Epilogue

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Once back in Washington, I was overwhelmed with the work that awaited me. All of the meetings and projects that needed my attention in January were postponed until February, and the usual February work was added on top. I made five separate trips to San Francisco, two to New York City, and one each to Pittsburgh, Minneapolis, Las Vegas, Phoenix, Sarasota, and Boston, during this month.

Joe Guberman telephoned on January 31 to say that he was sending the examination papers and answers, and they arrived on February 1. Of the sixty-one students, fifty-three answered Question I (the open-ended paper), five answered Question II, and three answered Question III. I took the papers and answers with me all over the country, and read them on airplanes and in airports and hotels wherever I went. I found what I expected  – grading is relatively easy at both ends, but extremely difficult in the middle. It took me three weeks to read the papers and answers enough times to have confidence in the grades that I awarded, and I was still not completely satisfied.

I began by giving tentative grades, often assigning a grade range (e.g., A‑/B+). As I went through the papers and answers a second and third time, I forced myself to make clearer distinctions.

I did grade the answers to each of the examination questions against the other answers to that particular question. I found this necessary because I thought it would be unfair to compare the papers submitted in response to Question I (the open-ended paper) to the answers for Questions II and III (the three day take home examination). I also distinguished between Questions II and III because I felt that Question III was significantly more complex and difficult.

Finally, I found it essential to establish an "average" grade for the course. I had been told that the average for first year students is slightly above B and the average for second and third year students is slightly below B+, but I was not at all confident that this was true. I also felt strongly that, as a whole, my class had superb attendance and extraordinary participation, and thus deserved slightly higher grades than whatever the average might be. I therefore decided that I would grade on the basis that the average would be a B+.

Initially, the great majority of papers would have received a B+, with only a few with a grade of A- or B, one with A, and two with B-. After discussing this with my colleagues at Covington & Burling, however, I became convinced that it was important to make greater distinctions among the grades and thus to spread them out. This was not easy, because I felt that, with only a few exceptions, every paper or answer had merit. Finally, on the evening of February 21, I secluded myself in a conference room, stacked up all the papers and answers in front of me, and made the final grade determinations by sorting them into seven different grade piles.

The final results, sent by Federal Express to Sue Robinson the next day, broke down as follows:

A+

1

A

2

A-

13

B+

29

B

9

B-

5

C+

2

Total:

61

I felt good about the overall distribution, but I still agonized about some of the specific determinations.

Overall, there was not a poorly written paper or answer among the sixty-one. That is perhaps not surprising. Anyone who has the qualifications for admission to Harvard Law School undoubtedly has solid writing skills. The differences on the basis of which I awarded better or worse grades related to originality, insight, analysis, and completeness. Those that were almost completely descriptive did not do as well as those that were both descriptive and analytical. Those that focused on one or a few limited aspects of the subject did not do as well as those that attempted a more complete review and evaluation. Nonetheless, I remained uncomfortable with some of the distinctions that I had to make, and unquestionably regarded the entire grading exercise as the least enjoyable part of my teaching experience.

As soon as the Office of the Registrar received the grades, the Assistant Registrar, Annie Bombard, called to inform me that there was no such grade as a C+. Any grade below B- had to be a straight C. After discussing the matter with Sue Robinson, who admitted that a C is a very low grade, I changed the two C+ grades to B-. Three days later, I received in the mail the identity of each student matched up with the grades I had awarded. I was clearly disappointed that some of the students I had liked so much and who had contributed so well in my class had not done as well in their grades as I would have liked. I wondered whether teachers ever learn how to cope with the grading process.

There was one problem connected with permitting papers, rather than the normal examination, that could only partially be surmounted. Harvard Law School believes that it is important to preserve the principle of anonymous grading, and I am in complete agreement with that principle. In discussing paper topics with students  – to which I not only was receptive, but indeed which I clearly encouraged  – I came to associate many students with specific topics. Thus, there was the clear danger that the principle of anonymity would be compromised.

When it came time to grade the examinations, however, I found that the majority of topics had attracted more than one student, and thus it was impossible for me to determine, even if I had wanted to do so, which student had submitted which paper. Only in a small number of instances was the author of a particular paper apparent to me, and even in those instances I believe it had no influence on the grade that I awarded.

On balance, I unquestionably believe that encouraging students to write on any topic of their choice, and making myself available to discuss the subject and to obtain otherwise unavailable background materials, is more important than strict adherence to the principle of anonymous grading. By having complete freedom to choose a paper topic that would be of personal interest, the student interest in the course was enhanced. Although Professor David Shapiro warned me that some students might lose interest in the course because they would not need to read the casebook materials or participate in class if they were writing a paper, I could find no evidence that this occurred. The vast majority of students chose to write papers, but the student participation in class remained extraordinarily high.

