Introduction

Veblen’s The Theory of the Leisure Class formalized a somewhat intuitive observation that patterns of consumption reflect an eagerness to display wealth to others. Good taste might artificially set a ceiling beyond which further displays of wealth become unacceptable, as was the case in men’s clothing, but displays of wealth and leisure generally coincide with perceived status. However, by the writing of Lawyerland,--exactly a century later--a paradigmatic shift has replaced the leisure class with a hardworking professional elite. Instead of displaying wealth and power through their material possessions, the characters in Lawyerland primarily emphasize their own labor as the demonstration of their power. Where necessary, they even downplay traditional elite characteristics like background and conspicuous leisure time where downplaying them gives the appearance of hard work and seriousness. Veblen’s posited goal--the improvement of an individual’s apparent social position--remains intact, as do vestiges of conspicuous consumption, but the methods for its achievement now revolve around demonstrating individual talent and importance.

Democratic Fashion

The downscale shift and democratization in fashions exemplifies the weakening of material culture. Even in 1899 Veblen recognized a ceiling beyond which any improvements in men’s fashion would be in poor taste. Indeed, Gilded Age America’s ceiling was already lower than in say 1789 France. A century later, the ceiling is still lower for men and the use of women’s clothing as a conspicuous replacement for mens’ has diminished. The scantily-clad girl in the subway is in a sense sending a signal that she does not need to work before lunch on a weekday because her clothing is completely unacceptable for work, but the more overt message is sexual. Personal characteristics matter more than does her social position.

Democratic Fashion 2

By contrast, professional women assume the lower ceiling for men’s clothing; a few vestigial signs of frivolity and decoration are adopted out of habit but robbed of demonstrative economic meaning. Tharaud is a female lawyer who recognizes the difference in the way the sexes are treated and remembers when the distinction was more extreme. Her clothing is deliberately professional, as a way of refocusing attention away from frivolity and her husband (though if she has one the text does not bother to mention him) and toward her own abilities. Her only concession is a jade brooch, that she “bought in Mexico in the fifties.” Tharaud chooses to describe it in a fashion that downplays its economic significance and removes it from all of Veblen’s pecuniary emulation categories. It is not a family heirloom, but was acquired by its wearer. Its age shows that she does not replace jewelry often--which would signify conspicuous consumption. Even its place of origin denies any effort at conspicuous consumption; few overseas locales are as uniquely unglamorous and accessible as Mexico. The connection between consumption and frivolity limits professionals’ ability to conspicuously consume, a trend that extends increasingly to women.

Inversion of desirable class background

Demonstrations of inherited status or etiquette also become less important or even undesirable because they set a higher baseline upon which an individual’s success is based. “Halley of Akron, Ohio,” a wealthy lawyer, tells stories of his impoverished Depression childhood as a sign of “strong genes.” Not to be left out, his sometime opponent Conway affects a working class Irish brogue. Both could easily downplay or ignore their backgrounds, and in Veblen’s world they probably would. Their choice to emphasize their former poverty implicitly argues for a populist background’s desirability.

Inversion of etiquette

Etiquette takes on an important social function, but it becomes a subject of conspicuous consumption ignored, and not, as Veblen suggests, when it is followed. Veblen viewed manners as a form of conspicuous consumption because those with leisure time were able to learn them. Veblen’s connection between manners and leisure time appears spurious by itself. Further, etiquette hardly strengthens the social position of a Tharaud or Cerierre. Instead, rudeness shows their indifference to the feelings of the other party and their ability to survive the resulting animus. Tharaud’s ability to label the source of the case a “pussy problem” stems from her position as a woman. Cerriere’s response, “that’s precisely what I’d call it,” is limited because gender politics prevent a more aggressive response. Tharard and Cerriere can taunt each other because they know that the other is incapable of punishing them in response. Cerriere can call the cleaner “Mopboy” without any injury to himself. Like Black’s nurses ignoring the doctor’s “idiosyncracies,” “Mopboy’s” social inferiority denies him a response.

