Law in Contemporary Society

Big Law Needs You, You Don't Need It

My main takeaway from class has been that I will benefit from approaching my legal career with an independent and entrepreneurial spirit. Our readings from Adventures in Lawyerland, Swindling and Selling, Folklore of Capitalism, and The Theory of the Leisure Class all help to explain that there are alternative paradigms worth exploring, academically, professionally, and personally.

In light of all of our discussions, the suggestion I am about to describe might seem like rearranging the deck chairs on the Titanic, but I think that forming unions or some other collective bargaining entity might substantially improve the “Big Law” associate experience. The reality is that many of us will go on to work at law firms, and for now, at least, law firms need graduates of elite law schools to fuel their businesses. If we do choose this path, why should we go the way of the alienated law firm attorneys in Joseph’s stories?

I. We Could Have a Better Quality Of Life

“Large law firms combine the best features of an indentured servitude, a sweatshop in the garment district, and a pyramid scheme.” Attorneys could use unions to bargain for better working conditions, more reasonable hours, and to provide safeguards from discrimination in hiring, promotions, and firing. We have all heard the horror stories about the lack of transparency in firms regarding securing assignments, performance appraisal, billable hour requirements, and now layoffs.

It’s easy to criticize unions. Union membership has steadily declined for years. The UAW has been blamed for the downfall of the auto industry and union opponents blame inadequacies in public education on the teacher’s unions. However, these criticisms overlook shortcomings in business strategies and political and resource constraints.

Lawyers at top law firms are often bright people with a penchant for negotiations that would bode well for the creation of cooperative solutions with partners to create better working conditions. A common problem with negotiations is that people argue over positions rather than interests. Associates are often bright people who want to climb the ranks in firms or gain experience or credentials to take elsewhere. There is much to be gained from associates using their intellectual ability to focus on what can be mutually gained from collective bargaining. There is a shared interest in efficiency, and the possibility of expanding the pie of opportunity for the law firm while satisfying both parties’ needs.

II. The Legal Climate for Unionizing Is Favorable

The legal climate is ripe for unionizing law firms. Statutory arguments against allowing associates to unionize focus on exemptions to the NLRA have been narrowed. The exemptions include: the supervisor exemption, the managerial exemption, the confidential employee exemption, and the professional exemption. There have been recent NLRB decisions that interpret these exceptions to more narrowly define which supervisory or managerial decisions put an employee into the ranks of the leadership in a company and exclude them from collective bargaining.

The pending Employee Free Choice Act also presents an opportunity for unionization of law firm associates. This law would make it easier for employees to unionize their workplaces by changing the way a union is certified in a workplace. Instead of allowing the employer to demand an election, the EFCA gives employees the right to decide to have an election based on the results of their preliminary decision to have the union. This legislation would also call for mandatory injunctions for unfair labor practices. Opponents to this legislation oppose its open ballots as a measure that would allow union organizer coercion of employees. Proponents say that this legislation rectifies the huge advantage given to anti-union parties under the current law and protect workers rights to unionize. Political developments are also promising for unionizing attorneys. The new Secretary of Labor, Hilda Solis, is decidedly more pro labor than the previous secretary. Hopefully this development would make organizing more favorable.

III. Only If We Can Overcome the Stifling Cultural Influences of the Legal Profession

Law school and law firm culture can be competitive and full of pressure to conform. The moment we set foot into schools we are pitted against one another with the grading system and OCI/EIP. Undying belief in economic dogma is nurtured from all angles, classrooms to career services. The result of all of this is to promote pervasive fear and to sap young lawyers of intellectual independence.

IV. Unions or Not, We Have the Power to Change Things When We Work Together

In class and on the wiki we have discussed the problems that plague legal education and the profession, especially law firms. The next step is to recognize that we can make things better by working together. Unionizing law firms is admittedly a formidable task. Perhaps it would be better to start with an extralegal collective solution. Building a Better Legal Profession is a non-profit student run group started at Stanford Law School that seeks to do exactly what its name describes. We now have a chapter here at Columbia and we hope to use it as a means to encourage law firms to be transparent about billable hour requirements, deferrals, layoffs, and diversity.

