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Killing them softly: neuroscience reveals how brain cells die from law school stress and how neural self-hacking can optimize cognitive performance.


Law is a cognitive profession, and the legendary stressors in legal education and the practice of law can take a tremendous toll on cognitive capacity. Lawyers suffer from depression at triple the rate of non-lawyers. This Article provides a groundbreaking synthesis on the neuroscience of achieving optimal cognitive fitness for all law students, law professors, and lawyers.

A number of innovative companies have instituted programs designed to enhance the bottom line. Research shows that perks such as onsite gyms, stress management classes, and mindfulness training produce vibrant workplaces and thriving employees. Forward-looking law schools have created wellness programs designed to relieve law student stress and improve well-being. This Article explains the neurobiological reasons these programs enhance employee performance and improve student achievement.

Law school admissions are down, students are questioning the value of legal education, and the Carnegie Report is pressuring law schools to make legal education more practical. Learning about the neuroscience of cognitive wellness is critical to protecting brain function and enhancing cognitive performance. Legal educators have the power to bring this information to the attention of their law students and to create a neuroscience-powered achievement culture in law schools. Law students should not wait for institutional change to alleviate the impact a stressful law school learning environment has on their learning. Their professional identity, along with their capacity to build practice skills and a legal knowledge base, are at risk. Law students, law faculty, and lawyers should be educated and proactive about mitigating stress-related damage to the hippocampus, improving memory formation with adequate sleep, and enhancing cognitive function with exercise and contemplative practices.

Neural self-hacking is likely to be the newest fitness movement. Law schools and law firms that want to support robust cognitive performance for their constituents will follow the lead of companies like Google and create achievement cultures designed to optimize cognitive wellness and limit sources of stress. In doing so, they will curate desirable learning and working environments by enhancing the formation of more complete and competent lawyers. With fresh insights into the complex world of brain function, this Article explains brain structure; describes the parts of the brain used in cognition; and details how stress damages and kills brain cells. Neuroscience-based recommendations uncover the power of self-directed neuroplasticity in every law student, law professor, and lawyer to optimize cognition.
      B. EXERCISE.
      C. SLEEP.
         1. MINDFULNESS.
         2. MEDITATION.
         3. YOGA.
         4. RELAXATION.
         5. GRATITUDE.


"If we treat people as they are, we make them worse. If we treat people as they ought to be, we help them become what they are capable of becoming." (1)

J. W. Goethe

Neuroscience shows that the aggregate educative effects of training to become a lawyer under chronically stressful conditions may undermine the efforts of legal educators by weakening the learning capacities of law students. Stress in legal education may also set the stage for abnormally high rates of anxiety and depression among lawyers.

The stresses of attending law school are legendary. After peppering seventy-five first year law students with questions about their experiences in their 1L year at the University of Memphis law school, Andrew J. McClurg asked students about their dominant feeling at the end of the year. (2) The answers were disproportionately focused on anxiety and stress. (3) Students reported grave concerns over upcoming finals, grades, and failing law school. (4) They described suffering from "sheer, unrelenting exhaustion" and a "level of mental exhaustion I did not know existed." (5) One student admitted to not sleeping in bed more than three nights since beginning law school due to consistently dropping off to sleep either at the computer or in the living room while studying. (6)

Douglas Litowitz argues that "most lawyers hate[d] law school," describing it as a "hazing ritual" that yields law graduates with more mental problems than they had when they started school. (7) He complains that law school is not a transformative educational experience, but one that traumatizes and breaks people: "When I say that law school breaks people I mean that almost nobody comes out of law school feeling better about themselves, although many come out much worse--caustic, paranoid, and overly competitive." (8) Some lawyers feel law school boosted their confidence and self-esteem. (9) They also enjoyed developing a network of friends and peers. (10) However, many also "cite competition, grades, and workload as major stressors." (11)

Law schools often define student success in terms of grades, class standing, and journal participation. (12) Students are introduced to "these prizes" as early as the first day of orientation, and they feel significant pressure to perform. (13) They respond by trying to "obtain high grades as a form of credentialing," marginalizing the development of domain knowledge and skill mastery in the process. (14)

The Carnegie Report (Carnegie) parses legal education into three apprenticeships: the intellectual apprenticeship, where students build a knowledge base; the practice apprenticeship, where students develop practical legal skills; and the professional identity apprenticeship, where students learn the attitudes and values of the legal profession. (15) Carnegie argues that deeply rooted aspects of the hidden legal curriculum may cripple legal education. (16) The context in which law students are trained encourages a "single-minded focus on competitive achievement." (17) A student's professional identity is shaped by the socialization process of legal education. (18) Carnegie states:
   In their passage through law school, students apprentice to a
   variety of teachers, but they also apprentice to the aggregate
   educative effects of attending a particular professional school and
   program. That is, they are formed, in part, by the formal
   curriculum but also by the informal or 'hidden' curriculum of
   unexamined practices and interaction among faculty and students and
   of student life itself. (19)

