The rise and fall of the WASP and Jewish law firms

Stanford Law Review

Volumn 60, Issue 6, 2008, Pages 1803-1866

  Wald, Eli ^a  

^a UNIVERSITY OF DENVER   (United States)

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EID: 49149127619     PISSN: 00389765     EISSN: None     Source Type: Journal    
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References (342)

1. MARK GALANTER & THOMAS PALAY, TOURNAMENT OF LAWYERS 24 (1991).
2. Large American law firms first emerged in New York City. Id. at 14-15. Until the 1970s, due to the concentration of large law firms in New York City, the terms "American" and "New York City" law firm could be used interchangeably. By 1979, however, all New York firms except Shearman & Sterling "had been displaced by the largest firms of other cities." Robert L. Nelson, Practice and Privilege: Social Change and the Structure of Large Law Firms, 1981 AM. B. FOUND. RES. J. 95, 104. Still, "[T]he leading role of New York City as a legal center [was] indicated by the presence of twenty-three New York firms" among the largest fifty law firms. Id. Studying the rise and growth of large law firms between 1899 and 1980, at a time when New York still dominated the landscape of large American law firms, this Article refers to large New York City firms as the "large law firms."
3. The religious divide among lawyers in New York City also included Catholic attorneys. Because the number of large Catholic law firms in New York City was relatively small in the time period examined, this Article studies the experience of large WASP and Jewish law firms but not that of large Catholic firms. The literature on large Catholic firms is scant, but see, Mark A. Sargent, An Alternative to the Sectarian Vision: The Role of the Dean in an Inclusive Catholic Law School, 33 U. TOL. L. REV. 171, 188 (2001). Sargent argues that from the late nineteenth century through the middle of the twentieth century Catholic universities, law schools and law firms did not have to worry about what it meant to be Catholic institutions. "With faculties and student bodies overwhelmingly Catholic, with a strong clerical presence, and a sense (at least tacit) of separation from a non-Catholic social and academic mainstream often ambivalent, if not hostile to Catholicism, it was difficult for those institutions not to be and to feel Catholic." But, "[w]ith the waning of immigrant identity, the diminishing presence of the clergy, and the very successful integration of Catholic institutions into the American academic mainstream, the easy sense of identity as Catholic began to vanish . . . ." Id.
4. Discrimination against Jewish lawyers and the segregation of large firms along religious and cultural lines was common knowledge among practitioners at the time and has been documented by scholars of the legal profession since. What is not common knowledge is the impact and consequences of the religious and cultural identity of the large firm for its rise and growth. While the religious and cultural identity of the large firm was not hidden, the role it played and the reasons for its existence, beyond nativism, snobbery, and anti-Semitism, were hidden. See infra Part I.B.
5. MAGALI SARFATTI LARSON, RISE OF PROFESSIONALISM: A SOCIOLOGICAL ANALYSIS, at xvii (1977).
6. Thus, the rise and growth of the Jewish firm is not merely another telling of the successful assimilation story of an immigrant institution following and adopting the path of the established elite. See generally THOMAS KESSNER, THE GOLDEN DOOR (1977) (comparing the upward mobility of Jewish and Italian immigrants in New York City between 1880 and 1915). Rather, the success of the Jewish firm was in part a reaction to discrimination perpetrated by the established elite. In fact, the rise of the Jewish firm is a tale not of successful assimilation but one of the triumph of "separate but equal" over discrimination.
7. "Large" has a dynamic meaning. "[N]o firms of large membership appeared, even in the great cities, until the end of the [nineteenth] century. The typical partnership was a two-man affair . . . ." JAMES WILLARD HURST, THE GROWTH OF AMERICAN LAW 306 (1950).
8. Through the 1920s a firm of four attorneys was considered a "large" firm. WAYNE K. HOBSON, THE AMERICAN LEGAL PROFESSION AND THE ORGANIZATIONAL SOCIETY 1890-1930, at 161 (1986).
9. The benchmark for "large" reached fifty attorneys by the 1950s. See Erwin O. Smigel, The Impact of Recruitment on the Organization of the Large Law Firm, 25 AM. SOC. REV. 56, 58 (1960).
10. By the late 1960s, "large" meant 100 lawyers, see ERWIN O. SMIGEL, THE WALL STREET LAWYER 358-59 (1969) ,
11. and by the late 1980s, "a firm of 50 members probably would not be considered large" in major cities, see Justin A. Stanley, Should Lawyers Stick to Their Last?, 64 IND. L.J. 473, 473 (1989).
12. Notably, in 1988, Baker & McKenzie became the first law firm with over 1000 attorneys. Law Firm Tops 1,000 Barrier, A.B.A. J., Feb. 1, 1988, at 30, 30.
13. See generally Marc Galanter & William Henderson, The Elastic Tournament: A Second Transformation of the Big Law Firm, 60 STAN. L. REV. 1867, 1873 n.23 (2008) (on the dynamic meaning of "large" firms).
14. See Wayne K. Hobson, Symbol of the New Professions, in THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA 3 (Gerald W. Gawalt ed., 1984);
15. Magali Sarfatti Larson, On the Nostalgic View of Lawyers ' Role: Comment on Kagan and Rosen's "On the Social Significance of Large Law Firm Practice," 37 STAN. L. REV. 445, 448 (1985). See generally GALANTER & PALAY, supra note 1, at 4.
16. The firm featured a strict hierarchical structure with partner-owners at the top of the pecking order, followed by associate-employees who were nonetheless attorneys and not mere apprentices, and at bottom non-legal personnel. PAUL HOFFMAN, LIONS IN THE STREET: THE INSIDE STORY OF THE GREAT WALL STREET LAW FIRMS 39-42 (1973).
17. The associates worked as members of a team, received a standardized salary, and were not allowed to have their own clients. See HOBSON, supra note 7, at 154; Fern S. Sussman, The Large Law Firm Structure - An Historic Opportunity, 57 FORDHAM L. REV. 969, 969 (1989).
18. Initially, large law firms recruited recent law school graduates meeting its prescribed path of excellence: attendance at an elite college; Harvard, Yale, or Columbia law school; top-of-the-class credentials; and law review editorship. JEROLD S. AUERBACH, UNEQUAL JUSTICE 24 (1976); 2 ROBERT T. SWAINE, THE CRAVATH FIRM AND ITS PREDECESSORS: 1819-1947, at 748 (1946) (stating that 85% of Cravath partners graduated from either Harvard, Columbia, or Yale law schools as of 1948).
19. Over time, however, firms have invested in broadening the recruitment pool by screening student candidates attending other elite law schools, conducting "on-campus" interviews, and finally extending "callback" interviews conducted at the firm. See Joyce Sterling et al., The Changing Social Role of Urban Law Schools, 36 SW. U. L. REV. 389, 411-12 (2007);
20. David Wilkins et al., Urban Law School Graduates in Large Law Firms, 36 SW. U. L. REV. 433, 436 (2007);
21. see also Tom Ginsburg & Jeffrey A. Wolf, The Market for Elite Law Firm Associates, 31 FLA. ST. U. L. REV. 909, 921-22 (2004).
22. Associates were trained as general practitioners under the supervision and mentorship of the partners. AUERBACH, supra note 11; 2 SWAINE, supra note 11, at 2 (describing the firm's recruitment preference for young lawyers not yet spoiled by habits learned elsewhere).
23. Following a probation period the firm promoted a fraction of its associate pool to partnership. Partners were almost exclusively elected from within the firm's ranks, with little lateral hiring. Sussman, supra note 10, at 969; see also HOBSON, supra note 7, at 155 ("To facilitate cohesion, the firm has relied upon . . . the assurance that senior partners will be recruited from within the firm."). Those not promoted were expected to leave the firm pursuant to its "up-or-out" policy, often placed elsewhere with the assistance of the firm. See generally GALANTER & PALAY, supra note 1.
24. The firm represented mostly entity clients, first railroads and banks, and later on, industrialized corporations. HOBSON, supra note 7, at 203-06. The focus on entity clients reinforced the organizational structure of the new law firm. The needs of entity clients, compared to individual clients, spanned across many practice areas and were complex, thus greatly straining the ability of one general practitioner to effectively address them all and justifying the firm's team concept. See id.
25. The firm utilized technological advances to more effectively and efficiently serve the needs of its clients. GALANTER & PALAY, supra note 1, at 4-9.
26. Paul D. Cravath is credited with being among the first to mold and implement these organizational features together in a working law firm. HOBSON, supra note 7, at 196-99. See generally GALANTER & PALAY, supra note 1, at 9-10; 1-3 SWAINE, supra note 11.
27. 1 SWAINE, supra note 11, at 575 (Mr. Cravath's "first great object was so to organize his firm and its staff as to make it competent to do, as nearly perfectly as it could be done, any acceptable work which might be offered. . . . Prior to the time when Cravath took control as the active head of the firm there had been little attempt at scientific organization in the office."(quotation omitted)).
28. Mr. Cravath "expected perfection or as near to it as he could get and he seldom got quite as much as he expected." Id. at 574 (quotation omitted). Michael Young critically explored the possibility that the rise of meritocracy would lead to the decline of discrimination. Young cynically proposed that IQ plus effort equaled merit - that is, those who are intelligent and work hard will succeed, irrespective of race, gender, and other such characteristics. MICHAEL YOUNG, THE RISE OF THE MERITOCRACY 1870-2033: AN ESSAY ON EDUCATION AND EQUALITY (1958).
29. He concluded, however, that merit is likely to be used as a cover by the dominant elites. Id. Professor Guinier explains that Young "coined the term meritocracy to satirize the rise of a new elite that valorized its own mental aptitude" through "a set of rules put in place by those with power that leaves existing distributions of privilege intact while convincing both the winners and the losers that they deserve their lot in life." Lani Guinier, Commentary, Confirmative Action, 25 LAW & SOC. INQUIRY 565, 573 (2000).
30. See generally STEPHEN J. MCNAMEE & ROBERT K. MILLER, JR., THE MERITOCRACY MYTH (2004). While Paul Cravath did not share Young's cynicism, his merit-based Cravath System had exactly the effect Guinier suggested - it installed as the professional elite those with power while convincing both the winners and the losers that they deserve their lot in life. Infra Part I.B.
31. 2 SWAINE, supra note 11, at 265.
32. ARTHUR H. DEAN, WILLIAM NELSON CROMWELL 1854-1948: AN AMERICAN PIONEER IN CORPORATION, COMPARATIVE AND INTERNATIONAL LAW 85 (1957).
33. Of course, since most lawyers were Protestant, this seemingly secular professional role morality existed in the shadow of Protestant values. See, e.g., DAVID HOFFMAN, A COURSE OF LEGAL STUDY 7, 51-52 (Baltimore, Joseph Neal 2d ed. 1836) (offering law students a prayer and proposed resolutions about religious worship and studious commitments in his proposed course of study).
34. See CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 54 & n.23 (1986).
35. See generally RICHARD L. ABEL, AMERICAN LAWYERS 18-30 (1989) (exploring the profession's struggle to control the market for legal services); AUERBACH, supra note 11, at 40-52; HOFFMAN, supra note 9, at 203-04.
36. LARSON, supra note 5, at xvii. Larson explains: professionalization [is] the process by which producers of special services [seek] to constitute and control a market for their expertise. Because marketable expertise is a crucial element in the structure of modern inequality, professionalization appears also as a collective assertion of special social status and as a collective process of upward social mobility. Id. at xvi.
37. Id. at xvi-xvii.
38. See generally AMERICAN LEGAL REALISM (William W. Fisher III et al. eds., 1993);
39. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1870-1960, at 9-31 (1992).
