Women in Law

Contents

FOREWORD, 2011

PREFACE, 1981

PREFACE TO THE 1983 EDITION

PREFACE TO THE 1993 EDITION

INTRODUCTION: Encountering the Legal Establishment

I. BACKGROUND

1. Law: The Changing Context

2. Where They Came From and Why They Chose the Law

II. LAW SCHOOL

3. Getting into Law School

4. Going to Law School

III. THE MANY PRACTICES OF LAW

5. Breaking In: Dark Days of Discrimination and the Beginning of a New Era

6. Patterns of Practice

7. Government Practice

8. Poverty Law and the Public Interest

9. Feminist Law Firms and Feminist Law Practice

10. Small Private Practices and Husband-Wife Law Partnerships

11. Women in the Legal Establishment: Wall Street and the Large Corporate Firms

12. Women Law Professors

13. Benchmarks: Women in the Judiciary

14. Professional Associations

IV. OUTSIDERS WITHIN

15. Ambivalence and Collegiality

V. MANAGING AND COPING

16. The Self: Confidence and Presentation

17. So Many Hours in the Day

VI. PRIVATE LIVES

18. Husbands, Wives, and Lovers

19. Children

CONCLUSION: Prognosis of Progress

APPENDIX: METHODOLOGY

EPILOGUE

Name Index

Subject Index

NOTES

Foreword

WHEN Cynthia Fuchs Epstein published her pathbreaking account of Women in Law, their status in the profession was separate and anything but equal. They constituted less than 15 percent of lawyers and 5 percent of partners, earned about 40 percent less than their male colleagues, and were often relegated to low-prestige practice settings. With penetrating insight and painstaking detail, Epstein chronicled the biases that helped account for those inequalities.

Over the last three decades, much has changed but too much has remained the same. Now, about half of new lawyers in the United States are women and they are fairly evenly distributed across substantive areas. Yet significant gender disparities persist. Women constitute about a third of the lawyers in large firms, but only about 17 percent of equity partners. Attrition rates are almost twice as high among female associates as among comparable male associates. Women are also underrepresented in leadership positions such as chairs and members of management and compensation committees. Gender disparities are similarly apparent in compensation, even when controlling for productivity. Although female lawyers report about the same overall career satisfaction as their male colleagues, women also experience greater dissatisfaction with most specific dimensions of practice: salary, level of responsibility, recognition for work, content of work, chances for advancement, and control over their work lives. For women of color, all of these disparities are still more pronounced. Their attrition rates are the highest and their compensation and satisfaction rates are the lowest of any demographic group.

Part of the problem is the lack of consensus over whether there is a serious problem, or one that the profession has a responsibility to address. As was true when Epstein concluded her research, many decision makers still attribute gender differences to women’s different choices, capabilities, and commitment. A wealth of research, however, suggests that some of the biases that Epstein described are still very much present, although in subtler forms. Gender stereotypes, exclusion from networks of support, and inflexible workplace structures have created a playing field that is not yet equal. It is a shameful irony that the profession leading the nations’ struggle for diversity and gender equity in employment has so often failed to set an example in its own workplaces.

Yet in one crucial respect, the legal landscape has been transformed. When Epstein published Women in Law, part of what attracted its widespread acclaim was its originality; it was among the first in what has now become a rich literature on gender and diversity in the profession. Indeed, the fact that the book is being reissued testifies not only to its enduring scholarly value, but also to the attention that the issue now commands. In her preface to the 1993 edition of Women in Law, Epstein reviewed women’s partial progress and declared herself optimistic, but cautiously so. There is reason to feel the same today. The woman problem remains, but there is a cottage industry of committees, commission, scholars and organizations committed to addressing it. Her book helped inspire that movement, and our profession remains deeply in her debt.

DEBORAH L. RHODE

Ernest W. McFarland Professor of Law

Stanford University

Stanford, California, 2011

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Preface

A GREAT DEAL has happened in the world and in my life since the time when this book was conceived. This is also true for the many people who had some hand in the development of its ideas or the gathering of its evidence. We have grown and changed roles in our personal lives; we have also worked for change in society, engaging in efforts, small and large, quiet and loud. Some of us bear scars, but most of us seem to have profited from living through this past decade and feel that this is probably true for our society as well, although efforts to better ourselves and our society, like woman’s work, are never done. Because of these efforts and changes, this book took a long time to produce. However, the process of studying and writing, putting the work aside for a period and taking it up again, had its rewards. Colleagues, mentors, friends, and students (and for many of the people involved, these categories overlap) became part of the intellectual and emotional process.

At various stages and from various sources I also received guineas and locks, the money and space that Virginia Woolf maintained all writers need. Actually, I had more guineas than locks, many offices but few rooms of my own, involved as I have been through the years with teaching and activity in the women’s movement. Life also included involvement in other social causes, work in professional organizations, and time with friends and family.

Through the years I have become indebted to many people. Some of them will appear immediately to readers of this book as their names crop up as contributors to both a theoretical and an ideological framework; others are there more in spirit, their contributions not of the kind evidenced in footnotes.

There is no order: some whom I will mention were active in my work life at times and faded out, only to come back in again; others are spiritually constant. In the revelatory nature of my generation, I will confess that there were those whose influence, at one time inspiring, was at another confounding; such are the workings of our minds and emotions. But if others helped and hindered, I too was responsible for permitting obstacles to get in the way of opportunities. A firm believer {viii} in the impact of structure, I found that one must also learn to seize the day. I have always been enormously grateful for support and encouragement, and if I have succeeded in some tasks in my life, I know how much it came from those sources. I know how much structural conditions of opportunity count. There were times when I was given a room of my own, yet preoccupations crowded out the writing that was my mission. Good counsel and age have tempered my preoccupations, and experience has enabled me to make better use of resources.

