Smith v. 2L and 3L Gunners
903 U.Va. 122 (2018)
Schmalzl, J., delivered the opinion of the Court, in which VanderMeulen, C. J., and Hopkin and Elicegui, JJ., joined. Ranzini, J., filed a dissenting opinion.
Justice Schmalzl delivered the opinion of the Court.
The class action before the court concerns the complaints of several 2L and 3L students of the sort that arise around this time every year. Members of the class have come back from Thanksgiving break with a semester of cases not read, outlines not begun, and no fucks to give about finals despite their immediate threat on the students’ grades and pride as they realize C+’s do, in fact, exist. However, defendants in this action arrive back from break under very different circumstances: all cases read with accompanying reading notes, outlines up to date on the course material, heavily highlighted and annotated supplement books, and in search of new E&Es for more practice problems. Plaintiffs allege that this group of students, whose true size is unknown due to their deceitful lies about “not doing anything” as upperclassmen and secret studies in the alcoves of Slaughter Hall, are committing multiple wrongs deserving of punishment and remuneration for plaintiffs. First, plaintiffs allege defendants are breaching an implied covenant contained in the contract of making it to the second and third year of law school, namely that all upperclassmen can’t care that much or work that hard so they all can ride the curve into the sunset of graduation. Second, plaintiffs allege that defendants are taking without due process of law plaintiffs’ property, here taking the form of wellbeing and enjoyment of life that is guaranteed to them after the hell of 1L and OGI ends. The court first summarizes the facts and reviews the lower court decision before addressing plaintiffs’ complaints.
The named class plaintiff, 3L Smith, filed this complaint after a recent interaction with a “friend” she ran into upon returning from Thanksgiving with her family. After sauntering up to the coffee machines in MyLab and delighted to see no line and two functioning machines, she was humming “Santa Baby” when said “friend” entered the room. Cheerily, Smith asked that “friend” about his break and what fun he got up to, to which he replied with a cackle, “Wasn’t able to make it home this year, had too much work to catch up on.” Concerned by such an odd response from an upperclassman, Smith inquired about the work to be done. The defendant, unnamed for his own safety and protection, began discussing the supplements he needed to read, the class lectures he needed to re-listen to, and the questions he needed to ask his professors that would certainly take up the entirety of their office hours. Smith, resisting all urges to throw her freshly brewed hot coffee on the defendant, smiled politely as she swiftly moved to the exit and filed the complaint that gave rise to this opinion.
Judge Luk below, sitting in her normal chambers in the hallway where the annoying bar review people sometimes give out free stuff, ordered summary judgment in favor of defendants on both counts of plaintiffs’ complaint, citing so-called “legitimate” reasons for studying as an upperclassman such as “a desire to clerk,” “wanting to get the most out the opportunity to attend a T14” and, most absurdly, “a goal to get the most bang for their buck” due to tuition costs. This court condemns the lower court decision and reverses in favor of plaintiffs on all counts for reasons set forth below.
Plaintiffs’ allegations, that defendants are breaching an implied covenant not to work hard post-1L spring and that defendants are unlawfully taking plaintiffs’ property in the form of wellbeing and enjoyment of life guaranteed to them after 1L, are supported by long-standing tradition, precedent, and public policy considerations. Plaintiffs’ contention that the implied covenant is either (1) a sacred tradition as old as the Law School itself; (2) a norm handed down from the days of Jefferson himself; or (3) a custom since at least whenever the hell they moved OGI to August is viewed in the light most favorable to plaintiffs, and therefore accepted as fact. Defendants argue that, as the times change, the customs and traditions must change with it. Further, defendants claim that they are preparing themselves for the profession they are about to enter, namely one of (1) secret late-night gunning in the heights of the skyscrapers in NYC in hopes of receiving a promotion as well as (2) a life of courteous-but-limited interaction with anyone they meet for fear of developing meaningful relationships that might tempt them away from the office. To these defenses the Court responds with little sympathy; if these defendants wanted to perpetuate the harshness that is the legal culture, then they should’ve known better than to attend the collegial school that is UVA Law. A desire to “fit in” to the legal world does not excuse the clear violation of cultural norms that this school has long held dear, and as a result, defendants lose on these claims.
Further, cases such as Mitchell v. Those Damn 3Ls Gunning When They Should Be Taking the FebClub Challenge, 423 U.Va. 7 (2014) and Goluboff v. Students Who Lie About Neglecting Reading in Violation of the Honor Code, 771 U.Va. 225 (2015) support a decision against defendants and all the studying they’ve engaged in this semester. Oddly, defendants cite no cases but urge the Court to overturn prior precedent despite the clear role precedent plays in the Court’s decision making today. We respond by rejecting defendants’ “argument” and urge them to review Constitutional Law and the importance of stare decisis in the Court’s jurisprudence. Our anti-gunning jurisprudence is clear, and any exploration of the specific claims levied here is unnecessary.
Finally, public policy considerations support a finding for the plaintiffs. While defendants claim that studying after 1L is important to secure public interest jobs, find clerkships, and complete the bar exam, the Court does not find any of these considerations as important as the wellbeing of upperclassmen and their ability to go to Bilt, play softball, and, most importantly, nap. The Court, in considering that UVA Law is the Disney World of law schools, cannot endorse practical concerns like employment, résumé builders, and being successfully barred over the ultimate desires of happiness and laziness that 2Ls and 3Ls are guaranteed to enjoy. Consequently, any arguments put forth by defendants regarding policy concerns are not considered here today.
This Court reverses Judge Luk’s decision in the Court of Petty Claims and finds for plaintiffs in the class before us. As a remedy, this Court orders an injunction against studying for all upperclassmen who have gunned all semester and compels them to write, “I must not tell lies or try to out-study my classmates” again and again in detention with Professor Dolores, visiting professor from the unaccredited Hogwarts School of Law. This Court passionately advocates for an end to the cruelty that is upperclassmen studying and hopes this decision is a step in the right direction for Law Students everywhere.
It is so ordered.
Justice Ranzini, dissenting.
The Court today announces a decision whose sentiments I applaud, but whose implications I must deplore. No one may doubt the sincerity of my brethren Justices’ solicitousness to the suffering of the plaintiffs here, or impugn the impulse to shield the innocent from harm. But that, as Justice Holmes might have put it, is not the whole of the way of the law.
It is the proud Anglo-American tradition whose flame we tend in this court, the spirit of Hobbes and of Burke, of Locke and of Hamilton and Calabrese and the Chicago Boys. From specter-haunted Europe with its talk of egalité and fraternité we maintain our majestic remove. But the French jurists have put their finger on what is essential to the law in the name they give to what we call “a public policy argument”. In the original, it is resort to the ordre public, the public order, and that is what my brethren jurists fail to appreciate today. Law school has never been more accurately described than as “training for hierarchy” and an essential component of that training must include, every once in a while, the sacrifice of a select few pour encourager les autres. Without the goading presence of “gunners” among them, and the specter of failure, financial ruin, and social ridicule, how would our law students make the rod they need for their own backs—and for their classmates’? What would be left to us as legal lodestars in such a world? Mere kindness? Humanism? Mutual respect?
I respectfully dissent.
 Note: The Court hasn’t actually confirmed that C+’s do, in fact, exist, but it’s heard they do and that’s pretty much the same thing.
 If they even left.
 One was even overheard in the Library Reserve Room, cursing the librarians for not stocking enough old versions for additional practice.
 Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32 J. L. Educ. 591 (1982)