Law in Contemporary Society

Make a Choice

-- By WalkerNewell - 17 Apr 2009


A law student, Ruth, is at the start of her 3L year, trying to decide whether to accept an offer from the firm where she inevitably summered. She does not want to begin a career as a glorified plumber; rather, she entered law school hoping to eventually be able to somehow transform the world around her. Immaterial to her decision are any subjective moral arguments creating distinctions between corporate or public interest work. Important to her decision is her unique and continually evolving understanding of society and, within said framework, the change she hopes to create.

Of course, Ruth’s initial decisions will not be irrevocable; regardless of what her first job is, her career will likely change course more than once. But this is not to say that the choice is insignificant. Her ability to exert influence in her preferred substance and form will be affected by the decision. Further, her framework of understanding the world will be altered, depending on the job she takes. She cannot retain “unitary”, personal valuations wholly uninfluenced by the character of the enterprise to which she will be devoting most of her waking hours.

It would be presumptuous to assert that our subject can engage in complicated cost-benefit calculations and ultimately succeed in identifying the optimal initial step in her career. But even given the assumptions that will pervade her thought process, she should think about the implications that different choices will have on her ability to create change. Her initial question is, “Should I take the offer from Reputable, LLP?” With consideration, Ruth should be able to identify the character of her prospective job and some effects the decision may have on her overall goals.

"You have time to read?"

The value of taking a diverse methodological approach to lawyering is stressed by Arthur Leff and discussed further here. The character of Ruth’s job at Reputable will make it difficult for her to learn or apply such an approach. To accept the proposition that associates, and partners, at large firms work very hard, she does not need to believe that Joseph’s characters are accurate models. This guide illustrates just how much time is expected of young associates to even achieve the “low” mark of 1800 billable hours. The labor-intensive, pressure-filled lifestyle often compels young associates to leave; in 2007, the NALP found that almost 80% of associates no longer worked at their original firm five years later. Such a lifestyle will leave Ruth with little time to develop skills unrelated to her specialized practice or to gain knowledge relevant to her initial conceptions of change.

"I would prefer not to (be changed by my job)..."

Ruth’s conceptual framework, however, will not simply remain stagnant during the five years between law school graduation and law firm attrition. The culture of the firm and the paradigms of the partner-leaders will inevitably influence Ruth’s ever-changing norms. Depending on her baseline philosophies at the outset of her work, she may experience self-loathing, cognitive dissonance, or peaceful acquiescence. She cannot, however, say: “I would prefer not to be changed by my lifestyle and the content of my work, although I spend 10 hours of each day here.” If Ruth is bothered by the effects the firm has had on her, she may consider finding a new job. Her options, however, may be limited by another characteristic of her lifestyle.

Conspicuous Consumption

“It is notoriously just as difficult to recede from a "high" standard of living as it is to lower a standard which is already relatively low; although in the former case the difficulty is a moral one…” As a first-year associate, Ruth will immediately have a “high” standard of living by any measure. Therefore, if we are to believe Veblen, it will be quite difficult for Ruth to discard the consumptive habits she will form after a few years of firm work. This difficulty, of course, will not affirmatively preclude her from making a drastic lifestyle change by, for example, taking a government job. But even if she finds that her work does not prepare her to achieve her personal vision of change, there will be strong impulses compelling her to remain in a lucrative practice at the expense of forgoing her initial goals.

Make a Choice

As statistics show, Ruth will consider the cautionary tale outlined above, but she will eventually accept her offer from Reputable. This choice, though, is not a self-fulfilling prophecy of doom, especially if her model of influencing the world conforms to the firm’s mission. This is perhaps the most critical aspect of the choice. Ruth, as someone committed to her personalized vision of change, should attempt to work for an organization whose philosophies are closely aligned with her own. No one organization will have an institutional paradigm exactly conforming to Ruth’s values. However, minimizing the importance of prestige and salary in the calculation could lead her to a job that does not necessitate a sea change in her basic worldview.

Ruth could easily encounter the same problems if she chooses a job outside the firm arena. Potentially, the issues surrounding a future change in consumptive habits and the volume of work would be mitigated by such an alternative choice. But her “autonomous” model of change must necessarily be altered by whatever work she does. Any novice lawyer, with few skills and no experience, will have to take a great deal of direction from on high.

  • But any novice lawyer with solidly-built expertise in a specialized subject area and good collaboration skills could gain a great deal of valuable experience while serving clients for decent remuneration by helping more experienced generalists to deal with matters involving her area of specialization. A novice lawyer with two of those to trade for mentoring in other aspects of practice, and with some training in law school that she could get if she persistently asked for it, particularly if she stopped spending her summers inside bloated and irrelevant time-brokerages and instead interned with smaller and more skills-oriented practices, would be able to earn a fair living while building up her practice.