Discussing paper topics with the students was extremely important. In many instances, I was able to persuade them to narrow a topic in order to be able to address it adequately, or to suggest alternative topics that turned out to be of greater interest to the individual student. The background materials that I was able to obtain from the Covington & Burling food and drug law library, moreover, not only gave the student a much greater appreciation of what "real administrative law" involves but also lead to more complete, interesting, and satisfying papers. Thus, looking back, the approach of using a paper rather than the customary examination was a complete and unqualified success. As I have related elsewhere, it was the catalyst that assured almost continuous contact with the students, including even those who otherwise would never have taken the initiative to come to my office. I would never have taken this approach if the students had not pursued it so strongly when we discussed the matter on the first day of the course.

One aspect of this did surprise me. Many of the students commented that they welcomed the opportunity to write a paper, rather than the customary examination, because there is very little opportunity at the Law School today to submit written papers for course credit. I had thought that, with the emphasis on seminars and smaller classes in the years since I was at Harvard, there would have been greater opportunity for written papers. That apparently has not been true, to the clear disappointment of many students.

In one respect, I clearly failed to carry through with what I had wanted to do with the examination papers and answers. Professor Betsy Bartholet had remarked to me, during our lunch, that when she had provided written comment to students on their examinations they were very appreciative. I had wanted to emulate Betsy, by providing written comment to all of the students on their papers and answers. Because of my other obligations, however, I simply could not find time to do this. Nor do I think that I would be able to do it in the future. It clearly is the right thing to do, but it is a daunting task that would require a substantial commitment of time.

After my agony with the grades, I resolved to change the way I approached grading if I taught the course again. Next time, I would find two other people at Covington & Burling to read all the papers and to grade them independently, using the same curve that I used. The final grade would be the average of our three independent grades. This would go a long way toward eliminating the arbitrariness inherent in one person determining the grade, and in any event might help relieve my personal anguish about the entire process.

A second year student, Jeffrey Bucholtz, telephoned to ask whether I could provide him a letter of reference for a clerkship. When it came time to write the letter, I discovered that it was difficult to do without knowing his grade. After I received the list from the Office of the Registrar, matching up the students with the grades, I discovered that he had received the highest grade in the class, the only A+ I awarded. It was an easy and enjoyable task to write his letter of recommendation. Later I was extremely please to learn that, on the basis of second year grades, he was one of about six second year students invited to join the Law Review.

Everyone with whom I discussed the matter encouraged me to accept Dean Clark's invitation to teach the course again during Winter Term in January 1995. My primary concern was that, after such an extraordinary experience this year, it could only go down hill in the future. Nonetheless, I knew that I really wanted to do it. Thus, on February 22, the day on which I sent the grades, I telephoned Sue Robinson to say that I would do it again.                  

I did cover a number of important subjects with Sue. We agreed that there should be a limit of seventy-five students in the class. Sue said that there would be no realistic way to have a selection process, but felt quite strongly that the same type of students would self-select for the course next January as selected it this January. Under Harvard Law School rules, the course must be two and a half hours rather than the three hours that I requested. They will obtain long name cards from the Business School so that I can use them next year to include both the first and the last name of each student. I can specify in the HLS Advisor that each student must bring to the first class a resume, which may be purged of information relating to grade point average or other information that would be regarded as an invasion of privacy. I will receive some level of honorarium, which will certainly be sufficient to pay all expenses and to finance two social hours and my customary meals with students. It simply is not possible to determine what office I might have, or which secretary I will share, because the new office building that will be completed within a few months on Holmes Field will result in an office change for virtually every Faculty member. I will, however, be able to retain Griswold 110 as my classroom. Finally, Sue said that Winter Term will begin on Tuesday, January 3, and extend through Wednesday, January 24, 1995. I immediately blocked it out on my calendar.

Four days later, I received from Sue Robinson all of the same forms that I had filled out a year ago. This time they were much easier to understand and complete. I did not need to telephone Sue even once. I added a seventy-five student limit and changed a few words in the course description, but otherwise it remained unaltered. The forms quite firmly stated that only two teaching slots were available for three hour courses: 8:30-11:15 and 10:45-1:30. I reluctantly concluded that the former was better than the latter, even taking into account the unanimous student dislike of the earlier hour. Not only did I not wish to preclude my own lunch in the Faculty dining room, but I was very concerned about students losing interest as the lunch hour came and went. I therefore chose the same 8:30-11:15 time period as this year, but with the request that it be changed to 9:00-11:45 or 12:00 and that, in any event, no class be scheduled in Griswold 110 following my class so that, whatever the hour might be, I could stay to discuss issues with students without pressure to make way for the next class.

