November 15, 2012

The Moral Predicaments of BigLaw

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According to a recent survey by the National Law Journal, 38.3 percent of Cornell law students will work in something called “BigLaw” after they graduate. BigLaw refers to a collection of large, New-York-centric law firms that advise the world’s largest banks and commercial conglomerates on financial transactions and securities litigation. BigLaw lawyers work incredibly long hours, make a lot of money and generally burn out in about two to four years before joining one of their respective firms’ clients as in-house counsel.For many law students, the decision of whether to join BigLaw requires a difficult calculation involving size of law school debt divided by years lost from one’s life by going for days without sleep or significant social contact (if BigLaw lawyers were Sims, all of their mood meters would be red and they’d alternate between sleeping while standing up and crying). For some subset of these students, this decision involves a second calculation: whether the cushy salary and unparalleled professional experience BigLaw affords is worth the karmic hit one takes from serving at the feet of corporate oligarchs.This is not to say that BigLaw really is an evil empire inhabited by grey-faced mercenaries — only that this perception exists. Some of the moral hand wringing over BigLaw can be written off as knee-jerk anti-corporatism: the American financial industry and its remora, BigLaw, creates immense social value by connecting investors with entrepreneurs. And in the same way that public defenders are not pro-crime, BigLaw lawyers are not necessarily in favor of the corporate largesse that sometimes pays their salaries. Nonetheless, the perception of BigLaw as an instrument of economic entrenchment persists. And indeed, it feels a bit strange — perhaps even disingenuous — to hear someone express concern about income inequality over lunch on the 45th floor of a skyscraper that Occupy Wall Street, camping in the park outside, has dubbed the Death Star.  Even assuming that BigLaw really is “evil,” however, there are at least two reasons to believe that non-sociopaths can comfortably join BigLaw without selling their souls. So, prospective BigLawyer, if you ever find yourself in a moment of self-reflective crisis because you’ve chosen a career as a tool of the plutocratically entrenched, or if you’re ever at a dinner party and need a quick response to the bearded man with a Master’s in social justice, consider the following:First, BigLaw creates a significant positive externality in the form of first-rate legal training.  Many public interest organizations are so woefully underfunded that they cannot afford to provide robust training and mentorship to young lawyers, let alone hire out of law school at all. BigLaw provides this incubator for aspiring public interest lawyers at no cost to the public interest firms themselves.The problem with this justification is that it depends on one’s intent to leave BigLaw. Under this theory, BigLaw is justifiable only as a necessarily evil prelude to a career in public interest law. This theory thus shields only young associates while conceding the moral bankruptcy of BigLaw lifers.A more universal moral justification for working in BigLaw derives from the game-theoretic observation that uncoordinated individual action cannot induce widespread reform: Even if you quit BigLaw forever to represent indigent asylum-seekers, life in the aggregate would change very little. Another lawyer would take your place at your former firm, and America’s financial machinery would continue to hum. Meanwhile, your acceptance of a public interest job would put another public interest lawyer out of work, and the great majority of indigent asylum-seekers would continue to lack adequate legal representation.Thus, uncoordinated individual action is of little practical consequence in a vacuum. BigLaw abstinence, like recycling, is a collective action problem that altruism alone cannot solve. One person’s choice to recycle will not affect the status quo unless others follow suit. But few will follow suit without a guarantee that their sacrifices will make a difference.This fatalistic result can be overcome by the democratic process. If enough people consider certain practices (such as pollution or financial speculation) anathema to society’s interests, they can elect a government that regulates or prohibits those practices. Thus, the proper course of action for a conscientious objector to BigLaw is not to abstain in the economic sphere but to seek redress in the political sphere.This theory, of course, depends on an unfettered political process, a notion some call quaint in the age of unlimited campaign finance. More fundamentally, this theory isn’t really a justification for working in BigLaw as much as it is an excuse: BigLaw may be evil, but there’s nothing we can do about it except vote. This all seems very unsatisfying. But the tepidness of this solution does not diminish the reality of the underlying problem: Collective action problems can only be addressed by coordination, and coordination depends on actual popular sovereignty. BigLaw is merely one small symptom of this endemic problem, and blaming BigLaw for the excesses of the financial industry is akin to treating cancer with Tylenol.Now if you’ll excuse me, I need to get back to finding regulatory loopholes for the plutocratically entrenched. Vote Obama.

Tom Schultz is a third-year law student at Cornell Law School. He may be reached at ts494@cornell.edu. Barely Legal appears alternate Fridays this semester.

Original Author: Tom Schultz