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Thursday, September 25, 2014

How to Save the World Without Being Happy or Virtuous?

It was not surprising that an op-ed in the Harvard Law Record recommending that fledgling graduates of schools like Harvard "save the world by working in biglaw" would provoke some attention and reactions. Paul Caron has links to that op-ed and some responses that ran in the Crimson. At Above the Law, the more or less inimitable Elie Mystal has a forceful if not especially cogent response as well. I am somewhat more sympathetic to the initial piece, although that does not constitute a complete endorsement. 

Mystal's response is somewhat illustrative of what I think is the rather confused reaction that met the piece. That piece argued--without factoring in whatever social utility is provided directly by working in a big law firm itself--that working in BigLaw is the "greatest utility maximizing option" these students have, because they could simply donate 25 percent of their income to worthy causes, and that the good done by this would outweigh the good done by working directly and less remuneratively in lower-paying public service jobs.

Mystal made two arguments. First, and quite rightly, he pointed out that is is unlikely in the extreme that "any Biglaw associate, anywhere, who is going to give away 25% of their post-tax salary." True enough! But he makes his first error here, writing style aside. The question posed by the op-ed writer is not whether current BigLaw types would donate a quarter of their income to worthy causes; it is whether the kinds of people who normally work in public interest law would donate a quarter of their suddenly vastly expanded salary to such causes. There are perfectly good reasons to think that this too is unlikely. Just because you want to do public interest work and are sufficiently dedicated to doing so to take a lower-paying job, that doesn't mean you are going to give away a quarter of a large salary if you actually get that salary. I assume at least some of those people would, naturally enough, buy condos, pay down their debt faster, take vacations and/or gather the beginnings of a nice wine cellar, lease high-end luxury hybrid SUVs, and so on. Nevertheless, one would think on Mystal's logic, or that offered by other critics of the op-ed, that if the kinds of people who do public interest law took BigLaw jobs for the express purpose of dedicating more of their income to charitable giving, those people would be more likely to do so.

Ah, but would they be happy? Would they be fulfilled? Would they be decent people? That's the second point of Mystal's rebuttal, more or less, and it is a theme that runs through the Law Record rebuttals as well. Thus, one writer acknowledges, "I love my work and being engaged with causes I care about makes me happier. This does not reduce or demean the impact of the work I am involved in. For those who have the all the choices of employment at their fingertips, we should all graduate into employments we love. With all the choices in the world, I also hope we’ll choose well – taking seriously the power society has handed us because of our degrees and profession." And Mystal, presumably having done some research or reporting on this question, talks a bunch about how "people who actually care about the public interest...think." One friend made what I thought was a better, more subtle version of this argument, suggesting that it matters that people do intrinsically virtuous things, regardless of the net social benefit to others.

My reading of the initial op-ed is that its basic answer to these lawyers is, "But why should I care about you?"...

... The writer was making a strictly utilitarian argument, with a focus on maximizing overall social utility. More specifically, I think, his implicit focus was on maximizing the well-being of the poorest and most suffering among us, since he did not bother to account at all for any possible utility increases stemming from working for a corporate law firm itself. He was not arguing that the would-be public interest lawyers would be happier or more fulfilled or more decent people if they took his recommendation. And, really, under that set of assumptions why should he, or we, care that much about that? If we're erecting a utilitarian argument aimed at increasing the well-being of the least among us, the fulfillment and virtue of elite law school graduates should be, with one or two caveats, irrelevant. What we want to know is whether more people in need will do better, not how the people who already have those opportunities will feel about themselves.

Of course, most of us are not utilitarians. Mystal's current job certainly indicates he is not. So does mine. I once heard a law professor say, fairly earnestly, that they wrote legal scholarship "to change the world." That seems unlikely, and from a utilitarian perspective even more doubtful; probably the welfare of others would have seen a net improvement if this scholar--whose work is excellent and has my full respect--had quit the legal profession altogether and become a social worker. I assume that person, like most of us--like me--writes because writing brings him or her a great deal of personal satisfaction, and will stick with it even if it becomes clear that his or her suggestions for legal reform will bear no fruit at all. I assume personal satisfaction is one reason that graduates with substantial opportunities (a limited set of individuals, to be sure, but the discussion took place in the Harvard Law Record) take jobs in big law firms. And, of course, I assume people take public interest jobs when and because it will be most satisfying to them personally.* 

Without rendering judgment on whether any of this is right or wrong from an absolute moral perspective, it is certainly entirely natural. But it is worth emphasizing again that these factors are just not things the initial author cared about. Unlike Mystal and most of the other people who responded, the only thing the author cared about was easing the suffering of others. If that's our only concern, it's perfectly reasonable to ask whether we--or those people who purport to care primarily or exclusively about alleviating misery and helping others--would achieve better results by giving large amounts of money to others than by taking fulfilling, satisfying work in that area.

Whether that scheme would work is a different question, although it's a perfectly reasonable general question to raise for those contemplating future jobs. The personal happiness and satisfaction of these elite law graduates should not matter much to those of us who truly care about the poor and suffering, to be sure; but we would have to calculate how likely it would be that they would stay in those jobs and/or continue donating if they were sufficiently unhappy in their work. But that's a very different kind of calculation than asking about satisfaction, or what people who care about the public interest think about the world, for its own sake. 