Major obstacles to legal education reform enumerated in Carnegie are also significant sources of chronic stress for law students:

* the competitive classroom climate,

* the competitive atmosphere of most law schools, and

* the grade curve. (20)

The term "hidden curriculum" was coined in 1968 by Philip W. Jackson, Education Professor at the University of Chicago. (21) The Online Dictionary of the Social Sciences defines hidden curriculum as "[t]he norms, values, and social expectations indirectly conveyed to students." (22) Elliot Eisner, Professor Emeritus of Education and Art of Stanford University, wrote extensively about the explicit official curriculum and the implicit or hidden curriculum. (23) He argued that schools teach much more than they intend to teach via the hidden curriculum. (24) The hidden curriculum is part of the culture of both classroom and school, and it socializes learners to the values of the education environment. (25)

In his book about how educational apprenticeships form professionals, David Willamson Shaffer proposes that a curriculum of professional education should be designed to transmit the skills, knowledge, identities, and values of the profession. (26) Learning how to think like a professional means "learning to value the things professionals think of as important, interesting, and meaningful," (27) and seeing oneself as that kind of professional. (28) Knowledge, skills, and values transmitted in legal education shape the professional identity development of law students. Law students osmose the culture in legal education and transfer it to law practice.

The stresses facing law students and lawyers result in a significant decline in their well-being, including anxiety, panic attacks, depression, substance abuse, and suicide. (29) Neuroscience now shows that this level of stress also diminishes cognitive capacity. (30) The intricate workings of the brain, the ways in which memories become part of a lawyer's body of knowledge, and the impact of emotion on this process indicate that stress can weaken or kill brain cells needed for cognition. (31)

Cognition, Latin for "the faculty of knowing," describes the process by which humans perceive stimuli, extract key information to hold in memory, and generate thoughts and actions to achieve goals. (32) The disciplines of neuroscience, psychology, and education study human cognition to improve the understanding of how the brain enables the mind. (33) The learning-focused intersection of these fields is known either as Educational Neuroscience (34) or Mind, Brain, and Education (MBE). (35) Scientists and educators collaborate in organizations such as Brain, Neurosciences and Education (36) and the International Mind, Brain and Education Society (IMBES) to improve teaching and learning. (37) A number of innovative companies such as Google, Whole Foods Market, and Cisco Systems have created programs designed to enhance the bottom line. (38) Research shows that perks such as onsite gyms, work/life balance programs, stress management classes, mindfulness training, and nutrition coaching promote cognitive health and produce vibrant workplaces and thriving employees. (39) Neural self-hacking, a class taught at Google, teaches employees about the power of neuroplasticity. (40)

The brain has the power to change itself through the personal effort and choices of its owner. (41) Brain plasticity is competitive; we keep the skills we practice and we lose the ones we do not. (42) Legal educators engage in scholarship on lawyer and law student well-being and are active in the Balance in Legal Education section of The Association of American Law Schools. (43) The godfather of this movement is Lawrence S. Krieger of Florida State University College of Law. (44) Law schools have instituted programs to improve student wellness and teach stress management to law students. (45)

Each law student, law professor, and lawyer has the power to alter brain processes to achieve states more conducive to learning. (46) Rule 1.1 of the American Bar Association Model Rules of Professional Conduct requires lawyers to be competent in completing their duties on behalf of their clients. (47) Law students, law professors, and lawyers can benefit from developing a neuroscience-based understanding of how to optimize their own cognition. (48) Developments in neuroscience identify areas of cognition in the brain and indicate recommendations that enhance cognitive effectiveness, performance, and productivity. Steps taken to increase cognitive fitness can strengthen lawyer creativity and well-being. In addition to bolstering cognitive competence, cognitive wellness initiatives may also provide a lawyer with a competitive advantage. Knowledge of these neuroscience findings will empower law students, law professors, and lawyers to enhance their cognitive wellness. Law faculty can implement neuropedagogy, teaching practices grounded in the latest MBE findings, by reflecting on stress in legal education and the impacts of the hidden curriculum. (49) Law schools and law firms, like many cutting-edge companies, can curate a culture of cognitive wellness.

This groundbreaking synthesis on the neuroscience of how to achieve optimal cognitive fitness is a must-read for all law students, law professors, and lawyers. Section II of this Article identifies the areas of the brain involved in cognition and explains the unique structure of neural communication networks. Section III discusses the neuroscience of memory formation and how learning occurs. Section IV describes the relationship between the brain and body during the stress response, examines the impact of negative emotions on learning, and details how brain research results from rodent studies are being confirmed in studies on live humans with brain-scanning technology. Section V presents a plan for neural self-hacking. It connects the neuroscience to recommendations to optimize law student and lawyer cognitive function and to create a culture of cognitive wellness in law schools and firms. Section V concludes with a challenge to individual law students and lawyers to embrace the promise of neuroplasticity and develop a plan for cognitive wellness. Section VI challenges legal educators to adopt the neuroscience-based innovations of achievement cultures that could transform the law school experience. Finally, the Appendix summarizes the neuroscience vocabulary used in this Article.


