"We can't fight gravity on a planet that insists
That love is like falling
And falling is like this."
-Ani DiFranco, "Falling is Like This"
"My girlfriend's coming out for Thanksgiving," he says, apropos of nothing and everything.
"Yeah?" She doesn't look up from her notebook.
"Yeah," he says, watching, waiting for some kind of reaction. When she doesn't give it to him, he shrugs, tries to think of something to make it not weird. "Anyway, you know what I think?"
"No, Will, what do you think?" she asks. She's still not looking up, but there's the very slightest bit of an edge to her voice. He wishes he could see her face, wishes he could see if she was annoyed at him for talking, or annoyed at him for bringing up Helena or maybe not annoyed at him at all.
"The Erie Doctrine," he says, then pauses as if he's about to make some profound announcement that will crack it wide open. She looks up from her notebook, expectantly. Maybe it wasn't Helena. Maybe she just really wants to work. He collapses down on the futon next to her, reaching for his notebook. "The Erie Doctrine is where happiness goes to die."
She rolls her eyes and goes back to writing, but he can see the grin tugging at the corners of her mouth and he knows he's got her.
"No, seriously. The rail road's even named for a lake. Just pick it up - happiness, not the doctrine or the train - just pick it up, toss it in, watch it drown and- "
"Will." She looks up again and he loves the way she's still trying not to smile. "We have to study."
"Is this not helping?" He makes his expression as blank as he can, feigning innocence. "I was just talking through my thoughts about Erie and its progen-"
"No," she counters. "You were just bitching about the fact that you don't understand Erie and its progeny and you've got like, three weeks to figure it out. There's a difference."
He grins, because he's caught, he's so damn caught and she's just sitting there smirking and he doesn't think he's ever heard her swear before. "So explain it to me," he says. "If you think you're so smart, explain it- "
"You start with the basic principle that federal courts, sitting in diversity, apply state substantive law and federal procedural law," she says, still smirking. "But to do that, you have to figure out what's really procedure and what's substantive. So, if you're looking at a federal court hearing a state law claim, and there's a conflict between the state law and federal law, you start by asking if there's a federal rule or statue directly on point." She slips so totally into her element as she walks him from Swift through Hanna, quoting here, paraphrasing there, stopping to express her frustration with Frankfurter when she hits Guaranty Trust - Somehow, she weaves the confusing mass of seemingly conflicting rules into a single, streamlined approach to analysis. She's so animated when she talks, so unlike her otherwise reserved self. It's invigorating and intimidating and, he's a bit disturbed to realize, really fucking hot. He gets lost in her words, in her voice, and he can't tear his eyes away from her mouth. "So, you get it now?" she asks when she's finished.
"I- " He clears his throat and forces himself to look away. "Yeah. I think. I might make you do that again." He shifts his notebook in his lap to hide the fact that Alicia, when she's in her element, turns him on like nothing else in the world.
"Anytime," she murmurs, eyes dancing as she picks up her pen. He looks down to his notebook, embarrassed, but when he sneaks a glance up at her again, she's smiling.
###
The only things that they have in common are their section number, their shared love of breakfast food, and the anxiety-induced neurosis that seems to afflict all 1Ls, no matter how sane they were before they got to law school. It doesn't seem to bother her as much as it does him. Of course, Alicia's here because she wants to be here more than she wants to be anywhere else and Will, well, he's here because he messed up his shoulder and responsible adults don't think that they can make a living playing guitar.
Sometimes, he wonders if that makes the crushing self-doubt easier or if staying sane is just one more thing that she's better at than he is.
###
The first time they met, he thought she hated him. He was dripping wet and drunk enough to think hitting on her was a great idea but not so drunk that he didn't remember Helena back home before he could finish his sentence.
"Sorry, I just forgot what I was trying to say," he mumbled.
She laughed, and he thought she was laughing at him, like she thought he was just some drunken idiot, some kid still stuck in college when everyone else had grown up over the summer.
"Happens to the best of us," she murmured, ducking her head a bit so that her hair fell into her face, hiding a part of her smile.
