September 06, 2006

Keeping Up with the Curve

by PG

Two New York Times articles, one about Supreme Court clerks and the other about law firm salaries:

The February article on one of Alito's clerks somehow escaped my attention, perhaps because the bulk of it isn't very interesting. There is one bit at the end that raised a brow:

Justice Alito, whose own paper trail was substantial, is willing to hire clerks who come with their own documentary record.
Other justices have been more wary. In 1966, for instance, Justice William J. Brennan Jr. withdrew an offer to a clerk, Michael E. Tigar, after pressure from conservative groups who took issue with Mr. Tigar's liberal political views.
A little Googling reveals that, at least according to Tigar:
In 1966, undersigned counsel met with Justice William J. Brennan, Jr., in the Justice’s chambers. The Justice had selected me as his law clerk, but some controversy had arisen. The Justice asked whether it was true that I had attended a Communist training camp in New Jersey. I replied that I had not, and indeed had never been in New Jersey. Much later, it turned out that the FBI had been feeding the Justice alleged “intelligence” information about me. This information was false. I lost my job. Many years later, the Justice apologized. Later, in a Freedom of Information Act request, I received military intelligence information that had not been declassified until 1978. Here are two quotes from this “classified” material, deemed vital to the national security back in 1966 and 1969. The intelligence report, from the Sixth Army HQ, was titled “Oliver!” and read in part as follows:

"Oliver Twist won the awed admiration of his fellow orphans when he had the supreme audacity to take his empty porridge bowl back to ask for more. Oliver, apparently, has his counterpart among our young radicals. In 1966, Michael TIGAR as a candidate for the post of law clerk to US Supreme Court Justice William J. Brennan, Jr. The appointment fell through when Brennan was apprised of TIGAR’s left-wing background." The report then cites an earlier dispatch, which I never received, titled “Tigar in the Courts -- Almost” and dated July 1966. The 1969 report concluded: "TIGAR may still be as radical as he ever was, but even if his political position has changed, he may find that his widely publicized left-wing activities as a young man will plague him far into the future. This is a bitter lesson many of today’s young radicals may have to learn." In the intervening years, I have litigated many cases involving “intelligence” information, and time and again the intelligence agencies have hidden falsehood behind the veil of secrecy. The stakes in this criminal case are too high to abandon any part of the judicial function to executive discretion.
Tigar has managed to have a high-profile career even without SCOTUS on his resume, and having gone the public interest and academic route, wouldn't have been eligible for a fat law firm clerkship bonus anyway.

About nine months after the rest of the country, the New York Times discovered that first-year associate salaries have gone up, though the stale story was packaged as news by timing the article to the September influx of first-year associates. And though a Cravath hiring partner probably knows more about the economics of this market than I, I still wonder at the statement that "'law firms are getting bigger at a faster rate than law schools,' creating a growing demand for lawyers and commensurate salary increases." There are huge numbers of people graduating from law schools every year; what I suspect the partner really meant was "law firms are getting bigger at a faster rate than top tier law schools." Based largely on an LSAT score and undergraduate grades -- the determinants of law school admission -- the firms mentioned in the article go deep into what are considered elite law schools, scooping up even those with mediocre grades, and then draw more and more shallowly until they reach the point of refusing to consider some candidates at all.

Since I incline to Armen's view that students' manifested abilities probably don't differ all that much across school rankings, a more sensible response to an greater need for associates would be not to increase salaries (if you're of a mind to go BigLaw in the first place, I doubt that the $10k or $20k increase is going to be what kept you from Legal Aid) but simply to hire a greater number of associates, with more willingness to accept graduates from schools that teach law perfectly well without making the first page of the US News report. After all, if the top tier law schools start having larger classes, they're getting the additional students from Tier 2 schools. Instead of inflicting even bigger class sizes and student debt on future associates, Cravath should start interviewing at Rutgers and the University of Houston law schools.

Of course, this won't work because law firms are convinced that their clients believe they're paying, not for more professional development -- the conclusion

Another concern is whether firms will reduce the time their associates are allowed to spend on professional development during the first year and increase their billable hours to compensate for the higher starting salaries. Ms. Berney of Proskauer and Ms. Korby said that was not the case at their firms. Ms. Korby even said the increases had an opposite effect.
“When the pay started escalating so rapidly in ways that are shocking to those who have been in the compensation area, we decided we had to put additional time and money into training,’’ she said. “Our clients are looking at those coming through the door being paid, well, startling amounts. And they expect them to be the best they can be.”
didn't leave an impression of a serious analysis -- but rather for expensive diplomas. If a firm isn't staffed with lawyers who graduated from the most prestigious law schools, it is assumed that clients will balk at paying for what is assumed to be subpar legal talent.

I'd have to know a lot more than I do about the difference between responsibilities given to staff attorneys versus associates, and how well the former actually could perform the same work as the latter, but my guess is that clients are buying results more than process, and hires from lower-ranked schools actually could do pretty much everything that achieves those results. Most legal practice seems to demand persistence rather than vast ingenuity, except perhaps some areas such as appellate and tax practice, which require truly twisted minds.

September 6, 2006 07:33 PM | TrackBack
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