Tyler Ritchie | Ethical Lawyering Under Capitalism

By Tyler Ritchie

One of the topics that has come up repeatedly in the last few weeks of Utopia seminars is the restrictive nature of late capitalism. The question was invoked by Kendall Thomas’ compelling slideshow about the Cosmopolitan Hotel and Casino in Las Vegas in Utopia 12/13. It was brought up again in Bernard E. Harcourt’s framing mechanism for Utopia 13/13: the New York Times article proposing the architecture of the Columbia Business School as a provocation to rethink capitalism. The issue was not fully crystalized for me until the exchange during Utopia 14/13. To paraphrase Jack Halberstam’s question, is a concrete utopia possible under capitalism?

It is a question I have been considering since the beginning of this seminar. I was struck by a line of thinking in Cornel West’s piece for Utopia 8/13. West explained that “the extension of American liberalism,” is “insufficient because … [it] leaves relatively untouched the fundamental cause of social misery—the maldistribution of resources, wealth, and power in American society.”[1] This was a familiar and well-developed thought for me; what surprised me more was the next presumption, that “the extension of American liberalism is the only feasible radical option within American political culture.”[2] I had had such a thought before, but I was surprised to see it come from a critical thinker like Dr. West. Afterwards Harcourt pointed out what I had overlooked: “There can be no substantive progressive politics beyond the extension of American liberalism without social motion or movements.”[3]

It left me with the question of what to do in the meantime. Of course, there is the hard, and sometimes unrewarding, work of raising consciousness toward a social movement. How could one contribute within the limits imposed by working as a lawyer? Dr. West had an answer that comforted me, but I also knew enough about my own motivated reasoning to be suspicious of that comfort. I had been a teacher before law school, and I believe I did some good there, but I had served primarily wealthy suburban students. My work, although perhaps individually meaningful to students, had contributed to the maldistribution of resources, wealth, and power. I came to law school, in part, to break that cycle, and I have been glad to maintain a commitment to public service in my legal career. But again, the form that my work takes may be what is most comfortable to me. Working in a government office, instead of providing direct services; making the case for a vague and anodyne concept of civil rights, rather than engaging with the moral complexity of criminal defense work. As much as I intellectually understand the need for revolution, emotionally I find myself at least occasionally complacent within the confines of an unjust and exploitative capitalist society.

This type of awkward juxtaposition between a charge toward lofty ideals and a retreat to the comfortable hierarchies of tradition is exemplified by the discourse around Columbia’s new business school architecture. As gamely as The New York Times’ James S. Russell attempts to sell the new architecture as not your grandfather’s business school design, the piece fails to convince. Weighed down by an impossibly ambitious but eye-catching headline, the article’s examples fall far short of what is promised. Russell notes that the new buildings eschew the “trappings” of old-fashioned business schools such as “grand atriums, leather-chaired lounges, chandelier-festooned ceilings.”[4] But the pictures that accompany the article appear to show both atriums and lounges with leather chairs in them (no chandeliers are seen, to his credit). At one point, Russell writes that “these spaces try to blur the boundary between inside and outside, town and gown,” before clarifying in a parenthetical that the people outside the building are not literally allowed inside it, they can just see in the windows.[5] Open floorplans and lots of natural light are trendy aesthetic choices, not praxis. It is probably fair to say that nothing which shows up as a trope on home remodeling shows is designed to seriously destabilize the capitalist system. Calling a staircase “network stairs” will not bring about the revolution.