40. 1 JOSEPH H. BEALE, A TREATISE ON THE CONFLICT OF LAW §§ 3.2, 3.4, 4.12 (1935); C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS, at vii-ix (Boston, Little, Brown & Co. 2d ed. 1879);
41. MAX WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY 657-58 (Guenther Roth & Claus Wittich eds., 1978).
42. See, e.g., JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED, Lecture V, 157-58 (Wilfrid E. Rumble ed., Cambridge Univ. Press 1995) (1832) ("The existence of law is one thing; its merit or demerit is another. . . . A law, which actually exists, is a law, though we happen to dislike it . . . . Now, to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense.").
43. For contrast, see ST. THOMAS AQUINAS, SUMMA THEOLOGICA, Human (J.G. Dawson trans., 1965) ("There is no law unless it be just. So the validity of law depends on its justice. . . . Thus all humanly enacted laws are in accord with reason to the extent that they derive from the natural law. And if a human law is at variance in any particular with the natural law, it is no longer legal . . . .").
44. But see, e.g., DAVID HOFFMAN, supra note 21, at 7, 51-52.
45. Explaining why nineteenth-century large law firms attempted to present themselves as a-religious is not the same as explaining why twentieth-century scholars of large firm organization bought into that claim. And yet, while the distinctive religious identities of large law firms were once familiar facts of professional life and the stratification of the elite bar documented, the existing literature on large law firm organization does not identify religious identity as a constitutive feature of those firms. The scholarly omission of exploring the religious roots of large law firms is explained in part by what Morton Horwitz calls "Presentism" - the attempt to explain historical phenomena from a contemporary perspective, thus failing to appreciate considerations that were important at the time but are not today. See, e.g., Morton J. Horwitz, The Rise of Legal Formalism, 19 AM. J. LEGAL HIST. 251 (1975).
46. The present-day rejection of religion as a relevant consideration in the organization of legal institutions and the omnipresence of large law firms make it harder for contemporary scholars to appreciate a reality where religion could have played a different role. Weber similarly observed that when capitalism became so prevalent that "the attempts of religion to influence economic life" were perceived as "unjustified interference," it was hard to appreciate, even imagine, the important relationship that once existed between religious beliefs and the spirit of capitalism. See MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM 72-73, 180-81 (Talcott Parsons trans., 1958).
47. HOBSON, supra note 7, at 201.
48. AUERBACH, supra note 11, at 23-25; Sussman, supra note 10, at 970 ("The Cravath system remained the model for big firms until very recently."); see also David M. Trubek et al., Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arenas, 44 CASE W. RES. L. REV. 407, 423-26 (1994) (contrasting and comparing the Cravath System to European models).
49. Note, The Jewish Law Student and New York Jobs: Discriminatory Effects in Law Firm Hiring Practice, 73 YALE L.J. 625, 635 (1964) ("Gentiles were more successful then Jews in getting good jobs, and in getting the jobs of their choice.");
50. Eli Wald, The Rise of the Jewish Law Firm or Is the Jewish Law Firm Generic?, 76 UMKC L. REV. (forthcoming 2008), available at http://ssrn.com/abstract=1138437.
51. See, e.g., AUERBACH, supra note 11; SMIGEL, supra note 7.
52. Carrie Menkel-Meadow, Culture Clash in the Quality of Life in the Law: Changes in the Economics, Diversification and Organization of Lawyering, 44 CASE W. RES. L. REV. 621, 625-26 (1994).
53. HURST, supra note 7, at 249-55, 313-19.
54. An example of nativism in action was apprenticeships, which not only prepared lawyers for the profession, but also served as "an efficient instrument of social control, limit[ing] the number of lawyers and assur[ing] enough work." Menkel-Meadow, supra note 34, at 625. Such apprenticeships kept the legal profession "relatively homogenous in terms of race and class." Id. Following World War I, nativist and patriotic sentiments flourished within the ranks of the profession. See G. Edward White, The American Law Institute and the Triumph of Modernist Jurisprudence, 15 LAW & HIST. REV. 1, 16 (1997). However, as apprenticeships became less common, nativism surfaced instead in regulatory attitudes and admission quotas at elite law schools. Id. at 17-18; see also ABEL, supra note 22, at 40-73 (studying attorney regulation and the role played by elite law schools in restricting access to the legal profession and specifically to its elite spheres).
55. JEROME E. CARLIN, LAWYERS' ETHICS: A SURVEY OF THE NEW YORK CITY BAR 19 (1966).
56. See id. at 18-32.
57. See id. at 32-34.
58. AUERBACH, supra note 11, at 24.
59. See id. at 25.
60. See id. ("There was 'little room for young aspirants outside the favored groups.'" (quoting CHARLES EVANS HUGHES, THE AUTOBIOGRAPHICAL NOTES OF CHARLES EVANS HUGHES 76 (David J. Danelski & Joseph S. Tulchin eds., 1973)).
61. Id. at 71-73, 99-101.
62. See HOFFMAN, supra note 9, at 20 (describing Davis Polk as the "epitome of the 'white-shoe' firm," and observing that its attorneys "probably include the highest proportion of Social Register names on Wall Street"). See generally JOSEPH EPSTEIN, SNOBBERY: THE AMERICAN VERSION (2002);
63. RICHARD HOFSTADTER, ANTI-INTELLECTUALISM IN AMERICAN LIFE (1963);
64. RICHARD A. POSNER, PUBLIC I NTELLECTUALS (2001);
65. WILLIAM MAKEPEACE THACKERAY, THE BOOK OF SNOBS (John Sutherland ed., St. Martin's Press 1978) (1846) (depicting the British version of snobbery).
66. The late 1890s "was the era of the emergence of the 'corporation lawyer' - the lawyer who, with experience, has acquired special skills in the organization, financing, operation and reorganization of large corporations." WALTER K. EARLE & CHARLES C. PARLIN, SHEARMAN AND STERLING: 1873-1973, at 123 (2d ed. 1973).
67. "During the period from about 1894 to the end of the war [WWI] the practice of law was undergoing a gradual reorganization corresponding to a change in viewpoint . . . the very rise of a class of counselors in the profession who served as advisers to business rather than as advocates . . . ." DAVIS POLK WARDWELL GARDINER & REED, DAVIS POLK WARDWELL GARDINER & REED: SOME OF THE ANTECEDENTS 27 (1935).
68. See, e.g., Louis D. Brandeis, The Opportunity in the Law, Address Before Harvard Ethical Society, in 39 AM. L. REV. 555 (1905) (urging a graduating class of law students to stand their professional ground and practice as lawyers for the people instead of as servants of corporate interests).
69. SULLIVAN & CROMWELL 1879-1979: A CENTURY AT LAW 14 (1979). Arthur Dean opined that: The nation's industrial growth in the early 1870's and 80's . . . demanded a somewhat different breed of lawyer from the combination trial lawyer-politician-statesman- oratorclassicists who were traditionally the leading members of the bar. . . . These new, factual-minded attorneys were hard-headed business counselors and draftsmen of precise legal documents, wills and trust agreements, who rarely appeared in court themselves. DEAN, supra note 20, at 52-53.
70. EARLE & PARLIN, supra note 45, at 28; id. at 223-24 ("As the practice in the fields of finance and business law increased in volume and importance, its appeal to ambitious young men studying to become lawyers likewise increased. Many of the best of them wanted to work in New York (or in other large cities) and to become 'corporation lawyers,' or at leaset, to break ground in the large 'corporation law' firms, where they could be exposed to the operations of Big Business, with its excitement, stimulation and training - at the cost to them of long hours of hard work.").
71. See generally Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 HARV. L. REV. 1003, 1044-62 (1995) (exploring status production as an organizational motivation).
72. See supra notes 22-24 and accompanying text.
73. Explaining the organization of his book, Weber asserted that his goal was to study "the influence of certain religious ideas on the development of an economic spirit, or the ethos of an economic system." WEBER, supra note 29, at 27.
74. Id. at 170.
75. Id. at 97.
76. Id. at 115. See generally id. at 111-15.
77. Id. at 117-19.
78. Id. at 153.
79. Id. at 172.
80. Id. at 91.
81. A significant body of empirical work in the 1950s and 1960s attempted to examine Weber's thesis in contemporary American life by testing the so-called Protestant Ethic hypothesis - the theory that Protestants are more economically ambitious or more achievement-oriented than Catholics. See, e.g., Raymond W. Mack et al., The Protestant Ethic, Level of Aspiration, and Social Mobility: An Empirical Test, 21 AM. SOC. REV. 295, 295-96, 300 (1956) (studying whether the Catholic and Protestant faiths in American society exert significant influence on behavior and concluding that "whatever influence these two religious subcultures have upon their adherents is [likely] overridden by the general ethos").
82. Subsequent work criticized such studies for misunderstanding and therefore expecting too much of Weber's thesis. See Andrew Greeley, The Protestant Ethic: Time for a Moratorium, 25 SOC. ANALYSIS 20 (1964) (summarizing empirical work and criticizing it for simplifying Weber's thesis and trying to extract from it unrealistic predictions regarding upward mobility).
83. Weber, however, did not expect an individual-level relationship to exist between personal piety and work ethic. Rather than directly causing or explaining patterns of upward mobility, his insights explain how religious and infused moral sensibility shaped individual behavior and thus social institutions. Indeed, according to Weber, "cultural ethos was thought to be pervasive, influencing devout and atheists alike, within Protestant societies." PIPPA NORRIS & RONALD INGLEHART, SACRED AND SECULAR 161 (2004).
84. Weber cautions that while in contemporary times we might be tempted to discount the influence of religion as an integral component in the formation of social order and social institutions, we need to remember past realities in which religion played an important role in creating conditions necessary for the rise of new economic orders. WEBER, supra note 29, at 27, 72-73. Robert Stebbins argues that the Protestant ethic is "a dead letter today" and that contemporary "work ethic is but a secular version of the Protestant ethic." ROBERT A. STEBBINS, BETWEEN WORK AND LEISURE 24, 27 (2004). Nonetheless, Stebbins contends that the Protestant ethic was "an important cultural precursor of the modern work ethic. It helped steer the search for the cultural value of activity toward the domain of work[;] . . . work is good and hard work is even better." Id. at 25. For an analysis of the consequences of secularization on Western work ethic, see NORRIS & INGLEHART, supra note 59, at 159-79.
85. To be clear, Weber sought to explain European, not American, history. I follow Weber in exploring religious forces that have taken part in establishing conditions for the qualitative formation of the large law firm, and argue that professionalism, as embodied and practiced by the large law firm was inspired by and relied on the Protestant values of a restless continuous work in a worldly calling, predestination, pietism, asceticism, and religion as a system of rational control of life.
86. See, e.g., Robert W. Gordon, "The Ideal and the Actual in the Law": Fantasies and Practices of New York City Lawyers, 1879-1910, in THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA, supra note 8, at 64 (exploring the elevated role and status of lawyers in American society);
87. see also ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993) (bemoaning the fall of the "lawyer-statesman" ideal and the ability of lawyers to live up to it in contemporary practice realities). Kronman's nostalgic account of the lawyer-statesman is consistent with Gordon's depiction of lawyers as high priests of law as a civic religion. Importantly, unlike Kronman, Gordon does not take a normative position as to whether the fall of lawyers from positions of public power is a desirable or a regrettable development.
88. See ROSCOE POUND, THE LAWYER FROM ANTIQUITY TO MODERN TIMES 5 (1953) (defining a profession as a group "pursuing a learned art as a common calling in the spirit of a public service - no less a public service because it may incidentally be a means of livelihood" (emphasis added));
89. Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. Q. 1 (1975) (identifying public service as a defining characteristic of professionalism).
