It was inevitable that Bernie would go to law school. Above average analytic abilities, debating skills polished in rambunctious yeshiva classes, a belief in the rule of law strengthened by Torah study. He was a natural. There were three other Orthodox Jews in his evening class of 150 students. They sat together in a secure row, as did the three Black police officers whose general imperturbability made Bernie as uneasy as the guns visible beneath their three‑piece suits. A Chinese couple named Lee sat at the front of the room, beneath the elevated podium where the professors stood. Bernie couldn’t tell if they were brother and sister or husband and wife. Two Asians, three African Americans, four Orthodox Jews, seated among ambitious secretaries, diffident veterans, weary commuters from the suburbs. Classes were Monday through Friday, six to nine o’clock, always in the same room. The only thing that changed was the professor.
Law school would require changes to his routine. With his father’s death two years before, Bernie had become the sole proprietor of Empire Systems Inc., selling mail‑order kits for home security devices. Prices ranged from $39.95 for a simple buzzer alarm to $379.95 for a deluxe burglar alarm. It was early days in the 21st century, just after Y2K had threatened widespread chaos, and people were both crime and cost‑conscious, and uncertain about perils awaiting them in the new millennium. Frequently, Bernie would sell and install a more elaborate system for a commercial customer. He could supply switch sensors and pressure mats, photoelectric beams and ultrasonic motion detectors. He advertised in Apartment Life, Popular Mechanics, and the Daily News. Business was good, and night school would allow him to take care of filling orders during the day, but balancing a full-time business with full-time study and classes would present challenges to both.
Then there were the challenges he hadn’t anticipated. In the second week, Bernie led three reluctant coreligionists to the office of the assistant dean to protest the scheduling of Friday night classes. Although the law school was avowedly secular, the administration still had to answer to its parent Jesuit university. It seemed reasonable to expect that a religious institution would respect the religion of others.
The assistant dean, however, was a company man, and unshakable.
“Nobody likes Friday classes,” he said urbanely, “but there’s nothing I can do about it. The state requires fifteen credit‑hours per semester, and there is no way I can reasonably schedule fifteen hours a week for hundreds of night students without Friday night. I’m very sorry.” He didn’t seem sorry at all.
“It’s not a question of liking or disliking classes on Friday nights, Dean Tunney,” said Bernie. “The point is, we can’t attend classes on Friday night. It’s our Sabbath. We have no choice in the matter.”
Years of negotiating with law students were evident in the dean’s response. “Well, look, this is not an insurmountable problem. You have − what? property law scheduled for Friday night? As I said, nobody likes school Friday night. You’ll find that about half the class cuts each Friday, but they’ll still manage to catch up with the work by the time exams roll around. You’ll be able to do it, too.”
“But it’s not the same half each Friday. They don’t miss every single class as you’re forcing us to.” Bernie raised his voice on the word forcing, and looked to his companions for a protesting murmur of agreement. There was none forthcoming. “Look,” he said, “how about videotaping the property class and we can see the tapes in the library when we have free time?”
“Out of the question. Too expensive. Plus it would set a dangerous precedent for the other students.” The dean nodded approvingly at the judiciousness of his own remarks. “This is not a correspondence course. Borrow notes from students who go to class.”
“Nobody lends notes in law school,” said Bernie, but the conversation ended there.
Bernie sought refuge in the classroom. Father Keefe was no company man. A noted scholar and man of ideas, he was as at home appearing before the United States Supreme Court as he was confounding a classroom of awestruck disciples with the genius of Anglo‑American common law.
“…so a promise made in acknowledgement of a moral obligation fails. Can you explain why? Mr. Macklin?”
“There’s no bargained‑for exchange, no legal consideration.”
“Hence, no contract. Can anyone tell me if there are any exceptions? Mr. Concannon?”
“Bankruptcy debts discharged by the court may still be enforceable. A promise can revive them.”
“Correct, Mr. Concannon. The basic principle as articulated is unchanged. However, the origin of the transaction may provide the necessary consideration.” Bernie raised his hand. “Mr. Shreiber.”