"What flows through your mind sculpts your brain." (50) Rick Hanson


A law student's brain weighs three pounds, (51) is the size of a coconut, is shaped like a walnut, and has the consistency of chilled butter, (52) Jell-0, (53) or for the vegetarians, tofu. (54) Despite assumptions to the contrary, a law professor's brain is the same size. The eight bones that make up the cranium protect the brain. (55) It requires about 25% of the calories consumed, 20% of the oxygen breathed, and 25% of the body's total blood flow. (56) The brain evolved from the top of the spine up into three general functional areas: (57) the primitive brain, the emotional brain, (58) and the thinking brain. (59)

The primitive brain sits on top of the spine and is also known as the brain stem, hindbrain, (60) or reptilian brain. (61) The primitive brain governs some of the body's basic motor functions, (62) such as breathing, digestion, heartbeat, sleeping, (63) and balance. (64) Major parts of this region include the brain stem, midbrain, and cerebellum. (65) If you are struggling for survival, you are using your primitive brain. (66)

The emotional brain lies deep within the skull, is situated around the primitive brain, and is also called the limbic system (67) or inner brain. (68) The emotional brain is the sentry between spinal cord and primitive brain below and the thinking brain above it. (69) The emotional brain manages circadian rhythm, hunger, sex hormones, addiction, and emotions. (70) Most of its parts "come in pairs, one in each hemisphere." (71) The major components of the limbic system are the amygdala, hippocampus, hypothalamus, thalamus, nucleus accumbens, and ventral tegmental, surrounded by the limbic lobe. (72) When law students experience an emotional response or create new memories, their emotional brains are engaged. (73)

The thinking brain is the wrinkly top layer known as the cerebral cortex. (74) The cortex is "wafer-thin" and approximately 324 square inches, (75) about the size of a full-page newspaper (76) or baby blanket if flattened. (77) The thinking brain has two hemispheres linked together by a bundle of nerves, the corpus callosum, which allows information to pass between them. (78) The left hemisphere is analytical, logical, detail oriented, and associated with reasoning, language and speech functions, and convergent thinking. (79) The right hemisphere processes information "in a holistic way," is intuitive, imaginative, and associated with emotion, spatial cognition, and divergent thinking. (80) The thinking brain is also divided into four major lobes:

* the frontal lobe (reasoning, planning, language);

* the occipital lobe (vision);

* the temporal lobe (hearing and some aspect of memory); and

* the parietal lobe (movement, taste, temperature, touch). (81)

The outer layer of the thinking brain is gray matter, consisting of densely packed neurons responsible for information processing, and the inner layer is white matter, where information is transported between parts of the brain. (82) When law students use reasoning and logic to conduct "higher-order thinking," such as applying the law to a fact pattern, they are using their thinking brains. (83)

All parts of the primitive, emotional, and thinking brain are made up of communication nerve cells called neurons and support cells called glial cells. (84) Chains of neurons send messages around the brain and between the brain and the body. (85) Glial cells insulate neurons and aid their information exchanges. (86) Approximately 90% of the cells in the brain are glial cells and 10% are neurons. (87)

Neurons, the communication cells that transport information around the law student brain, are shaped like trees with long trunks called axons, a cell body bulb at the top of the trunk, and branches called dendrites. (88) The cell body stores genetic material and makes proteins. (89) Axons and dendrites are limbs of nerve fibers, reaching out from the cell body, which conduct communication throughout the brain. (90) Axons are the output channels that carry messages to other cells. (91) They are insulated by myelin, which aids the transmission of information. (92) Dendrites are the input channels that receive information from the axons. (93) Information travels on a path from the branch dendrites, down the axon trunk, across the synapses, and on to the next group of dendrite branches. (94) The brain is made up of approximately 100 billion neurons that form networks and make trillions of connections. (95)

The communication site where information-sending axons (trunks) meet information-receiving dendrites (branches) is a tiny gap called the synapse. (96) Information moves along the neural path as an electrical impulse when travelling through the neuron and a chemical when jumping across the synapse. (97) A message moving from neuron to neuron is electrical-chemical-electrical. (98) The chemicals that carry messages over the synaptic gap are called neurotransmitters. (99) Over 100 neurotransmitters have been identified and some of the important ones are:

* Dopamine (motivation, pleasure, meaning);

* Endorphins (reduce pain, increase pleasure);

* Serotonin (mood, anxiety, sleep);

* Oxytocin (bonding);

* Acetylcholine (attentiveness, memory);

* Glutamate (learning, memory);

* Gamma-aminobutyric acid or GABA (slows and balances system); and

* Norepinephrine (mood, arousal, attention, perception, motivation). (100)

Neurotransmitters leave the axon of the first neuron, move across the synapse, and dock in the dendrite of the next neuron. (101) Each neurotransmitter can dock only in the appropriate place in the dendrite receptor cell's surface. (102) Neurotransmitters either encourage the receptor cell to fire or inhibit neural activity. (103) "About 80 percent of the signaling in the brain is carried out by two neurotransmitters:" glutamate excites neurons into action and gamma-aminobutyric acid (GABA) suppresses them. (104) Like a transit system connects neighborhoods in a city, these electrochemical neuron data pathways link brain regions. (105)


