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March 09, 2005

BigLaw Review, Or Why I Stopped Worrying and Learned to Love LittleLaw

Now that the GW journal competition is over (it officially ended at 8 p.m. Monday night), I send my congratulations to those who competed. You probably now know more than most people about sex offender registries and you've produced a small piece of what's probably some very good legal writing. Regardless of what you learn in July about being on a journal, you should feel good about what you've done just by completing the thing. In that spirit, I also wanted to comment on the comments generated by this post from late last week. To summarize, a GW 1L had written asking for advice on the journal competition. I offered my two cents, including a few words about how someone might choose which journals to rank highest in their “preferences” list. Self-described BigLaw senior associate and GW alum David Kaufman wrote in to say:
I (and keep in mind this is one BigLaw lawyer talking) couldn't care less if you were on an irrelevant journal or not, if it's not Law Review. So if you're interested in Gvt Contracts, I'd go for that journal over “realistic” ranking, because I don't much care about journals that aren't Law Review to begin with, but being on a relevant journal to the field you're interested in getting into would help you. If that's not clear, let me know.
He later clarified a bit and Professor Yin and Energy Spatula added some helpful perspective. What I wanted to add is that this is a perfect example of why BigLaw is so not for me. My experience has been that Duncan Kennedy was absolutely correct when he described legal education as training for hierarchy (in an essay by that name), and this discussion about law review v. other journals v. no journal at all is a perfect example of how that training works. Law school is very good at teaching students to think in high stakes, either/or terms about their career choices. It begins with taking the LSAT and applying for schools, where the conventional wisdom is that you must have the highest scores you can possibly get and you must attend the highest-ranked school to which you can gain admission—otherwise, you might as well not go at all. The training continues in the first year with the myriad competitions where you either win and receive congratulations and accolades, or lose and retreat to your outlines to ponder whether you're really good enough or smart enough or whatever to make it in this racket. And, of course, the training goes on throughout school, with still more competitions, ruthless grading curves, and the constant cycle of interviews and job-seeking that sorts people into the best—and everyone else. Isn't that what the “law review or nothing” mantra means? These lessons of all or nothing hierarchy are drilled into most 0Ls to such an extent that they often make foolish choices and end up in programs that don't fit them as individuals and which do not serve their career goals. But quickly they learn that, whatever goals they may have had when they started applying to law school, the only legitimate goal of any self-respecting law student—nay, the only possible goal if they do not want to live a life of shame and poverty, or worse—is to scrap and scrape for every little “distinction” that will earn them a coveted spot w/in the miserable and too often morally questionable corridors of “BigLaw” where they can help perpetuate the dispiriting cycle for the generations to follow. As I've said before, Kennedy's essay is well worth reading in its entirety, but his comments on the firm hiring process are especially relevant to this point. He writes:
The final touch that completes the picture of law school as training for professional hierarchy is the recruitment process. As each firm, with the tacit or enthusiastically overt participation of the law schools, puts on a conspicuous display of its relative status within the profession, the profession as a whole affirms and celebrates its hierarchical values and the rewards they bring. This process is most powerful for students who go through the elaborate procedures of firms in the top half of the profession. These include, nowadays, first-year summer jobs, dozens of interviews, second-year summer jobs, more interviews etc., etc. This system allows law firms to get a social sense of applicants, a sense of how they will contribute to the nonlegal image of the firm and to the internal system of deference and affiliation. It allows firms to convey to students the extraordinary opulence of the life they offer, adding the allure of free travel, expense-account meals, fancy hotel suites and parties at country clubs to the simple message of money.   . . .   By dangling the bait, making clear the rules of the game, and then subjecting almost everyone to intense anxiety about their acceptability, firms structure entry into the profession so as to maximise acceptance of hierarchy. . . . If you feel you’ve succeeded, you're forever grateful, and you have a vested interest. If you feel you've failed, you blame yourself. When you get to be the hiring partner, you'll have a visceral understanding of what's at stake, but by then it will be hard even to imagine why someone might want to change it.   Inasmuch as these hierarchies are generational, they are easier to take than those baldly reflective of race, sex or class. You, too, will one day be a senior partner and, who knows, maybe even a judge; you will have mentees and be the object of the rage and longing of those coming up behind you. Training for subservience is learning for domination as well. Nothing could be more natural and, if you've served your time, nothing more fair than to do as you have been done to.
