Journal

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January 23, 1994 Sunday

I got up early for a weekend, at 7:00. There was no one in the Eliot House dining hall, and I therefore walked to Au Bon Pain for coffee. It was only five degrees. It did not seem that the weather would ever break.

I spent the morning preparing for the final class on Monday. I had already outlined the discussion on regulation of carcinogens, but I wanted to conclude the class with a broad overview of the course and the practice of law. When I was finished with my outline, I sent copies of the material I had found on the Matthiessen Room to the entire family.

At 1:00, I had lunch with Betty Dunkum at the Harvest at 44 Brattle Street. She grew up on a family farm in southern Virginia and worked for a member of Congress before coming to Harvard. I had agreed to serve as a reference for her attempt to find a judicial clerkship.

As we walked back to the Law School, it began to snow. I spent an hour in my office organizing the photographs I had taken into logical groups, showing the Law School, Eliot House, and so forth.

After obtaining additional film in Harvard Square, I walked to John Harvard's Brew House at 3:15 to make certain that everything would be in place for the class social hour. People began to arrive at 4:00, and the last ones left at 6:30. It was an extremely enjoyable time, and it was clear that everyone was pleased with the opportunity to meet their fellow students outside the classroom. If I come back to Harvard again, I would try to have two of these social hours for the class.

I was particularly happy with the location. I had tried to obtain the second floor reception room at Upstairs at the Pudding, but they had another function at 7:00 and I was concerned about the timing. As it turned out, John Harvard's Brew House was a far more appropriate place, because it was a typical college pub and a much less formal atmosphere. People had a great time talking and watching the football game. To my surprise, all of the food and drink cost only $600.

A young Japanese woman, Sakiko Takagi, has been auditing the class from the very beginning and taping most of it on a tape recorder. She had asked me not to call on her, because of her difficulty with the English language. I had agreed to have dinner with her and her husband on Wednesday evening, but I was now planning to leave for Washington in the late afternoon on that day. I therefore suggested that we have dinner following the social hour, and she agreed. At 7:00, I had dinner with Sakiko and her husband, as well as Betty Dunkum, Stanford Lin, and Danielle Shelton.

At 9:00, I walked back to my office through freezing rain. I wondered whether there is any other type of adverse weather that could occur. After my usual final preparation for the next day, I walked back to Eliot House at 11:00. The television news said that it was now eighteen degrees.

January 24, 1994 Monday

This morning, the radio said that it was twenty-one degrees but would be going as high as forty degrees. If this were true, it would be only the second day since I arrived that the temperature would for at least part of the day be above freezing. I walked through Harvard Yard, got my customary coffee at the Greenhouse Cafe, prepared for my final class, and was at the classroom at my customary time of 8:15.

The session on regulation of carcinogens went quite well. There were excellent presentations by the students, and the subsequent discussion properly focused on the difficulty of balancing benefits against risks for both food and drugs. Elizabeth Stairs contended that all carcinogenic substances should be banned from food, but Roger Sherman said that this was both impossible and unwise. Diane Law took the position that the FD&C Act should be amended to permit carcinogenic food and color additives that present only a de minimis risk, and Catherine Dargan contended that this was bad public policy. Kimberly Yahr argued that risk assessment was so uncertain that it should not be the basis for evaluating the safety of carcinogens, but Steve Kaiser said that it is the best we have and should be used. Trina Hunn contended that the Delaney Clause should be interpreted to ban all secondary carcinogens, and Erin Fuller took the contrary position. There was general agreement that all carcinogenic substances should not be banned from food, but no agreement at all on what type of substances would be permitted or under what conditions. I related my own dilemma in banning sassafras tea while I was at FDA. Jennifer Johnson found herself tenaciously adhering to the position that flavors were important and should not be banned, whereas colors were trivial and should be banned, although when pressed she could find no credible rationale.

For the last twenty minutes of the class, I gave the overview that I had carefully prepared during the weekend. I began by pointing out that by now most of the class knew that I had never before taught an entire course, and that this was therefore quite a different experience for me. Teaching a course is totally unlike giving a lecture (or hundreds of lectures, as I have done) or preparing a casebook. It is a much more intense and personal experience, and depends entirely on the students and their participation.

