world ("kiss-ass"), while men get the dignity of being so aggressive as to be "obnoxious." The people in authority "never, nobody, never" rein it in (Columbia). Editor: "There is no restraint against fellow students. In the faculty's defense, some faculty are so careful, but the best couldn't protect the students from their peers."

I don't know why women report finding the game so much harder to play than men do. I'm not a psychologist. Women report that they don't understand the game and that they don't know the answers. Lani Guinier has been gathering stories from her female students at the University of Pennsylvania that reflect an unwillingness to occupy public space in the classes while they reason their way through the material aloud and in front of hundreds of eyes that they perceive to be hostile. They wait until they have a really good answer all worked out in their heads before they raise their hands or they try to build on what others have said rather than competing with them for the prize of suggesting a "better" answer.

As to the nature of the game, if you've been paying close attention to this article, you've already seen that it comes from the nature of the common law and from the problem of statutory interpretation. I can't teach you the answers; it takes three years of law school to even begin the process of learning what all the substantive law is, and even then you need the skills to predict how a new case should come out. I do know that it's a lot easier to play the game if you know where the answers come from and what constitutes a legitimate guess, right or wrong. But, in the end, you will need courage. Until and unless the basic Socratic classroom is restructured to allow students to take their time, to give them some safety net of self-esteem that will encourage them to guess, even if they're wrong, it's going to be a hard game for women, at least as they describe themselves to Lani Guinier. Once you know the game, the source of answers, and the broad scope of reasonable guesses, take your courage and jump in. Even though the cases don't tell you clearly what the court will do next, most of the questions you're being asked have answers, even if the answers are only estimates of the probability that the answer will be a certain way. After we've exhausted the clues in the previous opinions, where should we look for more answers?

ASK YOUR MOTHER

The last time you asked Mother for advice she probably told you never to wear white shoes after Labor Day.
But asking Mother is not as farfetched as it sounds. She's usually giving you her common sense and experience of life, and white shoes do look silly and would get dirty pretty quickly in a northern winter. In the first-year law class, too, you should look for answers from ordinary common sense and experience of life in our particular twentieth-century Western culture. In the dorm- dwelling sixteen-year-old case, our common sense and experience of life and culture tell us that occasionally people under eighteen go to college, and just because you find yourself in a place where older folks reside doesn't make you responsible to tell everyone who comes along that you're an out-of-place prodigy.

The earlier decision said eighteen, and we presume the reason the judge picked eighteen is that the judge wanted the defendant to be as clever as a normal eighteen-year-old to hold him to a contract. The defendant's strategic misleading of the plaintiff in the second case makes it possible-and just-to stick him with the consequences of his obvious mental cleverness. However, if the standard is that each contracting party must be as competent as the average eighteen-year-old to understand the consequences of making a promise in every case, and if, as we know, mental and chronological ages don't coincide perfectly, we might conclude that any defendant in a contract case would have to be evaluated psychologically to see if he had a normal eighteen-year-old capacity to act strategically in his own behalf when contracting. This is not a stupid rule; we wouldn't try to enforce a contract against a dog or a two-year-old.

However, if we adopt this rule, the chronological element would be written out of the law of contracts in this particular jurisdiction, and the first case reference to the age of eighteen would be rendered meaningless. Similar arguments could be applied to any chronological rule-drinking, driving, serving in the Armed Services. At this point, a Socratic teacher's game is to try to force a student to see the weakness in the individual cleverness rule we've just devised by "taking the other side," asking whether we should test everyone in the country for clever self-protectiveness before we sell them a beer regardless of what age they are.

In pursuing this line of questioning, the teacher is trying to force the student to figure out the value of hard-edged objective rules, like chronological age rules, despite the fact that they might work injustice in marginal cases like the strategically misleading sixteen-year-old or, for that matter, the immature eighteen-year- old. As an experienced lawyer and law professor, I know that a good answer to this line of question goes as follows: "We must preserve the chronological test of physical age, because such rules protect people who are mostly too young to tie up with contracts, while allowing commerce to go forward without testing people mostly old enough to tie themselves to contract. This interest is so powerful that the system will not allow you to legally sell stereos to a range of mature sixteen-year-olds but will allow you to sell stereos to a pretty dopey eighteen-year-old. We should make exceptions only in cases of severe injustice, like the sixteen-year-old who showed the merchant an ID he had forged presenting himself as eighteen."

