University of Denver Sturm College of Law - SSRN papers

University of Denver Sturm College of Law Legal Research Paper Series Working Paper No. 11-17

A Primer on Diversity, Discrimination, and Equality in the Legal Profession or Who is Responsible for Pursuing Diversity and Why

Eli Wald University of Denver Sturm College of Law

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Electronic copy available at: http://ssrn.com/abstract=1938356

A Primer on Diversity, Discrimination, and Equality in the Legal Profession or Who is Responsible for Pursuing Diversity and Why ELI WALD*

INTRODUCTION In America law is king,1 and lawyers are members of a governing class,2 constituting an aristocracy and enjoying an elevated social and cultural status.3 One might expect that as high priests of our civic religion,4 lawyers would be at the forefront of pursuing diversity and equality, if not outside of the legal profession, at least within its ranks. Unfortunately, nothing could be further from the truth. Racial, ethnic, socioeconomic, religious, LGBT and disabled minorities are woefully under-represented in the profession, and women, while constituting approximately half of the national law student population and a significant and growing percentage of all American lawyers, suffer considerable inequities, especially at the profession’s upper echelons. In this issue of the Georgetown Journal of Legal Ethics, Deborah Rhode, in a compelling and informative voice, paints a disconcertingly grim picture of inequality and weak prospects for diversity in the legal profession.5 And while

* Charles W. Delaney Jr. Professor of Law, University of Denver Sturm College of Law. I thank Tony Alfieri, Marina Angel, Arthur Best, Alan Chen, Russ Pearce, Deborah Rhode, Joyce Sterling and David Wilkins for their insightful comments. A special thanks to Diane Burkhardt, Faculty Services Liaison at the Westminster Law Library at the University of Denver Sturm College of Law, for her outstanding research assistance. © 2011, Eli Wald. 1. THOMAS PAINE, COMMON SENSE 29 (London 1776) (observing “that in America The Law Is King”); ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 301-11 (Arthur Goldhammer trans., Library of Am. 2004) (1835) (discussing the status of lawyers as America’s aristocracy). 2. Russell G. Pearce, Lawyers as America’s Governing Class: The Formation and Dissolution of the Original Understanding of the American Lawyer’s Role, 8 U. CHI. L. SCH. ROUNDTABLE 381 (2001). 3. See RICHARD L. ABEL, AMERICAN LAWYERS 158-65 (1989); see also Talcott Parsons, The Professions and Social Structure, in ESSAYS IN SOCIOLOGICAL THEORY 34, 36–40 (rev. ed. 1954); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1, 17-18 (1975). 4. Robert W. Gordon, “The Ideal and the Actual in the Law”: Fantasies and Practices of New York City Lawyers, 1879–1910, in THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA 51, 51-74 (Gerald W. Gawalt ed., 1984) (exploring the elevated role and status of lawyers in American society). 5. See generally Deborah L. Rhode, From Platitudes to Priorities: Diversity and Gender Equity in Law Firms, 24 GEO. J. LEGAL ETHICS 1041 (2011) [hereinafter Rhode, From Platitudes to Priorities]. Rhode is a leading expert and advocate for gender equality in and outside of the legal profession. See generally Deborah L. Rhode, Gender and Professional Roles, 63 FORDHAM L. REV 39 (1994); Deborah L. Rhode, Myths of Meritocracy, 65 FORDHAM L. REV. 585 (1996); Deborah L. Rhode, The “No-Problem” Problem: Feminist Challenges and Cultural Change, 100 YALE L.J. 1731 (1991) [hereinafter Rhode, The “No-Problem” Problem]; THE DIFFERENCE “DIFFERENCE” MAKES: WOMEN AND LEADERSHIP (Deborah L. Rhode ed., 2003); Deborah L.

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Rhode’s article explores in detail unsuccessful gender and racial diversity initiatives and inequality at large law firms, her analysis has broader application to lawyers from other groups practicing in different legal settings.6 It is not just that some of the causes of inequality at large law firms, such as prejudicial presumptions about capabilities and commitment, stereotyping, in-group bias, conservative and rigid workplace structures, and backlash,7 impact lawyers outside of large law firms, but rather, as Rhode points out, that the practice realities at large law firms are symptomatic of ambivalence, inconsistency and confusion about diversity throughout the profession, rendering prospects for advancement quite bleak.8 In other words, not only is the legal profession lagging behind other occupations in achieving diversity and equality,9 but its quest is further frustrated by conceptual disagreement and confusion about the meaning of diversity, means of pursuing it, and responsibility for doing so. In sum, while minority under-representation and inequity constitute a serious problem, the diversity discourse is stuck in a state of counterproductive disarray. Two different causes arguably converge to explain the state of the diversity discourse in the legal profession. First, following repeated assaults on law schools’ affirmative action admission policies since the mid-1990s,10 diversity has been framed as and often reduced to a utilitarian-based justification of affirmative action.11 Rather than being thought of as a desirable goal in-and-ofitself, diversity has been discussed as a means to, or justification for, affirmative action, and worse, is often dismissed as an inferior justification for affirmative action compared with past discrimination and economic inequities.12 But of course, affirmative action is a remedy, not a goal, and a remedy, in part, for discrimination and under-representation. This conceptual confusion tends not

Rhode, Keynote Address: The Difference “Difference” Makes, 55 ME. L. REV. 15 (2002); Deborah L. Rhode & Barbara Kellerman, Women and Leadership: The State of Play, in WOMEN AND LEADERSHIP: THE STATE OF PLAY AND STRATEGIES FOR CHANGE 4–6 (Deborah L. Rhode & Barbara Kellerman eds., 2007); 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) [hereinafter Rhode, What’s Sex Got to Do with It?]. 6. See Rhode, From Platitudes to Priorities, supra note 5, at 1041. 7. See id. at 1046-60. 8. See id. at 1041 (there is “a lack of consensus on what exactly the problem [of failed diversity and inequality] is”). 9. See id. at 1041 n.1. 10. See Kathleen M. Sullivan, After Affirmative Action, 59 OHIO ST. L.J. 1039, 1040 (1998); Rachel F. Moran, Diversity and its Discontents: The End of Affirmative Action at Boalt Hall, CALIF. L. REV. 2241, 2253 (2000). 11. See Scott Cummings, Affirmative Action and the Rhetoric of Individual Rights: Reclaiming Liberalism as a “Color-Conscious” Theory, 13 HARV. J. ON RACIAL & ETHNIC JUST. 183, 196-201 (1997); Deborah C. Malamud, Values, Symbols, and Facts in the Affirmative Action Debate, 95 MICH. L. REV. 1668, 1709-10 (1997); Anthony E. Cook, King and the Beloved Community: A Communitarian Defense of Black Reparations, 68 GEO. WASH. L. REV. 959, 964-71 (2000). 12. See, e.g., Deborah C. Malamud, Affirmative Action, Diversity, and the Black Middle Class, 68 U. COLO. L. REV. 939 (1997).


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only to diminish the inherent importance of diversity as a desirable goal, but also to reduce a rich and broad concept to little more than a justification of affirmative action. Yet while affirmative action is an important means of addressing past discrimination, under-representation and inequities, it is certainly not the only means of pursuing diversity. In any event, diversity in the legal profession deserves and ought to be discussed on its own terms. As Peter Schuck provocatively notes: “diversity talk in America today is superficial and largely tactical . . . We can no longer afford the luxury of intellectual laziness but must think more deeply and systematically about what diversity means, how it should be managed, and how law and other social processes can best contribute to that endeavor.”13 Second, the advancement of the “business case for diversity,”14 while well-reasoned and well-intended, has backfired, ending up weakening and eroding the meaning of diversity. Meant to enhance the normative case for diversity with utilitarian grounds, and motivate large law firms and other legal employers to pursue diversity vigorously, it led to debates over the instrumental value of diversity, increasingly overlooking other compelling grounds for it. Indeed, we have been down that road before. As Deborah Malamud points out, when William Julius Wilson argued that race-based affirmative action benefits the black middle class and not the “truly disadvantaged” members of the black community, he meant to foster discourse about additional means to aid disadvantaged blacks, and surely did not mean for his work to be used by opponents of race-based affirmative action.15 Similarly, advocates of the “business case for diversity” likely did not mean to weaken diversity by undermining its normative justifications, but opponents of diversity initiatives have seized the opportunity to reframe and focus attention on the (admittedly often questionable) instrumental grounds for diversity. Indeed, David Wilkins, who has written extensively about the “business case for diversity,” has astutely cautioned against both an uncritical adoption of it and against abandoning other justifications for diversity: “given the limitations with self-interested justifications for client participation in programs to increase law firm diversity, advocates for those programs would be well advised not to give up on . . . ‘normative

13. PETER H. SCHUCK, DIVERSITY IN AMERICA: KEEPING GOVERNMENT AT A SAFE DISTANCE 7 (2003); Heather MacDonald, The Diversity Taboo—You Can’t Solve a Problem No One Will Talk About, WEEKLY STANDARD, Jan. 26, 2004, at 9 (criticizing the shallowness of American diversity discourse). 14. SCOTT E. PAGE, THE DIFFERENCE: HOW THE POWER OF DIVERSITY CREATES BETTER GROUPS, FIRMS, SCHOOLS, AND SOCIETIES (2007); 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, 1590 (2004) [hereinafter Wilkins, From “Separate is Inherently Unequal” to “Diversity is Good for Business”]. 15. Malamud, supra note 12, at 948.

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diversity arguments.’”16 Conceptual confusion about the meaning of and responsibility for achieving diversity makes successfully pursuing it even less likely.17 The goal of this article is to explore and clarify some of these confused conceptual dimensions of diversity in the hopes of moving the equality agenda forward. Part I unpacks the concept of diversity, demonstrating that while commentators often proceed on the assumption that diversity is a well-defined concept, several competing definitions and meanings are in fact being pursued by various constituencies. It then identifies two of its distinct yet often confused components: formal diversity, and substantive diversity, exploring their justifications and studying the complex relationship between these facets of diversity and the notions of equality and discrimination. Based on this framework, Part I concludes by examining accountability and responsibility for diversity, analyzing the circumstances under which legal actors and institutions are obligated to pursue it. It establishes that the legal profession and all of its constituencies and members have a non-utilitarian duty to pursue substantive diversity, and argues that leaders of the bar, as well as actors who cause, even unintentionally, under-representation have a special heightened duty to pursue diversity. Understanding diversity requires appreciation of and attention to context: to different practice settings and to different groups. Achieving diversity and equality in large law firms may require different measures than successfully achieving it in small law firms and solo practice, in in-house legal departments, in

16. David B. Wilkins, Do Clients Have Ethical Obligations to Lawyers? Some Lessons from the Diversity Wars, 11 GEO. J. LEGAL ETHICS 855, 857 (1998) [hereinafter Wilkins, Do Clients Have Ethical Obligations to Lawyers?]. Anticipating the impact of an economic downturn, Wilkins wrote: “Once again, my point is not that self-interested diversity arguments are false or unpersuasive. To the contrary . . . Nevertheless, experience . . . underscores the need for supplementing self-interested diversity arguments with normative claims that demonstrate why corporations have some responsibility for helping to promote law firm diversity . . . Without such arguments, demand-side initiatives are subject to the changing winds of corporate self interest.” Id. at 865-66. See also Wilkins, From “Separate is Inherently Unequal” to “Diversity is Good for Business”, supra note 14, at 1558 (“Whether linking progress on diversity to the demands of the marketplace will produce greater opportunities for black lawyers in corporate law firms, however, depends upon a closer examination of the connection between ‘diversity’ and ‘business’ than most proponents of the business case for diversity in the legal profession have been willing to undertake or even acknowledge.”); Sung Hui Kim, The Diversity Double Standard, 89 N.C. L. REV. 946, 953-54 (2011) (noting that “the mere fact that corporations feel compelled to offer business justifications for their voluntary efforts at diversity suggests that they regard moral rationales as insufficient in and of themselves,” and observing that “[r]arely do [corporations] raise moral or social justice rationales [for diversity]” (internal citations omitted)). See generally Lauren B. Edelman et al., Diversity Rhetoric and the Managerialization of Law, 106 AM. J. SOC’Y 1589 (2001) (exploring the processes by which the diversity discourse disassociated itself from civil rights law and attempted to ground itself in managerial ideas of value and efficiency); Joanne P. Braithwaite, Diversity Staff and the Dynamics of Diversity Policy-Making in Large Law Firms, 13 LEGAL ETHICS 141, 143 (2010) (describing the shift from defending diversity in terms of equal opportunity to “managing” diversity). 17. See, e.g., David B. Wilkins, Five Reasons Why Law Firms Are Not Making Progress on Diversity, 13 CBA REC. 20, 20 (1999) (“[T]he slow pace we observe on diversity issues stems in part from the manner in which firms and diversity advocates think about the problem and conceive of its solution.”).