Neuroscientists, psychologists, and educators strive to understand the relationship between the brain and human behavior. (106) While there is still much to be learned about the complex nuances of brain function, (107) brain scans have expanded research into how the brain operates. (108)

The earliest brain drawing, on Egyptian papyrus, dates from 3,000 to 2,500 B.C. (109) While Christopher Columbus Langdell's model of legal education using the casebook method is about 142 years old, modern brain mapping began approximately 350 years ago. (110) After studying the brain for many years, Oxford physiologist Thomas Willis published the first illustrated manual of the brain, Cerebri Anatome, in 1664. (111) Willis meticulously dissected post-mortem human brains and coined the terms neurology, lobe, and hemisphere. (112)

Brain research has been greatly enhanced by increasingly sophisticated scanning technologies that allow study of the brains of live subjects. (113) Brain scanning can provide anatomical imaging of the structure of the brain or functional scanning indicating how the brain is working during various tasks. (114) Brain structure scanning tools include: X-Ray; CT or CAT scan; and MRI. (115) Brain function and activity scanning tools include: EEG; fMRI; MEG; PET; DTI; and NIRS. (116) Neuroscientists use brain imaging to study a range of human activities and they have identified the brain regions involved in perception, language, memory, emotion, and movement. (117) Although human brain regions function the same way in each person, the location of human memory is individualized. (118)


The brains of all healthy law students are comprised of the triune structure: the primitive, emotional, and thinking brains. (119) The critical unit of communication within each brain is the tree-shaped neuron, which relies on the electrochemical process of transmitting information through the brain and between brain and body. (120) Every law student has a multitude of neuronal networks operating within the brain. (121) But each student's transit system map of neuron data pathways, referred to as the connectome, (122) is unique. (123)

"You are your synapses," (124) and your brain is a "work in progress" because your connectome is continuously rewiring itself. (125) The brain is in a constant state of change. It has the capacity to produce new neurons in the hippocampus and the olefactory bulbs (parts of the emotional brain) in a process called neurogenesis. (126) The modification of neural networks in response to experience, such as legal education, is neuroplasticity. (127) Humans have struggled to find a metaphor for human memory. Plato thought it similar to a wax tablet, (128) and more recently, memory has been compared to hard drive storage in a computer. (129) Memories are not stored in a central location in the brain, but are stored in the neural pathways distributed across the cortex in the exclusive transit map connectome of each law student and lawyer. (130)


"Sixty minutes of thinking of any kind is bound to lead to confusion and unhappiness." (131)

James Thurber


Connecting specific regions of the brain to the human experience continues to engage scientists, (132) and much of the focus has been on processes such as learning and memory. (133) Learning is the acquisition of new information and memory is how the information is stored. (134) Learning includes cognitive components, such as memorizing rules of civil procedure; motor components, such as the typing necessary to take notes on a laptop; and affective components, such as feeling embarrassed if unprepared when called on in class. (135) When learning something new, the brain is processing information and establishing fresh neural connections as networks of neurons fire together. (136)

For law professors to help students learn and encode memories for storage, the law student thinking brain and emotional brain must work together in a complex communication process. Information comes into the thinking brain via the senses. (137) Visual information is processed by the occipital lobe; sound is processed by the temporal lobe; language is processed by the frontal lobe; and information about movement, touch, or taste is processed in the parietal lobe. (138) From the senses in the thinking brain, information moves through the emotional brain when the thalamus focuses the brain's attention, screens and sorts this sensory information, and relays it to the hippocampus. (139) The hippocampus is both "the starting point and ending point of the loop" that is necessary for storing new memories. (140) Before the information circuit goes back to the thinking brain, the amygdala is checked for emotional content. (141) The amygdala becomes part of the memory storage capacity for emotionally-charged experiences, and those memories are encoded more powerfully in the brain than emotionally-neutral information. (142) The information loops back to the thinking brain, to the specific lobe of the original sensory input, and returns to the hippocampus. (143) Information travels this entire memory-encoding ring via law student neurons and their neurotransmitters. (144)

For law students, classroom experiences and reading material start to become part of long-term memory when the information is iterated through the circuit from the hippocampus in the emotional brain to the thinking brain and back to the hippocampus. (145) Neurons fire along the way, increasing in sensitivity and the likelihood that they will fire again along the same path, in a process called long-term potentiation (LTP). (146) Canadian psychologist Donald Hebb described this connectome-building synaptic process: "Cells that fire together wire together." (147) Synaptic plasticity supports memory systems, which are distributed assemblies of interconnected neurons. (148) The brains of law students and lawyers are continuously being rewired and everything they do, think, and feel is governed by their neural networks. (149)