As we will see below, these commitments-to the linkage between competency and promising-are deeply rooted in modern Western political thought. After all, as we already learned, the common law doesn't come from God!

WHAT TO DO WHEN MOM'S NOT AROUND: READ THE LEGAL VERSION OF CLIFFS NOTES

You are unlikely to have these arguments at your fingertips the first few weeks or months of class, but there are other ways to find out what answers generally look like. You can read the commercial course outlines you can buy at the bookstore or the academic treatises on the subject of the day's lesson from the library. You can read the little snippets of cases, called note cases, at the end of the main cases in the casebook. For instance, after the contracts casebook gives you an edited version of the eighteen-year-old decision and the misleading sixteen-year-old decision, the notes will often refer to a case that turns out to be the dorm-dwelling sixteen-year-old case. Go to the library before class and get the note case out of the case reporters (they're all there) and read what the judge said he or she was doing in the dorm-dwelling sixteen-year-old case. That will give you time to think and take some of the element of surprise out of it. Of course, they won't tell you what to do when the professor presses you with the third question and the fourth question (about a home-dwelling sixteen-year-old seen on campus or a seventeen-year-old who shows the merchant a fake driver's license he carried for beer-purchasing purposes by mistake), but the note case may indicate what general problems that particular court thinks it has to address. Why do you think the note cases are there?

The problem is that you're overwhelmed with reading anyway, and one of the best ways to succeed at the first year is to engage in some triage-doing only what you must do and skimming the rest. We're going to review some techniques for figuring out what to do and what to skim shortly. But if you want to go to some classes some of the time with some superior sense of what the answers are, the treatises, outlines, and note cases will point the way.

IF MOM'S NOT HOME, ASK SOCRATES. ARISTOTLE.

KANT, BENTHAM, OR CAROL GILLIGAN

Finally, when all else fails, there's Socrates himself, by which I mean one of the many diverse strands in the 2,500-year span of Western philosophy. We saw that one answer to the contracts problem was the assumption that the clever sixteen-year-old has enough capacity to be held to his promises. Now that we've discussed it, this assumption should seem fairly obvious.

But this assumption that responsibility requires capacity is not a fact of nature like the law of gravity: It's the product of a certain set of social, political, and philosophical beliefs. Even Mom only "knew" it because she's a product of the same Western culture as the legal system. But the current thinking is hardly the only way of thinking. There are many issues that can be resolved in different legitimate ways, regardless of the path the law chooses. The idea that responsibility = capacity is a concept of Western moral theory, largely rooted in the work of eighteenth-century German philosophy, although with some roots in ancient teachings. This philosophy was deeply contested almost from the moment of its emergence, and largely supplanted in the West by the later philosophy of utilitarianism, which emphasized consequences, rather than responsibility. If responsibility = capacity was the only touchstone, we would have to test everyone, not just people under eighteen. The argument for holding eighteen-year-olds responsible without investigating their cleverness is that everyone benefits from the smooth functioning of a market economy, which will produce more stuff if sales and purchases can be executed with a minimum of fuss and investigation. This argument, which is not crazy, is a consequential argument, justified because it achieves the good consequences of an efficient market, which, hopefully, makes everyone a little richer.

Even in the century or so that there have been law schools in America, there have been no fewer than six separate schools of thought providing answers to questions like why we hold people to their contracts: that the law has always said so, that it's just because people bound themselves freely, that the productive economy needs reliable contracts, that it's disrespectful to make false promises, that promising is a social practice required in a society in which people live in diverse and far-flung communities, that we should try to mediate between the two promisors rather than hold them strictly to their word. Indeed, each of these historic schools of legal thought has its adherents in the present-day lav/ school. The amazing thing is that with very few exceptions, each school of thought did and does claim to be the only rational one and often each school claims to be the only "natural" one.

Part of the reason law professors defend each separate monolithic system of legal reasoning is that so few of them are educated in the other disciplines from which answers about the law, just like answers about any aspect of the human condition, come from. If they were educated, they would know that all of their answers have roots somewhere in the larger society and they would know that each of these "natural" and monolithic schools of thought has been challenged and superseded, however briefly, over the centuries of Western thought.

