The purpose of this article is to introduce a new perspective around the discussion about career choices at HLS. Some argue that the school should become more civic-minded and encourage people to go into public service. Others argue that working for a Big Law firm is socially beneficial. Notably missing from this discussion is the idea that working for Big Law harms society.
There are at least two ways to approach this issue. First, we can talk about the behavior of individual law firms. We can create a list of terrible things that a firm has done or terrible things that clients of a firm have done. Then, we can criticize this specific firm for helping clients get away with their misdeeds, some of which are harmful on a fairly large scale. We can then ask law students to consider these misdeeds during their job search. That is not the purpose of this article.
This article is interested in the structural role of Big Law. It is not about this particular client being good or bad, but about the overall tendencies that Big Law supports. I think that Big Law is helping undo American democracy (to the extent that it exists). I don’t believe this is happening because lawyers working for Vault 100 law firms are bad people. Nor do I believe that it is because all their clients are necessarily malevolent. This is not about the intentions of any individual actor.
Currently, America is suffering from a tendency toward consolidation of power, and Big Law is part of the network of institutions that enable this tendency. Merely by working for a Big Law firm, one becomes complicit. I also believe that Harvard contributes to this trend, and that we are all complicit by attending this school, including myself. As such, I am well aware that I am in no position to judge people’s individual decisions.
But this paper is not about judging. This is about presenting my view – a view that I believe has not been represented in current discussion on this important topic. Whether you agree or disagree, I hope that at the very least you find it thought-provoking and useful. Regardless of what decision one ends up making, one should make their decisions responsibly. I think one makes more responsible decisions when one considers the consequences of their decisions. This article discusses the implications of Big Law for society with this background principle in mind.
Assumption #1: Oligarchy is bad for society
I believe most people would agree with this assumption. Nevertheless, I will add a few thoughts on this matter. Democracy, in whatever form conceived, requires that people have political agency. This means that they either directly influence important social decisions or do so through some sort of representative. Representative democracy is democratic only insofar as the people’s representatives are actually responsive to voter demands. To the extent that the representatives are indifferent or in opposition to their voters, we have nondemocratic decision-making. If the available parties will enforce identical decisions regardless of the vote, then we have no democracy whatsoever.
It is also possible that parties represent actually opposing views, but those views are primarily responsive to narrow interest groups. We can have opposing parties that represent a division within the ruling class. In such a situation, we have a serious question about the extent to which our system is democratic even if voting outcomes represent genuine political differences.
Oligarchy is when a narrow interest group or class decides upon most major social issues. This can be done directly or through the façade of representation. Notable examples of oligarchic decision making in America are the extent to which the financial sector controls political favor regardless of the party in power. Agribusiness also benefits from whichever regime happens to be wearing the boss cap (the Farm Bill can be seen as a massive subsidy to large agricultural corporations and it is usually renewed without much review).
But oligarchy is deeper than voting. Oligarchy entails the deployment of political resources in order to structure the underlying rules of society in a manner that perpetuates concentration and exclusiveness of political resources. The more oligarchic a society, the less opportunity for political access, which often (but not always) entails less economic opportunities. Oligarchy represents a curtailment of freedom and opportunity and ultimately leads to cronyism, nepotism, and finally to stagnation, for as cronyism becomes more entrenched in the upper echelons of society, merit becomes less of a relevant factor of success.[1] To the extent that merit becomes irrelevant when it comes to selecting leadership, society will become incompetently run. Incompetent leadership leads to deterioration.
Premise #1: Oligopolies lead to oligarchy
If one looks at the internal operations of large corporations, they are often highly autocratic. We have strict hierarchies coupled with an impressive degree of control over employees’ lives by managers. People can progress within a corporate structure through promotion, but there is often a strict ceiling for such internal progression depending on ones’ level of education and connections. To the extent that there is real capitalist opportunity,[2] it exist outside the large corporation and in opposition to it. The entrepreneur who transforms industries in a gale of creative destruction exists in a space external to the large corporation. Moreover, whatever euphoria arises from the Cambrian explosion of a new industry dissipates as the industry calcifies into a small number of dominant large corporations.
