Glass ceilings and dead ends: Professional ideologies, gender stereotypes, and the future of women lawyers at large law firms

Fordham Law Review

Volumn 78, Issue 5, 2010, Pages 2245-2288

  Wald, Eli ^a  

^a NONE

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EID: 77952712973     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (402)

1. 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 (1995) (exploring the notion of ideological paradigm shifts).
2. Infra Part III.
3. Infra Part I.
4. Id.
5. Because WASP ideology combines innovative formal commitment to meritocracy with systematic antimeritocratic ethnoreligious discrimination, it is referred to throughout the article as WASP "meritocracy." Infra Part III.
6. See generally Eli Wald, The Rise and Fall of the WASP and Jewish Law Firms, 60 STAN. L. REV. 1803, 1806-25 (2008) (contrasting the meritocratic, areligious identity of the large law firm with its hidden religious and cultural discriminatory identity).
7. Infra Part V.
8. See ABA COMM'N ON WOMEN IN THE PROFESSION, THE UNFINISHED AGENDA: WOMEN AND THE LEGAL PROFESSION 14 (2001) [hereinafter THE UNFINISHED AGENDA];
9. Deborah L. Rhode, Gender and Professional Roles, 63 FORDHAM L. REV. 39, 64-69 (1994) [hereinafter Rhode, Gender and Professional Roles];
10. Deborah L. Rhode, Myths of Meritocracy, 65 FORDHAM L. REV. 585, 587-94 (1996) [hereinafter Rhode, Myths of Meritocracy];
11. Deborah L. Rhode, The "No-Problem" Problem: Feminist Challenges and Cultural Change, 100 YALE L.J. 1731 (1991) [hereinafter Rhode, The "No-Problem" Problem];
12. see also THE DIFFERENCE "DIFFERENCE" MAKES: WOMEN AND LEADERSHIP (Deborah L. Rhode ed., 2003);
13. Deborah L. Rhode, Keynote Address: The Difference "Difference" Makes, 55 ME. L. REV. 15, 17-19 (2002).
14. Rhode, The "No-Problem" Problem, supra note 7.
15. See Cynthia Fuchs Epstein et al., Glass Ceilings and Open Doors: Women's Advancement in the Legal Profession, 64 FORDHAM L. REV. 291 (1995);
16. Cynthia Fuchs Epstein, Women in the Legal Profession at the Turn of the Twenty-First Century: Assessing Glass Ceilings and Open Doors, 49 U. KAN. L. REV. 733 (2001) [hereinafter Epstein, Assessing Glass Ceilings and Open Doors];
17. S. Elizabeth Foster, The Glass Ceiling in the Legal Profession: Why Do Law Firms Still Have So Few Female Partners?, 42 UCLA L. REV. 1631 (1995);
18. Judith S. Kaye & Anne C. Reddy, The Progress of Women Lawyers at Big Firms: Steadied or Simply Studied?, 76 FORDHAM L. REV. 1941 (2008);
19. Judith S. Kaye, Women Lawyers in Big Firms: A Study in Progress Toward Gender Equality, 57 FORDHAM L. REV. 111 (1988);
20. Nancy J. Reichman & Joyce S. Sterling, Recasting the Brass Ring: Deconstructing and Reconstructing Workplace Opportunities for Women Lawyers, 29 CAP. U. L. REV. 923 (2002) [hereinafter Reichman & Sterling, Recasting the Brass Ring];
21. Nancy J. Reichman & Joyce S. Sterling, Sticky Floors, Broken Steps, and Concrete Ceilings in Legal Careers, 14 TEX. J. WOMEN & L. 27 (2004) [hereinafter Reichman & Sterling, Sticky Floors, Broken Steps, and Concrete Ceilings in Legal Careers];
22. Steve French, Note, Of Problems, Pitfalls and Possibilities: A Comprehensive Look at Female Attorneys and Law Firm Partnership, 21 WOMEN'S RTS. L. REP. 189 (2000);
23. Nancer H. Ballard, Equal Engagement: Observations on Career Success and Meaning in the Lives of Women Lawyers (Ctr. for Research on Women, Working Paper No. 292, 1998);
24. see also CYNTHIA FUCHS EPSTEIN, WOMEN IN LAW (2d ed., Univ. of 111. Press 1993) (1981) [hereinafter EPSTEIN, WOMEN IN LAW];
25. MONA HARRINGTON, WOMEN LAWYERS: REWRITING THE RULES (1993).
26. See generally VIRGINIA VALIAN, WHY SO SLOW? THE ADVANCEMENT OF WOMEN (1999).
27. See Rhode, Gender and Professional Roles, supra note 7.
28. See generally Leslie Bender, Sex Discrimination or Gender Inequality?, 57 FORDHAM L. REV. 941 (1989);
29. Audrey Wolfson Latourette, Sex Discrimination in the Legal Profession: Historical and Contemporary Perspectives, 39 VAL. U. L. REV. 859 (2005).
30. See, e.g., David B. Wilkins, Race, Ethics, and the First Amendment: Should a Black Lawyer Represent the Ku Klux Klan?, 63 GEO. WASH. L. REV. 1030 (1995).
31. A recent example involves the New York State Bar Association's revision of a previously scheduled all-male panel on "Women in Law" and the debate it generated. See Joel Stashenko, State Bar Revises Panel Lineup of 'Gentlemen' for Women's Event, N.Y. L.J., Jan. 21, 2010, at 1.
32. See, e.g., Nancy L. Fairer, Of Ivory Columns and Glass Ceilings: The Impact of the Supreme Court of the United States on the Practice of Women Attorneys in Law Firms, 28 ST. MARY'S L.J. 529 (1997). Courts have routinely deferred to law firms with regard to promotion decisions.
33. See, e.g., Hishon v. King & Spalding, 467 U.S. 69 (1984);
34. Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 512-13 (3d Cir. 1992) (noting that "[t]he district court⋯ impermissibly substituted its own subjective judgment for that of Wolf in determining that Ezold met the firm's partnership standards").
35. Epstein et al., supra note 9, at 329-79.
36. See, e.g., Berta Esperanza Hernández-Truyol, Las Olvidadas - Gendered in Justice/Gendered Injustice: Latinos, Fronteras and the Law, 1 J. GENDER RACE & JUST. 353 (1998);
37. Lu-in Wang, Race as Proxy: Situational Racism and Self-Fulfilling Stereotypes, 53 DEPAUL L. REV. 1013 (2004).
38. Women lawyers comprised only three percent of the legal profession as late as the late 1960s. See Ballard, supra note 9, at 1.
39. See, e.g., Bradwell v. Illinois, 83 U.S. 130, 141 (1872) (Bradley, J., concurring) (opining that women's nature precludes them from membership in the professions and suits them to "the domestic sphere as that which properly belongs to the domain and functions of womanhood");
40. In re Goodell, 39 Wis. 232, 245 (1875) (finding women's "tender susceptibility" inconsistent with the qualities required by the practice of law). The U.S. Supreme Court later validated the sentiments expressed by such state court opinions by holding that states have the power to determine whether women are competent to practice law. In re Lockwood, 154 U.S. 116, 118 (1894).
41. See generally Barbara Allen Babcock, Clara Shortridge Foltz: "First Woman," 30 ARIZ. L. REV. 673, 698 n. 134 (1988);
42. Kathleen E. Lazarou, "Fettered Portias": Obstacles Facing Nineteenth-Century Women Lawyers, WOMEN LAW. J., Winter 1978, at 21, 22.
43. Ballard, supra note 9, at 2;
44. Beatrice Dinerman, Sex Discrimination in the Legal Profession, 55 A.B.A. J. 951, 951 (1969) (noting that women admitted to law schools are more closely scrutinized than men for "ability and motivation" in the admissions process);
45. Donna Fossum, Women in the Legal Profession: A Progress Report, 67 A.B.A. J. 578, 579 (1981) (reporting that women law students continue to comprise only a fraction of law school classes).