Therefore, Ruth’s goal of creating change in her preferred substance and form will be best served if she finds an organization that, while sharing her central ideals, also permits her to have some stake in decision-making, a reasonable amount of time outside of work to read and think, and the ability to cultivate a broad range of skills.

  • Not unless that organization is building her practice for her at least as well as she could do herself. You keep forgetting about that, as they want you to, as though you weren't supposed to have a practice. As though your license were supposed to be permanently in hock to someone else. Got the point?

With these relative freedoms, Ruth can prepare for the likely contingency of changing jobs, building on her multifaceted understanding of the world and experiencing a minimum level of interference with her most fundamental principles.

  • She shouldn't be changing jobs, she's a lawyer. She should be driving her practice. A job is a thing I lawyer could have, but the license should always be there and it should never be more than temporarily on someone else's shelf. If you don't know what it's worth, it's too early to take it to the pawnshop.

  • The essay is a great improvement. More could happen, but that's up to you.


The Case For Change From Without

-- By WalkerNewell - 27 Feb 2009

Assume Things Are Really Changing

In The Folklore of Capitalism, Thurman Arnold claims that although “their utility to the public and their own members has disappeared”, organizations “still survive”. America’s devotional belief in capitalist structures, if anything, became much stronger after 1937, when Arnold published his book. Our corporations, our ideologies, and our people were tested and proven superior. We won a big war and then spent the next half-century consolidating our victory, while our fellow superpower served as a convenient reminder of the horrors that would inevitably result if our institutions failed. But now, mirroring the organizational failures of Arnold’s time, it appears that the utility of our most vaunted institutions has been exhausted. At the least, the system has been severely undermined by corruption.

Assume, arguendo, that a young lawyer in this climate has one of three choices. Depending on her goals and values, a new lawyer might find satisfaction in any one of the approaches. First, she could seek a practice area which is experiencing growth and capitalize on the turbulence. Bankruptcy law, for example, is doing well presently, and certain specializations of big firms likely will continue to be profitable. Second, she could become part of the inevitable efforts to prop up the failing structures, or to reform them. This might be achieved through a career in government, or corporate law. Finally, she could attempt to use the opportunities presented by turmoil to pursue change from without the system. The path to this end is less certain, and such a career might not be as "stable". However, as the remainder of this paper will show, the last approach allows a lawyer more freedom and less internal conflict.

“It’s not my system, I’m just trying to get by.”

This type of thinking seems to characterize the first option outlined – that is, to profit from the current realities of the system. If the novice lawyer sees herself as merely a plumber, plying her trade, then she should be comfortable with finding the area of law which is currently the most viable and establishing herself in that field. And if she is mostly concerned with herself and her family, then this career path may be the most fulfilling. However, if she has a significant interest in the world outside of a small community, her opportunity cost for pursuing such a career is great. Given the chance to be close to “the thing” which Robinson valued, she instead chooses in favor of security. Again, this is not necessarily a “bad” decision of itself, but it may be a dissatisfying choice for a lawyer with a broad conception of the world around her.

“The system worked better than the alternatives, and I don’t want to shake things up.”

It is indisputable that many people benefitted from the economic and political apparatus of 20th century America. Therefore, it is natural that some lawyers will dedicate their careers to the second option – attempting to prop up the system that allowed this country to prosper for so long. The problem with this approach is twofold. First, it is unclear whether the same philosophies and values that guided our society in the past are still viable. Rigidly holding onto the mythology of “small government”, for example, or “self-reliance” might impede America’s ability to change with changing times and an increasingly interdependent international system. Similarly, to hold onto the businessman as our hero today (which, Arnold notes, we have done for over a century) would be to turn a blind eye to reality.

Second, a belief in the relative supremacy of the existing order over all others fails to account for the many negative externalities that our way of life has imposed on the rest of the world, as well as our own citizens. Our foreign policy evidences a strict “us against them” mentality. For example, an aid package to Colombia that included the spraying of coca fields (thus providing a windfall to U.S. helicopter companies) was both wholly ineffective in stopping cocaine production and had disastrous effects on the poorest segments of Colombian society. NAFTA is another of many instances of our self-interest driven policy causing misery in another country.