90. Weber studied ascetic Protestantism as the origin of the Western conception of personality. See HARVEY GOLDMAN, MAX WEBER AND THOMAS MANN: CALLING AND THE SHAPING OF THE SELF 131-68 (1988) (developing Weber's conception of personality). See generally WEBER, supra note 29, at 95-154. Applying Weber's thesis to the large law firm context and specifically to the development of the professional identity of the large law firm attorney suggests that in the late nineteenth and early twentieth centuries ascetic Protestantism informed the formation of the professional personality and identity of the American lawyer.
91. GOLDMAN, supra note 64, at 167.
92. See 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 272-80 (Phillips Bradley ed., Henry Reeve trans., Alfred A. Knopf 1945) (1835); see also LARSON, supra note 5, at 166-77 (explaining how the legal profession sought to insert itself in the upper rungs of the status system).
93. Some argue more strongly that Protestant values not only informed and inspired the evolution of professionalism but that professionals took advantage of and manipulated religious dogma. See BURTON J. BLEDSTEIN, THE CULTURE OF PROFESSIONALISM: THE MIDDLE CLASS AND THE DEVELOPMENT OF HIGHER EDUCATION IN AMERICA 102 (1976).
94. Cf. WEBER, supra note 29, at 65 (discussing the rise of the "spirit of capitalism" within traditionalist regimes). Weber is careful not to over-state the nature of the relationship between Protestant values and specific social institutions. "We only wish to ascertain whether and to what extent religious forces have taken part in the qualitative formation and the qualitative expansion of [social institutions]," identifying "certain correlations between forms of religious belief and practical ethics." Id. at 91.
95. Just as Weber's thesis regarding the relationship between religious values and economic spirit does not exclude the importance of other factors such as education and minority status in explaining the rise of capitalism, see Richard L. Means, Protestantism and Economic Institutions: Auxiliary Theories to Weber's Protestant Ethic, 44 SOC. FORCES 372 (1966), I do not belittle the importance of other factors in explaining the emergence and rise of the large law firm. In fact, the white-shoe ethos, alongside Protestant values, played a significant role in creating conditions conducive to the rise and growth of the large law firm. See infra Part I.B.3.
96. See generally Aryeh Kidron, Work Values and Organizational Commitment, 21 ACAD. OF MGMT. J. 239 (1978) (using the Protestant Ethic to predict organizational commitment).
97. In a telling narrative, Lisagor and Lipsius describe the loyalty of Sullivan & Cromwell associates in the context of the working long hours in the office: All the lawyers worked extremely hard, including nights and Sundays. Trials forced the small staff to stay at the office until three or four in the morning, then have to get up to start again at seven the next day. Despite the tensions of overwork and constant courtroom preparation, not even the petroleum exchange speech [the large case at that time] caused an argument to intrude on the firm's congenial prosperity. NANCY LISAGOR & FRANK LIPSIUS, A LAW UNTO ITSELF: THE UNTOLD STORY OF THE LAW FIRM OF SULLIVAN & CROMWELL 22 (1988). The associates displayed such loyalty notwithstanding the fact that they were not quickly rewarded with partnerships. The lawyers who joined Sullivan & Cromwell just out of law school hoping to make their careers found instead that they remained associates for an unconscionably long time. Hjalmar Boyesen stayed an associate for twenty years. . . . Emery Sykes worked at the firm for forty-seven years, nearly as many as William Corlis's fifty. But neither became a partner. Id. at 57-58. Yet, these associates remained loyal to Sullivan & Cromwell, evincing that they regarded their practice at Sullivan & Cromwell as a calling, explaining why an attorney would remain an associate with relative little pay for such a long time.
98. In 1968, the Cravath firm, breaking with the unofficial cartelistic rules of conduct regarding the "going rate" that had set New York salaries for the preceding decades, increased starting associate salaries from $10,500 to $15,000. See GALANTER & PALAY, supra note 1, at 56. These raises were then matched by the major New York firms and also exerted upward pressure on salaries in comparable firms around the country. Id. Cravath repeated the exercise in the 1980s, see Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 60 (1988),
99. and the 1990s, see Edward A. Adams, Cravath Raises Current Associates' Pay, N.Y.L.J., Dec. 20, 1994, at 1 (reporting that Cravath raised senior associate salaries attempting to retain valuable lawyers).
100. In The Importance of Religion to the Legal Profession, Boardman asserts that: "[A] profession clothed with so lofty a mission, needs, both for its own sake and for the sake of the country, to be pervaded with a wholesome religious sentiment. . . . [P]iety is the basis of good morals. It makes men conscientious." HENRY A. BOARDMAN, THE IMPORTANCE OF RELIGION TO THE LEGAL PROFESSION 8 (Phila., Wm. S. Martien 1849);
101. see also DAVID HOFFMAN, A COURSE OF LEGAL STUDY 51-52, 720-24 (Baltimore, Joseph Neal 2d ed. 1836).
102. Contemporary scholars fashioned a more savvy implicit approach. Thomas Shaffer constructs a professional ethic that more explicitly incorporates religious sensibilities. See Thomas L. Shaffer, The Gentleman in Professional Ethics, 10 QUEEN'S L.J. 1, 35 (1984) ("What rends the gentleman-lawyer's professional ethic is that gentlemen-lawyers think they can save their clients from suffering.").
103. In fact, in the Weberian sense, the Protestant ethic also informed and inspired the structure and organization of the large Jewish firms. Weber argued that in contemporary times, while the form of religion remains, its spirit is vanishing away and that as "the religious roots died out [they gave] way to utilitarian worldliness." WEBER, supra note 29, at 176. He concluded: "What the great religious epoch . . . bequeathed to its utilitarian successor was, however, above all an amazingly good . . . conscience in the acquisition of money . . . ." Id. Similarly, as the religious foundation of the WASP firm died out it left behind a utilitarian organizational structure which the large Jewish law firms adopted. See infra Part II.B.
104. 2 SWAINE, supra note 11, at 9.
105. Id. at 124.
106. Id. at 143.
107. For example, "Neilson's [a partner who came to the Cravath firm in 1906] genial smile, ready sense of humor and great warmth of personality attracted an extraordinarily large number of friends. He was a member and vestryman of Trinity Church at Hewlett, N. Y., and a member of St. James' Protestant Episcopal Church of New York City . . . ." Id. at 145 (emphasis added).
108. 1 SWAINE, supra note 11, at 581.
109. See 2 SWAINE, supra note 11. To cite a few examples: Douglas Maxwell Moffat entered the Cravath firm in 1909, "a vestryman of St. James' Protestant Episcopal Church of New York City," id. at 148, whose grandfather was an ordained Presbyterian minister, id. at 146. Robert Taylor Swaine, who joined the firm around 1917, had ancestors from Yorkshire, England. His grandfather was a chaplain in the Civil War and his grandmother descended from devout Quakers and Methodists. His mother, Alice, "inherited . . . a zest for learning and religion which dominated her son's early years." Id. at 162 (emphasis added). Richard Hooker Wilmer joined the firm in 1924. Of English descent, and a Protestant, "Richard's great-grandfather, the Reverend Dr. William Holland Wilmer . . . was the first Rector of St. John's Episcopal Church, Washington." Id. at 469. It should be noted that of the principal partners of the period, Carl August de Gersdorff, Edward Cairns Henderson, Paul Drennan Cravath, and William D. Guthrie, all were Protestant, 1 SWAINE, supra note 11, at 493-495, 581, 671, with the exception of the latter who was a "devout communicant of the Catholic Church and an ardent friend of France." Id. at 361.
110. At Shearman & Sterling: Mr. Garver delighted in his country home at Oyster Bay, with its gardens and trees. There he lived a large part of the year in simple comfort. He abhorred ostentation . . . . To round out this brief sketch of Mr. Garver, we mention his variety of interests and activities . . . . He was, all in all, a civilized, educated and cultured gentleman; and one of the best lawyers we have ever known. EARLE & PARLIN, supra note 45, at 197-98. At Sullivan & Cromwell, the partner to succeed Mr. Cromwell, John Foster Dulles, "was part of a family with diplomatic and religious traditions that strongly influenced his life and career. . . . Foster Dulles' father was a Presbyterian clergyman." SULLIVAN & CROMWELL 1879-1979: A CENTURY AT LAW, supra note 47, at 28.
111. See supra notes 22-24 and accompanying text.
112. Often, an associate did not know what to expect upon making partner. See SMIGEL, supra note 7, at 92.
113. See HOFFMAN, supra note 9, at 60-61 (noting the rarity of lateral movement by individual lawyers and that there were no "open breaks").
114. Id. at 72 ("In the blue-chip bar client shifts are rare.").
115. SMIGEL, supra note 7, at 57-59.
116. Not until the mid-1970s did the Supreme Court, in a line of cases dealing with various states' ethics rules, question the cavalier and anti-competitive apparatus instituted by the organized bar dominated by the large law firms. See Bates v. State Bar of Ariz., 433 U.S. 350 (1977) (holding that a ban on price advertisement violates First Amendment commercial speech rights); Goldfarb v. Va. State Bar, 421 U.S. 773 (1975) (holding that a fee schedule constituted price fixing in violation of section 1 of the Sherman Act). In Bates, the Court explicitly rejected respondents' claim that price advertising will bring about enhanced commercialism and "irreparably damage the delicate balance between the lawyer's need to earn and his obligation selflessly to serve." 433 U.S. at 368. But compare In re Primus, 436 U.S. 412 (1978) (allowing attorney solicitation for nonprofit impact litigation), with Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978) (upholding sanctions on lawyer who sought plaintiff in a tort suit).
117. White-shoe law firms are "owned and run by members of the WASP elite who are generally conservative," says Princeton University WordNet. WordNet, WordNet Search Results for "White-Shoe," http://wordnet.princeton.edu/perl/webwn?s=white-shoe&sub= Search+WordNet&o2=&o0=1&o7=&o5=&o1=1&o6=&o4=&o3= &h=0. For an assessment of the meaning and currency of white-shoe, see Elizabeth Chambliss, The Shoe Still Fits: The White Buck Is Gone from Elite Law Firms, but the Snobbery It Represented Lives On, LEGAL AFF., Sept.-Oct. 2005, at 18, available at http://www. legalaffairs.org/issues/September-October-2005/toa_sepoct05.msp (exploring the historical and current social and cultural meanings of "white-shoe").
118. Lisagor & Lipsius report that "[e]very partner at Davis, Polk, for instance, was in the social register. According to the novelist Louis Auchincloss, whose father was a Davis, Polk partner, 'The firm would have been shocked that its senior partner would ever be Jewish,' as occurred in the 1980s." LISAGOR & LIPSIUS, supra note 71, at 106. Just as they reference partners' Protestant commitments to evidence professional excellence, firms' accounts refer to the partners' social and cultural standing to boost their merit. At Shearman & Sterling, for example, partner Guy Fairfax Cary was described in terms of his social pedigree and activities. Mr. Cary's "father's forebears (both sides) were distinguished and prominent in the history and social life of Virginia and Maryland; and his mother's of New York." EARLE & PARLIN, supra note 45, at 208. Indeed, the firm's history spends no less than six of the first eight paragraphs of Mr. Carey's description listing his recreational activities and social abilities. Id. Another example of a partner at Shearman & Stearling who demonstrated both protestant values and white-shoe culture is Bigelow Winston, whose "family had been prominent in the history and social life of Chicago from its early days." Id. at 227.
119. Cf. WEBER, supra note 29, at 180-83.
120. "To facilitate cohesion, the firm has relied upon the ethnic, social, and educational similarities of firm members . . . ." HOBSON, supra note 7, at 155.
121. See McAdams, supra note 49, at 1029-33 (exploring how groups define themselves by demeaning members of other groups).