Certain resources stand out as being of strategic importance. On four occasions, I have been a fellow of the MacDowell Colony in Petersborough, New Hampshire, the last time in June 1980, when a good deal of the writing of this book came together. In this idyllic setting, away from normal responsibilities and contact with the outside world, I was able to write and think, unimpeded by anything but the task at hand. A year as a fellow at the Center for Advanced Study in the Behavioral Sciences at Stanford, 1977/78, also provided an opportunity to work intensively in an environment rich in intellectual stimulation and generous with services. Support from the National Institute of Mental Health, the Spencer Foundation, and the Rockefeller Foundation made the year possible. A Guggenheim fellowship also provided time away from teaching and funds for research in 1976/77, as well as the chance to explore new directions and changes in the law which turned the book around in my mind.

In addition, the Center for the Social Sciences at Columbia University has been my research home for some time, and I have benefited from the assistance I have received there through the supportive colleagueship of its director, Jonathan Cole, and because of a Ford Foundation grant for the Program in Sex Roles and Social Change, for which Mariam Chamberlain was largely responsible. The opportunity this past year to co-direct a training program on the economics and sociology of women and work at the Graduate Center of the City University of New York, funded by the National Institute of Mental Health, also provided a forum to test certain ideas with a group of able colleagues, especially Gaye Tuchman, who shepherded the program into existence and handled many crises single-handedly when the deadlines drew near. The support of the Department of Sociology at Queens College in permitting flexibility of time arrangements is also appreciated. Early research was also supported by the U.S. Department of Labor and the Research Foundation of the City University of New York.

Certain people were important to me in the course of this project because of their encouragement. Emanuel Geltman first backed publication {ix} of my early study of women lawyers, which now appears in this vastly changed form. My son, Alex Epstein, not only insisted that I work more efficiently when my efforts diffused, but served as a model by his own behavior.

Certain people were also my critics and sounding boards, providing intellectual and editorial assistance. William J. Goode, teacher and friend, read and discussed many drafts of the work in its early stages and was strong in his urging to move it toward completion. Robert K. Merton’s notes on the original manuscript of my first study of lawyers in 1968 were still useful in the writing of the sections of this book which draw on that study. His meticulous editing of a draft on the changing context of law and outsiders within was both a challenge to critical thinking and an instructive exercise in the elements of style. Ruth Bader Ginsburg, a source of information and assistance over the past ten years, also read and commented on sections of this work in its various stages, particularly on the law schools and on Wall Street firms, as did Martin Ginsburg. Barbara Underwood and Carole Joffe also read sections of the book and provided helpful comments and information. Donna Fossum provided valuable assistance and offered data for use in the chapter on women law professors. Jeylan T. Mortimer also read critically a version of the chapter on Wall Street lawyers.*

Kai T. Erikson made valuable comments on parts of this work, but my keenest gratitude to him is for the model he provided of exemplary qualitative analysis and dramatic expository writing. Alone with my data and stuck in the language of jargon, I would often turn the pages of his book, Everything in Its Path, for inspiration and instruction in the sociologist’s craft. Although I could not hope to achieve the level of performance of his exceptional talent, those lessons did move me toward writing some of the sections of this book of which I am especially fond.

But inspiration and enthusiasm often swept me away, and I have been fortunate to have the in-house counsel of Howard Epstein, who contributed once again to my work his considerable talent as an editor and insightful intellect as a critic as he pruned many drafts of this manuscript.

I have also been particularly fortunate in having as research assistants on this book people whose taste and judgment were resonant with my own, and with whom I had many hours of rich discussion. Susan Wolf, who came to the project as a sociologist and is now in the legal profession {x} herself, remains my good friend and intellectual compatriot. Mary Murphree and Judith Thomas were research assistants who became true collaborators. Others have also helped in the research over the past years: Allan Grafman, Susan Ogulnick, Carol Finkelstein, Thomas Sykes, Diana Polise, Zeev Gorin, Mark Johnson, Flora Solarz, Claire Morgenstern, Harriet Goodman Grayson, Beth Stevens, Gwyned Simpson, Marlene Warshawski, Mary Berry O’Neil, Simonetti Samuels, and Athena Economides. Those who participated in the last stages of production with spirit, vitality, and good will are Rachel Ovryn, Amrita Basu, Susan Roberts, and Lyn Perlmuth. Helen Danner provided much of the final typescript.

I am also grateful to Julia Strand of Basic Books, who polished the final draft, and to Jane I say, my editor, for her remarkable efficiency, wisdom, and cheer.

I would also like to express gratitude personally, and as a woman of these times, to Betty Friedan, who provided much of the impetus for change that is considered in this book and whom I have had the good fortune to work with on many projects over the past decade.

Of course, this book could not have been written without the generosity and good will of the scores of lawyers who gave of their time and experience.

CYNTHIA FUCHS EPSTEIN

New York City, 1981

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Preface to the 1983 Edition

THE YEAR’S time between the publication of the first edition of Women in Law and this new edition has given me the opportunity to reflect on recent developments in the legal profession and on the findings of the original study. In the course of the year, invitations to speak on the status of women have brought me face to face with hundreds of lawyers in various parts of the country, including places where I did not have the opportunity to interview. Lawyers in places such as Tampa, Dallas, Williamsburg, and Philadelphia have reported that the patterns found in the sample essentially captured the story of women in law across the country.