46. See generally RONALD CHESTER, UNEQUAL ACCESS: WOMEN LAWYERS IN A CHANGING AMERICA 87-116 (1985);
47. KAREN BERGER MORELLO, THE INVISIBLE BAR: THE WOMAN LAWYER IN AMERICA 1638 TO THE PRESENT 57-61 (1986).
48. Epstein et al., supra note 9, at 313-14. "In 1970, eight percent of all law students were women."
49. Ballard, supra note 9, at 2.
50. ABA, LAWYER DEMOGRAPHICS (2009), available at http://new.abanet.org/ marketresearch/PublicDocuments/Lawyer-Demographics.pdf. By 1989, women made up almost fifty percent of most law school graduating classes.
51. Elizabeth K. Ziewacz, Can the Glass Ceiling Be Shattered?: The Decline of Women Partners in Large Law Firms, 57 OHIO ST. L.J. 971, 973 (1996).
52. ABA, supra note 20;
53. CLARA N. CARSON, THE LAWYER STATISTICAL REPORT: THE U.S. LEGAL PROFESSION IN 2000, at 3 (2004).
54. Paula A. Patton, Women Lawyers, Their Status, Influence, and Retention in the Legal Profession, 11 WM. & MARY J. WOMEN & L. 173, 173 (2005).
55. For an excellent recent review of both recent changes and the literature on women lawyers, see Fiona Kay & Elizabeth Gorman, Women in the Legal Profession, 2008 ANN. REV. L. & Soc. SCI. 299.
56. Martha Chamallas, The Shadow of Professor Kingsfield: Contemporary Dilemmas Facing Women Law Professors, 11 WM. & MARY J. WOMEN & L. 195 (2005);
57. Deborah J. Merritt, Are Women Stuck on the Academic Ladder?, 10 UCLA WOMEN'S L.J. 241 (2000);
58. Robert L. Nelson, The Futures of American Lawyers: A Demographic Profile of a Changing Profession in a Changing Society, 44 CASE W. RES. L. REV. 345 (1994);
59. Patton, supra note 22, at 173 (stating that "[w]omen [lawyers] comprise about one-half of the ABA-accredited law school graduating class but account for [less than seventeen percent] of the partners in law firms nationwide," and the disparity in women partners is even more striking given that almost seventy-one percent of women lawyers work in private practice law firms).
60. AM. BAR ASS'N, THE REPORT OF AT THE BREAKING POINT: A NATIONAL CONFERENCE ON THE EMERGING CRISIS IN THE QUALITY OF LAWYERS' HEALTH AND LIVES- ITS IMPACT ON LAW FIRMS AND CLIENT SERVICES 6 (1991) ("[W]omen in most positions continue to be worse off financially than their male colleagues.");
61. NANCY REICHMAN & JOYCE S. STERLING, GENDER PENALTIES REVISITED (2004) (documenting gender inequities in compensation);
62. Ronit Dinovitzer, Nancy Reichman & Joyce Sterling, The Differential Valuation of Women's Work: A New Look at the Gender Gap in Lawyers' Incomes, 88 Soc. FORCES 819 (2009);
63. Joni Hersch, The New Labor Market for Lawyers: Will Female Lawyers Still Earn Less?, 10 CARDOZO WOMEN'S L.J. 1 (2003).
64. See, e.g., JOHN HAGAN & FIONA KAY, GENDER IN PRACTICE: A STUDY OF LAWYERS' LIVES 73 (1995) (observing that "[b]ecoming a partner in a law firm is often the most important event in the [lawyer's professional life]");
65. ROBERT L. NELSON, PARTNERS WITH POWER: THE SOCIAL TRANSFORMATION OF THE LARGE LAW FIRM 231 (1988) (arguing that law firms are the embodiment of power in the legal system);
66. ERWIN O. SMIGEL, THE WALL STREET LAWYER 7 (1964) (observing that practices of large law firms gradually become practices of law itself);
67. JAMES B. STEWART, THE PARTNERS: INSIDE AMERICA'S MOST POWERFUL LAW FIRMS 15-17 (1983) (noting that elite firms carry tradition and permanence of law);
68. Wald, supra note 5, at 1806 n.7;
69. see also EPSTEIN, WOMEN IN LAW, supra note 9, at 176 (asserting that large law firms essentially "make" law).
70. In 1992, Cynthia Fuchs Epstein found that while women attorneys have constituted 40-50% of entering associate classes, they account for only 37% of associates and approximately 11% of partners. Epstein et al., supra note 9, at 291;
71. Ballard, supra note 9, at 2;
72. see also ABA COMM'N ON WOMEN IN THE PROFESSION, WOMEN IN THE LAW: A LOOK AT THE NUMBERS 25 (1995) (reporting mat, in 1991, women lawyers made up only 10% of all law firms' partners nationwide). In 2007, women accounted for 16% of equity partners, 26% of nonequity partners, and 30% of "of counsel" lawyers. NAT'L ASS'N OF WOMEN LAWYERS, NATIONAL SURVEY ON RETENTION AND PROMOTION OF WOMEN IN LAW FIRMS 4 (2007), available at http://www.nawl.org/ Assets/Documents/2007+Survey+Report.pdf. NALP reports that women represented 17.9% of all partners in 2006. NALP, Percentage of Women and Minorities at Law Firms Up Slightly for 2006 - Minority Women Lag Behind in Partnership Ranks (Oct. 12, 2006), http://www.nalp.org/2006octpercentageofwomen andminorities. Judge Judith Kaye, noting that the "male-to-female [partner] ratios⋯ leveled off and have remained relatively stagnant since 1992," called this the "'50/15/15' conundrum."
73. Kaye & Reddy, supra note 9, at 1946. Judge Kaye explained that "[f]or more than fifteen years, half of law school graduates have been women, yet only approximately fifteen percent of law firm equity partners and chief legal officers have been women."
74. Id. at 1946 n.13. The fifteen-year mark is significant, clarified Judge Kaye (writing in 2008 and quoting 2007 numbers), "as 1992 [was] the first year that J.D. enrollment by gender reached [fifty percent]."
75. Id. See generally
76. Kay & Gorman, supra note 23.
77. See supra note 7 and accompanying text.
78. See. e.g.,
79. NELSON, supra note 26, at 134 (describing the increasing proportion of women as "[t]he most striking change in the social composition of major law firms and the legal profession as a whole").
80. EPSTEIN, WOMEN IN LAW, supra note 9, at 200-05;
81. Foster, supra note 9, at 1636;
82. French, supra note 9, at 189-90;
83. Kaye & Reddy, supra note 9, at 1944-53. The vast glass ceiling literature focuses on the experience of women lawyers at large law firms, and to some extent also explores the phenomenon in legal academia and the judiciary.
84. Supra note 7. While large law firms, the academia, and the judiciary are all elements of the legal elite, the reasons for the glass ceiling effect in them appear to be quite different and, surprisingly, underexplored. This article's insights regarding the powerful interplay of professional ideology and stereotypes as an explanation of the glass ceiling effect in large law firms may also be used to shed some light about the experience of women lawyers in academia and the judiciary. For example, the glass ceiling effect experienced by women law professors is somewhat surprising given law schools' liberal orientation and flexible work conditions. The interplay between gender stereotypes and the prevailing professional ideology, however, helps explain the glass ceiling effect.
85. Rhode, The "No-Problem" Problem, supra note 7.
86. Rhode, Gender and Professional Roles, supra note 7;
87. Rhode, Myths of Meritocracy, supra note 7;
88. Rhode, The "No-Problem" Problem, supra note 7.
89. See RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS 390-91 (1992).
90. Gary S. Becker Coined the term "economics of discrimination" in GARY S. BECKER, THE ECONOMICS OF DISCRIMINATION (2d ed. 1971), exploring the economic rationale for and consequences of discrimination.
