Welcome to the Dark Side.

It's always sort of heartwarming when Matt Yglesias, left-leaning though he is, says something that shows that he understands economics and markets. See also his occupational licensing posts.

The $80,000 question

I was going to write a response to Elisabeth Wurtzel's WSJ column lamenting young lawyers' refusal to take $80,000 deferrals from fancy law firms. But then I saw Larry Ribstein's commentary on same, which is both a)more diplomatic than mine would be and b)still squarely hits many nails on their heads. So you should go read it instead.

Jonathan Chait on Ayn Rand

Will Wilkinson has a characteristically excellent post up schooling Jonathan Chait on Ayn Rand. It should be required reading not only for puffed-up computer engineers threatening to go Galt over small tax increases, but for right of center 20 year old interns at AFF happy hours who think that people who dislike law firm jobs must be inherently incapable of "thinking like winners."

Not a glorious profession, because it is not a glorious class

Forgive the possible violation of anticipatory nepotism, but the Volokh Conspiracy's Kenneth Anderson has interesting post in which he links to a long essay titled "A New Class of Lawyers: The Therapeutic as Rights Talk." There's much in there that relates back to my project of trying to answer definitively whether libertarians should go to law school.

1)Anderson's observations about how the problem with law is not the deficit of professionalism, but rather an excess in professionalism that overwhelms all else, ring true to my experiences. Anderson's description of the "good" large law firm lawyer as a therapeutic authoritarian also sounds much like the ideal to which my law school classmates and I were taught to aspire.

I chuckled particularly when I read his description of "good" large firm lawyers at p. 1076 as the advance guards of the EEOC; when I tried to convince law firms that I was interested in employment discrimination during OCI, several firms asked me how I as a woman felt about defending employers in harassment cases. I sensed an honest answer -- "I'm president of my law school's Fed Soc, idiot; please see line 3 of my resume" --- would have been impolitic. So I mouthed bromides I didn't really believe about the important work that corporate firms do to bring about "compliance" with laws I'm not convinced are just.

What's relevant to other libertarians here is that I imagine many of them will respond the way I did to this sort of rhetoric. Most of us are ornery Randian individualists deep down. We don't particularly like guilds, and sweeping conceptions of the demands of professional life kind of creep us out.

2)Not related to my larger blogging project, but I'm struck by how much closer my understanding of social deviance (p. 1082-3) is to Herbert Morris's than to most normal right-wingers. I still think there are huge Hayekian knowledge problems with trying to cure deviance via state-imposed solutions, many more than nearly anyone on the left acknowledges. After all, even if one accepts the state as therapist analogy, a good therapist first does no harm. But I recognize that this moral intuition puts me at oods with most other conservatives and libertarians. I'll have to think more about that.

On Bill Henderson's thoughts on the life of law schools

Via Jonathan Adler at the VC, I came across this interesting post on how legal education is out of touch with current practicioners' needs. It might serve as a valuable addendum to my series of advice posts on whether libertarians should go to law school.

Like most of what Henderson writes, it's well worth reading. Still, I am not sure I agree entirely. Though I admit that the Archer/Pnin household has a vested interest in the structure of legal academia not changing much. With respect to his first point about the nature and cost of civil litigation, it's really quite... easy... to name people who work on these issues. All the tort reform types; David Bernstein and other people who have written on Daubert; and, really, wide swaths of the law and economics movement appear to be using economic tools to explain why the civil litigation system may be inefficient or excessively expensive.

I suppose "reduce costs" and "improve access" are also in tension; the people that I listed above are mostly right of center types concerned with minimizing costs, whereas there are plenty of left-leaning academics who write extensively about ways of improving access. I'm less familiar with work by the latter, admittedly because of my own biases.

Granted, I am probably far less well read than Henderson on these issues. Still.

Regarding Henderson's rules, I am also skeptical. I am not really a Burkean conservative... except, well, when I am a Burkean conservative, and I fear that I am one when it comes to university education generally and legal education specifically. Most "bold" or "outside the box" thinking attempts that I encountered in my own legal education cratered spectacularly. See, e.g., the Legal Methods course I had to take in first year, which, despite a fantastic professor, was an unfortunate melange of sixth grade Study Skills ("This is how to brief a case, and also, how to use different colored highlighters effectively!") with watered down versions of Jurisprudence and Administrative Law thrown in for good measure. I liked the latter enough that I had the good sense to sign up for real Admin Law with the same prof, from which I actually learned something useful, so I suppose all was not lost. Ditto whatever the professionalism series thing we had to do in first year was called, which involved sitting around awkwardly in small groups, led by faculty we didn't know, discussing our relative willingness to narc on our law school classmates. I am somewhat kinder to my law school's Trial Advocacy course, which was at least sort of fun. But I have at least some interest in litigation, and I imagine I would view the program far less warmly if I'd always thought I wanted to do transactional work. So, given that track record of innovation, I would politely discourage my law school from further attempts to think outside the box.