Leisure time

The final and most critical divergence from Veblen’s leisure class lies in the completely distinct views of the social role of free time. Veblen’s “leisure class” defines itself primarily by its leisure time. The ability to play sports, acquire an education, and learn manners all depends upon escape from immediate concerns for survival. By contrast, the professionals in Lawyerland define themselves by their work and the extent to which work supplants leisure. When Tharaud disapproves of Cerrierre’s points, she glances at her watch. By demonstrating the importance of her limited time, she is asserting a superior social position.

Leisure Time 2

A demonstration of busyness also provides a justification for actions that would appear unacceptable otherwise. Judge Day can interrupt the interview to write a note to herself or leave the room for minutes on end because her importance requires it. Time constraints further necessitate giving less important functions to less important workers. Thus, Day’s time premium lets her delegate a small task, like serving a ginger ale, to her secretary. While a very wealthy person could hire retainers just for show, that behavior would seem vain. Conspicuous consumption in a business context primarily gains legitimacy from the individual’s personal importance, not the other way around.

Conclusion

We need not suggest that Veblen’s theories of conspicuous consumption and leisure never apply; a cursory look at the market for luxury goods alone shows they are still very much with us. However, the lowered ceiling for socially acceptable consumption and replacement of consumption with personal achievement limit Veblen’s application. Lawyerland’s characters still strive for social status, but they seek new methods to acquire it.

• This essay misplaces its focus. It is merely obvious to state that Veblen's leisure class was almost as complete a casualty of the twentieth century as the European aristocracy that survived the nineteenth-century aftermath of the French Revolution only to perish in the First World War. Veblen's leisure class was much the same as Digby Baltzell's WASP aristocracy, and despite the current moron scion in the White House playing out the role of the later Spanish Hapsburgs, your announcement that it no longer sets the fashion in pecuniary competition is neither ironic nor insightful.

• That's why we didn't waste any time discussing the leisure class Veblen depicted, but instead concentrated on the intellectual structure he created, which you neither make use of nor leave unmangled. To treat an evolutionary theory as not applying to the present because the present isn't the past is a really serious and fundamental mistake. Your use of Lawyerland was a way of applying lipstick to the pig: if Lawyerland is data (I think it is unnecessarily far-fetched, there being plenty closer to hand), the issue was how well the principle of pecuniary competition illuminates or explains it, not how it "tests" the "correctness" of fit between nineteenth-century observations and ones made at the beginning of the twenty-first. For that purpose, the dialogue in Something Split would, I expect, have made an appearance, but you left it out.

• The route to improvement here, I think, is simple but comprehensive. Shelve Lawyerland until it proves its necessity, and begin from Veblen's thought as it is, not as a straw man to be worked off.

The Need for Agency

“What do you call a thousand lawyers chained together at the bottom of the ocean?” one of the most well known jokes in American culture asks. The inevitable response runs, “A good start.” While jokes dependant upon stereotypes invariably contain a culturally recognized hyperbole, the fact remains that lawyers as a whole are not particularly popular—or particularly happy. However, the received wisdom that lawyers occupy a position on the Great Chain of Being just one half-step above snakes seems at odds with my limited experience with lawyers, whom I found more ethical than the public at large—certainly not less. However, while law school and professional responsibility teaches lawyers how to conduct themselves ethically, it offers relatively little guidance on what to do with the degree. Law is an unhappy profession because it lacks a unifying and obviously valid goal, but still retains moral and societal relevance. Meanwhile, the demands of the client and legal organizations’ hierarchical structure force even lawyers who generally approve of their organization to advocate positions with which they disagree. The disconnect between the social significance of legal practice on the one hand and lawyers’ structurally limited agency gives the appearance of immorality even as lawyers strictly observe a rigorous and necessary ethical code.

Law, and particularly litigation, comes closer to a zero sum game than any other profession. Where doctors focus entirely upon curing their patients and engineers to build better machines or buildings, lawyers operate at cross-purposes within a societal framework laid out by fallible human beings. While the methods used in curing a patient or building a computer might vary, the ultimate goals and the belief in progress are never in doubt. By contrast, lawyers operate within a morass of uncertainty. We lack an objective method of weighing the benefits of one social policy against another and are operating on many different sides of many different issues. The way lawyers seem to resolve the threat to their self esteem posed by this fragmentation is to defend their actions through a legal process theory.