Why does the existence of historically conflicting debatable schools of thought matter to a terrified female first-year student? If responsibility = capacity is the only answer human reason could produce, any other answer you suggest is not just wrong, it's irrational or insane. Professors Suzanna Sherry and Daniel Farber of the Minnesota Law School have published a book recently, Beyond All Reason, suggesting that feminist and gay and critical race scholars who challenge the dominant way of teaching and thinking about law to include perspectives like Carol Gilligan's relational- ism, or who point out that most systems of thought are products of a particular historic time, are "beyond all reason." No wonder women are so fearful of suggesting answers that turn out to be wrong!

What, Me Worry?

The opinions in the prior cases. The note cases, treatises, and commercial outlines. Mom. Socrates and the other schools of philosophical thought. There's enough answer material there for a lifetime. Now that you know that there is often more than one answer and where the answers come from, I'm going to give you a list of techniques to use to overcome any residual hesitation at games in general.

Being an old law professor, let me play the devil's advocate for a moment. One school of thought has it that the lack of female class participation isn't a problem. After all, first-year grades don't usually depend on class participation, but are based on the end of term examination. The guy who was first in my class at Chicago years ago never opened his mouth the first year (or any year).

There are two problems with this answer. First, as Fordham's S. said, "Speaking in class gives you confidence; not speaking loses confidence," and the price of losing confidence is paid "in job interviews" and "in approaching the exam." Our bashful UCLA first year confessed, "Once I got up the courage to ask questions I felt better and my grades went way, way up." J.: "I get more out of my classes because I'm willing to engage in the process." Second, as I've just described, the class experience is designed to teach you something that matters: what the concerns are that will drive a judge to decide a previously undecided case under the common law system. In the words of the inimitable Clara Counselor, "Class participation is like sprinting every day when you're preparing for a twenty-six-mile marathon."

There's another good reason that creeping away from the Socratic class costs women: They don't get to know their professors and they don't get the really good recommendations from them. This is particularly a problem for women at the top of their class or at top law schools, because the next step from law school is a prestigious clerkship, and the professors can open or slam that door for you. Unless you join up in the Federalist Society and win a clerkship based on your political familiarity to the conservative judges, you've got to do it on brains alone.

Several of the women I interviewed had judicial clerkships, and all agreed that letters were the most important, that to get them you had to talk in class and talk to the inaccessible professors. At least one of them, a second-year student at Georgetown, had gotten a good grade on the anonymous exam, but had been refused a letter because the professor did not know her from talking in class and visiting in the office afterward. A student from NYU told a similar story: "I wanted to clerk and didn't know how important it was to my career and therefore I should meet my first-year professors. I didn't realize how connection-oriented things were and how I'd need recommendations. When I came to apply for clerkships, I only knew [a lawyering professor]. My other professors pick names out of a section for recommendations, and a professor I thought should write me a recommendation very much made me feel I was not worthy [even though I got an] A-, [my] best first-year grade." Remember Michele's struggle to get a good letter?

Compare NYU's experiences with Clara Counselor: "I've enjoyed classes and participating and I got good thorough and personal recommendations. Career services advised us to ask professors directly for letters of recommendation and because of my participation, I have a good close relationship with my professors.

One [male professor] is like a personal friend and then I did a research project with another professor (a female). I ended up with three good recommendations and I'm interviewing with [several federal appellate judges]." About a month after I interviewed her, Clara called to tell me she'd landed a prime clerkship post. If your teachers don't know you, or if you're only one of a dozen A students they've seen, they can't-and if they're honest, they won't- recommend you in a way that will get you the job.

How to Succeed in the First-Year Classroom Dialogue

My interviewees offered several strategies.

1. Just do it.

Fordham's A. advises you to suck it up and deal: "Speak in class! Women tend to be more oblique. If you're going to do anything, bite back. [It] helps to read the material and be prepared. JUST DO IT." As we have seen, there are only a few overarching belief systems that provide the legal system with its answers. All you have to do is figure out how they apply in the particular situation you're trying to analyze in class and suggest the answer.

