Monday, September 10, 2018

Job-Shaming, Bullshit Jobs, and Lawyers

by Michael C. Dorf

Last week I learned a new term: "job-shaming" is the act of trying to make people feel bad because they work in jobs that are either generally considered somehow undesirable or they are less prestigious and/or lucrative than some job they previously held. Actor Geoffrey Owens, who at one time had a role on The Cosby Show, was seen working at a Trader Joe's in New Jersey. The Internet properly condemned those who job-shamed Owens. Then, Tyler Perry offered Owens an acting job, so the story had a happy ending -- except, of course, that if there's nothing wrong with working at Trader Joe's (and I want to be 100% clear that I agree there's nothing wrong with working at Trader Joe's), then the story had a happy ending, or at least a perfectly fine ending, even before Perry offered Owens an acting gig.

To recognize that no one should be ashamed of the work they do is not to say, however, that everyone finds their work equally satisfying. Some jobs do not pay enough for people to support themselves and their families. Some jobs are dangerous, unpleasant, and/or boring. Some people have what seem like desirable jobs that are ruined by abusive bosses. Etc.

Today I want to focus on another way in which a job can be less than fulfilling: If it is what anthropologist David Graeber calls a "bullshit job." I confess to not having yet read Graeber's book Bullshit Jobs, but I did hear him interviewed on the NPR podcast Hidden Brain. And while I found most of what Graeber said fascinating, I was alarmed by his description of many "corporate lawyers" as working bullshit jobs. My first thought was "well I'm a constitutional lawyer, not a corporate lawyer, so I'm okay," but then I realized that Graeber did not mean to single out lawyers who focus on transactional work as distinct from litigators. As I confirmed by looking in his book, he uses the term "corporate lawyers" to refer to lawyers who represent corporations, which includes most of my former students who have gone on to become litigators. And if my job consists of training people to hold bullshit jobs, then I suppose I have a meta-bullshit job.

In the balance of the essay, I'll explain why I think that's not true.
Graeber develops a typology of bullshit jobs, but his main category consists of jobs that are at best unnecessary and at worst counterproductive even accepting (or not challenging) the utility of the enterprise in which they occur.  Such jobs appear to exist due to some combination of status-consciousness and bureaucratization.

Let's begin with status-consciousness. Graeber gives the arresting example of "footman," a job that, I acknowledge, I had not previously contemplated. I just kind of took for granted that this was the sort of job that was common in medieval times but had become obsolete, like town cryer, court jester, or something. That's sort of true, but Graeber said that the job of a footman was to run ahead of a coach in which an important lord or lady was riding -- not so much to guard against attack (though that might have been its origin) as to signal the importance of the exalted passenger.

The bodyguards who run alongside of the limo carrying Kim Jong-un are literally reminiscent of footmen, but Graeber argues--and I agree with him--that some jobs with which we are familiar are also analogous. Suppose someone is appointed to some important-sounding position in an organization: Vice Provost for Development of Interdisciplinary Research at a large university, say. (To be clear, I made up that title, but anyone who has worked in a university or other large organization will have no difficulty coming up with real examples.)

To signal the importance of the position, it is useful to have an impressive-sounding title, but that's not enough. A truly important person must have a substantial staff, so the VPDIR will be given a couple of Associate Vice Provosts for Development of Interdisciplinary Research, and both the VPDIR and the two AVPDIRs will have their own assistants--whether or not they are needed. There may not be enough or anything for all of these people to do, so they may spend a substantial portion of their work days online shopping or the like. Or worse, they will invent work for themselves, which will often involve imposing demands on other people who might actually have something better to do. Accordingly, faculty across the university will need to interrupt the research they are doing to write semi-annual reports on the extent and quality of their interdisciplinary collaboration (using both quantitative and qualitative measures), possibly to be revised after the assistant to the AVPDIR concludes that a version of the report was filled out incorrectly. Again, anyone who has ever worked a white-collar or pink-collar job in a large organization--a university, a law firm, a hospital, even an ostensibly profit-making corporation--will be all too familiar with this phenomenon.