Everywhere there seemed to be continuing improvement in the status of women in the legal profession. This personal impression was reinforced by 1982 statistics on the fifty largest law firms in the United States provided by researcher Hal Perkins at the National Law Journal. Further investigation by my research assistant, Joyce Wackenhut, gave me an opportunity to update information on Wall Street firms (Chapter 11). Contrary to forecasts of diminished opportunity, these firms were continuing to grow—at a rate of 8 percent—despite the current recession. The proportion of women partners had risen, from 2 percent to 3.5 percent, and those firms reporting no women partners had dropped from one fourth to less than 10 percent of the total. Furthermore, the big firms continued to attract and hire women, especially those coming out of the top national law schools; in fact, according to a study by the National Association for Law Placement (NALP), these firms were a growing source or opportunity for women. This study indicated that 90 percent of women law school graduates found law-related jobs within nine months of graduation.

{xii} The number of women firsts—as prosecutors, as judges at all levels of the court system, and on important committees of the bar associations—was also growing. A woman partner, Joan Hall of Jenner and Block, a large Chicago firm, became head of the second largest American Bar Association section, that on litigation, in 1982—a special achievement considering that women have been accepted as litigators only in the past ten years.

Side by side with these improvements in the status of women in the law, pockets of resistance to women’s equality in the profession remained. Women still complained of discrimination in promotion, and there was growing articulation of the problems created by the inflexible and demanding work schedules, which made no provision for family responsibilities. Law students and faculty members organized conferences addressing the problems of role strain and stress, but there was little evidence that the dedication to work demanded by the profession had eased.

Nevertheless, the law remained a high-priority choice of women, and a large number of the women encountered were enthusiastic about their prospects for rising in the profession. True, some women who entered legal careers found they were unhappy with the law, or that the profession demanded more commitment than they wished to give it, but many young male attorneys shared these attitudes. Of course, women face different problems from those of men, especially women who are concerned with the right time to have a child and the impact of pregnancy on their jobs. Although some women find reconciling motherhood and work roles insurmountable (at least for a period in their lives), and some lower their professional aspirations in order to balance their roles, many women continue to do it all. There is no reduction in the trend that finds law a high-preference profession for women. As Women in Law reports, the news is still that more and more lawyers are aspiring high and willing to pay the personal price that success in the profession demands.

There is evidence that women today are more aware of the problems of discrimination and harassment, two issues that surprisingly were not emphasized by the lawyers interviewed over the past decade. Newspaper articles and suits attest to a growing awareness of the subtle as well as blatant forms of sexual harassment that make women lawyers’ professional lives difficult to conduct in a straightforward manner. Greater emancipation has also caused more problems, as some men feel that women can take care of themselves and equality means they are fair game for sexual overtures. But this is true for women in all spheres and {xiii} at all levels of the occupational hierarchy. On the other hand, there is also some evidence that the increasing visibility of the problem is generating institutional policies helpful in reducing it.

I continue to be impressed with the fact that the experiences of women in the law and their problems and, triumphs are illustrative of women’s experiences in a wide range of occupations. I am convinced that the story of women lawyers is essentially a success story, and I hope that women in other fields be inspired by their achievements as all women continue their struggle for full equality.

CYNTHIA FUCHS EPSTEIN

Russell Sage Foundation

New York City, 1982

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Preface to the 1993 Edition

WOMEN IN LAW, first published in 1981 and updated in 1983, chronicles the amazing subtle revolution that occurred when women begin to enter the legal profession in ever-increasing numbers and the profession was compelled to acknowledge their presence and their considerable talents. The book retells the history of the profession’s egregious discrimination against women and of the effective challenge to it raised by women and by men sympathetic to their cause. Many young attorneys today are unaware of this history and of the depth and extent of change that has occurred. The book also tells of the many remaining problems women lawyers encounter—problems as serious as those a decade ago. Young attorneys are deeply conscious of the continuing resistance to the inclusion of women as true professional colleagues and of the institutionalized barriers women face in their professional careers.

My first account of women lawyers in the United States (a 1968 Ph.D. dissertation based on a sample of attorneys practicing in the New York City area) was essentially a grim portrait. But Women in Law, based on an additional ten years of research in a changing atmosphere, offered an optimistic view. I remain optimistic although somewhat cautiously so. And yet mine is a more affirmative perspective than one held today by many women in the law. One reason I think it is important to make this book available again is that many young women in law and other professions appear to hold more pessimistic views based on expectations of greater equality than they observe. These views are often not informed by the perspective of history which would indicate a sense of progress rather than discouragement.

Women in law, like women in medicine, have come a strikingly long way in a short period of time. Of course they still are a long way from genuine equality, and although some of their problems—such as sex-stereotyping {xvi}—are insidious, they no longer face barriers such as the quotas that once limited women’s enrollment or barred them from law schools. Nor do they face widespread restrictions on employment that women attorneys of their mothers’ generation faced. Incredulity and outrage may still be directed against women attorneys, but fewer find support for such views and they are countered by media attention and everyday experience with growing numbers of active women practitioners. Further, there is far more concern and dialogue in American society about the important issues that plague all working women: child care, sexual harassment, equal pay, and career advancement.

Many scholars and lawyers today are exploring the issues raised by women’s place in the law in an historical and sociological context, and as a participant in this exploration I was pleased to have the opportunity to republish Women in Law with the University of Illinois Press and to provide in an Epilogue new material collected during the decade since its original publication. The Epilogue reports a steady trend toward women’s integration in all specialties of legal practice and their presence in various levels of the legal hierarchy. The numbers confirm the ambivalence of many women lawyers toward their career experiences. Of course, numbers are always subject to interpretation, and I hope I have brought educated assessments to them.

In the past ten years my research on workplace culture and my analysis of the social construction of gender in society and in scholarly work (reported in a book, Deceptive Distinctions)has made me ever more concerned that ideologies of gender too often distort perceptions of society’s participants and researchers alike. The story of women in the legal profession—the extraordinary changes they have experienced and have helped achieve and the enormous variety of styles and preferences they exhibit—is as good an illustration as can be found of the fallacies of sex and gender stereotyping.

