Law in Contemporary Society
One reason Eben gave for not working at a firm was that firms do morally undesirable work, and that in working for a firm, one's work would actively be contributing to that overall morally undesirable work product. For example, if one was a big-firm lawyer over the past five years or so, one most likely actively contributed to the financial crisis by providing the legal work for allowing grossly unchecked mortgage-backed securities to be created and flipped for fast profit.

My question: Is it true in every job, you are always morally complicit in the work of the company? Note than an answer of yes would mean that when you work for an organization that actively does good, you are also actively doing good. Is there ever any way to dissociate oneself morally from the work of the company in which one participates?

More interestingly, is there any line of work that could be considered morally neutral? (For example, serving as a public defender, in which one is merely performing a necessary societal role, such that when one works to actively get a murderer off the hook, it is not viewed as morally wrong in any way.)

-- ChristopherCrismanCox - 03 Feb 2010

Perhaps I didn't make myself clear. Perhaps you misunderstood. Moral complicity is the smaller part of your worries, because you have already learned how to dissociate from immoral behavior undertaken for personal advantage, or you wouldn't be taking the position you're now taking. Your larger difficulty is being morally dissociative and without autonomy.

  • You say here that the larger difficulty is being morally dissociative and without autonomy. What if one does not morally dissociate? Then wouldn't moral complicity become a problem?

Not for me, because as Ron observes below—and despite much outraged resistance based on the contrary assumption—I'm not purporting to tell, or even advise, you on what's moral for you. I do sometimes talk about what seems morally important to me, because—as I said on the first day—I am the lawyer whose experience it is easiest to summon to the aid of your inexperience. But my concern is for your autonomy, not your morality: if you are not dissociating, I don't care what you're complicit in, because that will be your problem.

Or are you taking the more hardline position that if one has to ask the question, then clearly one has not learned how to avoid moral dissociation yet? (Since if one had learned to avoid dissociation, one would not even be contemplating doing something that would require dissociation.)

I don't know what makes that "more hardline," but that's my position.

-- ChristopherCrismanCox - 05 Feb 2010

Added a comment box. Hope you don't mind bud.

My first response is that you're not always morally complicit in the work of an organization of which you are a part, because there's always the option of acting contrary to the organization while you're in it. "Taking the man down from the inside," if you will. I know that's not really what you're asking, Chris, but it leads me to a tangential question of my own.

Taking your law firm down from inside? Perhaps you really don't know that's arrant nonsense. You think your obligations to your clients are optional? You think your law firm doesn't know how to destroy you completely if you decide, without any basis in the actual law of lawyering, that your obligations to your client are subject to your personal moral sentiments once you engage? Please stop posturing and get real.

  • I would agree that a firm cannot be "taken down from the inside" because of the client obligations you've mentioned. But I interpreted Chris to be asking whether you are morally complicit in the work of a company or other organization in ANY situtation. Certainly there are organizations in which you can appear to be a member but in truth act contrary to the purpose of the organization. If this were so, I think that you would then be operating in a different "moral direction" (that's kind of a stupid term, but I hope that conveys what I mean) than the organization.

-Andrew Cascini

If we accept the notion that joining a firm is pawning one's license, might there ever be a time when you'd actually WANT to do so, for the supplementary benefits that would come along with it? Say you wanted to work in an industry and you wanted to provide justice and social benefit within that industry. Might it be beneficial in working for a firm that does a lot of work in that industry as a sandbox before bursting into the world after a few years to create moral good?

Of course there are such times. So?

-- AndrewCascini - 04 Feb 2010

On the morally neutral question:

I don't think that every potential employer can be classified as morally good or morally bad, as if there is some sort of justice scale on which their "good" (recycling program) and "bad" (criminal defense) parts can be weighed, which leads me to believe that the great majority are nothing but morally neutral.

