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Crimson Tide

How Harvard beat Yale
in the Democratic Party

Noam Scheiber, 
The New Republic 
Published: Wednesday, February 04, 2009

 

If a transition tells you something about a president's style--if not his chances of success--then Bill Clinton and Barack Obama could hardly be more different. Clinton was often at his worst as president-elect. Key rules were overlooked (Hillary spent weeks flirting with a cabinet job before learning that anti-nepotism laws precluded it) and key setbacks were self-inflicted (gays-in-the-military shot up Clinton's to-do list after an offhand comment to Andrea Mitchell). Clinton spent so much time assembling his cabinet that he only had three weeks to hire senior White House staff. All in all, the process betrayed a stunning disregard for Washington protocol. Which was how the Clintons wanted it. Hillary had decreed that no Washington insider would get a job that could be filled by a friend or loyalist.

Obama's transition was a contrast in almost every respect. His political decisions were free of sentiment or ego (who else would grant Joe Lieberman a reprieve?). His tactical maneuvering bespoke a reverence for Washington institutions (which is how GOP moderates like Olympia Snowe found themselves bathed in presidential attention). He rolled out his team with brutal efficiency and stocked it with Beltway know-how. Even his public pronouncements were strikingly spare. In December of 1992, Clinton staged a two-day, 20-hour economic summit, every minute of it broadcast on C-SPAN. In late 2008, Obama briefly fielded questions after closed-door meetings while his brain trust looked on sternly.

What accounts for these differences? There's no doubt a characterological component--Obama's self-control is nearly inhuman, Clinton's is famously lacking. But part of the explanation also lies in the elite institutions that socialized them--namely Harvard and Yale, their respective law schools. The two schools stand on opposite sides of a cultural chasm in the academic world. Even more than that, they stand for different theories of governing.

 

Lanny Davis, the former Clinton White House aide and law school classmate of Bill and Hillary, likes to tell a story about his first day of property class at Yale. The professor, Charles Reich, asked students to write down the words "fee simple" and briefly explained the concept. Then, after a long pause, he instructed the students to drop their pens. "OK everybody, this is the last time you'll ever hear me talk about 'fee simple' or anything else that Harvard Law School teaches. The new title for this course is, 'The intellectual, moral, ethical, and political implications of property ownership in America.'"

Reich was an extreme case, to be sure. He'd authored the counterculture manifesto The Greening of America and had a pedagogical style to match his shaggy hair and ratty jeans. But, at Yale, he was not such an outlier. Whereas Harvard prided itself on instilling discipline, Yale believed its mission was to unlock students' innate brilliance in an atmosphere of freedom, intimacy, and intellectual ferment. Harvard was, in certain respects, a three-year hazing ritual. Yale was more like a three-year Renaissance Weekend. Its graduates had been reassured of their eclat from the moment they set foot on campus.

Perhaps not surprisingly, Yale's heterodox style was what attracted Clinton in the first place. As biographer David Maraniss has observed, Clinton hewed to two criteria in selecting a law school: that it be prestigious, and that it let him get a jump on his political career. "Nowhere could this be done more surely than at Yale," writes Maraniss. Clinton spent his first two-and-a-half months in law school more or less out of law school, working as an operative for a liberal U.S. Senate candidate. When the campaign ended, he threw himself at the mercy of the first sympathetic classmate he could find, a woman named Nancy Bekavac. Maraniss recounts the exchange:

 

"Hi, I'm Bill Clinton. Can I borrow your notes?"

"For what?"

"For everything."

"Are you in our class?"

"Yes, ma'am."

"Well, where the hell've you been? We've been here since September!"

Bekavac soon relented--partly because of Clinton's charm, partly because Clinton was hardly unique. One classmate spent all three years working full-time for the mayor's office in New York City. Another was so burnt out by political work when he got to Yale that it was a year and a half before he showed up to class.

By the time Clinton showed up himself, he would have found it a less than harrowing experience. Harvard students spent their first year in massive lecture halls puzzling over obscure court decisions. Yalies spent much of their first year in cozy seminar rooms debating the Western world's prevailing legal institutions. (Yale's class of roughly 200 was about one-third the typical Harvard class.) The future Yale dean, Guido Calabresi, ran his torts course as an inquiry into the public policy benefits of risk-spreading. The criminal-law professor Joe Goldstein was constantly prodding his students for more rational ways to punish violent offenders.

And that's when the students actually took law classes. The law school awarded credit for any graduate-level course in the entire university. The actor and commentator Ben Stein, a fellow alumnus, took a course from The New Republic's own Stanley Kauffmann--a giant of film criticism, but rather a dilettante on the law of contracts.