91. See, e.g., French, supra note 9, at 214-16.
92. Cynthia Fuchs Epstein has applied Lewis Coser's term to large law firms. Epstein et al., supra note 9, at 383-85;
93. see also Epstein, Assessing Glass Ceilings and Open Doors, supra note 9, at 751.
94. Rhode, The "No-Problem" Problem, supra note 7, at 1736.
95. Supra note 7 and accompanying text.
96. This is a realistic assumption for a typical large law firm as late as the 1970s. See Wald, supra note 5, at 1806 n.7.
97. This is a simplified assumption as large law firms' growth has not been linear but rather exponential. See MARC GALANTER & THOMAS PALAY, TOURNAMENT OF LAWYERS: THE TRANSFORMATION OF THE BIG LAW FIRM 87-98 (1991).
98. Initially, this assumption seems logical given that Law Firm has only male partners. Over time, as women lawyers are promoted to partnership, the assumption becomes increasingly strained. Note, however, that taking account of women lawyers' retirement will have no qualitative effect on the example; rather, it will only further delay the timeline for achieving gender equality. Of course, the assumption also fails to take account of available empirical evidence that establishes that women lawyers have high attrition rates relative to their male counterparts. Once again, relaxing the retirement assumption to control for attrition rates will not qualitatively affect the example and will only further delay the timeline for achieving gender equality.
99. It could take even longer when one incorporates retirement of women lawyers over time, as well as attrition rates that are not the result of retirement due to old age.
100. See supra note 40 and accompanying text.
101. Studying gender diversity on corporate boards, Deborah Rhode and Amanda Packel similarly find that "progress - especially in the last decade - has stalled. At current rates of change, it will take almost seventy years before women on corporate boards reach parity with men." Deborah L. Rhode & Amanda K. Packel, Diversity on Corporate Boards 3 (Nov. 2009) (unpublished manuscript, on file with author).
102. See DEBORAH L. RHODE, SPEAKING OF SEX: THE DENIAL OF GENDER INEQUALITY 143-53 (1997);
103. Deborah L. Rhode & Barbara Kellerman, Women and Leadership: The State of Play, in WOMEN AND LEADERSHIP: THE STATE OF RAY AND STRATEGIES FOR CHANGE 4-6 (Deborah L. Rhode & Barbara Kellermen eds., 2007).
104. See RHODE, supra note 43, at 5-9;
105. Deborah L. Rhode, "What's Sex Got To Do with It?": Diversity in the Legal Profession, in LEGAL ETHICS: LAW STORIES 233 (Deborah L. Rhode & David J. Luban eds., 2006).
106. In the above-mentioned example, women lawyers will account for 10% of the partnership after six years and 25% after twenty years.
107. See supra note 7 and accompanying text.
108. See supra note 27 and accompanying text.
109. Epstein, Glass Ceilings and Open Doors, supra note 7, at 357.
110. Id. at 439;
111. see also Patton, supra note 22, at 174 ("Women were much more likely than men to be represented in⋯ attrition statistics.").
112. To illustrate, remember that Law Firm hires forty associates every year, twenty male associates and twenty female associates. If attrition rates were similar for men and women lawyers, Law Firm could expect thirty-two associates, sixteen men and sixteen women, to depart over the course of eight years (an attrition rate of 80%). This would leave the Firm with eight associates to choose from, out of which it would select four associates for promotion, two men and two women. Now consider an attrition rate for women lawyers significantly higher than that of men lawyers. After eight years, nineteen female associates have left the Firm (95% attrition rate) and thirteen male associates have left the Firm (65% attrition rate), leaving the Firm with eight associates to choose from, seven male associates and one female associate. The example illustrates two points: First, even if it wanted to, the Firm could not promote two female associates because only one female associate is eligible for promotion. Remember that even if the Firm could promote two female associates every year, gender equality within the partnership rank will take a century to accomplish. If the Firm only promotes one woman associate for partnership (and three male associates) every year, gender equality will never be attained. Second, the Firm might be hard pressed to promote its one female associate every year. In a given year, for a variety of reasons, such as subject matter fit, two male associates might be promoted, which will further delay advancements toward gender equality at the Firm.
113. EPSTEIN, supra note 33, at 77.
114. See DEBORAH L. RHODE, JUSTICE AND GENDER 165-67 (1989);
115. Rhode, The "NoProblem" Problem, supra note 7, at 1758, 1768-70.
116. Of course, questions of gender inequality, the work-life balance, and the glass ceiling effect are not unique to law practice. Leading contributions include MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES (1995);
117. ARLIE RUSSELL HOCHSCHILD, THE TIME BIND: WHEN WORK BECOMES HOME AND HOME BECOMES WORK (1997);
118. LENORE J. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA (1985);
119. JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT IT (2000).
120. For an effective survey of the literature, see Kathryn Abrams, Cross-Dressing in the Master's Cloths, 109 YALE L.J. 745 (2000)
121. (reviewing WILLIAMS, supra).
122. THE UNFINISHED AGENDA, supra note 7, at 14-16;
123. Foster, supra note 9, at 1645-48;
124. French, supra note 9, at 203-04.
125. THE UNFINISHED AGENDA, supra note 7, at 15. Partners and clients are more likely to notice and recall information that confirms their prior stereotypical assumptions rather than information that contradicts them. For example, "attorneys who assume that working mothers are less committed tend to remember the times they left early, not the nights they stayed late."
126. Id.
127. see also Foster, supra note 9, at 1658-71.
128. THE UNFINISHED AGENDA, supra note 7, at 16;
129. Foster, supra note 9, at 1642-43;
130. French, supra note 9, at 200-02.
131. See 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, 1608-13 (1998).
132. See, e.g., Patton, supra note 22, at 178.
133. See generally MILTON C. REGAN, JR., EAT WHAT YOU KILL: THE FALL OF A WALL STREET LAWYER (2004).
134. See infra Part V.B;
135. see also Patton, supra note 22, at 188 (exploring reasons for why women fail to mentor other women lawyers).
136. THE UNFINISHED AGENDA, supra note 7, at 17;
137. see also Eli Wald, Loyalty in Limbo: The Peculiar Case of Attorneys' Loyalty to Clients, 40 ST. MARY'S L.J. 909 (2009) (exploring the changing understanding of lawyers' role from one that balanced client service against duties to the court, the legal system, and the public, to a client-centered role).
138. THE UNFINISHED AGENDA, supra note 7, at 19-22;
139. see also Jay Marhoefer, The Quality of Mercy Is Strained: How the Procedures of Sexual Harassment Litigation Against Law Firms Frustrate Both the Substantive Law of Title VII and the Integration of an Ethic of Care into the Legal Profession, 78 CHI.-KENT L. REV. 817 (2003).
140. Judge Judith Kaye, an astute commentator on the progress of women lawyers at large law firms, exemplifies this cautious optimism. Stating, [i]t was clear in 1996, in 2006, and is equally apparent today that women's advancement in the profession requires "conspicuous, vocal vigilance." And I continue to believe that "the progress of women in the legal profession is not a natural phenomenon, like erosion or accretion. It doesn't just happen. It never will."
141. Kaye & Reddy, supra note 9, at 1942
142. (quoting Judith S. Kaye, Moving Mountains: A Comment on the Glass Ceilings and Open Doors Report, 65 FORDHAM L. REV. 573, 575 (1996);
143. Judith S. Kaye, Chief Judge, N.Y. Court of Appeals, Introductory Remarks to the N.Y. State Bar Association Committee on Women in the Law Annual Edith I. Spivack Program: The Status and Expectations of Women in the Legal Profession (Jan. 24, 2006)). Judge Kaye nonetheless concludes with an optimistic tone, noting "notable successes" on the road to gender equality at large firms. Id. at 1966-73.