122. In 1885, there were about 5000 lawyers in New York City, of whom about 400 were Jewish. HENRY W. TAFT, LEGAL MISCELLANIES: SIX DECADES OF CHANGES AND PROGRESS 77 (1941). The years between 1890 and 1910 witnessed immense growth in part-time and night-time law schools that graduated an increasing number of lawyers born abroad or to foreign-born parents. AUERBACH, supra note 11, at 95-96.
123. Id. at 52.
124. See generally JEROME KARABEL, THE CHOSEN: THE HIDDEN HISTORY OF ADMISSION AND EXCLUSION AT HARVARD, YALE AND PRINCETON (2005).
125. See MICHAEL J. POWELL, FROM PATRICIAN TO PROFESSIONAL ELITE: THE TRANSFORMATION OF THE NEW YORK CITY BAR ASSOCIATION 141-44 (1988) (discussing the development of bar rules that raised standards at the expense of non-elites); TAFT, supra note 93, at 81-82.
126. See, e.g., Brandeis, supra note 46, at 559-61.
127. Years later John Heinz documented and coined the term the "two hemispheres" of the legal profession. See JOHN P. HEINZ & EDWARD O. LAUMANN, CHICAGO LAWYERS: THE SOCIAL STRUCTURE OF THE BAR 319 (1982).
128. See AUERBACH, supra note 11, at 4 (quotation omitted).
129. Hobson, supra note 8, at 3.
130. ROBERT L. NELSON, PARTNERS WITH POWER: THE SOCIAL TRANSFORMATION OF THE LARGE LAW FIRM 1 (1988). Galanter and Henderson note that as a result of its massive recruitment needs, the contemporary large law firm employs such a significant number of law school graduates to justify interest in it and possibly its status. See Galanter & Henderson, supra note 7.
131. Emerging around the turn of the twentieth century, the large firm established its elite status by the 1920s, significantly grew in size by the 1950s, and reached its Golden Age by the 1960s. See GALANTER & PALAY, supra note 1. Next it outgrew its city-based single office model, expanded nationally and overseas, and grew significantly in terms of number of lawyers and profits per partner between the 1960s and the 1980s. Robert L. Nelson, Of Tournaments and Transformations: Explaining the Growth of Large Law Firms, 1992 WIS. L. REV. 733, 747-49 (reviewing MARC GALANTER & THOMAS PALAY, TOURNAMENT OF LAYERS (1991)).
132. See infra Part II.B.
133. Nelson, supra note 102, at 747-49.
134. See Larson, supra note 8, at 448 ("It is well known that the large law firm was born . . . in a period of institutional reorganization dominated by the rise of the giant business corporation."); Milton C. Regan, Jr., Taking Law Firms Seriously, 16 GEO. J. LEGAL ETHICS 155, 155 (2002).
135. Nelson, supra note 102, at 736-37.
136. The large firm relied on a probation period for purposes of training and selecting talent from within its associate pool for promotion: providing its associates with incentives to work hard, thereby responding to difficulties associated with monitoring both the inherent quality of the associate's work (as opposed to the mere logging of long hours at the office) and the relative quality of work given the firm's dependence on teamwork as opposed to individual output; and discouraging associates from leaving and grabbing the firm's human-capital assets. GALANTER & PALAY, supra note 1, at 5-7, 32-35, 48-52. Promotion to partnership at the end of the probation period provided associates with deferred rewards and thus appropriate incentives to overcome the temptations of shirking, grabbing, and leaving. Finally, to maximize utilization of both the associates' labor and the partners' human capital, the firm set ratios of partners and senior associates to associates, which enabled both effective mentoring and supervision of the associates' work and effective use of the partners' and senior associates' time. Id. at 89-98.
137. Id. at 98-108.
138. But see Nelson, supra note 102, at 738-41 (offering a summary and criticisms of the Galanter & Palay thesis).
139. See, e.g., LISAGOR & LIPSIUS, supra note 71 (describing the demands imposed on associates at Sullivan & Cromwell). See generally Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 VAND. L. REV. 871 (1999).
140. Larson, supra note 8, at 448 (quoting Robert W. Gordon, Legal Thought and Legal Practice in the Age of American Enterprise, in PROFESSIONS AND PROFESSIONAL IDEOLOGIES IN AMERICA 70 (G. Geison ed., 1983)).
141. Bryant G. Garth, Legal Education and Large Law Firms: Delivering Legality or Solving Problems, 64 IND. L.J. 433, 433 (1989) (exploring the "increasingly close connection between the large corporate law firms and the law schools").
142. "Between 1918 and 1929, 81 percent of a sample of nearly three hundred law review graduates from Harvard, Yale, and Columbia chose employment in private practice immediately upon graduation." AUERBACH, supra note 11, at 143.
143. See id. at 144. For other lawyers, the holy grail was out of reach. Effective discrimination by the WASP firms against Jewish lawyers was a driving force behind the success of the Jewish firm.
144. See Jerold S. Auerbach & Eugene Bardach, "Born to an Era of Insecurity": Career Patterns of Law Review Editors, 1918-1941, 17 AM. J. LEGAL HIST. 3, 5 (1973).
145. See AUERBACH, supra note 11, at 130.
146. Infra, Part III.A.
147. In 1950, Weil, Gotshal was the largest Jewish law firm with a total of 19 attorneys; Kaye, Scholer had 18; Paul, Weiss had 17; Proskauer, Rose had 15; Stroock, Stroock & Lavan had 13; Fried, Frank had 12; and the Rosenman firm had 7. MARTINDALE-HUBBELL LAW DIRECTORY (1950). Information regarding the largest New York City law firms between 1963 and 2006 was collected using the following sources: Growth of 20 Law Firms - 1963-1981, N.Y.L.J., Mar. 16, 1981, at 3; National Law Firm Survey, NAT'L L.J., Sept. 18, 1978, at 14; National Law Firm Survey, NAT'L L.J., Oct. 6, 1980, at 32; The 20 Largest Firms Based in New York City, N.Y.L.J., Oct. 1, 1990, at S3; The NLJ 250, NAT'L L.J., Sept. 30, 1985, at S1; The NLJ 250, NAT'L L.J., Sept. 24, 1990, at S4; The NLJ 250, NAT'L L.J., Oct. 9, 1995, at C6; The NLJ 250, NAT'L L.J., NOV. 15, 2004, at S16; Top 25 New York City-Based Firms, N.Y.L.J., Dec. 11, 2000, at S20; Top 25 New York City-Based Firms, N.Y.L.J., Dec. 13, 2004, at 34.
148. CARLIN, supra note 37, at 19-28.
149. Fried, Frank and Paul, Weiss grew by 400%, and Kaye, Scholer by 375%. See supra note 118 (listing sources of data on the growth of New York law firms).
150. Note that because in 1950 the Jewish firms were much smaller than their WASP counterparts, their percentage growth would be higher for a similar increase in the overall number of lawyers. That said, the growth of Jewish firms is still striking. Whereas in 1950 the large WASP firm had at least fifty attorneys, not a single Jewish law firm had more than nineteen attorneys. See supra note 118. By 1963 Jewish firms both achieved comparable numbers to WASP firms and attained elite status. By 1980, although comparable in terms of size, the Jewish firms grew at a faster rate than the WASP firms. See supra note 118 (listing sources of data on the growth of New York law firms).
151. WEBER, supra note 29, at 181-82.
152. Wald, supra note 32, at 8-13.
153. The successful campaign of WASP law firms for elite status further discouraged qualified non-Jewish candidates from seeking employment with the Jewish firms. In a telling contrast, Protestant candidates chose WASP firms because they entailed elite status, not because they were Protestant; whereas some Jewish candidates chose Jewish firms because they were Jewish and therefore not likely to discriminate against Jewish attorneys.
154. See MAX WEBER, "Objectivity" in Social Science and Social Policy, in THE METHODOLOGY OF THE SOCIAL SCIENCES 49, 90 (Edward A. Shils & Henry A. Finch trans., 1949) (explaining that ideal types represent not actual or probable subjects but rather models of abstraction capturing essential representative qualities);
155. see also SUSAN J. HERMAN, WEBER, THE IDEAL TYPE, AND CONTEMPORARY SOCIAL THEORY 18-60 (1983);
156. Marc Galanter, Why the "Haves " Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV. 95 (1974) (using Weber "ideal types" to characterize litigation types as one-shot and repeat-players).
157. Sullivan & Cromwell was founded in 1879 and grew to seventy attorneys by 1948. In its third year, 1881, the firm hired a Jewish attorney by the name of Alfred Jaretzki, Sr., and promoted him to partner in 1894. Several family members followed Jaretzki to the firm: His cousin Edward Green, his son Alfred Jaretzki, Jr., and his son-in-law Eustace Seligman all became partners in the 1920s . . . . None but the elder Jaretzki was active in Jewish affairs, and all were from the same family. Nevertheless, the Jewish presence was unusual for a Wall Street firm of the period. DEAN, supra note 20, at 58-59. To be sure, the Jewish presence was unusual, but promoting a Jewish partner to serve as the active managing partner sometime around the year 1900 may have been the most significant departure from practice realities at other "white- shoe" firms. After Sullivan's death in 1887, Cromwell undertook the active managing partner duties "until around the turn of the [twentieth] century" when Alfred Jaretzki, Sr., assumed the duties of day to day managing partner until Royal Victor took over the role in 1915. Id. at 42. See generally LISAGOR & LIPSIUS, supra note 71 (exploring the history of Sullivan & Cromwell); Erik M. Jensen, Book Review, 1990 COLUM. BUS. L. REV. 133 (reviewing LISAGOR & LIPSIUS, supra note 71).
158. By "token" attorney I mean a lawyer hired or promoted for symbolic reasons, rather then for reasons consistent with standard policies of the firm. A Jewish attorney was thus a token lawyer when he was hired not solely based on the strength of his credentials but in part because he was Jewish.
159. Paul, Weiss, for example, was the first major Wall Street law firm to hire a black associate. HOFFMAN, supra note 9, at 112.
160. HOFFMAN, supra note 9, at 128-46 (exploring the blue chip and socialite characteristics of some of the large law firms).
161. Founded in 1886, the Social Register defines itself as: among America's oldest and most distinguished private associations. Its membership is drawn from the country's most prominent families, and many of those currently listed are direct descendants of the original members. . . . Since its inception, the Social Register has been the only reliable, and the most trusted, arbiter of Society in America. The Social Register Association, http://www. socialregisteronline.com.
162. Supra note 44.
163. DEAN, supra note 20, at i (John Foster Dulles recalling how he got his job at Sullivan & Cromwell despite graduating from the George Washington Law School as opposed to Harvard or Columbia Law School).
164. Prominent among the mixed "Jewish" firms was Paul, Weiss. The firm was formed in 1945 as Mr. Weiss and Mr. Wharton joined forces with Mr. Paul and Mr. Garrison. Unique not only in the heterogeneous religious affiliation of its name partners and attorneys, Paul, Weiss was the first major Wall Street law firm to move to midtown (in 1949), the first to elect a female partner (in 1946 at its D.C. office), and, as noted above, the first to hire a black associate. Judge Rifkind joined the firm in 1950 and the firm gradually gained its reputation as a leading litigation law firm. By 1944, the firm had thirteen lawyers; 110 in 1970; and 138 by 1972. HOFFMAN, supra note 9, at 112-13, 121. Another mixed firm was Cleary Gottlieb, formed following a split from Root, Carter. Most Jewish attorneys followed Mr. Gottlieb to Cleary, and Gottlieb became the first Jewish named partner in a major Wall Street law firm. Id. at 63-65. From its inception the firm was mixed and never acquired a reputation as a Jewish law firm. Paul, Weiss and Cleary Gottlieb were subsequently followed by other mixed firms. In 1963 Skadden, Arps had 10 lawyers. By 1980, it had 205. By 2004, it was the second largest law firm in New York City with over 1700 attorneys. Skadden, Arps never developed a reputation as a Jewish firm, although many of its attorneys, including some of its founders, were Jewish. See generally LINCOLN CAPLAN, SKADDEN: POWER, MONEY AND THE RISE OF A LEGAL EMPIRE 153-75 (1983). Wachtell, Lipton, Rosen & Katz was established by four Jewish named partners. Like Cleary Gottlieb and Skadden, Wachtell never developed a reputation as a Jewish firm, quickly earning a reputation as one of the top elite law firms in New York City and setting the mark for the highest paid associates and the highest profits per partner.