Though Yale had its share of more orthodox faculty, students tended to resist them, often with impunity. Stein recalls in a 1996 Washingtonian article how two classmates literally blew smoke--from cigars--at a criminal-law professor they found tedious. Stein had his own showdown with an antitrust professor named Gordon Spivack. Spivack employed the traditional Socratic approach, meaning he'd randomly select a student to state the facts of a case, then answer a series of questions intended to highlight the underlying legal issues (and, many students felt, to tie them in knots). When Stein's turn came, he protested that he'd had enough of Spivack's "hiding the ball and the whole Socratic method." Spivack demanded his name, to which he replied, "Stein, but you can call me Benjy." For good measure, he threatened to disrobe if Spivack persisted. Stein traces his selection as class valedictorian (an honor bestowed by popular vote) to this rebellion.

Spivack later decamped for a white-shoe firm in Manhattan. The traditionalists who stayed reconciled themselves to this brave new world of student entitlement. In the fall of 1968, the students held a referendum on the school's grading system, which they rejected by the Castro-esque margin of 15 to one. (One typical refrain: "Abolish Grades! Remember--Richard Nixon was third in his class at Duke Law School!") The faculty dutifully obliged, voting over winter break to make first-semester courses pass/fail. When students of J. William Moore, the brilliant but fastidious expert on civil procedure, returned for their second semester, they expected feedback on their exams. Instead, Moore simply turned to the class and shrugged, "This is a tough country club to get into. But, once you're in, you're in. You all passed."

As president, Clinton was everything you'd want from a good Yale Law student: creative, deep-thinking, engrossed by public policy. But his White House was chaotic and its ambition often outstripped its knowledge (think health care reform). At Yale, Clinton once began a corporate law exam half an hour late because it was open book and he didn't have the text. And still he did shockingly well on it. It's not a bad metaphor for his entire administration.

The only hint as to why Obama chose Harvard over other elite law schools is a small biographical detail: When applying, Obama reportedly declined to identify his race so as not to gain any advantage. One imagines the twentysomething Obama hungry to test himself with the most epic challenge possible. It's certainly the way he conducted himself upon enrolling. Biographer David Mendell notes that Obama quickly claimed a place in the law school library and planted himself there each day for hours.

Some of the most vivid images of Harvard Law School come care of Scott Turow, the legal-thriller writer who attended in the mid-1970s and published a memoir of his first year called One L. The Harvard that Turow describes is a forbidding and savagely competitive place. It features huge, anonymous classes (the Socratic method having been invented there, allegedly as a way to turn a profit by teaching en masse); students who hoard precious volumes in the library; professors who brave slush and snow outdoors rather than share a tunnel with students. Exam time is its own unique horror show--a flurry of outline-making and book-devouring in which weeks-long, 16-hour-per-day regimens are typical.

Turow got an inkling of what awaited on his first day of his contracts class, when the much-feared Professor Perini set his sights on a student named Karlin. (Turow uses pseudonyms, but his account is nonfictional.) To Turow's surprise, Karlin held his own while Perini spewed forth a series of trick questions, stopping only to make the odd joke or menacing gesture. But Turow's heart sank when someone said Karlin had spent the summer reading Perini's "hornbook"--a dense supplementary volume.

Harvard was by all accounts a less stodgy and more humane place when Obama arrived some 15 years later. Beginning in the late '70s, the faculty had undergone a decade-long evolution that made it a hotbed of "Critical Legal Studies" (CLS). The "Crits" applied a kind of Marxist analysis to the law, arguing that seemingly neutral rules had been erected by elites to preserve their social and economic privileges. The students, too, had become much more activist-minded. They'd occupy the dean's office with gleeful regularity to protest, say, the lack of faculty diversity. Even the curriculum had begun to change. For decades, each first-year class had been divided into four "sections" of 130 to 140 students, who shared a single set of courses and professors. In the '80s, Harvard made one of the sections "experimental," which helped students see connections between subject matters and exposed them to other perspectives, such as economic analysis of the law.

And yet Harvard hadn't changed that much. The competition remained intense. The sections were still enormous and, for the most part, highly impersonal. (One day in Professor Kathleen Sullivan's class, a student took an absent classmate's seat upon finding a large coffee dispenser in his own chair. Sullivan, who prided herself on memorizing her classroom roster, promptly whiffed on the displaced student's name.) Many professors still faithfully practiced the Socratic method. In a long GQ feature from the early '90s, John Sedgwick described how some campus radicals would tone down their answering-machine greetings and class up their attire when the big corporate firms came to town. "L.A. Law"--was there a more bourgeois show on television?--was wildly popular among students, who'd gather to watch and point out plot holes.

