March 19, 2006

Obviously Second Rate Women

by PG

Intelligent but slightly nutty people like John Lott -- the gun advocate infamous for creating an online female identity to defend him -- are interesting to read because the "huh?" moment often is stronger with them than with utterly stupid folks. For example, posting about a New York Times article that sounds the alarm regarding a dearth of female partners at law firms, Lott's first point is exactly what I thought upon seeing the headline:

One obvious problem with their data is that people might be lawyers for 40 or 50 years, but women didn't reach 40 percent of law school students until twenty years ago and didn't reach 50 percent until 2000. It was 20 percent thirty years ago and 10 percent just 23 years ago. It is the average over the entire period that counts, not just the most recent graduation numbers. Indeed if it takes 7 years or so for people to become partners you can't even compare the graduation rates prior to 1997 (since their numbers end in 2004).
I said something similar to my mother recently when she asked whether there was an equal number of male and female judges: that judges were older attorneys and therefore necessarily skewed male, but that we were seeing more gender balance over time. I also mentioned that there seemed to be more women in particular judgeships, such as family court and state courts, than others. This might apply to women in the legal profession as a whole -- they might not be in the specific area examined but in others, so that an article about law firm partners may miss women's presence in non-profits and government and as corporate counsel.

Then Lott got my Whaaaa?: "A second obvious problem is that law schools might have let in lower quality women then [sic] men in order to get the admission rates so high for women." Lott doesn't mention whether this implies that before we had gender parity, the women admitted to law school were much higher quality than the men, but I can't say that this explanation is one that came to my mind unaided. The greyhaired partner cohort compared to the recent law school classes can be fairly called apples and oranges; the legal abilities of male law students compared to that of female students seems much less disparate.

On the other hand, is there a good way to compare the achievement of recent male and female law graduates? The upcoming Supreme Court clerkship class would seem to uphold Lott's belief, as Ginsburg and Breyer are the only justices with two male and two female clerks. Souter, Scalia and Thomas hired only men; Kennedy, Stevens, Roberts and Alito each hired one woman. O’Connor, retired and therefore entitled to one clerk, kept a woman. But this has its own selection bias due to the relative shortage of women with the ideological biases that the non-liberal justices might prefer.

The NYT article holds up as a model the life of Proskauer partner Bettina B. Plevan, who claims that her husband split the domestic work of childrearing and chores with her, and reaffirms this explicitly with a quote from another woman, who started a firm with her husband, on how to solve the problem: "One thing we need is a sense of shared responsibilities for the household and, most importantly, shared responsibilities for taking care of the kids." AK wishes there had been more on this topic, but the difficulty of having gender equality in the workplace without having it in family life is a tale more than twice-told. Jeremy Blachman sees the women who don't want to fall in line with what law firms demand as perhaps having the right idea.

An anonymous blogger expands upon Jennifer L. Bluestein's (Baker & McKenzie) remark, "Women are less likely to get the attention than men. Some of this is left over from the sexual harassment cases from the 90's, but I think that it's more because of the fact that we don't look like men," by declaring the need to "hit [men] over the head with their passive discriminatory ways." Her particular method struck me as slightly passive aggressive, with its hint of a claim that her employer was violating the law and its failure to state the existence (exclusion, lower pay) rather than effect (only one female employee) of such discrimination.

Anupam Chander sees the possibility of discrimination as well -- "Remarkably absent from the story is discrimination based on the partners' perceptions of relative ability" -- but also says, "it is difficult to hazard a clear explanation in these matters." Regardless of one's view about whether a lack of female partners is a problem, I suspect most people who have interacted with law firms would agree with this generalized complaint: "Law firms like to talk about running the firm like a business and looking at the numbers, but they're running on an institutional model that's about 200 years old. Most law firms do a horrible job of managing their personnel, in terms of training them and communicating with them."

March 19, 2006 10:35 AM | TrackBack

One thing this shows is the shallowness of the nondiscrimination policies that the law schools claimed to be upholding in the Solomon Amendment litigation. The schools have no problem allowing the large law firms to recruit as long as they make a show of endorsing the schools' policies -- on paper. The fact that discrimination continues in fact at the firms, however, does not appear to be of any concern to the schools.

Posted by: Tom T. at March 19, 2006 10:16 PM

Is there a policy of discrimination in hiring and retention at law firms? I'm pretty sure that whatever worth this article has is due to the fact that we don't know why law firms lose women. We do know why the military loses homosexuals -- it kicks them out.

Posted by: PG at March 20, 2006 12:34 AM

i thought it is pretty clear why law firms lose women! covert bias, as opposed to overt discrimination, which is why women leave law firms of their own 'volition' as opposed to being kicked out.

Posted by: marshmallow at March 21, 2006 11:00 PM

As your next post suggests, there are lots of ways to discriminate even without a written policy of doing so. You're quite right that discriminatory conduct discouraging women, ethnic minorities, and open LGBTs from sticking around at the firms can be very difficult to pinpoint, and there may be other factors in issue as well, but the law firms have a long history of making partners almost exclusively from straight white men, and I'm not inclined to give them the benefit of the doubt when they say that it's not their fault that they can't diversify.

Posted by: Tom T. at March 23, 2006 08:15 PM
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