As Energy Spatula pointed out well, it's not only students who are poorly served by the myopic mentality of this legal hierarchy, but the profession itself suffers because BigLaw employers too often hire based merely on the “numbers” and credentials, without looking at the individual characteristics that might make a prospective associate a real asset to the firm. She writes:
My point, as always, is that if law firms hired according to other factors, such as demonstrated practical skills, experience with high-pressure work situations/past career experience, interviews that weren't just grade screening sessions, etc., perhaps there wouldn't be big firms whining on about how Gen Y doesn't have any work ethic and no one wants to work hard anymore. I *always* advocate for individualistic hiring practices based on some kind of interview that is more than perfunctory and that establishes a rapport between interviewer and interviewee where interviewer gets an actual glimpse of whether interviewee might be a valuable asset to the organization. I could write a book on my terrible law firm interviews...stupid questions, interviewers that hadn't read my resume, interviewers that totally depended on me to push the interview along, firms that told me, point blank, that I was lucky to even get an interview with them because my grades aren't perfect and then just sat and stared at me for five minutes...waiting for my gushing thanks no doubt. We joke all the time in school about how law schools push for diversity in admitting students and then spend three years making us all the same...and unfortunately, “the same” that they're making us is someone no one wants to work with and who is hired based on things like law review and grades, which, while important, are not Important.
This, in turn, damages society because it produces a cadre of professionals who have never learned what it means to be a “counsellor at law” or a guardian of liberty because they've been too busy gunning for the illusory golden ring and making sure everyone who follows in their footsteps has to pay the same exorbitant price they paid for the privilege. It's sad, really, and I want as little to do with it as possible. Of course, I'm absolutely certain that there are happy, well-adjusted, kind and humane people working in BigLaw (I know a few of them); it's not satan's own playground, by any means, and I applaud those who recognize that the system is badly in need of change and are trying to do something about it. Still, evidence abounds that the BigLaw hierarchical model is still going strong at all levels of the legal profession. See, for example, the recent discussion on many blawgs about whether it's necessary to attend a top-10 law school to become a law professor. E.g. Preaching to the Perverted here and here (including links to other voices in that discussion). Again, the brutal hierarchy perpetuates itself. Is there some hope in the news that “Gen Y” lawyers are balking at the hierarchy's demands? Perhaps. At the very least, it's sparked some terrific discussion, including this giant comment thread at the Volokh Conspiracy. (See also: Thoughts from Anthony Rickey.) However, reading around that discussion only adds to my cynicism about BigLaw. First, I agree with this comment that much of this could just be normal generational squabbling; in about 1993 I wrote an article for my college magazine about those slacker Gen-Xers, and now it appears I could write the same thing about Generation Y. Another commenter puts it this way:
So to those who think they have sussed out something new: not quite. We all billed over 2000 hours back in the day, and I hit 2400 most years. We neither expected nor received loyalty from the firm (although it was rare for an associate to be shafted by a partner - why bother?). We knew even then that the big money was on the client side, but most of us lacked the social skills to thrive in a more entrepreneurial environment. And like today's associates, Generation Schmuck paid a price for our work that was measured in more than foregone vacations: plenty of marriages (my own included) did not survive our law firm tenure.
That's a great comment because it captures the bitterness and resentment of those who have spent their lives trying to rise in the hierarchy. That bitterness and resentment destroys any empathy these battered practitioners may have once had for those following in their footsteps, leaving them, again, with the pyrrhic satisfaction of being able to make sure their successors pay the same high price they paid for their misery. As Kennedy puts it, “[n]othing could be more natural and, if you've served your time, nothing more fair than to do as you have been done to.” If that's not enough, this discussion also offers little hope that anything is changing because it simply reinforces the fact that the legal “profession” has become nothing more than the pursuit of profit for a large and unfortunately influential swath of practitioners. (See, e.g., this complaint that $120k/year really isn't a very big salary.) Perhaps this is the logical endpoint of the hierarchy—like the proverbial snake it begins to eat its own tail. As Kennedy writes, “[t]raining for subservience is learning for domination as well.” Or perhaps not; perhaps what's at work with these “gen-Y” associates is not that they are becoming “rational actors” in the self-serving sense of pursuing their own profit at any cost, but that they are realizing that there's more to life than billable hours and climbing a ladder that may very well lead only to more rungs. For their sakes, and for the sake of society, I hope so.