As it happened, Obama's first-year section was the most conventionally taught of the bunch. "We felt as if we had the hardest, worst, most inflexible section," says a former classmate, David Dante Troutt. "We felt like a control group in the presence of folks receiving the revolutionary new drug." This atmosphere sometimes brought out the worst in the class: Contracts professor Ian Macneil once arranged a meeting to discuss a line in his textbook some had complained was sexist; the students spent most of the hour pumping him for exam information.

It's not that Obama's professors discouraged policy discussions; they just focused them tightly around the legal issues at hand. Suppose you'd sued a contractor for shoddy repair work, then amended your complaint to cover more repairs. A relevant discussion might be whether the new complaint runs afoul of the statute of limitations--since it was filed later--or why such statutes even exist. An irrelevant consideration, jokes David Shapiro, Obama's well-liked civil procedure professor, is "whether the massacre of Armenians in Turkey was a genocide." Early on, he says, students "want to bring in their own life experiences in ways that are in themselves interesting, but which don't have much to do with what we're talking about." Shapiro's job was to rid them of that habit. This is the kind of thing people mean when they say "thinking like a lawyer."

The orthodoxy of Obama's first year coincided with a decline in the Crits' influence after a bruising tenure battle the previous summer. Obama would have shed few tears. A classmate remembers him constantly pleading with Roberto Unger, a CLS ringleader who taught an upper-level course, to "bring the theorizing back down to earth." In The Audacity of Hope, Obama recalls worrying that Harvard "represented the abandonment of my youthful ideals, a concession to the hard realities of money and power--the world as it is rather than the world as it should be." But a part of him believed accepting these realities was central to making progress.

 

Obama excelled at Harvard, graduating magna cum laude and, of course, making law review along the way. At Yale, law review conferred little prestige. Anyone interested in joining could submit a short article. (The process isn't much more intense today.) At Harvard, hundreds competed for a few dozen spots on the basis of grades and a several-day-long exam covering legal writing, editing, and style rules.

The law review attracted students of all ideological stripes. But, by disposition, they were invariably the most square. One testament to this was a law-review institution known as the "outline closet," which housed detailed notes on almost every class. The outlines were believed to possess mystical grade-boosting powers and were passed down from one generation to the next. It was, of course, forbidden to share them with the law school lumpenproletariat. (The Crits may not have been right in their analysis of the law, but they were clearly onto something about law review.)

The review elected its president by way of a paleo-reality show, in which the full membership eliminated candidates through several rounds of voting until only the winner remained. The process could easily run ten or twelve hours and was rife with intrigue. The other finalist Obama's year was a fellow liberal named David Goldberg. As the now familiar story goes, the conservative faction threw its support behind Obama, whom they thought would at least hear them out.

If the law review was a college of cardinals within the law school, then its president was the pope. And overseeing him was a secular god named Erwin Griswold. Griswold had served as dean of the law school for 20 years beginning in the 1940s. He'd taken particular interest in the law review, and his influence over the institution far outlived his deanship. Until his death in 1994, Griswold expected the president to send him the new issue by the tenth of each month with a letter distilling its contents. Within a few days, the dean would send back a detailed critique--a so-called "Grizzer-gram"--opining on the merits of the articles. The president was to take scrupulous note of Griswold's likes and dislikes.

Succeeding at these tasks offered great rewards. A president who earned the Grizzer's imprimatur would be a lock for a Supreme Court clerkship. But the stress this placed on generations of law-review presidents could be oppressive. (Dan Kahan, who ran the law review two years before Obama, actually developed an ulcer.) Many would go to extravagant lengths to appease their patron. If, for example, an issue was running late, they might construct a special issue (circulation: one), which they'd send Griswold while finishing the real thing.

Obama was hardly a law-review zealot. Unlike his colleagues, he maintained a life outside Gannett House, the review's iconic building. But he had an abiding respect for law-review custom. He once spent hours adjudicating a vicious internal debate over whether a colleague could publish in a rival journal, a violation of protocol. Month in and month out, he'd pen a letter to Griswold, then have Griswold's response posted in the law review's main room.

But what Obama's law-review presidency mostly demonstrates is that he'd absorbed the dispassionate, conservative, relentlessly logical mode of analysis a Harvard legal education was meant to convey--and which was the hallmark of his mostly tidy transition. Midway through that year, a colleague named Scott Siff was struggling through what seemed like his twenty-seventh draft of an article on international law. Siff felt each successive edit had made the piece more left-wing, until it had become a screed about how federal courts were trampling human rights. Finally Obama weighed in and politely suggested it had gone off the rails. "Barack pushed it way back to center," Siff recalls. "He said, 'You've gone so far left you're not going to be credible. ... You have to approach it in a more balanced way--in a way that doesn't alienate everyone.'"

Noam Scheiber is a senior editor of The New Republic.