I am extremely sympathetic to Graeber's complaint. To my mind, however, it reflects a glass-half-empty perspective. Graeber views bureaucracy in the way that Franz Kafka did, seeing its all-too-obvious disadvantages but none of its upside. A fairer account would be found in the work of Max Weber. He understood that for all its flaws, bureaucracy has advantages of regularity and what we would now call solutions to principal-agent problems.

That said, I want to grant Graeber's point that bureaucracy generates genuine bullshit jobs. I want to turn now to what I think are a different category of jobs that Graeber conflates with bullshit jobs. As far as I can discern, Graeber thinks that what lawyers working for corporations do is bullshit, because it does not add social value.

Yet Graeber appears to have a naive understanding of the law. Let's begin with the assumption that law itself serves useful purposes, at least sometimes. Corporations are accountable to purchasers and users of their products through contract and tort law, to the government through tax law, to the public through environmental law, to shareholders through corporate law and securities law, etc. Many of the substantive rules may be sub-optimal, but without much of this law, corporations either could not function or would create much more social harm than they currently do. Now, a legal naif would say that the corporations should simply comply with the law, and of course they should, but a complex society with effective legal rules and standards will also have legal ambiguity. Self-interested actors will attempt to exploit that ambiguity for their own ends. In our system, lawyers look out for the various interests involved.

Graeber seems to think that such a job is a bullshit job because, as he says on the podcast, it only exists to combat the efforts of other lawyers doing the same sort of thing. The lawyers wouldn't need to be there doing their interfering if not for other lawyers for the other companies. However, I think it's misleading to classify the job of lawyer as similar to a footman or assistant to the AVPDIR (or the AVPDIR job itself) for a couple of reasons.

First, the assistant to the AVPDIR doesn't perform a useful function, even from the perspective of the enterprise in which the assistant to the AVPDIR works. A great many people do instrumentally useful jobs in the service of enterprises that are, seen in broader perspective, unnecessary or even socially harmful. Consider the job of Coca-Cola truck driver. Coca-Cola and other sugary drinks cause a great deal of harm in the form of health problems that afflict the people who drink them and health costs for the larger society. Seen in broad perspective, then, we might say that anybody whose job consists primarily in making it possible for people to consume sugary drinks has a bullshit job. But that's not a helpful way of understanding what's wrong with sugary drinks. The problem isn't remotely that there's somebody who delivers stuff; the problem is what that someone is delivering.

Second, the claim that lawyers' work only has value to a firm because lawyers for other firms or entities are working for the other side doesn't make the lawyers' work valueless to the firm. Consider the job of police officer. We would not need police if everyone simply avoided engaging in the sorts of crimes that the police try to deter (and detect for punishment when they don't). Does that make the job of police officer a bullshit job? Hardly. In considering whether a job is useful or bullshit, it makes perfect sense to take account of how the world actually works.

Now it might be objected that there's a disanalogy here. The criminals whose antisocial behavior police officers target are bad actors, whereas, according to Graeber, the lawyers for other entities whose acts necessitate the hiring of a firm's own lawyers are actually following the law. But that objection misses the mark.

In some circumstances, the law itself is the problem. Maybe it makes it too easy (or too difficult) to sue for some kind of wrong, leading to lawsuits (or motions to dismiss) that would be better not happening. The problem then is the substance of the law, not the fact that people are acting rationally in response to the suboptimal law. So one oughtn't focus on the jobs.

Of course, as I noted above, it's impossible to make the law perfect or perfectly clear. Even a very well-crafted law within an excellent legal system will leave opportunities for self-serving behavior. Protecting against the exploitation of those opportunities by others is no more a bullshit job than is being a police officer.

Nor is it even a bullshit job to be the one who exploits the opportunities. The work may be amoral or even immoral. Think about representing a patent troll bringing a technically non-frivolous suit with the goal of simply extracting money from an innovative company. Or taking advantage of generally sensible tax provisions to gain a deduction for an odious charity. Or simply representing a company that, in your judgment, does more harm than good. The work may well be odious, but it confuses the matter to call the job bullshit.