On January 18, Professor David Charny (who had been a summer associate at Covington & Burling) had distributed a memorandum to the Law School Faculty announcing the Irving Oberman Award for the best student paper in the field of health care law. I had been unsuccessful in reaching him then, but did talk to him by telephone on February 9. He agreed with me that "health care law" should be interpreted to include food and drug law, and encouraged me to submit the best paper that I received. I also decided, as a separate matter, to write the students who prepared the best papers I received (those with an A- or higher grade), urging them to make any revisions they might wish and then to submit them for the H. Thomas Austern Writing Award competition conducted each year by the Food and Drug Law Institute.

A third year student, Harold Rowe, called to ask me to supervise his third year paper, on patient package inserts. Professor Alan Stone was his official supervisor, but both Alan and Harold had concluded that it would be preferable for me to take the lead on this matter, and I therefore agreed to do so. Harold prepared an excellent draft, on which I offered comments and suggestions. I made certain that Alan submitted it for the Irving Oberman Award, and was later delighted to learn that it in fact won this prize.

When I returned from Cambridge, I found the annual announcement of the Scholarship program funded by the Food and Drug Law Institute. Partly on my recommendation, the Institute had abandoned the Fellowship program at New York University Law School, from which I and many others of my generation had benefited so greatly, because of declining interest from recent law school graduates. To replace the Fellowship program, the Institute established a Scholarship program, under which three law school students were selected each year from among applicants throughout the country and were awarded a $5,000 Scholarship on the condition that they write a major paper on food and drug law under the direction of a professor teaching food and drug law or administrative law. I wrote Sue Robinson to request that a notice of this program be placed in the HLS Advisor, and she promptly did this. One of my third year students, Kimberly Jackson, had won one of the FDLI Scholarships for this academic year and I was very pleased when one of my second year students, John Gardner, won one of the Scholarships for the coming academic year.

At dinner on February 19, I had an opportunity to explore some of my ideas about teaching food and drug law with my partner, Ellen Flannery, who has taught the subject at the University of Virginia, Boston University, and now the University of Maryland, and with two new food and drug law associates at the firm, Hannah Horsley, who went to Yale Law School, and Georgia Kazakis, who went to Harvard Law School. In general, they endorsed all of my ideas except for one. All three were concerned about the possible reaction of students if their resumes were distributed to all of the other students in the class. After listening to their concerns, I concluded that I should proceed carefully on this, and not try to do it on the very first day. Instead, I will explore it with the students during the first week, and decide at that time whether to try it.

After a full day of meetings in Boston on February 23, I participated in a panel discussion at Harvard Law School on the Clinton health care reform legislation, organized by Bryan Liang, one of my students. Professor Alan Stone moderated the panel. Five of my students attended  – Katharine Bolland, Jeffrey Bucholtz, John Gardner, Christine Solt, and Steve Stranne  – as well as the young Japanese woman who had audited the course, Sakiko Takagi. I was enormously pleased to see them again.

While I was making a telephone call just prior to the panel, Norman Carlin walked by. When I told him that I had just sent in my grades, he immediately photocopied all of the student evaluations and gave them to me. He predicted that I would be extremely pleased. I told him that the student evaluations had already resulted in an immediate invitation to me from Dean Clark to repeat the course in January 1995, and that I had just agreed to do so. Norman warned me that I would be greatly oversubscribed, and agreed with my decision to limit the course to seventy-five students.

Professor Stone informed me that he was the Chair of the Law School Lecturers Committee. The Committee had met that day and was extremely pleased that I would be returning. He told me that, as is always the custom, the Committee reviewed the transcript of my grades at Harvard Law School. I responded that they must have been appalled, and told him that I had informed my class on both the first day and the last day that I felt fortunate to finish one person above the middle of my Law School class. Alan (who is not a lawyer) told me that he used my record to repeat a lecture that he has often given to the Law School Faculty, that grades are of little if any predictive significance. He thanked me for giving him an opportunity to make what he considered the perfect case for his position. He was extremely complimentary about the evaluations I had received not just from the students but also from the members of the Faculty I had met during the Winter Term.

It had started snowing about noon, and by the time the Law School panel was completed at 9:00 there were eight inches of snow and no prospect of leaving Boston by plane. I therefore took a taxi to South Station and the Night Owl train, which left at 10:10 and arrived in Washington at 8:00 the next morning. Because all the sleeping berths were taken, I spent the night in the coach car. Being curious about the student evaluations, I proceeded to read them. Norman Carlin was correct. I was overwhelmed not just by the scores that the students gave me, but particularly by their written comments. When I compared both to the summaries of the other Law School courses published by the Board of Student Advisors in the Course Evaluation Guide for 1992-1993 that Kimberly Jackson had given to me, it was clear that I had been extraordinarily successful in what I had tried to do.

Nineteen separate items were rated by the students, on a scale of 1 (the lowest score) to 5 (the highest score). On the initial eight questions that rate the professor/instructor, I received the following scores:

 

 

1

2

3

4

5

1.

Sensitivity to student concerns.