-- AerinMiller - 04 Feb 2010

It sounds to me that you are assuming there are three mutually exclusive regions which are labeled morally good, morally neutral, and morally wrong. If that’s true, then how do you draw the lines to distinguish such regions and who should be the judge? I feel like morality is a sliding scale; one end is really good, one end is really bad, and most of the activities that people do in the society concentrate somewhere in the middle. Before we question the morality of the law firm associates who contributed to the current financial crisis, I think it is important to note that we are judging them based on the outcome which has occurred. While a person is performing an act, such as an associate working in a law firm, his priority is to further his client’s best interest without violating the law. Is it immoral for the banks and law firms to be resourceful and to pursue their best interests for financial wealth? We call it immoral now because millions of people were scammed and lost them home, but five years ago, these “scams” were perfectly legal and it probably never even crossed the minds of most associates at those law firms that they are contributing to the financial crisis today. I feel that even after we start working at law firms, it is difficult to see whether our actions are immoral or not without a high probability of knowing the consequence of our actions. So, my question is that before asking whether we are morally complicit with our work, how are we even supposed to know whether our works are immoral or not?

-- RyanSong - 04 Feb 2010

"...five years ago, these “scams” were perfectly legal and it probably never even crossed the minds of most associates at those law firms that they are contributing to the financial crisis are we even supposed to know whether our works are immoral or not?" I think it would be fairly clear, if not immediately, then certainly after you worked in your industry for a few months. I've had several jobs over nine years, and it's definitely easy to learn the skeletons in the closets of the places you work. I remember a friend who works at Morgan Stanley telling me in early 2004 that these mortgage-backed securities were going to be a disaster for the economy and that a lot of people had been flat-out tricked into buying houses with mortgages they could never repay.

-- AmandaBell - 04 Feb 2010

Re: Andrew/Prof M's discussion about temporarily pawning one's license...I just want to say that this was always my plan (in so far as I had one, which isn't saying much). I always figured that I'd work for a few years at a firm and make some money...but more than that, I'd learn how such a firm operates in order to work most effectively against it in the end. This might seem totally convoluted (I think it does now). But I truly had decided that in order to be a successful lawyer, I would have to know how the law firms worked, because either I'd be working with them in a transaction or against them in some capacity. That, and the idea that having worked at a big firm would give me a certain amount of clout in whatever I chose to do next. I looked to lawyers who had "done their time" at a big firm and were out doing what they truly wanted and imagined that I could easily be like them. I guess this view relates to Andrews' taking the firms down from the inside. I'm thinking my money-making, ultimately happiness-bringing fantasy is totally unreasonable now.

-- JessicaCohen - 05 Feb 2010

Re Moral Complicity:

Having worked for a short while, I think in many work environments you see situations that make you wonder, a little bit, about the 'rightness' of what's going on. Then again, it takes a certain measure of confidence and perspective to be able to fully judge these situations and ascribe a moral value to them, save for the most egregious acts (I think Amanda's anecdote from Morgan Stanley may qualify).

In my opinion it's difficult to be morally right in a Kantian, motive-based sense in these situations, since it often requires knowing more, or asking the right questions. People often do the best they can under the circumstances, and try not to 'rock the boat' too much. After all, there's an entrenched culture in the organization that works.

I don't think most people intend to be morally complicit, and rather they fall into that state through a process of complicity. I guess that's one of the points Professor Moglen is trying to make clear to us. There's a tension between often our vague goals and dreams, and what seems to work for other people. To abandon the well-trodden path I know would put me on another that is potentially filled with even more anxiety. That is, until I figure out exactly what I desire to make of my life.

-- JeffKao - 05 Feb 2010

I'll bite, and put forward the proposition that the morality of pawning one's license or working for a firm is somewhat besides the point. If law is transcendental nonsense, morality is no different. Both are post-facto ways to rationalize reality.

To paraphrase Sartre, people use morality to justify their choices, but clothing one's choices in morality doesn't remove personal responsibility. Whether or not working for a firm confers 100% of bad karma, or 80%, or just 20% if you leave within three years, isn't really resolvable. Ultimately, what matters is that you are able to live with the choices you make.