2. See the professors after class.

Some of my interviewees told themselves they felt "like I got more out of one-on-one with a professor." You can ask questions or pursue points after class or in the office. This is certainly better than nothing. (Of course, you're not going to be the only one pursuing this strategy. As Ms. Public Interest says, "I've been cut in front of when trying to talk to a professor after class; interruptions happen all the time.") Many professors now take and respond to E-mail questions, although the "connections" still seem to rest on some more primitive forms of bonding.

3. Pick your spots.

Ms. Editor advises asking upper-class students about the professors and trying to avoid the ones that will leave "scars." Ms. Rights reports the fruits of that strategy: "I'm really affected teacherwise. Crim law with [Mary Lou] Fellows [provides] a good teacher and good subject matter. Here [I] can talk more freely and I'm not inhibited. She's very open and she lets everybody talk. In that class, our opinions count more." Rights compares her criminal law class to "constitutional] law, where it's very arbitrary and all made up. The professor lectures a lot and he's very intimidating. It's tough to raise your hand, because you answer and then he's in your face. He's very smart but he just can't. . . And he's just going to make you look bad." Perhaps coincidentally, another Minnesota woman picked the same teacher as her negative example: "Con law was interesting in the beginning, because I had never taken an American history class and it was the foundation of our system. But when we got into the commerce clause. ... I got a B and I was happy, because I really didn't understand what was going on." By contrast, "In torts, like criminal law, we could speak our minds."

Lani Guinier always makes the point that an abusive teaching system hurts men as well as women, so I asked my Minnesota women how the "gunners" acted in con law, and one said some men spoke less in con law as well. "In con law we're so terrified he's going to make us look bad in front of the other students." When asked how, considering the shared level of fear, the professor achieved this undesirable state of affairs, she described a relatively mainstream Socratic experience: "He'll take the other side and you have to say something about what he just said." By now, you should recognize this process, because I gave you an example of this technique when I described the contracts case above. To repeat, in teaching the cases about competency to contract, a professor expects a student to propose that the case may mean each contracting party must be examined for mental fitness separately. The teacher shows the student that they must always test the validity of their position by posing hypotheticals from the "other side," like how such a system would make it impossible to sell beer. Thus, the dreaded con law teacher at Minnesota is acting right in the mainstream of law teaching in "taking the other side" and asking you "to say something about what he just said." What could be going wrong?

One of my UCLA interviewees spent her first year at the University of California at Berkeley's Boalt Hall School of Law, which she described as a place where "law is taught by people who think it's a hazing ritual to teach," and she and a lot of the women at UCLA had picked up the fact that torture is not a necessary aspect of teaching law. Here's one of her UCLA classmates: "I was a law and public policy major and I was used to law courses [where] they just throw you in," concluding that her undergraduate experience had not taught her to be silent or afraid. It is true that the external understandings that supply the students with the answers in con law have a lot to do specifically with American history and politics, which is hard for students to dream up unless they've had some college classes in American constitutional history.

However, a good teacher should be able to help them through this process even in con law without terrifying the students, by asking them to address small problems at the edges of their positions or even coaching them a little bit as they start to think along the right lines.

Minnesota actually unwittingly told me where her con law teacher went astray. "He makes you feel you should be able to get it like [snaps fingers]." Another interviewee made a similar point about another school: "One professor will let the men go on and on but he'll cut me off. I need a second or two to gather my thoughts, but I have to raise my hand before I'm ready." But, another added, "the longer you wait, the more you think you have to be precise." A law student with a master's degree described her experience by detailing the difference between law school and graduate school: "[In grad school], if you raise your hand, it's over. Here they keep coming back to you until they get you to a question that you can't answer . . . even if it takes them five questions, they are going to leave you feeling like a piece of shit."

So it's not the questions. Don't be afraid of the questions. It's the lack of "openness." It's not letting the students feel that their "opinions count." It's the failure to recognize that dragging some sort of answer from the ether, when the answers are not in the reading, takes most people some time. It's asking the fifth question in a way that makes the student feel like a piece of shit, instead of letting them know they're great for having made four successful moves in a very tough game.