“If moral duty doesn’t give rise to an enforceable promise, maybe consideration is an obsolete requirement for a contract. The Bible says that if a man makes a vow, he must not break his word.”
“Perhaps you’re right, Mr. Shreiber. Some states have passed statutes modifying the harshness of the rule.” A bony hand gestured eloquently. “But for the majority of states, the common law rule is the one articulated in Feinberg v. Pfeiffer.”
Bernie sputtered with indignation. “Then the common law is wrong. The plaintiff in Feinberg was promised a pension based on thirty‑seven years of past service. The law should protect her.”
The professor was painstakingly courteous, almost courtly, in his reply. “Absolutely, there was a moral duty owed to the plaintiff. However, as the promise was wholly gratuitous, the law leaves the keeping of it to the promisor’s conscience.”
So much for Mrs. Feinberg, the plaintiff who by now must have been dead as many years as her unrecompensed service, enshrined in dusty tomes. Bernie pushed his casebook away and half rose from his seat.
His outrage gave him eloquence. “By any rational standard, she was entitled to that money. The Mishnah says, Three things sustain the existence of the world‑‑justice, truth, and peace.” Bernie braced for groans or snickers from his classmates, but there were none. Somehow that made it worse. “It should have been hers as a matter of right. She worked for that company for thirty‑seven years.”
“I fear you are repeating yourself, Mr. Shreiber. Yes, Mr. Concannon?”
“If morality were the guide, wouldn’t every promise made be enforceable?”
“Very good, Mr. Concannon. There may be a moral obligation to perform a promise, but not a corresponding legal obligation. The law does not supply what is missing in foro conscientiae.”
Bernie wondered how a legal system could portray itself as the defender of justice and place ethical concerns outside the reach of its power. Undoubtedly morality demanded that the university welcome the opportunity to educate Bernie and his fellow Jews as well as the Asians, African Americans, and other infidels, not to mention the sudden onslaught of women demanding their place at the bar. Yet it was only the threat of lost federal monies that had awakened the Jesuitical conscience of the university’s committee on admissions policy. Even now Bernie could detect in Father Keefe’s eyes a faraway look, as if he remembered other times, better times, when he had stood before another sea of upturned faces, pink‑skinned and clean‑shaven, teaching a mandatory course on canon law to the unquestioning faithful.
At least Father Keefe was polite, if a bit cool in his detachment. Professor Shapiro was not a Jesuit nor was he so polite. Professor Shapiro was not just a Jew but a wholly assimilated Jew, byproduct of an adversary system that demanded there be a winner, and whatever it was he expected to see when he looked out over the classroom, it was not Bernie.
“So the decision in this case” – public education programs in church schools – “is another example of the uneasy balance between religious accommodation and religious entanglement.” Bernie’s hand shot up. So did Concannon’s. “Here the Court found the Establishment Clause violated by even a symbolic link between government and religion.” The professor called on Concannon.
“Then it’s irrelevant whether there’s any coercion involved?”
“In this case, yes. But the Court tends to seesaw on these First Amendment cases. Remember, this was a five‑four decision.”
Bernie said, “Professor Shapiro.” The professor frowned at him, but remained silent. “What about Sunday closing laws? Aren’t they examples of laws that establish an official religion?”
“Not according to the Supreme Court. In McGowan v. Maryland, Sunday closing laws were found to have a legitimate secular purpose − a uniform day of rest − and to be free of excessive entanglement.”
“And that serves to legitimatize them? They’re founded on religious principles. People are coerced into closing their business on Sundays, whether they’re churchgoers or not. The state is supporting the Christian church by their passage.”
Professor Shapiro regarded him with weary patience. “Nearly every criminal prohibition can be traced to some religious principle, but that hardly makes enforcement an establishment of religion.” A tone of finality was meant to indicate the discussion was over.
Bernie persisted. “But it’s unconstitutional. If religion compels a man to close his business on Saturday and the state forbids him to open it on Sunday, his right to practice his religion is being restricted by government action.”