I then reviewed the five objectives I had stated during the first class, three weeks earlier: (1) to bring administrative law alive, (2) to convey the joy and excitement I experience every day in practicing food and drug law, (3) to demonstrate the fun of law practice generally, (4) to convince the students that the practice of law can be productive from a societal perspective and extremely satisfying on a personal level, and (5) to teach FDA law and policy without in any way attempting to convince the students that they should become FDA practitioners. I noted that I had emphasized that we would focus on the statutory standards, how FDA implemented those standards, how the Agency resolved uncertainty, whether the Agency in fact achieved consistency, and the impact that FDA decisions have on all of us. To my surprise, we had jointly achieved all of these objectives.

With respect to the course, I noted that I had talked to more than half of the students about specific aspects and would welcome further comment at any time. My own conclusion, based on these discussions, was that the format worked exceedingly well. The student presentations were perhaps the most important element. There had not been a single inadequate student presentation during the entire course. The hypothetical role playing and my constant Socratic questions for everyone in the class were equally successful. I was correct in concluding that, because of my approach to teaching food and drug law, a course in administrative law is desirable but not a prerequisite to this course. The reading seemed adequate, neither too much nor too little. The balance between law and policy also seemed appropriate. If I had to chose between stating the "black letter law" or allowing discussion to expose the ambiguities and uncertainties of FDA regulation, I would continue to sacrifice the former and emphasize the latter. It did seem to me that an additional half hour per day would be useful, to allow even more student participation.

Harvard Law School does many things well, but it has always done one thing very poorly. Both when I was there and now, it is extremely difficult for the students to get to know each other. To facilitate this, I should have put the first name on the name cards as well as the last name. The formality of using last names during class discussion (like it is done in court) seemed appropriate, but first names were clearly preferable outside the classroom. I should have required submission of resumes rather than making them voluntary, and I should have copied all the resumes and made them available to everyone in the class. I urged the students to take time to get to know each other, because my own failure to do that is one of the things that I regret most about my time at the Law School.

If I were to teach the course again, I would consider having only one examination question  – the open-ended essay. Everyone had agreed with me that the course should have no more than seventy-five students, in order to maintain the intense personal nature of the discussion between me and the students and among the students themselves.

I emphasized that it was the students who brought the course to life and made it work. There was remarkable attendance every day. No one failed to respond. No one even once said "pass" or "unprepared." Contrary to the experience in many other courses, there were more people volunteering than I could recognize and still get through the major issues. I did not recall a single person looking at the clock in the back of the room or looking bored.

Most important, no one tried to dominate the course and there was no ideology. We explored every side of every issue, and students had no fear or self-consciousness in their comments and questions. I said that I would report to the Dean that Harvard Law School is clearly different from my day in one respect. In every class I took, there was at least one "jerk" who tried to dominate and often made useless or silly comments. We thought that the Dean purposely admitted a quota of jerks and assigned them on some statistical basis so that at least one would appear in every class. That simply was not true in this class. There was not a single jerk and no silly comments.

Part of the success of the course depended upon the extraordinary diversity of the students. We had scientists, humanists, and people from all parts of the country and with enormously different backgrounds and experience. It was as important to have people who grew up on farms as it was to have physicians, former congressional staff, and former White House staff. The presentations were uniformly impressive. The real key, however, was the special friendship and trust that we all developed.

I concluded this part of remarks by saying that I could not thank the class enough for what they had contributed. One always worries about giving a party and having no one show up. My style of open classroom discussion would not have worked if there had been no student response. My only concern about doing the course again at some point in the future, indeed, was that I would not have students like those in this class, to make it come alive.

I then turned, for my final comments, to discuss the future of the students as lawyers. I pointed out that, in my time, as well as today, there were what I called the six great myths about private law practice. The first myth is that, after law school, your brain turns to mush and you will engage in no further intellectual endeavor. The second myth is that golden manacles will enslave you to large anti-social corporations and you will thereby lose your soul. The third myth is that public interest can never be a factor in your daily law practice. The fourth myth is that the practice of law is dull, boring, tedious, and not worthy of lifetime pursuit. The fifth myth is that everyone else at the Law School is more competent than you and thus in a better position to become a successful lawyer. The sixth myth is that there is no opportunity for young lawyers to make a real impact on their community, their profession, and society.

