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Friday, May 19, 2017

1L Fear

From the days of The Paper Chase to the constricted tightness in the air around exam time, “fear” is part of law school.  But, is there an optimal level of “fear” that creates healthy focus, but not paralyzing distraction?  Is any fear constructive, or is it all a negative emotion that should be eliminated? Should fear be part of the 1L experience?  Does it help, hurt, distort, or destroy students?  As the world changes (with different expectations of students and from students), does fear have any place in the first year law school curriculum? 

As a law professor “fear” is a tool.  Some professors use fear in obvious bullying ways.  Some professors use fear though humor and humiliation.  Some professors make you fearful of disappointing them.  Ask any 1L why they are always prepared, and in between answers about “love of the law,” intellectual curiosity, and ambition, you will get the answer “I was afraid not to be prepared.” 

1L classes set up in a Socratic or semi-Socratic teaching style generate fear of embarrassment.  Students are on call, on stage, called out to answer in public.  The fear of ignorance, confusion, or saying the wrong thing is present every day.  Professors demand answers to their questions.  And, the process generates a natural tension that can make some people afraid.  Add in differences in learning styles, culture, and a host of power dynamics, and law schools create an intimidating learning environment that generates a natural fear.

Even with professors who try to be nice, open, inclusive and “definitely not scary,” fear exists.  I don't consider myself a scary teacher.  I teach soft-Socratic with plenty of humor, banter, and encouragement.  I view myself as a "coach" not a drill sergeant (or appellate judge).  But, there is still fear.  The role of standing up in front of dozens of students and commanding attention, respect, and precision with the subject matter generates a healthy fear.

And, that is my question -- is fear healthy?

Again, looking at my own law school experience (and recognizing my own privileged status and engagement) fear definitely motivated me.  I was fearful of being called on (I can still hear the deafening sound of my own heart beating when I knew I was next to be called on in class).  I was fearful about failing (or at least not doing as well as I could).  And, I worked really hard, less out of love of contracts or torts, and more out of a fear of not being prepared and being called out for that lack of preparation.

I could be wrong, or a product of another generation, but fear of not doing well, of failing to meet expectations, or of literally failing law school was ever present.  Fear motivated me (and I believe others) which is why it was intentionally or unintentionally fostered by law professors trying to motivate mastery of the law.

Yet, fear is not a part of other educational environments.  You don't think of high school English class as frightening.  You don't necessarily think of college seminar courses motivated in any way by fear.  While there are certain professors who emulate John Houseman in their lectures (a style that pre-dates The Paper Chase), much of the undergraduate experience is decidedly not Socratic. It is still stressful, but not full of fear.  One reason why students have a difficult time adjusting to “learning the law” involves a greater sense of fear.  

And, I can't imagine fear is scientifically proven to improve learning.  I am no expert, but learning theory seems to suggest otherwise.  And, the intentional creation of fear in a classroom has to be distracting if not disabling to many students.  Fear can bring with it class, gender, and racial power dynamics and can interfere with interpersonal relationships and learning.

So of all the possible motivational emotions, should law schools encourage fear?  Should we make a conscious effort to reduce fear in the classroom?  Should we be more consumer friendly and kind?  Should we replace fear with inspiration? Or collaboration? Or self-reflection?  Or self-reliance?

Or, is the fear that motivates being 100% prepared a life skill we want to cultivate in lawyers?  Should we turn up the pressure and demand more work and stress from our students to be prepared for the always demanding practice of law?  Should every class be like an appellate argument? 

I am afraid I don't know the answer, but think it worth discussing?

Posted by Andrew Guthrie Ferguson on May 19, 2017 at 06:25 AM | Permalink


Andrew, I had/have similar questions about the role of fear in my classroom. You might be interested in an article I recently published about it: This is Your Brain on Law School: The Impact of Fear-Based Narratives on Law Students, 2015 Utah L. Rev 391, available at https://ssrn.com/abstract=2489134

Posted by: Abigail Patthoff | May 22, 2017 2:37:16 PM

I am an n of 1, but I was successful in private practice and attribute it in large part to constant anxiety about performance, about the competition, and about my clients's situations. (And though I say n of 1, I heard colleagues say the same thing, one on one, at very high levels.) Nothing will get you running every rabbit hole to ground (sorry for mixed metaphors) like fear.

It's always better to have a little skin in the game.

Posted by: enofone | May 21, 2017 4:00:03 PM


Isn't that just a string of words in an irrelevant and random order? Couldn't Anger lead to Fear, and Fear to Hate? Or Suffering lead to Anger, and then Anger to Hate, and Hate to Fear and Fear to more Suffering? That's just pseudointellectual hogwash and you represent exactly what's wrong with academia in the republic.

Posted by: Derek Tokaz | May 21, 2017 9:44:07 AM

"Teaching students that there is no penalty for remaining silent -- or that if they do speak, the quality of their oral and written comments will not be evaluated -- does them a disservice."

As Milo says, "when you remain silent, Berkeley wins".

Posted by: Pepe1 | May 20, 2017 8:37:27 PM

There is a fairly impressive body of literature demonstrating that fear inhibits learning. I do not want students dreading class because they fear that they will be called on. Indeed, I no longer call on students unless they raise their hands.

At that same time, we are training students to perform in a profession in which -- even at the entry level -- they will frequently be required to speak in high-stakes situations (transactional lawyers too!), and in which everything they say (and write) will be likely be subject to critical examination. Being able to perform in these situations is a skill that we should try to develop during law school. Teaching students that there is no penalty for remaining silent -- or that if they do speak, the quality of their oral and written comments will not be evaluated -- does them a disservice. Moreover, the educational literature also makes clear that the more feedback students receive throughout the smeester, the more they will learn. One of the problems I have with "soft socractic" dialogue as it is frequently practiced is that the questioning is often so gentle that students may not realize when they have gone off track.