Incidentally, while I ultimately am not convinced by the initial op-ed writer's "proposal" (which was really nothing of the sort--it was simply a suggestion that those privileged persons thinking about their future work take a strictly utilitarian approach to that question), I do think that big law firms should get almost entirely out of the business of doing pro bono work directly, with a few exceptions in areas where their existing skill sets would actually render them highly qualified to do that work, and instead mostly pay other, more qualified and dedicated lawyers to do their pro bono work for them. It's true that it won't help the happiness, job satisfaction, or cognitive dissonance reduction of the people who work at those firms. I just don't see why we should care about that all that much compared to doing good for others.

* A side-note: One of the response writers in the Law Record writes: "Even where my work gives me meaning, the emotions I feel while engaging with the world are far from the 'warm and fuzzies' the author assumes adequately compensate me (and equally qualified, intelligent, hardworking classmates) for my work. In fact, in my opinion, when you work with marginalized communities, you are reminded every day how unjust and unfair and disempowering our system is. This does not make me feel warm and fuzzy, but rather pretty angry and upset." This is an interesting addendum. But it does not take into account the degree to which many or most of us--all of us, if Facebook is any indication--derive substantial personal satisfaction from being angry and upset. I assume that for many young lawyers, being angry and upset at injustice is in fact one of the positive factors to be weighed in their individual utility calculus.

Posted by Paul Horwitz on September 25, 2014 at 10:10 AM in Paul Horwitz | Permalink


I'm a bit late to the party here, buy I wanted to provide an anecdotal respone to the assumption that the original proposal is unrealistic: I work for a Washington DC litigation firm and donate 75% of my pre-tax salary to effective charitable causes, on exactly the rationale of the HLS student's post. If someone could convincingly show me that I could do more good (measured by net welfare) doing otherwise, I'd love to see the analysis.

Posted by: Michael Page | May 28, 2015 8:51:46 PM

I'll be the one to point out that the origins of Harvard Law School's Student Funded Fellowships Program was that Big Law summer associates and then full-time associates tithe themselves to support public interest work. Indeed, I seem to recall that some public interest alumni tithed themselves for this program as well.

In short, something like this has been tried. Now the real work would be in tracking the old data from the Harvard Law School Student Funded Fellowships entity, scrubbing identifying information from the data set, and thinking about the various ways altruism and self-satisfaction interact.

Sam, Dorothy Day knew all too well that she was not easy to live with and a tempting target of admiration at a distance. My favorite Dorothy Day quote: "Don't call me a saint. You won't get rid of me that easily."

Posted by: Ann Marie Marciarille | Sep 26, 2014 5:36:13 PM

Had to look that one up, Luke 14:26. And here I was, thinking that I had made progress by *no longer* hating my father.

Posted by: Sam | Sep 25, 2014 12:46:27 PM

Sam, I certainly agree with you on the first point! And, I think, on the final point. As I said, I'm not a utilitarian, and if I were I doubt I'd be a very good one. I still find these kinds of questions useful, however, in pressing me to second-guess my choices, just as I find Luke 14:26 a powerful statement about Christianity and the imitation of Christ and don't think we should water it down, even if it is impossible for most of us to live up to. (Granted that I am not a Christian, but insofar as I find the Gospels inspiring I still find this a powerful and troubling verse.)

Posted by: Paul Horwitz | Sep 25, 2014 12:15:02 PM

I think that you've wrung all the philosophy one could wring, out of what seems to me to be classic HLS student trolling.

(It's conceivable, I know, that the author of the original piece actually plans to donate 1/4 of his biglaw salary - but I doubt it, and so I don't know why you write confidently about what the author "cares" about. My guess is that he "cares" about poking the liberals. If his only "care" was for the utility of the starving babies overseas, he would do more good by writing an article urging all his classmates to donate more more more.)

Absolutely true that no one is a pure utilitarian with equal regard for others' happiness as for his own. But this piece is the classic sort of trolling that a "liberal" tends to get from those who are less so: "If you really cared about animals like you say you do, you'd be a vegan and not just a vegetarian." "if you really thought other people's happiness was just as important as yours, you'd give away all your money down to the world median standard of living." All true, in a sense. (And Dorothy Day, they say, was not a great person to have in your family.) Also true that there are many many ways of being, on balance, a good person. We're all imperfect, we're all selfish. Some more so than others.

Posted by: Sam | Sep 25, 2014 12:05:52 PM

This reminds me of a debate my wife and I had about whether she should pull her savings from mutual funds that invested in "green" ventures but had a lower rate of return and invest them in "regular" mutual funds that had a higher rate of return. It seemed that she could donate the delta between the rates of return on the two funds (to the types of projects she was trying to support in the first place) and still save a bit more for her own retirement than when she exclusively used the "green' mutual funds.

Posted by: Matthew Bruckner | Sep 25, 2014 11:20:38 AM

You get within shouting distance of what I think was the biggest oversight in the initial op-ed, but I think you have an implicit assumption that is the opposite of my prior. You note that the author "did not bother to account at all for any possible utility increases stemming from working for a corporate law firm itself." But this overlooks the possibility that the work done by big law firms may actually be a net negative for overall social utility.

Posted by: Griff | Sep 25, 2014 11:18:16 AM

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