A memory trace, such as the first five minutes of an introductory lecture on the Rule Against Perpetuities, is the initial sensory information received by the brain during a law student learning experience. The ability to store information depends on working memory, which consists of visual, auditory, motor, and emotion memory traces, mediated by executive control processes. (150) "[A] memory trace is fragile, labile, subject to amendment, and at risk for extinction." (151) The brain can use working memory to begin converting memory traces into long-term memory or it can forget them. (152)

Long-term memory can be classified as implicit or explicit, and these memory types are stored in different regions of the brain. (153) Implicit memories are also called nondeclarative memories because they "cannot be experienced in our conscious awareness." (154) Nondeclarative memories include procedural and fear memories, which are unconscious and stored in the primitive or emotional brain. (155) Procedural memories are motor skills or how-to memories, and they are stored in the cerebellum (primitive brain). (156) These are learned habits and skills such as skiing, dancing, and driving. (157) Fear memories are phobias and flashbacks, such as fear of snakes or humiliations at the hands of vicious law professors or legal employers, and they are stored in the amygdala (emotional brain). (158)

Explicit memories are called declarative memories because they require conscious thought in order to be recalled, and they are stored in both the emotional and thinking brain. (159) Episodic memories are of autobiographical personal experiences, such as the memory of meeting your best law school friend at the Orientation Week picnic. (160) Semantic memories, those especially important in legal education, are "learned knowledge," such as facts, concepts, and words. (161) Episodic and semantic memories are stored in the hippocampus (emotional brain) and the cerebral cortex (thinking brain). (162)

Scientists learned much about the relationship between working memory and long-term memory because of an historic case involving a man who had surgery to treat epileptic seizures. In 1953, patient H.M. had a substantial amount of his temporal lobes removed on both sides of his brain. (163) The temporal lobes are part of the emotional brain and include the hippocampus. (164) The surgery improved his seizures, but he was left with severe memory impairment and his capacity for new learning was nearly extinguished. (165)

Nondeclarative memory became defined as any unconscious memory system that is not substantially altered when the hippocampus is damaged. (166) Declarative memory, the kind of memory that is critical to legal education, has been refined to mean "any conscious memory system that is altered when the hippocampus and various surrounding [brain] regions become damaged." (167) Neuroscientists have used fMRI scanning in studies on live subjects to further demonstrate that a healthy hippocampus is critical to the encoding and retrieval of declarative memory. (168)


Memories have different life spans, some lasting minutes, the undergrad who cut you off in the law school parking lot, and others a lifetime--the time you got called on the first week of school and the professor would not move on to another student even though you never came up with a satisfactory response. (169) The process of converting memory traces into long-term memory is called consolidation. (170) Consolidation makes information more stable in the brain. The first step of consolidation is encoding. (171)

Encoding is the processing of physical sensory information--sights, sounds, language, and emotions--as it enters the brain. (172) Automatic processing is the type of memory encoding that requires "minimal attentional effort." (173) Memories encoded in this way, such as episodic memories of autobiographical experiences, are easy to recall. (174) And if memories of travel, special events, or law school degradation are discussed at length with law school friends, they are fluently consolidated in long-term memory. (175)

The life cycle of declarative memory, of critical importance in legal education and law firm training programs, involves four stages: encoding, storing, retrieving, and forgetting. (176) Encoding declarative memory information requires the application of conscious attention known as effortful processing. (177) In the initial moments of encoding, when memory traces enter the thinking brain via the senses, electrical activity is discharged through millions of neurons in the brain regions associated with those senses. (178) Data from salient experiences break out of working memory and travel to the hippocampus in the emotional brain for further processing. (179) The hippocampal neurons start to encode this information for permanent storage along chains of firing neurons. (180) This temporarily strengthened synaptic interaction, which lasts an hour or two, is called early LTP. (181) If the sensory input is repeated after a period of time has elapsed (like when law students consolidate class notes into outlines each week), the same neurons fire together more often and late LTP occurs. (182) The strongest information is sent back to the thinking brain, distributed to the parts of the cortex where it was first registered by the senses. (183) The learning process, memory encoding and consolidation, alters the structure of the brain by forging new connections of neurons and expanding the connectome of every law student. (184)

Consolidation (enhanced by creating and studying law class outlines) makes temporarily stored fragile information (from reading and class lectures) more stable for later retrieval (on law school exams) by strengthening neural connections of the information circuit between the hippocampus and the cortex. (185) This dialogue between the hippocampus and the cerebral cortex takes place largely during sleep. (186) Researchers believe the memory consolidation process, the electrochemical marriage between the emotional brain and the thinking brain, can take from two to ten years to complete. (187) Once consolidation is completed, the hippocampus lets go of its relationship with the cortex. (188) Consolidated long-term memories, such as the expertise lawyers develop from school courses and practice experience, are distributed throughout the cortex in the brain regions where they initially entered the brain. (189)

