The Ethics of Legal Hiring
[Guest post by DRJ]
In law firm and law school hiring, is it fair for a conservative hiring committee member to ban a liberal applicant if he knows liberal hiring committee members have banned conservative applicants?
Prof. Bainbridge says “No” for several good reasons.
I say “Yes” … and only my ladylike upbringing keeps me from answering “Hell, Yes.” While conservatives stand on principle, liberals will fill the faculty’s endowed chairs and law firm’s corner offices.
— DRJ
Maybe it would be better if lawyers endeavored to look upon the world as neutrally and as apolitically as possible. You know… like journalists.
happyfeet (2c63dd) — 12/7/2009 @ 10:28 pmFor a law firm, I agree with DRJ. Law firms are private entities and should be able to discriminate as they see fit. I worked in a very politically liberal law firm and when they discovered I leaned to the right, I was treated differently for it. They weren’t mean to me when it came to work, but lunches got so uncomfortable to the point where I stopped lunching with everyone.
wherestherum (d413fd) — 12/7/2009 @ 10:32 pmHeh, agreed. In game theory, tit-for-tat with forgiveness is the best strategy, and no one should be idiotic enough to try otherwise.
Gregory (f7735e) — 12/7/2009 @ 11:20 pmGregory – the problem with that is that the people you are hiring (or not hiring) are new players and so therefore there’s no tit for you to respond to with tat.
Unless you want to say that treating one member of group [x] poorly is ok because some other member of group [x] has treated members of your group poorly, but that seems wrong to me.
Which, I guess, is to say I disagree with DRJ’s point: it’s just as wrong for conservatives to refuse to hire liberals as it is for liberals to refuse to hire conservatives. But then, in general, I think that hiring decisions shouldn’t take politics into account (except in the very small number of situations where the politics are directly relevant to job capacity), just as they shouldn’t take religion into account, or ethnicity, or any of a multitude of other things that really aren’t relevant.
aphrael (9e8ccd) — 12/8/2009 @ 1:04 amIt depends on whether they believe banning the applicant because of political beliefs is wrong. If they believe that banning an applicant because of political beliefs is wrong, then it is just as wrong for a conservative as it is for a liberal. Just because liberals insist on situational ethics doesn’t mean we have to. As entertaining as it would be to watch a liberal try to explain why it is OK for them to discriminate but not for a conservative to do so, as my mother taught me “two wrongs don’t make a right.”
Although 3 lefts do.
Dan (6a7ee7) — 12/8/2009 @ 1:07 amaphrael: hey, welcome back! Or well, it’s been a while since I saw you.
True, but I’m not trying to punish the ‘new players’. I’m trying to punish the existing player – the potential hires in this case are just the payoffs by game theory.
Not that I’m saying that they’re not fellow human beings and stuff, mind you, just that in the context of game theory that’s the role they play. That is the *only* context I’m speaking about here.
The strategy still works, nevertheless. If you discounted the payoffs-are-human factor.
Gregory (f7735e) — 12/8/2009 @ 2:14 amFor a dozen years (1981-1993), I was heavily involved in recruiting at three different “BigLaw” firms, and I was a partner at two of them.
Each of those firms contained a broad mix of liberals and conservatives, just like each of them contained a broad mix of blood types and hair colors. None of them considered politics to be relevant to our endeavors. Two of the firms probably tended slightly toward a conservative bent, if one were to try to determine an “average” from amongst their partners; the other tended liberal; but at all three, there were prominent and powerful partners whose personal politics were quite liberal and others whose personal politics were quite conservative. I never felt that I was either professionally advantaged or disadvantaged at any of these three firms.
With respect to recruiting, I can’t recall a single occasion in which anyone involved in the process ever suggested, much less argued, that a candidate’s personal politics ought to be considered.
“Like attracts like,” says the old proverb, and it’s entirely likely that there were subjective factors which attracted some students to apply to the firms I was at, and which caused those firms to prefer some students over others. I concede that there are very subjective elements in the hiring process, and that they may be quite important. But in my personal experience at those three firms, politics wasn’t an important element — not in terms of who got job offers, or who got work assignments.
The jerk who wrote to the NYT Ethicist for “guidance” would have been considered an unfit recruiter at any of the three BigLaw firms where I worked.
I haven’t been part of the BigLaw environment for a long time, but I would be very, very surprised if it’s changed to the point that political affiliation has become important in very many firms’ hiring process.
Beldar (8179a0) — 12/8/2009 @ 3:03 amYikes — I mangled a sentence above, which should read: “I never felt that I was either professionally advantaged or disadvantaged at any of these three firms on account of my own markedly conservative politics.”
Beldar (8179a0) — 12/8/2009 @ 3:05 amNo, of course not! Since blacks tend to be overwhelmingly Democratic, and women more liberal than men, for conservative law firms to so discriminate against liberal applicants would have a disparate, negative effect on women and minorities.