“You’re confusing the practice of religion with the practice of business. The laws don’t prohibit any religious belief or practice. At least, according to the Supreme Court, they don’t.” Professor Shapiro’s expression was beatific, his smile that of a man with an unimpeachable source. “Your personal objections don’t make it unconstitutional. It merely makes the practice of certain religions more expensive than others.”
“That’s just Talmudic logic turned inside out,” Bernie burst out. “The reasoning is tortured.”
Was that a sneer that crossed the professor’s face? Fleeting, so hard to be sure. “I leave the Talmud to you, Mr. Shreiber. But what is torture to you may well be reason to the law.” The entire class laughed, even the Orthodox Jews, and the debate on church and state ended an uneasy draw.
There was little time to spare for speculation. Bernie had other things to worry about. Business at Empire Systems was brisk. The news featured daily, hourly, reports on crime in the city, people pushed in front of subways, innocent bystanders shot, push-in burglaries and drive-by shootings, and as the days got shorter, the orders poured in. The telephone kept ringing. No matter that his advertising copy gave only an impersonal email address and a post office box number, disgruntled purchasers tracked him down without fail. They wanted merchandise and they wanted refunds. That was the good news. The bad news was, he was falling behind in his studies. He had orders to fill, but every time he tried to read his assigned cases, the orders piled up.
Professor Shapiro reprimanded him for falling asleep in class, and suggested that possibly he did not have the stamina required to become a lawyer. Intestinal fortitude was the phrase he used, as if he was taking the measure of Bernie’s colon. Bernie noticed that the three cops in his class always looked alert, their backs straight as nightsticks. He concluded they were doing nothing about fighting crime, were probably by their very attendance in law school neglecting their jobs and helping crime flourish. Well, that was good for business. Bernie could afford to be philosophical about it. Probably they would graduate from law school and become successful defense attorneys and that too would be good for business.
Intestinal fortitude was all very well, but dragging around those heavy law books was killing him. Bernie accepted that the work ethic of a Christian profession despised shortcuts as unmanly, but weren’t gentiles also susceptible to hernias? Was legal competence measured by the pound? Surely a paperback reference would be as weighty a tome without the literal avoirdupois. Was the added reassurance of leather bindings really necessary? No, it was a conspiracy to discourage second-generation Jews and Asians − not to mention misguided feminists − from having the temerity to imagine that they could enter into the hallowed tradition of centuries of learned Christian gentlemen with broad shoulders and strong backs. It was the identical plot that peppered those volumes with ringing Latin phrases, a constant reminder to bleary‑eyed readers that they had chosen a vocation as exacting as the church. Wasn’t the enforced celibacy of law students legendary, weren’t they seeking admittance to a priesthood of lawyers? What was the bar exam after all but a test of manhood, a mystical rite of passage? Bernie understood the comforts of ritual, the intimacy of a dead language. Yet while the church service had been ruthlessly incised and Latin eliminated, the religion of the law remained subject to the higher law of precedent. The more he read, the more it confused him. It seemed to Bernie that he was always arguing with professors about cases he had not yet read. Concannon argued with professors, too, but they enjoyed sparring with Concannon; he was a member of the same club. It was not so much appearance but attitude, his ineffable air of belonging. Concannon worked in the investment banking firm founded by his grandfather, a position he probably attributed to natural talent rather than nepotism. The same was true of the esteem in which Concannon was universally held, by teachers and fellow classmates. It was rightfully his, just as it naturally eluded Bernie, who struggled to attain it. That it was granted to Concannon not in recognition of what he said or did, but what he inevitably was, was beside the point. If Concannon was too conventional to be a legal scholar, he was nonetheless a company man. He always had the cases briefed, the correct citation; he never sweated carrying a volume of Richardson’s Evidence or Prosser on Torts. Even the Black cops, to Bernie’s amazement, respected and acknowledged Concannon as a natural owner of America. Neither did they share Bernie’s frustration with the undisguised biases of the professors. In an unguarded moment, one of the cops explained to Bernie, “You’re here three years, maybe four. They’ve been here 100 years, knowing how to screw people. They’ve been training all their lives.”
