Elena Kagan, Law Professors, SCOTUS, SCOTUS Potential

Elena Kagan and Me: One Semester of Civ Pro With the New SCOTUS Nominee

I can count myself as one of the thousands of students that had Elena Kagan as a professor. She’s taught at the University of Chicago School of Law and Harvard Law School. I had her in 2000 — before she became Dean of Harvard Law School — for Civil Procedure my first semester 1L year. Monday, Wednesday, Friday, at some ungodly hour in the morning.

Like Frodo on Weathertop, there are some wounds that never fully heal. Professor Kagan massacred me intellectually, and brutalized my pride. I got some form of a B in her class (I honestly don’t remember if there was a modifier — I’ve tried to suppress those memories). Kagan was a frightening professor for those who wanted to match wits with the brightest legal minds in the world. For people like me, people who just wanted to get through law school with minimal mental damage, Kagan was nothing short of terrifying.

Consider this a notebook dump from my three months in Kagan’s class…

As a professor, Kagan was one of the last of a dying breed: a purely Socratic law school professor. With Kagan, there was no panel. There was no back-benching. She would just randomly call your ass to the carpet, and you had best be prepared.

Here’s the thing about the Socratic method: it freaking blows when people are not prepared. Sure, it’s horribly embarrassing for the person who is stumbling through, trying to answer questions based on cases he or she hasn’t read. But it really just slows the whole class down. Yes, 5% of us didn’t read International Shoe, but 95% of us did; can you focus on the ones who did their homework?

I hated the Socratic method, and while many people in my section were so terrified of Kagan that they did their Civ Pro reading before anything else, I quickly fell into the habit of not doing my Civ Pro reading. Hell, we were just going to spend half of class rehashing what people already read the night before. In my 1L mind, I was being efficient.

So it came that one Friday morning I was cold-called. I wasn’t even in the ballpark of being prepared. But I didn’t want to waste everybody’s time. So I responded: “Professor Kagan, honestly I didn’t get to all of the reading for today’s class. Sadly, I think I need to pass on this one.”

Bzzt. Wrong answer:

PROFESSOR KAGAN: Well, Mr. Mystal, did you manage to remember your casebook?
1L ELIE: Yes. But like I said, I didn’t …
PROFESSOR KAGAN: Do you think you could be bothered to OPEN your casebook?
1L ELIE: (I have a bad feeling about this.) Yes. Abso…
PROFESSOR KAGAN: Please turn to page [whatever]… Now read.
1L ELIE: (Reading silently.)
1L ELIE: (Channeling Nathan Jessup: I’m not an idiot, I don’t need to read aloud like I’m a five year old.) Umm … Okay. (Much reading aloud.)
PROFESSOR KAGAN: Now, can you explain to me what you just read?
1L ELIE: (I can’t even remember what I blathered.)
PROFESSOR KAGAN: Mr. Mystal, open to page [same page as before], and TRY AGAIN!

At that point I just kind of had a disassociative break. My mouth kept moving, but my mind went into some kind of fetal position. Please stop hitting me, Professor Kagan.

Kagan hated unprepared students, but she reserved her harshest ire for people who showed up to her class late. She’d essentially stop the class, literally — she’d stop talking in mid-sentence. Then she’d wait impatiently for the student to assume their seat. And then make some caustic remark about the importance of timeliness.

But I’m educable. So I quickly learned that if I was going to show up to Kagan’s class five minutes late or unprepared, it was better to not show up at all. I waited for my opportunity. It came about three weeks later:

PROFESSOR KAGAN: I wonder if Mr. Mystal prepared this time around?
PROFESSOR KAGAN: Good, then perhaps you can tell me what Justice [somebody] meant when he said [something I didn’t care about]?
POMPOUS ELIE: Well, why just tell you about it, when I can read about it? (POMPOUS ELIE opens his casebook and begins reading aloud.)

Now, that was a brilliant move on my part. But it didn’t go over well, and pretty soon I found myself sitting in her office — trying to make nice, because while I’d given up on an A, I wasn’t sure my ego could take an F.

In her office, I was pretty forthright about how I found Civil Procedure so boring I felt like I needed a defibrillator every time I walked into her classroom. She chuckled. It turns out Kagan has quite a sense of humor (so long as you are on time). She started quoting Thurgood Marshall, for whom she clerked, about how rules were the key to defending the rights of minority populations in this country. It was a compelling argument. I mean, it didn’t make me like Civ Pro, but it made me like Kagan a lot more. I realized she was a person, not a God that got strong on the tears of terrified 1Ls. She was just an average human who happened to enjoy the taste of fear.

I managed to make it through the rest of Civil Procedure without incident. But there were many other Kagan sightings during the brief moments of sobriety I experienced in law school. She’s a smoker (or at least was one), and I offered her a cigarette once (she didn’t need my charity). I almost knocked her over as she was coming out of liquor store once (the fault was mine). My greatest failure was that I never once got her to play poker with me (I hear she’s excellent at the game).

My best Kagan story comes from graduation. My year (Class of ’03) was the last year for HLS Dean Robert Clark. Kagan took over next term, so at our graduation Dean Clark and Dean Kagan were both on the podium. Dean Clark handed me my diploma and smiled (he was a fan of mine because of the HLS parody).

Kagan? She smiled slowly and shook her head as I walked by. My mother noticed: “That lady doesn’t seem to like you very much.” I said: “Well, Kagan really likes people who like rules, and people who are as passionate about the law as she is. So that makes us natural enemies. But I like her a lot; she’s very smart.”

My mom said: “So you’re saying you would have gotten along fine, if she never had to meet you?”

Pretty much.

(hidden for your protection)

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