My Archibald Cox Story

Elsewhere on this blog Professor Ed Fallone has shared the story of his receiving a B in Constitutional Law from legendary law professor Archibald Cox.  I have my own Archibald Cox story.

I was Archibald Cox’s teaching assistant in the fall of 1980 for a course in the Harvard Government Department entitled “The Supreme Court and the Constitution.”  The course was taken by about 200 undergraduates who hung on every word uttered by this legendary professor.  This was not too long before Cox’s advanced age and Harvard’s then rigid mandatory retirement policy forced the former Watergate special prosecutor to the other side of the Charles River where he encountered the young Ed Fallone.

From Cox’s point of view, one of the best things about his course in the Government Department was that he did not have to grade the exams and papers as he did in his law school courses.  Graduate students like myself and a few hand-picked Harvard Law students took care of that chore.

Nevertheless, Professor Cox was concerned that grading be fair and consistent, so the four teaching assistants met with him regularly to discuss the grading of each assignment.  Mostly Professor Cox just told us “war” stories, like the one from a Con Law class many years earlier.

There were three essay questions on his exam that particular term.  While grading the exams, Cox was suddenly stunned by one of the bluebooks.  The student’s answer to the first of Cox’s question was clearly the best answer that Cox had ever encountered on any law school exam.  Beautifully written, keenly analytical, and forcefully argued, Cox told us that he realized immediately that this was the product of an extraordinary intelligence and that he was confident that most of his colleagues on the Harvard Law faculty could not write such an answer, even to one of their own questions.

He then read the second essay, and it was even better than the first.  Fascinated, he turned to the third essay but found only the words “Out of time” scrawled across the last page of the bluebook.

How to grade such an exam was Cox’s dilemma.  The instructions to the exam clearly stated that each question would be weighted equally.  The first two essays were clearly A+  answers, but how could the third be anything other than an F?  Arithmetically speaking, two A+’s and an F averaged out to a B-.  Yet how could an exam like this be a  B- exam?  It obviously bore no similarity whatsoever to any of the other mediocre exams that were destined to be marked B-.

Cox told us that he agonized over this decision for several days, and just as submitted his final grades, he decided to give the student an A on the theory that the work showed an exceptional understanding of constitutional law, if not the most advanced time-management skills.

With a little prodding, Prof. Cox revealed to us that the student was Elliot Richardson, who of course later became a close friend of Cox and served as Attorney General of the United States in the Nixon Administration.  Richardson is best remembered for his refusal to fire Archibald Cox as Watergate special prosecutor when requested to do so by President Nixon, a decision that ultimately cost both Cox and Richardson their jobs, but which made both men national heroes.

During my own career as a law professor, I have always tried to follow Cox’s insight while grading.  I have tried not to let my grades be narrowly dictated by a mathematical formula that fails to take into account unconventional forms of insight and brilliance. Sometimes the whole really is greater than the sum of its parts.

I have also come to realize that Cox’s story is a perfect metaphor for the career of Elliot Richardson.  Richardson was a young Harvard graduate who performed heroically in World War II and then returned to Harvard Law School, where he was selected as President of the Harvard Law Review and later clerked for the legendary federal judge Learned Hand and for United States Supreme Court Justice Felix Frankfurter. He was shortly thereafter elected as Lieutenant Governor and Attorney General of Massachusetts as a liberal Republican, and he held three different cabinet offices in the Nixon Administration.  However, many of his admirers expected Richardson to someday be President of the United States, or at least a United States Senator or a Governor, but he never attained the highest realm of public office.

In 1984, a few years after Cox told us his story, Richardson seemed poised to enter the United States Senate to replace the retiring Paul Tsongas, but it was not to be.  He stumbled badly in the campaign and lost the Massachusetts Republican primary to a little known businessman named Ray Shamie, and the Senate seat went to John Kerry, who holds it to this day.  Moreover, it is hard to point to anything as the legacy of the public career of Elliot Richardson, other than his Watergate heroics, which really just consisted of resigning from office.