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governmental practice, and in private industry. Similarly, pursuing gender diversity may present different challenges than promoting racial, ethnic, religious or socioeconomic diversity, and, of course, some of these identities intersect, compounding the challenge.18 To that end, Part II applies the framework developed in Part I and offers a contextual analysis of discrimination, underrepresentation and diversity in large law firms—the very topic explored by the two other contributors to this colloquium on diversity, Deborah Rhode and Tony Alfieri.19 It argues that because large law firms bear significant responsibility for gender under-representation in their equity partnership ranks they are under a duty to assume primary responsibility for pursuing substantive gender diversity initiatives, and that because they are partly responsible for racial and ethnic under-representation within their partnership ranks they owe a duty to both pursue diversity measures as well as to work with other legal profession constituencies to foster greater formal and substantive racial and ethnic diversity. For quite some time now large law firms have been in the forefront of diversity initiatives, committing significant resources to advancing diversity with somewhat disappointing results.20 Part II makes two contributions to understanding large law firms’ diversity efforts, and, in particular, their relative failure to achieve their stated goals. First, it asserts that commendable as they are, diversity initiatives are mistakenly regarded as voluntary, and ought instead to be thought of as mandatory. This, to be clear, is far from semantic, as large law firms’ tentative approach to diversity helps explain its shortcomings. Second, and more importantly, it explains why diversity efforts have not been as successful as expected and suggests ways of pursuing diversity more productively.

I. THE CASE FOR DIVERSITY IN THE LEGAL PROFESSION A. THE DIVERSE APPROACHES TO DIVERSITY

Talk of combating under-representation within the legal profession often assumes a common understanding of the meaning of diversity. Yet analysis of diversity approaches across legal arenas reveals inconsistent, even competing, definitions. Law schools, considered a significant constituency in the bar’s battle

18. On the growing attention to context in legal profession scholarship, see generally David B. Wilkins, Legal Realism for Lawyers, 104 HARV. L. REV. 469 (1990); David B. Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 799 (1992). 19. See generally Rhode, From Platitudes to Priorities, supra note 5; Anthony V. Alfieri, Big Law and Risk Management: Case Studies of Litigation, Deals, and Diversity, 24 GEO. J. LEGAL ETHICS 991 (2011). 20. See Douglas E. Brayley & Eric S. Nguyen, Good Business: A Market-Based Argument for Law Firm Diversity, 34 J. LEGAL PROF. 1, 4-8 (2009) (summarizing data on large law firms’ expenditures on diversity and the disappointing results achieved, especially in terms of retention and promotion) (internal citations omitted); see also Laura Finckle & Mark A. Bridgeman, Committed to Inclusion, 28 LEGAL MGMT., no. 4, 2009 at 24 (surveying large law firms’ diversity initiatives); Erin Brereton, The New Face of Law Firm Diversity, 29 LEGAL MGMT., no. 3, 2010 at 28 (reviewing large law firms’ spending on diversity programs).

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for increased diversity,21 appear to apply an incoherent notion. With regard to their student bodies, law schools pursue diversity fairly narrowly in two ways. First, while discussing diversity more generally, law schools have historically mostly pursued only racial diversity, initially focusing their attention on black students and subsequently expanding their efforts to include Native Americans and Hispanic students.22 They have not, for example, made any real efforts to foster socioeconomic, class, or ethno-religious diversity.23 Second, law schools have mostly limited their diversity initiatives to affirmative action in admission decisions, implementing preference admission policies essentially admitting black, Native American, and Hispanic students with lower college GPAs and LSAT scores than those of Caucasian applicants.24 Law schools have not generally sought to address under-representation at later stages, for example, by attempting to pursue diversity among their graduating students, or by assisting minority students in terms of job placement.25 Instead, for the most part, diversity initiatives concluded at the admission stage with law schools doing little even as some of their minority students struggled to graduate, pass the bar exams, and find high status legal positions.26

21. Law schools’ adoption of racially-based affirmative action policies and subsequent defense of these policies against challenges has both turned them into de facto defenders of diversity and caused them to be perceived as proponents of diversity. See, e.g., Rachel F. Moran, What if Latinos Really Mattered in the Public Policy Debate?, 10 LA RAZA L.J. 229, 248-49 (1998) (discussing the expectation that law schools can and should defend their affirmative action programs). This perception is somewhat ironic given that law schools have actually been quite conservative in their pursuit of diversity. 22. Law schools’ admission policies with regard to Asian-Americans deserve special attention. Proponents of affirmative action commonly exclude Asian-Americans from the debate, often based on an unsupported summary judgment that as a successful “model minority” they do not need and do not qualify for affirmative action policies. See Victoria Choy, Perpetuating the Exclusion of Asian Americans from the Affirmative Action Debate: An Oversight of the Diversity Rational in Grutter v. Bollinger, 38 U.C. DAVIS L. REV. 545, 564-70 (2005); Linda Chen Einsiedler & Todd A. DeMitchell, Affirmative Action and the Model Minority in Higher Education Admissions: A Conundrum for Asian Americans, 131 EDUC. L. REP. 877 (1999). Moreover, such an unreflective approach also tends to ignore important differences among subgroups of Asian-Americans. See, e.g., Mai-Trang D. Dang, The Blight of the Bourgeoisie, 12 ASIAN PAC. AM. L.J. 69, 71-76 (2006). 23. Richard H. Sander, Class in American Legal Education, 88 DENV. U.L. REV. (forthcoming 2011). Law schools’ class-based diversity initiatives have attracted growing attention since the mid 1990s. See, e.g., Richard H. Fallon, Jr., Affirmative Action Based on Economic Disadvantage, 43 UCLA L. REV. 1913 (1996). See generally Richard D. Kahlenberg, Class-Based Affirmative Action, 84 CALIF. L. REV. 1037 (1996); Richard H. Sander, Experimenting with Class-Based Affirmative Action, 47 J. LEGAL EDUC. 472 (1997). 24. See generally Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367 (2004) (arguing that the costs of affirmative action—lower grades and less learning, higher attrition rates, lower pass rates on the bar, and subsequent problems in the job market—may outweigh the benefits). 25. See generally Richard H. Sander, The Racial Paradox of the Corporate Law Firm, 84 N.C. L. REV. 1755 (2006) (arguing that aggressive affirmative action policies implemented by law schools and large law firms result in counterproductive outcomes: minority lawyers with relatively weak academic credentials are being hired but subsequently not promoted). 26. Law schools’ commitment to diversity beyond the admission stage is in part a function of school rank and wealth. For example, wealthier law schools are able to endow generous support programs, and elite law schools tend to have well-financed career placement offices that are charged with and able to help in placing most of

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That is not to say that law schools have done nothing in those areas. For example, over the past four decades, law schools have nearly universally adopted academic support programs designed to assist law students whose academic credentials and objective standardized test scores are not on par with the scores and credentials of most of the entering class.27 The focus of many of these programs has been bar passage,28 and while passing the bar exam is an important first step toward a successful legal career, law schools have done relatively little to support other important skill sets that impact their students’ future careers, such as the cultivation of social and cultural capital.29 With regard to their faculties, however, law schools have taken a very different, much broader, approach. While they sought to hire racial minorities, they also paid close attention to intellectual diversity,30 and to recruiting candidates of different sexual orientation and national origin,31 if not of

their students. See, e.g., AnBryce Scholarship Program, N.Y.U. L. SCH., http://www.law.nyu.edu/admissions/ jdadmissions/scholarships/anbryce/index.htm (last visited May 24, 2011). 27. Paula Lustbader, From Dreams to Reality: The Emerging Role of Law School Academic Support Programs, 31 U.S.F. L. REV. 839, 840 (1997); Adam G. Todd, Academic Support Programs: Effective Support Through a Systemic Approach, 38 GONZ. L. REV. 187 (2003). See generally Leslie Yalof Garfield & Kelly Koenig Levi, Finding Success in the “Cauldron of Competition:” The Effectiveness of Academic Support Programs, 2004 B.Y.U. EDUC. & L.J. 1 (2004); Louis N. Schulze, Jr., Alternative Justifications for Law School Academic Support Programs: Self-Determination Theory, Autonomy Support, and Humanizing the Law School, 5 CHARLESTON L. REV. 269 (2011). 28. See generally Linda Jellum & Emmeline Paulette Reeves, Cool Data on a Hot Issue: Empirical Evidence that a Law School Bar Support Program Enhances Bar Performance, 5 NEV. L.J. 646 (2005); Donald H. Zeigler et al., Curriculum Design and Bar Passage: New York Law School’s Experience, 59 J. LEGAL EDUC. 393 (2010); Derek Alphran et al., Yes We Can, Pass the Bar. University of the District of Columbia, David A. Clarke School of Law Bar Passage Initiatives and Bar Passage Rates—From the Titanic to the Queen Mary!, 14 U. D.C. L. REV. 9 (2011). 29. Kristine S. Knaplund & Richard H. Sander, The Art and Science of Academic Support, 45 J. LEGAL EDUC. 157, 158-59 (1995); Eli Wald, The Visibility of Socioeconomic Status and Class-Based Affirmative Action: A Reply to Professor Sander, 88 DENV. U. L. REV. (forthcoming 2011). See generally Ronit Dinovitzer & Bryant G. Garth, Lawyer Satisfaction in the Process of Structuring Legal Careers, 41 LAW & SOC’Y REV. 1 (2007) (arguing that lawyers’ job satisfaction and performance depends in part on their social and cultural origins and credentials). 30. See, e.g., Michael Vitiello, Liberal Bias in the Legal Academy: Overstated and Undervalued, 77 MISS. L.J. 507 (2007); L. Darnell Weeden, Back to the Future: Should Grutter’s Diversity Rationale Apply to Faculty Hiring? Is Title VII Implicated?, 26 BERKELEY J. EMP. & LAB. L. 511 (2005). It should be noted, however, that many commentators have criticized the liberal bias of law schools and their lack of intellectual diversity, at least in terms of conservative thinking. See, e.g., Richard A. Posner, Legal Scholarship Today, 45 STAN. L. REV. 1647, 1652 (1993) (stating that “[t]he faculties of the leading American law schools are now substantially to the left of the judiciary . . . and of the public at large”); Michael Stokes Paulsen, Reverse Discrimination and Law School Faculty Hiring: The Undiscovered Opinion, 71 TEX. L. REV. 993, 1001 (1993) (observing “the lack of conservative legal scholars on [law school] faculties and the hugely disproportionate percentage of faculty members who are political Democrats”); Eugene Volokh, Diversity, Race as Proxy, and Religion as Proxy, 43 UCLA L. REV. 2059, 2073 n.23 (1996) (reporting that 12.9% of law professors are Republicans, compared with 41.0% of the working population (citing James Lindgren, Measuring Diversity tbl.2 (unpublished manuscript)). 31. See generally Deborah Jones Merritt & Barbara F. Reskin, Sex, Race, and Credentials: The Truth About Affirmative Action in Law Faculty Hiring, 97 COLUM. L. REV. 199 (1997).