I firmly believed all of these myths when I left Harvard Law School, and my subsequent life has proved each of them absolutely wrong. If I, who finished one person above the middle of my Law School class, can have the interesting and rewarding life that I have enjoyed, then everyone in this class can do even better. It is only if you believe these myths, and base your life on them, that you will make them come true. You can give up scholarship, you can decide only to make money and not engage in public service, and you can make your life dull and boring, if you persist. It is up to you. There is unlimited opportunity and excitement if you want to find it.

I noted that, because this was my first complete course, and I had come to know the students so well, I felt that I had a very special relationship with everyone in the class. I offered to be as helpful as I could with letters of recommendation, and said that I would enjoy keeping in touch with them.

It was then time to hand out the examination. They already knew the instructions and thus there was no need to go over them again.

I did take a photograph of each part of the class and asked them to sign the seating chart for me. They gave me a standing ovation and presented me with a Harvard Law School tie, shirt, and coffee cup. They even gave me a $10 gift certificate from the Three Aces. Three of the students sheepishly handed in their resumes.

I stayed in the classroom until every student had left, in order to make sure that there were no questions about the examination. Returning to my office, I talked to Beth and sent materials to her by Federal Express. I briefly talked to Professor Todd Rakoff and told him that I would be leaving on Wednesday.

At 12:30, I had lunch with Assistant Professor Bruce Hay in the Faculty dining room. Because it was now forty degrees, we walked there outside rather than through the tunnels. I had a chance to say hello to Professor Gary Bellow, who was in the Law School the year behind me. Bruce had been hired primarily to teach environmental law. I discussed the approach that I have been following, and he indicated that he would consider trying some of my techniques.

I returned to my office at 2:00 and began to think about what I had to do before I left on Wednesday. At 2:30, Matthew Yeo, who had accepted an associate position at Covington & Burling, came to see me to discuss his third year paper on international harmonization. I promised to get him some materials on harmonization of food and drug law. I had an opportunity to say goodbye to David Shapiro. His medical treatments precluded our getting together for dinner again. I sent a copy of my examination questions to the entire family, with notes saying that I expected their answers promptly.

For dinner, I went to the Siam Garden at 45˝ Mt. Auburn Street at 6:30 with Jeff Buckholtz, Harry Johnson, Rebecca Topol (the daughter of my partner, Alan Topol), and Kimberly Yahr. We discussed the issue of exchanging student resumes. Once I agreed that the resumes could be "sanitized" to remove grades and other similar information, they agreed that it could be very useful in helping students get to know each other.

Back in my office at 9:15, I tried to clean up my desk. I would receive one more Federal Express package the next day, but that would be all. I did not want to think about what awaited me back in Washington.

At 11:00, I walked through Harvard Yard and down Dunster Street to Eliot House in twenty degree temperature. Without a wind, it seemed much warmer. When I had talked to Mother earlier in the day, she had complained about the cold sixty-five degree temperature in Florida. I told her that we were having a heat wave of twenty degrees in Boston. That evening, I did not use a heater for the second time since the first freezing night I spent in the Matthiessen Room.

January 25, 1994 Tuesday

The radio told me that it was still twenty degrees, with a cold wind. At 7:30, I stopped at the Eliot House dining hall and had doughnuts and coffee with Mark, a senior. It was a lovely day, and I took more photographs as I walked through Harvard Yard. After stopping for coffee at the Greenhouse Cafe, I reached my office at 8:30. I noted that Harvard had at long last taken down the door sign of my predecessor, and had now put up the name of my successor (Mr. Merges). They never did find out that I existed.

During the entire morning, I dictated the journal of my teaching experience at Harvard Law School this Winter Term. I had kept extensive notes, which made it quite easy. Beth had already typed, and sent to me, the portions that I had dictated earlier. In reviewing my brief descriptions of the Socratic questions, student presentations, role-playing, and discussion that I included for each day's class, it was clear that I was failing to convey the intensity, comprehensiveness, and thoughtfulness of what had actually transpired. While I did identify all the assigned student presentations, it was impossible even to characterize the Socratic questions, role-playing, and discussion that always occurred. For many subjects, there were no assigned student presentations whatever, and thus I have made virtually no mention of them. There was not much I could do about this, because any attempt to be more comprehensive in my descriptions of each day's class discussion would require a book-length manuscript.