As I understand it, Eben's point is not so much that one should avoid a firm because of the danger of moral corruption, but because it's a lazy and wasteful choice that squanders your potential and freedom. It doesn't serve your own interests. There are things that we'd all like to do and achieve before we die, and sitting in an office for decades as a well-paid servant isn't high on most lists. While many people, myself included, find the proposition of doing unsavory things for money unpalatable, I don't think the major issue that's motivating Eben is how to help us keep our souls clean. It's the tendency for the majority of promising lawyers to grow complacent in a job that restricts individual agency and sharply curtails potential, thereby eliminating the very people who could create change and institute meaningful reforms on a multitude of issues.

For the record, I could be very wrong regarding Eben's motives. As the class progresses, I'm finding that I'm fairly bad at figuring out what he's thinking.

-- RonMazor - 06 Feb 2010

I don't know about the other instances, but on this point you have understood me correctly, and I appreciate the simplicity and forcefulness of your restatement.

Ron: law and morality are not the same thing, though they may at times serve the same function, i.e. constraint. Nor are they both necessarily post-facto ways to rationalize reality. Hobbes, for example, didn't describe nature/reality as he saw it, whatever he may have said to the contrary; his concept of the sovereign and its law marked a departure with the past. (The same applies equally to, say, Bodin.) Legal reasoning -- let's stick with the example of a judicial decision -- may be such a post-facto rationalization, but legal reasoning, though it may inhere in the law, does not the law suffice.

Anyway, it does not follow that because law is transcendental nonsense, morality must be, too. And though I question the value of bringing Sartre into the conversation -- surely we can find more compelling moral thinkers? -- what Sartre suggests about morality that may actually have some value for us is not that people use morality to justify their choices, but that morality resides in the individual, and its necessary precondition is freedom. So I think that you are correct to gesture towards agency, but you are wrong to dismiss the moral dimension, because just as morality requires freedom -- at least if we're sticking with Sartre -- freedom relies in some way on the morality of others.

Of course here on the one hand we are speaking quite vaguely about concepts whose meanings we have not yet really defined -- I suppose in some ways we're still in Sunday School -- and so you may wish to disagree by (re)articulating your notion of morality. Or, on the other hand, you might hit back by gesturing towards, say, the master/slave dialectic. But I assume that if we have reached Sartre then we have passed Hegel. And I think that a more useful understanding of the relationship between freedom and morality coheres in the idea that in living a free life as a citizen of this or any republic -- in practicing freedom -- one inculcates in oneself an ethic, a certain morality, that is both practical and philosophical in nature. It consists in the Socratic injunction to take care of oneself, and thereby to take care of one's countrymen; in the Golden Rule; in the categorical imperative; and so on. It is basically the idea that in living a free life, one should not impinge upon the freedom of others. This is not a transcendental idea, nor is it nonsense. And it seems that it is moral.

I don't know that Eben would ultimately couch his point in terms of morality, or at least that he would reply on an explicitly moral argument at the expense of not convincing us to try a more creative route than that provided by the big firms. But Eben does believe deeply in the value of freedom, and I'm assuming that underlying his belief is a strong moral sentiment. That said, aside from the tendency of large law firms to "restrict individual agency and sharply curtail potential," there remains the fact that, in many cases, there are moral consequences -- if we retain our articulation of morality -- in the practice of big law with ramifications beyond one's own freedom. Mergers and acquisitions, deregulated markets, securities transactions -- all these have consequences. Things, including lawyers, are what they do, and too often what lawyers do leaves others unfairly dispossessed and disempowered, though such results may not immediately present themselves in the well-maintained interiors of those law firms whose photographs you posted the other day. And the attempt to label morality as transcendental nonsense seems just another convenient way to allow the souls of too many lawyers -- and probably too many of us -- to rest content.

-- GloverWright - 06 Feb 2010

Which is why, in my view, if you retain your right to choose your clients, rather than delegating that crucial choice to someone else or to the economic interests of a partnership in which you are too smal a proportion to be autonomous, you have a chance to deal with the issues presented by the consequences of your professional actions in a systematic, long-term, strategic way. And why, if you have learned how to be creative rather than merely responsive in your legal thinking, you can use that freedom to build strategies that are comprehensive, benefiting not only the clients to whom you are responsible; and you in your material, professional and moral personalities, but your community and society as well.

