Big Law Associates Need a Nap
Why do we tell high schoolers to get a good night’s sleep before taking their SATs? Because we know instinctively what cognitive scientists tell us repeatedly: The brain can’t function at a high level without rest. Some researchers think the upper bound may be around six hours.
Yet we’re working harder than ever. In a recent blog post for the Harvard Business Review, INSEAD’s Gianpiero Petriglieri reminds us of the punishing harm we do to our bodies. He cites data suggesting that “working long hours damages our health, productivity, and families.”
Which brings us to lawyers.
Lawyers pretty much run the country. Maybe the reason they run the place so badly is that they’re always exhausted.
Some aspect of legal culture encourages overwork -- an aspect most prevalent in the large corporate law firms, known collectively as Big Law. Survey after survey tells us that Big Law associates are unhappy. By some measures, they collectively constitute the least happy workers in the U.S.
On the face of it, this might seem absurd. Associates in large corporate firms are compensated handsomely, starting at about $160,000 plus a bonus, with a rapidly climbing scale. Although their chances of winning the partnership tournament are quite small, their jobs reward them with considerable prestige and a broad array of future prospects. A 2009 study by the American Bar Foundation found that attorneys in big corporate firms, those with more than 250 lawyers, scored by far the highest of any lawyers in “satisfaction with power track” -- roughly, a combination of compensation, opportunities for advancement, and recognition.
So they ought to be happy.
Yet as the law professor Benjamin H. Barton points out in the new book I discussed recently, “Only 44 percent of Big Law lawyers report satisfaction with their career, while 68 percent of public sector lawyers do.” What explains the gap?
The obvious explanation is that they’re not paid enough -- in other words, whatever unhappiness they suffer is not compensated by the difference in income between Big Law associates and their colleagues who practice law elsewhere. Yet, since the dog days of the 1970s, when new associates earned on average $14,782 -- a little more than $64,000 in 2014 dollars -- their compensation has skyrocketed. True, in recent years the “going rate” has scarcely budged, but fresh law school graduates still flock to the corporate firms.
This leads us to the most frequently proposed explanation for Big Law unhappiness: the conditions of employment.
Let’s start with the work itself. It’s possible that much of the work may actually be boring. No lesser an oracle than the U.S. Court of Appeals for the 2nd Circuit decreed this summer that reviewing documents according to rigorous standards provided by the employer -- a huge chunk of the day-to-day activity of junior associates -- involves no legal judgment and therefore is not the practice of law. Yet the 2009 American Bar Foundation study found that lawyers in the large corporate firms, when asked to rate their satisfaction with the substance of their work, were slightly above the median for the profession as a whole.
So it must be the hours.
The American Bar Foundation study also found that while the median lawyer worked 50 hours a week, 41 percent of those in large law firms worked 60 hours or more. The comparable figures for public interest lawyers and government lawyers were 15 percent and 12 percent respectively. For public defenders, the figure was under 8 percent.
Why do Big Law associates work so many hours? Because the economic organization of the large corporate firm requires them to bill 2,000 to 2,200 hours a year, and not every hour worked is an hour that can be billed. Those billed hours help pay the associate’s salary and overhead (total costs for each associate are usually estimated at twice her salary). The rest of the effort goes into profit for the partners.
There’s nothing inherently wrong with profit, but the structure of the law firm has led some theorists to propose that Big Law associates are exploited in the Marxian sense, because the structure of the firm gives the capitalist (the partner) every incentive “to intensify and lengthen the associate’s work day, and put more competitive stress on the associate” -- and gives the associate every incentive to comply with the partner’s demands. But the philosopher Allen Wood has argued (I think correctly) that we should reserve the moral opprobrium of “exploited” labor for situations in which the exploiter plays on “some weakness or vulnerability” in the person being exploited.
Is there a vulnerability here? I’m going to say yes.
In a recent essay in the New Yorker, the law professor Tim Wu contends that the problem besets all high-income professions: “The top twenty per cent of earners were twice as likely to work more than fifty hours a week than the bottom twenty per cent, a reversal of historic conditions.” Hard work, Wu argues, is no longer a matter of efficiency or even profit. It’s a matter of culture. It is learned behavior, particular in Big Law: “A typical analysis blames greedy partners for crazy hours, but the irony is that the people at the top are often as unhappy and overworked as those at the bottom: it is a system that serves almost no one.”
He suggests that the source of the culture is a mystery. I’m not so sure. Lawyers who wind up in Big Law jobs were once high school students pressed by parents and teachers alike to study hard and achieve, lest they be left behind. They’ve inculcated a work ethic that would have astonished Weber. Hard work isn’t a means to an end, it’s a signal of one’s membership in that elite club of ... well, of those who work hard.
There’s no brass ring on this merry-go-round, but Big Law associates will go on trying to grasp it anyway.
The view that the structure of the law firm should be understood as a tournament has been the subject of frequent dissent. For a defense (and slightly revised version) of the original theory, see here.
At the start of the 20th century, according to Barton’s book, associates at Cravath, Swaine & Moore -- then as now among the highest paying firms -- earned the princely sum of $360 per year (a smidgen over $10,000 in today’s dollars). As the 1960s, partners at the top firms were still actually meeting with their competitors to settle on a “going rate.”
The case involved whether lawyers are eligible for overtime, but Big Law isn’t worried. The plaintiff was a contract lawyer paid $25 an hour to review documents, not an associate, whose salary would have entitled the firm to an exemption from federal minimum wage and maximum hour laws.
The survey drew no distinction as to years of experience. I would suspect -- this is of course anecdotal -- that senior Big Law lawyers ranked their satisfaction with the substance of the work well above the median, and junior Big Law lawyers well below.
I take it for granted that the legal scholar David Luban, from whom this quotation is taken, is speaking with tongue at least partly in cheek.
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