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socioeconomic background.32 Moreover, and unlike their approach to student body diversity where law schools’ commitment to diversity has been focused on the intake stage (akin to the hiring decision of faculty), law schools remained more committed to the success of their diverse faculty members both in terms of promotion to tenure (somewhat analogous not only to students’ ability to graduate and pass the bar exam but also to their ability to find and hold a prestigious position),33 and in terms of appointments to leadership positions such as appointments as Associate Deans and Deans (somewhat analogous to the ability of lawyers to secure leadership positions in practice).34 To be clear, the point here is not to criticize law schools for the different approaches they have taken to promote diversity in different contexts. To the contrary, a contextual approach may very well be appropriate given the various challenges and constituencies law schools face and serve. Nor is the point to argue that law schools should expand their preference policies in admission decisions to additional categories beyond race and ethnicity (although they should),35 or to suggest that they support the educational experience of their diverse student bodies beyond simply admitting minority students (although they should).36 Rather, it is to illustrate that diversity efforts vary across contexts both in their reach or target audiences and in their scope, in terms, for example, of their stated goals, the length of the commitment, and its measurement.

32. See generally Jeffrey L. Harrison, Confess’n the Blues: Some Thoughts on Class Bias in Law School Hiring, 42 J. LEGAL EDUC. 119 (1992). 33. That is not to deny criticisms of and the great room for improvement in law schools’ treatment of minority faculty members. The literature on the experience of women law professors on law faculties is vast. See, e.g., Marjorie E. Kornhauser, Rooms of Their Own: An Empirical Study of Occupational Segregation by Gender Among Law Professors, 73 UMKC L. REV. 293 (2004); Marina Angel, The Modern University: Hierarchical, Bureaucratic Structures Replace Coarchical, Collegial Ones; Women Disappear From Tenure Track and Reemerge as Caregivers; Tenure Disappears or Becomes Unrecognizable, 38 AKRON L. REV. 789 (2005); Ann C. McGinley, Reproducing Gender on Law School Faculties, 2009 B.Y.U. L. REV. 99 (2009). On the experience of minority law professors, see, e.g., Alfred C. Yen, A Statistical Analysis of Asian Americans and the Affirmative Action Hiring of Law School Faculty, 3 ASIAN L.J. 39 (1996). See generally Reginald Leamon Robinson, Human Agency, Negated Subjectivity, and White Structural Oppression: An Analysis of Critical Race Practice/Praxis, 53 AM. U. L. REV. 1361 (2004). Of course, gender and racial categories intersect, both outside and inside legal academia. On the experience of women of color in legal education, see Rachel F. Moran, Foreword, Taking Stock: Women of all Colors in Legal Education, 53 J. LEGAL EDUC. 467 (2003). Challenges to academic hiring and promotion practices are by no means unique to law schools. See, e.g., Joyce A. Hughes, “Reverse Discrimination” and Higher Education Faculty, 3 MICH. J. RACE & L. 395 (1998). See generally Patrick M. Garry, The Next Step in Diversity: Extending the Logic of Grutter v. Bollinger to Faculty Tenure, 82 DENV. U. L. REV. 1 (2004). 34. See generally Kenneth Oldfield, Social Class-Based Affirmative Action in High Places: Democratizing Dean Selection at America’s Elite Law Schools, 34 J. LEGAL PROF. 307 (2010); Kevin R. Johnson, The Importance of Student and Faculty Diversity at Law Schools: One Dean’s Perspective, IOWA L. REV. (forthcoming 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id⫽1769285. 35. See generally Wald, supra note 29. 36. See generally Chris Chambers Goodman, Retaining Diversity in the Classroom: Strategies for Maximizing the Benefits that Flow from a Diverse Student Body, 35 PEPP. L. REV. 663 (2008) (exploring strategies for effective incorporation of and retention of diversity in law schools beyond the admission stage).

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Furthermore, the point is to highlight this diversity of diversity initiatives and to begin to explore the justifications, if any, for these different approaches to diversity. Law schools may very well have legitimate or compelling reasons for taking different approaches to diversity in different contexts. They may believe that while diversity of all sorts is valuable, priority ought to be given to racial diversity over other types of diversity,37 that pursuing racial diversity may at the same time allow them to also achieve socioeconomic and other types of diversity,38 or that because pursuing one type of diversity may come at the expense of another, they ought to concentrate on racial and ethnic diversity.39 Law schools may believe that limiting their scope of diversity initiatives to the admission phase is a function of fear that an attempt to assist some of its minority students while in law school, for example, by offering assistance beyond so-called “academic success programs,” may result in undesirable stereotyping and compromised self-esteem.40 Moreover, the ability of law schools to directly assist students in preparing for the bar exams is somewhat limited,41 and their ability to influence employers’ hiring decisions is also quite limited,42 which

37. See generally Malamud, supra note 12. 38. See generally Fallon, supra note 23 (arguing that socioeconomic-based affirmative action may allow law schools to simultaneously achieve racial diversity); Sander, Experimenting with Class-Based Affirmative Action, supra note 23, at 503; RICHARD D. KAHLENBERG, THE REMEDY: CLASS, RACE, AND AFFIRMATIVE ACTION (1997) (asserting that class-based affirmative action should replace race-based affirmative action even if the former would not achieve the same results as the latter). But see Deborah C. Malamud, A Response to Professor Sander, 47 J. LEGAL EDUC. 504 (1997) (critically analyzing the UCLA experiment with class-based affirmative action and its negative impact on racial minorities). 39. Deborah C. Malamud, Response to Prof. Sander, 88 DENV. U. L. REV. (forthcoming 2011) at *1 (“I strongly disagree, however, with Sander’s decision to link his class analysis to his critique of race-based affirmative action.”). 40. See, e.g., John E. Morrison, Colorblindness, Individuality, and Merit: An Analysis of the Rhetoric Against Affirmative Action, 79 IOWA L. REV. 313 (1994); Paul Butler, Affirmative Action and the Criminal Law, 68 U. COLO. L. REV. 841, 856 (1997). Others, however, have discounted the impact of stigma on recipients of affirmative action. See, e.g., CHRISTOPHER EDLEY, JR., NOT ALL BLACK AND WHITE: AFFIRMATIVE ACTION AND AMERICAN VALUES 81 (1996) (“Affirmative action has a cost [and] part of the cost is the risk of stigma . . . the stigma I may suffer is a small price compared to the price I would pay if I faced closed doors . . . .”); Randall Kennedy, Persuasion and Distrust: A Comment on the Affirmative Action Debate, 99 HARV. L. REV. 1327, 1331 (1986). 41. See Lorenzo A. Trujillo, The Relationship Between Law School and the Bar Exam: A Look at Assessment and Student Success, 78 U. COLO. L. REV. 69, 110, 113 (2007) (arguing that law schools can support bar exam passage rates by assessing law students’ learning styles, providing academic services during the first year and discouraging students from working while studying for the bar exam); Todd, supra note 27, at 204-11 (describing academic support program measures during law school that improved a law school’s bar passage rate). 42. But again, it is not too limited, given the relationship of elite law schools with elite law firms and with the judiciary. There is a longstanding close relationship between elite law schools and large corporate law firms. Robert Stevens, in his history of legal education, notes that from the beginning of the twentieth century, “the elite law schools were seen as increasingly bent on serving corporate law firms . . . The elite law schools grew alongside the burgeoning corporate law firms.” ROBERT STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850S TO THE 1980S 51 (1983); JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA 28-30 (1977) (describing the symbiotic relationship between elite law schools and

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explains their narrow approach to student body diversity. In contrast, their broader approach to faculty diversity may be explained by the fact that law schools have much greater ability to support and influence the career path of their tenure-track hires and they exercise significant control over promotion decisions. On the other hand, law schools’ varying approaches to diversity may be driven by other, less admirable considerations. Advancing diversity efforts beyond racial preference and beyond the admission decision is going to be controversial, costly, and complicated. With regard to the target groups of diversity, racially-based affirmative action policies, while increasingly controversial, are more easily justified compared to, for example, socioeconomic preferences, because the former are meant to address past discrimination in a way that the latter do not.43 And, of course, pursuing diversity measures vis-a`-vis additional groups will entail significant financial commitments, above and beyond the costs of pursuing racially-based affirmative action. Pursuing socioeconomic diversity, for example, given the escalating costs of legal education,44 may require not only a significant hike in traditional financial aid to cover the cost of tuition, but also additional resources to cover cost of living.45 Such significant financial commitment may be frowned upon by all law schools in the aftermath of the Great Recession, and may be financially infeasible for lower-tiered schools. With regard to diversity measures beyond the admission stage, expanding the coverage of support programs will require additional costs, and will entail dealing with issues of bias, stereotyping, and self-esteem. Indeed, one may wonder whether the widespread adoption of academic success programs was motivated as much by law schools’ interest in their own accreditation and rankings as it was by genuine concerns regarding the quality of the academic experience of their students. Moreover, while law schools rely on the possession of social and cultural capital in making admission decisions, for example, by

elite corporate law firms, matching the so-called “best” law students with the “best” law firms). See generally Dennis Curtis, Can Law Schools and Big Law Firms be Friends?, 74 S. CALIF. L. REV. 65 (2000). 43. See generally Deborah C. Malamud, Assessing Class-Based Affirmative Action, 47 J. LEGAL EDUC. 452 (1997) (arguing that while class, socioeconomic status, race, gender, and ethnicity are inherently intertwined, class-based affirmative action would not be an effective substitute for racially-based affirmative action and would not achieve racial diversity); David L. Chambers et al., The Real Impact of Ending Affirmative Action in American Law Schools: An Empirical Critique of Richard Sander’s Study, 57 STAN. L. REV. 1855 (2005); Michele Landis Dauber, The Big Muddy, 57 STAN. L. REV. 1899 (2005). 44. See Michael L. Coyne, Law School for the White and Wealthy, NAT’L L.J., Apr. 11, 2011, http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id⫽1202489489121; William K.S. Wang, The Restructuring of Legal Education Along Functional Lines, 17 J. CONTEMP. LEGAL ISSUES 331, 334-34 (2008) (summarizing available data on law school tuition increases); Denis Binder, The Changing Paradigm in Public Legal Education, 8 LOY. J. PUB. INT. L. 1, 10-15 (2006) (documenting law school tuition “explosion”). See generally John A. Sebert, The Cost and Financing of Legal Education, 52 J. LEGAL EDUC. 516 (2002). 45. See generally Wald, supra note 29. For examples of such policies, see Paying for Law School, GA. STATE UNIV. COLL. OF LAW, http://law.gsu.edu/admissions/3198.html (last visited May 24, 2011); Tuition and Financial Aid, COLUMBIA UNIV. SCH. OF LAW, http://www.law.columbia.edu/jd_applicants/admissions/tuition (last visited May 24, 2011).

