Journal

Return to Appendix Main

January 2, 1994 Sunday

I was up early, at 7:00, ready to end my weekend vacation and resume preparation for the course. I turned in the car, walked to my office, and completed my outline of the fourth day.

For lunch, I was determined not to go to yet another restaurant to eat by myself. I had passed what seemed to be a student hangout just a short distance toward Porter Square on Massachusetts Avenue, half way to Rosie's, and decided to try it. Thus began my love affair with the Three Aces Pizza Restaurant at 1613 Massachusetts Avenue. Students would later tell me that virtually everyone in the first year at the Law School ate there, but by second year they moved on to something better. I liked it because you could call ahead to place an order (for me, always an individual pepperoni pizza or a small steak and cheese submarine sandwich), sit and watch sports on two television sets, read an old newspaper, or simply chat with whoever might be there. It was my kind of place.

Returning from lunch, I tackled the outline for the fifth day of class, on food sanitation and safety, which would finish our consideration of human food. For a change, I walked to Harvard Square, in very cold weather, for dinner and ate at the Greenhouse Coffee Shop at 3 Brattle Street. I sat next to two young evangelists who very kindly invited me to attend their meetings during my stay in Cambridge. Returning to my office, I finished the outline for the fifth day. I left at 11:00, feeling quite satisfied that I was fully prepared for the first week of classes, which comprised a full third of the course.

January 3, 1994 Monday

The two alarms I had set went off at 6:30, and I was up immediately. Although the room was not as warm and comfortable as the Charles Hotel, I was beginning to get back into the college spirit and to enjoy it. I walked my customary route up Dunster Street and through Harvard Yard, and went directly to the Harkness Commons where I was able to obtain a cup of coffee precisely as the cafeteria opened at 7:30. Back in my Law School office, I spent a half hour reviewing my outline for the first day, and then went to the classroom in Room 110, two floors directly below my office, at 8:15. I rearranged the furniture so that there was no chair behind the podium and no other extraneous furniture in any of the aisles. Students began to arrive shortly after I appeared, but the heavy snow was clearly detaining at least some. I therefore did not begin the class until 8:35.

When Sue Robinson and I first discussed the details for the course, we had agreed that we would wait until preliminary registration indicated the size of the class before determining an appropriate classroom. When we learned that fifty-four students had designated food and drug law in their preliminary registration, she decided that Room 110 in Griswold Hall would be the ideal size. When I first saw it on my December 1993 visit, I agreed completely with her judgment. It held a maximum of seventy-five students and allowed easy access up and down four aisles to everyone in the class.

Between preliminary registration and the first day of class, the number of students who chose food and drug law increased to sixty-four and then came back down to fifty-four. During the first day, four more chose the course. Thus, at the end of the first day I had fifty-eight students.

The first day went extraordinarily well. It is fair to say that I was elated when it was completed. Everyone was attentive and seemed extremely interested.

The administrative issues that I raised with the students went over very well. No one objected to assigned seats and a seating chart. Everyone agreed that name cards would be extremely helpful not only for me but for them, because most of them did not know each other. They were less enthusiastic about the resumes, but I was able to break the ice by noting that both of my children who were recent law school graduates had predicted that they would be suspicious about this. I tried to reassure them that I had no nefarious motives, but only wanted to get to know them better. They greeted the concept of assigned student presentations with interest, and told me that this was a unique idea. Other teachers designate panels for a particular day, and the teacher questions only those people on the panel. I said that, in addition to the assigned student presentations, I would use the Socratic method, calling on anyone at any time to discuss any issue, but never in a confrontative or intimidating way. I also emphasized that, if anyone felt at all sensitive about an issue, they should immediately tell me and I would accept that without question and turn to someone else.

I told the students that the course would revolve around concepts, not details. They should read the cases and materials to understand the broad principles involved, not the specific facts. No student would be asked to state a case. The student presentations and Socratic discussion would focus on public policy issues. When I paused to ask the students whether they had any questions about this approach, I was amused to find that the only question raised was whether a course outline was available for food and drug law. I told them that they were out of luck, because there was neither a course outline nor a simple handbook that they could use to replace the casebook.