Further, it cannot be denied that our system is often reactionary, and seeks to maintain existing power structures. As Woodrow Wilson once said, “The circumstances of privilege and private advantage have interlaced their subtle threads throughout almost every part of the framework of our present laws.” The examples of both systematic tendencies could go on ad nauseum. Suffice to say that it is hard to believe the present system cannot be improved, unless one believes that we have already reached the pinnacle of the imperfect science of governance. If our fledgling lawyer does believe this, she should by all means devote herself to the effort of making sure that things remain the way they are.

"I'm not satisfied."

But if she wants things to change, it is not necessary or even advisable that she attempt pursue change from within the government or corporate world. Arnold posits that organizations will hang on for a long time after they are obsolete. If this is the case, as it seems to be, then a newly minted lawyer will encounter great resistance to her attempts to change the elemental workings of these institutions. Similarly, she need not be worried that her efforts to undermine faltering structures might result in their destruction before substitutes can be found. Again, if she accepts Arnold’s proposition, then her efforts will not have immediate effect. Therefore, it might be more effective for her to work for an organization which is somewhat separate from the power complex, and seek change by proposing alternative institutions or ways to change existing institutions. The drama element of the con has been provided by the circumstances. Potentially, all that is needed is the right idea and the right pitch. Given the reactionary impulses which accompany the fall of institutions, someone with new concepts to sell might well be a true monopolist.

  • This is all sort of interesting, Walker, but it's kind of like reading "imaginary world" science fiction. In your world, lawyers are narrowly specialized for a lifetime, the way doctors are on Earth. Just like an orthopedic surgeon is never going to become a neurologist, in your world people who do securities law are never going to become non-profits experts or anti-IP revolutionaries. So young lawyers make these big choices in your world, on the basis of complex strategic reasoning, and hope that they've correctly judged the uncertain future when they chose their specialty. Yours is the story of how lawyers in such a world might seek to effect change. (Thurman Arnold seems to exist on your world, too, but he is also strangely different and only in part recognizable.)

  • As I say, this is all very interesting. But we live in the so-called real world, where for example my best lawyer in my anti-IP revolutionary organization, and also my non-profits expert, spent her first six years out of Columbia as a securities lawyer in New York and London. And I trained by getting a JD and PhD? so I could do eighteenth-century Anglo-American legal history. And my senior counseling associate, who hates litigating and tries to avoid it, was a Cravath litigator. The idea that people make life choices at 24 that they are permanently bound by is not what the US American society of continuous personal reinvention would be expected to think, and it doesn't. Our legal profession, like our marital culture and our literary sensibility and everything else about us "Americans" assumes flexibility and movement. If you recast this weird static analysis of life-choices as a dynamic structure of iterated reconsiderations, you will begin to get somewhere.

This is obviously a legitimate criticism of the paper, and I will revise with this in mind, but I feel compelled to briefly respond. I don't believe that the story I tell is as disconnected from "the real world" as you suggest. I am discussing the initial choice that a law student has in choosing their first job - while the implication that this decision is permanently-binding may be derived from the writing if the reader chooses, it is nowhere explicitly suggested. Your illustrations of the dynamism of career paths in the present day are, I'm sure, true.

However, I still believe that a lawyer's initial choice of work will prove to be significant. Will a law student who starts as a 160K associate be comfortable taking a 60K job later down the road? Veblen would say no.

  • I'm as fond of Veblen as the next man, my dear fellow, but you shouldn't do that. In the first place, what Veblen says is that people find downshifting hard because they lose reputability. But when people reduce income to do some more honorable and reputable, whether it is becoming judges and giving up expensive partnerships, or taking jobs they love in which they serve noble causes and giving up high-salary rat-race associateships, they don't lose reputability among parties who count, particularly peers. In the second place, using a book written one hundred years ago to provide theory with which to look at facts is great, but using it to give you an answer so you can ignore facts is not. I say, "this happens." You say, "thanks, and I totally believe you but I think it must not really happen very much because Veblen says it won't."

  • Which is sort of my problem with the exercise overall. I say, "one of the problems we have is that people weigh overweight the difficulty of building agile careers, so they take jobs that make everything much harder because they believe otherwise it would be impossible instead of easy. If only they wouldn't take so much trouble over the first job while in law school." You show why firm careers don't lead to agility, but, when I say agility does exist and you could learn to have it, you just fall back on the heavy foot. Watch for it....

This does not refute your contentions; far from it. But I think that it does ascribe more importance to where a lawyer starts out, especially if that individual is interested in the nebulous thing I have called "change".

  • See?


Webs Webs

r7 - 08 Jan 2010 - 22:12:00 - IanSullivan
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