To be fair to Russell and the editor who titled the work, the headline does point to the ambiguity of the vision. The business school buildings cost $600 million, surely that indicates something less than a full-throated attempt by the University to rethink capitalism. Modern universities are caught between countervailing pressures, as are their constituents, myself very much included. Institutions of higher education are slavishly devoted to prestige as the key to the whole project; the cost of a top-flight American education can only be justified if it matters a great deal to the life of the person who receives it. This tension can be seen in the awkward retreat in recent months as law schools have belatedly refused to fully participate in the rankings game imposed by U.S. News & World Report. It remains to be seen whether the schools will remain committed to that project if it affects applications and deposits. Likewise, the schools are cross pressured by a variety of stakeholders: the students, who tend to be young, urban, and progressive; a more conservative group of alumni and donors; and, for some reason, a national press obsessed with providing platforms to highlight sometimes minor squabbles on Ivy League campuses. Thus the need to sell an expensive and aesthetically pleasing new campus as somehow also a subversive act. I am far from immune from this dichotomy: I came to Columbia to participate in a program for Public Interest attorneys and because it was the highest-ranked school to which I was admitted. I knew that this institution, despite some genuinely important contributions, is a net contributor to the maldistribution of resources, wealth, and power. I would not be surprised if many members of the faculty feel similarly conflicted.

This model portends a future in which efforts to rethink capitalism are hopelessly weak. However, it is not the only model of a concrete utopia to which we can look. Perhaps a vision of cooperation under capitalism might look like Xavi Laida Aguirre’s design group. The making of art using materials purchased and then returned to retailers offers an intriguing example. It allowed Aguirre and their studio to create an impressive portfolio with little upfront capital, and it did so while abiding, at least nominally, by the rules of a capitalist system. Aguirre took advantage of the return policies offered by the big box stores to buy goods, use them to make a new piece, and then return the goods for a refund, thus beginning the cycle over again. It was within the letter of the law, although it seems likely that the sellers might have complained that it was not within the spirit of their policies. A hyper-commercialized society necessarily creates massive gray areas through its policies designed to apply simply and simultaneously to a wide variety of situations. Telemarketers and time-share seminars use the social imperative to be polite to aggressively attempt to sell to uninterested consumers. Even worse, multilevel marketing companies ask their misguided amateur salespeople to take advantage of the bonds of friendship to pressure an old classmate to buy some unwanted product on social media. Individuals willing to act within those gray areas may reap benefits, and it was refreshing to see Aguirre do so in a way that created art instead of commerce. Building upon this insight, one might consider how lawyers can take advantage of gaps to demand the most for their clients, to be a bit offensive within their normally defensive practice.

When it can coexist with the duty to serve as zealous advocates for their clients, progressive lawyers can also look for places to serve as zealous advocates for their communities writ large. Many of the impressive lawyers and legal minds that spoke during the Utopia series provided excellent role models in this regard. Of course, all of these good intentions are complicated by the double standard wherein corporate lawyers (more often than not older white men) are entitled to act ruthlessly to safeguard their clients’ billions, but public interest lawyers are expected to prostrate themselves at the mercy of the court while maintaining absolute decorum. Nonetheless, progressive lawyers ought to do their best to promote the raising of consciousness and critical thought where they can. In such a situation, the search for concrete utopias is more important than ever. They may end up being histories of the present as much as histories of the future.

Ultimately, as Dr. West suggested, we are likely stuck with a highly flawed capitalist system in the near term. In this case, the perfect is almost certainly the enemy of the good. Practice is the most important thing—the opportunity to alleviate suffering and improve material conditions for other people living with us on this planet. Perhaps the young progressive students at places like Columbia will provide new solutions to this problem. When I look at my classmates in the Public Interest/Public Service Fellows program, I feel hope for a new generation that refines the ethical practice of law under capitalism while simultaneously contributing to much-needed reforms and modifications of that underlying system.


[1] Cornel West, The Role of Law in Progressive Politics, 43 Vand. L.R. 1797, 1798 (1990).

[2] Id. at 1799.

[3] Id. at 1801.

[4] James S. Russell, At Columbia’s $600 Million Business School, Time to Rethink Capitalism, N.Y. Times (Jan. 9, 2023), https://www.nytimes.com/2023/01/05/arts/design/columbia-business-school-diller-scofidio-renfro-kravis-geffen.html.

[5] Id.