In the past ten years I have had gratifying feedback from many scholars and practitioners who have found the description and analysis in this book useful and resonant with their experiences. I have had further opportunity to explore new issues with many lawyers, sociologists, and students that has pressed my inquiry further. Among them are Deborah Rhode and the other members of the seminar on the legal profession at the Stanford Law School she invited me to attend while I was in residence at the Institute for the Study of Women and Gender at Stanford University in the spring of 1991, William Simon, Robert Gordon, and Ron Gilson. I also wish to note the enthusiastic advocacy of my work by Roy Mersky, of the University of Texas Law School at Austin, who has {xvii} been a constant resource through the year. And there have been many other scholars whose publications and discussions have informed my thinking on women in law at various times in the past decade; the names that come to mind as I write (and I seek forgiveness for those I neglect to mention): Richard Abel, Rose Laub Coser, Carrie Menkel-Meadow, Robert Post, Lynn Hecht Schafran.

This edition of Women in Law has also been shepherded through a process aided by a number of other people. I am deeply grateful for the help of a number of research assistants—Danielle Cohen, Ken Cunningham, Kim Reed, Renate Reimann, and Betina Zolkower—who have tracked down information and aided preparation of the Epilogue. Now, as before, Howard Epstein has been an able editorial support. I also would like to thank the Research Foundation of the City University of New York for the research funds that supported some of these assistants. Finally, this book owes its new edition to the support of Richard Martin, executive editor of the University of Illinois Press, and a number of anonymous referees who urged its publication. I hope their confidence is affirmed by this edition.

CYNTHIA FUCHS EPSTEIN

New York City, 1993

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Women in Law

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Introduction:

Encountering the Legal Establishment: The New Women of Law

ONLY TEN years ago, in my introduction to a book on women’s equality,* I wrote that the quiet ones are in revolt. The popular image of women as subdued and passive changed rapidly as they pressed collectively and individually for broader participation in American society during the decade. It was the beginning of wide-ranging changes in women’s roles that have affected most institutions of society, including the family, the economy, education, politics, religion, and law, the focus of this book.

What women are, what they want, and what they ought to do and be are now questions in the hearts and minds of most people.

There is no question that women have been poorly represented among those groups that receive rewards and privilege in this society, and whose work is regarded as the most interesting. Few women are to be found among the managers of industry, among the ranks of professionals in medicine, law, and the sciences—the manipulators of symbols and of power. It once was not believed that women wanted such positions or were competent to hold them. Yet over the past decade more and more women have chosen and fought to enter these spheres, and they are demonstrating competence in many fields that were exclusively male dominated before.

{4} This change in attitudes and aspirations and acquisition of competence came as more and more women entered the labor force and the growing woman’s movement proposed an ideology of equality underscoring women’s commitment to work. That ideology had been reinforced by the focus on justice and equality which came to American society’s consciousness through the civil rights and student movements of the 1960s. Finally, the impact of legislation was of primary importance, especially the passage of Title VII of the Civil Rights Act, which provided the legal basis for curbing discrimination on the basis of sex in work and education and for outlawing such discrimination in its most blatant forms.

{5} The law became a mechanism for change as it was implemented by the concerted action of women’s movement activists, by feminist lawyers, and by the acceptance of legal methods as effective tools for winning women’s entry into the male-dominated establishment and guaranteeing the possibility of their success.

There were many heroes, both women and men, in the early stages of this saga of change. A good proportion were lawyers. Many had fought for other excluded groups and civil rights causes; some had experienced discrimination in their own careers; and others simply caught the excitement of the successes achieved. Yet the early involvement of lawyers in the campaign to end sex discrimination was not in any sense a measure of women’s position in the legal profession. There were few women lawyers in the United States in the 1960s—women constituted 4 percent of the profession, about 7,000 according to the U.S. Census and even less, only 3.5 percent or 6,348, according to statistics published by the American Bar Foundation (see table I.1). Although obviously there had been an increase since the first woman was admitted to practice in 1869, it was very slight over the years.

Ten years later, the picture had totally changed. By 1970 there were 13,000 women lawyers, and they were to increase in numbers even more dramatically. In the 1970s, as the barriers to women’s legal education were lifted, as more and more young women looked to law careers as a way of acquiring competence and effectiveness, and as older women encouraged and provided models for younger women to emulate, an extraordinary development occurred: law progressively became a favored field for women. After decades of virtually no movement, the number of women lawyers grew radically in the decade of 1970 to 1980, from 13,000 to 62,000 (from 4 percent to 12.4 percent)[1] and the proportion of women in the law schools rose from 4 percent in the 1960s to 8 percent by 1970, and then to 33 percent by 1980.

I first studied women lawyers in the early 1960s, focusing on them as a deviant group—not, of course, a disparaging term, but a sociological and statistical one. These were women who had managed to enter a profession in which most members objected to their presence, at a time when it still was difficult to get admitted to law school (Harvard Law School admitted its first women students only in 1950), and when it was difficult for a woman to find legal work. I was then interested in learning by what paths women managed to become lawyers and how the general aura of exclusion affected their later careers. The interviews with the sixty-five lawyers who comprised the basis for that study were done in 1965 and 1966, the years in which the women’s movement was beginning {6} to grow, although most, people, including the lawyers interviewed, were still unaware of it.

I was struck, in carrying out those first interviews, by how wrong the stereotypes of women lawyers were. Like other women who had dared to enter male preserves such as medicine, large corporations, or competitive sports, they were thought to be tough, aggressive, and generally manlike. But the lawyers I studied were as different from each other in appearance and style as any other group of women, or men. Their similarities were in the kinds of work they found and the legal activities they engaged in. Women were guided toward (and sometimes restricted to) legal work in government agencies or research and routine aspects of case preparation. They rarely went to court to argue cases or were brought into conferences with important clients.