The memory retrieval process used by law students during an exam relies on the same neural pathways that they used for memory encoding while they studied and slept. (190) Physical skills, such as typing or bike riding, are implicitly transferred through repetition. (191) Emotional learning experiences, demeaning or encouraging, are also implicitly and powerfully encoded as memories by the amygdala. (192) If emotion is an element of a memory, it increases the intensity of the perception and it enhances consolidation. (193)

For law students, the consolidation necessary for recall of declarative memories on assessments can be enhanced by rehearsal, practice, study, and analysis to imbue the information with meaning and link it to other important information. (194) If there is enough iteration between the hippocampus and the cerebral cortex, the memory is firmly established in the thinking brain and the hippocampus is no longer needed for retrieval of the memory. (195)

Forgetting memories allows law students to prioritize and survive law school by eliminating unneeded information, such as the irritating undergraduate driver. (196) Rather than store irrelevant information, the brain forgets it. (197) Because the processes of learning, memory storage, and memory retrieval involve both the emotional and thinking brains, law students, legal educators, and lawyers should develop an understanding of the impact of emotion on cognition and the nexus between brain and body.


"An impression may be so exciting emotionally as almost to leave a scar upon the cerebral tissues." (198)

William James


The thinking brain and the emotional brain of the law student and lawyer must work in concert to encode declarative memories, such as learning the law, and consolidate them for future retrieval on law exams, in legal memos, or during arguments in court. (199) Sensory information in the form of emotional memory traces often accompanies visual, auditory, and language information as it first enters the brain. (200) The nature of this emotional information can impact memory formation. (201)

An emotion is an unconscious and automatic response to an emotional stimulus that results in physical changes, such as the pounding heart or sweaty palms you experienced during your first moot court oral argument. (202) Emotions are physiological and largely unconscious behavioral and cognitive responses that occur within both the brain and the body, when the brain detects a positively or negatively charged stimulus. (203) "Emotions manifest themselves outwardly in visible changes to the body." (204) Physical responses to emotions include blushing, muscle contractions, facial expressions, increased heart rate, and heightened blood pressure. (205)

The six primary emotions are fear, anger, sadness, disgust, surprise, and joy. (206) Brain scan technologies have led researchers to assign negative emotions to the right hemisphere and positive emotions to the left hemisphere, and therefore, lawyers with more activity in the left would tend to be happier than those with more activity in the right hemisphere. (207)

Emotions are experienced as "powerful feelings" that add meaning to our lives. (208) Feelings are the conscious perceptions of automatic bodily emotional responses. (209) Feelings are "inward and private[,]" and the awareness of feelings "provide[s] incentives to adapt and act." (210) A feeling is "the representation in working memory of the various elements" of an emotion. (211)

Emotional information travels through the law student brain along two parallel processing routes. (212) The fastest route goes straight to the amygdala, which assesses it as either a threat--I didn't do the reading and may get called on--or as an opportunity--I am prepared to be called on and want to impress the professor so she will hire me as a research assistant--and then "prime[s] the body to act appropriately." (213) This "quick and dirty" route allows law students to take instant action to survive via flight, fight, or appeasement. (214) On the slow and deliberative route, the information is processed by the cortex in the thinking brain and the hippocampus in the emotional brain. (215) If no threat is found--the professor does not engage students randomly so I know how to prepare for class--the thinking brain overrules the amygdala in the emotional brain and inhibits the fight-or-flight response. (216)

Joseph LeDoux of New York University, the neuroscientist who put the amygdala on the map, has shown that more neural traffic travels up from the emotional brain to the thinking brain than down from the thinking brain to the emotional brain; thus, he believes that the emotional brain has more power to influence law student behavior than the thinking brain. (217)


"Our brain is the factory of the emotions. " (218)

Don Miguel Ruiz

Four of the six universally recognized emotions are negative: fear, anger, sadness, and disgust. (219) Stress involves some combination of these adverse emotions. (220) Stress, a concept borrowed from engineering, "can be defined as the amount of resistance a material offers to being reshaped and reformed." (221) If too great a load is placed on the beam supporting a structure or the law student trying to learn the law, it/he is damaged or collapses. (222) Walter B. Cannon and Hans Selye were key researchers in stress physiology. (223) Cannon developed the fight or-flight phenomenon to describe the stress response, (224) and Selye used the term stress to describe the general unpleasantness his lab rats were experiencing when he would routinely drop, chase, and recapture them during his experiments. (225) Selye noticed that the rats had a similar set of responses to a broad array of stressors and that extended exposure to general unpleasantness made them sick. (226)

Jeansok Kim and David Diamond developed a three-part definition of stress in humans:

* There must be a physiological response to the stressor and it must be measurable by another party;

* The stressor must be perceived as aversive; and

* The person must feel she has no control over the stressor. (227)