Finally, I raised the question of the examination. I said that I would be happy to administer whatever form of examination they might wish, because it was they who were taking it, not me. I said that I would far prefer papers, but had been told this was not proper or feasible. They immediately informed me that other professors have surmounted this dilemma by announcing on the first day of class that the question on the final examination would be an open-ended essay on any subject raised by the course. I told them that I was delighted with this approach and would be happy to use it. Some added, however, that they might wish to take a normal examination. I therefore decided that everyone would have two options: either a paper (an open-ended essay as the first question on the examination) or a traditional examination. In either case, it would be a three day take home open book examination. The class agreed that there should be a page limit regardless which option is selected by the student, and I set it at fifteen pages. Everyone seemed quite pleased about this.

With these administrative details out of the way, I said that, because this was my first appearance teaching at Harvard Law School, I thought the students should have some information about my own background. If I was asking each of them to provide me with a resume or statement of their own background and experience, they deserved to have the same from me. I explained that I had placed two copies of my complete curriculum vitae immediately outside my office, where they would remain throughout the Winter Term in the event that any student wished to look at one. I then took fifteen minutes to summarize my curriculum vitae  – my boyhood in Buffalo and interest in the dairy industry, my academic years at Exeter, Yale, and Harvard, my Food Law Fellowship at New York University, how I came to Covington & Burling in October 1960 and began to practice food and drug law eighteen months later, the type of work I did in private practice, my four years as Chief Counsel of FDA during 1971-1975, and the kind of legal practice I have had since returning to Covington & Burling. I included my outside activities in alcoholism and drug abuse, health science policy, community work, teaching and scholarship, government and academic advisory boards, AIDS policy, and biotechnology.

I told the class that I came back to Harvard Law School for this Winter Term with several objectives firmly in mind. First, I wanted to bring administrative law alive. It can be deadly dull when taught to law students, but "real administrative law" is an extraordinarily interesting and absorbing field of practice.

Second, I wanted to convey the joy and excitement of food and drug law, as one example of administrative law. It represents the cutting edge of modern public policy, and involves issues that have a vital impact on our future.

Third, I wanted the students to understand just how much fun it can be to practice law. Contrary to popular notions, law remains one of the most exciting and interesting occupations that one can imagine. There simply is not enough time in the day for me to do all the challenging things in which I have an opportunity to participate.

Fourth, I wanted everyone there to appreciate that they have the opportunity ahead of them to make major contributions to society, and thus to look forward to becoming a lawyer upon graduation. Lawyers have an unlimited opportunity to make a substantial impact on virtually every important aspect of national policy. I finished just one person above the middle of my class, but I have certainly been able during my career to participate in important public policy issues in a wide variety of ways. Lawyers are free to choose their own destiny. If I can do what I have done, every person in the class certainly can do as well or better. We all have enormous freedom to choose our careers and what we accomplish is limited only by our own personal decisions.

Fifth and finally, I had no interest in trying to convince any student in the class to become a food and drug lawyer, but I did want to teach the law and policy relating to food and drugs. We would focus on the statutory standard, how FDA implements it, the attitudes and assumptions brought to important issues by FDA, what the agency does in the face of scientific uncertainty, whether the agency applies consistent policy standards, and what impact  – good or bad  – this has on the daily lives of all of us.

I told the class that I felt strongly about these objectives. I was not there just to teach food and drug law. It was equally important, to me, that the students begin to appreciate just how exciting, interesting, and productive a career in law can be. I realized that this was contrary to much of what the students heard in the Law School today. One of the reasons I was willing to come back to Harvard to teach this Winter Term was to take at least a small step in the direction of turning around some of the popular student misconceptions about their chosen profession.

When I began this portion of my remarks, I was somewhat apprehensive about the potential student reaction. To my relief, the students were very attentive and interested. Not a person even looked at the clock. Perhaps this was because law students today so seldom hear genuine excitement about the practice of law and very seldom meet people who are proud of being practitioners. Because of their obvious interest, I discussed my enthusiasm for law practice much longer than I had intended.

