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JamilaMcCoyPaper3 4 - 15 Aug 2009 - Main.EbenMoglen
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Big Law Needs You, You Don't Need It | | |
-- JamilaMcCoy - 14 May 2009
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- Jamila, this is a well-made and well-argued essay. It comes from the heart and it has both passion and sensitivity. But I must say, much as I admire the craftsmanship that went into it, that it doesn't make the slightest sense to me.
- You start by announcing that you've learned how to approach your career "with an independent and entrepreneurial spirit." The remainder of the essay is about unionizing law firms.
- I believe in union with all my heart. But everyone on all sides will agree, I think, that "independent and entrepreneurial spirit" is not where unionization comes from. You don't even acknowledge the existence of an irony.
- Unionization is necessary because capital unifies itself, creating social conditions under which people must labor to survive as wage-earners completely beholden to "owners" of enterprises for which so much capital is necessary that independent operation is impossible. This has no relevance to the conditions of most lawyers, because most lawyers remain within the medieval guild structure, now reinforced rather than attacked by capitalism: the lawyer's license is her capital, and independent operation is the assumption of the trade.
- Not for you. Despite having tried to incorporate an independent and entrepreneurial spirit, which is indeed precisely the spirit that from a political-economy point of view it is sensible for a lawyer to have, you still see yourself inevitably as a waged employee of an entity that takes your capital, which is the power to choose clients and direct your practice, and in return pays you a wage to direct your skilled labor according to their orders. On that basis—and evidently not believing in the organization's claim that you are investing your license and labor in the fair chance of an eventual partnership, allowing you to practice entrepreneurially (to the extent that the firm's partners do actually have that autonomy), and make yourself rich on the leverage from the labor of the waged employees below—you think you should organize with other employees in your bargaining unit to negotiate collectively over wages, hours and working conditions.
- In other words, you're asking to proletarianize yourself.
- What causes this absurd result isn't your logic, it's your premise. The leveraged firm is not the right way to begin your practice. This isn't about black or white, Republican or Democrat. It never worked for associates, but they hung in there, trying to be partners, no matter how inhumane their conditions. Now it doesn't work for partners either, and many firms are going to die. The ones that survive will have become something very different from what they are now, and if there are any jobs in such places for people just out of US law school, you won't particularly want them. If you want a job as a salaried and unionized lawyer, which is not having an independent spirit, you can find such jobs in government service, and you can live a balanced, sane and useful life in them, without any doubt. Unionizing Cravath is not the right choice for such a lawyer; the Justice Department, or the Commonwealth of Massachusetts or New York City is a much more appropriate fit. The political economy, not too surprisingly, is consistent. Unions also rightly belong in the socialized sector, and for a lawyer—who has indeed contributed the capital in her license to state purposes—collective governance of the work process is the just outcome.
- The collapse of the leveraged law firms now going on has several roots, including some that relate to short-term economic phenomena. But the most important causes have to do with the way enterprises use technology to manage their purchase of legal services. These changes are not obvious outside the industry, but their effect is as sweeping as the change from fee-for-service to managed-care medical practice in the US over the last generation. The "death of the billable hour" is a very partial shorthand for what's happening. Its gist, as Columbia students are finding, is that the particular segments of the legal ecology to which Columbia has been sending most of its graduates for the last two generations are contracting sharply, changing rapidly, and failing as reliable sources of high-salary commodity-hour employment for our graduates.
- Unionizing a failing industry will certainly make some sense to you, as a person who grew up in Detroit. But it's not a history you should be condemned to repeat. Your future lies outside the world of the leveraged law firm. So does pretty much everyone else's. There's nothing bad about that, and I'm surprised you're having such a hard time accepting it. Do you know why it's something you don't want to let go of?
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