One solution is to stay away from the teachers who do these things, rather than adopting an across-the-board policy of silence. Although you can't pick your first-year teachers, the usual mixture of four courses will turn up some people like the con law teacher, but also some Mary Lou Fellowses. Practice your speaking skills with them.

4. Make alliances.

Many of the students I interviewed recommended working with other students throughout the first year or at the end near finals. A good example comes from the University of Arizona and involves the outlines of the law that students produce for themselves as study aids. The Arizona women knew that the first-year men networked with the older students and got their outlines, and the women did not. So they started their own women's caucus, open to everyone, to change the outline exchange system. Pretty soon, the open outline exchange replaced the covert one. An ASU student participated in a tutoring program for disadvantaged students and said she thought there were ways to learn how to succeed in the first year, and she wished she had learned them.

Nothing works as well as a success network. Share notes to save each other time, study together, using the case notes to throw hypotheticals like the dorm-dwelling sixteen-year-old example at one another, go over old exams together. If you are fearful of speaking in class, have your study group run a model class once a week. Let one person play teacher (you never learn anything as thoroughly as you do in preparing to teach it) and grill the other study group members as hard as you can. The Mills College conference on Women and Legal Education turned up a simple technique for circumventing an abusive teacher who wouldn't let female students finish their sentences or ask follow-up questions in class. Get one buddy, then have them raise their hand after you've been ignored or cut off and say, "I was wondering what Linda had to say. Could she tell us what she was about to say?" or "I think Linda was going to ask a question I've been wondering about, too. What was it you were asking, Linda?" The coeditors of the University of Chicago Law Review in 1998-99 are two women best friends. When interviewed, they said their friendship was the most important factor in getting them through law school.

If your school has an academic support program, visit it early in the first semester and get all the tips about different ways to learn: orally, written, alone, in concert, by doing, by reading. Then, if you feel one way is not working for you, you can try other paths before you pay the price with less good first-year grades.

5. Just don't do it.

Some of my California group recommended bypassing the law school procedure altogether. "Don't think about the law," one recommended, "just memorize the doctrine from hornbooks [premade treatises] and [the commercial] Emmanuel law outline." Others heavily recommended that you "make sure you have a life out of law school, like extracurricular activities." J.: "Make sure law school is not your whole life. Take weekends off." L.: "Give yourself rewards."

These sound like ways of numbing yourself while you pass through a painful experience you don't understand. I vastly prefer to have you understand what's going on, be able to do it for what it's worth, and recognize the bullshit and especially the stuff that's designed to hit a female target, like the "kiss-ass or stupid" dichotomy or the "how fast can you think with a hundred pairs of eyes trained on you." Take a deep breath, take your time, don't be afraid to express your thinking as it evolves around the problem the professor has just posed, and don't be afraid to be wrong. Winston Churchill was dismissed from the British government several times before he saved the Western world from the Nazis.

6. Seek out women professors.

One Minnesota student suggested, "The women professors try to help you participate: 'That's right, you're on the right track.' They take what you give them and do something with it instead of squashing it." The numbers show that, statistically speaking, women are more likely to do well in schools with a larger number of women faculty. The correlation is not exact, and there are many causal explanations. Barbara Black, the former Columbia dean, who brought many feminist theorists to that prestigious law school, thinks there is a role for women in the classroom: "I believe that it's very important to have women in the classroom. The One Ls [first-year law students] have at least one woman teacher. Women in the classroom affect both the men and the women."

In my interviews, the strategy of seeking out female professors got mixed reviews. A student from Arizona State complained that "the woman who taught feminist law was always running to a plane and didn't have time to talk to me, either." The Minnesota group uniformly rejected the idea that any woman professor, regardless of politics, was better than none, and it is a fact that one of their women faculty, Suzanna Sherry, has been a vociferous defender of the existing law school system and method on the grounds that "there are unrepentant bigots everywhere, and [no one has shown] the legal profession has any more than its share." Fordham's female professor Maxine ("Marc") Arkin was quoted a year ago in an article in a story about how the evolving persecution complex in many female students can make teaching difficult, asserting, "If you call on them, you're imposing hierarchy; if you don't call on them, you're overlooking them. Either way, they're upset."