165. Commenting on the interplay between legal education, social standing and ethnic descent, Carlin observed that: "If eastern European Jewish lawyers are generally at the lowest levels of the New York City bar, it is partly because their degrees are from night law schools." CARLIN, supra note 37, at 22.
166. Meaning Torah observant, that is, following Jewish commandments such as not doing work on the holy day of Saturday, following certain dietary restrictions, etc.
167. Geographical dimensions further cemented separation between the large WASP firms and the large Jewish firms. Most Jewish firms were located in midtown, whereas most WASP firms were located on Wall Street. Stroock, Stroock & Lavan, one of two large Jewish law firms on Wall Street, was considered by the WASP bar, slightly condescendingly, as a 'fine, high-class firm.' HOFFMAN, supra note 9, at 27. Over time, the geographical separation began to collapse as large WASP firms began to move to midtown for cost-saving reasons - first to Park Avenue, then to the West Side.
168. Supra notes 106-1117 and accompanying text.
169. The Cravath System was explicitly built on the notion of serving the corporate client's interests in the conference room, as opposed to the courtroom. Litigation was considered the failure of prudent transactional planning. 1 SWAINE, supra note 11, at 573-74 ("Cravath had no instinct for litigation. On its merits he thought it was something to be avoided at any reasonable price; and he had neither liking nor capacity for courtroom forensics. Cravath's forum was the conference room.").
170. Joe Flom of Skadden, Arps tellingly commented in an interview, "I got involved [in mergers and acquisitions] because we were in a situation where that was the business that was available. . . . We didn't have a lot to do, and I got involved in it." Garrett Ordower, Mr. M&A: A Profile of Joseph Flom, BUS. L. TODAY, July/Aug. 2001, at 38.
171. See Steven Brill, Two Tough Lawyers in the Tender-Offer Game, NEW YORK, June 21, 1976, at 52, 54 ("Either because they're still snobby about such fighting, or because Flom [of Skadden, Arps] and Lipton [of Wachtell, Lipton] have such a head start on them in experience and reputation, the old-line law firms are still only rarely involved in tender fights."); Wald, supra note 32, at 27-32.
172. Brill concludes his analysis of the tender-offer "pocket" noting that "there is probably no other major area of law where so small a group of attorneys . . . enjoys such total domination." Id.
173. Id. ("'[Flom's] done the most magnificent thing anyone's ever done in the law business. . . . He's broken the link between the old investment-banking firms and blue-chip companies and their Wall Steet lawyers.'").
174. "Although the practice of hostile takeovers had been going on for some time [by the mid 1970s], it was never done in legitimate business circles and certainly not by blue-chip companies." Ordower, supra note 139, at 40.
175. Brill describes the successful crossover from Jewish pockets to mainstream representation by Skadden, Arps. Brill, supra note 140, at 54 ("When the tender-offer boom began a few years ago, Flom became a hot commodity, not only to raiders but to the more established target companies who decided they'd rather have him defending them than attacking them.").
176. Over time, Jewish firms were able to capitalize on their expertise and reputation within the Jewish pockets of practice, cross over and compete with the WASP firms in the respected areas of the law. Joe Flom of Skadden Arps explained the crossover phenomenon during the 1980s. Mainstream clients were seeking to hire Skadden to prevent it from representing competitors. Skadden conditioned such representation on the clients' hiring the firm to do more than tender-offer protection: In order to control a number of people that were assaulting us, we wanted to be sure they were serious and we didn't want the retainer for doing nothing . . . . We said to the client, "we want to know you are going to use us to a certain extent, or it doesn't pay for us to get involved." Ordower, supra note 139, at 40-41.
177. See Brill, supra note 140, at 55.
178. See Ordower, supra note 139, at 40.
179. Martin Lipton of Wachtell, Lipton, for example, developed the "poison pill," a defense against a hostile takeover, in the tender offer pocket and saw it establish the firm's reputation and facilitate its crossover to representation of mainstream clients. See, e.g., Sharon Hannes, The Market for Takeover Defenses, 101 Nw. U. L. Rev. 125, 132-38 (2007) (describing the invention of the poison pill and its impact on takeover practice).
180. See generally CAPLAN, supra note 133.
181. Supra note 146 and accompanying text. It is important to emphasize that the crossover phenomenon was gradual and slow. Skadden, Arps, for example, "got into [tender offer representations] by accident in the 50s," Ordower, supra note 139, at 38, and did not achieve its dominance in the pocket, let alone crossover effect for nearly thirty years, id. at 40-41.
182. Note, supra note 32 ("Gentiles were more successful than Jews in getting good jobs, and in getting the jobs of their choice."). In 1960, the New York City Bar was almost exclusively native-born, white males, and slightly over 60% Jewish. CARLIN, supra note 37, at 18-19. About one third of the lawyers were born in America, and the recently arrived immigrants were primarily of Eastern European, Jewish origin. Id. at 18. Individual practitioners constituted about 47% of the bar, while small firms (2-4 lawyers) constituted about 17%, medium firms (5-14 lawyers) constituted about 15%, and large firms of 15-49 lawyers constituted about 9%. Id. The largest firms, of 50 or more lawyers, constituted about 12% of the New York Bar. Id.
183. CARLIN, supra note 37, at 22..
184. Id. at 19, 28.
185. Id.
186. Prior to 1945, quotas were common practice. See 1 U.S IMMIGRATION COMM'N, THE CHILDREN OF IMMIGRANTS IN SCHOOLS, S. DOC. NO. 61-749, at 154-56, 160 (3d Sess. 1911) (documenting the number of Jewish students enrolled in law schools);
187. U.S IMMIGRATION COMM'N, THE CHILDREN OF IMMIGRANTS IN SCHOOLS, S. DOC. NO. 61-749, at 776-89 (3d Sess. 1911) (documenting number of Jewish students enrolled in law schools);
188. Bureau of Jewish Soc. Research, Professional Tendencies Among Jewish Students in Colleges, Universities, and Professional Schools, in 22 THE AMERICAN JEWISH YEAR BOOK 383, 383-93 (Harry Schneiderman ed., 1920) (surveying professional tendencies among Jewish students in higher education);
189. see also HEYWOOD BROUN & GEORGE BRITT, CHRISTIANS ONLY: A STUDY IN PREJUDICE 161-74 (1931) (providing anecdotal evidence of prejudice in hiring in the legal profession).
190. After 1945, law schools began to drop discriminatory quotas. See ABEL, supra note 22, at 85-87, 109 (exploring admission quotas as barriers to entering the profession); HAROLD S. WECHSLER, THE QUALIFIED STUDENT: A HISTORY OF SELECTIVE COLLEGE ADMISSION IN AMERICA 168-73 (1977) (discussing selective admission at Columbia's professional schools);
191. Jerold S. Auerbach, From Rags to Robes: The Legal Profession, Social Mobility and the American Jewish Experience, 66 AM. JEWISH HIST. Q. 249, 278-81 (1976) (discussing how prevailing admissions criteria had benefited Jewish law students and reversed professional discrimination);
192. Marcia Graham Synnott, Anti-Semitism and American Universities: Did Quotas Follow the Jews?, in ANTI-SEMITISM IN AMERICAN HISTORY 233, 258-59 (David A. Gerber ed., 1986) (summarizing rising Jewish enrollment in top law schools and the subsequent decrease in Jewish enrollment in elite law schools by 1946 due to adverse reactions by the elite bar);
193. see also Malcolm Gladwell, Getting In: The Social Logic of Ivy League Admissions, NEW YORKER, Oct. 10, 2005, at 80 (reviewing admissions policies at undergraduate Ivy League institutions).
194. AUERBACH, supra note 11, at 97-99 (discussing the elite bar's critique that night law schools bring down high standards of the profession); CARLIN, supra note 37, at 38 n.23; ROBERT STEVENS, LAW SCHOOLS: LEGAL EDUCATION IN AMERICA FROM THE 1850s TO THE 1980s, at 74-79 (1983) (discussing role and expansion of part-time law schools).
195. Wald, supra note 32, at 32-42. See also, David B. Wilkins & G. Mitu Gulati, Reconceiving the Tournament of Lawyers: Tracking, Seeding, and Information Control in the Internal Labor Markets of Elite Law Firms, 84 VA. L. REV. 1581, 1676-77 (1998) (exploring the tendency of partners to mentor those with whom they share a cultural, socioeconomic, and religious affinity). Discrimination against non-Jews, akin to anti-Semitic discrimination present at the WASP firms, no doubt also played a role in the large Jewish firms' hiring and promotion decisions. That said, Paul, Weiss, a Jewish law firm, was the first to name a woman partner and hire a black associate, HOFFMAN, supra note 9, at 112-13, and Stroock, Stroock & Lavan, another Jewish firm, had the only Puerto Rican partner at a "blue chip" law firm, id. at 137.
196. Between the late nineteenth century and the 1960s large law firm discrimination against Jewish lawyers was the norm. While after 1945 some WASP firms gradually began to hire "token" Jewish lawyers and effective discrimination against Jewish attorneys was gradually declining, it is important not to overstate the extent of the change, nor the pace at which it was taking place. The Jewish associate at a WASP law firm in this transitional period, between 1945 and 1965, was not the prototypical metropolitan "Jewish" lawyer of the day. While the latter was typically either a first- or second-generation immigrant of Eastern European descent, of a lower socioeconomic class, and a graduate of a part-time or night law school, the Jewish lawyer that was able to enter a large WASP firm at this time was the exception that proved the discriminatory status quo; he was more likely a second-generation immigrant of German descent, of a higher socioeconomic class, a graduate of an elite law school, a law review member, and sometimes the son of a lawyer, rather than the son of middle-class or working-class parents.
197. See supra Part I.B.
198. Kaye, Scholer's advertisement at Columbia one year illustrated the consequences of this commitment by seeking "law review only" candidates. See HOFFMAN, supra note 9, at 132-33.
199. See, e.g., id. at 135.
200. It is noteworthy that the discriminatory practices of the WASP firms - with their consequence of a tight competitive market for jobs from the perspective of Jewish graduates of elite law schools - did not result in the standard economic prediction of decline in the demand and interest of Jewish law students in elite law schools. Jewish law students continued to graduate in relatively high numbers from elite law schools and flocked to the large, growing Jewish firms. Regarding the affinity between Jews and the law that may account for this phenomenon, see JEROLD S. AUERBACH, RABBIS AND LAWYERS: THE JOURNEY FROM TORAH TO CONSTITUTION (1990).
201. But see Suzanne Last Stone, In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory, 106 HARV. L. REV. 813 (1993) (concluding that the perceived intellectual affinity between the Jewish and American legal traditions is often more perceived than accurate).
202. See, e.g., AUERBACH, supra note 11, at 184-88 (exploring the opportunity afforded to Jewish lawyers during the New Deal era to help establish in Washington, D.C., an alternative to Wall Street's elite legal structure).
203. GALANTER & PALAY, supra note 1.
204. Demand factors and the consequences of the effective campaign by the large law firms for elite professional status also explain large law firm growth. See supra Part I.C.
