Anxiety and the Law

-- By DanielKetani - 21 May 2012

The desire for formalism

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.

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?

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.

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."

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.

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.

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.

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.

Overcoming 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.

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.

I think you hit on a very important psychological reaction (or condition) of lawyers, so thank you for your contribution. Just to add some support to your introduction, regarding law as science, the casebook method was developed by a professor at Harvard (Christopher Langdell) in the late 1800s. Here's a quote from a student note that I found refreshing and that you might find interesting:

Langdell premised his positivist approach to legal studies on the idea that law is a science and that students should approach law as a science, uncovering rules of law by using inductive reasoning... Langdell premised his methodology on the positivist notion that law is a science (thus, objective) and that students should study law as such. He therefore chose for his casebooks cases that got the law right. Though scholars have largely discredited the idea of law as science, the case method still tends to lead students to hunt for rules and to discount or ignore cases that seem to stray from those rules. However, it is precisely these cases that can show the limits of the law and the weaknesses of a particular rule. It is only by focusing on the subjective aspects of the law, the human side of a case, that law students will truly learn this important aspect of lawyering. The case method can lead law students to become frustrated with cases that seem to come out wrong, that is, cases in which judges seem to break rules and misapply laws. The Langdellian law-as-science model feeds this frustration because of its search for clarity over justice and for predictability over personality.

When it comes to your concerns on anxiety, it may be this emphasis on "clarity" rather than being a human vessel for your client's story that frustrates the anxious lawyer. Mastering anxiety, generally, is a having mastery over one's identity and purpose. Re-invisioning the role of a lawyer, as we have been doing for the last semester with Eben, is step one. I hope this helps.

-- ArleneOrtizLeytte - 04 Jun 2012

If I understand correctly I believe your thesis is that recognizing anxiety and/or uncertainty and becoming comfortable with it will help us to become happier lawyers. I think it might be helpful to have a clear statement of that thesis somewhere in your introduction, so the reader knows where you are going. Additionally I would delete the sentence about the MPC, as I felt it doesn't add much and instead detracts from the nice flow of ideas you had. If this is a correct statement of your thesis then I believe the advice Professor Moglen gave me regarding my first paper might improve your paper as well. I think tightening your arguments and addressing some of the more obvious counterarguments would improve this draft.

Ironically, the reason your thesis makes me a bit uncomfortable is because I am uncertain as to how we future lawyers are supposed to carry this plan out. How are we supposed to master anxiety as law students and lawyers in the future? How do we become comfortable with uncertainty? Should we keep a list of past situation in which we encountered uncertainty and it worked out? Should we try to always keep an hour of each day open so that we become comfortable with having an ‘unplanned’ slot fill our schedule, and anything uncertain that comes up can fill that slot? Should we practice some sort of behavioural therapy when we encounter an uncertain situation (i.e. force ourselves to smile or listen to something that makes us laugh whenever we encounter something uncertain, so that we learn to associate feelings of happiness with uncertainty)?

-- SkylarPolansky - 04 Jun 2012

Thanks for all your feedback. The current draft is, I feel, somewhat incomplete and I plan on editing it sometime this week once I've thought some issues through and get a chance. As far as Langdell, that's a really interesting quote, but I don't want to discuss him too much because I don't think the current teaching method is the same as Langdell's. Most casebooks I've seen try to illuminate the tensions in the law that Langdell would seem to have denied existing. I think it's kind of strange that the method of teaching still used is still so similar to Langdell's despite the abandonment of his ideas, I don't know if that's just path dependency or if there are other reasons such as its utility in actually proving Langdell's theories wrong.

As far as uncertainty, I think the issue is not so much how to become comfortable with it but instead not to deny it. In both our professional and personal lives, there will always be uncertainty and to think otherwise is just self-delusion. Uncertainty IS uncomfortable. Trying to come up with behavioral therapy to make oneself associate it with happiness seems kind of silly to me, its basically an attempt to turn uncertainty into certainty. Anxiety sucks, but it could also be viewed as an opportunity to think realistically about one's concerns and priorities. Trying to hide the complexity and uncertainty of choices with formalism or merlot is just an escape from dealing with the problems; trying to use cognitive conditioning to be happy with uncertainty seems to me like a similar albeit stranger solution, maybe others view this differently.

-- DanielKetani - 05 Jun 2012