For lunch, I met Arline Heimart at the Casablanca Restaurant and Bar at 12:30. We had not seen each other in at least thirty years, but had a wonderful discussion. I thanked her for arranging my stay in the Matthiessen Room at Eliot House. She laughed at my experiences living in a Harvard House. On the way back to the Law School, I stopped at the Coop to buy a new pair of rubbers. I had worn the old ones out with constant use.

Back at the Law School, I continued to dictate my journal. Steve Mitchell called to ask if I could have dinner at Eliot House, but I had to decline because I had already arranged dinner with students. Sakiko Takagi and her husband stopped to give me a lovely present  – a handmade blue box. Karin Michels, a former reporter who is now studying at the Harvard School of Public Health, came for an hour to talk to me about her interests and future career. At 6:30, I walked with Amy Silliman and Danielle Shelton to the Changsho for dinner. It was still twenty degrees, but seemed to be getting colder.

Back at my Law School office at 8:15, I spent the rest of the evening dictating my journal. It was fun to relive this experience, and I thought it important to get it all down on paper before my memory started fading.

At 12:15, I started my last walk back through Harvard Yard and down Dunster Street to Eliot House. As a farewell gesture, it was snowing and the temperature was down to ten degrees, but there was only a light wind. At the Matthiessen Room, I discovered that the trash had been removed for the first time since I arrived and that I had clean towels for the first time. To my amusement, however, I found that the sheets had not been changed. It was just like being back in college again.

January 26, 1994 Wednesday

I got up at 6:45 and immediately packed all my clothes (except for my suits and coats) in the four Xerox boxes out of which I have lived during the past month. It was seven degrees and still snowing. As I walked up Dunster Street and through Harvard Yard for the last time, there was a very strong wind and it was very cold. Because the undergraduate examinations were over, virtually all the students were gone and Harvard seemed deserted. I stopped at the Greenhouse Cafe for my customary coffee, a photograph, and a farewell to the people that I saw there every morning. In my office at 7:45, I continued to dictate my journal. In the late morning I packed everything in the boxes I had brought with me, said goodbye to Charles Fried, and left the few remaining cookies for the secretaries in the outer office. Bryan Liang stopped to give me a book as a token of his appreciation for the course. Even at this late date, one of the students, Katharine Bolland, called to ask me if I could continue to help her next year. She planned to turn her paper on AIDS buying clubs into a third-year paper.

At 12:45, I went to the Faculty dining room for the last time and had lunch with Professors Andrews, Bartholet, Herwitz, Horwitz, Randall Kennedy, and Rakoff, as well as Visiting Professor Peter Strauss from Colombia Law School. We had a particularly interesting discussion about the teachers who had inspired us when we were students at Harvard Law School. I emphasized how much Professor Albert Sacks (who started as a food and drug lawyer at Covington & Burling, taught at Harvard for years, and became Dean, before he died two years ago) had meant to me. He went beyond teaching the law and, in his legal process course, genuinely brought the issues to life. That is exactly what I have tried to do in my own course during Winter Term.

Professor Westfall was eating with a colleague at a different table, and when he got up to leave I said goodby to him and used the occasion to ask him how he could possibly have remembered my third year paper on federal milk marketing orders. He explained that shortly after I graduated he had been doing research on agricultural property rights and had found my paper in the Harvard Law School Library. I had written my paper under the direction of Professor Sacks, who had selected it for deposit and cataloguing in the Library. I told him that it had later been published in the University of Detroit Law Journal and cited by the Supreme Court.

At 2:00, I walked past the Three Aces to the National Car Rental office on Massachusetts Avenue and was given a four door Chevrolet with a large trunk. By now, it was five degrees, and there was light snow and a strong wind. I drove to Eliot House where, after four trips to and from the Matthiessen Room with a hand cart, I packed all my clothes in the car trunk. It was snowing and the wind coming off the Charles River was very cold indeed.

