The legal precariat and the politics of law teaching

An LGM reader writes:

I just graduated from law school this past spring, and passed the bar.

I applied for a job and completed a phone interview. The actual “interview” portion was very short, maybe 5 minutes. The attorney then asked me, without offering me a job or at all discussing compensation, to write a motion (a real motion, for a real case that she sent me materials on) as a sort of “let’s see what you can do” type of thing. So now, I will write a motion for free, for a job I may not even get. I may be too cynical, but to me this does not pass the smell test.

A fair response would be to ask if I had spoken to my career services office. I have, and they did not express much concern. But I suspect that they are more concerned about their percentage of graduates with (legal?) jobs 9 months out. I was wondering if you had heard of legal job applicants being strung along and doing unpaid work in similar circumstances for the promise of a job that may not/does not ever materialize.

This kind of thing is actually increasingly common: there is now even a fancy title — the “gratuitous service appointment” — for spending a year or more working full-time as a government lawyer without getting paid. (If you’re wondering how this is legal, the Fair Labor Standards Act is riddled with exceptions for, among other things, members of “learned professions.”)

I’ve published an essay in Radical Teacher on the political implications for law teachers of dealing with the reality of the legal precariat:

The contemporary employment market for new law graduates has taken on a distinctly neo-feudal flavor, in which a willingness to enter into one or more unpaid apprenticeships is becoming a pre-condition for obtaining a paying job (On the other hand, medieval guilds generally required masters to house and feed their apprentices; new law graduates are not so lucky)
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Other members of the legal precariat work for pay, but under conditions of employment typical of those endured by casual labor, even when that labor wears a white collar. These include wages that are so low relative to working hours that some graduates find themselves making less than the minimum wage (minimum wage restrictions do not apply to salaried members of professions), extreme employment instability, no fringe benefits, and the sense of powerlessness that comes from knowing that one can be replaced at any moment by someone equally qualified to do one’s job, and even more desperate to collect its meager compensation.

It should be unnecessary to point out that such a system both reinforces and strengthens class stratification. Children of privilege, who can rely on their families to pay the rent and the grocery bills during an awkward year or two while they work for little or literally no pay, in order to get their feet inside the proverbial doors, will end up the real jobs that eventually appear behind those doors, while many less privileged graduates will have to abandon their dreams of a legal career altogether. . .

Given these grim facts, law teachers now face a difficult conundrum. In a world in which university administrators increasingly speak in a manner that is hard to distinguish from the professional patois of business consultants – in which educational institutions are treated as “brands” to be “synergized” in the appropriate “target markets” and so forth – prudent law faculty will be tempted to suppress any impulse to engage in critical pedagogy regarding the nascent professional and personal crisis faced by so many of their students. They will instead keep, as it were, pushing the product.

Yet such prudence, while no doubt conducive to both professional advancement and personal happiness, requires a certain mortification of both the intellect and the capacity for moral action (Here we can recall Flaubert’s dictum that “to be stupid, selfish, and have good health are three requirements for happiness, though if stupidity is lacking, all is lost.”).

In any case, the law school reform movement has acquired sufficient notoriety that it is becoming increasingly difficult for individual law teachers and law schools as institutions to employ silence and denial as either an unconscious psychological defense mechanism or a conscious business strategy. Indeed, in the contemporary American law school, the employment and debt crisis faced by our students is always present in every encounter with them, if only implicitly, and it is now an abrogation of professional responsibility not to address it at appropriate times.