In the world of politics, as on his law school Con Law exam, Elliot Richardson had a brilliant start, but he never got to the third question.

For the sake of full disclosure, my Con Law professor at the University of Virginia was John Jeffries, and I received the grade of A-.

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The Problem with Class Discussions

gordonhylton1In her recent post, “Is Anybody Out There,” Marquette law student student Tiffany Winter bemoaned the fact that few of her Marquette Law School classes have featured meaningful class discussions. In a comment to Tiffany’s post, Professor David Papke suggested that at least part of the problem may lie with the “pedagogical starting point of most law professors.” By this he means that law professors typically attempt to convey to students their own substantial knowledge of the subject matter rather than leading them, to use Papke’s phrase, “on a voyage of discovery.”

I basically agree with David Papke, although I have a slightly different take on the sources of the problem (i., e., the lack of vibrant in-class discussions). Like Professor Papke, I entered law teaching with a background in Arts & Sciences teaching, and at the outset of my career more than twenty years ago, I resolved not to duplicate the teaching styles to which I had been exposed in law school.

At the time, it seemed to me that there were basically two types of law teachers.One type sought to impart a particular understanding of the subject matter of the course through a highly manipulative use of questions called the “Socratic Method.”(As my friend Stavros Macrakis once put it, “You are led around by the nose until you say exactly what the questioner wants you to say.”) The other type possessed a strong, ideologically-based notion what the law of a particular area should be, and class time was devoted to illustrating the correctness of the professor’s vision.Meaningful class discussions occasionally occurred in both formats but neither style of teaching required them or necessarily encouraged them.

When I was in law school, I particularly enjoyed taking classes in legal history because those courses did offer a less authoritative approach to law and often lent themselves to extremely valuable class discussions. My legal history professors at the University of Virginia–Ted White, Chuck McCurdy, and Steve Presser–genuinely seemed interested in learning what their students thought about the material being studied. I did not have this feeling about any of my other classes.

As it turned out, I have been much more of a “socratic” style teacher than I would have ever predicted at the start of my law teaching career. That is partly because I have come to appreciate the way in which the method does in fact sharpen the analytical skills of students. (That it also turns them into aggressive interrogators who terrorize their non-lawyer, non-law student acquaintances is an unfortunate side-effect.)

But it is also because I have learned that the discussion model of legal education works only when students come to class thoroughly prepared. Modern casebooks are really textbooks, and every section contains a substantial amount of substantive materials that can be learned through careful reading. If every student came to class having carefully studied the assigned materials, the class could be devoted to a meaningful group discussion.

Unfortunately, I have found at Marquette and elsewhere that an instructor cannot assume that students have done this, particularly in upper level classes. Most students either scan the assignment or don’t read it at all, and come to class expecting the professor to identify for them what is really important in the assignment. It is hard to have a meaningful discussion of the persuasiveness of Justice Blackmun’s dissenting opinion in Kaiser Aetna v. United States when only a handful of students in the class can remember without checking what the case is about.

The problem is not simply one of student indifference or a matter of student priorities. Law courses have become laden down with detail. Forty years ago, the typical three-year law course consisted of 30 three-credit courses, 29 of which were essentially doctrinal. (Usually there was a 3-credit trial practice course taught in the third year.)

With that many courses devoted to just covering the substance of the law, a professor could maintain a slower pace, cover less, and provide more opportunity for discussion. Property, Torts, and Trusts and Estates are the three law school courses that I have taught most frequently during my career as a law professor. When I was in law school in the mid-1970’s, all three were year-long courses. However, for most of my teaching career, all three have been taught as one semester courses. The range of topics is slightly more narrow in the one-semester courses, but only slightly. In Property and T&E I cover all the topics that I would cover in a year long course and in Torts, I omit only a small number of subject areas. I also use the same casebook that I would use were I offering the course over a full-year. As a result, assignments are much longer and much more material must be “covered” in each class.