144. But see Reichman & Sterling, Sticky Floors, Broken Steps, and Concrete Ceilings in Legal Careers, supra note 9, at 30 (describing the obstacles women lawyers face in terms of a concrete, rather than glass, ceiling).
145. Louis D. Brandeis, The Opportunity in the Law, Address Before the Harvard Ethical Society (May 4, 1905), in 39 AM. L. REV. 555, 559 (1905) (noting the shift in a lawyer's general role, stating that "able lawyers have ⋯ allowed themselves to become adjuncts of great corporations" and 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).
146. Large law firms are not unique in appearing to experience a perpetual state of crisis. See Deborah L. Rhode, The Professionalism Problem, 39 WM. & MARY L. REV. 283, 283 (1998) ("Lawyers belong to a profession permanently in decline. Or so it appears from the chronic laments by critics within and outside the bar.").
147. See 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) ("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.");
148. Milton C. Regan, Jr., Taking Law Firms Seriously, 16 GEO. J. LEGAL ETHICS 155, 155 (2002).
149. Robert L. Nelson, Of Tournaments and Transformations: Explaining the Growth of Large Law Firms, 1992 WIS. L. REV. 733, 736-37 (book review).
150. 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 39, at 4-5. 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 that enabled both effective mentoring and supervision of the associates' work, and effective use of the partners' and senior associates' time.
151. See id. at 89-108.
152. Often, an associate did not know what to expect upon making partner. See SMIGEL, supra note 26, at 92.
153. See PAUL HOFFMAN, LIONS IN THE STREET: THE INSIDE STORY OF THE GREAT WALL STREET LAW FIRMS 60-61 (1973) (noting the rarity of lateral movement by individual lawyers and that there were no "open breaks").
154. Id. at 72 ("In the blue-chip bar client shifts are rare.").
155. SMIGEL, supra note 26, at 57-59.
156. In the mid-1970s, the Supreme Court, in a line of cases dealing with various states' ethics rules, questioned the cavalier and anticompetitive 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);
157. 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 v. State Bar of Arizona, 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. 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).
158. 421 U.S. 773.
159. 433 U.S. 350.
160. "[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).
161. Fern S. Sussman, The Large Law Firm Structure - An Historic Opportunity, 57 FORDHAM L. REV. 969, 970 (1989).
162. See generally Marc Galanter & William Henderson, The Elastic Tournament: A Second Transformation of the Big Law Firm, 60 STAN. L. REV. 1867 (2008). Nelson has called these changes the transformation of the "classic big law firm" into the "late big law firm."
163. Nelson, supra note 67, at 737
164. (quoting GALANTER & PALAY, supra note 39, at 76).
165. See Wald, supra note 5, at 1849-51.
166. See generally MARK STEVENS, POWER OF ATTORNEY: THE RISE OF THE GIANT LAW FIRMS 7-16 (1987) (studying the rise of corporate counsel);
167. Abram Chayes & Antonia H. Chayes, Corporate Counsel and the Elite Law Firm, 37 STAN. L. REV. 277 (1985);
168. Marc 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 in-house corporate law departments);
169. Robert L. Nelson & Laura Beth Nielsen, Cops, Counsel, and Entrepreneurs: Constructing the Role of Inside Counsel in Large Corporations, 34 LAW & SOC'Y REV. 457 (2000);
170. Robert Eli Rosen, The Inside Counsel Movement, Professional Judgment and Organizational Representation, 64 IND. L.J. 479 (1989);
171. Ted Schneyer, Professionalism and Public Policy: The Case of House Counsel, 2 GEO. J. LEGAL ETHICS 449, 458-59 (1988).
172. French, supra note 9, at 194;
173. Patton, supra note 22, at 176 ("[L]aw firms have evolved from a client service orientation to a client production orientation."
174. (citing Amee McKim, The Lawyer Track: The Case for Humanizing the Career Within a Large Law Firm, 55 OHIO ST. L.J. 167, 172-75 (1994)));
175. see also McKim, supra;
176. S. S. Samuelson, The Organizational Structure of Law Firms: Lessons from Management Theory, 51 OHIO ST. L.J. 645 (1990).
177. Patton, supra note 22, at 179-80.
178. Nicholas Varchaver First described the changing structure of large law firms as diamond shaped in Diamonds Are This Firm's Best Friend, AM. LAW., Dec. 1995, at 67;
179. see also Galanter & Henderson, supra note 77 (describing the evolving structure of large law firms as elastic).
180. Patton, supra note 22, at 180;
181. John P. Weil & Co., The Traditional Law Partnership Track: Does It Still Exist? Quo Vadis?, http://weilandco.com/new/article6.html (last visited Mar. 12, 2010). The report notes that during the late 1980s, the partnership track moved from four to six years, to seven to nine years.
182. Id. The average track, of course, varies by region and firm size.
183. See LORRAINE DUSKY, STILL UNEQUAL 170 (1996) (noting that while historically the ratio was close to one associate to one partner, it has consistently fallen, first to two to one, and then even further)).
184. Rhode, Gender and Professional Roles, supra note 7, at 62-63. A revealing Price Waterhouse survey found that in 1976, the average Wall Street associate billed 1667 hours.
185. See EPSTEIN, WOMEN IN LAW, supra note 9, at 209. By 1994, at the eight Manhattan firms surveyed by Epstein, the hours billed ranged from 1800 to 3000.
186. See EPSTEIN, WOMEN IN LAW, supra note 9, at 382.
187. See, e.g., Law Shucks, Layoff Tracker, http://lawshucks.com/layoff- tracker/ (last visited Mar. 12, 2010).
188. See Debra Cassens Weiss, How Low Will New Lawyer Pay Go? As Low as $110K to $130K at Reed Smith, A.B.A. J., Nov. 10, 2009, http://www.abajournal.com/weekly/how-low-will-pay-go-new-reed-smith-lawyers-to- make-130k-to-110k;
189. Debra Cassens Weiss, Top 250 Law Firms Collectively Shrank by 5,259 Lawyers, A.B.A. J., Nov. 9, 2009, http://www.abajoumal.com/weekly/top-250-law- firms-collectively-shrank-by-5259-lawyers.
190. See, e.g., Posting of David Lat & Elie Mystal To Above the Law, Cravath Offers Voluntary Deferral to Class of 2009 - and Delays Class of 2010 a Full Year, http://abovethelaw.com/2009/06/cravath-voluntary-deferral.php (Jun. 12, 2009, 11:17 EDT);
191. Posting of Elie Mystal to Above the Law, Morgan Lewis Cancels 2010 Summer Program, http://abovethelaw.com/2009/07/morgan-lewis-cancels-2010-summ.php (July 14, 2009, 14:58 EDT);
192. Posting of Elie Mystal to Above the Law, Skadden Offers a Voluntary Deferral Option, http://abovethelaw.com/2009/03/skadden-deferral-option.php (Mar. 12, 2009, 17:28 EDT);
193. JD Journal, Summer 2010 Trifecta: Squire Sanders Cancels Program, http://www.jdjournal.com/2009/07/20/surnmer-2010-trifecta-squire-sanders- cancels-program/ (July 20, 2009).
194. See, e.g., Karen Sloan, Firms' Billing Rates Inched Up During 2009, NLJ Survey Shows, NAT'L L.J., Dec. 7, 2009, http://www.law.com/jsp/law/ LawArticleFriendly.jsp?id=1202436087594 (reporting cost cutting measures and a smaller than usual annual increase in annual rates);
195. Law Shucks, Top London Firms Cutting Rates, http://lawshucks.com/2009/09/ top-london-firms-cutting-rates/ (Sept. 21, 2009).