He likes to think (tries to pretend he doesn't think) that it was in that moment that he started falling in love with her. It's cheesy and romantic and sweet - I loved her from the first moment we met - but it's probably not true.
He didn't even get her name, and he spent the night tossing and turning, kicking himself for not asking.
###
She's outlining torts and he's making a list all the little quirks that he's come to love about her.
(1. The way she holds her pen. 2. The way she tugs at a bit of her hair when she's thinking, as if she can pull it straight. 2(a) The way she doesn't seem to notice it. 3. The way she bites her lip when she's struggling to understand something. 3(a) The way she doesn't seem to notice that, either. 4. That the first thing she does when she sits down to read is toe her shoes off her feet. 4(a) The way she shushed him that time that he called her on it. 4(b) The fact that she thinks she'll get in trouble for doing it in the library. 4(c) The way she makes him think about doing it in the library. 5. The way she smiles when she spots something she likes in an opinion. 5(a) The fact that most of the things she likes are weird and technical. 5(a)(1) The way her eyes light up when she explains all the implications of the weird technical stuff she likes. 5(a)(1)(A) The fact that she can actually see those implications.)
She looks up and he quickly turns the page.
###
He doesn't like con law much, doesn't like the way the class veers away from substance and into opinion whenever anything controversial comes up.
He doesn't mind speaking, he just thinks that most of the class is a waste of his time. Alicia does mind. Alicia likes to keep her opinions close to the vest. She'll talk about law, but that's not how Professor Barnett runs the class. It's all opinion. So far this semester, he's heard his classmates opinions on the appropriate size and scope of government, the level of deference that should be afforded to economic rights, abortion, and the constitutionalization of birth control and the only thing he thinks he's learned is that his classmates love to hear themselves speak.
"Miss Cavanaugh? What do you think, should the Constitution protect gay sex?"
He sees the way she winces, and he wishes he could rescue her.
"I- " She hesitates for a moment, and he can see her gathering her thoughts and arguments, see her setting personal feelings aside. "I think Bowers was wrongly decided, if that's what you're asking."
"It is, but now you have to tell me why. You've got to have the reasons, Miss Cavanaugh."
"It screws up the trajectory," she says, and her voice is measured, but authoritative. "From the sixties onward, we see the Court using due process to expand liberty, then backing it up with equal protection. That's Griswold to Eisenstadt, it's Loving to Zablocki. If there's something so deeply routed in our history and traditions as to render it a fundamental right - or if it's within the penumbral zone of Griswold - if there's a fundamental right, you can't say it's a right that only applies to some people. You can't- If a married couple has a right to use a condom, then an unmarried couple must have that same right, right? That's Eisenstadt. But privacy there isn't just about procreation, it's about sex. To exercise your right to control your reproduction, you must necessarily have a right to have consensual sex, because if you don't, the right is utterly pointless. So, because the right to have consensual sex is necessarily implied by the right to control your reproductive choices, the next logical step is equal protection. You can't tell me I have a right to have consensual sex with a guy then deny that same right to my brother. To hold otherwise, to say that a state may criminalize private, intimate conduct based on the sex of the participants - it's not just a violation of due process and equal protection, it's insulting. It's demeaning. And it was wrongly decided."
She meets Barnett's eyes directly, as if daring him to push her further. He doesn't rise to the challenge.
That, if he's being honest, that's the moment he falls in love with her.
###
Finals arrive with the cold weather so, naturally, that's when the ancient radiator in his apartment stops working. Alicia doesn't like the library anymore, finds the anxiety too palpable, so they go to her place. Her roommate's mostly been living with her boyfriend, so they hole up there, living on coffee and takeout. He sleeps on the couch, the first night, but when he starts yawning before she does the next day, she banishes him to her bedroom. Her bed is soft and warm and if he wasn't so tired, he'd have time to appreciate how much it smells like her. He doesn't though. Not until he wakes up to find the sun pouring through the blinds and Alicia lying next to him, body curled around a pillow. It takes him longer than it should to get up.
