Bainbridge on Chemerinsky on the Situation of Practicing Corporate Law

718106_new_york.jpgSteve Bainbridge, commenting on Erwin Chemerinsky A law school for the 21st century, objects to Chemerinsky’s equation of public interest with public interest lawyering (usually, litigation-focused poverty law). Bainbridge argues:

The trouble with the foregoing, of course, is that it equates the public interest with so-called public interest law. You want to help make society a better place? You want to eliminate poverty? Become a corporate lawyer. Help businesses grow, so that they can create jobs and provide goods and services that make people’s lives better.

A corporate lawyer not only serves the public interest by helping to create new wealth, we also help defend an important social institution from statism. . . . It’s time corporate lawyers stopped letting people like Chemerinsky make us feel guilty about our career choices.

There is much here to agree with; in particular the idea that corporate (transactional) attorneys can serve society, and expand the pie, and push back against creeping statism. There’s some to disagree with too: I am probably more likely than Bainbridge to believe that concentrations of wealth pose problems for social stability, and thus more likely to think that distributional inequality is a problem the state has business solving. Thus, good corporate lawyering can easily result in social disharmony.

But no matter. The big idea to agree with here is that it is a terrible fact that law deans, and law professors, continually push out the message that corporate lawyering is a less moral & desirable career path than “public interest” lawyering. The reason isn’t that it makes students feel guilty (though it does) but that those students, when in practice, are probably less likely to be ethical because they’ve been told they’ve “sold out.”

I noticed this last semester in my corporations class. When asked whether they would draft ethically troublesome documents, most students professed to say that they would. Why? Because by going into big firm practice in the first instance, they’d have already decided to be ethically gray. When deans (and well-meaning liberal professors) reinforce the idea that corporate practice is “corrupting and essentially random and beyond your control, and there’s not a whole lot you can do about it”, students are more likely to let the situation corrupt them. If instead academics were to celebrate the pro-social, professional, aspects of corporate practice, perhaps we’d have less situationally-motivated fraud.

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13 Responses

  1. Gordon Gecko says:

    Greed is good.

  2. Expanding the pie? says:

    I wonder how Prof. Bainbridge feels about the cross-country growth regression studies that find that nations producing a higher proportion of lawyers grow more slowly than those producing more engineers.

    I wonder how much of corporate law actually makes the pie bigger, and how much it does various types of rent-seeking? Obviously, answers will vary, but just because corporate lawyers make lots of money doesn’t necessarily mean that they are creating new value.

  3. Corporate lawyers don’t create value but they can certainly help keep it. They do this when they help fight government regulation, devise clever ways to avoid regulation and can outsmart the IRS and keep more money at the corporate level vice Washington.

    Likewise, tax accountants/lawyers don’t create value per se but if they save you $1 in taxes, then anything you paid them up to $.99 is probably worth it and their efforts are to be applauded and are certainly in this-member-of-the-public’s good.

  4. John C says:

    One interesting note to the recent corporate law slowdown that has most corporate lawyers (at least in NYC) billing maybe half-time is that it has opened up a lot of time for lawyers I know to dive into pro bono work. This sheds light on an under-appreciated opportunity afforded by working at a big corporate firm – the resources poured into pro bono work are often substantial.

    Most big firms encourage their young lawyers to cut their teeth on pro bono matters – asylum petitions, 1983 cases, landlord tenant cases, guardianship petitions, etc. This is work that public defenders and legal aid programs probably would not be able to handle (and would certainly put fewer resources into).

    Now, this isn’t to suggest that most, or even a substantial portion, of what goes on at a big firm is pro bono centric. Of course not. But in my experience, big firm life is not incompatible with public service. You just need to work at it a little bit. And get your firm to count the hours the same.

  5. B.I.Tter says:

    I wanted corporate work, but had to settle for public law. At $31,000 a year. I have a quarter million in student loans, 70K at 14.5%.

    I always wanted to eat cat food. Poverty, here I come!

    Oh, and I’m a Temple Law grad. I’ve tried to speak with Temple about the matter, but since they already have their tuition, they don’t respond any longer.

    Thanks, Temple, for Real World Law.

  6. A.J. Sutter says:

    One problem with this analysis is that it’s too focused on justifying corporate law through self-serving neo-liberal propaganda words like “wealth”. And helping corporations resist statism is nonsense — do you do this by converting them into general partnerships? Where do you think the grant of limited liability comes from?

    As a politically, rather than economically, liberal corporate lawyer might I point out that one benefit of corporate practice is that you often get to help your clients do the right thing? As transactional lawyers, anyway, we get to advise our clients before they do the bad, anti-social stuff. When I’ve had clients propose actions that are technically legal but actually a**holic, I tell them so; some do take that to heart, and change their plans for the better.

    It is also often easier in transactional practice to fire a client who becomes too much of a jerk. My mentors did it, and I have done as well; this is a good fence against corruption. I expect it’s the rare law school dean who’s had that experience.

  7. reader says:

    At $15k per year in-state and 25k out-of-state, I doubt much of that $250,000 debt came from Temple. And what exactly have you tried to speak with Temple about?

  8. bg says:

    you all are full of shit.