Even this fantasy of the entrepreneur speaks little to the reality of the general unfreedom in production. Firstly, most entrepreneurs do not transform industries, but merely open generic shops that reflect the industry norm – this is especially true where the new business is in industry that, by its current nature, seems to allow for a proliferation of many small businesses (e.g. restaurants).[3] Small businesses are often just as exploitative and autocratic as their larger cousins. This is also true for the glorified high tech start-up. In as far as there is any democratic value in small business, it does not come from its internal structure (although there probably is greater opportunity for significant promotions), but from its lack of power. It simply does not have the means to collude and influence industry and politics the way oligopolies can.
The more concentrated an industry, the greater its ability to protect its power. In concentrated industries, where each corporation marshals vast resources, colluding becomes easy and profitable. Through agency capture, industry can lower the regulatory bar while limiting the enforcement of regulations. Through donations to representatives, companies can encourage the crafting of favorable laws. And through economies of scale (and superior legal firepower), big corporations can bully out would-be competitors.
In light of the above, we see that a proliferation of oligopolies across multitude of industries represents a serious democratic deficit. Internally, there can be little question of democracy. Democratically run organizations are a fringe that is inapplicable to large corporations. At best, some corporations can claim to be less abusive (e.g. Google). Externally, the more industries are dominated, the more spheres under the purview of Congress fall into undue influence of oligopolies. The more spheres are dominated by industries, the less democratic the society. In such a situation, the jostling between parties reflects the jostling between industries.
As more industries become oligopolistic (which I believe is the tendency today), the more society is reshaped into the image of the oligopolies. Through control of the political legal making apparatus, oligopolies ultimately transform society into an oligarchy that protects and reinforces their political and economic power. As they becomes more powerful, they become capable of undermining the fail-safes set up against these tendencies (e.g. weakening antitrust laws and enforcement, strengthening intellectual property law, etc.).
Premise #2: Big Law supports and empowers oligopolies
Big Law contributes to the overall oligopolistic tendencies of our times. While many prestigious law firms represent questionable actors, it is not the purpose of this article to bash or judge particular lawyers and law firms for being indiscriminate about their cases. Instead, I am making a structural argument about the institutional role of Big Law – a role that plays out most often in banal cases which, on their face, appear morally neutral.
Off the top of my head, there are three ways in which Big Law encourages the tendency towards oligopolies and monopolies. First, through mergers and acquisitions, Big Law facilitates the wolfing up of corporations by larger corporations, creating behemoth conglomerates. Big Law then defends these conglomerates from antitrust suits, thus protecting the accumulated power from society’s countermeasures and ensures that this power becomes entrenched.
A third manner in which Big Law contributes to these tendencies is through white collar defense. White collar crimes are notoriously underenforced. As such, corporate leaders are able to act with relative impunity, allowing them to abuse and go outside the scope of their legal powers. This ultimately makes them wealthier and more powerful. Big Law is part of the institutional web that contributes to the underenforcement of such crimes, and is thus complicit in the ongoing power redistribution that white-collar crime is helping enable.
I imagine that we can think of other ways in which Big Law contributes to the trends outlined, and I could probably write a fairly lengthy article about it. Considerations of brevity prevent me from doing so. Nevertheless, hopefully, I have provided sufficient argument to provoke some thought about the structural role of Big Law. If we agree that oligarchy is bad, that a proliferation of oligopolies lead to oligarchy, and that Big Law lends itself to the aid of proliferation of oligopolies, then it would follow that Big Law has a negative role in society. If you accept my argument, I think it would be worthwhile to acknowledge and consider the moral dimension of deciding to work for a Big Law firm.
[1] To the extent that it is currently an important factor of success. My personal views are highly skeptical of “meritocracy,” but that is beyond the scope of this article.
[2] Personally, I question the extent to which this has ever existed.
[3] One can question how set this nature is.