A MODEST PROPOSAL For preventing our young adults in the United States from being a burden to their country, and for making them beneficial to the public good

To quote the literary inspiration for this blog post: “It is a melancholy object to those who walk through this great town or travel in the country,”[1] namely, partners at law firms, that competition for talented law-school graduates has reached such a fever pitch that one law firm after another, literally every day, is increasing compensation for first-year associates to an astounding $200,000 per year—not including bonuses.[2]

The consequences for the profession are serious.  Law firms rightfully must economically justify the salaries they will be paying new lawyers, necessarily resulting in even higher billing rates and pressure on new lawyers to bill even more hours.  At some New York law firms, hourly rates for first-year associates are already above $700.  The costs to clients in the litigation and transactional battles waged on their behalf are about to increase.

More important are the expected adverse consequences to lawyers’ mental health.  The data on law students’ and lawyers’ substance abuse and mental illness demonstrate the severity of the problem.[3]  The increased demands placed on new lawyers’ quality and quantity of work will only contribute to our profession’s precarious collective mental state.

“I shall now therefore humbly propose my own thoughts, which I hope will not be liable to the least objection.”[4]

Let us suppose that the AmLaw 100, which are the 100 largest law firms by revenue, agree with one another to cap associates’ salaries at their pre-pandemic levels (adjusted annually for inflation, of course).  Doing so would make junior attorneys profitable at lower billing rates and lower billable hours.  That would certainly benefit clients.  But it would also benefit junior attorneys, who could then devote greater time for professional development and work/life balance.

By now, readers of this blog may have blown an antitrust gasket if they have not already noticed that they are being treated to a satiric introduction.

There is only the quantum-mechanical possibility of doubt that such an agreement among large law firms would and should violate federal and state antitrust law.  And under Department of Justice and Federal Trade Commission guidance and enforcement actions, such an agreement could result in criminal prosecution.[5]

The objectives sought through such an agreement are serious and legitimate: ameliorating both the increasing cost of access to justice and the strain on new lawyers’ mental health; and providing some room for their full development as productive, efficient, and conscientious members of the bar.  But those objectives are totally irrelevant to justifying the restriction on competition with respect to those same lawyers’ wages.[6]  The way to promote efficient lawyering is to promote efficient lawyering.  The way to protect the mental health of our profession is to protect lawyers’ mental health.  And the way to develop new lawyers is to develop their skills.

I would venture a guess that there won’t be much debate over that fairly simple antitrust analysis.

So why is different when it comes to collegiate athletes?

In NCAA v. Alston,[7] the Supreme Court unanimously affirmed the trial court’s finding that the NCAA violated antitrust law by “limiting the education-related benefits schools may offer student athletes.”[8]  But the Supreme Court did not pass judgment on the lower court’s finding that “the NCAA’s rules limiting undergraduate athletic scholarships and other compensation related to athletic performance” are lawful.[9]  Because “the student-athletes [did] not renew their across-the-board challenge to the NCAA’s restriction,” the Supreme Court’s review was “confined to those restrictions” enjoined by the trial court. [10]  In his opinion for the Court, Justice Gorsuch noted how some would view the Court’s decision “as a poor substitute for fuller relief.”[11]  But as he also (rightly) noted, the Court’s constitutional function was not to provide that relief.  It was only to review the case presented to it, which did not include the NCAA’s ban on compensation for athletic performance.[12]

The sham notion of “the student-athlete” in major college sports programs has been well and eloquently described by others.  Having attended universities with hopeless or no major sports programs, I rely on Hopelessly Liberal No. 142 – A Unanimous SCOTUS Takes a Crack at Reparations in the NCAA Antitrust Case and Whiffs (Jul. 12, 2021): “Most NCAA Division I-A (FBS) football players and I-A basketball players neither get a formal education comparable to their non-athlete peers nor after graduating (or not) get even a ‘cup of coffee’ in the NFL, NBA, or WNBA, let alone a career.”[13]  They have thus sacrificed their education and received no compensation for having done so—a result worse than the hypothetical, possibly criminal agreement to fix new lawyers’ wages.

Some might understandably think that this post shows how antitrust law is broken.  It’s not.  Antitrust law recognizes (and has for over a century) that if the procompetitive justification offered for a restriction on competition is pretext, then the restriction is unlawful.  See Antitrust Today’s  Supreme Court Slams NCAA’s ‘Procompetitive Rationale’ in Unanimous Ruling (July 1, 2021) for a fine exposition of the case.  And while the Court in Alston was not presented with a challenge to the NCAA’s compensation-for-performance rules, hopefully there soon will be one to ensure that collegiate athletes—just like new lawyers—are compensated by a free market for the sacrifices they make.

Edited by Gary J. Malone

[1] J. Swift, “A Modest Proposal” (1729).

[2] E. Lever, 3 More BigLaw Firms Raise Associate Pay, Law360, Jul. 20, 2021.

[3] Am. Bar Ass’n, New study on lawyer well-being reveals serious concerns for legal profession, Dec. 2017.

[4] Swift, supra note 1.

[5] U.S. Dep’t of Justice and Fed. Trade Comm’n, Antitrust Guidance for Human Resources Professionals (justice.gov) (Oct. 2016); B. Koenig, DaVita Indictment, Biden Order Ramp Up No-Poach Pressure – Law360.  Law360, Jul. 19, 2021.

[6] Nat’l Soc. Of Prof. Eng’rs v. United States, 435 U.S. 679 (1978) (holding that “an association’s canon of ethics prohibiting competitive bidding by its members . . . because it was adopted by members of a learned profession” to prevent inferior engineering from endangering public safety, “rests on a fundamental misunderstanding” of antitrust law).

[7] No. 20-512 (Jun. 21, 2021).

[8] Id., slip op., at 2, 35.

[9] Id. at 2, 14.

[10] Id. at 14.

[11] Id. at 35.

[12] Id. at 14, 35.

[13] Id.