Anxiety and the Law

Because it has lots of contemporary imitators? Because it is growing in importance or influence? Or just because it isn't dead yet? Legal institutions have long lifetimes even when they are dying. It is true, obviously, that the post-war anti-Realist reaction described by Morton Horwitz in the second volume of The Transformation of American Law re-invested authority in the ALI in the Wechsler Era, producing such horrendous output as the Model Penal Code. But there's little reason to conclude as you do that formalism of the ALI variety is the future of anything.

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.

I doubt this statement. I've never used a volume of Restatement for anything since I left law school. In twenty-five years, I have worked on two problems in my practice that required close involvement with an ALI-based process. Neither was important in a positive sense: the goal was simply preventing something bad from happening. This does not spell dominance to me. What's your evidence?

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.

Are you sure? How do you know? I rarely see in US as opposed to European scholarship or professional writing any claim that law is a scientific subject. I think American lawyers are realists, pretty much the way the non-realist legal systems of the world see them. So what's your evidence?

What's pseudo-Freudian about Law and the Modern Mind? Your knowledge of Freud may be much better than mine, so help me see where Frank has crossed from rather simplistic adoption of concepts into "pseudo."

That's two swift a descent from general to particular without a conceptual framework. From "the law reflects anxiety," to "lawyers have anxiety disorders" is not a simple step. Nor is the presentation of a correlation any argument about causation, or even relationship.

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.

Maybe. But there's no reason to believe that's self-selection primarily, because law schools are selective themselves. Perhaps they are choosing anxious people?

In general, you are neither arguing realistically nor formalistically in a consistent fashion. You are applying rhetoric, apparently opportunistically. I would encourage you to figure out which steps are important to you, and decide what research is necessary in order to establish them.

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).

This isn't very sophisticated psychology, but even unsophisticated psychology might benefit from some citation of work bearing out the claim.

I don't think you've any basis to conclude whether Weinfeld was anxious, but to the extent that you're relying on my writing, I tried to give a hint even in a eulogy. That he was in fact anxious all the time is merely one clue to the general problem with this argument.

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.

Did you read that last sentence carefully? It says the opposite of what you intend to say. This is a sign of non-existent editing.

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.

When was the last time you read an appellate opinion correcting a jury verdict? In what procedural setting did that happen?

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").

Is that so? Has criminal law practice ceased to be a major part of the law school curriculum where you live? Has Evidence disappeared from the curriculum?

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.

Who is the teacher? What's an example? Do you mean that economics is taught in law school as though it were the science of law?

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.

The best approach to editing this piece, in my opinion, is to begin by deciding whether anxiety is a property of the law or of the lawyer. Then you can rechart the course of this argument, establish what its steps are, find the material necessary to support your conclusions as to fact, and present your idea (whatever it is) clearly.