A law student's reaction to stress depends upon the individual and the length and severity of the stressor. (228) Like Selye's lab rats, when law students are subjected to a broad array of stressors in the legal education environment, that general unpleasantness is likely to make them sick. (229) Law students and lawyers have reported a response to law school conditions that meet the stress definition of Kim and Diamond: they suffer physiological responses to negative stressors over which they have no control. (230) Bruce McEwen coined the term allostasis to provide a framework for understanding the various ways humans respond to stress. (231) Allostasis is the process the brain uses to coordinate body-wide changes. (232) The brain helps maintain stability in the body with the process of allostatic regulation. (233) McEwen called the wear-and-tear from the stress response--the tipping point at which stress becomes toxic--"allostatic load." (234) When the law student reaches this allostatic load, "the stress-response can become [even] more damaging than the stressor." (235)

The autonomic nervous system (ANS) is the neural circuitry that works with the brain to direct the law student's physiology and maintain allostatic balance. (236) Walter B. Cannon called this stability system, working to balance the right amount of alertness with relaxation and anxiety with calm, the "wisdom of the body." (237) The ANS maintains allostatic equilibrium with two divisions: the sympathetic nervous system (SNS) and the parasympathetic nervous system (PNS). (238) The SNS is activated by the hypothalamic-pituitary-adrenal axis (HPAA) of the endocrine system. (239) The SNS/HPAA directs fight-or-flight behaviors, and the PNS controls rest-and-digest functions. (240) The SNS/HPAA arousal system is the body's accelerator, and the PNS is its brake. (241)


When the law student brain detects an emotional stimulus, it sends signals to three systems that control the physiological expression of emotional states: the endocrine, autonomic, and skeletal motor systems. (242) "The endocrine system is responsible for the secretion and regulation of hormones into the bloodstream." (243) The autonomic system mediates physiological changes in the body, including the cardiovascular system. (244) The skeletal motor system controls behaviors such as freezing, flight, fight, and facial expressions. (245)

The human response to stress enables the fight-or-flight reaction necessary for survival and is known as the SNS/HPAA. (246) This response was highly adaptive during the period of time when humans needed to flee from predators, but it can be destructive in law school and legal practice. (247) Psychologists have identified two kinds of stress: acute and chronic stress. (248) Acute stress is short-lived and can be helpful in dealing with situations such as a novel intellectual problem or a significant physical challenge. (249) Chronic stress is long lasting and is caused by experiences such as a troubled intimate relationship, financial struggles, job loss, treatment for a life-threatening illness, or attending law school. (250)

When stress persists for a few hours or days, a law student may experience a bad mood. (251) Longer-term stress can cause stress-related disorders such as panic attacks, anxiety, or depression; the physical effects include increased blood pressure, heart palpitations, breathlessness, dizziness, irritability, chest pain, abdominal discomfort, sweating, chills, or increased muscle tension. (252) These symptoms are caused by the stress response originating in the emotional brain, which activates the endocrine and autonomic systems, together the SNS/HPAA. (253)

The law student SNS/HPAA is ignited by "the brain's panic button," the amygdala. (254) The amygdala is alert to threats--I might fail this final exam and blow my GPA--and to opportunities--I want to impress the cute girl in my class with my intellectual prowess--and initiates the quick and dirty route to the body's fight-or-flight response. (255) The amygdala signals two other parts of the emotional brain: the thalamus to focus attention and the hypothalamus to release stress hormones. (256)

The two main stress hormones secreted by the endocrine system are adrenalin (also known as epinephrine) and glucocorticoids (the main glucocorticoid is cortisol). (257) Cortisol indicates to the SNS/HPAA to elevate heart rate and blood pressure, mobilize energy, slow digestion, and suppress immune responses. (258) The evolutionary purpose for these responses is to allow the skeletal motor system to respond to ensure survival. (259)

Our stress responses were shaped to help humans manage immediate predator threats and address problems that could be resolved within seconds or minutes. (260) The purpose was to mobilize our muscles to escape harm. (261) When chronic stress causes a lengthy stress response in the law student, both the brain and body suffer. (262) Too much adrenaline causes surges in blood pressure and scarring in the blood vessels, which increases the risk of stroke and heart attack. (263) Chronic stress reduces and impairs the white blood cells necessary to fight infection and eventually cripples the immune system. (264)

Law student and lawyer stress-related diseases are caused by problems in allostatic regulation where the stress response is either repeatedly turned on or cannot be turned off. (265) Long-term elevated levels of glucocorticoids resulting from chronic stress have been associated with the following physical conditions:

* Impaired immune response;

* Increased appetite and food cravings;

* Increased body fat;

* Increased symptoms of PMS and menopause;

* Decreased muscle mass;

* Decreased bone density; and

* Decreased libido. (266)

Chronic stress also produces the following emotional conditions:

* Increased mood swings, irritability, and anger;

* Increased anxiety; and

* Increased depression. (267)

Because the panic button amygdala is hardwired to react to trouble, the law student brain suffers from a negativity bias, (268) where the mind can trigger the stress response by simply imagining a threating situation. (269) Executive control within the thinking brain is diminished during SNS/HPAA arousal, so it becomes difficult for the anxious law student to put the brakes on worries that may or may not come to pass. (270) Law school and law practice are filled with sources of stress that initiate the SNS/HPAA response, such as intense workload, the expectation of 24/7 availability, technology overload, and a loss of the intimacy of face-to-face connections. (271) The legal workplace is a common stressor for lawyers, (272) and emotional responses to problems spark the SNS/HPAA response more often than the presence of actual peril. (273)

