Keeva on Life and Practice

Lost in the Law

  • Print

When I first browsed through How Lawyers Lose Their Way: A Profession Fails its Creative Minds, the new book by law professors Jean Stefancic and Richard Delgado, I came upon a passage that stopped me cold. It concerns the relationship between how lawyers think and how they work:

“The link is easily stated. If you allow yourself to think of what you do in crabbed terms, you are apt to find yourself working in a crabbed workplace as well. Another way of putting it is that if you allow your repertoire of thoughts, ideas and categories to atrophy, you are likely to end up thinking and working in sterile settings.”

Among several things I like about that passage, one notion that I am particularly impressed with is that the most important source of power lies with the individual lawyer, who must consciously choose to remain lithe, intellectually supple and unwilling to slip into sterile thinking. Yes, the authors seem to say, this profession will throw all kinds of impediments in the way of a satisfying work life, but it cannot stop you from maintaining a vibrant internal environment.

But it’s not easy. For one thing, lawyers tend not to be the most introspective people in the world, a tendency that is often exacerbated by the pressures of hourly billing and huge workloads.

Failings of Formalism

This is a highly worthwhile and creative book, one that goes well beyond the usual analysis of what has gone wrong with the legal profession. In fact, the chief villain in the authors’ analysis of what has led to so much unhappiness in the profession is something that would surprise the vast majority of lawyers, if they were aware of it at all.

“It is an overabundance of formalism,” they write, “a habit of mind and a type of social organization that attempts perversely to narrow one’s focus beyond that which a situation requires to render justice to it. … [F]ormalism–the regimentation of thought and reasoning takes the life out of work and the professions, depriving them of juice, richness, concreteness and anything else that might render them of human interest.”

Stefancic and Delgado, both of whom are associated with the critical studies movement in legal scholarship and teach at the University of Pittsburgh School of Law, are keenly interested in the forces that impinge on lawyers’ lives, making those lives narrower, “less creative and more pressured than they need to be.”

These forces, it seems, create a great many of the prob­lems that are now plaguing the profession, including repetitious, cookie-cutter work; lack of stimulation; long hours and crushing workloads; and, of course, the billable-hour trap.

The Odd Couple

Stefancic and Delgado do a particularly good job of illustrating their points by looking at the 40-year relationship, mostly in letters, between Ezra Pound and Archibald MacLeish. As a patrician, Harvard-trained lawyer and public servant, MacLeish found law practice unfulfilling and loved writing poetry above all. Pound, the Dionysian poet-genius, changed the face of poetry and influenced artists all over the world.

Over the years, each gave to the other. Pound critiqued MacLeish’s poetry and became his mentor, while Mac­Leish was ultimately able to find a satisfying use of his legal skills by getting Pound freed after he had spent 13 years in a Washington, D.C., mental hospital.

Although various other schools and isms (realism, for example) have interceded over the decades, formalism has regularly resurfaced, according to Stefancic and Delgado, to exalt internal values such as ironclad consistency over ambiguity, sterile rationality over multiple possibilities and rigid rules over social context. What does this amount to?

One thing is clear: The authors show no sign of atrophy or diminution in their own “repertoires of thoughts, ideas and categories.” They have demonstrated that not only with this book, but also in the dozens of books and articles they’ve written over the years.

Formalism, they say, “eliminates the intellectual independence of feisty lawyers, questioning doctors and critical scholars who wish to think outside disciplinary boxes. It tries to make into a machine that which cannot be a machine–a person.”

Stefancic and Delgado point out that formalism was first identified in the law, but has since spread almost everywhere. The result, for lawyers, is a sense that so much more is possible in a profession that touches on the entire rich spectrum of life, yet yields for its practitioners only crumbs.

To be schooled in legal formalism, they say, is to be steeped in a school of thought that tries to make law a science, “reducing human factors and fact patterns to fit precedent, minimizing the role of judgment, politics, compassion and discretion.”

Formalism is not only alive and well, they say, but is wreaking havoc with the happiness and well-being of the bar.

What would seem to be needed is a way to bring more life into the practice, which, according to Stefancic and Delgado, will require a fight against the external forces that press lawyers to reduce what they do to a formula.

Life can be better than that.


In "Lost in the Law," August 2005, page 80, the artist for the story's illustration was misidentified. Richard Tuschman should have been credited. The Journal regrets the error.

Steven Keeva, an assistant managing editor, is the auth­or of Transforming Practices: Finding Joy and Satisfaction in the Legal Life.

Give us feedback, share a story tip or update, or report an error.