Selling out: In defense of corporate law

By Adam White

For law students eager to enter the world of big firm law, autumn of 2L year brings a refreshing change: For a few weeks, the most oft-uttered phrase on campus ceases to be, “Isn’t there a public policy justification?” Unfortunately, it is replaced by an only slightly less disconcerting phrase: “I’m selling out.”

This too-common description of students’ foray into firm life reflects the Law School’s disappointing failure to instill in students a powerful truth: that the contributions of “Big Firm” lawyers and of corporate legal education at institutions such as Harvard Law are invaluable to the effective leadership of tomorrow’s legal community.

The Law School has never hesitated to cast its mission in lofty terms. According to the 2002-03 Catalog, “[HLS’s] goal is to provide comprehensive training…. The School … seeks to make substantial contributions toward solving society’s complex problems.” But leadership is needed in a variety of arenas, and if the lessons of the past year have taught anything, it is that corporate regulation and deregulation merit a more searching, intellectually honest inquiry than they have received in the recent past. While many have called for more ethical leadership on corporate boards, fewer have publicly demanded knowledgeable leadership on the part of those anointed to govern and regulate these corporations.

Congress demonstrated the ramifications of financial illiteracy in the legal community at its WorldCom hearings last summer. In a moment indicative of an alarming trend, Rep. Carolyn Maloney (D-NY) asked a former Andersen partner, “How did you not see some red flags when the taxes [of WorldCom]… were so different from what they reported as their earnings?… Would that have helped you possibly uncover the fraud?” [Rep. Maloney, guardian of the Republic, should know that tax accounting and financial accounting are different by law — it’s like the difference between asking how many dependents you have and how many kids you have.]

The questions of Maloney and her peers (GOP and Democrat alike) would be funny were they not depressingly absurd. While such a leadership vacuum has many causes, the search for such causes cannot ignore altogether the derision of corporate law and the big firms that practice it as being qualitatively inferior to the “nobler” academic pursuits of our “future leaders.” Such an atmosphere can inappropriately dissuade America’s bright legal minds from pursuing careers in corporate legal America — perpetuating a leadership vacuum in a field that needs competency now more than ever.

HLS does take steps to promote corporate law — including the recommendation of the “bundled” courses. But for every promotion of corporate law, the Law School provides as many disparaging characterizations of life in corporate law, either explicitly or by implication.

Nowhere is this more obvious than at OPIA, whose mission to open the door to public law often piggybacks upon derision of law firm life. In an excerpt from a book sold and quoted triumphantly on the OPIA website, one author boasts, “I became convinced that neutrality was for the Swiss and determined that, when I grew up, I would not follow the sheep to a big law firm but would instead work to advance truth and justice….” The implication is clear — law firm life is qualitatively inferior to “service” life, and only lemmings pursue private law.

Similarly, the qualitative delineation between “firm work” and “pro bono” is equally harmful and inaccurate. To anoint the ACLU et al. as those working for the “public good,” to the exclusion of corporate law firms is to ignore the incomprehensible importance of the American economy and those who motor it. Lawyers who advocate on behalf of corporate America may be accused of “selling out,” but their contributions to the economic infrastructure have grown the economy, and their legal services protect American entrepreneurs from legislators whose forays into economic regulation would otherwise go unchecked. That’s a whole lot of bono, OPIA’s pronouncements notwithstanding.

Where students are not actively reminded of the importance of corporate legal expertise, extracurricular avenues for their study fail to materialize. Thus, HLS lacks student-edited journals or clinical programs devoted to technical corporate law. In a feedback loop, this is both a symptom and a source of the problem: Students cannot engage corporate law in a practical academic environment, which lends to the impression that corporate law is intellectually inferior to legal historicism, politicking and “legal aid” endeavors, which further dissuades students from pursuing the corporate environment.

HLS has produced leaders who take on corporate malfeasance, such as New York Attorney General Eliot Spitzer, HLS ’84 (who honed his skills in private practice). Just as importantly, the school has produced lawyers who defend America’s productive companies from the creeping tendencies of an increasingly burdensome regulatory Leviathan. But one must hope that the brilliant corporate minds of tomorrow will be produced by HLS, not in spite of it.

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