Activation of the SNS/HPAA stress response causes circular damage in the emotional brain of the stressed-out law student or lawyer. (274) It heightens stimulation of the terror-prone amygdala, which produces more cortisol. (275) The cortisol suppresses the hippocampus, which normally curbs the amygdala, leading to more cortisol production. (276) The amygdala is over-sensitized, and the hippocampus is compromised. (277)

Many law students and lawyers spend their lives lit up in SNS/HPAA overdrive, believing their performance is enhanced by the adrenaline rush. (278) This predicament may be fueled by caffeine and other substances. (279) Living in chronic SNS/HPAA arousal redirects resources away from building a strong immune system and maintaining cognitive well-being. (280) Neuroscientists have proven that cognitive performance is diminished during the SNS/HPAA state, but thanks to neuroplasticity, it can be reversed when law students and lawyers develop greater PNS control. (281)


The other half of the law student brain-body equilibrium system is the parasympathetic nervous system (PNS). (282) The "rest-and-digest" PNS conserves energy and produces a feeling of calm and contentment. (283) It promotes digestion and nutrient absorption, slows the heart rate, lowers blood pressure, and curbs the release of adrenaline. (284) The PNS limits heat loss and promotes rest. (285) Where the SNS stimulates arousal, defense, and escape, the PNS supports nourishment and procreation and also restores allostatic equilibrium after SNS activation. (286)

Law students and lawyers can enhance the PNS, cultivate the neurology of calm, and foster resilience in the face of stress. (287) Strengthening the PNS requires practicing deep relaxation, contemplative practices, and guided imagery. (288)

Researchers began studying the impact of stress on cognition using mice and rats. (289) These little creatures advanced our knowledge and helped us learn about how to protect the human brain against stress until scanning technologies made noninvasive research on the human brain possible. (290)


Because it is much more difficult to study the human brain than the animal brain, extensive brain research has been done using mice and rats. (291) Topics of keen interest to researchers include learning (292) and emotional response. (293) Brain imaging technologies have been used in recent years to study the learning and emotional processes in brain-damaged humans. (294) Because so many parallel discoveries have been made in brain research on both rats and humans, findings from rodent research should be assumed to apply to law students, law professors, and lawyers. (295)

Considerable research has been conducted on the hippocampus and amygdala--components of the emotional brain--in rats. (296) In rodents, new neurons born in the hippocampus are integrated into neural circuits. (297) The presence of glucocorticoids suppresses normal rates of neurogenesis in rodent hippocampi. (298) Damage to the hippocampus can create a destructive cycle where greater amounts of glucocorticoids are released, producing additional hippocampal atrophy. (299) "[T]he tendency of glucocorticoids to damage the hippocampus increases the over-secretion of glucocorticoids" causing more hippocampal damage. (300)

In the law student brain, stress responses are coordinated by glucocorticoid receptors in the hippocampus. (301) There are abundant glucocorticoid receptors in the hippocampus making it very responsive to stress, (302) and chronic high glucocorticoid exposure leads to hippocampal neurodegeneration and cell death. (303) Remaining hippocampal neurons "no longer work as well." (304) The complexity of neural networks is diminished as they weaken or get disconnected at the synapse. (305) Glucocorticoids kill cells in the hippocampus, impairing its ability to make synaptic connections in neural networks that make law student learning and consolidation of declarative memory possible. (306) When hippocampal neurons die, learning is nearly impossible for law students. (307)

The impact of stress on law student cognition includes deterioration in memory, concentration, problem-solving, math performance, and language processing. (308) Curiosity is dampened, and creativity is diminished. (309) A paralysis sets in, limiting motivation and the ability to break out of repetitive behavior patterns. (310) Research has shown that hippocampi shrink in size in people with major depression. (311) Exercise, healthful sleep, and antidepressants can reverse law student and lawyer hippocampal atrophy and increase the rate of neurogenesis, new brain cell development. (312)

That neurons in the hippocampus--the brain region so important to learning and memory formation and one of only two places in the brain where neurogenesis occurs-can be harmed or killed by exposure to stress hormones creates significant implications for law students, legal educators, law schools, and legal employers. (313) Neuroplasticity allows every law student and lawyer to self-fashion a cognitive wellness plan. (314) The practice of law demands maximum cognitive function, and the profession is notoriously stressful. (315) Law students, law professors, and lawyers have the capacity to enhance their brains and augment their parasympathetic nervous systems in order to improve performance. (316) Researchers should seek to:

* identify sources of stress in legal education and legal work environments,

* limit these stressors, and

* implement cognitive wellness training programs and practices.
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Title Annotation:Abstract through IV. Your Brain on Emotion, p. 791-826
Author:Austin, Debra S.
Publication:Loyola Law Review
Date:Dec 22, 2013
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