At 3:00, I drove back to Harvard Law School and parked in the International Law Center parking lot. As I was loading my boxes on a hand cart, Dean Clark came to see me in my office. He had just reviewed the results of the student evaluations and had read all of the student comments. He said that I had done a remarkable job, that many of the students had said it was one of the best courses they had taken at the Law School, and that it was obviously a very successful course. He asked me in some detail about the student presentations and role playing, which many of the student comments praised. He had never heard of these approaches before. He said that I was a natural teacher and that he wanted me to do the same course again this coming January.

I told Dean Clark that I had thought about the possibility of doing the course every two or three years, but had not considered doing it every year. He pressed me, urging me to think about it and to get back to him with my decision. He said that a course like this would be important to the students.

We then talked for some time about my reaction to my experience. I made clear my view that it was a truly inspiring and exciting experience. I described all of the techniques I had tried. In particular, I said that the worst things about Harvard Law School in my day were still the worst things today  – the failure of the students to get to know each other and the lack of rapport between the Faculty and the students. I told him about my use of resumes, and suggested that the school obtain all student resumes at the beginning of every year and circulate them to all students and the Faculty alike. He said that he would consider this. When he left, I promised to get back to him in a month with a decision on next Winter Term.

After three trips to the car with a hand cart and one trip with my student seating chart (the most important memento of this experience) in the falling snow, I was fully packed and ready to go. At 4:15, I stopped to say goodbye to Sue Robinson. She and I sat and talked for more than a half hour. She told me that my student evaluations were in excess of 4.9 out of 5.0, marks that they simply are not accustomed to seeing. She had forewarned Dean Clark that I had not considered the possibility of teaching the course every year, but she joined in his plea for me to think about it. She played on what she already knew was my weakness, the need for students to be exposed to people who thoroughly enjoy the practice of law and have found it an intensely rewarding career.

In the course of my month at Harvard Law School, I also found that my feelings about the School had changed. All of the Faculty had welcomed me with genuine warmth, the administration had been as helpful as I could have asked, and the students were not just extraordinarily bright but were friendly and fun to be with as well. In the face of this altogether positive experience, the longstanding memories of what I regarded as my far less successful three years as a student at the Law School began to fade. It is clear that I was leaving Cambridge with a different perspective. My failure to know the Faculty or many of my fellow students thirty-five years ago was replaced with the genuine enjoyment I experienced in interacting with both on a daily basis during Winter Term. My feeling of inferiority and inadequacy thirty-five years ago was replaced by the satisfaction not just of what I had achieved in the intervening years, but of knowing that my teaching experience during Winter Term had been remarkably successful. After all these years, it took a month back at the Law School to set my mind at ease about all these matters. I felt very fortunate that I had this opportunity.

I left Harvard Law School with the snow still falling at 4:50 and drove to the Marblehead Antiques at 250 Newberry Street, where I bought a set of Harvard plates for myself, a set of Wellesley plates for Kathy, and a Harvard tercentenary bowl for my office. It was a short trip from there to the Massachusetts Turnpike. I followed Everett's directions, taking Routes 84 to Hartford and 91 to New Haven and then south on Route 95.

As I drove along, through heavy snow and sleet, the roads got progressively worse. I stopped for coffee and a hamburg at 7:45 at a McDonald's just south of New Haven, and drove on to the antique shop of Pat Guthman where I looked at an antique table and then continued on my way. Once in New York City, the roads became quite treacherous. I gladly turned the car over to the valet service at the Parker Meridian Hotel on 56th Street at 9:40. It was five degrees and there was a very cold wind.

January 27, 1994 Thursday

I was up early at 6:15 to read background material for the two NDMA meetings. The Executive Committee met at 8:00 and the Trade Dress Committee met at 12:00. I left the hotel at 2:15, drove through the Lincoln Tunnel, and proceeded south.

The weather reports predicted ice and snow for the entire east coast. As I listened to the radio, the announcers reported severe ice storms throughout Pennsylvania, but they all missed the New Jersey Turnpike. The traffic going north seemed to be stalled forever, but our traffic going south made good time even in bad weather.