This is clearly a phenomenon not limited to the courses that I teach. The incorporation of courses on alternative dispute resolution and industry specialty courses like sports law and health law into the curriculum, the expansion of legal writing, and the increase in clinical opportunities have significantly reduced the number of traditional law courses that students take during law school, which has created pressure for the existing doctrinal courses to cover more ground than ever before.

Understandably, heavier work loads encourage students to embrace the “we go to class so that the professor will tell what we really need to know” view of legal education. Professors, sensing that students are not learning what they should from the assignments, find that lecturing on the assigned material does in fact help correct the problem. Once a critical mass of students embrace this view of classes, those students who show an interest in discussing the broader policy or jurisprudential aspects of the assigned material often appear to their peers as getting in the way of learning.

But in the end, I agree with Tiffany Winter. Classes involving informed, lively discussions are the best classes, and instructors should do what it takes to assure that such discussions occur.

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David Herbert Donald

The noted historian, Professor David Herbert Donald of Harvard University, passed away on Sunday, May 17, at the age 88.  Professor Donald was a two-time winner of the Pulitzer Prize for Biography and was widely recognized as the preeminent Lincoln scholar of the twentieth century. Although not normally classified as a legal or constitutional historian, scholars who work in those fields are enormously indebted to Donald’s work, particularly in regard to the era of the Civil War and Reconstruction.

Born in the central Mississippi hamlet of Goodman in 1920, Donald was a descendant of both Confederate and Union soldiers.  His father, Ira Unger Donald, was a farmer, and his mother, Sue Ella Belford Donald, a school teacher.  Donald was educated at Holmes Junior College in Goodman; Millsaps College, in Jackson, Mississippi; and the University of Illinois at Champaign-Urbana, from which he received a PhD in History in 1946.  At Illinois, he was a student of James G. Randall, the most distinguished Lincoln scholar of the first half of the twentieth century.  Randall was the author of Constitutional Problems Under Lincoln (1926), the first major study of Lincoln’s relationship to the Constitution, and of the classic 1937 text, The Civil War and Reconstruction.  Randall later selected Donald to prepare a revised edition of the later work, which was published in 1961 (just in time for the Civil War centennial) as Randall and Donald, The Civil War and Reconstruction.  The chapters dealing specifically with the Civil War were published separately as The Divided Union (1961).

Donald’s doctoral dissertation was also his first book.  A study of Lincoln’s law partner and early biographer, Lincoln’s Herndon (1948), was the first of Donald’s many works that critically evaluated the received wisdom concerning the life and times of the sixteenth president.

Later works included Inside Lincoln’s Cabinet (1954), an edition of the diaries of Treasury Secretary Salmon Chase; Lincoln Reconsidered: Essays on the Civil War Era (1956, 1960, 2001), a collection of singularly brilliant essays; Why the North Won the Civil War (1960); Charles Sumner and the Coming of the Civil War (1960), which won the Pulitzer Prize; The Politics of Reconstruction, 1863-1867 (1965), which made use of recent political science scholarship to reexamine the political dynamic of Congressional actions during the last part of Lincoln’s presidency and the first part of Andrew Johnson’s; Charles Sumner and the Rights of Man (1970); Liberty and Union (1978), a new textbook history of the Civil War era that reflected his thinking since the publication of The Civil War and Reconstruction in 1961; and Look Homeward: A Life of Thomas Wolfe (1987), which also won the Pulitzer Prize.

He was also one of the six historians who contributed to The Great Republic (1977), a highly publicized and somewhat controversial effort to produce a new college-level textbook on American history authored by the country’s most prominent historians. (The six historians were Donald, Bernard Bailyn, Gordon Wood, David Brion Davis, Robert Wiebe, and John L. Thomas).

In 1995, he published his long awaited biography of Abraham Lincoln, entitled simply Lincoln, which paid special attention to Lincoln’s constitutional views and focused upon the way in which Lincoln experienced the events of the Civil War era. Two follow-up volumes, Lincoln at Home: Two Glimpses of Abraham Lincoln’s Domestic Life (1999) and We Are Lincoln Men: Abraham Lincoln and his Friends (2003), examined other aspects of his life.  At the time of his death, Donald was working on a biography of John Quincy Adams that focused on Adams’ career after his defeat by Andrew Jackson in the 1828 presidential election.