"About damn time," Janice mutters when he emerges.
"I- It's not that late," Will mumbles. "I thought you were staying at what's-his-name's place." He starts a fresh pot of coffee.
"Yeah, I didn't mean the time," she shoots back.
Then he gets it. "Oh. No, we're not- I mean- no. My heat's out, and- I I've got a girlfriend."
"But you want to," Janice counters. "You should go for it. I bet she wants to. I bet she'd love to- "
"Love to what?" Alicia asks from the doorway.
"Go out after our last final," Will lies, quickly. "I wanna see you get drunk."
"Coffee," she mumbles. "All I wanna drink is coffee."
He pours her a cup, adds milk and sugar without having to be told.
"I just came by for clothes and deodorant," Janice offers. "I'll leave you to it."
"She thinks we're sleeping together," he admits once Janice is gone.
She's got her head in the fridge, sorting through takeout boxes.
"You have a girlfriend," she shoots back. "Cold pizza or cold Chinese?"
That's that, then.
By the time it occurs to him to ask if his girlfriend is the only reason they're not, they're two hours into a practice crim exam and she takes practice exams seriously enough that he knows better than to interrupt her to ask. He goes back to his application of the Pinkerton rule. It's finals. It's the wrong time to make a change, anyway.
Notes:
For anyone curious about the various bits of law discussed...
The Erie Doctrine
Alicia's excerpted explanation of the Erie Doctrine gives you the basic gist of it. When federal courts are deciding on matters of state law, they apply the substantive law of the state and federal procedural law. Procedure means everything from font size to whether or not the parties are entitled to a jury. The problem with this is determining what, exactly, is procedural. The full analysis is long and detailed and not terribly relevant, but if you're desperately curious, the Wiki page does a half decent job of explaining it.
Alicia's gay rights argument
The right to privacy, although not initially found in the Due Process Clause, is one that we now think of as being a substantive due process right. It's based on the idea that the "liberty" protected by the Due Process Clause of the 14th and 5th Amendments encompasses more than merely the right not to go to jail, but rather additional, substantive rights. The Supreme Court, when doing substantive due process analysis, will typically look to the nation's deep-rooted history and traditions to determine whether it is encompassed by the right. This is an inherently subjective standard as it can turn on how the question is framed.
Bowers v. Hardwick (1986) held that a Georgia law criminalizing sodomy was not unconstitutional, as applied to two gay men. It was overruled in Lawrence v. Texas (2003) when the Supreme Court considered a similar law that applied only to homosexual sodomy.
Griswold v. Connecticut (1965) is the case establishing a right to privacy. The Supreme Court held a Connecticut law prohibiting the use of contraceptives was an unconstitutional interference with the right to marital privacy. The Court went out of its way to avoid using the Due Process Clause to find the right and, instead, justified its holding by the idea that the various specific constitutional protections contained "penumbras" and created a "zone of privacy."
Eisenstadt v. Baird (1972) was an Equal Protection case that extended Griswold to nonmarried couples.
Loving v. Virginia (1967) invalidated Virginia's anti-miscegenation law and established marriage as a fundamental right under both the Due Process Clause and the Equal Protection Clause.
Zablocki v. Redhail (1978) was an Equal Protection case invalidating a Wisconsin law requiring non-custodial parents to demonstrate that they were not behind on child support payments before they were permitted to marry.
Alicia's argument is not perfect. The Supreme Court was careful to exclude gay rights - including the rights to sex and marriage - from its earlier decisions. While agree with her that Bowers was wrongly decided, and that up until Bowers the trajectory seemed to favor an expanding the constitutionalization of liberty rather than restricting it, there are stronger arguments that could be made than the Loving/Zablocki one. At any rate, Bowers was the law back when Will and Alicia were at Georgetown, but it is not the law today.
The Pinkerton Rule
The Pinkerton rule deals with federal conspiracy law. Under Pinkerton, all co-conspirators are criminally liable for the overt criminal acts of all other co-conspirators, provided that such acts were in furtherance of the conspiracy or fall within the scope of the unlawful endeavor.