I did have enough time left to begin the history of food and drug law, but progressed only from the laws of ancient Sumeria to the Accum treatise of 1820. Thus, I was already behind the schedule set in my syllabus. I was so happy with the way that the first day went, however, that I regarded this as a very minor matter.

I told the class that there would be more of a lecture presentation by me during the first day than at any future time. Nonetheless, even in my presentation about the history of food and drug law, which does not easily lend itself to student participation, I made an effort to bring students into the discussion. Tomorrow, however, I intended to pursue a true Socratic discussion in earnest.

Originally, Visiting Professor Kahan was scheduled to teach his course on corporate bonds in Room 110 only fifteen minutes after my class was completed. Because more than seventy-five people signed up for his course, however, it was moved to another location. I was relieved, because this allowed me greater flexibility in lingering to talk with students after the class ended.

Now that the Winter Term had officially begun, the Faculty dining room in Pound Hall was open. I had been told that a good way to meet the Faculty was to sit down about 1:00 at the round table where people congregated who did not have a specific meeting with a colleague. I therefore joined Professors David Westfall, Joseph H. H. Weiler, and Detlev Vagts, for lunch. They seemed most interested in the novel idea of teaching food and drug law at Harvard. Half way through lunch, Professor Westfall turned to me and asked whether my third year paper was on federal milk marketing orders. All of us were stunned that he could possibly remember this, thirty-five years later. He said that he remembered it because my thesis was that the statute was intended to facilitate interstate commerce but that it was being used to hinder commerce.

 That afternoon, I began to talk to students who took my open office hours seriously and wanted to discuss topics for their papers. I also obtained blank name cards from Mark Slawson, the Assistant Registrar, and wrote everyone's last name on one side. Suddenly it occurred to me that this was inadequate because the names would only be seen from the front. I therefore wrote them on the other side as well, so they could be seen from the back as well as the front. Most important, I received from Beth by Federal Express a new pair of shoes that I had fortuitously ordered a month earlier and such basic supplies as a letter opener and a staple remover.

The afternoon went quickly. For dinner, I returned to the Three Aces for an individual pepperoni pizza. During the evening, I went over my notes for the next day and began to work on an outline for the sixth day, on regulation of human drugs. At 11:30, I left to walk back through Harvard Yard to Eliot House. It was snowing, and once again I was impressed with lovely views that brought back so many memories of my time here thirty-five years ago.

January 4, 1994 Tuesday

Once again my trusted alarms woke me up at 6:30. One of my alarms was a clock radio, and I decided to switch from music to an all news station. It promptly informed me that five inches of new snow had fallen.

This morning, I stopped at one of the many breakfast shops on Dunster Street to buy a cup of coffee. I arrived at the Law School at 7:30 and immediately set up the student name cards at their designated places.

Class again began five minutes late, as students arrived through the new snow. I told the students that they had clearly picked the wrong course for Winter Term, with a teacher who grew up with blizzards in Buffalo and, in any event, could easily walk to class each day from Elliot House regardless of the weather. Another four new students informed me that they had transferred to the class, bringing the total up to sixty-two. I made it through the rest of the introductory history, spent only a few minutes on the structure of the statute, and plunged into the subjects for the second day  – jurisdiction and enforcement.

The students immediately found out what I meant by student participation. There was one assigned student presentation. Because the first assigned student was not yet present, I took that argument myself. I contended that the FD&C Act should apply to intrastate as well as interstate commerce, and Jim Nuzzo argued that the federal government should be restricted to interstate commerce. I established the precedent that the student presentations would proceed uninterrupted, other students would then be permitted to ask questions or make arguments of their own, and I would then proceed to question each of the student presenters. I brought other students into the discussion as well, calling on at least twenty different people during the morning.