I also want to push back on Graeber's suggestion (in the podcast and I'm pretty sure in the book as well) that one can tell the relevant jobs are bullshit because the people in them say so. I think this is almost certainly right for the narrower class of what I would call genuine bullshit jobs--the receptionist who mostly sits doing nothing but also takes phone messages that would be better communicated by voicemail or email and directs people to offices that could easily be located by decent signage, but who sits at a big desk to impress people with how important the boss is.

But the claim that lawyers report that their own jobs are bullshit doesn't tell us very much. I believe that such lawyers are using "bullshit job" in the same unhelpful way that Graeber does when talking about lawyers or in some other way that does not focus on its lack of instrumental rationality. That's not to say that all or even most lawyers have satisfying jobs. My limited point here is that the problems with the jobs lawyers do--and there are some serious ones--are not akin to the problem of footmen.
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P.S. I wish a shanah tovah to those readers who, like me, are celebrating the arrival of 5779, not because we are optimists but because we are glad to be rid of 5778.

6 comments:

Greg said...

I object to the classification of patent troll here. A "technically non-frivolous" lawsuit should generally not be considered patent trolling. The objection to patent trolls is not just that they sue innovative companies, because if that was the only problem with them, then I would agree with the argument that they provide a way for legitimate patent holders to monetize their patents by selling them to a larger corporate buyer. The objection to patent trolls is that they are exploiting an understaffed patent office by almost exclusively using patents that are over-broad, obvious, or that had prior art. In such cases the lawsuit is technically frivolous (from a technical perspective) but perhaps non-frivolous from a monetary perspective.

Whether doing an otherwise legitimate job for a bad actor in a way that directly reduces social good qualifies as a BS job is of course harder to answer.

Michael C. Dorf said...

Greg: (1) The use of the patent example is not key to my main argument. The point I'm making is simply that sometimes the law provides opportunities for exploitation and that taking advantage of them can be problematic but doesn't make the job of doing so "bullshit."
(2) Even taking your objection on the merits, however, my use of the term "patent troll" is not idiosyncratic. Many people use the term to encompass entities that buy up legitimate patents -- ones that even a properly staffed PTO would recognize as valid -- and then simply sue companies for infringement after the fact rather than either practicing the patent or proactively trying to license it. For an instructive example, consider the following article by two of my colleagues criticizing this behavior as a kind of trolling: https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2171&context=facpub

Joe said...

Congrats to Eric Segall for truly arriving -- a clip with him in it was on John Oliver's show last night. He has a NYT op-ed, but that seems to be the "thing" for liberal leaning bloggers these days.

Greg said...

Thanks Prof. Dorf, and you are correct on both points.

I agree, that patent troll point was not key to your overall argument.

Being involved in the patent process somewhat myself, I get kind of sensitive to people calling patent troll as a way to attack the entire patent system.

As to your second point, the attached article was enlightening to more general use of the term. I've always felt that the non-obviousness standard is inadequately applied, with evidence being the amount of independent invention that occurs. This area of independent invention is exactly where Liivak and Penalver focus their proposed remedies. I probably incorrectly attribute the independent invention problem to the understaffed PTO when really the problem is more systemic.

Edwin Hurwitz said...

"Corporations are accountable to purchasers and users of their products through contract and tort law..."

Well, that might be true in theory, but in practice, it's pretty well documented that consumers are facing ever increasing difficulty in holding corporations responsible for their actions, except in fairly egregious cases that truly outrage the public and gain attention. Adhesion contracts, arbitration clauses, the hobbling of class action suits, among other developments, largely because corporations are represented in government far more effectively than consumers, have resulted in a situation where the corporation calls the tune and we all have to dance. Often it's just not worth the trouble or expense, if a remedy is even available. Corporate lawyers clearly are not mere footmen. They have been working diligently and creatively.

darrowret said...

It seems to me that Graeber has written a bullshit book--one in which the writer pontificates on subjects in which he or she has no direct experience and has done inadequate research if any. There are bullshit jobs within the legal profession as there are in other fields, but to categorize all lawyers, or all "corporate lawyers," in that fashion is simple-minded nonsense.