A Casual Empiricist’s Opinionated Theory On the Dearth of Morals in Aspiring Lawyers

-- By HoDongChyung - 17 Feb 2023

Prelude on Morals

Both morals and the law regulate themselves through value propositions. If I am generous, I gain an elevated sense of self; if I am not generous, I feel shame. If I commit murder, I will be incarcerated; if I don’t commit murder, I will enjoy liberty. If moral constraints are more restrictive than the law, there is no need for the law since morals will regulate our behavior within the bounds of the law. The reality, though, is that moral constraints don’t perfectly overlap with legal constraints. There are fields of social life that the law does not govern, making morals an important regulator for agent behavior in these areas.

Two Theories

Assuming that a gain-loss framework aptly describes the effectiveness of morals in regulating individual behavior, I rely on Kahneman’s and Tversky’s loss aversion theory to explain the dearth of morals in aspiring lawyers. Simply put, messing up on a cold call hurts more than acing a cold call feels good. There are exceptions to loss aversion theory – people whose enjoyment of a subject overpowers fear of failure – but I reasonably assume this isn’t the genetic composition for most people. In addition, evolution theory explains why we value material characteristics rather than moral ones. Society today has extolled the individual that possesses a vast material worth as the successful mate rather than an individual with vast moral worth.

The Reign of Fear in Law School

In this heightened age of social media, socially “good” behavior gets rewarded more vigorously in the form of followers from all over the world and socially “bad” behavior gets punished more severely with hate comments from people who would have never dared utter them in person. Even if we assume the frequency of rewards (1 follower) and punishment (1 unfollow) to be equal, loss aversion holds that each unit of punishable behavior hurts more than each unit of rewardable behavior feels good. Social media amplifies this asymmetry by increasing the potential scale of punishments and rewards. One mistake on your part may reverberate through GroupMe? , Instagram, Twitter and – as one professor found - Above the Law and can have unprecedented personal and professional ramifications. This microphone effect of loss aversion doesn’t end there – students feast on negative gossip more than positive talk. Not only is there an infrastructure but also agents that broadcast punishable behavior more fervently than commendable behavior. And so it’s more important that we avoid appearing morally abominable (i.e. disrespectful) rather than appearing morally commendable (i.e. respectful). We were already fear-driven and social media has made us even more so.

Columbia Law School is home to an overwhelming number of law students who aspire to be corporate lawyers. “Corporate lawyers” is really a euphemism for our truer aspirations of cashing in instant six figure cash multiples. A standalone positive motive of money, though, doesn't explain this overpowering tendency. Consider this straightforward hypothetical. If law students were offered the same $215,000 but for starting their own practices, I have no doubt most law students – me included - would accept that hypothetical offer. The differences between a Big Law offer and this hypothetical offer illuminate the true gods behind our decisions. With a guaranteed high salary, we primarily eliminate uncertainty and initial financial inferiority, characteristics that typically accompany starting your own practice. With your own practice, we primarily gain some autonomy to pursue legal issues and clients one finds (presumably) morally meaningful. In conceding that we’d rather do Big Law, as 80% of Columbia law students do, we concede that the loss of certain financial superiority is greater than the gain in autonomy to pursue morally meaningful pursuits. Fear of losing material value beats the reward of pursuing moral value. To be more precise, the gain of guaranteed autonomy, albeit limited since a practitioner is constrained by bills, is not greater than the guaranteed gain of $215,000 in one year. Owning a Lamborghini is generally sexier than owning a medal of honor. It certainly doesn’t help when this guaranteed loss is concurrent with six-figure debt or family members that will depend on you for income.

And law school doesn’t really do much to combat this asymmetry. Professors teach doctrine and precedents and reward those who most quickly understand the underlying rules and reasoning. There is no discussion of morals; though we are encouraged to think about “policy”: should a utilitarian cost benefit analysis guide verdicts? Should we respect the autonomy of individuals when deciding the property rights of organs? An invitation to choose among available policy frameworks is no substitute for the internalization of morals that shape character. Morals are a set of beliefs that drive the heart while policy frameworks are a set of beliefs that drive rationale. Faculties of human behavior are all interlinked – rationale affects the heart and vice versa - so these distinctions may inevitably be blurry.

Is This Dearth Bad For the Legal System?

Not necessarily. Lawyers are incentivized to represent their clients in their best capacity since success in cases translates to personal, material success. Still, the adversarial system doesn’t provide blanket immunity against a dearth of morals. Judges decide which adversarial position is successful and morals, or the lack thereof, guide their decisions. Prosecutors swing for maximum sentences in acquiescence to populist pressures over empathy to all parties. Whether institutional safeguards like the adversarial process overcome these individual cracks of morality in the agents of the law is an open question.

The Solution

Assuming that increasing the internalization of morals is desirable, the solution is either bolstering the gains experienced by possessing morals or heightening the loss in disclaiming morals. This solution needs to be a top-down approach. Law firms and professors control the reward and punishment schemes that aspiring lawyers weigh. But perhaps reversing the asymmetry between fear of losing material worth and the fulfillment of gaining moral worth is insurmountable with today’s institutions and norms.

I think this is a satirical effort to cartoon bullshit reductive materialism by pretending to believe in it. The point appears to be to show that one cannot understand anything, particularly including law school, by imagining it to be nothing but a series of material wins and losses. Obviously if one thought of every occasion on which one speaks in class as either a victory or an injury, learning from one another would cease. If one actually thought that altruism is merely ego gratification, then (in what is presumably intended to be the crowning irony) there would be no need to teach people how to shape their practices in light of their moral requirements, because people wouldn't have any.

But how does this help you to connect with the reader? Proving that bullshit is neither right nor wrong but strictly unconcerned with truth is easy and unsatisfying: readers know already that this is nonsense before the conclusion solemnly so assures them. The valuable central idea here is far more sophisticated than the cartoon. You begin describing the way in which this obviously spurious understanding of human nature is modeled—and, for its captive users, enforced—by the software entity I call the Parasite with the Mind of God: the surveillance-based, engagement-focused "social media" systems. Dropping the coy device of inhabiting the persona rather than standing analytically outside it will enable you to do much more with the insight. That feels to me like the best way forward for the draft.

This is what I meant when I said almost fifteen years ago that Mark Zuckerberg had done more harm to the human race than anyone else his age. Now, when every idiot in the village knows this and is after him, it would be really a good idea for people to know what actually went wrong. Understanding the fundamental problem is more important than holding this particular schmuck (or all of the schmucks) responsible. The real issue is (a) way more serious, (b) utterly harmful, and (c) relatively easy—but way too beneficial to human beings to be politically feasible—to fix than whatever absurd little piece of the puzzle the various regulators and self-promoter lynch mobs are presently on about.

I teach a course on this subject, called Law in the Internet Society, offered next fall, that you might want to consider taking.

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