Beyond that, I care a great deal about the quality of students daily preparation for and participation in class. Developing those skills are probably more important for success in practice that the ability to perform well on a summative examination (especially one that is closed-book and time-limited). Most law professors claim to care about class preparation and participation, but all too often students do not receive prompt and meaningful feedback on the quality of their preparation and participation.

For this reason, I have come to believe that students should be given incentives to volunteer in class, and should receive prompt and meaningful feedback when they do so. That results in teaching through carrots and not sticks. I give points for participation promptly after class, and the points vary with the quality of the participation. I encourage students to come see me to get additional insight into my reaction to their participation. I also generally offer my thoughts about how their preparation for class affected their participation. Students also are required to produce short written projects through the semester on which they also receive points and feedback. In my experience, many (though I am afraid not all) students can overcome their fear if they come to see that a willingness to put oneself out there, even though it will draw potentially critical scrutiny, will be rewarded. After all, that is the way things generally work in the practice of law.

Larry Rosenthal

Posted by: Larry Rosenthal | May 20, 2017 8:02:27 PM

Asher, I'm not totally sure whether what you write conflicts with Howard's view. With that said, I agree that what you describe is the ideal. My favorite response when I call on a student to agree or disagree with a particular decision or rule is something like, "I'm not sure I'm right, but my instinct is X." That's the honest reaction of a student: They are there to learn, so testing their views to see if we can get a deeper understanding of the issues is the goal. I can then take that instinct and we can work through what it means and what its premises are, and we can compare that to the premises and meaning of alternatives.

Posted by: Orin Kerr | May 19, 2017 8:04:16 PM

“Fear is the path to the dark side. Fear leads to anger. Anger leads to hate. Hate leads to suffering.”

Posted by: Yoda | May 19, 2017 6:16:23 PM

I don't agree with Professor Wasserman's comment. Before a 1L can give something like an appellate argument on the cases he read, indeed before an appellate lawyer can give a good appellate argument on a set of legal materials, he has to work out what he thinks of them and possibly think many incoherent and contradictory thoughts. There is a time in law school to practice advocacy or client presentations, but I don't see why every 1L class should be that time. What I would find more educational is a teaching style that encouraged students to talk through the difficulties in what they read and their uncertain, developing and very possibly incoherent views about whether what they read is correctly decided or not, instead of encouraging students to make confident presentations about what a case they've just read held, how it was reasoned, and what they think of it, which may teach them how to speak glibly in court about a difficult and important case, but otherwise strikes me as counterproductive as it dissuades students from displaying the uncertainty and incoherence that actual engagement with hard law often leads to and teaches them not to engage. Unless one's pondered multiple readings of and responses to a major opinion and is alive to whatever ambiguities there are in whatever one's interpreting, it will usually be impossible to argue one's own preferred reading well. I wouldn't think much, for example, of a student who gave an especially coherent presentation on Klein the first time he read it, or a professor who expected one, as Klein -- while perhaps ultimately reducible to a coherent set of propositions, as Professor Wasserman argues pretty convincingly in his article on Klein -- is on first or second reading a pretty incoherent opinion whose reasoning can't be taken literally, such that one has to excavate a set of reasons that aren't really on the face of the opinion. Were I teaching Klein, I would want to see students struggle, intelligently of course, with the opinion. If at the end of that process they can find something coherent to say about it, that's great, but if they have something coherent to say before undergoing that process I doubt that they've read the opinion very thoughtfully, or might even suspect that they were cribbing from some secondary source. Freeing students to admit they struggle with what they read, as any intelligent person reading the bulk of the 1L diet should, might have the happy side effect of reducing the incentive for students to look up pat summaries of what they read so they'll have something pat to say about it in class.

Posted by: Asher Steinberg | May 19, 2017 2:58:18 PM

I think all educational programs use concern about one's own performance as an incentive to learn material. That's what exams do: Students learn in part because they are being graded on how much they have learned.

Posted by: Orin Kerr | May 19, 2017 2:12:27 PM

Whatever you choose to label it, let's consider the alternative. If a class has no penalty or down-side to non-preparation, then would you anticipate a decline in the class usefulness and utility? I would. If so, it serves a useful purpose, to maximize the benefit of the (limited) time allotted...

Posted by: Anon | May 19, 2017 11:08:52 AM

I agree with Jeff's closing paragraphs. I do believe students should treat each class as appellate argument or hearing or client presentation or anything else in which lawyers are expected to be prepared and to make a coherent presentation on some issue.

Posted by: Howard Wasserman | May 19, 2017 10:59:14 AM

Sorry about this. The period at the end screwed up the link. http://www.professorlipshaw.com/dressage.html

Posted by: Jeff Lipshaw | May 19, 2017 7:55:50 AM

Fear is too broad a word for it. Is stage fright "fear"? I think not. I worked with somebody once who called that sensation "eustress" ("eu" being good, as distinct from "distress"). There's also literature on that space in between one's comfort zone and a "panic zone" in which one learns best.

I decided to learn how to ride a horse at age 55. Trust me when I say that panic zones are not good. Panic zones on a horse have a way of getting you schooled on the effect of an old body making sudden contact with the ground. Comfort zones don't teach you anything. What great coaches and teachers do is to help the student navigate the discomfort zone short of panic where the student learns.

Fear equals freeze, mentally and physically. In sport, the freeze means loss of suppleness, speed, softness. In thinking it means the loss of the agility one needs to see the patterns in the problem.

I can go on for Paul Horwitz lengths about this - for more, see http://www.professorlipshaw.com/dressage.html.

Posted by: Jeff Lipshaw | May 19, 2017 7:54:40 AM

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