Should Libertarians Go to Law School? (Part I)

Dear young libertarians (and libertarian-ish conservatives, moderates, etc.) who are considering law school –

I write in response to the question that you all have asked me a dozen times. Oh yes, you – you bright-eyed, bushy-tailed things who swarm around me at AFF and Reason and IHS happy hours when I said that I graduated from law school last May and work in libertarian/conservatie public interest law. Yes, you who have immediately said, “Oh, I’m wondering if I should go to law school. Do you have any advice for me?”

You may have noticed that I looked at you, then away from you, then deep into my glass of wine, before deigning to respond. You may remember also that I may have said,“Um, what word count are you looking for in my answer? Because I’m not sure it’s consistent with social norms to give you a three thousand word answer? And really, it would be more fun if I talked about going running this weekend, or the last novel I read, or that great new restaurant in U Street?” And that ultimately, I ducked with a very lawyerly "It depends."

So, here it is: an attempt at a long open letter about law school for libertarians (and libertarian-ish conservatives, moderates, etc.)*

1)But isn’t the field already pre-empted? Lots of people have already written angry screeds directed at pre-laws. What can you possibly have to add?

First, it’s true that there are already plenty of anti-law-school screeds out there directed at naïve pre-laws. See, e.g. this Law School Advice Wiki for a decent round-up. But let me note a couple of things. One, I’m not universally opposed to anyone, anywhere, attending law school, as several of the authors listed on the Wiki are. That is, I think most of the screed authors have the cost-benefit analysis right, but I’m more willing to concede that benefits outweigh costs in certain individual cases.

Two, law school graduates who sound too discouraging about law school leave themselves vulnerable to accusations of bad faith and rent-seeking. That is, surely I must be discouraging you, O bright eyed and bushy-tailed ones, from applying to law school only because I’m afraid of the competition you pose. Or so my mother responded when a former housemate of mine, then a frustrated associate at a large D.C. firm, tried to talk me out of going to law school, c. 2004. This is a little silly – by the time any current pre-laws graduate, I'll have about five years of practice experience. It would be unusual for a legal employer to consider both newbies and mid-level associate types for the same position. Still, I recognize the intuitive appeal of an unclean hands argument, and so I will try to write with an eye toward it.

Third, much of the advice out there is targeted at naïve souls who apply to law school because they – rather like Alec Baldwin in the movie Team America – hate corporations because they are “all corporation-ey.” These people are then shocked to discover that many lawyers, especially from the most elite law schools, work at large law firms that mostly service said odious corporation-ey corporations. Libertarians interested in law school rarely suffer from this particular delusion.

But they often have their own particular misperceptions about large law firms. First, there’s an unfortunate Social Darwinist streak running through many college libertarian and Republican groups. Many college-age libertarian types thus find themselves taking the affirmative position in debates with their lefty brethren about whether markets deliver “social justice.” So plenty of twenty-something libertarians come to imagine that a high salary is a signal of high personal value in some deeply cosmic sense. And, during their summer internships, these same people solemnly inform me at AFF happy hours that any unhappy Biglaw associates must only feel that way because they aren’t “winners,” or don’t “think like winners,” or some damn thing like that. After all, how could they be unhappy? That might mean the market failed to deliver social justice, right? These kids are often shocked to hear that I have no idea if markets are good at delivering social justice, and, like Friedrich Hayek before me, I’m perfectly fine with that.

The take home point: working at a large law firm (or any job, for that matter) involves making a particular set of trade-offs for a particular set of benefits. In the case of large law firms, the benefits are mostly sky-high salaries, the pleasure of prestige, and attractive exit opportunities. The trade-offs include (almost universally) long hours and the stress that comes with working such hours. Many large firm associates also complain about being forced to work for difficult partners and on incredibly boring assignments, though mileage can vary considerably on those two points. Different people may weigh these benefits differently relative to these trade-offs, according to their own subjective values. This is entirely okay and has nothing to do with whether or not you are capable of “thinking like a winner.” I have no idea what the optimal trade-off to benefit set-up is for you, O bushy-tailed young libertarian. Hell, it's been hard enough figuring out what I value.

Just, whatever you do, don’t approach your career search as some kind of Darwinian competition, in which the market looks into your heart and soul to determine if you’re worthy or wanting. A labor market can tell you how much someone else is willing to pay for you to perform a particular type of task. It can’t tell you your worth in some more cosmic sense. It can't tell you how kind or witty or intelligent or how good a friend you are. Free markets are not supposed to tell you these things. Rather, we value free markets because a government planned bureaucracy that tried to reward people for being smart or witty or kind, rather than productive, would create a disease worse than the cure. There is part of me that wants to depart from first principles and make young libertarians who try to argue this point attend some kind of forced re-education camp where they have to read Chapter Six of Hayek's Constitution of Liberty over and over again until they grasp this crucial point.

Second, let us all take a deep breath and repeat after Milton Friedman: being pro-market is not the same thing as being pro-business. Libertarians who represent business clients often find themselves crashing up against this distinction. Thus a friend of mine from my summer clerkship found himself at a large law firm interview with a partner laughing about how his private clients benefited from Kelo-style takings. Your clients may have more in common with James Taggart than with Dagny. Though these sorts of situations are probably less common for libertarians than anti-corporate left-liberals, think through these issues before you settle on law school.

I should note that I'm writing about the big law firm world as it's been up until recently. There's some interesting commentary out there claiming that the standard big law firm business model was never stable and, post-financial crisis, is certain to change dramatically. I direct you to Bill Henderson's SSRN page and his blog.and also to some of corporate law scholar Larry Ribstein's writing on over-regulation and over-leveraging of law firms. Their work is interesting, but I'm ill-equipped to comment on what it portends for the future. For that matter, so is everyone else.

*I'm defining "libertarian" loosely for the purposes of this letter. That is, some of my advice might be useful to moderate conservatives and other fusionist types. But I'm not a social conservative, have never really been one, and don't have much insight into how social conservative activist groups really work. Intended audience, you probably know who you are.