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valuing letters of recommendation, statements of interests, and “interesting” extra-curricular activities, commitments and hobbies,46 they do not have experience and expertise in fostering them in their students, even if they were committed to doing so.47 Similarly, paying attention to hiring, let alone promotion decisions, of large law firms and to judicial selection of clerks will require law schools to expand significant amounts of their own social capital. Likewise, law schools’ expensive approaches to diversity, relatively speaking, within their own ranks may be explained less by reason and commitment to the cause and more by their relative low costs and high visibility. For example, increased competition and globalization in the law teaching market brought more foreign candidates to the AALS recruitment market,48 making it relatively easy for law schools to diversify on the basis of national origin as they continued to hire pursuant to the prevailing merit-based standards. This is analogous to law schools’ so-called successful ethno-religious and gender diversification of their student bodies, which was effortless: as soon as exclusionary and discriminatory admissions policies were removed, Jewish, Catholic, and women law students applied and were admitted in significant numbers pursuant to law schools’ existing standards.49

46. Wald, supra note 29; see infra footnotes 92-98 and accompanying text. 47. Law schools could benefit from the great attention given by medical and business schools to the instruction of cultural competence. See, e.g., ASS’N OF AM. MED. COLLEGES, CULTURAL COMPETENCE EDUCATION FOR MEDICAL STUDENTS (2005); ASS’N OF AM. MED. COLLEGES, ROADMAP TO DIVERSITY (2008); Mary Lou Egan & Marc Bendick, Jr., Combining Multicultural Management and Diversity Into One Course on Cultural Competence, 7 ACAD. MGMT. LEARNING & EDUC. 387 (2008); see also Susan Bryant, The Five Habits: Building Cross-Cultural Competence in Lawyers, 8 CLINICAL L. REV. 33 (2001); Nelson P. Miller et al., Equality as Talisman: Getting Beyond Bias to Cultural Competence as a Professional Skill, 25 T.M. COOLEY L. REV. 99 (2008). 48. Compare Carole Silver, What We Don’t Know Can Hurt Us: The Need for Empirical Research in Regulating Lawyers and Legal Services in the Global Economy, 43 AKRON L. REV. 1009, 1043 (2010) (discussing the inbound flow of foreign nationals into the American legal profession, including foreign faculty teaching in law schools), and Norman Dorsen, Achieving International Cooperation: NYU’s Global Law School Program, 51 J. LEGAL EDUC. 332, 332 (2001) (describing NYU’s foreign law teachers program), with Jayanth K. Krishnan, Professor Kingsfield Goes to Delhi: American Academics, the Ford Foundation, and the Development of Legal Education in India, 46 AM. J. LEGAL HIST. 447, 468-73 (2004) (analyzing common perceptions in the 1970s that American law schools were inhospitable to foreign law teachers). 49. Prior to 1945, admission quotas were common practice. See, e.g., 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); 5 U.S. IMMIGRATION COMM’N, THE CHILDREN OF IMMIGRANTS IN SCHOOLS, S. Doc. No. 61-749, at 776-89 (3d Sess. 1911) (documenting the number of Jewish students enrolled in law schools); Bureau of Jewish Soc. Research, Professional Tendencies Among Jewish Students in Colleges, Universities, and Professional Schools, in 22 AM. JEWISH YEAR BOOK 383, 383-93 (Harry Schneiderman ed., 1920) (surveying professional tendencies among Jewish students in higher education). After 1945, law schools began to drop discriminatory quotas. See ABEL, supra note 3, at 85-87 (exploring admission quotas as barriers to entering the profession); Jerold S. Auerbach, From Rags to Robes: The Legal Profession, Social Mobility and the American Jewish Experience, 66 AM. JEWISH HIST. Q. 249, 278-81 (1976) (discussing how prevailing admissions criteria have benefited Jewish law students and reversed professional discrimination); 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

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At the same time, keeping statistics about law schools’ hiring and promotion practices is relatively easy, rendering failure to hire and subsequently promote minority candidates highly visible. As a result, because they control the promotion process of their professors, law schools that fail to achieve diversity within their tenure ranks would likely face a reputational harm and be called upon to account for the perception of discrimination. Large law firms, another key constituency in the battle for diversification of the profession, employ yet a third approach to diversity. Following a long period of institutionalized discrimination in which elite law firms have recruited and promoted near exclusively WASP men of higher socioeconomic and cultural status, they have opened their doors to ethno-religious and socioeconomic minorities, hiring and promoting Jews, Catholics, and WASPs of lower socioeconomic status.50 Large law firms also responded to pressures to diversify their ranks in terms of gender, racial, and sexual orientation, at least in terms of initial hiring, but have had somewhat of a poor record of retaining and promoting women and minority lawyers.51 This is noteworthy and counterintuitive, if only because large law firms have spent significant resources pursuing diversity, both in terms of money and institutionally, by proactively recruiting minorities, appointing diversity officers, etc.52 In any event, compared with law schools, large law firms have pursued the most inclusive approach to diversity in terms of the groups targeted, but have been more modest in the scope of their success contrasted with faculty promotion records of law schools.53 due to adverse reactions by the elite bar). See generally JEROME KARABEL, THE CHOSEN: THE HIDDEN HISTORY OF ADMISSION AND EXCLUSION AT HARVARD, YALE, AND PRINCETON (2005). 50. See generally AUERBACH, supra note 42; Eli Wald, The Rise and Fall of the WASP and Jewish Law Firms, 60 STAN. L. REV. 1803 (2008). 51. See Rhode, Myths of Meritocracy, supra note 5, at 587–94. See generally Rhode, The “No-Problem” Problem, supra note 5; Cynthia Fuchs Epstein et al., Glass Ceilings and Open Doors: Women’s Advancement in the Legal Profession, 64 FORDHAM L. REV. 291 (1995); 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, Women in the Legal Profession]; 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); Judith S. Kaye & Anne C. Reddy, The Progress of Women Lawyers at Big Firms: Steadied or Simply Studied?, 76 FORDHAM L. REV. 1941 (2008) [hereinafter Kaye & Reddy, The Progress of Women Lawyers at Big Firms]; Judith S. Kaye, Women Lawyers in Big Firms: A Study in Progress Toward Gender Equality, 57 FORDHAM L. REV. 111 (1988); 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]; Nancy J. Reichman & Joyce S. Sterling, Sticky Floors, Broken Steps, and Concrete Ceilings in Legal Careers, 14 TEX. J. WOMEN & L. 27 (2004). On racial underrepresentation, see David Wilkins & G. Mitu Gulati, Why Are There So Few Black Lawyers in Corporate Law Firms: An Institutional Analysis, 84 CALIF. L. REV. 493, 526-27 (1996) [hereinafter Wilkins & Gulati, Why Are There So Few Black Lawyers in Corporate Law Firms]. 52. Brayley & Nguyen, supra note 20. 53. Which again, perhaps surprisingly, are not as stellar as one might imagine. Many of the reasons for the glass ceiling effect in law practice—the expectation of long billable hours, gender stereotyping, the pressure to become a rainmaker—are absent from legal academia. And yet while law schools have a better record of promoting women and minorities compared with other segments of the legal profession, they are quite far from

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Once again, however, the reasons for this different approach to diversity are less than clear. Ethno-religious diversity was forced upon the elite law firms by increased competition by Jewish law firms and their institutional needs for a larger number of associates.54 Gender and class diversity was arguably brought about not by commitment to equality but out of self-interest: as large law firms grew exponentially, their increased appetite for associates dictated first going deeper into classes at elite law schools and later expanding the number of schools from which they recruited. Their increased demand for junior associates rendered it impossible to continue to exclusively recruit only men of affluent backgrounds.55 Racial and, to an extent, sexual orientation diversity was the result of the high visibility of exclusion, as well as growing client pressures to diversify and the business case for diversity.56 Furthermore, diversity became an important recruitment selling point even before the American Lawyer started ranking law firms on diversity and a proliferation of diversity awards took place,57 with many law firms featuring their diversity commitments and achievements prominently on their websites.58 And while large law firms deserve credit for the gains they have made in terms of gender, socioeconomic, and class diversification, the gender glass ceiling casts a cloud on their supposed commitment to diversity.59 The organized bar, led by the American Bar Association, pursues what can be characterized as yet a fourth approach to diversity. In terms of targeted groups, the ABA is arguably the most inclusive of all, as its initiatives cover gender, racial and ethnic, socioeconomic, cultural, religious, and disabled minorities.60 At the state level, alongside integrated bar associations and state-wide voluntary associations, a proliferation of associations represent many lawyer groups of all

meeting equality. See, e.g., Mariana Angel, The Glass Ceiling for Women in Legal Education: Contract Positions and the Death of Tenure, 50 J. LEGAL EDUC. 1 (2000). 54. See generally Wald, supra note 50, at 1833-41; Eli Wald, The Rise of the Jewish Law Firm or Is the Jewish Law Firm Generic?, 76 UMKC L. REV. 885, 914-28 (2008) [hereinafter Wald, The Rise of the Jewish Law Firm]. 55. See generally Marc S. Galanter & Thomas M. Palay, Why the Big Get Bigger: The Promotion-to-Partner Tournament and the Growth of Large Law Firms, 76 VA. L. REV. 747 (1990); 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 (1998) [hereinafter Wilkins & Gulati, Reconceiving the Tournament of Lawyers]. 56. See, e.g., Wilkins, From “Separate is Inherently Unequal” to “Diversity is Good for Business”, supra note 14, at 1590. 57. See Brayley & Nguyen, supra note 20, at 18; BUILDING A BETTER LEGAL PROFESSION, http://www.betterlegal profession.org (a website grading law firms on diversity maintained by a group of Stanford law students). 58. LeeAnn O’Neill, Hitting the Legal Diversity Market Home: Minority Women Strike Out, 3 MOD. AM. 7, 10-11 (2007). 59. See generally Eli Wald, Glass-Ceilings and Dead Ends: Professional Ideologies, Gender Stereotypes, and the Future of Women Lawyers at Large Law Firms, 78 FORDHAM L. REV. 2245 (2010). 60. See Diversity, AMER. BAR ASS’N, http://www.americanbar.org/portals/diversity.html (last visited May 24, 2011) (listing diversity initiatives pursued by the ABA).