Therefore, I denounce you.
The snarky Dana (3e4784) — 12/8/2009 @ 5:52 amThat’s pretty much the essence of Affirmative Action.
Some chump (8087d5) — 12/8/2009 @ 5:57 amPersonally, I have observed that if you are a Liberal Legal student, you have a warped view of law and society, so much so, I wouldn’t hire them for anything, not even cleaning my felines’ toilet facilities.
PCD (1d8b6d) — 12/8/2009 @ 6:08 am“Law firms are private entities and should be able to discriminate as they see fit. ”
Except when it is illegal.
[note: fished from spam filter. –Stashiu]
imdw (6dcec0) — 12/8/2009 @ 7:31 amPCD: the world has infinite variety. I’ve run into quite a few liberals (in the political sense) who are highly uncomfortable with the way the fourteenth amendment is used by the courts.
aphrael (73ebe9) — 12/8/2009 @ 8:57 amJust bill your hours, you’ll be fine.
nk (df76d4) — 12/8/2009 @ 9:18 amIn private practice, most of the time the bottom line in hiring is, well, the bottom line. I would guess that most law firms would hire anyone who they believe is capable of generating significant income. Since the law schools have no such profit motive, they can afford to hire or refuse to hire based on political belief. I don’t like discrimination in any form, but how else to obtain political diversity in law schools unless you follow DRJ’s school of thought?
Rochf (ae9c58) — 12/8/2009 @ 9:26 amIn a completely free market, firms that employed such discriminatory practices would find themselves at a disadvantage to firms not exercising similar measures. In time, firms tending to one ideology will not be as successful.
I would hope all law firms and schools would embrace these and even stricter guidelines in their hiring practices (no pun intended). The sooner law schools and firms go out of business, the sooner we’ll get back to a freer society. 🙂
Corwin (ea9428) — 12/8/2009 @ 10:11 am#12
But see, I don’t believe it should be illegal to discriminate on whatever basis a private entity wants to discriminate on. That should be up to the business. And it’s not illegal to discriminate on the basis of political affiliation as far as I’m aware–only gender, race, religion and sexual orientation. Also, when hiring, companies are being discriminatory. They want the best candidate, not the worst, so they’re obviously going to screen out the unqualified. Is that not discriminatory?
wherestherum (d413fd) — 12/8/2009 @ 10:32 amAnd it’s not illegal to discriminate on the basis of political affiliation as far as I’m aware–only gender, race, religion and sexual orientation
It’s illegal for a government agency hiring for a civil service job to do so.
I don’t believe it should be illegal to discriminate on whatever basis a private entity wants to discriminate on
Something can be legal and yet still be wrong.
aphrael (e0cdc9) — 12/8/2009 @ 11:08 amaphrael, You couldn’t prove it to me. Liberal Democrat Lawyer, Iowa Rep. Pat Murphy, Iowa House Speaker proves you wrong. He’ll break any law made by God or man to get what he wants, including trying to legislate against one particular hospital who had the termidity not to roll over for Mrs. Murphy’s union to plunder and ruin.
PCD (1d8b6d) — 12/8/2009 @ 11:18 amI heard that a law school could deny a diploma based on ethical breaches of character. I have yet to see it with lawyers like Bill and Hillary Clinton, Rahm Emanuel, Dan Rostenkowski, Nancy Pelosi, Dianne Feinstein, Harry Reid,… all having graduated with their warped ethics and world view.
PCD (1d8b6d) — 12/8/2009 @ 11:21 amthe lieberals in my recently completed legal class could not detach their personal
redc1c4 (fb8750) — 12/8/2009 @ 12:41 pmdelusionsbeliefs long enough to deal with a hypothetical situation in class, so i doubt they would be of much use in any RL life situation at a firm where their beliefs were not being championed… i say blackball the bastages.Something can be legal and yet still be wrong.
But so what? (You could argue the same about, say, abortion.) Private companies should have that freedom. Their business might suffer for their discriminatory practices, but that’s the beautiful thing about the free market. If people don’t like how your business is run, they are free to go somewhere else. Restrictions should be on government, not private enterprise.
wherestherum (d413fd) — 12/8/2009 @ 3:12 pm“But see, I don’t believe it should be illegal to discriminate on whatever basis a private entity wants to discriminate on.”
In the other thread we were discussion people who filibustered the civil rights act…
“lso, when hiring, companies are being discriminatory. They want the best candidate, not the worst, so they’re obviously going to screen out the unqualified. Is that not discriminatory?”
They’re going to screen period — they can’t hire all applicants. I don’t see why this is a problem.
imdw (c2941b) — 12/8/2009 @ 6:01 pm