Without planning to do so, I spontaneously began my practice of designating particular students to assume specific roles and asking them to respond in those capacities. At one point, for example, I designated one student as a small apple farmer who made applesauce in rural Massachusetts (Katharine Bolland) and another as a large interstate producer (Kimberly Jackson), playing each off against the other. I was able to dramatize the extraordinary enforcement power of FDA through hypothetical compliance problems posed to students. There was excellent participation, and not a student seemed to be ill at ease or disinterested.

To challenge the class, I related the following incident from my years at FDA. An FDA inspector was denied entry to a food establishment on the advice of the food company's lawyer. This is a direct violation of the FD&C Act. I therefore called the lawyer and advised him that, if he persisted in this advice, I would recommend prosecution of him, as well as the company, because it was he who was "causing" the violation. Jim Nuzzo took up the challenge, arguing that this was an outrageous abuse of administrative enforcement discretion. We had a very lively debate, precisely what I had sought to stimulate. The entire class spent considerable time discussing the enormous discretionary power that resides in even the lowest FDA employee.

I began my practice of roaming the aisles, in order to get as close as possible to each student with whom I was discussing an issue. As I anticipated, the name cards were infinitely better than a seating chart. It was unnecessary to return to the podium, to check the chart, each time I wanted to include another student in the discussion.

On this day, as well as the first, I included a fifteen minute break approximately half way through the class as suggested by Sue Robinson. I told the students, however, that they could not count on the break at any particular time. It would depend entirely on the flow of the discussion. I began my custom of making all class announcements immediately following the break, when all the students were most likely to be present.

One of the students who transferred into the class was Rob MacRae. Rob was a year ahead of my son, Everett, at Sidwell Friends School (where they played tennis together), and later at Yale. His father and I have been friends for more than a decade. When he raised his hand during class, I immediately addressed him as "Robbie"  – a nickname he had not used since Sidwell  – thus startling the entire class. Rebecca Topol, the daughter of my partner, Allan Topol, was also in the class, but I was careful after my experience with Rob not to embarrass her in a similar way.

At the end of the class, I met with all the new students to go over the basic administrative matters that had been discussed the first day. I was disappointed that I had received only a few resumes, however, and decided that I must emphasize this point the next morning.

For lunch, I met Professor Andrew Kaufman in his office and we walked together to the Faculty dining room in Pound Hall. Andy introduced me to the underground tunnels, which connect all of the Harvard Law School buildings. Until then, I had been going everywhere outside. He gave me an extremely useful underground geography lesson. At lunch, I learned that his daughter, Ann, teaches at Sidwell Friends School.

Following lunch, I again met with a number of students. Some provided resumes, and those who did not were reminded that I really did wish to have them. When the parade of students slowed, I called Beth, my Mother, and Sally, to give them my appraisal of the first two days. They could easily tell that I was extremely happy and pleased.

The first day I had moved into my office, I immediately sought out Professor David Shapiro. We agreed that we would have dinner together this evening. I therefore walked to David and Jane's home at 17 Wendell Street at 6:30 through snow and sleet. After a glass of wine there, we walked together to a local French restaurant, but found it had closed because of the storm, and then to Changsho, a Chinese restaurant at 1712 Massachusetts Avenue. We had excellent food and even better conversation.

Not long after David left Covington & Burling, he began to suffer from a rare neurological ailment that made it very difficult for him for some years. He was able to surmount that with an operation a few years ago, but within the past year it has begun to recur. We had a wonderful discussion about our days together in the early 1960s, the excellent training we had from Tommy Austern, and approaches to teaching. When I told him about my approach to the examination, he was concerned that students might be induced simply not to attend classes, or in any event not to pay attention, because they knew they could get away with only a paper. I told him that, at least at this point, I had found no difficulty in keeping their attention and thus was hopeful that this would not become an issue.

At 9:30, I was back in my Law School office. It took me more than an hour to go through all the material that Beth had sent by Federal Express. We had agreed that she would send all the routine mail every day, so that it would not stack up in Washington and I could then throw it out or save it for filing when I returned.

It was again snowing, and freezing cold, as I left at 11:00 to walk back through Harvard Yard and down Dunster Street to Eliot House. For the first time, I turned on the television to watch the evening news. Now that the undergraduate students were returning, the Matthiessen Room was much warmer and I was able to remove one more blanket.

