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Anxiety and the Law | | | The desire for formalism | |
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< | Felix Cohen described the American Law Institute and its “Restatement of the Law” as a “last long-drawn-out gasp of a dying tradition”. Evidently, he was quite wrong. The statutes and restatements produced by the ALI are dominant in the 1L curriculum (as well as the law) and formalism in general is dominant where the restatements are not. For example, criminal law classes mostly focus on the “Model Penal Code”, a statute so perfect that not a single state has decided they are worthy of it. Much of the first year curriculum seems to be about explaining legal decisions in an almost mathematical form, or in the case of torts perhaps more literally so. | >
> | Felix Cohen described the American Law Institute and its “Restatement of the Law” as a “last long-drawn-out gasp of a dying tradition”. Evidently, he was quite wrong. The statutes and restatements produced by the ALI are dominant in the 1L curriculum (as well as the law) and formalism in general is dominant where the restatements are not. Even when studying cases in which the court tries to do away with formalism, such as the balancing test in personal jurisdiction, the inclination is try to express it as a formula that by putting in the proper interpretation of the facts, one gets the "right answer". While the Langdellian method has eroded, as schools now emphasize the tensions in the law through jurisdiction splits and academic materials, the general inclination is still to treat the law as a science, which it is not. | | | | |
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< | It seems that lawyers, law professors, and law students all feel an essential need to make the law into something it is not, namely a form of science. George Fletcher in his article Fairness and Utility in Tort Theory alludes to this, remarking that there is an appeal to lawyers of going through multiple stages of argument to reach a conclusion, akin to that of social scientists believing the use of statistics makes an argument more valid. In contrast to this explanation, Jerome Frank offers a more radical explanation in Law and the Modern Mind, suggesting via a pseudo-Freudian analysis that there is a need for an all-knowing law as a sort of fatherly substitute. | >
> | George Fletcher in his article Fairness and Utility in Tort Theory alludes to this, remarking that there is an appeal to lawyers of going through multiple stages of argument to reach a conclusion, akin to that of social scientists believing the use of statistics makes an argument more valid. A judge cannot base judgments on his or her feelings about fairness, as that would be subjective and unfair, but creating a test that leads to the "fair" outcome seems sufficiently scientific to be "objective". In Law and the Modern Mind, Jerome Frank offers a more radical explanation of why we need certainty in the law, suggesting via a pseudo-Freudian analysis that there is a need for an all-knowing law as a sort of fatherly substitute. | | | Anxiety's influence
Frank’s analysis is very speculative and I’m not really sure if his analysis can be either proven or disproven. But the need for certainty in the law does seem to reflect an underlying anxiety in the profession and in law school. The rates of anxiety and OCD among lawyers are far higher than the general population. Part of this might be self-selection, since many law students choose to go to law schools because they think it will attain certainty in their lives, reflecting personalities that are uncomfortable with the idea of uncertainty in one’s early to mid-twenties. But perhaps working in the law itself contributes to the anxiety for reasons beyond the stress and hours that are present in other professions. Formalism seems like a way to avoid the anxiety that uncertainty brings, putting everything into categories as a defense mechanism (OCD) in order to avoid the “slippery slope” (the onset of anxiety). | |
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< | The lawyers we encountered throughout the semester seemed to struggle to cope with this as well. Wiley was probably the least successful, relying on drugs to cope with the lack of control over the “chaos” he had. Judge Weinfeld seemed to be the most successful, using the fear of uncertainty of trials as a tool to keep his docket under control. Somewhere in-between these two would fall Judge Day. She has actual power, but insists that she has very little discretion, perhaps to rationalize that she does not use this discretion more often, as she worries about in her upcoming case at the end. | >
> | The lawyers we encountered throughout the semester seemed to struggle to cope with this as well. Wiley was probably the least successful, relying on drugs to cope with the lack of control over the “chaos” in his practice. Judge Day seems to be more successful, but she too struggles with anxiety over her decisions, rationalizing her discomfort with outcomes by insisting she has little discretion. In contrast, Judge Weinfeld by all accounts is the most successful at dealing with anxiety, using the threat of a trial as a tool to keep his docket under control. But why is it that the fear of a trial was such a strong force? Trials are certainly expensive, so perhaps the lawyers were concerned with their clients' reactions to the impending fees. Or maybe reaching settlements is a more profitable business model. A stronger reason though might be the perceived uncertainty of a trial. Gone are negotiations that one has the feeling of control over and all the control is turned over to the hands of the judge or jury. This fear of loss of control may be what drives lawyers to avoid settlements.
If the law school curriculum is any indication, this is particularly the case in jury trials. The case method teaches almost only through appellate decisions, treating jurors as some sort of black box spitting out random results that need to be corrected. Elite law schools tend to treat practices of law that deal with jury trials as some sort of lower practice of law, beneath their graduates great intellectual prowess (and beneath the earnings they "deserve"). If we view law the way Holmes does, law schools do not actually teach the tort and criminal law, since its classes ignore the jury verdicts a "bad man" would use to predict outcomes. The way law is taught in torts and other classes essentially dehumanizes the law by treating it as a science. Science is predictable, at least within reason, and with it comes a sense of control over one's destiny. But law is made by people everyday, by jurors, judges, and legislators, and human action cannot be simplified to a science. The law is as uncertain as the people who make it and dealing with this uncertainty is vital to success as a lawyer. | | | Overcoming it | |
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< | It seems clear that the solution to being both better and happier lawyers comes down to management of anxiety. Much of the idea behind the first year of law school, at least in its modern incarnation, is that you learn how to see the uncertainty in the law, but this purpose seems confused by narrowing the uncertainty to the two dimensional terms that is formalism. Maybe a sort of Kirkegaardian view on anxiety would be appropriate for the lawyer, where anxiety is not something to be suppressed but instead recognized. When we are anxious, it is because there is uncertainty, and the worst thing a lawyer can do in the face of uncertainty is either deny or be paralyzed by it. Instead, a good lawyer masters anxiety and uses uncertainty as a tool, instead of being subjugated by it. | >
> | It seems clear that the solution to being both better and happier lawyers comes down to management of anxiety. Much of the idea behind the first year of law school, at least in its modern incarnation, is that you learn how to see the uncertainty in the law, but this purpose seems confused by narrowing the uncertainty to the two dimensional terms that is formalism. Maybe a sort of Kirkegaardian view on anxiety would be appropriate for the lawyer, where anxiety is not something to be suppressed but instead recognized. When we are anxious, it is because there is uncertainty, and the worst thing a lawyer can do in the face of uncertainty is either deny it or be paralyzed by it. There is always uncertainty, both in the law and in our lives, and pretending it is not there creates bad lawyering and an unfulfilling way to live. | | | I'd like to continue editing this summer. |
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