Though much praised as an elegant stylist whose work was readily accessible to general readers, he was also deeply involved in the methodological debates that occurred within the historical profession during his career.  His willingness to incorporate the insights of the social sciences and psychology and psychiatry into his work, while retaining a traditional historian’s hostility to jargon and academic fashion, gave his work a distinctive character.

Donald began his academic career at Columbia University.  He subsequently taught at Smith College before returning to Columbia as a full professor in 1957. In 1959-60, he held the distinguished Harmsworth Chair in American History at Oxford University. He later joined the faculty at Princeton and then at Johns Hopkins before coming to Harvard in 1973 as the Charles Warren Professor of American History.  In 1978, he became the Chair of the Harvard’s History of American Civilization program, initially co-chairing the program with his long-time friend Daniel Aaron and later directing it on his own.  He retired from full-time teaching at Harvard in 1991, when he was named Professor Emeritus.  In honor of his 65th birthday, his former students produced a festschrift titled A Master’s Due: Essays in Honor of David Herbert Donald.

He is survived by his wife of many years, Aida D. Donald.  Mrs. Donald was an historian and biographer of Theodore Roosevelt, as well as, for many years, executive editor of the Harvard University Press.  The Donalds had one son, Bruce Randall Donald of Chapel Hill, N.C., and two grandchildren.  During his years at Harvard, Donald resided on Lincoln Road, in the town of Lincoln, Massachusetts.

Donald was invited to the White House by John Kennedy and George W Bush.  In the latter part of his career, he was frequently seen on television in documentaries and on stations like C-Span.  Since 2005, the Abraham Lincoln Presidential Museum in Springfield, Illinois, has awarded the “David Herbert Donald Prize” for excellence in Lincoln studies.

I first learned about David Donald while an undergraduate at Oberlin College in the early 1970’s.  One of my professors, David Rankin, was a former Donald student who was teacher in courses on African-American and Southern history.  Reading Donald’s still controversial arguments that the Confederacy collapsed because it was too democratic and that both abolitionists and pro-secession “fire-eaters” were driven to their extreme positions in part because of a form of status anxiety brought about by an increasingly capitalistic society made me realize that history was something more than just a chronicle of past events or the application of broad theoretical principles to the past (which was then much in fashion).

I also had the good fortune to later study under him at graduate school at Harvard in the late 1970’s and early 1980’s.  He held the bar high, but he was also unfailingly gracious to his students and generous with his time.  Although he is primarily associated with Lincoln and his era, his knowledge and interests were much broader than just that period and he supervised dissertations on a wide variety of topics.

He did, however, draw the line at the history of sports.  After I passed my PhD general examinations, I met with him to discuss possible dissertation topics.  He asked me what I thinking about, and I mentioned to him that I found it fascinating that in 1850 baseball was basically a folk game played informally with no set body of rules.  However, by 1870, the rules had been standardized, there were professional leagues, and the sport was widely hailed as “America’s national game.”  I told Donald that I thought it would be interesting to try to trace out the process by which this occurred, particularly since it happened against the backdrop of the Civil War and Reconstruction.  Donald appeared to toss my idea around in his head for a minute or two, and then said, in his charming Southern voice, “You know, Gordon, I don’t believe that I could come up with a less interesting historical question.”  On that note, I decided to write on the history of the legal profession in the South.

Professor Donald was also a brilliant classroom teacher, as anyone who attended his lectures on the United States in the nineteenth century can attest.  His undergraduate classes at Harvard always filled the large lecture halls in which they were scheduled.  I had the opportunity to serve as his teaching assistant and whatever success I have had as a teacher has largely been the result of his mentoring and tutoring.

With his passing, the historical profession, and the United States, has lost one of its giants.

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