205. Hoffman notes: Except for departures to government service, none has lost more than one partner at a time. Also, when partners leave a firm, they generally go into government, business or academic life. Only a handful quit one firm to practice with another. . . . [T]he Brahmins of the Bar don't shop around for better-paying positions. . . . And, as if by an unwritten agreement, there is almost no "raiding" by one firm of another's talent. HOFFMAN, supra note 9, at 60-61.
206. Hoffman notes, "In recent years [the early 1970s], the blue-chip bar has remained remarkably stable. There has not been a significant split in a major Wall Street or Park Avenue firm for more than twenty-five years." Id.; see also SMIGEL, supra note 7, at 57 ("Competition for lawyers among the large firms in New York City [was] limited in two major ways: the firms will not pirate an employee from another law office, and they maintain a gentleman's agreement to pay the same beginning salary . . . .").
207. Galanter & Henderson, supra note 7.
208. See sources cited supra note 118; Wald, supra note 32, at 15 tbl.2.
209. Mudge Rose grew in the 1960s by successive mergers and the absorption of other law firms, expanding from 55 to 105 lawyers in a ten-year period between 1958 and 1968. See HOFFMAN, supra note 9, at 45. Commenting on Mudge Rose's "swell[ing]" from a total of 105 attorneys when President Nixon left the firm to almost 120 attorneys a few years later, Hoffman noted, "Despite its successes, there was a general feeling along Wall Street that it may have sacrificed quality for quantity, that its business burgeoned faster then its ability to handle it." Id. at 125. In other words, Mudge Rose's rapid growth was viewed as "unprofessional" by the Wall Street elite. And the pressure caused Mudge Rose to slow down: "That's a problem," [Randolph H.] Guthrie [one of the firm's senior partners] concedes . . . . "I dare say, if we had really wanted to, we could have doubled the size of the firm. But there's no particular merit in being big . . . . We're not hungry. We do very well anyway." Id. at 108, 125. Indeed, this shows the white-shoe ethos at work in a law firm with "the lineage of a thoroughbred." Id. at 108. Tellingly, Paul, Weiss's similar growth during the same timeframe, see id. at 45, 115-116, was not inhibited by the same ethos that restricted Mudge Rose. Mudge Rose chose to play by the "rules" of the Cravath System and forgo further aggressive growth.
210. Id. at 60 (emphasis added).
211. Smigel quotes a Cravath alumnus as recalling, "Mr. de Gersdorff of Cravath used to say, 'We don't want people for partners with whom we need written agreements.'" SMIGEL, supra note 7, at 199. At a time when the Jewish firms were growing faster than the WASP firms, within white-shoe firms, "[s]uper-achievers [were] not made partners. . . . It[] [was] because of the firm's unwillingness to take in a guy who moves too fast. They don't want to rock the boat." HOFFMAN, supra note 9, at 141 (quotation omitted). "In other cities where the bar is more personal and less institutionalized, a lawyer may bounce from firm to firm like a rubber ball. . . . But on the upper levels of the New York bar, the shifts are so rare that lawyers can tick them off on their fingers." Id. at 61. The door to the large firm arena was left open for newcomer firms to enter and compete with the established elite.
212. See infra note 172.
213. Wald, supra note 32, at 31-32..
214. In 1945, there were approximately three dozen elite large WASP law firms with less than 2000 attorneys. By 1971, the stable group of large WASP law firms grew in number of lawyers employed to approximately 3000, but the number of firms stayed stagnant. HOFFMAN, supra note 9, at 1-14; see sources cited supra note 118.
215. Shearman & Sterling grew by 150% between 1963 and 1981 and was still the largest law firm in New York; Cravath grew by 81%; Davis Polk by 97%; Sullivan & Cromwell by 91%; and Simpson Thacher by 92%. However, the Jewish firms grew much faster. See sources cited supra note 118; Wald supra note 32, at 15 tbl.2.
216. Fried, Frank grew by 264%; Weil, Gotshal by 424%; Paul, Weiss by 143%; Kaye, Scholer by 91%; and Cahill, Gordon (the Catholic firm) by 130%. See sources cited supra note 118; Wald supra note 32, at 15 tbl.2
217. Initially, some leading attorneys resisted the bureaucratization of their firms in the Cravath mold, objecting to growth per se, the use of associates, and utilization of technological innovations. Holding on to the traditional model of law practice, the "dinosaurs" of the past rejected the Cravath System, which they saw as the paradigm shift of "selling out" professionalism to profit-driven big business. See HOBSON,
218. Some early corporate clients, dominated by powerful WASP founders, were themselves biased against Jewish lawyers. This bias gradually subsided as decision-making authority within corporate entities regarding the retention of outside counsel shifted to inside counsel. See infra Part II.C.4.
219. The concept of visibility is invoked here following Erving Goffman's use, in the sense of how well or how badly public performance communicates information about the quality of individual attorneys and of Jewish law firms. See ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY 48-51 (1963). Of course, Goffman explored the visibility of stigma and thus the negative consequences of visibility, whereas here visibility had positive consequences for Jewish law firms.
220. In 1947, another Kaye, Scholer attorney "successfully mediated a threatened strike at a New Jersey factory" and his success led to additional mediation cases. "We can trace a whole school of clients from that one case," a partner at Kaye Scholer noted. HOFFMAN, supra note 9, at 92.
221. See Wald, supra note 32, at 19-20. While the Jewish law firms were benefiting from the high visibility of their attorneys' professional success, the WASP firms continued to benefit from the high cultural and socioeconomic visibility of their lawyers.
222. See HOFFMAN, supra note 9, at 52; supra note 10 and accompanying text.
223. HOFFMAN, supra note 9, at 52 (citation omitted). This legal environment was quite different from the one that existed when Milton Handler, Ira Millstein, Marty Lipton and Joe Flom rose to prominence.
224. There are several examples of attorneys whose successful individual visibility enabled Jewish lawyers to succeed at WASP firms, including Leo Gottlieb, who in 1945, after the split of the Root, Clark firm into Cleary, Gottlieb and Dewey, Ballantine, became the first Jewish named partner in a major WASP Wall Street firm (although Hoffman reports that an observer commented that "Cleary Gottlieb took with them all the Jews and liberals"); Eustace Seligman at Sullivan & Cromwell; Ed Weisl at Simpson, Thacher; Louis Loeb, who joined Lord, Day & Lord in 1947, represented The New York Times until the paper dropped his firm due to the Pentagon Papers affair, and was the first Jewish president of the New York City Bar Association; and Floyd Abrams at Cahill, Gordon, who represented The New York Times with Alexander Bickel in connection with the Pentagon Papers. Id. at 65, 96-104.
225. By the "flip side of bias" I mean to denote the positive consequences of prejudice and contrast them with the negative outcomes of bias.
226. What Russell Pearce would later call the "Professionalism Paradigm Shift." See Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1996);
227. see also RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY 185-211 (1999).
228. In his classic The Nature of Prejudice, Allport defines a stereotype as "an exaggerated belief associated with a category. Its function is to justify (rationalize) our conduct in relation to that category. . . . A stereotype is not identical with a category; it is rather a fixed idea that accompanies the category." GORDON W. ALLPORT, THE NATURE OF PREJUDICE 191 (1954). Allport explained that a stereotype may be positive or negative, id. at 191 (Allport characterized stereotypes as favorable and unfavorable), justifying categorical acceptance in the case of the former and justifying categorical rejection in the case of the latter, id. at 192.
229. While positive stereotyping might entail beneficial consequences, as was the case for Jewish attorneys and law firms, whether stereotyping is ever desirable is very much in dispute. See, e.g., Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259 (2000);
230. Paul Horwitz, Uncovering Identity, 105 MICH. L. REV. 1283 (2007);
231. Chris Frates, Owens' "Stereotyping" Not Positively Received, DENVER POST, Aug. 4, 2006 (discussing the controversy surrounding Colorado Governor Bill Owens' comments regarding positive Jewish and Asian cultural stereotypes).
232. Jews excelled at other professions as well. See Thomas L. Shaffer, The Legal Ethics of Belonging, 49 OHIO ST. L.J. 703, 713 (1988) ("Jews have advanced into the professions more rapidly than any other late immigrant group. In 1970, seventy percent of American Jewish males were in 'professional, technical, managerial, and administrative careers."' (citing RAPHAEL PATAI, THE JEWISH MIND 497 (1977));
233. see also, e.g., Barak D. Richman, How Community Institutions Create Economic Advantage: Jewish Diamond Merchants in New York, 31 LAW & SOC. INQUIRY 383 (2006) (outlining Jewish domination of the diamond industry);
234. Sherwin B. Nuland, My Son, the Doctor - the Saga of Jews and Medicine, THE NEW REPUBLIC, Sept. 5, 2005, at 27-34 (studying the role of intellect in explaining the affinity between Jews and medicine).
235. Social capital is a resource that "exists in the relations among persons." See James S. Coleman, Social Capital in the Creation of Human Capital, 94 AM. J. SOC. 95, 100-01 (1988) (exploring "the use of [social capital] through demonstrating [its] effect in the family and in the community in aiding the formation of human capital").
236. It is the sum of the resources which allow a person to accomplish economic and non-economic goals, achieved through a person's network of relationships. Pierre Bourdieu, The Forms of Capital, in HANDBOOK OF THEORY AND RESEARCH FOR THE SOCIOLOGY OF EDUCATION 241-58 (John G. Richardson ed., 1986);
237. R.S. BURT, STRUCTURAL HOLES: THE SOCIAL STRUCTURE OF COMPETITION (1992).
238. This network provides its members with an advantageous credential that arises from its members' obligations, norms, status, friendships, and esteem with other members in the network. Bourdieu, supra, at 249. In addition, a person's network, extended by "friends of friends," J. BOISSEVAIN, FRIENDS OF FRIENDS (1974), connects him with opportunities that would otherwise not have been revealed. Mark S. Granovetter, The Strength of Weak Ties, 78 AM. J. SOC. 1360, 1369-73 (1973) (demonstrating that weak connections among groups of people are "indispensable to individuals' opportunities and to their integration into communities"). This network of relationships can exist "intergenerationally," within the family, and from organizational and social participation in the community. Coleman, supra, at 109. Social capital in the family and community can facilitate the creation of human capital in "the rising generation." Id. Social capital within the family is extremely important for a "child's intellectual development," enhancing a child's opportunity to create human capital. Id. at S110, S113-14. Outside of the family, social capital "consist[s] of the social relationships that exist among parents, in the closure exhibited by this structure of relations, and in the parents' relations with the institutions of the community." Id. at S113. The American Jewish community channeled social capital into the study of law. Auerbach makes the case for the cultural affinity of American Jews and a legal career. He argues that after 1945, control of the expressions and direction of American Judaism had switched hands from rabbis to lawyers: Marshall, Brandeis, Frankfurter and Mack. Auerbach submits that for American Jews and Jewish immigrants, legal practice was a means of becoming truly "American" and proving their patriotism. Marshall and Brandeis, for example, provided "a secular legal frame of reference for Jewish acculturation . . . . For both men, the allegiance of American Jews could be only to the Constitution and to the rule of law that it symbolized. Their fervent attachments to the American legal system defined a new identification for American Jews." AUERBACH, supra note 162, at 146.
239. The Jewish community provided a social and cultural support system to law students in ample role models both at the upper sphere of the profession (in Justices Brandies and Frankfurter), and numerous counter-role models at the bottom spheres of the city bar. Jewish students attending elite law schools and seeking a career at a large New York City firm had to overcome the taste for ethnic and religion-based discrimination as well as socioeconomic barriers. Endowed with high social and human capital, however, Jewish lawyers did not have to overcome low intellectual self-esteem. To students who grew up either in the analytical tradition of the Talmud or in the secular intellectual tradition, "learning to think like a lawyer" and an emphasis on analytical skills were familiar. Thus, once Jewish students overcame, with time, low socioeconomic self-esteem, the opportunities in law were unlimited. Jewish lawyers believed that, but for the "irrelevant" socioeconomic factors, they were intellectually qualified for the practice of law. In essence, social and cultural capital served as the foundation upon which Jewish lawyers built in developing high intellectual self-esteem that in turn facilitated their success at elite law schools and practicing with large law firms. See Wald, supra note 32, at 43-46. See generally PATAI, supra note 190.