196. See generally Galanter & Henderson, supra note 77.
197. See Milton C. Regan, Jr. & Palmer T. Heenan, Supply Chains and Porous Boundaries: The Disaggregation of Legal Services, 78 FORDHAM L. REV. 2137 (2010).
198. See, e.g., Joyce S. Sterling & Nancy Reichman, So, You Want To Be a Lawyer? The Quest for Professional Status in a Changing Legal World, 78 FORDHAM L. REV. 2289 (2010);
199. David B. Wilkins, Partner, Shmartner! EEOC v. Sidley Austin Brown & Wood, 120 HARV. L. REV. 1264(2007).
200. Anthony Lin, Road to Large Law Firm Partnerships Is Getting Longer for Associates, N.Y. L.J., Jan. 6, 2004, at 1;
201. Posting of Gregory W. Bowman To Law Career Blog, Law Firm Partnership: What's in a Name?, http://law-career.blogspot.com/2008/01/law-firm-partnership- whats-in-name.html (Jan. 20, 2008, 21:54 EST) (reporting longer partnership tracks).
202. See Aric Press & John O'Connor, Lessons of the Am Law 100, AM. LAW., May 2009, at 107;
203. Brian Leiter's Law School Reports, http://leiterlawschool.typepad.com/ leiter/2009/04/me-upheaval-m-me-market-for-new-lawyers-at-me-big-law-firms- temporary-or-permanent.html (Apr. 30, 2009, 13:57 CST).
204. See David B. Wilkins, Team of Rivals? Toward a New Model of the Corporate Attorney-Client Relationship, 78 FORDHAM L. REV. 2067 (2010);
205. Regan & Heenan, supra note 90;
206. Paul D. Paton, Multidisciplinary Practice Redux: Globalization, Core Values, and Reviving the MDP Debate in America, 78 FORDHAM L. REV. 2193 (2010).
207. See Wilkins, supra note 91;
208. Bowman, supra note 92.
209. But see, e.g., Posting of Elie Mystal to Above the Law, Did Gender Play a Role in Layoffs at Squire Sanders?, http://www.abovethelaw.com/2009/07/did- gender-play-a-role-in-layo.php (July 17, 2009, 14:28 EDT);
210. Alana Roberts, Is Law Firm Diversity Suffering As Recession Continues?, DAILY Bus. REV., Jan. 30, 2009, http://www.law.com/jsp/law/careercenter/ lawArticleCareerCenter.jsp?id=1202427853263 (noting the impact of the economic downturn on large law firm diversity).
211. For example, citing privacy considerations, many large law firms have recently refused requests by NALP to provide information about their partnership structures and, in particular, about the breakdown of equity versus nonequity partners in their ranks. See Debra Cassens Weiss, NALP Dropped Quest for Nonequity Partner Data After Law Firms Resisted, A.B.A. J., Feb. 25, 2010, http://www.abajournal.com/weekly/article/nalp-dropped-quest-for-nonequity- partner-data-after-law-firms-resisted. One possible motivation for refusing to provide NALP with data regarding nonequity partnership is that it might reveal gender inequities and the placement of a disproportionate number of women partners on nonequity tracks.
212. See Vivia Chen, What Women Want: Law Firm Partnership Details, AM. LAW., Feb. 25, 2010, http://www.law.com/jsp/LawArticlePC.jsp?id= 1202444495743&slreturn=l&hbxlogin=1 (reporting that "[w]omen lawyers are furious" with the lack of transparency regarding large law firms' nonequity tracks).
213. This phenomenon, and the workplace ideology that fuels it, are not unique to the legal profession. Rhode and Kellerman demonstrate that "[f]or leaders in business, politics and the professions, all work and no play is fast becoming the norm rather than the exception; sixty-hour workweeks are typical." Rhode & Kellerman, supra note 43, at 13-15
214. (citing ARLIE RUSSELL HOCHSCHILD, supra note 53, at 70;
215. JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT IT 71 (2000);
216. Claudia Wallis, The Case for Staying Home, TIME, Mar. 22, 2004, at 51, 53).
217. See generally TALCOTT PARSONS, The Professions and Social Structure, in ESSAYS IN SOCIOLOGICAL THEORY 34, 36-40 (rev. ed. 1954);
218. Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1 (1975).
219. See, e.g., DAVID HOFFMAN, A COURSE OF LEGAL STUDY 7, 51-52 (Joseph Neal 2d ed. 1836);
220. GEORGE SHARSWOOD, AN ESSAY: PROFESSIONAL ETHICS (5th ed. 1993).
221. For example, the American Bar Association Canons, Model Code, and current Model Rules of Professional Conduct.
222. See RICHARD L. ABEL, AMERICAN LAWYERS (1989) (exploring regulatory measures purportedly aimed at ensuring the quality of legal services as a means of limiting access to the profession);
223. JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA 25-26 (1976) (arguing that large law firms used meritocratic standards as a cover for discriminating against "undesirable" ethnoreligious minority lawyers);
224. see also RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY 185-211 (1999) (denouncing so-called "professionalism" as an anticompetitive mystique meant to ensure the profession's monopoly over the provision of legal services).
225. See Eli Wald, An Unlikely Knight in Economic Armor: Law and Economics in Defense of Professional Ideals, 31 SETON HALL L. REV. 1042, 1043-47 (2001).
226. See Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 672-75 (1978) [hereinafter Schwartz, The Professionalism and Accountability of Lawyers];
227. Wasserstrom, supra note 99, at 1 n.l.
228. See generally Murray L. Schwartz, The Zeal of the Civil Advocate, in THE GOOD LAWYER: LAWYERS' ROLES AND LAWYERS' ETHICS 150 (David Luban ed., 1984).
229. William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 WIS. L. REV. 29. While scholars commonly refer to Simon's formulation as the "standard account," it is not at all clear that it is accepted in practice, as opposed to theory. Ann Southworth's work suggests that lawyers in fact do identify with their clients and do not buy into the "standard conception."
230. ANN SOUTHWORTH, LAWYERS OF THE RIGHT: PROFESSIONALIZING THE CONSERVATIVE COALITION 68 (2008).
231. Schwartz, The Professionalism and Accountability of Lawyers, supra note 104, at 672-75;
232. Simon, supra note 105, at 36-37.
233. Simon, supra note 105, at 40-41;
234. see also Wald, supra note 60.
235. See MONROE H. FREEDMAN & ABBE SMITH, UNDERSTANDING LAWYERS' ETHICS 32-34 (3d ed. 2004);
236. Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 MICH. L. REV. 1469 (1966).
237. Stephen L. Pepper, The Lawyer's Amoral Ethical Role: A Defense, a Problem, and Some Possibilities, 1986 AM. B. FOUND. RES. J. 613, 617 ("Put simply, first-class citizenship is dependent on access to the law.").
238. DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 148-49, 160-74 (1988) (arguing for a system of "'moral activism': a vision of law practice in which the lawyer who disagrees with the morality or justice of a client's ends does not simply terminate the relationship, but tries to influence the client for the better");
239. DAVID LUBAN, LEGAL ETHICS AND HUMAN DIGNITY 19-64 (2007) (criticizing the principle of nonaccountability for protecting lawyers from moral culpability for a client's conduct);
240. Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 22-30 (1988) (developing the concept of purposive lawyering);
241. David Luban, The Lysistratian Prerogative: A Response to Stephen Pepper, 1986 AM. B. FOUND. RES. J. 637, 639 ("Pepper appears to have blurred the crucial distinction between the desirability of people acting autonomously and the desirability of their autonomous act.");
242. Simon, supra note 105, at 99-101.
243. See David B. Wilkins, Identities and Roles: Race, Recognition, and Professional Responsibility, 57 MD. L. REV. 1502, 1502-50 (1998).