0

0

1

3

37

2.

Accessibility outside of class.

0

0

0

2

39

3.

Knowledge of subject matter. 

0

0

0

0

41

4.

Clarity of presentation.

0

0

0

8

33

5.

Organization of presentation.

0

0

0

9

32

6.

Responsiveness to student questions.

0

0

3

4

34

7.

Presentation/acceptance of alternative viewpoints.

0

0

3

4

34

8.

Overall effectiveness of teacher 

0

0

0

2

39

The Course Evaluation Guide for 1992-1993 reflects only one or two other teachers (out of about sixty full time Faculty, twenty visiting professors, and twenty-five lecturers) in the same range.

On the four questions that rate the substance of the course, the scores were somewhat lower:

 

 

1

2

3

4

5

9.

Interest of subject matter.

0

0

3

13

24

10.

Difficulty of subject matter.

1

11

21

6

2

11.

Relevance/importance of subject matter.

0

0

7

14

20

12.

Overall effectiveness of the course. 

0

0

1

12

28

I was disappointed that the scores for questions 9, 11, and 12 were not higher, but the averages were all above 4.0 and thus still at the high end of the range in comparison with other courses. The score for "difficulty" clearly was at the low end of the range, which did not trouble me at all. Perhaps I was wrong, but I attributed that score to the high student interest and participation and to my focus on the major public policy issues.

The next six questions evaluated the course materials, assignments, and workload:

 

 

1

2

3

4

5

13.

Organization of materials.

0

0

5

15

20

14.

Interest of assigned materials.

0

1

11

15

14

15.

Quality/editing of materials.

0

1

11

15

14

16.

Relevance of assignments of course. 

0

0

9

19

13

17.

Workload (1. Too light; 3. Appropriate; 5. Too heavy)

0

4

27

8

1

18.

Pace of the course (1. Too slow; 5. Too fast.)

0

2

34

5

0

The responses to questions 17 and 18 confirmed my feeling that the course workload and pace were fine. I was surprised that the four questions relating to the casebook did not receive higher scores, but was somewhat appeased when I again discovered that they ranked high in comparison to other courses.

The answers that I found most amusing were the attempts by the students to respond to question 19 (the last question), asking them to characterize my teaching style/method of instruction as primarily (1) Socratic with no passing (five students), (2) Socratic with passing allowed (fourteen students), (3) only voluntary participation (four students), (4) group/panel asked to prepare (fourteen students), or (5) lecture (none). I was glad that no one characterized my style as a lecture, and that all of the other four styles received votes  – because all were in fact accurate.

By far the most overwhelming part of the evaluations, however, were the student comments. Reading them, I knew that I had met my primary objective. Student after student commented that I had engaged the entire class, had sought to make myself extremely accessible throughout the month, and was committed to interacting with and responding to the students. Numerous students praised the concept of student presentations, one commenting that this gave a real opportunity to "showcase the intellectual talent of the students." A comment noted that, as a result of the student presentations, "possible antagonism/emotions of the class are minimized and the discussion can be productive and all the issues come out." Many comments remarked how everyone in the class was "engaged and involved," and one stated that "I never saw a bored face in class." A student wrote that the class was "safe and open to the expression of almost all perspectives." One of the comments that I enjoyed most said that this was "the only course in which I learned something about my classmates." Then there was the student who praised not only my "enthusiasm" but also my "nice suits." A number said it was the best course that they have had at Harvard Law School. Perhaps most telling, every comment said that they would recommend that others take the course.

That was what I wanted when I was at the Law School, and with the exception of Professor Sacks I never found it. I felt vindicated, having proved that it can be done. And in the process, I was captured by my students  – extraordinary young women and men who will undoubtedly make major contributions to society in the years to come. Thus, I came to prove a point (in which I succeeded), but left with something still more important. Teaching is not an end in itself. It is the student, and the future promise that resides in the student, that makes it all worth while.

In May, I telephoned Sue Robinson one final time, to determine the preliminary registration results for Winter Term 1995. Sue told me that the class was completely filled, and that there was a waiting list of more than ninety students. She had thus far assigned seventy students to the course, leaving five places available for LL.M. candidates if they wished to take it. If and when any of the seventy transferred to other courses, those who are on the waiting list would be accepted in the order of their rank. The rank is chosen by the preference designated by the students for each course to which they apply.

When I expressed concern that some students who really wanted to take the course (two of whom had already called me) might not make it off the waiting list and into the course, Sue reminded me that this meant that they did not place it high on their preference list. Nonetheless, I wished that I could find a way to accommodate everyone, without raising the limit of seventy-five students that I knew had to be preserved in order to maintain the atmosphere and approach that characterized the course this past January. Just as the student evaluations had persuaded Dean Clark to invite me to teach the course again, they had persuaded a large number of their fellow students to sign up for the course as well.

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