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sorts.61 At the same time, however, by some measures the organized bar has done the least to actually promote diversity and combat discrimination. In its defense, unlike law schools and large law firms, the organized bar is simply not in a position to hire and promote a large number of minority lawyers, and it should be noted that bar associations have a decent record, at least as of late, of appointing minority candidates for their key leadership positions.62 Moreover, the organized bar has dedicated significant resources, at both the national and state levels, to studying under-representation and inequality and suggesting means of combating them, as well as to various initiatives and measures meant to foster diversity.63 Be that as it may, the organized bar has essentially limited itself to lofty rhetoric and making recommendations to other constituencies, and has done little to directly foster diversity itself. The ABA Model Rules of Professional Conduct, for example, are completely silent regarding diversity; and, in fact, the Rules do not even explicitly prohibit discrimination.64 Arguably, by remaining silent about fostering diversity and combating discrimination in its most significant role— attorney regulation—the organized bar sends an implicit message of ambivalence regarding diversity legitimizing inaction by other legal constituencies.65 The range of approaches to diversity employed by various legal actors and institutions shows the complexity and richness of the notion, highlighting the need to further explore its meaning and examine the justifications for it. It also reflects, however, the profession’s deep sense of confusion and ambivalence about the meaning of diversity, and helps explain disagreement regarding means of pursuing it and responsibility for doing so. Peter Schuck has speculated that diversity’s omnipresence may explain the poor quality of our diversity discourse.66 Perhaps so. Yet in the legal profession, 61. See Judith Kilpatrick, Specialty Lawyer Associations: Their Role in the Socialization Process, 33 GONZ. L. REV. 501, 502, 508 (1997) (“Law may be one of the most ‘organized’ professions in the United States, with thousands of voluntary legal associations . . . [and] over one thousand specialty associations currently in existence.”). 62. See generally AM. BAR ASS’N, PRESIDENTIAL DIVERSITY INITIATIVE, DIVERSITY IN THE LEGAL PROFESSION: THE NEXT STEPS (Apr. 2010) [hereinafter PRESIDENTIAL DIVERSITY INITIATIVE]. 63. See Diversity, supra note 60. 64. Some states, however, have moved beyond the Rules prohibiting discrimination in and outside the practice of law. See infra Part I.E. 65. Technically, the organized bar does not regulate lawyers. In a vast majority of the jurisdictions, the state supreme court both promulgates the rules of professional conduct and is responsible for overseeing their enforcement by delegating disciplinary authority to one of its arms. In practice, however, the realities are much different: the ABA plays a dominant role in promulgating rules of conduct because its Model Rules serve as the basis for state rules in most jurisdictions. State bar associations, while formally ceding enforcement power to the state supreme court, remain very much involved and influential in both rule promulgation and enforcement. See generally Michael J. Powell, Professional Divestiture: The Cession of Responsibility for Lawyer Discipline, 1986 AM. B. FOUND. RES. J. 31 (examining the processes by which state supreme courts assumed responsibility for overseeing disciplinary systems in place of bar associations). 66. See SCHUCK, supra note 13, at 10-11 (“Americans tend to take diversity for granted. This is no more surprising than a fish’s inattention to the water in which it swims. Diversity is so pervasive, so deeply embedded in everyday life, that we tend to ignore it until our attention is called to it.”).

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which one might expect to be in the forefront of pursuing it, diversity is anything but omnipresent. The diversity of diversity approaches reflects not familiarity and contextual solutions to particularized challenges but rather confusion and ambivalence. The next few sections attempt to address some of this incoherency. B. FORMAL DIVERSITY (OR DIVERSITY AS IT IS COMMONLY UNDERSTOOD)

Formal diversity, or equal representation, means that various groups should be represented in legal education and in the legal profession according to their percentage in the general population. Peter Schuck usefully defines formal, or “demographic” diversity as follows: Most diversity-talk, especially that which is descriptive . . . refers to demographic diversity. This is the distribution within a population of individuals who are grouped (by themselves or by others) according to a more or less objective and measurable attribute (e.g., age, gender, race, religion, nationality, language, income) that they share with other members of the designated group. For example, one commonly describes an employer’s work force as diverse (or non-diverse) based on the extent to which members of various racial or gender groups (as demographers define them) are present in it. The law often relies on this demographic notion of diversity—counting, classifying, and regulating— and this reliance produces, as we shall see, a strong tendency to look to proportionality as the measure of the duties to diversify that the law may impose.67

In a recent comprehensive study, the American Bar Association’s Presidential Diversity Initiative offered a similar definition of diversity. In a section titled The Starting Point: What Is Diversity?, the report offers four rationales for making diversity a priority, one of which is referred to as the Demographic Rationale.68 The so-called Demographic Rationale is cryptically stated as “[t]he U.S. population is getting older and more diverse,”69 followed by statistics showing our increasingly aging and racially and ethnically diverse population, yet one must assume that the report meant to argue that the changing demographics of the United States should inevitably and naturally be reflected in a changing demographic within the legal profession and lead to the increased diversity of the bar. Formal diversity thus reflects the basic intuition that in a competitive, equal society, the diversity of the populace will and ought to be reflected in diversity in its educational system and in its various occupations and professions, at least in the sense that demographic changes and enhanced diversity in the populace lead

67. Peter H. Schuck, Demography, Human Rights, and Diversity Management, American-Style, 2 LAW & ETHICS HUM. RTS. 5, 10-11 (2008). 68. See PRESIDENTIAL DIVERSITY INITIATIVE, supra note 62, at 10. 69. Id.

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to some increased, visible, and meaningful diversity in some occupations and professions, and that continued systematic under-representation of minorities requires attention and explanation. 1. FORMAL DIVERSITY, THE CAUSES OF UNDER-REPRESENTATION, AND THE LEGAL PROFESSION’S “STANDARD” INSTRUMENTAL DEFENSE OF DIVERSITY

At first glance, the idea of formal diversity appears not only intuitive, but also not to require any kind of regulatory intervention to ensure meeting its mandate. Assuming that law schools, and, subsequently, legal employers, admit and hire candidates pursuant to meritocratic standards, one might expect to end up with, more or less, a diverse student body and a diverse legal profession. Such an understanding of diversity as self-implementing is consistent with the “economics of discrimination” approach, according to which discrimination is inefficient and thus will be, over time, eradicated by well-functioning competitive markets without a need for anti-discrimination regulatory intervention.70 It reflects what Deborah Rhode has called the “no problem problem,” to capture the belief of some that since the problem of discrimination is self-correcting, it is not a problem at all.71 The “no problem” approach to diversity does not, to be sure, deny past discrimination, but it does maintain that assuming a contemporary level playing field, no regulatory intervention would be necessary to ensure formal diversity over time.72 Furthermore, to the extent that some groups appear to have an affinity to or a special relationship with the law, their numbers in both law schools and in the legal profession may exceed their percentage in the general population. For example, Jews appear to be significantly over-represented in law schools and in the legal profession in relation to their percentage in the general population.73 In other words, the “no problem” approach to diversity would be consistent with some discrepancies between a group’s representation in the populace and in the profession and would only be contradicted by systematic, significant, and static under-representation of minorities. Women’s experiences with legal education and with large law firms seem to lend support to this perspective. Once discriminatory admission standards have

70. RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS 390-91 (1992). 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. 71. See Rhode, The “No-Problem” Problem, supra note 5. 72. Notably, “over time” is a significant caveat. As I point out elsewhere, the particular organizational structure of legal institutions, for example, large law firms and law school faculties, suggests that diversity-minded institutions committed to addressing minority under-representation may take generations to achieve meaningful equality. Wald, supra note 59, at 2253-54. 73. See generally JEROLD S. AUERBACH, RABBIS AND LAWYERS: THE JOURNEY FROM TORAH TO CONSTITUTION (1990) (exploring the affinity of the American Jews to the law).

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been eliminated,74 women law students began attending law schools in increased numbers until accounting regularly for roughly half of the national J.D. student body,75 and approximately half of the entry-level associate pool hired by large law firms.76 Notwithstanding the experience of ethno-religious minorities and of women law students and lawyers, however, formal diversity does not appear to be the natural and inevitable state of affairs for racial, socioeconomic, and other minorities who are significantly under-represented in law schools and in the legal profession.77 This systematic and static under-representation of minorities contradicts the “no problem” approach to formal diversity and necessitates an analysis of why that is the case, whether something ought to be done about it, and who is responsible for doing so.78 Three interconnected reasons explain why formal diversity is not an inevitable outcome and does not naturally take place first in legal education and subsequently in the legal profession: some minorities may choose, on an informed basis, not to apply to law schools and opt out of membership in the legal profession; others may choose to become lawyers but fail to meet the merit criteria of law schools and subsequently of some employers; and yet other minorities may be the victims of intentional or structural discrimination, past discrimination, or economic inequalities that inhibit their membership in the legal profession.79 Could some groups plausibly choose, on an informed basis, to opt out of participation in the legal profession? In theory, such opting out seems possible. Just as Jewish-Americans have had a long tradition of affinity with the law,80 it is possible that other groups may have an affinity with other occupations, and,

74. See Nancer H. Ballard, Equal Engagement: Observations on Career Success and Meaning in the Lives of Women Lawyers 2 (Ctr. for Research on Women, Working Paper No. 292, 1998); 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); 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). See generally KAREN BERGER MORELLO, THE INVISIBLE BAR: THE WOMAN LAWYER IN AMERICA 1638 TO THE PRESENT 57-61 (1986). 75. See Paula A. Patton, Women Lawyers, Their Status, Influence, and Retention in the Legal Profession, 11 WM. & MARY J. WOMEN & L. 173, 173 (2005). See generally Fiona Kay & Elizabeth Gorman, Women in the Legal Profession, 2008 ANN. REV. L. & SOC. SCI. 299. 76. See NAT’L ASS’N WOMEN LAWYERS, NATIONAL SURVEY ON RETENTION AND PROMOTION OF WOMEN IN LAW FIRMS 4 (Nov. 2007), http://nawl.timberlakepublishing.com/files/FINAL%20survey%20report%2011-14-07% 20for%20website.pdf 77. See Rhode, From Platitudes to Priorities, supra note 5, at 1041. 78. Id. 79. These three explanations overlap. For example, some may fail to meet law schools admissions’ merit criteria because of past discrimination or economic inequalities; informed opting out also may be the result of distrust of law, lawyers, and the legal system rooted in economic disadvantage and discrimination, or the result of cultural stereotyping, which are, in turn, the product of past discrimination and economic inequalities. 80. See AUERBACH, supra note 73, at xvi; Wald, The Rise of the Jewish Law Firm, supra note 54, at 892-93.