January 5, 1994 Wednesday

When I woke up at 6:30, it was snowing. I thought again how fortunate I was to remember to bring my sheepskin coat. Since the snow began, I have worn nothing but that coat, along with my Indiana Hutt hat, and they have kept me extremely warm and healthy. Not a bit of wind gets through the coat.

David Shapiro had told me that the Greenhouse Cafe in the Harvard Science Center, right at the bridge over Broadway, opened early on weekdays and had a very good breakfast menu. I found that the Cafe had an excellent rotating selection of exotic coffees, which I proceeded to sample each weekday from then on.

Arriving at my office at 7:30, I spent my customary half hour again going over my class notes for the day. By now, I was a full half day behind. Nonetheless, I was not worried. The presentations and the total class participation were going extraordinarily well, and that was the most important aspect.

I arrived at the classroom fifteen minutes before class began, as was now my custom. This seemed to work quite well, because it gave me a chance to talk informally with students who arrived ahead of time.

Each day, I began the class by recounting my humorous experiences with Eliot House and Harvard Law School. When I told the students today that the heat had been turned on in Eliot House, the class applauded and cheered. Once again, I had superb class discussion and interest. It could not have been going better.

The class began with a spirited debate between Jonathan Roskes and Amy Silliman on the need for greater FDA enforcement power. I remarked after their presentations that they did not miss a single issue. We then turned to the subject of human food. The class had difficulty determining the criteria for classifying a substance as a food, e.g., the use by some misguided consumers of mistletoe to make an herb tea. The scope of the FDA jurisdiction over "labeling" for food, and the line between "labeling" and "advertising," provoked intense debate. There were excellent presentations by Jennifer Johnson and Harold Dichter on whether FDA should be required to approve all food labeling before it is used (as USDA now does for meat and poultry labeling). The students were uncertain whether the standard of "false or misleading" labeling should be interpreted to apply only to the ordinary person, or to the uneducated, unthinking, and credulous consumer as well.

From the beginning of the first day of the course, I called upon the students by their last name  – Mr. _________ or Ms. __________. The name cards did not have first names on them, and I did not trust my memory to get the first names correctly in every instance. From my experience in teaching at the University of Virginia Law School, moreover, it did appear to me that some degree of formality in the classroom helped maintain the dignity and seriousness of the process without in any way detracting from the informality and candor of the Socratic method. I determined to follow this approach at least until I saw how it worked, and in fact I concluded not to alter it even after I got to know the students extremely well. I used their first names repeatedly outside the classroom, but kept the formality of last names during classroom discussion.

I also decided to wear exactly what I wear during the rest of the year  – a business suit and tie  – rather than to dress more casually. The students, in turn, dressed very casually. None of us ever commented on another's attire except with evident good humor.

Humor has always been an important part of my teaching style. I continued to follow my rule of primarily poking fun at myself, rather than the students, and they seemed to enjoy it a great deal.

Following class, I met with a few new students who were there for the first time. This was the final day for transferring in or out of classes for Winter Term. Mark Slawson gave me a "final" printout of the class, showing a total of sixty-three students. I knew that one was auditing the course and one had telephoned me to say that he was taking a leave of absence for Winter Term, however, and thus the proper number was probably sixty-one. Because I kept emphasizing my desire to have resumes, many more students began to provide them to me. Once again, a number of students came to see me after class to discuss potential papers, on a wide variety of topics.

From 1:00 to 2:00, I had lunch at the round table in the Faculty dining room. Professors Victor Brudney, Clark Byse, Archibald Cox, David Herwitz, Peter Murray, and Alan Stone, joined me. When introduced to Professor Cox, I told him that I had always held him in the highest regard, because he gave me my highest grade at Harvard Law School. He replied that his wife insists that all the former students she meets say that he gave them their lowest grade. I was told that David Kessler was turned down for Harvard Law School on the grounds that his record at Amherst was not impressive and that his teachers at Harvard Medical School did not provide high recommendations. We had an interesting discussion about President Clinton, the proposed reform of health care, and other current topics.

