In advance of the two pairs’ oral arguments before Professor Hal Scott and two other faux judges, Mark and Barack completed their thirteen-page brief, with Barack writing the insider trading argument and Mark handling the RICO question. Barack contended that Egan’s work “inevitably” and “necessarily” would have made her aware that the materials she had proofread were nonpublic information, which she then misappropriated in violation of the 1934 statute. Barack flubbed badly in referencing the U.S. “Court of Appeals of the Second District,” when he should have written “for the Second Circuit,” and a careful eye would have caught misspellings and bad grammatical errors, such as “recieve,” “the harm done by insider trading are diffused,” and “employes like Egan regarding the in no way mitigates.” It was visibly sloppy work, especially compared to what Mark offered in the RICO section. “The Egan-Cleary enterprise victimized not merely” Egan’s employer, they argued in conclusion, “but the integrity of the securities market as a whole.” Oral argument turned into “a bit of a fiasco,” Kozlowski remembered, when he “got into a fight” with Professor Scott. “Barack was somewhat angry with me afterward,” Mark recalled, but “by that point” both Barack and Rob were happy to leave moot court behind them.13
That same day, Ian Macneil received a letter from the Women’s Law Association, complaining that Section III’s Contracts reading earlier that week had contained sexist material. In dealing with a convoluted contracts problem known as “the battle of the forms,” Macneil’s casebook invoked the phrase “jockeying for position” and then quoted a couplet from Byron’s “Don Juan”: “A little still she strove, and much repented, / And whispering, ‘I will ne’er consent,’—consented.” Given Section III’s history with Macneil, some classmates knew as soon as they read those lines that controversy would follow. Bonnie Savage, the WLA chair, wrote, “Repeated instances of sexism in both your contracts textbook and your classroom discussions have been brought to the attention of the Women’s Law Association.” She said the Byron quote reflected “sexist attitudes” and “has no place in a contracts textbook.” Indeed, “by using sexist language, you encourage sexist thought and, in essence, promote hostility against women.”
Macneil later acknowledged, “I knew the class considered me a first-class bastard,” but the WLA aspersions were “a bolt out of the blue.” When classes resumed after spring break on Monday, April 3, every member of Section III and every member of the law school faculty received an eight-page, single-spaced letter of rebuttal that Macneil addressed to the WLA. “Throughout the year I have had a great many complaints about the course from students of both sexes,” but only two had anything to do with gender, and at the December 7 grievance session, “not a word was said about any alleged sexism.” Macneil declared that “this whole affair … reeks of McCarthyism” and said its roots lay in his efforts “to insist that students act like professionals in the classroom respecting participation, preparation, attendance, and promptness.” Two days later, Macneil reiterated his mandatory sign-in policy, saying he had referred the names of three regular absentees to law school administrators. A number of students spoke up in support of Macneil, and others asked about the upcoming, much-feared final exam.
A week later, the Boston Globe published a lengthy story, highlighting “Macneil’s tough classroom manner” plus “his volatile temper and argumentative style.” The Globe quoted Bonnie Savage as saying the WLA feared Harvard might give Macneil a permanent appointment. More significant, Jackie Fuchs told the paper that Macneil “goes out of his way to avoid being sexist,” and that she, like a good many other Section III women, felt that WLA’s “letter was really out of line.” The Harvard Law Record’s own extensive coverage included multiple students noting that they had been given no notice that the law school’s long-dormant attendance policy might suddenly be enforced.
Within Section III, the news coverage generated something of a pro-Macneil backlash. Brad Wiegmann remembered feeling badly for Macneil because “people were treating it as if it was the civil rights movement over whether you had to attend your Contracts class.” Lisa Hay believed Macneil “got a raw deal” from Section III, and David Troutt agreed he was “a decent guy” whose relational view of contracts “actually was probably a good theory.” Among students who later became contracts lawyers, some, like David Attisani and Shannon Schmoyer, said that Macneil’s course had been of no professional value, but an equal if not greater number strongly disagreed. Steven Heinen “really appreciated his very practical approach to contracts,” and said Macneil’s teaching has “served me well” in later years. David Smail, who would become general counsel of a prominent international hotel corporation, remembers Macneil as “a pompous asshole,” but “as much as I despised the man,” Macneil’s “relationship approach to contracts is one that I really fervently believe in, and I preach it every day in my business.” As a general counsel, “you’re living with the contract rather than just drafting it,” and Macneil’s perspective “is a very powerful way of looking at contracts.”
Soon after the news stories, law school administrators convened a small meeting with Macneil and several students. Ali Rubin remembered that Barack had “distanced himself from” the complaints, and Mark Kozlowski knew that Barack felt “there was nothing we could do about it.” Rob remembered that “Barack and I both felt that the revolution was a little over the top,” and by April, Obama was playing “a mediating role” and was “calming people down.”
Lauren Ezrol, one of Section III’s official representatives on the Law School Council, recalled being summoned to the meeting. “It was Barack, me, and then everyone else in the room was an administrative type, like a dean of students, and Macneil was there.” They were “supposed to try to work out the issues,” but rather than some dean taking the lead, instead Barack “was the one who with great confidence talked to Macneil” and “worked out whatever resolution” was agreed to. Ezrol thought Obama was “unbelievably impressive,” and his interaction with Macneil was entirely amicable. “I was just blown away,” Ezrol remembered, “to see someone operate with such ease and confidence and maturity. It was remarkable.” Years later, just prior to his death, at age eighty, in 2010, Macneil recalled that Obama was “a calm person in a class that was not altogether characterized by people being calm,” adding that it was “obvious that his class respected him.”14
Barack and Rob continued to visit David Rosenberg even after their fall Torts class ended. Rosenberg believed they should expose themselves to “the best minds on the faculty,” and as the time for choosing 2L fall courses drew near, Rosenberg recommended well-known constitutional law teacher Laurence H. Tribe. For most 1Ls, it would take a good deal of gumption to approach one of Harvard’s most prominent professors, Rosenberg knew, but on Friday, March 31, Obama did so, and Tribe was immediately taken by this heretofore unknown student. As Tribe remembered it, their first conversation lasted for more than an hour, and before it ended, Tribe asked Obama to become one of his many research assistants, which Tribe had never asked of a 1L who had yet to take one of his courses. Tribe wrote his name—“Barack Obama 1L!”—on that day’s desk calendar page, and soon Barack drew Rob Fisher into this relationship with Tribe as well.
When word spread among their close aquaintances that both Obama and Fisher were now working for Tribe, Ken Mack can remember thinking how astonishing that was. Tribe was so impressed by Barack that he mentioned him to his colleague Martha Minow, a 1979 Yale Law School graduate who had clerked for Justice Thurgood Marshall before joining the Harvard faculty in 1981. Minow was always interested in students from Chicago, because she had grown up in the city’s northern suburbs and her father, Newton Minow, who had served as chairman of the Federal Communications Commission during the Kennedy administration, was now a Sidley & Austin senior partner. Martha told her father about Tribe’s