  9. B.I.Tter says:

    Thanks for responding, but don’t be simple.

    Despite tuition, cost of living allowance for in-state students is marked at 32k per year (probably since adjusted). 32k at 3yrs. is 96k. Please note: that is principal alone.

    So as to make it simple for you, let’s run with that figure. I have 96k in debt, 70k of which sits at 14.5%. Is that a miserable enough situation for you? Or alternatively put: do you not think that investment should at least have produced a living wage? Or put again: run the numbers yourself, and determine how long it will be before I can buy my own home, or a reliable vehicle. Or again: sanitation workers with no education probably make more than 31k per year.

    And I am single. What if I had children? Or sick parents? Or any other party who reasonably relied on my investing the time and money into a school and degree believing – AND BEING LED TO BELIEVE – that it would lead to something better.

    My specific disappointments with Temple’s Career Services aside, the school itself is at fault for failing to inform their students of how few opportunities there will be for them to practice law upon graduation. Professors are constantly talking about firm-life, the jobs posted within the school are largely for the top 10% only, and the statistics Temple publishes of working graduates must include document review. In the instance you are a non-lawyer: most document review could be done by a focused high school student, and does not require any legal analysis. Even if you attempt an attenuated argument that it is legal work, it is like the plague: if you do too much of it, you are prevented from lateralling (sp?) into anything more substantial (because legal employers know it is not legal work, and therefore you have accumulated no legal experience).

    I could, too, just be a bad seed. But then, several of the students I yet remain in contact from Temple Law have no reasonable legal employment either (including those with LLMs). Which means they are either stuck in document review, or have gone into a different industry altogether.

    “Temple Law School is a cash cow,” end of story. Not my words, although they resonate; those from a well-known regional legal recruiter.

  10. dave hoffman says:

    BITter: You seem to be kind of hijacking the thread – but the issues you raise are good ones and I think I will eventually write an additional post about them.

    I’ll just say this briefly. You experiences in the job market aren’t unique to Temple. Check out, for example, this blog post by Bill Henderson that links to a few good recent newspaper articles:

    Second, my post in no way suggested that corporate law and big-firm corporate law were the same thing. You can be a transactional lawyer at a small, walk-up, solo-practice – and can serve the public good whether you make 30K a year or 130K. The point of the post was that being poor isn’t a badge of virtue, nor being rich selling out. You should be an ethical, professional, attorney wherever you end up.

    Third, I’ve attended multiple events for admitted students at Temple (and before that when I was a pre-law student). I never heard anything that would have led me to believe that the JD was an income guarantee. I’m really sorry you are struggling, but saying that Temple is a cash cow is plainly silly. In-state tuition is much cheaper than the school’s competitors, and the out-of-state tuition is competitive. We’ve got terrific connections in the Philadelphia/tri-state market, and increasingly nationally as well. That doesn’t mean we serve all of our graduates perfectly, but I can tell you from personal experience that we don’t see them as merely a way to float a paycheck.

    Finally, I’ve checked with our career services director, who tells me that she counsels graduates and alumni on a daily basis. Maybe they missed your call, but they will be expecting your email and promise me they will make every effort to be helpful. It’s a tough job market, but maybe they’ll have creative ideas. Good luck!

  11. reader says:

    Bitter – While I’m sure your situation is tough, blaming it entirely on Temple is a little too convenient. Yes, there may not be as many jobs as graduates, but Temple never said there was, nor is it their responsibility to do that. Do teachers blame where they graduated when they can’t find a teaching job? Do dentists? Or do lawyers just have a sense of career entitlement? There is such a thing as personal responsibility here.

  12. B.I.Tter says:

    Good morning,

    Because we all have other things to move onto, let me address only:

    Reader at 836am: regarding personal responsibility >> I have sent out over 700 applications in 11 months. This includes paralegal spots, contract analyst positions, and compliance openings (government and private sector). I am accepting the 31K gig because at this point it would be irresponsible for me to not to.

    David at 858pm: please excuse the off-topic rant, but I think Temple should hear this more, and receive more publicity for it. Further, I think your students should be made aware of their reality (and we both know, Temple does not accurately portray this to them). As for Career Services, I have repeatedly tried to reach out, and individuals from the office promise various small things (ie, passwords), and three weeks later when I have received no response and follow-up again, I yet receive no answer. This has been a pattern with two reps from the office, over the course of six months. I have washed my hands of the matter, and the office.

    I have sat two of your courses David, and while I believe you arrive in your classroom thinking you are training future attorneys, you cannot possibly be so naive to think that second tier is of no consequence. Or that truthfully, there are just too many attorneys in the market as it is, period. This knowledge – that you are training people for a job they will not be given – is what transforms the Temple Law degree into a cash cow.

    For what it was worth: rant over. Best for the weekend.

  13. Eric Rasmusen says:

    Good point about denigration making corporate lawyers less honest.

    I will further add that a traditional role of the corporate lawyer– in-house, at least— is to be the conscience of the company. He does not get to make the ultimate decision–he is not the Will of the company— but he often is almost expected to raise the awkward ethical concern, and can certainly do it at less cost to his career than the junior execs.