So unless faculty are in the habit of talking to reporters, it's hard to know whether they'll be a better bet for female students just because they themselves are female. Despite the presence of unsympathetic women, however, many of the women felt that having women faculty was more important for forcing their male classmates to confront a woman in power than for its direct effect on the female students. As Ms. Interest said, "I think there should be more women faculty, because the men need to see more women in authority, more than women law students."

Students and faculty alike report that a lot of male students and even some female students treat their female professors differently, especially if they try to break the mold of the strict Socratic dialogue leading to resolution of uncertainty in future cases. "I had two women professors the first year; one led a small discussion- oriented class with no memorization and the students were constantly going to her office and complaining. They can't live with uncertainty. The other woman professor was very pedagogically conservative." Regardless of gender, "If the teacher lacks authority or seems uncertain, the students hate it and it falls heavier on the women teachers."

Mary Lou Fellows believes that "the existence of a significant number of women faculty makes no difference at all. . . . There is a struggle to get each section of the first-year class to have one woman teacher and there is no question that that lack has a dramatic effect on both women and men students who feel completely free to challenge everything. It's a very hostile class. When you're trying to teach them critical thinking, what passes at Minnesota Law School for critical thinking is the notion of law as an autonomous discipline with a narrow range of answers." By identifying the damage done by limiting the range of legitimate answers, Fellows is a living rebuttal of the argument that having a woman teacher makes no difference. Remember how liberating it was to realize that even a wrong answer to the underage contract case is not crazy?

7. Know that law is not an autonomous discipline.

In looking at the competency = responsibility problem of the contracts case, we've seen that law is not an "autonomous discipline" but the product of historical, philosophical, and social forces at any given time. The "law as an autonomous discipline" crowd try to take the current set of answers these forces have embedded in the law and make them the universal rational answers to any question a legal system may ask. This may sound like an obscure academic debate that has nothing to do with your desire to get your degree and start representing the Widget Company as a $90,000-a-year associate at a big secure law firm. It doesn't even sound like something Legal Aid lawyers need to know. Maybe it's a dumb idea, but it's not obvious that this should be any harder on women than on male law students.

In fact, if you care about getting through the first year of law school with your ego intact, you'd better listen up. The notion of law as an autonomous discipline is one of the most dangerous barriers to women succeeding in law school. Remember Fordham's tough-minded African American student I call T., who compared law school to a Klan meeting? Insofar as women have concerns that are different from men's concerns, the centuries-old mixture of philosophy and history that actually provides the content of American law often doesn't recognize women's concerns. Rape is just misunderstanding no for yes; marital agreements are just like contracts to buy widgets; laws against sexual harassment interfere with the perfect market. The participants in the Mills College conference on legal education recommended time and again that materials outside law be brought into the curriculum-film, literature. I'm guessing that the pressure for outside materials would be a lot less if the ordinary case law had been built up by a society that recognized women as people and citizens with just claims to be treated properly by their cultures.

This is not the fault of the dead white males who missed women's humanity for centuries. Women are latecomers. The fault lies in circling the wagons of "right" answers derived from the historical, philosophical, and social theories of the past just at the moment before women started making claims and then calling the resulting discipline "autonomous" or "reason" or "natural."

The students at Minnesota-and at the University of Chicago, too, as it happens-reported that when the teacher tried to dig beneath the details of application of the law as a freestanding natural system to show the role of rape law in redressing the natural physical inequality between males and females, the students clamored for "black letter law" and characterized the discussions of underlying theory as "irrelevant" to their ambitions to become attorneys for Widgets, Inc. This refusal to look at what larger purpose the law serves, rather than just what the rules are, is interestingly strange, because legal education is filled with such theory. We resort to assumptions about human values and behavior every time we confront a common law case-to reprise our earlier discussion, how else do we know why we don't tag a sixteen-year- old with responsibility for his contracts? We discuss issues of political and economic importance when we decide what we think about tort reform or the flat tax or the exclusion of confessions coerced by the police or the problem of antidemocratic constitutions.