On Sundays in the law library, Bernie buckled down to work on a draft memorandum for the property class. The subject was zoning and town planning. Bernie neither knew nor cared whether due process was violated by environmental restrictions on private beachfront property. The beach was too far by bus, and the Sunday trains were few and far between. He knew nothing about property law, and hadn’t managed to get that set of property notes that Dean Tunney had promised. The legendary competitiveness of law students had lived up to its cutthroat reputation. Bernie didn’t have a clue as to how he was going to pass the course. He read long‑winded law review articles and scanned laconic digest blurbs with equal incomprehension. He scrawled notes on scraps of paper and lost them; he made pencil notations in the margins of reporters and misfiled them. One Sunday he saw Concannon there. Concannon worked quietly, reading for Chrissake, and occasionally jotting something in a notebook. Probably a pithy comment, thought Bernie furiously, and jumped when Concannon, catching sight of him at just that moment, nodded graciously. Bernie tried to copy the gesture, awkwardly ducking his head. Gracious bastard, he thought, and returned to his scribbling.
Bernie was on an endless treadmill, work school study sleep, one day ran into another, work school study sleep. Final exams were only a few weeks away, and then suddenly they were only days away. Work school study sleep became work school study, no sleep. The week before exams were to begin, he collapsed one night over his torts book at 2:00 AM, then overslept the next morning. He raced to the subway station, and, on the platform, jiggled impatiently until the train arrived. He sat wedged between two overweight women, an open law book balanced precariously on his knees as the train rocketed through the tunnel. He finally gave up trying to read and put the book back in his knapsack, clamping the canvas sack securely between his calves. When he reached his midtown stop, Bernie marched straight to the post office, where he picked up mail that had accumulated over the past sleepless week, shoving it into the knapsack. He stopped at a street vendor for coffee and a Daily News, and proceeded to his office, which consisted of one‑half of the second floor of a two‑story building facing a back alley. There he placed his law books on the desk, piled the unopened envelopes alongside, and steadfastly ignored both. He twisted the cap off the paper cup, adding four spoonfuls of sugar, and sank wearily into his chair. He tried to get his distributor on the phone, but the line was busy. He opened the newspaper and skimmed the headlines. He read an article on the rising incidence of arson throughout the city, and reflected on adding a line of fire alarms and smoke detectors. Local law required smoke detectors in all apartments, but the law was largely ignored. People thought the alarms caused cancer.
Buried in the second section, he caught it. “Commodities Firm Burglarized.” Bernie glanced down the page. It was Concannon’s company, Concannon clearly the namesake to the late founder named in the article. But what could have been taken? How could you steal something as intangible as a soybean future, an option on pork bellies? He examined the story more closely. The president of the company − Concannon’s father, or maybe an uncle, also with the same name? − was quoted as saying that some office equipment had been stolen but all investments in the firm’s mainframe were secure. It didn’t take a law degree to read between the lines. Bernie gulped down the last of the coffee. He noted the address in the newspaper, checked his wallet for business cards, and threw a few direct‑mail pieces into his briefcase. He smiled at the law books resting on the desk. Outside, he treated himself to a taxi.
Concannon’s firm was in a modern office building downtown. Predictably, it was on a high enough floor to afford a panoramic view of the city. When Bernie stepped off the elevator, there was a policeman at the reception desk, talking on the phone. There was no receptionist in sight. Bernie waited politely for the cop to finish, but before he did, the receptionist came out. Bernie laid his card on the desk before her. She was a pretty girl, with brightly painted fingernails to match her lips, and she picked up the card reluctantly.
“Do you have an appointment?” she asked without enthusiasm, and didn’t wait for Bernie to answer. “Mr. Concannon can’t see you today. No one can see anyone today, especially salesmen. You’d better call for an appointment.” Her tone implied none would ever be given.
“Why don’t you just give Mr. Concannon my card,” Bernie suggested politely. “I’m sure he’ll want to see me.” Before she could refuse again, Concannon abruptly stepped into the waiting room, surprising them both.