244. Rhode, Gender and Professional Roles, supra note 7, at 44-53.
245. The ABA Model Rules of Professional Conduct, their predecessors (the Model Code and the Canons), as well as every state code of professional conduct implementing the Model Rules, all essentially regulate individual lawyer conduct and do not meaningfully regulate at the law firm level. See Elizabeth Chambliss, The Nirvana Fallacy in Law Firm Regulation Debates, 33 FORDHAM URB. L.J. 119 (2005) (examining the tension between traditional individual lawyer regulation and law firm regulation and arguments that the latter may undermine individual accountability);
246. see also Elizabeth Chambliss, New Sources of Managerial Authority in Large Law Firms, 22 GEO. J. LEGAL ETHICS 63, 87-92 (2009) (exploring the individual lawyer and law firm regulation debate in the context of the institutionalization of risk management processes at large law firms).
247. To be clear, significant attention has been given to the broader notion of the firm culture. See, e.g., GALANTER & PALAY, supra note 39;
248. SMIGEL, supra note 26;
249. Susan Saab Fortney, Soul for Sale: An Empirical Study of Associate Satisfaction, Law Firm Culture, and the Effects of Billable Hour Requirements, 69 UMKC L. REV. 239 (2000);
250. Wald, supra note 5;
251. Peter J. Winders, Law Firm Culture - Its Importance and How To Overcome It, 2004 PROF. LAW. 11.
252. For an overview of the scholarship, see The Law Firms Working Group, Bibliographies: Resources of the Law Firms Working Group, http://firms.law. indiana.edu/research/index.shtml (last visited on Mar. 12, 2010).
253. Paul D. Cravath is credited with being among the first to mold and implement these organizational features together in a working law firm. See WAYNE K. HOBSON, THE AMERICAN LEGAL PROFESSION AND THE ORGANIZATIONAL SOCIETY, 1890-1930, at 196-200 (1986);
254. see also GALANTER & PALAY, supra note 39, at 9-10;
255. 1 ROBERT T. SWAINE, THE CRAVATH FIRM AND ITS PREDECESSORS: 1819-1947, at 1-4(1946).
256. See, e.g., Pearce, supra note 1 (exploring the decline of the old professional paradigm and the rise of the business paradigm at large law firms).
257. Other aspects of the firmwide ideology that require further delineation are the processes by which it is disseminated and internalized by firm members. See Jean E. Wallace & Fiona M. Kay, The Professionalism of Practising Law: A Comparison Across Work Contexts, 29 J. ORGANIZATIONAL BEHAV. 1021 (2008) (examining dimensions of professionalism among law firm partners and associates). Associates presumably buy into the firms' fairly abstract ideology of meritocracy when they decide to join and subsequently stay with the firms. How it is, however, that over time they come to accept and even internalize specific ideologies, particularly hypercompetitiveness, as the embodiment of excellence and meritocracy is a separate question.
258. Wald, supra note 5, at 1806 n.7;
259. see also Eli Wald, The Rise of the Jewish Law Firm or Is the Jewish Law Firm Generic?, 76 UMKC L. REV. 885, 887-88 (2008).
260. Wald, supra note 5.
261. See Eli Wald, The Other Legal Profession and the Orthodox View of the Bar: The Rise of Colorado's Elite Law Firms, 80 U. COLO. L. REV. 605, 655-67 (2009);
262. see also Marc Galanter & Simon Roberts, From Kinship to Magic Circle: The London Commercial Law Firm in the 20th Century, 15 INT'L J. LEGAL PROF. 143 (2008).
263. Cf. Wald, supra note 5, at 1819-20.
264. Id.
265. Wald, supra note 119, at 888-89.
266. Supra note 22.
267. Presentism is 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) (exploring the risk of presentism in analyzing nineteenth-century law).
268. KARL N. LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY 91-92 (1930).
269. See generally Wald, supra note 5;
270. Wald, supra note 119.
271. See supra notes 64-98 and accompanying text.
272. Anthony Kronman's The Lost Lawyer constructs a parallel tale of how changes in large law firms' practice realities rendered their intellectual and public-calling appeal unattainable. Kronman asserts that increased competition and specialization deprive lawyers of the ability to develop and practice practical wisdom, which is a calamity not only for the legal profession but for our society as a whole. See ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993).
273. While Kronman's conception of the ideal lawyer-statesman and his or her longing for lost professional glories has been duly challenged, see, e.g., Peter Margulies, Progressive Lawyering and Lost Traditions, 73 TEX. L. REV. 1139 (1995)
274. (reviewing MILNER S. BALL, THE WORD AND THE LAW (1993)
275. and KRONMAN, supra), his account compellingly details how changing practice realities can render prevailing professional ideologies unattainable.
276. KRONMAN, supra.
277. See Ronald J. Gilson, Value Creation by Business Lawyers: Legal Skills and Asset Pricing, 94 YALE L.J. 239 (1984).
278. Sanford Levinson, Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity, 14 CARDOZO L. REV. 1577, 1578 (1993) (arguing that the legal profession promotes the concept of lawyering in which a lawyer's personal identity is submerged in, even "bleach[ed] out" from, one's dominant professional identity);
279. Wasserstrom, supra note 99, at 12-15 (detailing the social costs associated with role morality and role differentiation when professional identity comes to dominate personal identity).
280. GORDON W. ALLPORT, THE NATURE OF PREJUDICE 191 (1958) [hereinafter ALLPORT, THE NATURE OF PREJUDICE];
281. Susan T. Fiske, Stereotyping, Prejudice, and Discrimination, in 2 THE HANDBOOK OF SOCIAL PSYCHOLOGY 357, 357 (Daniel T. Gilbert et al. eds., 4th ed. 1998) (defining stereotypes as a form of category-based reactions to "people from groups perceived to differ significantly from one's own");
282. see also GORDON W. ALLPORT, ABC'S OF SCAPEGOATING (1943) [hereinafter ALLPORT, ABC'S OF SCAPEGOATING];
283. VALIAN, supra note 9, at 198-208;
284. Chamallas, supra note 24 (studying the scope and consequences of stereotypes and other forms of gender bias in the workplace).
285. For detailed description of these stereotypes and their impact, see THE UNFINISHED AGENDA, supra note 7, at 14-16;
286. Jody Armour, Stereotypes and Prejudice: Helping Legal Decisionmakers Break the Prejudice Habit, 83 CAL. L. REV. 733 (1995);
287. Kathleen A. Bergin, Sexualized Advocacy: The Ascendant Backlash Against Female Lawyers, 18 YALE J.L. & FEMINISM 191 (2006);
288. Chamallas, supra note 24;
289. Carrie S. Coffman, Gingerbread Women: Stereotypical Female Attorneys in the Novels of John Grisham, 8 S. CAL. REV. L. & WOMEN'S STUD. 73 (1998);
290. Epstein et al. supra note 9;
291. Carrie Menkel-Meadow, Portia Redux: Another Look at Gender, Feminism, and Legal Ethics, 2 VA. J. Soc. POL'Y & L. 75 (1994) [hereinafter Menkel-Meadow, Portia Redux];
292. Carolyn Lisa Miller, "What a Waste. Beautiful, Sexy Gal. Hell of a Lawyer": Film and the Female Attorney, 4 COLUM. J. GENDER & L. 203 (1994);
293. Reichman & Sterling, Recasting the Brass Ring, supra note 9;
294. Ballard, supra note 9;
295. Carrie Menkel-Meadow, The Comparative Sociology of Women Lawyers: The "Feminization" of the Legal Profession (UCLA Inst. Soc. Sci. Research, Working Paper Vol. 3, No. 4, 1987), available at http://www.escholarship.org/ uc/item/9x36g2xv#.