These women as a group had done remarkably well in law school and were hard workers. Many seemed successful, but often that meant only successful for a woman. A few were doing outstanding work by the standards of the profession, but not the proportion that would have been predicted on the basis of outstanding law school performance which was a clear indicator of future success for their male colleagues.

Although I wrote the story of those women lawyers in 1968 as my Ph.D. dissertation, by the time the analysis was completed the picture had already changed. The book I planned to write on women lawyers was put off again and again; under the impact of the women’s movement, women’s lives were changing and they were discovering—and creating—new career options. More and more young women were becoming lawyers, and the legal profession itself was changing in response to a variety of forces. The federal government was funding new programs for the poor, many talented young men were choosing to work in these new programs, and there was a general reassessment of legal practice and its rewards by a new generation of law graduates. Large law firms were forced for the first time to compete for gifted graduates with law programs geared to social reform. The change in the legal profession, changes in the attitudes of male lawyers, and changes in the numbers of women who were now getting legal training formed a context in which law became a less deviant and more normal career for women.

I interviewed successive waves of women attorneys in the 1970s: the new women of law, I called them. I spoke to radicals who became {7} lawyers to fight for civil rights issues; I met with attorneys who were trying to use law to win new rights for women and protect battered wives and rape victims; and with lawyers who were concentrating on constitutional issues to establish new precedents in the law. A Guggenheim fellowship in 1977 permitted me to do interviewing on a broader scale, and I followed up those inquiries by looking at women who were now in those exclusive and powerful domains, the Wall Street law firms.

I also tried to locate the lawyers who had been interviewed twelve years before. The questions they were asked centered on how their work and careers had changed and how the women’s movement had affected them. It was clear that some of these older lawyers had also become new women of law. Few were unaffected by the events of the 1970s.

This book is an accounting of the new and the old, of change and stability. The way it was for the 2 or 3 percent who were able to overcome discrimination and become lawyers still constitutes recent history and forms the context in which change has occurred. Many old patterns persist; resistance to women lawyers can still be observed and new patterns have developed to replace the outlawed old ones.

Does it matter that women become lawyers? I think it does. Not only is the entry of women into the legal profession an important indicator of their general equality in American life, but it constitutes a broadening of the profession’s responsiveness to the needs of all sectors of society.

There are other reasons to study the role of women in the legal profession. Law is one of the most traditional and exclusive professions in the United States. It also provides access to important positions in business, government, and politics. We can, for example, partly explain women’s poor participation in political life and certain kinds of business by the fact that such a small percentage of women have been lawyers.*

The problems that women have faced within the legal profession are in many ways the same they face in other occupations, but they take {8} a more intense and dramatic form. Highly demanding of commitment and time, law asks much of its practitioners. Women’s ability to fulfill the norms of professional life while performing their roles as women is tested by a legal career, as are their intellectual abilities, especially in the profession’s top echelons.

Although the profession has been structured to mesh with the lives of men and the norms of society which encourage men’s commitment to work, many women have managed to adapt and perform competently, even brilliantly, as lawyers. Society has changed in ways that make it more possible for women to assume professional roles without assuming they must pay the high costs asked of them in the past. Yet professional work still does exact costs of women and of men. Institutional demands are often over-demanding because individuals have many roles that require commitment and time. For women, there are contradictions as well between the role demands of professional life and those normally associated with their female status.

In this book, I shall describe and analyze the ways in which women attorneys are treated by their colleagues and their families, the kinds of pressures and cross-pressures they face, and the new and old ways they have dealt with their problems. I shall look at subtle as well as overt forms of discrimination, but I shall also consider the ways in which women have benefitted by being unique in the realms of men. And in examining the different experiences of women lawyers, I shall refer both to life-cycle changes, which are important to women and men when they go through careers, and to societal changes.

It is, of course, most interesting to locate the patterns that seem to affect most lawyers rather than those cases that are interesting because they are idiosyncratic. Although the women I interviewed were of different personality types and from different backgrounds, all were subject to the same cultural views about women and about women who chose to work in a male profession. Some of these views remain. And because I found that the kind of practice a woman worked in often was the most important factor in determining how she saw herself and her future, I shall concentrate on the different kinds of law practice in which women seem to cluster and discuss what this has meant in the past and what it may mean in the future.

I hope that this study will not only answer questions people have had about women professionals, but will raise questions about justice and women’s equality and personal freedom. The problems women encounter are ultimately faced also by the men they work with and the {9} men they live with. The sorting out and solving of those problems may be aided by defining what they are, showing how some people have solved them, and suggesting what larger social issues are raised by them.

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I

BACKGROUND

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1

Law: The Changing Context

THE MOST admired occupations have long been the professions—law and medicine in particular, but also architecture, the sciences, and academia. High in social rank and perceived as engaged in socially useful work, professionals can hope to find personal fulfillment as well as respect. Professionals’ prestige is such that they are often regarded as authorities not only on their fields, but on everyday affairs.

Of all the professions, law is the one most central to the functioning of American society. Members of the legal elite preside over power and property relationships. They play a leading role in the legislative and regulative bodies that write the law; they direct the executive agencies responsible for enforcing the law; they rule the courts that elaborate and apply the law; they guide the corporate and financial institutions that constitute the most important property interests. Lawyers are indispensable in modern industrial America. Capitalist enterprise and the governmental procedures linked to it have grown ever more complex and incomprehensible. The rules and processes of economic life require specialists—lawyers—to guide institutions and the uninitiated. Lawyers do not only advise; many are prominent among the ranks of corporate executives and corporate boards of directors.

The United States, in fact, leads other countries comparable in corporate power in the per capita proportion of lawyers.[1] Great Britain, Germany, and Japan, for example, do not depend as we do on a massive legal structure to conduct business.