“Shreiber, what on earth are you doing here?” said Concannon, graciousness gone. “Excuse me a moment.” He turned to the police officer, who had responded to Concannon’s entrance by hastily replacing the phone receiver. Bernie marveled at the deftness of the maneuver. He could not overhear the two men’s conversation, but Concannon appeared to be giving the cop instructions. At least he was talking and the cop was listening, giving every appearance of attentiveness. Bernie wondered if the cop had ever thought of going to law school. He had the posture for it, and he was young, not much older than Bernie or the receptionist, or Concannon himself for that matter. Certainly he had mastered the public relations aspect of his work. After Concannon had finished, the cop marched purposefully into the interior of the office. Concannon made no move to follow or to invite Bernie back in. The receptionist had disappeared again.
Concannon leaned against the desk and looked at him sourly. Bernie delved into his briefcase for a sales brochure, which he silently handed over. Concannon said, “You certainly got here fast enough.” The patrician mask dropped. Ambulance chaser, his look plainly said. Grave robber. “Not that it matters. This is not the best time, as I’m sure you’re aware, and besides I’m sure you’re not experienced enough for our needs. This is not a fly‑by‑night operation, you know.” He waved his hand vaguely towards the interior.
And I am, thought Bernie, but without rancor. He wasn’t insulted. Concannon hadn’t actually refused him. He hadn’t even opened the brochure. Bernie plunged ahead.
“I think you’re missing the point, Concannon. Obviously, the system you have is inadequate to your needs.” It was a routine opening pitch.
“Obviously.” Concannon did not smile.
“Even though you were dealing with a larger, what you call experienced, outfit. My smallness is my advantage. Or rather your advantage. It’s a competitive industry, and I have to compete. I can oversee the security you have, make sure your software is working with your hardware, deliver all the same equipment, supply better service, troubleshoot any glitches that occur. Because I have to. Because I’m small, I have to be aggressive to compete. And I have to be good. That’s to your advantage.” Now the other man was leafing through the brochure noncommittally. Bernie smiled. “The personal touch. You know me. You know where to find me. And you can always report me to the bar association.” There was no response. “I can offer you premium services at discounted rates.”
“How can you manage that?” Bernie detected the quickened interest behind the question.
“It costs out. Besides, it’s good public relations, good advertising. Good will.” Bernie hesitated.
Bernie regarded the tailored elegance of the man standing before him. His own rumpled suit still had scribbled notes he had rammed into its pockets the day before. Concannon was the poised legal tactician, the consummate corporate servant. He could trade well‑chosen anecdotes with legal philosophers by night, and no one would question the probity of his daytime commercial endeavors. He understood the moral sanction of the profit motive, the Protestant ethic underlying accepted business practices. Bernie however was despised by the pundits, the scholars, the academic hustlers in their three‑piece suits. Yet did it matter whether the difference between them was one of style, of degree, of substance? The answer was No. They were both businessmen. They could make a deal.
“And you’ll give me a copy of your property class notes.”
Concannon’s laugh sounded instantaneously; his hand shot out only a moment behind. He laughed and laughed, and he held onto Bernie’s hand as he laughed. One hand washes the other, that was Bernie’s father phrase. Concannon would undoubtedly call it a quid pro quo. Either way, Concannon would soon stop laughing and lead him into the inner sanctum to work out terms. Bernie’s head swirled with the wonder of discovery. He was enthralled by the Kabbalistic simplicity of his design, his proposal, his deal. He could envision other times, other deals. The law of supply and demand, the imperatives of the marketplace, demanded the existence of hundreds, thousands, of opportunities for barter, for trade. They just had to be found. And Bernie would be the one to find them. The job was rightfully his. He would learn the law, their law, and he would apply the lessons to his world, to his vision. It was simply a matter of give and take, of finding that precise point of slack where a deal was possible. What after all was prophecy but the imagination to see beyond the immediate horizon? Success was possible, anything was really possible, for those who had vision.
Nancy Lederman is an English major turned lawyer, with additional credit towards an MFA in creative writing at New York’s City College. Her writing credits include the play Fanny and Portia, for which she received the Dorothy Silver Playwriting Award, and co-authorship of The Elder Law Handbook. She has also had short pieces and poems published in journals and newspapers.