Of all the reasons you might criticize Democratic presidential hopeful Elizabeth Warren, her prior outside legal work should not be one of them.

In the past 36 hours, there have been a flurry of headlines clucking about income netted by Warren on top of her salary as a law professor. As the Washington Post put it," Sen. Elizabeth Warren earned nearly $2 million consulting for corporations and financial firms."

Ooh gotcha, what a hypocrite—or so the story (and the follow-on cascade of comments on Twitter) would suggest. "Her work for some of the companies doesn't fit neatly with her current presidential campaign brand as a crusader against corporate interests," wrote national politics reporter Annie Linskey for the Post.

While the story does note that the income was derived "while [Warren] was a law professor at Harvard University, the University of Pennsylvania and other law schools," it fails to mention that this covered a period of nearly 30 years. 

Which works out to about $67,000 a year. For a lawyer, that's not exactly raking in the big bucks.

Moreover, the actual work—which mainly tapped Warren's expertise in bankruptcy law—doesn't strike me as inconsistent with Warren's pro-consumer values. 

Because (repeat after me) it is possible to represent a corporation and not be on the side of evil. 

Shocking, I know.

According to information disclosed on Sunday by Warren's campaign, her single biggest paycheck came from Travelers Indemnity Co. The insurer paid her $212,335 to serve as counsel in a dispute involving the far reaches of federal bankruptcy court jurisdiction to block private lawsuits for asbestos-related injuries.

The case wound up before the U.S. Supreme Court, which sided with Travelers in 2009. Warren co-authored Travelers' cert petition, working with a team from Simpson Thacher & Bartlett. Then-Simpson partner Barry Ostrager (now a Manhattan Supreme Court justice) handled the winning oral argument. 

The actual legal issue was one only a bankruptcy academic could love: "Whether the court of appeals erred in categorically holding that bankruptcy courts do not have jurisdiction to enter confirmation orders that extend beyond the 'res' of a debtor's estate." 

Fun!

Did Warren have the moral high ground in the case? 

This doesn't strike me as the right question to ask when you're geeking hard on bankruptcy jurisdiction issues. Still, we're in the midst of a presidential election, and Warren's campaign offered that "Elizabeth represented Travelers in order to protect a $500 million settlement for victims of asbestos poisoning that another insurance company sought to invalidate."

In reality, of course, it was far more complex. After all, the other side included individual asbestos poisoning victims who were fighting to bring new claims against Travelers (which, ahem, had $30 billion in revenue in 2018). How could Warren in good conscience oppose them?

The nuanced answer? Easily.

The roots of the case date back to a landmark 1986 settlement with bankrupt Johns-Manville Corp. to handle claims by those injured by exposure to asbestos. The settlement has been touted as a big success, with more than 660,000 claimants receiving $2.8 billion-plus in payouts.

My colleague Tony Mauro in setting the stage for the 2009 Supreme Court fight wrote that insurers "contributed to the fund, and in return got immunity from the bankruptcy court from future claims related to their policies with asbestos makers."

But plaintiffs lawyers later found other grounds to sue insurers, including Travelers—which protested that the new claims were barred by the bankruptcy court's immunity order.

After a mediation, Travelers "agreed to fund a new $500 million trust for the new plaintiffs, in return for clarification that it would then be immune from still more claims," Mauro explained. "But some other plaintiffs who were not part of the new settlement objected and [in 2008] the 2nd U.S. Circuit Court of Appeals ruled in the plaintiffs' favor."

Warren to her credit was not reflexively anti-Travelers. Instead, she recognized if the new claims were allowed to proceed, no insurer would be willing to contribute to a similar settlement fund in the future. And in the long run, that would be bad public policy.

If the Second Circuit decision stood, she and her Simpson Thacher co-counsel wrote, it would erode "the finality of federal bankruptcy confirmation orders underlying resolution of hundreds of thousands of potential individual lawsuits and tens of billions of dollars in trust funds held for the benefit of asbestos claimants." And that principle is more important than a relatively small number of individual suits against Travelers. 

It's not the kind of issue that lends itself to the simplistic right/wrong lens of national politics, but Warren's arguments show she's not just an anti-corporate ideologue.  

Whether that will help or hurt her in the primaries is another question entirely.