In the United States, too, lawyers are very much part of politics and government.[2] Roughly three out of four United States senators are lawyers. Representatives and governors are also likely to have been lawyers, and many presidents have been lawyers. In that respect the United States is like many other countries—everywhere, lawyers are over-represented in law-making bodies.[3] It is not surprising, then, that law should be a prestigious occupation.

{14} However, the American bar is not a monolith. It is quite stratified.[4] Some lawyers work in large firms of hundreds of lawyers, have as their clients national and multinational corporations, and are connected with the power centers of government. Others are solo practitioners who handle the ordinary economic and criminal problems of social life, while lawyers in middle-sized firms and in routine government practice fall somewhere in between. The social distance between the senior partners of a large firm and the small practitioner is great.

The majority of lawyers are white males of middle-class background. Those who practice at the prestigious bar tend to be of higher socio-economic status than those who practice below. Class position has generally correlated with rank in the profession, although law has provided avenues of mobility for American ethnic groups. Although ethnic status once was a barrier to access to prestigious careers in law, it has become less important, even unimportant, in the last thirty years. But blacks and women, who trickled into the legal profession in the mid-nineteenth century, met considerably more resistance from the profession’s gatekeepers until the last decade than white males of low ethnic status.

Actually, the legal profession has always been cautious about protecting its reputation and its monopoly on its services by limiting the numbers of practitioners admitted to practice and the character of recruits. It has been like other professions in this respect.[5]

Professional prestige is created both by the merit that comes from performing useful and difficult work (requiring years of training) and by the efforts of professional groups to upgrade and maintain the respect they enjoy.[6] This is achieved by public relations work and control of standards of performance and recruitment of personnel. Monitoring of the professions is accomplished by peer review and control, with emphasis on informal as well as formal rules and constraints. It is widely believed that this is an effective system—for who but an expert could assess a fellow professional’s activity—by the professionals whose interests are served, by the social scientists who have studied them,[7] and by the lay persons who are their clients or patients.

Professions constitute occupational communities in which members share common norms and values and exercise informal controls known and understood by the members of the in-group.[8] Informal controls include exclusionary practices that limit membership to persons who can be depended on to understand the unstated assumptions and understandings of the professional culture.[9] Gatekeepers exercise {15} discretion in admitting recruits from backgrounds that are different from their own because the nature of informal controls requires that members be from known groups who can be trusted to uphold professional standards and relied on to assure ease of social relations on the job.

The most effective control of recruits has always been at the top of the profession.* In medicine and law, for example, the most prestigious specialties in the major teaching hospitals and the largest firms in the past have tended to be limited to men of the white Protestant establishment.[10] Paradoxically, at the same time that the professions have been exclusionary, they have created channels of mobility by admitting a limited number of aspiring minorities who were able to acquire sufficient education and who could demonstrate the competence to meet professional standards.† Because exclusion has always been rationalized at the top of the profession as necessary to maintain standards and not as a means to enforce social purity, the accomplishments of ethnic minority professionals were recognized in many spheres, especially professional education, the gateway to recruitment into the world of elite professional practice.

Women and blacks were not affected by these processes. Prejudice against them was of a different quality than that against men of ethnic and religious minority backgrounds because common cultural attitudes held that they had basic incapacities for professional work, and their race and sex statuses—their physical attributes—could not be concealed. Their numbers were kept limited in the law schools by the use of informal quotas (though a few schools officially continued to deny women admission until the 1950s) and the combined effects of the different criteria used for their admission and the reticence of black and women to apply in the face of this array of discrimination.

{16} The professional communities, for decades stable in structure and practice, began changing in the late 1960s in response to explosive changes in the society around them. The professions were growing in numbers in spite of a generally cautious attitude on the part of gatekeepers; law and medical school deans, together with bar and medical association officers, had long worked to keep recruitment down in the name of maintaining standards, but also, some admitted, to insure that the market would not be glutted. Nevertheless, there was a quantum jump in the number of professionals. In law, a proliferation of legal work served to allay fears that there would be too many lawyers and the price of legal services would be driven down. There was an increasing demand for legal services by a growing economy in the 1960s and early 1970s, triggered by expansion of the major corporations,* more complex and increased government regulation,† and increased public financing to support the needs of clients whose limited incomes kept them remote from the legal arena. Indeed, a general sense of entitlement of citizens concerned with their rights probably also contributed to an increased litigiousness. From 1972 to 1977 the number of class-action suits in federal courts nearly doubled, and in 1976 a total of 5,320 civil rights suits were brought—a 1,500 percent increase from 1970. Furthermore, new legal business was created by new statutes and regulations dealing with ecology, pollution, and consumer affairs.[11]

The number of lawyers practicing in the United States increased by 33 percent in the decade of 1960 to 1969, after growing just 14 percent in the previous decade. Since 1970, new admissions to the bar have increased by 91 percent. Between 1963 and 1978 law school enrollments more than doubled, from 54,000 to 126,000.[12] In 1970, there were 350,000 lawyers in the United States, about 300,000 actually in practice.[13] Today, unofficial estimates put the number at half a million.[14] Every year more than 30,000 new attorneys join the ranks of the legal profession.[15]

Growth in numbers of lawyers was paralleled by the changing shape of the profession. There was a movement away from solo practice to {17} work in law firms or salaried positions with corporations.* Lawyers who practice by themselves may go the way of the blacksmith, wrote New York Times reporter Tom Goldstein in a series on the rapid growth of the legal profession. There was also a movement toward employment in large firms, and the very largest, the twenty firms comprising the Wall Street bar, which ranged from 50 to 125 members in the 1960s when Erwin Smigel profiled them in the Wall Street Lawyer, increased their average size many times over.[16] The number of firms that joined their ranks increased too.