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correspondingly, may have less of an interest in law schools and in law practice. While conceivable, however, informed opting out does not seem plausible. In America, “law is king,” and lawyers are the “high priests” of our civic religion, members of our aristocracy, and the governing class of our society.81 Lawyers benefit from high social and cultural status, and make, relatively speaking, a lot of money.82 Law is a stepping stone for powerful positions in both the private and public spheres, and the practice of law represents a meaningful opportunity for upward socioeconomic mobility.83 Of course, the practice of law is not a good fit for everybody, and informed opting out may explain some under-representation of some minority group members some of the time. For example, individuals of low socioeconomic and cultural classes may be opting out from applying to law schools: their poor economic status combined with the rising costs of legal education may provide a disincentive to apply, and their low cultural status may suggest that they do not buy into the belief that law is king and that membership in the legal profession is desirable even if the economic value of a law degree is in decline.84 Yet informed opting out simply seems implausible given the consistent under-representation of all minority groups all the time. That under-representation at the group level is not the result of informed opting out is an important fact, the significance of which cannot be overstated. Those who draw a strong distinction between discrimination and diversity and consider the latter less of a priority if not an afterthought, often fail to see that because under-representation is not an issue of informed choice, but rather an issue of either discrimination, inequities, or both, the difference between discrimination and under-representation is not as pronounced, and is more quantitative than it is qualitative.85 Next, could it be that members of some groups simply fail to meet the merit criteria of law schools and some legal employers? Prima facie, that seems to be the case with regard to some members of racial and socioeconomic minorities.86 Yet why would members of these groups systematically fail to meet so-called objective meritocratic standards? The literature suggests three interrelated explanations. First, while seemingly objective and meritocratic, admission and hiring standards may turn out to be culturally manufactured, subjective, and biased.87 Once again, the experience of Jewish lawyers in the 1950s and 1960s is revealing in this regard. The rise of the large law firm in the late 19th century 81. See supra notes 1-4. 82. See, e.g., Janan Hanna & Rachel M. Zahorsky, What America’s Lawyers Earn, 97 A.B.A. J. 35 (2011). 83. See PRESIDENTIAL DIVERSITY INITIATIVE, supra note 62, at 10. 84. David Segal, Is Law School A Losing Game?, N.Y. TIMES, Jan. 8, 2011. 85. See infra Part I.D. 86. See Sander, A Systemic Analysis of Affirmative Action in American Law Schools, supra note 24. 87. See Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CALIF. L. REV. 953, 957 (1996).

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reflected a paradigm shift in law practice. Rejecting paternalism toward clients, nepotism, and practical wisdom as defining features of law practice, the new large firms defined themselves in terms of professionalism, specialized expertise, competitiveness, and meritocracy.88 Specifically, associates were to be hired and promoted based on objective meritocratic standards.89 But, of course, these new entities, while formally meritocratic, were at the same time elitist and discriminatory, explicitly excluding Jewish and Catholic candidates, not to mention women.90 Indeed, even when Jewish and Catholic men began to meet their meritocratic standards, the elite large firms continued to discriminate, invoking the “warmth of personality” add-on to their so-called merit-based standards.91 Put differently, the past hiring and promotion practices of large Wall Street law firms are an example of standards that were seemingly objective, but in fact were dependent on culturally subjective factors. Today, law schools and large law firms claim to admit, hire, and promote pursuant to meritocratic standards, and to an extent they do, with law schools admitting candidates based on college GPA and LSAT scores, and large law firms hiring based on law school rank, class rank, and law review membership. At the same time, however, law schools and large law firms’ standards of merit are still, to a degree, culturally manufactured, building on candidates’ possession of social and cultural capital.92 Law school personal statements favor those who possess social and cultural capital: effective networks will allow one to better prepare for the interview and write better essays. Educational credentials, self-esteem, and confidence will also no doubt help one’s chances.93 Networks and contacts, aspects of social capital, will play a significant part in helping one find a job, especially for students attending non-elite law schools, and a significant body of literature documents the impact of cultural capital on one’s chances of making partner at large law firms.94

88. See Wald, supra note 50, at 1807-08 (The large law firm’s organizational structure “sought to develop and implement a professional ideology of meritocracy based on quality standards of professional performance . . . reflected in the organizational characteristics of the new firm, purported to deem considerations such as religious affiliation, cultural and socioeconomic background, ethnic identity, and social status irrelevant in assessing professional qualifications”). 89. See id. at 1808 (quoting Paul Cravath as stating that “for success at the New York bar ‘family influence, social friendships and wealth count for little’” and emphasizing that successful lawyers “worked up from the bottom of the ladder without having any advantage of position or acquaintance”). 90. See id. at 1810-25. 91. AUERBACH, supra note 42, at 24 (While the merit-based hiring and promotion criteria of the Cravath System purported to ignore irrelevant considerations such as social standing and religious affiliation, its “carefully prescribed path” was never based on merit alone. Rather, “[i]n addition to academic credentials [the young men] were expected to possess ‘warmth and force of personality’ and ‘physical stamina.’”). 92. See generally Wald, supra note 29. 93. See generally id. 94. See generally id.

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Second, so-called objective merit-based standards are, to a growing degree, a function of one’s economic capital.95 Not only is legal education becoming exponentially more expensive, crowding out candidates of lower socioeconomic class,96 but the very merit standards reflect ability to pay for them: prep schools, private education, and consultants give those who can afford them a significant leg up in getting into top colleges, and expensive study aids help secure higher LSAT scores, making financial resources and inequalities key components in meeting law schools’ purportedly objective merit standards. Third, the so-called objective merit standards reflect cultural as well as familial and group level attitudes toward education. The affinity of Jews and AsianAmericans to learning and their commitment to pursuing upward social mobility by means of education is well-documented, earning both groups the stereotype of the “model minority,”97 and helps explain their relative over-representation in law. At the same time, the disdain of some within the African-American community to learning and the stereotyping of top students within the community as “sellouts” and “acting white,”98 may play a part in explaining their under-representation in law schools and subsequently in the legal profession. Finally, the legacy of past explicit discrimination and current structural discrimination may explain the under-representation of minorities in the profession. While explicit intentional discrimination is by and large a thing of the past, its consequences continue to linger, for example, by limiting or depriving current generations of minority lawyers of essential mentorship, role models, and networks.99 Contemporary structural discrimination causes under-representation, for example, by relying on detrimental gender and racial stereotypes and by featuring traditional rigid work structures that hamper the progress of minority

95. Studying means of legitimizing power and authority, Bourdieu has identified three forms of symbolic capital: economic capital (money and property), social capital (social networks), and cultural capital (cultural competence). See Pierre Bourdieu, The Forms of Capital, in HANDBOOK OF THEORY AND RESEARCH FOR THE SOCIOLOGY OF EDUCATION 241-58 (John G. Richardson ed., 1986). Following Bourdieu, significant financial aid would contribute to the economic capital of students of lower socioeconomic status, but its impact on social and cultural capital would be more tenuous. 96. See sources cited supra note 44. 97. Daniel A. Farber & Suzanna Sherry, Is The Radical Critique of Merit Anti-Semitic?, 83 CALIF. L. REV. 853, 859 (1995) (describing Jews and Asian-Americans as model minorities); Malamud, supra note 12, at 965 (“I think here of the classic American ‘model minorities’: Jews and, more recently, Asian Americans”). 98. See generally STUART BUCK, ACTING WHITE (2010) (arguing that cultural attitudes within the African-American community disfavoring learning and the pursuit of excellence in education were the result of forced school integration in the 1960s, which was accomplished by the destruction of the black educational infrastructure, the closing of black schools, and the displacement of black role models, teachers and students alike, with white role models); RANDALL KENNEDY, SELLOUT: THE POLITICS OF RACIAL BETRAYAL (2008). 99. See generally David B. Wilkins, Rollin’ on the River: Race, Elite Schools, and the Equality Paradox, 25 LAW & SOC. INQUIRY 527 (2000) (exploring network effects on the careers of black lawyers who were “rollin’ on the river” of the prestige benefits of elite institutions for many years after graduation).

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lawyers.100 Should formal diversity in the legal profession be actively pursued when it does not inevitably result? The above analysis suggests a definitive “yes.” To sum up, informed opting out of membership in the legal profession is unlikely, given the systematic and significant under-representation of all minority groups in the bar, and such opting out, when it does take place, may be based in part on erroneous and inaccurate assumptions about the profession, stemming from limited access to role models, economic, social, and cultural capital. Failure to meet entry-level merit standards into law schools and the profession explains some under-representation, but must be examined in the context of the role economic, social, and cultural capital, as well as attitudes toward education, play in informing these admission standards. And past discrimination, contemporary economic inequities, and structural discrimination cannot be discounted as reasons for under-representation that must be explored more fully.101 Given the prevalence of under-representation, one might have expected the diversity discourse in the legal profession to offer a defense of diversity that engages these complex causes directly. Surprisingly, however, the discourse offers an instrumental defense of diversity divorced from its causes, focusing on the benefits diversity yields in both legal education and in law practice. In terms of legal education, as Justice O’Connor wrote in describing the University of Michigan’s affirmative action plan in Grutter v. Bollinger: “The policy aspires to achieve that diversity which has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts.”102 Moreover, “By enrolling a “‘critical mass’ of [underrepresented] minority students,” the Law School seeks to “ensur[e] their ability to make unique contributions to the character of the Law School.”103 That is, formal diversity, according to Justice O’Connor’s reasoning, ought to be pursued because it enhances the quality of the educational experiences of all law students, majority and minority students alike. In the context of large law firms, proponents of diversity have advanced the “business case” for diversity, arguing that formal diversity enhances the quality of decision-making and thus is in the best interest of these for-profit entities and their clients. Further, advocates of diversity have asserted that in an increasingly

100. Rhode, The “No-Problem” Problem, supra note 5. See generally Wilkins & Gulati, Why Are There So Few Black Lawyers in Corporate Law Firms, supra note 51. 101. An impoverished diversity discourse that fails to address the complex causes of under-representation risks yielding feeble policy recommendations. In particular, before addressing under-representation one must figure out in context what causes it. For example, if informed opting out accounts for some reduction in law schools’ applicants for some minority groups, that might legitimately influence what the normative goals of affirmative action programs adopted by law schools should be. 102. Grutter v. Bollinger, 539 U.S. 306, 315-16 (2003) (internal citations omitted) (internal quotation marks omitted). 103. Id.

