Bainbridge on Chemerinsky on the Situation of Practicing Corporate Law
posted by Dave Hoffman
Steve Bainbridge, commenting on Erwin Chemerinsky A law school for the 21st century, objects to Chemerinsky’s equation of public interest with public interest lawyering (usually, litigation-focused poverty law). Bainbridge argues:
The trouble with the foregoing, of course, is that it equates the public interest with so-called public interest law. You want to help make society a better place? You want to eliminate poverty? Become a corporate lawyer. Help businesses grow, so that they can create jobs and provide goods and services that make people’s lives better.
A corporate lawyer not only serves the public interest by helping to create new wealth, we also help defend an important social institution from statism. . . . It’s time corporate lawyers stopped letting people like Chemerinsky make us feel guilty about our career choices.
There is much here to agree with; in particular the idea that corporate (transactional) attorneys can serve society, and expand the pie, and push back against creeping statism. There’s some to disagree with too: I am probably more likely than Bainbridge to believe that concentrations of wealth pose problems for social stability, and thus more likely to think that distributional inequality is a problem the state has business solving. Thus, good corporate lawyering can easily result in social disharmony.
But no matter. The big idea to agree with here is that it is a terrible fact that law deans, and law professors, continually push out the message that corporate lawyering is a less moral & desirable career path than “public interest” lawyering. The reason isn’t that it makes students feel guilty (though it does) but that those students, when in practice, are probably less likely to be ethical because they’ve been told they’ve “sold out.”
I noticed this last semester in my corporations class. When asked whether they would draft ethically troublesome documents, most students professed to say that they would. Why? Because by going into big firm practice in the first instance, they’d have already decided to be ethically gray. When deans (and well-meaning liberal professors) reinforce the idea that corporate practice is “corrupting and essentially random and beyond your control, and there’s not a whole lot you can do about it”, students are more likely to let the situation corrupt them. If instead academics were to celebrate the pro-social, professional, aspects of corporate practice, perhaps we’d have less situationally-motivated fraud.