The Anxiety Over Freedom

-- By KrystalCommons - 25 Feb 2010

“The way we’re going to know whether you can free people is by whether you can free yourself. Freedom is a thing we make. If it’s made for us, it isn’t freedom. “ – Eben Moglen

As the legal market adapts to the Recession, more questions have emerged amongst law students about how carve out a space for themselves in the legal field. The anxiety over freedom (whatever “freedom” is) has consumed the minds of law students as big firm options diminish and loans abound. Who and what we will become seems to be at the forefront of our minds. The goal for many is to make money while still having a career that allows us freedom, meaningful practice, and the usage of our skills to better someone else’s reality. I concede here that this is more of a brainstorming exercise than an offering of any real answers. I’m only a 1L.

I. What is freedom? The beginning of a definition.

The anxiety of freedom begins with a simple question -what freedom is? After completing only one semester of law school, this seems the only place to begin. Envisioning freedom and determining what it means on an individual level seems to be the most important step in beginning to build a career.

Freedom begins with making choices for yourself instead of letting them be made for you. Defining a legal career starts in law school- what classes we choose, the extracurricular activities we get involved in, and the professors we choose to work with or under. Many go for prestige over substance. It seems that getting a wide array of exposure to different areas of law would be important for determining one’s passions, definition of justice, and where a license can best be used. I assume that that search would lead to the discovery of a practice free of others’ impositions.

The problem is that there are several obstacles that present anxiety over freedom: grades, getting the coveted firm position, or even being asked to submit a transcript and resume´ for a study group.

Amazing. When I was in law school, people who did this would have been regarded as terminally arrogant and incapable of social interaction. They would have been famous throughout the law school for three years, and not in a good way. I can't believe we have reached the point where this is not only possible, but no one calls them on it.

The exterior pressures imposed on the 1L student create a set of fears and anxieties that all suggest that one’s best is not good enough. While Mr. Robinson is not “beholden” to anyone, the 1L seems bound and weighed down by everything. The issue is that freedom seems bound to everything and contingent on everything but the character of the self. At every turn, it seems that external pressures and “advisors” have input and advice to offer to suggest what exactly freedom is. This imposition makes it hard for the 1L student to determine or even begin to ask questions that are a result of their own thought process and discovery. Undoubtedly others’ anxiety, desire for competition, and fears swallow even the most level-headed and rational 1L student.

And that continues to happen inside other large totalizing organizations, which is why people working in law firms wind up doing so little self-discovery.

II. Freedom and BigLaw: Mutually Exclusive?

There has been a lot of talk about pawning one’s license to BigLaw. Entertaining the idea of working at a big firm seems to be the beginning of a decision that is counterproductive to attaining one’s freedom. Can working 80 hour weeks serving the “man” act as the underground railroad to freedom? While exaggerated, the slave analogy is poignant nonetheless. As a 1L, there is no certainty about what a big firm job entails. We know only that the hours are long and an entering associate is at the bottom of the food chain. Yet, no one really offers any alternatives. Public interest acts as the counter-narrative to big firm but between debt and trying to establish a new life, the quickest and easiest way to begin that life, the most accessible means to an end, is the big firm. Financial stability is important and without ingenuity and creativity, BigLaw appears the best alternative for beginning the trek to long-term stability.

But ingenuity and creativity is what you have. And stability is not the only possible goal.

Only 26% of lawyers are self-employed either as partners or solo practitioners. (http://www.bls.gov/oco/ocos053.htm). The other 74% are beholden to someone else. Can’t freedom be attained by carving out a particular niche and then working up the food chain? Does working a big firm mean you must consume someone else to avoid being eaten in an attempt for freedom?

It seems that BigLaw is appropriate as a temporary stop, less so as a permanent station. However, maybe it’s somewhat like speed dating. Trying different things, BigLaw, public interest, government for the delegated five minutes (or rather years) and then determining who you’re most compatible with and can wake up to in the morning.

But, as with sexual intimacy, this process looks simpler than it proves in practice. Those five-year flings are long enough that one accretes reasons not to go, becomes dependent on the available affection, starts rationalizing remaining in a bad relationship, fears uncertainty and loneliness more than before.

III. Social Action as a Means to Freedom?

Oliver Wendell Holmes suggests that if we remove morality and practice only the law, then the law would be more salient in its application. While this makes sense for people who are allowing their homes to foreclose, does it make sense for the lawyer seeking to achieve justice? Doesn’t morality motivate social action? The conception of what is right and wrong, just and unjust, seems to drive the nature of the practice some of us will engage in and delineates the work we find repulsive and oppressive.

Holmes said we learn the law best, "and nothing else," by thinking about it as a bad man. He did not say that this was a principle of practice.

A little morality and a lot of justice would have been good for Sean Bell. Unfortunately, there were no creative lawyers concerned about social justice willing to enact action. Ironically, the decision was made by the Justice Department. (http://www.nytimes.com/2010/02/17/nyregion/17bell.html?scp=2&sq=sean%20bell&st=cse)

I have to say that I think this is unfair to the lawyers in the EDNY and the Civil Rights Division. The statute isn't a homicide law: it requires them to prove that the policemen who fired on Bell were intentionally seeking to deprive him of his civil rights. As the Justice Department statement more accurately than grammatically reminded us, “Neither accident, mistake, fear, negligence, nor bad judgment is sufficient to establish a federal criminal civil rights violation." So the lawyers will have gone through the entire record looking for evidence that could support the only charge they can actually bring, and they will have used the FBI assets available (which will be neither the best nor the worst the Bureau has here) to reinterview witnesses trying to find the evidence that would justify them in going confidently to trial. But in a situation overflowing with mistake, fear, negligence, and bad judgment, if a jury chooses, as it usually does, to give the police officers the benefit of the doubt, the statute doesn't create a general federal power to take "a second bite at the apple." Convictions are very difficult to secure. That's why, despite the high-profile, and the pressure from victims' families and community organizations, almost all of the cases in which the DOJ is asked to investigate it ultimately declines to prosecute. The lawyers who tried to make a case here are professionals, absolutely committed, and as creative as you would want them to be. But that doesn't make evidence, and we should be glad it doesn't.

Free lawyers have new creative ideas. But how? As a 1L, it seems creativity consists in a much narrower scope only for the purposes of arguing both sides on an exam. While only one semester down doesn’t generate a strong foundation for initiating reform of the structure of law school, I think the question of creativity has some correlation to freedom and if it can be aided then that would be an interesting addendum the current curriculum.

I agree it would. Hence this course.

Creativity begins with thoughts about social action which in turn could potentially lead to freedom for individuals outside of myself. Yet, first, one has to free themselves. Is this circular? I am anxiously awaiting my opportunity to make freedom.

No, it's not circular, it's a spiral. It exists in four dimensions rather than two, and the element of time, of experience and wisdom gained, is crucial. You're right in emphasizing your nearness to starting: there's more that goes into making freedom than can be taught in a room.

Could you win your way to an understanding of yourself and your highest employment while working at a large law firm? Quite possibly. But the institution doesn't need or want you to do that, and so it is likely to interfere in a thousand ways, of which running you ragged is the most easy and profitable.

I think this essay expresses your situation and point of view well. I don't think it needs substantial revision, although you might want to take account of some of my comments to make minor changes that would remove distractions.