296. See generally BEYOND PORTIA: WOMEN, LAW, AND LITERATURE IN THE UNITED STATES (Jacqueline St. Joan & Annette Bennington McElhiney eds., 1997) (exploring stereotypical depictions of women lawyers in literature);
297. HOLLY ENGLISH, GENDER ON TRIAL: SEXUAL STEREOTYPES AND WORK/LIFE BALANCE IN THE LEGAL WORKPLACE (2003) (studying the impact and consequences of gender stereotypes on women lawyers).
298. See supra note 133 and accompanying text.
299. See supra note 133 and accompanying text.
300. See ALLPORT, ABC'S OF SCAPEGOATING, supra note 132;
301. ALLPORT, THE NATURE OF PREJUDICE, supra note 132, at 191.
302. WILLIAM J. GOODE, WORLD REVOLUTION AND FAMILY PATTERNS (1963);
303. THE CONTEMPORARY AMERICAN FAMILY (William J. Goode ed., 1971).
304. See, e.g., Miller, supra note 133.
305. THE UNFINISHED AGENDA, supra note 7, at 14-16.
306. This is what Rhode has called the "double bind." See Rhode, Gender and Professional Roles, supra note 7, at 67-69;
307. Rhode, Myths of Meritocracy, supra note 7, at 590-91;
308. Rhode, The "No-Problem" Problem, supra note 7, at 1753-55.
309. See ALLPORT, THE NATURE OF PREJUDICE, supra note 132.
310. 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);
311. Paul Horwitz, Uncovering Identity, 105 MICH. L. REV. 1283 (2007) (reviewing KENJI YOSHINO, COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS (2006));
312. Chris Frates, Owens' "Stereotyping" Not Positively Received, DENVER POST, Aug. 4, 2006, at 1B (discussing the controversy surrounding Colorado Governor Bill Owens's comments regarding positive Jewish and Asian cultural stereotypes).
313. Wilkins & Gulati, supra note 57, at 1608-13.
314. See Patrick J. Schiltz, Legal Ethics in Decline: The Elite Law Firm, the Elite Law School, and the Moral Formation of the Novice Attorney, 82 MINN. L. REV. 705, 740-41 (1998) (noting that partners' exclusive focus on making a profit results in little time and little incentive to mentor associates);
315. S. Elizabeth Wilborn & Ronald J. Krotoszynski, Jr., Views from the Front: A Dialog About the Corporate Law Firm, 1996 UTAH L. REV. 1293, 1299-300 (same).
316. Wald, supra note 5, at 1810-28.
317. Id. at 1813-21.
318. See id. at 1844-47;
319. see also Wald, supra note 119, at 929-33.
320. Wald, supra note 5, at 1813-23.
321. 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);
322. 5 id. at 776-89 (same);
323. 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);
324. see also HEYWOOD BROUN & GEORGE BRITT, CHRISTIANS ONLY: A STUDY IN PREIUDICE 161-74 (1931) (providing anecdotal evidence of prejudice in hiring in the legal profession).
325. After 1945, law schools began to drop discriminatory quotas. See ABEL, supra note 102, at 85-87, 109 (exploring admission quotas as barriers to entering the profession);
326. 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);
327. 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 (1977) (discussing how prevailing admissions criteria had benefited Jewish law students and reversed professional discrimination);
328. 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);
329. 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).
330. Wald, supra note 5, at 1813-23.
331. Id. at 1838 n. 158.
332. Id.
333. see also Randall Kennedy, Racial Passing, 62 OHIO ST. L.J. 1145 (2001).
334. Wald, supra note 5, at 1844-47, 1860;
335. Wald, supra note 119, at 929-33.
336. Wald, supra note 5, at 1844-47, 1860;
337. Wald, supra note 119, at 929-33.
338. See, e.g., WALTER K. EARLE & CHARLES C. PARLIN, SHEARMAN AND STERLING: 1873-1973, at 28 (2d ed. 1973);
339. NANCY LISAGOR & FRANK LIPSIUS, A LAW UNTO ITSELF: THE UNTOLD STORY OF THE LAW FIRM OF SULLIVAN & CROMWELL 22 (1988).
340. Wald, supra note 5, at 1810-25.
341. However, the economic downturn may change associates' expectations and render them more tolerant of extended partnership tracks. See supra note 92 and accompanying text.
342. Yet one should not belittle the hardships encountered by first-generation women lawyers in the 1970s and 1980s, which included explicit and implicit discrimination, stereotyping, and segregation - admitting women lawyers only to relegate them to "women" practice areas. See supra Part IV.
343. This is not to deny the residual power of old ideologies. No doubt, WASP women lawyers and Caucasian women lawyers in general could have expected to do better than ethnoreligious and racial minority women lawyers in terms of hiring and promotion.
344. See Derrick Bell, Thurgood Marshall, 68 N.Y.U. L. REV. 212, 213-14 (1993) (describing the struggle of black lawyers to overcome the stereotype of incompetence);
345. 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, 572 n.284 (1996) (explaining how Caucasian associate mistakes are thought to be the result of miscommunications and misunderstandings, whereas minority associate mistakes are presumed to demonstrate incompetence).
346. See Report of the Special Committee on Race and Ethnicity to the D.C. Circuit Task Force on Gender, Race and Ethnic Bias, 64 GEO. WASH. L. REV. 189, 193 (1996) (reporting a comment by an African American male attorney that some judges assume that "lawyers of color aren't as good, smart, or prepared as white lawyers").
347. See generally David B. Wilkins, A Systematic Response to Systemic Disadvantage: A Response to Sander, 57 STAN. L. REV. 1915, 1934 (2005) (exploring the experiences of black law students and practicing attorneys "in a world that continues to be dominated with negative images and stereotypes about blacks");
348. Joan C. Williams, The Social Psychology of Stereotyping: Using Social Science To Litigate Gender Discrimination Cases and Defang the "Cluelessness" Defense, 7 EMP. RTS. & EMP. POL'Y J. 401, 435 (2003) (noting that "very few studies have examined stereotypes related to women of color and motherhood").
349. A step in the right direction of examining the interplay of gender and racial stereotypes are recent ABA Commission on Women in the Profession reports. See ABA COMM'N ON WOMEN IN THE PROFESSION, FROM VISIBLE INVISIBILITY TO VISIBLY SUCCESSFUL: SUCCESS STRATEGIES FOR LAW FIRMS AND WOMEN OF COLOR IN LAW FIRMS (2008);
350. ABA COMM'N ON WOMEN IN THE PROFESSION, VISIBLE INVISIBILITY: WOMEN OF COLOR IN LAW FIRMS (2006).
351. See Rhode, The "No-Problem" Problem, supra note 7 (pointing out insightfully that gender stereotypes regarding disloyalty and lack of commitment to the firm are disproven by the very women lawyers who stay at large firms and attempt to strike a work-life balance, because such a Herculean effort would only be undertaken by those truly committed to the firm).
352. See, e.g., ENGLISH, supra note 133, at 230;
353. Ballard, supra note 9, at 22-26;
354. Williams, supra note 161, at 412-48 (exploring the interplay between workplace design, ideology, and gender stereotypes).
355. But see CYNTHIA THOMAS CALVERT ET AL., THE PROJECT FOR ATTORNEY RETENTION, REDUCED HOURS, FULL SUCCESS: PART-TIME PARTNERS IN U.S. LAW FIRMS 1 (2009), available at http://www.pardc.org/Publications/Part-TimePartner.pdf (reporting an increase in the number of part-time partners, from 1.6% in 1999 to 3% in 2008, and a decline in the negative stigma associated with part-time status).
356. While a welcome development, it should be noted that the overall number of part-time partners is still very low and that the authors note a possible bias in their finding - it is based on interviews with part-time partners who have stayed with their firms and who "therefore are most likely to be happy with their arrangements" and not feel or experience a negative stigma. Id. at 1, 19. For a counterperspective suggesting that the large law firms' records are not improving fast enough, see Kim Tasso, Opinion, Law Firms' Flexible Working Policies - Could Do Better, LAWYER, Feb. 15, 2010, at 6, http://www.thelawyer.com/opinion-law-firms%E2%80%99-flexible-working-policies- %E2%80%93-could-do-better/1003459.article.