Should Libertarians Go to Law School? (Part II)

2)Okay, so I'm not interested in law firms. I'm more interested in public interest law, journalism, or think tankery. What can you tell me about those fields?

Every once in a while, I get approached by more idealistic young libertarians, who profess that they understand the trade-offs listed above and therefore want to do something else. They usually mention 1)libertarian/conservative public interest law (often IJ), 2)think tankery; journalism, and/or other punditry; or 3)legal academia. I usually sigh with relief when these people approach me, because they're much more thoughtful and interesting than the "think like a winner" types. So I'll devote this next post to talking about some of these alternatives.

1)Legal academia – IHS actually wrote a nice screed length pamphlet directed at conservatives and libertarians on how to crack legal academia. agree with around 95% of what appears there, so I see little need to reprise it here. (N.b. that the site appears to be down at the moment; I'll update with a link later. I swear that this thing exists, though. Really; I have read it.)

2)Libertarian/conservative public interest law: First, I highly recommend Steven Teles’ The Rise of the Conservative Legal Movement to anyone falling into this category. It’ll tell you a great deal about the history of the specific groups in which you’re interested, more than I can possibly recount here. He notes in particular that the early conservative legal groups were founded much later than their left-wing equivalents. There are a variety of reasons for this, including the right’s historic aversion to “judicial activism.” What this means for you is that there are still far fewer conservative and libertarian public interest firms than there are left-wing such organizations. Walk through any law school’s public interest career fair if you don’t believe me.

It also means that walking into your law school’s career services office and announcing “I am a libertarian who would like to go into public interest law” will attract roughly the same stares as it would if you went in there and announced “I am a monkey who would like to eat bananas with a straw.” That is, the resources that most law schools have in place to help aspiring public interest types may not be of much use to you. The career services officers in charge of public interest advising, the student groups who work to raise money, etc. are all likely to be extremely left of center in ways that you will find confusing and alienating. Some will respect your idiosyncratic beliefs – some of the left types I met in law school respected mine – but not everyone will be so kind. On the other hand, many of the conservatives and libertarians you meet will be pro-business types who still go around mouthing platitudes about the importance of thinking like winners. They will strike you as insufferable tools, and you may feel quite alone sometimes.

I don’t discourage aspiring libertarian public interest law types from law school. (See #2 above about unclean hands.) But I do ask you to acknowledge how few slots there are for you, and also to have some more easily attained alternatives in mind. That is, if IJ is a 96/100 life outcome for you, would working at a large firm and taking on a couple of pro bono cases be at least an 87/100 outcome? If your paper credentials are insufficient for that, what about being a public defender? If you can’t describe a couple alternate outcomes that are at least 87/100 desirable, you might likely be happier working in some non-legal capacity in the libertarian or conservative movement.

Oh, n.b. that things like loan forgiveness and debt repayment are also issues. Because that’s covered elsewhere, though, no need to rehash it here.

3)Think tankery, journalism, and/or punditry – I am admittedly lumping three distinct paths together. I do it because a young libertarian lawyer hoping to break one of these fields faces essentially the same challenges.

There are lawyers working in each of these fields, to be sure. There will continue to be lawyers working in each of these. The difficulty is that a law degree isn’t necessary to break into one of these, and may not be worth the opportunity cost. Again, the calculus varies immensely from individual to individual, and I can’t say whether the opportunity cost is worth it in yours.

A word more about think tanks in particular: you may have noticed that the senior people who work there are supposed to be experts in something narrow. Think tanks hardly hide this: several of the prominent ones bill their staff members on their websites as “experts.” The problem is that law schools, in contrast to most other graduate programs, aren’t out to produce experts in anything. They’re out to produce generalists, people who know a little bit about many different areas of the law.

And this actually makes perfect sense. As a lawyer, you’re supposed to know what to do when a client walks into your office and tells you some long and complicated story of woe. Any particular tale of woe might touch on several completely discrete branches of law; a story of a business transaction gone awry, for example, might invoke agency law, the law of commercial paper, and the law of contracts. So law schools try to equip their students with broad rather than deep knowledge of particular branches of law. In your first year, at any law school in the country, you’re likely to take the same eight to ten basic courses. Though you have more freedom to take electives afterwards, most students still fill up their schedules with meat and potatoes courses like Business Associations, Evidence, Fundamentals of Tax, and Administrative Law. Interestingly, non-lawyers tend to overestimate the desirability of specialization in law school: I often got asked what type of law I was majoring in and such.

So an aspiring wonk in law school will find herself pulled in two directions. The wonk in her will want to drill down on a narrow specialty. Yet everything in her environment – logistical pressures, classmates’ inclinations – will push her toward thinking like a generalist. It’s no wonder that most lawyers who go into think tanks do so only after years of practice, when they’ve had an opportunity to build up knowledge in one particular topic area.

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.