So it can't be that the theory of what the law of rape can legitimately prohibit is different from the theory of tort reform just because it's theory. The difference between discussions of rape theory and discussions of tort theory is that in most law school classrooms, the interests of the middle class or aspiring middle- class propertied law students are in most areas of law essentially the same regardless of gender. No one wants to be murdered, and no one with any property wants to be robbed or have their contracts broken, etc. However, women being on the whole smaller, physically weaker, and vulnerable to rape and vulnerable in childbirth and nursing, as well as socially poorer and less powerful, also have many interests in the legal system that are different from mens. When it comes to the law of rape, then, the unadorned self-interest of the males and females are not the same. They are different. Not only are they different, they're in conflict.

The generic male, whether he is inclined to rape or not, as most men are not, has little interest in a very protective law of rape and an interest in a narrow law that doesn't reach ambiguous cases like the drunks. The generic female, whether she will ever be a rape victim or not, and most are not, has an interest in living in a world where rape is highly restrained and where the marginal actors are punished to protect against hard-core wrongdoing.

Worse, still, the handful of "legitimate" theories the law school establishment allows seems to justify women's exclusion from the benefits of the law on "autonomous," "natural," and "rational" grounds. On the subject of rape, for example, a lot of traditional Western political theory that created the various legal doctrines would have it that the natural order of things is that people have as much range of action as they wish. In systems that privilege individual free action, the burden of proof is always on the side of those who try to stop an individual from doing what he wants to do. If this is the natural order, then only the most compelling reasons or only fully consensual transactions, like written contracts they sign of their own free will, can justify restraining anyone from doing anything he wants to. (This is why ensuring capacity to contract is so important to justify enforcement in our contract example.)

In rape law, this would mean that only the use of levels of force that threaten the whole social order would violate the norms of freedom for the strong and only a resounding "NO!" can justify a woman in invoking the criminal law against a sexual attacker. Otherwise, free action by the strong is unjustifiably restrained. Under this strict standard, silence is considered nonresistance, so silence means yes. More important, for our purposes, the Antioch College rules construing silence as resistance and requiring an explicit consent to sex (silence means no) are not just bad policy, they're irrational and a fit subject for mockery.

Similarly, the theoretical tilt toward free action has it that "Better ten thousand guilty men go free than one innocent one be wrongfully convicted." If this is the natural order, then only the highest standards of proof can convict a rapist. Rape shield laws directed at enabling a sexually active woman to successfully pursue a rape charge by excluding evidence of her other, desired sexual experiences are violations of the core values of a free society and the natural order. Likewise, the admissibility of prior rapes, which are designed to make it easier to prove rape, violate core political norms favoring the defendant. Here's what happens when these assumptions meet the subject of rape. Ms. Rights: "We had a very intense class in rape with Professor Fellows ... it was mainstream dominant men versus non-mainstream dominant view." LH: "What is the mainstream dominant view these days?" Rights: "Why should a male be burdened with proving that it isn't rape? Why should a male have to restrain himself?"

The male students in Fellows's class, Rights reported, just kept coming up with ever more fanciful hypotheticals to prove that the standard of requiring men to restrain themselves was silly and unworkable. "What if he was drunk?" "What if they were both drunk?" "What if she were a two hundred pound lady wrestler?" And so on.

The first thing to note here is that there will always be hard cases at the margins of any rule. We saw that with our age and contract example. The students were really arguing about whether the rule should be drawn closer to the men's interests in free action or closer to the women's interest in security.

Now there are answers to why a people should have to restrain themselves, even in marginal cases. For one thing, it is the function of the law to cause people to restrain themselves. We continue to rein in the strong with laws against murder, because no one wants to live in a world where they're afraid to go to sleep. In other words, if anything is irrational in a legal class, the presumption of free action by the strong is irrational! These insights were adequate to support the laws against murder, before women came to the legal system with their particular claims for protection, such as for protection against rape.

The reason these age-old insights seem so remote to a discussion of rape is that men are fundamentally not afraid of women when it comes to rape. So some other reason to rein in the strong besides the universal fear of murder must come into play. Indeed, the skepticism about "restraining yourself" if you're not afraid of the other person would actually argue against any prohibition on rape at all. For centuries, the prohibitions against rape were justified on the same grounds as murder-to avoid provoking the fury and retribution not of weak women but of the men whose females had been violated and whose children's legitimacy had been called into question. Once women began to be considered independent of their fathers' and husbands' interest in their virginity, however, that reason disappeared. Some theory relating to respect for the personhood of the individual female had to be found if the rape law, which manifestly reins in the free action of the strong, was to continue to be justified. The presumption that only free action is legitimate makes that a hard task. If such a presumption is natural, or if it is the only rational assumption in a world of freestanding legal doctrine, there is no justification for anything but the most minimal prohibition of rape.