Back at my office, I again met with a number of students about proposed paper topics. By mid-afternoon, I had a long list of FDA materials relevant to these papers that were clearly unavailable at the Harvard Law School Library. I therefore began my daily custom of calling Beth and Marilynn Whitney, the Covington & Burling food and drug law paralegal on whom I rely so heavily, to request that these materials be copied and sent by Federal Express.

On Monday, I had left my laundry at the Crimson Cleaners at 1609 Massachusetts Avenue, two doors from the Three Aces. At 5:00, I walked there through sleet to pick it up. After sorting the usual mail sent by Beth for two hours (including more legal pads), I returned to the same block for a steak and cheese submarine sandwich at the Three Aces. It was a bitter cold evening with a strong wind.

At 10:30, I walked back through Harvard Yard in the teeth of an even stronger wind. As I had noticed earlier, Dunster Street between Massachusetts Avenue and Mount Auburn Street was a virtual wind tunnel. This evening a gale force gust of wind almost knocked me off my feet. I simply could not move forward at all, and had to duck into an adjacent doorway. Even with a wind chill factor below minus thirty degrees, however, my sheepskin coat remained impregnable. I did have to hang on to my Indiana Hutt hat or it would have been blown away in an instant. Back in the Matthiessen Room in Eliot House, which now had a quite liveable temperature, I found from the television news that the outside temperature was hovering just above zero degrees.

January 6, 1994 Thursday

The alarms went off on time, and the radio informed me not only that it was eight degrees but that three separate snow storms were headed toward Boston. I walked through Harvard Yard, stopped for coffee at the Greenhouse Cafe, and reached my office at 7:30.

The classroom participation continued to be excellent. Reginald Williams argued that the function and quantitative amount of every food ingredient should be required to be declared on the food label, and Fred Server took the contrary position. Betty Dunkum argued that food standards should be abolished, and Bryan Liang contended that they should be retained. For both of these issues, I had the class vote on what they thought would be the correct public policy, an approach which the students seemed to enjoy greatly. The class was uncertain at what point a new product "purports to be" the same as an established product, but generally favored the use of labeling to differentiate among products rather than the restrictions imposed on new food technology by rigid food standards. The difficulty of asserting the same labeling protections for restaurant food as for packaged food was the subject of a great deal of discussion. The students were struck by the complete change in FDA food regulatory policy that resulted from the change in just a few top people in the agency in the early 1970s. We discussed at length the opportunities that this creates, for both good and bad, in the federal government.

At the end of the class, we were now one full day behind. It was apparent that I had to change my classroom strategy in order not to become hopelessly behind. I was determined not to reduce the student presentations or student discussion. Thus far, I had not cut off a single student or refused to recognize a single volunteer. Rather than change that, I decided that the proper strategy was to reduce the number of subjects for discussion. I was simply trying to cover too much. For the future, I determined to focus on the more interesting, controversial, and debatable FDA policies, and not to attempt to provide black letter law or to cover lesser issues. I hoped that this would keep me on schedule.

After class, so many students came to see me in my office that I missed the Faculty lunch room hour and instead had a sandwich at 2:30 at the Hark Box. I continued to see students all afternoon.

Beth sent her usual Federal Express box, this time filled with materials for students as well as mail for me. I set aside the material for students, to be distributed the next morning. This became a tradition. Each morning I handed out materials received from Beth and Marilynn the day before.

At 6:45, I walked through Harvard Square to meet Mark Butler for dinner at Giannino in the Charles Hotel Plaza at 20 University Road as it was beginning to snow. We talked about Interneuron, and I agreed to serve on the Board of Directors if asked. As I walked back to my Law School office at 9:30, it was still snowing. Professor Duncan Kennedy was the only person, along with me, who was at the Law School at that hour. I told him that Sarah had remembered very vividly his speech at Duke Law School while she was there. He promptly searched out a copy of his remarks on that occasion, which had subsequently been published in the Syracuse Law Review in 1990, and gave me a copy.