Although New York City remains the capital of the American legal profession,[17] there has been a significant shift in the national distribution of lawyers in the past decade. With more than 40,000 of the country’s half a million lawyers, New York City accounts for more than $2 billion in legal business.[18] But its monopoly on big business accounts handled by the Wall Street firms has been broken as large firms have grown up in other cities to meet the needs of corporations that no longer feel the necessity of having Wall Street lawyers make their legal decisions.

Houston, an increasingly popular site for corporate headquarters and the center of the oil and gas industry, now has three of the country’s eleven largest law firms, as does Chicago (each employs more than 200 lawyers). One of the Chicago firms, Baker and McKenzie—the country’s largest—is a loose consortium of 418 lawyers in nineteen countries. Cleveland, Los Angeles, San Francisco, and Philadelphia all have at least one Wall Street-type firm sophisticated enough to handle complex corporate problems. Six Washington, D.C. firms now have over 100 lawyers each, and dozens of others have grown in size, meeting the demand for guidance through the legislative and regulatory mazes created by new government regulations.[19]

Even in New York, firms still referred to as Wall Street have acquired addresses elsewhere in the city. Many have moved to the elegant new skyscrapers along Park and Madison Avenues in the midtown area or have opened branches there.[20]

Corporations also have been increasing the size of their in-house counsel staffs, partially as a response to the skyrocketing $100 to $150 per hour fees charged by their Wall Street firms. The legal departments at {18} Mobil, Exxon, and Western Electric, for example, rank in size with the country’s largest law firms.[21]

Yet the proliferation of business still has insured prosperity to the large firms, although some pay more attention than others to acquiring new clients.* Partners in such firms easily make a quarter to a half a million dollars a year.[22]

These changes have meant redistribution of the legal power formerly centralized in New York, although the New York firms certainly remain powerful. The East Coast establishment has had to compete with other areas of the country for (among other things) control of the national bar association and for the bright law school graduates. Ten years ago, when there were 300,000 lawyers in the country, one of every seven new lawyers came to practice in New York City. Now, when law school enrollments have doubled, only one of every ten comes to New York. Lawyers are finding it more attractive to work and live in California, Texas, Florida, and Georgia.[23] Law firms have also faced changes in the kinds of informal relationships characteristic of their ways of doing business.[24] (The consequences for the firms and their memberships are further discussed in chapter 11 on the Wall Street firms.)

The incomes of lawyers were also going up dramatically. Although incomes vary by size of city and of firm, average net incomes of lawyers ranged, in 1975, between $40,000 and $50,000 across the country.[25] A Price, Waterhouse study reported a nationwide average of $63,890 in 1978,[26] and 1975 law school graduates started at an average salary of $15,000.[27] By 1980, the large firms were starting young associates at salaries of up to $39,000.[28]

If a growing profession was good news for most lawyers, it was bad news for ordinary people. Complex laws about complex jobs written in indecipherable language, noted a Time cover story in 1978,[29] guarantee employment to lawyers but create resentment on the part of the public. However, legal spokespersons such as Stanford Law Professor John Kaplan maintain that the law’s complexity is necessary to guarantee rights, and it is this complexity that creates the need for secular priests to guide the lay person through the tangle. Today a businessman, small or large, cannot function without an attorney.

The two trends, egalitarian and technical, are creating jobs in all professions, but also forcing a thoroughgoing reassessment of how well {19} professionals do their jobs. The ambiguity directed toward lawyers and other professionals is not new;* it is grounded in the expertise of the professional, which is highly regarded by the public, in the public’s dependence on the professional for essential services, and in problems generated by the authority of the professional. Robert K. Merton and Elinor Barber, in a classic exposition of the ambivalence generated by professionals, note: However great its legitimacy, authority is known to have a high potential for creating ambivalence among those subject to it. Authority creates a measure of respect, love, and admiration, and of fear, hatred and sometimes, contempt.[30] They also point out that the ambivalence extends to such structural conditions as the fact that while professionals are defined as those who should subordinate their own interests to that of the clients, at the same time professionals make a livelihood from their clients’ troubles. Furthermore, professionals are agents of frustration because they often ask clients to alter behavior, to refrain from doing things they want to do, or to surrender their values. Also, the standards of accomplishment are different for professional and the lay public.[31] The professional is bound to assess success by the performance in terms of what is accomplished in relation to what, under the circumstances, could be accomplished, and the layperson is bound to judge whether the performance solved the problem to his or her satisfaction.[32] But the normal ambivalence stemming from the social roles of professionals and laity has changed in character as a result of the political movements of the 1960s and growing cynicism of the public toward the professions and the legitimacy of their authority.

The movements of the 1960s were important in pressing for egalitarianism in all spheres; they questioned the alleged professional standards that excluded entire categories of persons. Indeed, there were (and remain) challenges to the competence of the gatekeepers to establish criteria for recruiting and hiring which were not exclusionary in effect. The passage of the Civil Rights Act of 1964 prohibiting discrimination in employment and education provided the mechanism for these challenges.† Further, the authority of professions to be entirely self-monitoring {20} was being challenged in other realms. As a special report in the August 16, 1976 issue of Business Week put it:

Watergate cracked the image of the lawyer as one who reveres the law. Scientists and engineers are under attack for unseemly bickering over the safety of genetic research, supersonic transport and nuclear energy. In a sense, the gap between what the professions can deliver and what the public expects them to deliver results from two trends beyond their control: technological complexity and egalitarianism.[33]

One indicator of the law’s cracked image was the proliferation of legal malpractice suits, virtually unheard of before this decade. Charges of incompetence against a significant proportion of the legal profession were also made public by insiders as illustrious as the Chief Justice of the United States, Warren Burger, and by the former American Bar Association president, Chesterfield Smith.[34]

The legal profession met a number of crises affecting its ability to be self-regulating in the 1970s, including a ruling by the Supreme Court that the practice of law is a business. The high court thereby cut the ground out from under the bar’s claim that it was a self-regulating profession beyond the reach of antitrust law, opening the door to attacks on the basic tradition of how law is practiced. The Justice Department also successfully sued the American Bar Association for unlawful restraint of trade in prohibiting advertising (suits were also brought against engineers and physicians).