Glover, I'll clarify my points. I did not mean to imply that there is a causal relationship between the nature of law and the nature of morality. What I was trying to express is that if you buy into the argument that law, and all of its underlying principles, doctrines, definitions, structures, etc. is simply window dressing for the realities of human behavior and the imposition of power (see AnatoleFrance for a growing discussion on law as power), morality lends itself to a similar critique.

I am mildly disappointed that you think Sartre is less compelling than the categorical imperative of Kant. I suppose we'll have to agree to disagree.

Still, while you may not especially care for the moral relativism of Sartre, I think existentialism is useful for approaching things from a realist perspective. And I think it has particular relevance to this discussion. That morality resides in the individual is, to me, a recognition that people invent their own moral compasses. By that token, the only form of reckoning that is certain in life is that a person must live with the consequences of their choices.

As law students at Columbia, we have the necessary free agency to choose our career path. There are reasons in favor of taking firm jobs, and reasons against. Morality may play a part in our choice, depending on what we choose to believe. My point was simply that there was no need to get bogged down in hashing out the particular morality of working for a firm, because where one draws the line will vary. What won't change, to borrow from Sartre, is the anguish of choice. Whatever decision is made will come with a certain set of results, and if one chooses poorly, the consequences of the choice nevertheless remain. This isn't a recipe for letting lawyers' souls rest easy--nothing in life has greater permanence than our choices and their effects.

-- RonMazor - 07 Feb 2010

Ron, I'm still not so sure that morality lends itself to a similar critique, because I think that whatever it is, and regardless of whatever laws it may sometimes function in parallel with, we risk losing something important -- perhaps diluting what unique power it may have? -- in relying too much on our critique of the law.

Re Sartre vs. Kant, yes, agree to disagree. But I find Kant compelling to some extent because -- and here there's some similarity with legal reasoning -- he goes to great lengths to rationalize decisions that are more or less intuitive. He's putting his finger on something that seems at least to be moving in the right direction, whereas Sartre, I think, is losing something important in relying on bad faith at the expense of a true objective morality. There are, for example, as Adorno says, certain metaphysical injunctions -- thou shalt not cause pain, for one -- for which there would seem to be no room in a truly existentialist morality and from the loss of which follow terrible consequences.

So, yes, we must live with the consequences of our decisions, but there remain decisions that I think we can agree should not be made. And from that agreement I think follows the idea that moral compasses are not solely individual inventions, but something more -- which is not to say that they cannot be disregarded, or at least that one cannot avoid the consequences of acting contrary to one's moral compass. I'm reminded of Martin Landau in Crimes and Misdemeanors:

"And after the awful deed is done, he finds that he's plagued by deep-rooted guilt. Little sparks of his religious background which he'd rejected are suddenly stirred up. He hears his father's voice. He imagines that God is watching his every move. Suddenly, it's not an empty universe at all, but a just and moral one, and he's violated it. Now, he's panic-stricken. He's on the verge of a mental collapse -- an inch away from confessing the whole thing to the police. And then one morning, he awakens. The sun is shining, his family is around him and mysteriously, the crisis has lifted. He takes his family on a vacation to Europe and as the months pass, he finds he's not punished. In fact, he prospers. The killing gets attributed to another person -- a drifter who has a number of other murders to his credit, so I mean, what the hell? One more doesn't even matter. Now he's scott-free. His life is completely back to normal. Back to his protected world of wealth and privilege."

So I think you are right that the reckoning we face is the consequences of our choices, and we may personally avoid the moral consequences even of those choices -- at least practically speaking -- that bad faith might lead us to eschew. But I do not think that, even conceptually speaking, we should make it any easier than it already is to avoid those moral consequences, and so I endorse morality's playing a great role in our professional choices as lawyers. Of course I realize that it must not necessarily play any role; but such, I suppose, is my own persuasive project here.

-- GloverWright - 09 Feb 2010



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r17 - 17 Apr 2010 - 18:07:39 - NonaFarahnik
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