It was still snowing when I left my office at 10:45 for my traditional walk through Harvard Yard and down Dunster Street to Eliot House. I stopped on this occasion to have a cup of coffee in the Eliot House dining hall, and continued this tradition almost every night for the rest of my stay. Back in the Matthiessen Room, the radio informed me it was ten degrees. Even though the room temperature was now much more comfortable, I still used both room heaters every night.

January 7, 1994 Friday

The radio told me at 6:30 that it was ten degrees, five inches of snow had fallen, and more was expected. I walked up Dunster Street, through Harvard Yard, got my usual coffee at the Greenhouse Cafe, and reached my Law School office at 7:30.

The class was again simply excellent. We began with four students  – Rebecca Topol, Robert Liao, Patricia Kaufman, and Norman Carlin  – defending four different versions considered by FDA of nutrition labeling for food products, followed by a fifth  – Mark Sheft  – who argued that none of those was adequate. The story of the "food fight" that occurred in late 1992 between FDA and USDA, resulting in a personal decision by President Bush on the format to be required for nutrition labeling, astonished the entire class. Christine Solt made a strong argument for strict FDA control of the nutrient fortification of food, and David Urso argued just as strongly to the contrary. The entire field of nutrient regulation provoked such extensive discussion that I simply forgot to save time for the final student presentation that had been scheduled for the day, on disease prevention claims for food products.

Students told me after that class that they never volunteered in other classes, but the subjects involved in food and drug law simply compelled them to offer their own personal views. I finished the week elated that my approach to teaching the course was working extraordinarily well. Combining student presentations with my roving the aisles and confronting students with difficult issues, often assigning particular roles for the students to assume, was even more successful than I had dared hope. All I had to do now was keep it up for another two weeks.

The students in the class had extremely diverse backgrounds and experience. Once I had most of their curricula vitae, and had sufficient confidence in my memory about their backgrounds, I began to use this information in the classroom discussion. There were five physicians in the class (Bryan Liang, Jim Nuzzo, Fred Server, Steven Stranne, and Stephen Rabinowitz), two with both an M.D. and a Ph.D. (Bryan Liang and Fred Server), two with a Ph.D. in biology (Peg Bolce and Norman Carlin), two who worked in the White House under President Bush (John Gardner and Jim Nuzzo), two who worked for members of Congress (Betty Dunkum and Roger Sherman), at least three who grew up on farms or in rural communities (Betty Dunkum, Harry Johnson, and Danielle Shelton), one who worked for a food company (Tami Lefko), and numerous others with interesting and pertinent experience. Unfortunately, this journal cannot begin to convey the many ways in which the background, experience, and interests of the individual students became pertinent to the daily classroom discussion.

On my first day of class, I had begun the discussion of the history of food and drug law by referring to the ancient Sumerian law which provided that any innkeeper who served a false measure of beer would have "her" hand cut off. I remarked, as I often have in the past, that I have always been curious about the use of the feminine gender in this statute. When John Gardner came to talk to me yesterday about his proposed paper on orphan drugs, he brought with him a letter explaining that beer was extremely important in Sumerian culture, the Sumerians believed in a goddess (Ninkasi) who was in charge of beer preparation, and thus women were closely associated with serving beer. After the usual break in the class, I mentioned John's letter during my customary announcements and asked him to relate the results of his research.

After again seeing students about potential papers, I went to the Faculty dining room to eat with Professors Brudney, Byse, Cox, Fried, Horwitz, and Vorenberg. Most of the professors have described Winter Term as extremely demanding and very unpopular. To the contrary, I was finding it a far preferable way to teach, because it allowed intensive discussion with only a short flexible break and the next day the students do not need to be reminded about the subject at hand. On the walk back through the tunnel from Pound Hall, Professor Horwitz agreed with me completely.

A major winter storm was predicted, and in fact began to materialize. The Law School therefore officially shut at 2:00, but students continued to come to my office to discuss papers. The last one saw me at 7:00. Because I was beginning to have trouble keeping track of which student was pursuing what subject, I began to make a list. In between seeing students, I caught up on the materials sent by Beth.