But contrary to the assumption of law as an autonomous discipline, there are lots of justifications for a protective rape law. Just to cite four strands of theory, treating some people with concern and respect regardless of their physical strength has roots all the way back to Socrates, who made a pretty convincing argument that it was better for the soul to suffer evil than to do evil. Ancient Judaism used men's responsibility not to rape their wives as a measure of their entitlement to God's mercy. Treating all other people as if they were entitled to concern and respect by virtue of their personhood goes back at least to early Christianity and is a big part of the reason we require someone's capable consent before we hold him to a contract. In terms of consequences, one can argue that the pain caused by an unwanted sexual act exceeds the pain of the lost opportunity for a sex act that a rigorous rape law discourages.

A protective rape law, like the one Mary Lou Fellows's crim law class was discussing, invokes these theories about justice and per- sonhood to draw the line closer to the claims of the weak. Maybe there are reasons to resist the development of protective rape law. But those reasons do not occupy the whole world of reason. Every argument for a protective rape law is not "against all reason." It's sad to think that in a law school classroom the argument that the strong must restrain themselves because the weak are human persons, too, would be "out of the mainstream." But, as Fordham's T. reminds us, "Women are newcomers to the legal profession."

There are similar answers to why it may not be better to let ten thousand guilty men go free, etc. But the students in Professor Fellows's criminal law class didn't want to discuss the underlying theory. All they wanted to do was show that any ambitiously protective law of rape was ridiculous because it was inconsistent with the received wisdom about free action and the fear of the state. It's sad to think that in a legal classroom, of all places, the assumptions of where the power lies are not allowed to be examined.

Every school I interviewed at reported some such flare-up over the subject of rape, which the women students experienced as horrifying. The more demanding the law of rape is of male self-restraint, the more power is shifted from the stronger males to the weaker females. It's scary for women to confront the fact that they are members of a group that needs something from the more powerful men in their world, namely, consent to sexual self-restraint. Women hate head-on confrontation with men, and no wonder. And it's galling for men raised to believe in the constitutive political sanctity of the right of the strong individual to be forced by a formally empowered female teacher to confront the claims of their weaker classmates. Even though they would never force themselves on an unwilling female, suddenly the sexual rights of the drunken frat boy look terribly important to them. And nothing makes the frat boy easier to defend than the assumption that his behavior is the only reasonable way to run a legal system.

You may not enjoy being confronted head-on with the desire of the stronger players in your world to act as they please when you encounter it in your law school education. But at least you know now that there's plenty of theory on your side. Even in law school.

"Tell students that often there is no answer" (UCLA).

Let's assume you've come to the answer that the lying sixteen- year-old can be held to his contract, but the dorm-dwelling sixteen-year-old cannot. You've guessed that dorm dwelling is innocent enough, so that the preference for hard-and-fast standards for capacity leaves the youngster without responsibility. The professor then asks you about a freshman who hangs out at an upper-class dorm when he knows the man who sells computers on credit is coming by or the youngster who doesn't say anything when the salesperson says, "I assume you're old enough to have a credit record." The purpose of this exercise should not be to make you look foolish. The purpose should be to teach you that at some point almost any legal line is going to be arbitrary. (This is also the answer to the more fanciful hypotheticals the students were pressing on Professor Fellows.) In philosophy, we ask, With the loss of which individual half does a man "go bald"?, to illustrate that there are always going to be cases indistinguishable in principle at the edge of any rule. When you get that far down the questioning, it's legitimate to say just that. But notice that before you "yield" in that way, you've helped the teacher and the class sort out a lot of important things about contracting: that we require capacity, that chronological age is a marker but not a complete answer, that we prefer hard lines, that we're willing to make exceptions in cases of gross injustice. You're a star! Now say, "When does a man go bald?" and sit down.