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global and competitive market for legal services, diversity will both be demanded by clients and put large law firms in a better position to serve their clients effectively. As Deborah Rhode notes, however, the empirical support for the business case for diversity is not as strong as the evidence for the desirability of diversity in the classroom.104 Thus, the legal profession’s standard response to under-representation is to offer instrumental justifications to diversity, supplemented, in the case of African-Americans, Native Americans, and Hispanics, by reference to the historical fact of past discrimination. Justice O’Conner, for example, added to her instrumental justification of formal diversity that: [t]he policy does not restrict the types of diversity contributions eligible for ‘substantial weight’ in the admissions process, but instead recognizes ‘many possible bases for diversity admissions.’ The policy does, however, reaffirm the Law School’s longstanding commitment to ‘one particular type of diversity,’ that is, ‘racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers.’105

Similarly, the ABA has cited the business rationale for diversity, noting that “[i]t makes good business sense to hire lawyers who reflect the diversity of citizens, clients and customers . . . ,”106 adding a reference to past exclusion of certain racial and ethnic minorities.107 The profession’s instrumental stance is likely explained, in historical context, by persistent attacks on affirmative action, which caused its proponents to offer reasons in its defense. Analytically, however, justifications for diversity initiatives must be grounded in the causes of under-representation and in nonutilitarian justifications, or in what David Wilkins calls “normative diversity arguments” for such initiatives,108 not only in instrumental rationales. The next section considers the neglected normative case for diversity in the legal profession.109

104. See Rhode, From Platitudes to Priorities, supra note 5, at 1068-69. 105. Grutter v. Bollinger, 539 U.S. 306, 315-16 (2003) (internal citations omitted). 106. PRESIDENTIAL DIVERSITY INITIATIVE, supra note 62, at 9. 107. See id. The ABA report defines diversity as follows: “When we talk about increasing diversity in the legal profession, we are addressing a history of laws, practices, and employment decisions that excluded broad sectors from participation in the political, economic and social activities and benefits of society.” Id. (emphasis added). 108. Wilkins, Do Clients Have Ethical Obligations to Lawyers?, supra note 16, at 857; see also Brayley & Nguyen, supra note 20, at 8-9. 109. Section I.B.2, infra, explores the normative case for diversity in the legal profession, focusing its attention on arguments that are unique to lawyers and to the practice of law. This is not to suggest, of course, that general arguments for and against diversity are inapplicable to lawyers and the legal profession. For an

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2. THE NORMATIVE CASE FOR DIVERSITY IN THE LEGAL PROFESSION

In addition to the “standard” utilitarian justifications for diversity in legal education and in law practice, which, by the way, are quite different from each other and may not apply outside of legal education and the large law firm contexts, diversity is important in law for four inter-related reasons. First, formal diversity is important because of its close relation to equality. Fundamentally, many manifestations of under-representation result from biased standards, past discrimination, and current structural discrimination. Therefore, diversity initiatives embody an effort to overcome bias, address discrimination, and pursue equality, all core values of the legal profession and the rule of law. “The United States occupies a special place among the nations of the world because of its commitment to equality, broad political participation, social mobility, and political representation of groups that lack political clout and/or ancestral power,” noted the ABA, explaining the “democracy rationale” of diversity, and “[w]ithout a diverse bench and bar, the rule of law is weakened as the people see and come to distrust their exclusion from mechanisms of justice.”110 Second, to the extent that minority under-representation is caused by inequalities, past and structural discrimination, lack of diversity undermines the very meaning of law and of what it means to be a lawyer in the United States. Exactly because law is the social glue of our society, because it is premised on the fundamental values of equality, fairness, and the rule of law, the legal profession ought to be a leader in the quest for diversity.111 Lack of formal diversity may inflict other professions and occupations, but if lawyers are the high priests of our civic religion, there is something about the lack of diversity in law which may trouble us more than under-representation of minorities in, for example, accounting and carpentry (and at least the former has achieved better diversity than the legal profession).112 Put differently, as long as lawyers claim to be public citizens113 and servants of the public interest,114 and purport to have a special relationship with and owe fiduciary duties to pursue equality and justice, they

overview of diversity talk outside of the practice of law, see SCHUCK, supra note 13, at 40-72; Sanford Levinson, Diversity, 2 U. PA. J. CONST. L. 573 (2000); WILLIAM A. GALSTON, LIBERAL PURPOSES: GOODS, VIRTUES, AND DIVERSITY IN THE LIBERAL STATE (Cambridge Univ. Press 1991); SANFORD LEVINSON, WRESTLING WITH DIVERSITY 11-61 (Duke Univ. Press 2003); Patrick S. Shin, Diversity v. Colorblindness, 2009 BYU L. REV. 1175 (2009). 110. PRESIDENTIAL DIVERSITY INITIATIVE, supra note 62, at 9. 111. Similar calls are also made by other legal professions. See, e.g., Trevor C.W. Farrow, Sustainable Professionalism, 46 OSGOODE HALL L.J. 51, 91 (2008) (arguing that “gender equality is a fundamental legal norm . . . . The law in Canada now demands adherence to the equality principle. The legal profession should show leadership by adopting equality norms as its own.” (internal citations omitted)). 112. See generally Gordon, supra note 4. 113. See MODEL RULES OF PROF’L CONDUCT pmbl. cmt. 1 (2010) [hereinafter MODEL RULES] (“A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” (emphasis added)). 114. See Wasserstrom, supra note 3, at 1.

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owe a duty to combat under-representation based on inequalities, cultural perceptions, and past and current discrimination. If lawyers were merely service providers and not also professionals, there would be little to uniquely justify diversity in the legal profession as contrasted with its generally applicable arguments,115 although even as service providers lawyers would be generally covered under anti-discrimination statutes.116 Yet even as lawyers debate the meaning of professionalism and experience ideological paradigm shifts,117 most members of the bar have not foregone a commitment to thinking of themselves and to being more than mere service providers.118 As importantly, the bar has certainly not relinquished some of the benefits that come with being recognized as a profession, such as being granted a competitive advantage vis-a`-vis non-lawyers in the form of a monopoly over the provision of legal services. And while the debate over the meaning of professionalism rages on, one thing is clear: a definition of lawyers as professionals must inherently include a commitment to advancing equality under the law, and, therefore, to fighting under-representation and promoting diversity. Third, formal diversity is intimately related to access to lawyers and justice and to the quality of representation of the under-privileged. It is not the case, of course, that only minorities can or should represent other minorities. Hardly anyone would suggest that only black lawyers can and should represent black defendants, or that only Jewish lawyers can and should represent Jewish-owned businesses.119 Similarly, only a few would question the right of a black lawyer to represent the KKK or the right of a female attorney to represent a male defendant accused of rape.120 Nonetheless, significant research suggests that empathy is necessary for effective representation of clients, and the immense value of having lawyers actually communicate with clients, actively listen and understand the goals of their clients as opposed to imputing to their clients generic goals, in part

115. See supra note 109. Richard Posner has argued that lawyers’ professionalism amounts to little more than a mystique means to elevate the status and pocketbook of lawyers at the expense of clients and competitors. RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY 185-211 (1999). 116. See, e.g., Nathanson v. Commonwealth of Massachusetts, Commission against Discrimination et al., 16 MASS. L. RPTR 761 (2003) (discussing allegedly discriminatory practices by a female attorney who refused to represent men in her legal practice). Of course, it is notoriously difficult for lawyer plaintiffs to win employment discrimination cases against law firms. See, e.g., Rhode, What’s Sex Got to Do with It?, supra note 5, at 233-53; David B. Wilkins, On Being Good and Black, 112 HARV. L. REV. 1924 (1999) (reviewing THE GOOD BLACK: A TRUE STORY OF RACE IN AMERICA, by Paul M. Barrett, telling the story of Lawrence Mungin, who unsuccessfully sued the law firm of Katten Muchin for race discrimination). 117. See generally 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). 118. See, e.g., Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1 (1988). 119. But see Wald, The Rise of the Jewish Law Firm, supra note 54 (quoting Jewish lawyers who were outraged when Jewish clients chose WASP law firms to represent them). 120. See generally 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).

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because they do not understand their clients, their goals, their backgrounds, and their ways of reasoning.121 And while all lawyers, irrespective of their identities, could do their jobs effectively, a diverse bar is more likely to be able to meet, and be perceived as able to meet the goals of access to lawyers, justice, and effective representation,122 which is why a commitment to diversity in terms of access to lawyers is not entirely a utilitarian argument about the quality of representation. Rather, the very essence of a just legal system is reflected not only in the content of its rules and their fair enforcement but also in the identity of the legal actors who make and enforce them. The very legitimacy of a legal system is challenged when its application features systematic under-representation of minorities who are expected to buy into and respect the law. Fourth, law not only means effective access to lawyers, and through them to equity, justice, and first-class citizenship, but also access to upward social mobility and key leadership positions because in the United States, political leaders are often drawn from the ranks of the legal profession.123 This understanding of the role of diversity reframes and expands it from one that is focused on the needs of minority communities, to an account that re-envisions opportunities for minority lawyers as leaders within the profession and society.124 The pursuit of equality, respect of the law and of the role of lawyers in the United States, commitment to providing access to the law to all and maintaining law’s legitimacy, and zero tolerance to discrimination and its appearance in law support a strong presumption in favor of formal diversity in membership in the legal profession and its elite institutions, including both law schools and large law firms, even if the instrumental case for the value of diversity in legal education is not as strong (it is) and even if the utilitarian business case for diversity is not as compelling (it is not).

121. See generally William H. Simon, Lawyer Advice and Client Autonomy: Mrs. Jones’s Case, 50 MD. L. REV. 213 (1991); Eli Wald, Taking Attorney-Client Communications (and Therefore Clients) Seriously, 42 U.S.F. L. REV. 747 (2008). 122. See Ryan D. King et al., Demography of the Legal Profession and Radical Disparities in Sentencing, 44 LAW & SOC’Y REV. 1, 8 (2010) (“[A]ttorneys are likely more attuned, or at least exposed, to discussions of racial disparities in the justice system when and where there is greater diversity in the legal profession.”); Michelle J. Anderson, Legal Education Reform, Diversity, and Access to Justice, 61 RUTGERS L. REV. 1011, 1024 (2009) (“Rectifying the legal, social, financial, and status-related exclusion of racial minorities from the profession is itself a form of justice. Moreover, diversity in the legal profession is most valuable because it will enhance the delivery of justice to disempowered communities.” (internal citation omitted)); Andrea A. Curcio, A Better Bar: Why and How the Existing Bar Exam Should Change, 81 NEB. L. REV. 363, 388 (2002) (“Achieving a more diverse bench and bar not only improves public perceptions about the justice system. It also impacts the availability of legal services to underserved segments of our population.”). See generally Russell G. Pearce, White Lawyering: Rethinking Race, Lawyer Identity, and Rule of Law, 73 FORDHAM L. REV. 2081 (2005). 123. See PRESIDENTIAL DIVERSITY INITIATIVE, supra note 62, at 10, 18 (citing Justice O’Conner’s opinion in Grutter); see also Stephen L. Pepper, The Lawyer’s Amoral Ethical Role: A Defense, a Problem, and Some Possibilities, 1986 AM. B. FOUND. RES. J. 613, 615 (arguing that effective access to law and lawyers is a condition for first class citizenship). 124. See PRESIDENTIAL DIVERSITY INITIATIVE, supra note 62, at 10.