Law firms need us (though outsourcing is growing in popularity). Elite law firms maintain their prestige and justify their fees by hiring students from elite law schools. Large numbers of associates allow partners to bring in large profits. We have market power and should find a way to use it. As students, we can chose, as a group, to only go to firms that show a commitment to issues we prioritize. If we do chose to sell our labor to large law firms when we graduate, we should at least strive for the chance to dictate to some extent, the conditions under which that time is sold.

Legislative Update

The Democrats have dropped the "card check" provision from the bill formerly known as the Employee Free Choice Act. The card check provision was a central provision that would have made it easier for employees to organize their workplaces.

NY Times

-- JamilaMcCoy - 14 May 2009

  • Jamila, this is a well-made and well-argued essay. It comes from the heart and it has both passion and sensitivity. But I must say, much as I admire the craftsmanship that went into it, that it doesn't make the slightest sense to me.

  • You start by announcing that you've learned how to approach your career "with an independent and entrepreneurial spirit." The remainder of the essay is about unionizing law firms.

  • I believe in union with all my heart. But everyone on all sides will agree, I think, that "independent and entrepreneurial spirit" is not where unionization comes from. You don't even acknowledge the existence of an irony.

  • Unionization is necessary because capital unifies itself, creating social conditions under which people must labor to survive as wage-earners completely beholden to "owners" of enterprises for which so much capital is necessary that independent operation is impossible. This has no relevance to the conditions of most lawyers, because most lawyers remain within the medieval guild structure, now reinforced rather than attacked by capitalism: the lawyer's license is her capital, and independent operation is the assumption of the trade.

  • Not for you. Despite having tried to incorporate an independent and entrepreneurial spirit, which is indeed precisely the spirit that from a political-economy point of view it is sensible for a lawyer to have, you still see yourself inevitably as a waged employee of an entity that takes your capital, which is the power to choose clients and direct your practice, and in return pays you a wage to direct your skilled labor according to their orders. On that basis—and evidently not believing in the organization's claim that you are investing your license and labor in the fair chance of an eventual partnership, allowing you to practice entrepreneurially (to the extent that the firm's partners do actually have that autonomy), and make yourself rich on the leverage from the labor of the waged employees below—you think you should organize with other employees in your bargaining unit to negotiate collectively over wages, hours and working conditions.

  • In other words, you're asking to proletarianize yourself.

  • What causes this absurd result isn't your logic, it's your premise. The leveraged firm is not the right way to begin your practice. This isn't about black or white, Republican or Democrat. It never worked for associates, but they hung in there, trying to be partners, no matter how inhumane their conditions. Now it doesn't work for partners either, and many firms are going to die. The ones that survive will have become something very different from what they are now, and if there are any jobs in such places for people just out of US law school, you won't particularly want them. If you want a job as a salaried and unionized lawyer, which is not having an independent spirit, you can find such jobs in government service, and you can live a balanced, sane and useful life in them, without any doubt. Unionizing Cravath is not the right choice for such a lawyer; the Justice Department, or the Commonwealth of Massachusetts or New York City is a much more appropriate fit. The political economy, not too surprisingly, is consistent. Unions also rightly belong in the socialized sector, and for a lawyer—who has indeed contributed the capital in her license to state purposes—collective governance of the work process is the just outcome.

  • The collapse of the leveraged law firms now going on has several roots, including some that relate to short-term economic phenomena. But the most important causes have to do with the way enterprises use technology to manage their purchase of legal services. These changes are not obvious outside the industry, but their effect is as sweeping as the change from fee-for-service to managed-care medical practice in the US over the last generation. The "death of the billable hour" is a very partial shorthand for what's happening. Its gist, as Columbia students are finding, is that the particular segments of the legal ecology to which Columbia has been sending most of its graduates for the last two generations are contracting sharply, changing rapidly, and failing as reliable sources of high-salary commodity-hour employment for our graduates.

  • Unionizing a failing industry will certainly make some sense to you, as a person who grew up in Detroit. But it's not a history you should be condemned to repeat. Your future lies outside the world of the leveraged law firm. So does pretty much everyone else's. There's nothing bad about that, and I'm surprised you're having such a hard time accepting it. Do you know why it's something you don't want to let go of?


Webs Webs

r5 - 08 Jan 2010 - 22:48:48 - IanSullivan
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