240. The Jewish immigrant community had an ethos of learning and commitment to higher education. A "better" life meant increased educational opportunities for the next generation. Second generation Jewish immigrants were encouraged to pursue college and graduate education. Educational achievements were considered prestigious and conferred high social status within the community. The American Jewish community thus encouraged an investment in social and human capital. See Wald, supra note 32, at 40-42.
241. By "inside counsel" I mean attorneys who are employees of private business corporations. Rosen tracks the evolution of the title of inside counsel from "house counsel," "tame" and "kept" lawyers, to "inside counsel" and finally "corporate counsel." The titles reflect the growth of inside counsel's prestige and power vis-à-vis outside counsel: "tame" and "kept" captured the weak position of inside counsel within their corporate entities and with regard to outside counsel. "Inside counsel" referred to their physical and professional location, as distinguished from the outside large law firms' lawyers. See Robert Eli Rosen, The Inside Counsel Movement, Professional Judgment and Organizational Representation, 64 IND. L.J. 479, 479 (1989).
242. See, e.g., George P. Baker & Rachel Parkin, The Changing Structure of the Legal Services Industry and the Careers of Lawyers, 84 N.C. L. REV. 1635 (2006);
243. Abram Chayes & Antonia H. Chayes, Corporate Counsel and the Elite Law Firm, 37 STAN. L. REV. 277 (1985);
244. Deborah A. DeMott, The Discrete Roles of General Counsel, 74 FORDHAM L. REV. 955 (2005);
245. Peter J. Gardner, A Role for the Business Attorney in the Twenty-First Century: Adding Value to the Client's Enterprise in the Knowledge Economy, 7 MARQ. INTELL. PROP. L. REV. 17, 32-33 (2003);
246. Susanna M. Kim, Dual Identities and Dueling Obligations: Preserving Independence in Corporate Representation, 68 TENN. L. REV. 179, 199-208 (2001);
247. Carl D. Liggio, The Changing Role of Corporate Counsel, 46 EMORY L.J. 1201 (1997);
248. Robert L. Nelson & Laura Beth Nielson, Cops, Counsel, and Entrepreneurs: Constructing the Role of Inside Counsel in Large Corporations, 34 LAW & SOC'Y REV. 457 (2000); Rosen, supra note 194;
249. Ted Schneyer, Professionalism and Public Policy: The Case of House Counsel, 2 GEO. J. LEGAL ETHICS 449, 458-59 (1988);
250. Jonathan R. Maslow, The Rise of In-House Counsel, CAL. LAW., Sept. 1981, at 31;
251. see also Marc S. Galanter & Thomas M. Palay, Why the Big Get Bigger: The Promotion-to-Partner Tournament and the Growth of Large Law Firms, 76 VA. L. REV. 747, 751-52 (1990) (discussing the rise of inhouse corporate law departments);
252. Janet Stidman Eveleth, Life As Corporate Counsel, MD. B.J., Jan.-Feb. 2004, at 16 (examining the role of in-house counsel in Maryland);
253. cf. Am. Corp. Counsel Ass'n, Diversity in the Legal Profession, ACCA DOCKET, Sept.-Oct. 1996, at 32 (discussing corporate counsels' ability to influence diversity).
254. See generally MARK STEVENS, POWER OF ATTORNEY: THE RISE OF THE GIANT LAW FIRMS 7-16 (1987) (studying the rise of corporate counsel).
255. Schneyer asserts that "[house counsel] have grown considerably since the 1950s, both absolutely and relatively to other segments of the bar." Schneyer, supra note 195, at 458. Others find that the office of inside counsel was still in decline in the 1950s and trace the reversal of the trend to the 1960s. All agree that, by the 1970s, the office of inside counsel was on the rise: "By the 1970s, the general counsel's position in many large corporations grew in stature and scope of responsibility. . . . General counsel joined senior management near or at the top of the corporate hierarchy." DeMott, supra note 195, at 960; see also Liggio, supra note 195, at 1203-07 (exploring the renaissance of corporate counsel in the late 1970s).
256. "[Another] compelling reason[] beside[s] cost to bring legal work in-house . . . [was] [c]orporate growth . . . . 'When a company reaches a certain point . . . common sense tells you that it's a good idea to have your own lawyers.'" Maslow, supra note 195, at 31-32.
257. Rosen, supra note 194, at 507-10.
258. Chayes & Chayes, supra note 195, at 280-89; Rosen, supra note 194, at 519-25.
259. Chayes & Chayes, supra note 195, at 289-93; Rosen, supra note 194, at 510-19.
260. See sources cited supra note 201.
261. Rosen explores both popular and scholarly reports that explain the rise to power of inside counsel. Rosen, supra note 194, at 481-502 (noting in part that "[w]hether out of fear of biting the hand that feeds them, or because of ethical duties to provide the service the client requests, elite practitioners do not openly challenge, and indeed vie for, relationships in which inside counsel have become 'the client,'" and thus exercise control over outside counsel).
262. Chayes & Chayes, writing in 1985, found that "today with respect to outside law firms, the general counsel is the client, rather than the CEO or some other representative of the firm." Chayes & Chayes, supra note 195, at 290.
263. Maslow, supra note 195, at 74 ("Fewer clients are choosing one firm for all their outside business. They're starting to shop around.").
264. HOFFMAN, supra note 9, at 135-36.
265. Chayes & Chayes, supra note 195, at 290-91; id. at 294 ("[F]irm[s] now perform[] specific, designated tasks, and . . . the client's business is no longer concentrated in a single firm." (footnotes omitted)).
266. Cf. Rosen, supra note 194, at 484 ("[E]lite firms have responded to the emergence of inside counsel as purchasing agents for their services by entering 'beauty contests' and bidding wars with their elite rivals.").
267. Maslow, supra note 195, at 32, 73 (arguing that corporate clients' hands-off attitude vanished as a result of inside counsel's managerial role and citing Gilson for the proposition that corporate clients were no longer willing to overlook price and performance in the name of loyalty to a long-standing law firm).
268. Rosen, supra note 194 at 505 ("[U]nder current market conditions, corporations have found it necessary to control the fees incurred for legal services. Inside counsel substitute for outside counsel because elite firms are not able or willing to renegotiate their fee structures.").
269. See Rosen, supra note 194 at 510-19 (describing the expansion of duties for inside counsel and their tense relationship with outside counsel).
270. Supra notes 206-07 and accompanying text.
271. Chayes & Chayes, supra note 195, at 296.
272. Id. at 295-96 ("In the law schools a generation ago, the ideal legal career envisioned by the students was the office lawyer, the architect of well-crafted and durable legal arrangements that accommodated the parties' needs and interests. A career in litigation was thought of as barely a step above criminal law or divorce. Today, a large number of the same students are anxious to become litigators."). It is perhaps not surprising that law students developed an interest in inside counsel positions and hence litigation. Inside counsel positions featured shorter working hours, no pressure to bring in new clients and salaries approximating those of associates at the elite firms. Moreover, the rise of inside counsel also meant the promise of quality work and exercise of professional judgment, the same promise that the large firms used to be able to make before inside counsel took over some of the work they had previously performed. Rosen, supra note 194, at 480, 487-88 (noting the exercise of power and quality professional judgment by inside counsel at the expense of outside counsel).
273. See Wald, supra note 32, at 20-23.
274. Melvin M. Fagen, The Status of Jewish Lawyers in New York City, 1 JEWISH SOC. STUD. 73, 98 (1939). Fagen's study indicated Jewish lawyers tended to have a larger Jewish client base compared to a non-Jewish client base, but the study also showed that Jewish lawyers were not completely dependent on a Jewish client base. See also SMIGEL, supra note 7, at 174 (stating that a partner at a "major Jewish firm" said that more than half of the firm's clients were non-Jewish but that a partner at a different "large Jewish firm" said that the firm's clients were "predominantly Jewish").
275. SMIGEL, supra note 7, at 174.
276. Id.
277. See id.
278. CARLIN, supra note 37, at 19, 22-37 (finding that while Jewish attorneys constituted 60% of the New York City Bar, they were heavily relegated to the lower strata).
279. WEBER, supra note 29, at 181-82.
280. And yet, old hiring and promotion habits die hard, especially when mixed with prevailing anti-Semitism against Jewish attorneys, ethnic and religious discrimination against Catholic attorneys, and socioeconomic and cultural snobbery. Accordingly, in the 1950s, even as the dominance of Protestant vales and the white-shoe ethos as organizing themes of the large firm were in decline, large firms still routinely discriminated against non-WASP lawyers. Supra notes 152-155 and accompanying text.
281. As Auchincloss points out: the old managerial elect have shrewdly adapted themselves to the new ways. . . . [They] saw that they could stay rich even if they had lost their rank. . . . [I]n giving this up [their socioeconomic status], the old world gave up nothing that hurt it. Indeed, the whole transformation has been accomplished in such a way that the new rich can boast with a smug satisfaction that the old WASP world is dead and gone. Louis Auchincloss, The Persistence of the WASP, in BIG ISSUES: THE EXAMINED LIFE IN THE DIGITAL AGE 147, 147-48 (Forbes ASAP ed., 2001).
282. Lisagor and Lipsius, for example, referring to the firm's hiring and promotion of several Jewish attorneys, contrast Sullivan & Cromwell with the other white-shoe firms of the day, and argue, "Where Davis, Polk epitomized aristocratic law, which included most of the white-shoe firms, Sullivan & Cromwell, with its hard-working Jewish partners, epitomized and anticipated the meritocracy that would ultimately overtake all Wall Street practices." LISAGOR & LIPSIUS, supra note 71, at 106-07. However, when one considers the possibility that the hard-working Jewish partners may have been hired because of their personal connections and nepotism rather than merit it seems more likely that Sullivan & Cromwell remained entrenched in the white-shoe aristocracy of the day while aspiring towards the meritocracy of its future. See id. at 58-59 (Alfred Jaretzki, Sr., the first Jewish partner at the firm "went to Harvard with George Sullivan, the son of Cromwell's original partner"). Referring to the large Jewish contingency at the firm, Lisagor and Lipsius quote a firm partner who noted: "They were all relatives." Id. The Jewish partners of Sullivan & Cromwell of the early twentieth century were Edward H. Green, Jaretzki's cousin, Alfred Jaretzki, Jr., and Eustace Seligman, Jaretzki's son-in-law. Id.
283. AUERBACH, supra note 11, at 232 ("For the first time, minority-group lawyers in significant numbers gained access to the professional elite in private practice. Ethnic and religious lines still held fast in the older corporate firms . . . [b]ut the expertise accumulated by lawyers in New Deal Washington increased their market value . . . [and yielded rewards for] those [minority lawyers] who followed the traditional path to success . . . .").
284. The period also featured the beginning of a gradual decline in gender discrimination, at least at the hiring stage, if not the promotion-to- partnership stage.
285. Pearce, supra note 187. See generally Mary C. Daly, The Ethical Implications of the Globalization of the Legal Profession: A Challenge to the Teaching of Professional Responsibility in the Twenty-First Century, 21 FORDHAM INT'L L.J. 1239, 1264 (1998) (discussing the "law as a profession v. law as a business" debate).