The process argument for the existence of lawyers in a litigation context—that they serve a vital societal role by providing both sides with the representation—is intellectually sound but emotionally unfulfilling. Standing alone, the process argument could provide a tenable justification for the advocacy of a position that the attorney otherwise finds repulsive. Still, I suspect few lawyers are as eager to represent someone who they disagree with as they are an aggrieved party.

These problems, in and of themselves, might not prove troubling if a starting lawyer were positioned to choose his battles carefully. One could simply represent the side he prefers. However, because law firms and government are both hierarchical, starting lawyers’ agency is limited to fulfilling the wishes of his superiors. His own interests may differ radically from those of his employers or clients. This might not be a concern where the distinction between the employer’s objectives and those of the lawyer is obvious; an environmentalist can decide relatively easily that working in-house for Exxon is unacceptable.

But where the distinctions are more nuanced and objectives intermingled this concern becomes more serious. A criminal prosecutor might approve of the statutory restrictions against all malum in se crimes but privately oppose some malum prohibitum laws. Nonetheless, the same person might end up prosecuting both rape and statutory rape cases—but only believing in one. In a criminal code as complex as ours and so replete with expansions over the last century, no prosecutor could believe in the validity of every single law that he is tasked with enforcing. And even if they agree with the general principles underlying the law, they may not approve of the presence or absence of affirmative defenses or the severity assigned to the offense. Further, the prosecutor is encouraged to pursue as many avenues for prosecution as are possible, so as to preserve a strong bargaining position for the nearly inevitable plea deal.

Our system therefore sets a young prosecutor in a paradoxical moral system. On the one hand the position carries with it almost unimaginable responsibility; years of imprisonment are at stake for the defendant depending on how the prosecutor pursues his case. On the other hand, the prosecutor’s scope in making the most important societal decision—whether or not to prosecute—may be dictated by his superiors. The young attorney is effectively reduced to a well-performing appendage of his client or employer’s will. Somewhat intuitively, as the societal impact of the lawyer’s actions grows the seriousness of this lack of agency increases in lockstep.

It is difficult to imagine any systemic change in our legal system that could provide a new attorney with greater agency in deciding which cases to take while working within a firm or government entity. Three basic solutions seem available. The first is to accept our limited agency by arguing either that we fulfill a vital societal role by providing legal representation and furthering due process, or that the good we cause outweighs the harm. Both positions seem defensible, but from an emotional standpoint unfulfilling, though others might disagree. The second alternative is to recognize a lawyer’s lack of agency but enter a practice devoid of or at far remove from any moral implications. For example, while the aggregate actions of tax lawyers may have a substantial impact upon government revenue and therefore upon government spending, which in turn shapes society, the moral impetus behind tax law is shadowy. In draining one’s legal job of any larger moral impetus it starts to more closely resemble the role of an engineer with an internal logic dictated not by science but by the decisions of the legislature and judiciary.

The last option would preserve both the societal objectives and would obviate the need for agency by limiting the scope of one’s employment to an endeavor sufficiently narrow that the employer and employee’s interests align. Such a situation is difficult to imagine outside public interest.

Question:

The largest problem facing a CLS graduate who is interested in maximizing the social good provided by his or her legal employment is the nearly crushing debt many of us will face upon graduation. While LRAP potentially provides some relief, it would still leave those on it living at a comparatively austere level. Absent a large salary, one’s children might face the prospect of attending worse schools or living in worse neighborhoods. Ultimately, while some financial sacrifice for ideals is acceptable, I have to conclude that my personal threshold for sacrifice is relatively low. My first question is therefore whether any socially rewarding jobs exist that would provide a relatively high salary (say over $110,000 per year), within about three years after graduation. I admit of course that these figures and time limit are somewhat arbitrary.

If the answer to that question is no, or if those jobs are very difficult to come by, the issue turns to making the best of a firm job. Since it’s difficult to move between practice areas, the main objective should probably be to pick a practice area that most closely corresponds with a socially rewarding job outside the firm. Plenty of starting lawyers do this all the time. Indeed, most defense lawyers started out as prosecutors before going across the street after they gained sufficient experience. As a corollary, it might be worth considering whether at least a few practice areas create social value while at the firm. For example, working in project finance and assisting in the construction of power plants for third world countries might be more socially valuable than some other practice areas.