The legal profession has been declining in public image in recent years, some observers claim. A 1973 Harris Poll found that only 18 percent of the public had confidence in law firms (a lower approval rating than for garbage collectors, police, or business firms), and another Harris Poll taken in 1978, rating public confidence in eighteen institutions, found law firms at the bottom (along with Congress, organized labor, and advertising agencies).[35] These polls, however, probably do not reflect the positive side of the ambivalence laity feel about the professions.[36]

The mood of the 1960s and 1970s was also reflected within the profession as young lawyers attacked traditional practices and profit-oriented law. A growing body of critics, characterized by American Bar Association president James Fellers as a reform-oriented group of lawyer activists who have great skill in mobilizing press and Congressional interest in their views have attacked bar practices.[37] The demands from outside the profession for legal services for the poor were heard by sympathetic professionals within who disdained a legal system that {21} they felt primarily served the needs of those with substantial economic resources. Young lawyers, led by such advocates as Ralph Nader, saw the profession as a leading instrument for consumer advocacy, civil rights, and protection of the poor, and sought to use it to accomplish socially oriented goals. Although their numbers were not large, they represented a substantial increase over the old left defenders of the poor and politically problematic clients dating from the 1930s. Furthermore, the issues and cases of the liberal left and radical left lawyers of the 1960s and 1970s moved into the limelight. They, together with labor, civil rights, consumer, and community service groups, were responsible for, among other important work, challenges to bar rules guaranteeing set legal fees. The effect of a Supreme Court decision in the case of Goldfarb v. Virginia State Bar in 1978 provided legitimation for lawyer reform in permitting lower legal fees for clients than the fee-fixed standard set by the Bar Association.[38]

These developments contributed to a new climate of consciousness and conscience; even young lawyers in the corporate firms felt a responsibility to participate in socially oriented law and pressed their superiors to assign firm time for pursuit of pro bono cases.*

The more radical of the issue-oriented lawyers also sought to bring the egalitarian life-style of the youth culture to the practice of law, forming law communes or collectives and abandoning the hierarchical structure of the traditional firm. Many of these firms have since disappeared, due to the problems of economic viability and the changing interests and life cycles of their members, although new collectives have been formed. Public interest law has been institutionalized, to a certain extent, in the form of publicly and privately supported law firms and organizations, although the interest expressed by law students in the 1970s seems to have diminished.

The entry of women into the legal profession is as much a part of the changing context of the legal profession as any of the other factors that have contributed to its changing size, shape, and focus. From a negligible 6 percent of law school enrollment in 1968, women today constitute 31 percent of the total, and at some schools the figure is 50 percent or more. Their dramatic increase in numbers is part of the new fabric of the legal profession. Women lawyers experienced severe discrimination in the past; today their presence is met with responses ranging {22} from receptivity to rejection, with a high component of ambiguity. But public expressions of welcome are more characteristic in a changing value structure that has generally legitimated women’s claim for professional roles. Popular and legal newspapers, magazines, and journals over the past ten years give a generally positive view, as typified by the comment by Time magazine that "women are raising the standards of the profession.[39]

Thus growth, the changing shape of the profession, the move toward egalitarianism and the legal machinery to achieve it, the undermining of the gate-keeping function of professional elitists, pressure from groups such as black and women’s movement activists, and government regulation have created an opening of structure and opportunities in the late 1960s and 1970s.

The opening up of law schools and private and public law practices to women has caused a surge of women’s participation in the profession. In fact, the traditional view of law as a male field has been drastically changed as one third of the nation’s law students are now women, and women now work in every kind of practice, up and down the hierarchy. Old prejudices are being challenged as women demonstrate their competence in all aspects of the legal enterprise from corporate law to law in the social interest, from legal research to courtroom advocacy.

But forces remain that mitigate against an entirely open structure, ranging from entrenched views about criteria for a true meritocracy, protection of in-groups, and long-standing prejudices against outsiders. Further chapters of this book explore the progress women have made in the field of law as well as the complex problems of true integration they still face.

{page 23}

2

Where They Came From and Why They Chose the Law

WHO ARE America’s new women lawyers? What backgrounds do they come from, and what influences have formed them? Occupational heritage, particularly of professionals, has been of interest to sociologists for a long time, but we know more about the backgrounds of men than of women. Do women come from the same backgrounds? Are they subjected to the same influences? In the recent past, becoming a professional was unusual for a woman, and those who chose to do so must have been influenced by special factors. Yet the question remains whether the background profile of women in the professions differs from that of men.

The study of occupational choice is complicated. Puzzles remain even about those men in occupations that received much research attention. Work on women’s occupational roles is rarer, but some historical materials and clues exist.

More attention has been given to the social origins of lawyers than those of other occupational groups. Studies of lawyers have been done by social scientists[1] and writers of fiction.[2]

With roots in tradition and history, linked to big business and to government, law was a worthy profession for the sons of the American aristocracy. It has been a route sought by many minority groups, particularly the Jews, in their quest to make it in American society. It has recruited from the economically comfortable, the intellectually talented, and the aspiring.[3] Most lawyers have been, and continue to be, the sons of metropolitan families, according to a 1972 survey of eight selected law schools conducted by Robert Stevens.[4] But have the {24} daughters of these same families been motivated by the same aspirations and driven by the same demons?

Parents’ Education, Occupation, and Income

Lawyers tend to have well-educated parents, but the parents of the women tend to be somewhat better educated, on average, than those of the