286. Pearce, supra note 187, at 1233-40.
287. Id. at 1263-76.
288. Id. at 1238.
289. See id. at 1265-67.
290. See supra note 87.
291. "[T]he Bates decision has had a profound, perhaps radical, effect on our profession." Duncan A. MacDonald, Speculations by a Customer About the Future of Large Law Firms, 64 IND. L.J. 593, 594 n.4 (1989).
292. In other words, religious, socioeconomic and cultural characteristics have had a role in allowing the large WASP firm to maintain a claim to elite professional status. Having served their purpose, the old "warmth of personality" qualities outlived their usefulness and slowly became a liability rather than an asset. The large firm responded by rejecting the old white-shoe Protestant-infused ideology and replaced it with the new hyper-competitive business-based ideology of professionalism.
293. GARY S. BECKER, THE ECONOMICS OF DISCRIMINATION 44-45 (2d ed. 1971).
294. See id.
295. David Wilkins et al., Urban Law School Graduates in Large Law Firms, 36 SW. U. L. REV. 433, 444 (2007).
296. But see CAROL KHAWLY ET AL., 1998-2000 REPORT ON HATE CRIMES AND DISCRIMINATION AGAINST ARAB AMERICANS 18 (Hussein Ibish ed., 2001), available at http://www.adc.org/hatecrimes/pdf/1998-2000.pdf (reporting discrimination against a Muslim employee at a large law firm).
297. See generally Sid Steinberg, EEOC Reinforces Federal Law Against National Origin Discrimination, LAW.COM, Jan. 24, 2003, http://www.law.com/jsp/article.jsp?id=1042568695769 (discussing increased workplace discrimination against Arab, Muslim, Middle Eastern, South Asian and Sikh individuals after September 11, 2001).
298. For a complete description of the study, see Sterling et al., supra note 11, at 398-99.
299. David B. Wilkins, From "Separate Is Inherently Unequal" to "Diversity Is Good for Business": The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar, 117 HARV. L. REV. 1548, 1556-58 (2004).
300. Id. at 1583-84.
301. HOFFMAN, supra note 9, at 136; Wald, supra note 32, at 46-50.
302. Alan Dershowitz's The Vanishing American Jew raises the possibility that over time, a majority of lawyers in all large law firms will be Christian, if only due to the decline in the number of Jews in America and the corresponding decline in the number of Jewish lawyers. See ALAN M. DERSHOWITZ, THE VANISHING AMERICAN JEW: IN SEARCH OF JEWISH IDENTITY FOR THE NEXT CENTURY (1997);
303. SAMUEL C. HELIMAN, PORTRAIT OF AMERICAN JEWS: THE LAST HALF OF THE TWENTIETH CENTURY (1995) (exploring the decline in the status of American Jews as the result of social assimilation).
304. Randall Kennedy has pointedly responded that: "Substantial numbers of people in many, maybe all, minority groups feel divided between enjoying fully the opportunities offered by white [A]nglo-[C]hristian America - the 'mainstream' - and maintaining a distinctive community immune from complete assimilation." Randall Kennedy, Racial Passing, 62 OHIO ST. L.J. 1145, 1187 n.188 (2001). At the same time, with increased secularization among American professionals it is equally possible that, to borrow from Dershowitz, the vanishing religious lawyer would render the question of the religious identity of the large law firm meaningless.
305. While there is virtually no literature exploring the meaning of a Jewish law firm, there is ample scholarship exploring the question of what it means to be a Jewish attorney. See generally LEONARD BAKER, BRANDEIS AND FRANKFURTER: A DUAL BIOGRAPHY (1984);
306. ARTHUR L. LIMAN, LAWYER: A LIFE OF COUNSEL AND CONTROVERSY (1998);
307. JOSEPH M. PROSKAUER, A SEGMENT OF MY TIMES (1950).
308. For studies exploring the relationship between professional identity and Jewish identity, see, for example, AUERBACH, supra note 163 (studying the affinity between Jews and American law); Marc Galanter, A Vocation for Law?: American Jewish Lawyers and Their Antecedents, 26 FORDHAM URB. L.J. 1125 (1999);
309. Jerome Hornblass, The Jewish Lawyer, 14 CARDOZO L. REV. 1639 (1993);
310. Samuel L. Levine, The Broad Life of the Jewish Lawyer: Integrating Spirituality, Scholarship and Profession, 27 TEX. TECH L. REV. 1199 (1996);
311. Russell G. Pearce, The Jewish Lawyer's Question, 27 TEX. TECH L. REV. 1259 (1996);
312. Russell G. Pearce, Reflections on the American Jewish Lawyer, 17 J.L. & RELIGION 179 (2002)
313. (reviewing AUERBACH, supra note 162, and MICHAEL J. BROYDE, THE PURSUIT OF JUSTICE AND JEWISH LAW: HALAKHIC PERSPECTIVES ON THE LEGAL PROFESSION (1996)).
314. For example, consider Stroock's first "Christian" partner. See HOFFMAN, supra note 9, at 136.
315. Id.
316. To be clear, I am not arguing that distinctively Jewish law firms are a thing of the past. The legacy of near exclusive hiring and promotion of Jewish attorneys still lingers on at some old Jewish firms, a legacy, however, that contemporary non-discriminatory practices will address over time. Moreover, certain cultural features of the firm no doubt will die hard. Nonetheless, Judaism never played a significant role as a constitutive feature underlying the organization and practice of the large Jewish firm and given current practice realities and dominant professional ideology is not likely to occupy that role in the future.
317. See generally Galanter & Henderson, supra note 7; Sussman, supra note 10, at 970. Nelson has called these changes the transformation of the "classic big law firm" into the "late big law firm." Nelson, supra note 102, at 737.
318. The leading authority on lawyer mobility is Robert Hillman. See ROBERT W. HILLMAN, HILLMAN ON LAWYER MOBILITY: THE LAW AND ETHICS OF PARTNER WITHDRAWALS AND LAW FIRM BREAKUPS (2007);
319. see also Robert W. Hillman, Law Firms and Their Partners: The Law and Ethics of Grabbing and Leaving, 67 TEX. L. REV. 1 (1988) (exploring the destabilizing effects of lateral movements on law firms);
320. Robert W. Hillman, Loyalty in the Firm: A Statement of General Principles on the Duties of Partners Withdrawing from Law Firms, 55 WASH. & LEE L. REV. 997 (1998) (providing an overview of lawyer mobility);
321. Robert W. Hillman, Professional Partnerships, Competition, and the Evolution of Firm Culture: The Case of Law Firms, 26 J. CORP. L. 1061 (2001) (addressing the emergence of lawyer mobility based on the law granting "supremacy" to a client's right to choose counsel, as well as the costs and effects of lawyer mobility);
322. Robert W. Hillman, The Hidden Costs of Lawyer Mobility: Of Law Firms, Law Schools, and the Education of Lawyers, 91 KY. L.J. 299 (2002) [hereinafter Hillman, Hidden Costs] (presenting an overview of the differences between the legal profession that pre-dated the proliferation of lawyer mobility and contemporary practice realities).
323. Other scholarship on the subject includes Amon Burton, Migratory Lawyers and Imputed Conflicts of Interest, 16 REV. LITIG. 665 (1997) (examining the effects of conflict of interests rules and subsequent motions for disqualification based mostly on Texas cases and Texas rules of ethics);
324. Dorothy M. Gibbons-White, Migratory Lawyers in Private Practice: Should California Approve the Use of Ethical Walls?, 33 LOY. L.A. L. REV. 161 (1999) (arguing that with increased lawyer mobility, a broad view of imputed disqualification results in a greater danger that ethical rules will be used as a tactical "weapon" by opposing counsel, thereby undermining the rules);
325. Eli Wald, Lawyer Mobility and Legal Ethics: Resolving the tension between Confidentiality and Contemporary Lawyers' Career Paths, 31 J. LEGAL PROF. 199 (2007) (exploring the impact of increased lawyer mobility on the rules of professional conduct and pressure mobility exerts on the rules' underlying ideology);
326. Robert M. Wilcox, Enforcing Lawyer Non-Competition Agreements While Maintaining the Profession: The Role of Conflict of Interest Principles, 84 MINN. L. REV. 915 (2000) (arguing that courts' general rule dismissing covenants not to compete is too burdensome and asserting that courts should apply a "balancing test" between the interests of clients and of law firms);
327. see also Ronald J. Gilson & Robert H. Mnookin, Sharing Among the Human Capitalists: An Economic Inquiry into Corporate Law Firms and How Partners Split Profits, 11 STAN. L. REV. 313 (1985) (exploring law firm profit structure, specialization, diversification, and treatment of individual attorneys as valuable assets or "human capital").
328. Importantly, notwithstanding this radical transformation and proliferation of organizational models within the large law firm universe, the constitutive features of the firm qua firm, as opposed to a loose affiliation of lawyers, have endured: a hierarchical structure, close affiliation among firm lawyers, the team as the core unit of practice, almost exclusive reliance on entity clients, increased specialization and departmentalization, and the utilization of new technologies. Moreover, Paul Cravath's vision of the law firm as a merit-based, client-centered, service-providing institution has become not only his legacy, but the core constitutive identity of the contemporary law firm. 249. "[T]he influential and independent counselor role is now an exceptional rather than a common aspect of large law firm practice . . . ." Robert A. Kagen & Robert Eli Rosen, On the Social Significance of Large Law Firm Practice, 37 STAN. L. REV. 399, 435 (1985).
329. See generally ANTHONY T. KRONMAN, THE LOST LAWYER (1993) (lamenting the decline of the social significance of the lawyer statesman's role and its crowding out by the increased specialization and marginalization of the large law firm attorney).
330. KRONMAN, supra note 249, at ch. 5.
331. See, e.g., Hillman, Hidden Costs, supra note 248 (arguing that increased lawyer mobility results in the inability of large firms to offer high quality mentorship to associates).
332. While the survival of the large law firm as a leading institution depends in part on its ability to sustain the perception of "elite" status, it is unclear whether maintaining that status is desirable from a social point of view or from the perspective of clients. See POSNER, supra note 188, at 185-211 (arguing that the demystification of so-called notions of professionalism is in the best interests of clients); Jonathan R. Macey & Geoffrey P. Miller, An Economic Analysis of Conflict of Interest Regulation, 82 IOWA L. REV. 965, 966 (1997) (arguing that professional ethics rules represent "a naked exercise of guild power, serving the interests of lawyers at the expense of clients or the general public").
333. For example, while the stereotype of Asian-Americans as hard working, see Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 CAL. L. REV. 1241, 1258, 1261-62 (1993), is consistent with the hyper-competitive business-based professionalism paradigm, a negative stereotype,
334. see Terri Yuh-lin Chen, Hate Violence as Border Patrol: An Asian American Theory of Hate Violence, 7 ASIAN L.J. 69, 85 (2000);
335. Richard Delgado & Jean Stefancic, Images of the Outsider in American Law and Culture: Can Free Expression Remedy Systemic Social Ills?, 77 CORNELL L. REV. 1258, 1270-73 (1992) (describing negative stereotyping of Asian Americans in popular culture), suggests that Asian-Americans lack the imagination and assertiveness that play an important role in the paradigm of a successful professional attorney.
336. See generally FRANK H. WU, YELLOW: RACE IN AMERICA BEYOND BLACK AND WHITE (2002).
337. David B. Wilkins, "If You Can't Join 'Em Beat 'Em!": The Rise and Fall of the Black Corporate Law Firm, 60 STAN. L. REV. 1733, 1737 (2008)
338. Id. at 1738.
339. Id. at 1789.
340. Id. at 1789.
341. See supra note 73.
342. In fact, unlike black attorneys who still face implicit discrimination at large law firms, see generally, David B. Wilkins & G. Mitu Gulati, Why Are There So Few Black Lawyers in Corporate Law Firms? An Institutional Analysis, 84 CAL. L. REV. 493 (1996), Jewish lawyers