Posted March 9, 2005 08:05 AM | 2L law general law school

amen brother! i am so glad that i am going back to med school next year and haven't had to worry about the many assorted ranking games that go on in law school. i don't know how i would have survived the law school experience otherwise.

not that such an attitude hasn't come without consequences. most of my fellow classmates have no idea what to make of my approach to education. "what do you mean, you don't want to be on law review? but then you can't work at skadden? "

i don't want to work for skadden. i want to work for a big hospital conglomerate (not really). but i have no intention of being a lawyer. it is nice to see other students who see the absurdity of the system and have opted out.

Posted by: japhy at March 10, 2005 10:32 AM

Well, let's just highlight something; the original question was "how does the ranking for journals affect me?" I read that as "How does the ranking for journals reflect on my employment prospects?"

I did hasten to point out that my perspective was that of a BigLaw associate. There's lots of ways to practice law, whether you're working as a Legal Aid attorney, sole practitioner, or BigLaw. Each has different implications and requirements for employment. If you don't make Law Review, that's not the end of the world, especially if you don't want to be in BigLaw. In that case, my advice to go for a journal you're interested is even more appropriate; why are you struggling to get on a journal in the first place?

Law Review is like graduating from Harvard; I can certainly list a lot of lawyers from Cardozo who are better practicing lawyers than those who came from Harvard. Similarly, there are plenty of people who will be better practicing lawyers who weren't on Law Review than some Law Review people.

But Law Review is another sort of vetting tool; we know that you have to either have a relatively high level of writing ability or good grades for Law Review. So it helps, just like graduating with Honors or making Dean's List. It's another way to try and distinguish yourself in the flood of resumes we get. Other ways include having significant work experience. We hired a guy who had previously been a captain in the NYPD; he went to night school -- and I don't believe it was a top tier school -- and I also don't think he was on Law Review. We hired him in a heartbeat, and he's a great junior associate.

From a practical point of view, Law Review, and, in fact, most of what I learned in Law School is entirely inapplicable to my daily practice. I don't have to do legal research, for the most part, because Real Estate law is pretty well settled in connection with the transactions we do. I don't sit around navel gazing over the Rule Against Perpetuities; there's a couple of situations, easily remembered, in which it's impacted, and then you can deal with those.

There is a fair point to be made that some of the stuff that BigLaw associates go through is hazing. I know that my department (although I would certainly call us a sweatshop) does not prize face time and we actually do try to minimize "make work" stuff. There's enough real stuff to do that the work is actually important. But yeah, shit slides downhill, and when I was a first year, I spent more weekends in the office than I do now. I spent more time collating documents than I do now. I have other responsibilities now, including administrative responsibilities over juniors, teaching responsibilities for juniors and, oh yeah, structuring transactions and doing stuff juniors can't do because they don't have enough experience yet. That doesn't mean I'm "mak[ing] sure [my] successors pay the same high price [I] paid for [my] misery," it just means that it doesn't make sense for me to do the ancillary documents because I have to work on the Loan Agreement. And while I remember not being so happy about being up at 3AM drafting Section 255 Affidavits, and certainly I do my best to work things out so that my junior associates don't have to be doing stuff like that at such hours, sometimes it actually needs to be done.

Regardless, I don't want people who are just looking to pay off their loans and get out, anyway. I want people who are actually interested in doing this. I tend to resent the implication that BigLaw is somehow immoral or degrading. It's not. I love what I do. Certainly it's intense; we deal with demanding clients and considering we're working on transactions involving significant amounts of money and people, the pressure can be exceedingly high.

It's also fascinating; I love trying to structure deals to allow for each party's needs and desires. When we close a transaction, each party has benefitted, and the lawyers have played a part in fleshing out the transaction so that everybody involved understands the parameters and nobody is surprised. Yes, we're paid well, but we provide a great deal of utility as well.

Posted by: David at March 15, 2005 01:07 PM

I wouldn't mind working for BIGLAW if it was in the right place and doing the right thing...however, the impression I've gotten during school is (a) THEY don't want ME, and (b) when I do get an interview I am supposed to be slobberingly grateful they would deign to even talk to someone of my clearly inferior knowledge, skills and abilities. It breeds a certain resentment, you know?

Posted by: energy spatula at March 16, 2005 09:07 PM

Well, yeah. That's the crap side of BigLaw, but that's not all BigLaw. I find a lot of it has to do with the particular firm and the particular department. My firm, as a whole, has a less than stellar reputation when it comes to associate treatment.

But my department has a good reputation in that regard. (We're the good sweatshop to work for.)

On the other hand, I've been to other BigLaw firms I would never work at regardless of the money. I refer to one firm as Azkaban Prison, because every time I go there for a closing, I find my will to live sucked out of me. I don't even work there and I hate it there. I think it is the place where fun goes to die.

There's some very nice, decent associates working there but I just find the place stultifying. So I don't want to paint BigLaw as universally terrible, but your point is well taken. I lateralled into BigLaw; I was not welcomed with open arms initially, and I was on Law Review, incidentally.

Your point, and your resentment, is well taken.

Posted by: David at March 17, 2005 12:08 PM

See, I knew we could work it out David! :)

Posted by: energy spatula at March 17, 2005 08:40 PM

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