357. See generally CYNTHIA FUCHS EPSTEIN ET AL., THE PART-TIME PARADOX: TIME NORMS, PROFESSIONAL LIFE, FAMILY, AND GENDER (1999).
358. See Joan C. Williams, Beyond the Glass Ceiling: The Maternal Wall as a Barrier to Gender Equality, 26 T. JEFFERSON L. REV. 1 (2003) (exploring gender discrimination based on maternal stereotyping);
359. Joan C. Williams, Litigating the Glass Ceiling and the Maternal Wall: Using Stereotyping and Cognitive Bias Evidence To Prove Gender Discrimination, 7 EMP. RTS. & EMP. POL'Y J. 287, 287-93 (2003) (same).
360. See Wilkins, supra note 91;
361. see also John P. Heinz, When Law Firms Fail, 43 SUFFOLK U. L. REV. 67 (2009);
362. Wald, supra note 5, at 1861-62.
363. See Joan C. Williams & Elizabeth S. Westfall, Deconstructing the Maternal Wall: Strategies for Vindicating the Civil Rights of "Carers" in the Workplace, 13 DUKE J. GENDER L. & POL'Y 31, 31 (2006) (arguing that gender stereotyping of women as mothers and caregivers constitutes a discriminatory wall).
364. Joan Williams notes that women of color, in addition to stereotyping regarding motherhood and caregiving, may be confronted with assumptions of single motherhood. See Williams, supra note 161, at 435-36.
365. Joan Williams aptly calls this phenomenon a "maternal wall." See, e.g., Williams & Westfall, supra note 167, at 31.
366. See, e.g., JEAN M. TWENGE, GENERATION ME: WHY TODAY'S YOUNG AMERICANS ARE MORE CONFIDENT, ASSERTIVE, ENTITLED - AND MORE MISERABLE THAN EVER BEFORE (2006).
367. Id. Interestingly, while there is no empirical support for this stereotypical assumption, it is shared by some first generation lawyers with regard to younger women lawyers.
368. See Reichman & Sterling, Sticky Floors, Broken Steps, and Concrete Ceilings in Legal Careers, supra note 9, at 52, 70.
369. See, e.g., Menkel-Meadow, Portia Redux, supra note 133, at 113 ("[A]ttention to gender and quality of life issues with which women are more likely to be concerned, may cause the profession as a whole to reevaluate the demand of its 'greedy institutions' that seem to require so much devotion to work."). "As female attorneys constitute an increasing part of the profession, it becomes increasingly costly to discount their needs and devalue their talents."
370. Rhode, Gender and Professional Roles, supra note 7, at 63. "[I]n many practice settings, the entrance of a critical mass has brought significant improvements." Id. at 68.
371. Still, "[p]eer pressures, socialization patterns, and personal convenience all war against egalitarian roles [for women lawyers]." Id. at 62;
372. see also Dona S. Kahn, Breaking Through: A Woman's Journey Through the Male Dominated Law Profession of the Mid-Twentieth Century, 30 WOMEN'S RTS. L. REP. 628 (2009).
373. See CALVERT ET AL., supra note 164;
374. Rhode, Gender and Professional Roles, supra note 7, at 62.
375. Rhode, Gender and Professional Roles, supra note 7, at 64.
376. Id.
377. see also Foster, supra note 9, at 1673 (surveying the ineffectiveness of judicial scrutiny and arguing, "Law Firms Must Alter Their Paradigms From Within").
378. EPSTEIN, WOMEN IN LAW, supra note 9, at 392-414.
379. Rhode, Gender and Professional Roles, supra note 7, at 68.
380. For explorations of the ways in which women lawyers redefine the practice of law, see Carrie Menkel-Meadow, Portia in a Different Voice: Speculations on a Women's Lawyering Process, 1 BERKELEY WOMEN'S L.J. 39 (1985) (advancing the notion of women lawyers' "ethic of care" as an alternative to the male-oriented "standard account" of legal ethics).
381. See also VIRGINIA G. DRACHMAN, SISTERS IN LAW: WOMEN LAWYERS IN MODERN AMERICAN HISTORY (1998);
382. SUZANNE NOSSEL & ELIZABETH WESTFALL, PRESUMED EQUAL: WHAT AMERICA'S TOP WOMEN LAWYERS REALLY THINK ABOUT THEIR FIRMS (1998);
383. ROBIN SAX, REACHING THE BAR: STORIES FROM WOMEN AT ALL STAGES OF THEIR LAW CAREERS (2009);
384. Menkel-Meadow, Portia Redux, supra note 133, at 113 (revisiting and refining the "ethic of care").
385. This is not to belittle recent positive developments and efforts by law firms to pursue gender equality. See CALVERT ET AL., supra note 164 (reporting the growing acceptability of partner part-time arrangements);
386. Kaye & Reddy, supra note 9, at 1966-73 (examining positive developments toward gender equality at large law firms). Rather, the point is that the hypercompetitive ideology, especially when interacting with prevailing gender stereotypes, is inconsistent with, and is likely to make more difficult, the changes necessary to make gender equality more attainable.
387. Rhode, Gender and Professional Roles, supra note 7, at 69.
388. Id.
389. Id. at 70.
390. See ABEL, supra note 102.
391. In recent years, federal agencies have demonstrated a willingness to take on large law firms and attempted to enforce regulations. See, e.g., William H. Simon, The Kaye Scholer Affair: The Lawyer's Duty of Candor and the Bar's Temptations of Evasion and Apology, 23 LAW & Soc. INQUIRY 243 (1998).
392. See generally Fred C. Zacharias, Federalizing Legal Ethics, 73 TEX. L. REV. 335 (1994).
393. See supra notes 38-48 and accompanying text.
394. See, e.g., 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 (2004) (exploring various arguments for diversity and equality);
395. Rhode & Packel, supra note 42, at 4-9 (same).
396. See Robert W. Gordon, "The Ideal and the Actual in the Law": Fantasies and Practices of New York City Lawyers, 1870-1910, in THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA 51, 53 (Gerard W. Gawalt ed., 1984).
397. See, e.g., DEBORAH L. RHODE, IN THE INTERESTS OF JUSTICE: REFORMING THE LEGAL PROFESSION (2000).
398. This phenomenon is somewhat reminiscent of the challenge faced by large law firms in the 1960s, as cohorts of young and excited law graduates rejected the appeal of large law firms and threatened, for a while, the elite status of large law firms. Over time, large law firms were able to deflect the threat by committing themselves to the provision of pro bono services and raising salaries, tactics unlikely to succeed today.
399. This result is ironic but not unprecedented. In fact, past ideological shifts were similarly motivated not by egalitarian considerations but by the entrepreneurial quest for elite professional power, political influence, and rich financial rewards. WASP meritocracy displaced gentlemanly premeritocracy and competitive meritocracy replaced WASP meritocracy because of the professional, political, and monetary drive of powerful partners, and only subsequently was described to be motivated by professional and egalitarian reasons. See Wald, supra note 5.
400. A condition Rhode and others identified as necessary for a meaningful change. See RHODE, THE UNFINISHED AGENDA, supra note 7;
401. see also Debra Cassens Weiss, Wal-Mart To Require Outside Law Firms To Have Flextime Policies, Oct. 27, 2009, A.B.A. J., http://www.abajournal.com/ news/article/wal-mart-to-require-outside-law-firms-to-have-flextime-policies/.
402. In this Symposium David Wilkins offers one such vision, pursuant to which large law firm lawyers might become, and come to think of themselves, not as agents serving principal-clients but rather as junior partners, working alongside their clients. See Wilkins, supra note 94.