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. 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.

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.

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).

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.

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 or be paralyzed by it. Instead, a good lawyer masters anxiety and uses uncertainty as a tool, instead of being subjugated by it.

I'd like to continue editing this summer.

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