There was snow, freezing rain, and sleet during the entire trip. At one point just before Baltimore, there was more than an inch of ice built up on both sides of the windshield, caused by the wipers clearing snow and water from the center part of the windshield. I kept the defroster on full blast the entire time, for fear that the entire windshield would be iced over. Once beyond Baltimore, however, it seemed to warm up. I was in Washington by 7:15, and proceeded to unpack the entire contents of the car. I was in bed at 12:30, and up early the next morning to turn in the car at the National Car Rental office at National Airport.

During the entire trip from Boston to New York, and then from New York to Washington, I could think about nothing except the extraordinary experience I had at the Law School and the request by Dean Clark to do it again next January. Both Everett and Peter had remarked in our telephone calls that they had not heard such excitement in my voice since I left FDA. My regular meals (even at the Three Aces) kept me quite healthy regardless of extraordinarily difficult weather. I lost seven pounds during the month and felt quite fit. I was not on a single airplane during this time, kept regular hours, routinely walked everywhere, and looked as good as I have in years. As Everett said to me, it was undoubtedly the best vacation I have had in some time.

I thought a great deal about what had made things go so well in class. It came down to the seating chart, name cards, resumes, student presentations, role playing, and my overall Socratic discussion approach. The decision to allow student papers as a form of examination resulted in personal meetings after class with about forty students. I had lunch or dinner with thirty-three students and about forty attended the social hour. There were fewer than ten out of more than sixty with whom I felt I had no significant contact, not bad for only three weeks of teaching. I knew that there were important changes I would make if I were to do it again  – principally the use of name cards with first names, mandatory submission of resumes, and mandatory distribution of all resumes to the entire class. I would also spend time planning the role playing that I always made up on the spot for this class. I would announce my availability for lunch or dinner earlier than I did this time, and would try to have two social hours rather than only one. The basic approach, however, would remain the same.

I was not certain that I adequately conveyed to the students the depth of my affection for the entire class. Without any question, during the short period of three weeks I became very attached to my students, more so than I had anticipated would occur. Perhaps it was because this was my first class ever, but I doubt it. Rather, it was because of the style of the class  – free and open discussion  – and the genuine intimacy that developed as a result of the way that all of us approached it. A number of students actually asked me, during our meals together, how it had all occurred. One by one, they began to feel not just that they were taking a course, but that they were a part of an active discussion group among close friends. None could remember the moment that it occurred, or how it occurred, or what I had done to make it happen. I will confess that I do not know how it happened, either. Nor am I certain that it is reproducible, although I believe that it is. It is an attitude and an approach, not a system or formula. Perhaps attitude is most important of all. I really meant all the things I said the first and the last days of class, and I think that everything I did simply reinforced what I said. Over time, it had the effect that I sought. Nonetheless, only in years to come, if I teach the course again, will I really know more about how and why it was so successful this time.

As much as I enjoyed my experience, however, it reinforced my longstanding view that I would not want to teach full time. Beginning in 1970, I have taught a four-hour segment of the Civil Liberties Seminar at the University of Virginia Law School. While I have always enjoyed it tremendously, I have never been tempted to teach full time. I always returned from Charlottesville, just as I returned now from Cambridge, feeling that the extraordinary diversity of my activities  – private practice, corporate boards, scientific advisory bodies, public lectures, scholarship, and public service of a very broad nature, as well as teaching  – is what makes my life so challenging, exciting, and enjoyable. Nor would I be willing to give up the daily involvement in food and drug law, which after all is the basic foundation on which any teaching of the subject must depend. Without years of the daily practice of food and drug law, I could never have sustained three hours of discussion each day at Harvard Law School. Although I emphasized the major public policy issues, invariably it was the specific details of everyday problems faced by FDA and industry, that would be known only to a practitioner, that illustrated a point or answered a student's question and that captured the imagination and interest of the students.

I made no final decision about returning for Winter Term in January 1995, but I knew in my heart that I wanted to do it. I had put everything I could muster into making this month a success, and it had all worked beyond my wildest expectations. It was a tremendous feeling to be able to contribute not just to the education of these extraordinarily gifted law students, but equally important to help inspire them about their future careers. I had found that teaching was a truly exhilarating experience, worthy of the month of time that was required.

 

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