At 7:45, I took a break to have a steak and cheese submarine sandwich at the Three Aces. I read Professor Duncan Kennedy's article, which was extremely erudite and difficult to master. I hoped to have an opportunity to discuss it with him. I also revised the student presentation list, to make sure that it included opportunities for each of the new students in the class to participate. I had a long talk with Peter about my first week of the course.

At 11:00, I walked through Harvard Yard to Eliot House. It was snowing quite heavily. Students were sliding down the steps the of Widener Library on a wide variety of makeshift sleds. I concluded that the Matthiessen Room was now sufficiently warm to justify only one heater, but half way through the night I woke up and decided that both were needed.

January 8, 1994 Saturday

With no alarm, I woke up at 7:45. The radio informed me that twelve inches of snow had fallen since yesterday afternoon, and four inches more were expected. I had coffee and blueberry coffee cake in the Eliot House dining hall, but there were only three students there and they were all engrossed in studying. I therefore did not feel comfortable introducing myself.

At 9:10, I again set off through Harvard Yard to the Law School. There was certainly no storm like this when I was here. I was impressed with the amount of snow, but also with Harvard's ability to remove it. Small tractors cleared every path. I took a number of photographs. Because the Greenhouse Cafe in the Science Center was closed on weekends, I walked to Harkness Commons to find coffee, only to discover that it was also closed.

The morning was spent going through the remaining materials sent to me by Beth and organizing my office. Going through my mail largely consisted of sorting it into materials I could throw out and materials I must keep. Beth also included items to sign, and there were some documents that I returned to her for distribution at Covington & Burling. I was not attempting, however, to do any significant law firm work while at Harvard.

At 12:30, I walked to the Three Aces for a small steak and cheese submarine sandwich. I really was becoming addicted to this place. When I was finished, I had my hair cut next door at the Central Barber Shop, an old fashioned neighborhood barber shop much like the one I used in the Harrington Hotel in Washington. By 1:30, I was back in my office.

Throughout the afternoon, I worked on preparation for the coming week. I finished the outline for the sixth day, on prescription drug labeling and advertising, and started the seventh, on regulation of new drugs. Kathy called to find out how I had survived my first week of classes.

When I was growing up in Kenmore, New York, Barbara Theobald lived diagonally across the street on Leicester Road. I went through grade school and junior high school with her, and even though she was older than Sally, she remained one of Sally's best friends. During the time I was in Law School, she lived on Beacon Street and worked at Polaroid, ultimately becoming Edwin Land's personal scientific assistant. When he retired, she left Polaroid, initially owned a store in Exeter, New Hampshire, then went to school in Boston to learn how to make violins, and now occupied herself by making violins and teaching at the school herself. I had called her to arrange to have dinner, and we agreed that this evening would be perfect. Because of the magnitude of the storm, I walked to Harvard Square, got on the Red Line of the famous Massachusetts Transit Authority (MTA) subway (which I had never ridden in my three years at the Law School) and got off at the Charles Street station. Barbara met me there and drove us to her house at 32 Breakwater Drive in Chelsea. We walked to her local marina where we had a prime rib dinner at the restaurant. After seeing her violin shop in her basement, she drove me back to Charles Street to catch the subway. I had to stand for twenty minutes on an open elevated subway platform waiting for the train in a bitter cold wind. It was the coldest I have been to date.

Back at Harvard Square at 11:00, I walked to Eliot House through the Dunster Street wind tunnel. It was about five degrees, but the wind chill factor took it far below zero. Nonetheless, students were running around the open area formed by Eliot, Kirkland, Winthrop, and Lowell Houses, having snowball fights, making angels in the fresh-fallen snow, and even producing an occasional snowman or snowwoman. I stopped for coffee at the Eliot House dining hall, to warm up before continuing on to the Matthiessen Room. The television news informed me that some twenty-six inches of snow had fallen since I arrived, and predicted a temperature around zero degrees.

Return to top

Title Page · Introduction · Outline of Contents · Table of Contents

Return to Faculty Home Page