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3. DIVERSITY IN CONTEXT

Yet even a principled commitment to pursue formal diversity does not immediately suggest how to do so or who should bear the responsibility for doing so. Understanding the various possible reasons for under-representation—opting out, failure to meet merit criteria, past discrimination, and contemporary structural discrimination—and their causes should inform the discussion of remedies. For example, if some under-representation of a particular group is the result of true informed choice, the legal profession should likely do relatively little beyond educating people about the opportunities afforded by membership in the American legal profession.125 In contrast, failure to meet merit criteria requires an analysis of why members of some groups fail to meet them. If the issue is one of culturally manufactured, subjective, and biased standards purporting to pass as meritorious and objective,126 a legitimate response may be replacing the existing criteria, or, if the status quo or lack of well developed alternative standards prevent that, retaining the existing standards and employing some measures of minority preference in admission and hiring decisions.127 This latter approach, common among law schools, is not free of costs. First, it may impose costs on preference recipients in terms of stigma, bias, and self-esteem.128 Second, because it adheres to existing so-called meritorious standards, it sends an erroneous yet alluring message of compromising merit standards.129 Third, it comes at the expense of members of the majority who may perceive it as unfair and illegitimate.130 Finally, past discrimination may very well justify stronger diversity measures, such as affirmative action, as noted by the Supreme Court in Grutter v. Bollinger,131 and structural discrimination would also suggest the use of stronger measures to ensure formal diversity. In sum, whether under-representation ought to be responded to depends on the context in which it takes place as well as on the reasons for it. The causes of

125. Such educational programs can include school programs, debate leagues, and pipeline initiatives. 126. See supra notes 87-91 and accompanying text. 127. The approach institutionalized by law schools, and less explicitly so by large law firms. 128. See supra note 40. 129. See supra note 87-91 and accompanying text. 130. See Jed Rubenfeld, Affirmative Action, 107 YALE L.J. 427, 456, 471 (1997) (“Affirmative action surely is unfair to whites, sharply and deeply so . . . . But constitutional law is not moral philosophy, and unfairness is not unconstitutionality . . . If I had to choose, I would probably vote to scrap the entire patchwork of affirmative action measures in this country in favor of a massive capital infusion into inner-city day care and educational facilities. But this conclusion goes to affirmative action’s costs and benefits, not to its constitutionality.”); Roy L. Brooks, The Crisis of the Black Politician in the Age of Obama, 53 HOW. L.J. 699, 743 (2010) (dismissing the position that “[o]n the other hand, it could be argued that affirmative action in college admissions works an injustice on whites individually who have higher academic indicators (mainly board scores and grades) than students admitted under affirmative action. Thus, the argument is that regardless of how it impacts whites on a global level, affirmative action is unfair to whites on an individual level.”). 131. Grutter v. Bollinger, 539 U.S. 306, 315-16 (2003) (internal citations omitted).

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under-representation vary. Members of groups who suffered significant past discrimination, such as African-Americans and Native Americans, have the strongest claim to demand formal diversity. Members of groups who continue to suffer from structural discrimination, such as women, have an equally strong claim to formal diversity. Members of groups who suffer from explicit discrimination today, for example, some ethno-religious minorities, also have a valid claim for formal diversity. The different causes of under-representation suggest that a one-size-fits-all approach to diversity is not likely to achieve results. Measures that might address under-representation which results from past discrimination may be ineffective in addressing under-representation which results from structural discrimination. Moreover, formal diversity initiatives may be insufficient to achieve the goals of diversity, especially with regard to groups who have the strongest claim to diversity. C. SUBSTANTIVE DIVERSITY

Understanding that diversity is not justified entirely on instrumental grounds, and is intimately connected to equality, justice, and effective access to first-class citizenship, suggests not only that diversity must be pursued by the legal profession given the special role it plays in pursuit of these goals and values, but also that formal diversity initiatives may need to be supplemented by substantive measures. Substantive diversity denotes the idea that formal diversity, demanding equality in the opportunity to participate in the legal profession, is merely the first, necessary step in achieving the goals of diversity, but is insufficient. Rather, diversity efforts must also include elements of equality beyond mere opportunity to participate, including equal meaningful participation. The classic distinction between form and substance, and in particular between formal equality and substantive equality, is a staple of American law.132 In a nutshell, formal equality is satisfied by equal opportunity,133 whereas substantive equality aims at equal results explicitly acknowledging that such results do not necessarily follow formal equality.134 Analyses of formal and substantive

132. See, e.g., Michel Rosenfeld, Substantive Equality and Equal Opportunity: A Jurisprudential Appraisal, 74 CALIF. L. REV. 1687 (1986). The seminal treatment of the distinction is Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976). 133. See, e.g., FRIEDRICH A. HAYEK, THE CONSTITUTION OF LIBERTY 87 (1978) (“From the fact that people are very different it follows that, if we treat them equally, the result must be inequality in their actual position, and that the only way to place them in an equal position would be to treat them differently . . . [T]he desire of making people more alike in their condition cannot be accepted in a free society as a justification for further and discriminatory coercion.” (footnote omitted)). 134. See, e.g., Martha C. Nussbaum, Foreword: Constitutions and Capabilities: “Perception” Against Lofty Formalism, 121 HARV. L. REV. 4, 58 (2007) (“The first and most crucial suggestion is that the judge ought to think about the rights as capabilities, asking: are people really able to enjoy this right, or are there subtle impediments that stand between them and the full or equal access to the right? Judges should attend closely to history and social context . . . .”).

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equality have informed the discourse in areas as diverse as constitutional law, labor and employment law, human rights, and disability law,135 and have informed debates on competing conceptions of justice.136 Notwithstanding its prevalence in other areas of the law, in the legal profession’s diversity talk, “diversity” inevitably means “formal” diversity, and “substantive” diversity, that is, results-oriented diversity, is an under-developed, indeed virtually unheard of concept.137 Yet substantive diversity, measured in terms of results, namely, meaningful participation in the legal profession, is exactly the concept the legal profession ought to import and pursue.138 Accordingly, diversity should not be measured simply in terms of law school enrollment or representation in the bar, but rather in meaningful and equal participation in the legal profession. In the context of legal education, diversity must be measured also in terms of the percentage of minority students who graduate from law schools, the percentage of minority graduates who pass the bar exam, and in the quality of legal education accorded to minority students while in law school.139 Similarly, substantive diversity would look beyond participation in the legal profession at measures of equality: at participation in elite segments of the profession, such as judicial clerkships, legal academia, and large law firms; at promotion rates within these institutions; at becoming “powerful;” and at

135. The vastness of the literature makes it impossible to do justice to the numerous contributions in these areas. Examples of such analyses include Lucinda M. Finley, Transcending Equality Theory: A Way Out of the Maternity and the Workplace Debate, 86 COLUM. L. REV. 1118, 1144 (1986) (applying Kennedy’s insights to formal and substantive equality in the workplace); Erin E. Goodsell, Toward Real Workplace Equality: Nonsubordination and Title VII Sex-Stereotyping Jurisprudence, 23 WIS. J.L. GENDER & SOC’Y 41 (2008) (workplace law). See generally Athena D. Mutua, Introducing Classcrits: From Class Blindness to a Critical Analysis of Economic Inequality, 56 BUFF. L. REV. 859 (2008) (constitutional law); RUTH COLKER, WHEN IS SEPARATE UNEQUAL?: A DISABILITY PERSPECTIVE (Cambridge Univ. Press, 2008) (disability law); Rosemary Kayess & Phillip French, Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities, 8 HUM. RTS. L. REV. 1 (2008) (human rights law). 136. For an effective summary of the literature, see Nancy Ehrenreich, Foreword: Conceptualizing Substantive Justice, 13 J. GENDER RACE & JUST. 533 (2010). See also W. BRADLEY WENDEL, LAWYERS AND FIDELITY TO THE LAW 44-46 (2010) (offering an illuminating account of procedural and substantive justice). 137. When “substantive diversity” does appear in diversity talk, it often refers to the plural content that formal diversity fosters. See Schuck, supra note 67, at 11 (“[Substantive diversity] refers to the distribution of some attribute that is not demographic in the sense just discussed. Teachers who speak of diversity in the classroom, for example, might be referring not only (or not at all) to the distribution of such demographic characteristics among students but also (or instead) to the differences in the students’ viewpoints, experiences, methodologies, or academic training.”). 138. Conceptually, the two types of diversity may intersect. For example, requiring formal diversity not only in admission but also at the end of each year of law school would amount to substantive diversity, and requiring formal diversity within each rank of partnership would amount to substantive diversity within large law firms. Yet the difference is far from semantic: Formal diversity requires only equal representation and participation, whereas substantive diversity adds demands for equality and measureable results. 139. See supra notes 27-29 and accompanying text (exploring law schools’ development of academic success programs to assist their student bodies in passing the bar exam).

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compensation rates.140 Women law students, for example, constitute approximately fifty percent of all law students, satisfying formal diversity. Indeed, to the extent that recent research shows that women law students perform as well or better than their male counterparts, occupy elite positions such as law review editors, and graduate at the top of their classes, there is some indication that substantive diversity is met in legal education.141 On the other hand, consistent reports show that some women law students experience alienation, disillusionment, and silencing in law schools, more so than their male classmates, suggesting that the quality of their legal education is subpar compared with that of male law students.142 As the percentage of women law students has risen, the percentage of women lawyers has also risen consistently,143 taking great strides toward meeting the demands of formal diversity in terms of membership in the legal profession. Moreover, the percentage of women judges, women law professors, and women associates at large law firms has also risen dramatically, evidencing progress toward substantive diversity in some segments of the profession.144 Women lawyers, however, experience significant challenges on the road to equality within the profession. They experience the glass ceiling effect, accounting for only fifteen percent of large law firm partners; they appear to occupy a disproportionate percentage of non-equity partners and are significantly underrepresented as equity partners; they are under-represented in leadership positions

140. For a similar result-oriented definition of substantive diversity, see Trina Jones, The Diversity Rationale: A Problematic Solution, 1 STAN. J. C.R. & C.L. 171, 187-88 (2005); Charles R. Lawrence, III, Each Other’s Harvest: Diversity’s Deeper Meaning, 312 U.S.F. L. REV. 757, 765 (1997). 141. See, e.g., Celestial S.D. Cassman & Lisa R. Pruitt, A Kinder, Gentler Law School? Race, Ethnicity, Gender, and Legal Education at King Hall, 38 U.C. DAVIS L. REV. 1209, 1249 (2005). 142. See generally Taunya Lovell Banks, Gender Bias in the Classroom, 38 J. LEGAL EDUC. 137 (1988); Catherine Weiss & Louise Melling, The Legal Education of Twenty Women, 40 STAN. L. REV. 1299, 1299 (1988) (“Powerful men made American law and American law schools by and for themselves. While . . . law schools are admitting increasing numbers of women[, m]any of these women find legal education alienating.”); Cynthia Hill, Sexual Bias in the Law School Classroom: One Student’s Perspective, 38 J. LEGAL EDUC. 603 (1988); Joan M. Krauskopf, Touching the Elephant: Perceptions of Gender Issues in Nine Law Schools, 44 J. LEGAL EDUC. 311 (1994); Marsha Garrison et al., Succeeding in Law School: A Comparison of Women’s Experiences at Brooklyn Law School and the University of Pennsylvania, 3 MICH. J. GENDER & L. 515 (1996); Lani Guinier et al., Becoming Gentlemen: Women’s Experiences at One Ivy League Law School, 143 U. PA. L. REV. 1 (1994); Paula Gaber, “Just Trying to Be Human in This Place”: The Legal Education of Twenty Women, 10 YALE J.L. & FEMINISM 165 (1998); Allison L. Bowers, Women at the University of Texas School of Law: A Call for Action, 9 TEX. J. WOMEN & L. 117 (2000); Sari Bashi & Maryana Iskander, Why Legal Education is Failing Women, 18 YALE J.L. & FEMINISM 389, 389 (2006) (exploring the experience of female law students at Yale Law School, and specifically investigating why “despite similar entering credentials, female students . . . are underrepresented among participants in class discussions and among students who form professionally beneficial relationships with faculty members.”). 143. See Rhode, From Platitudes to Priorities, supra note 5, at 1042. 144. See generally DEBORAH L. RHODE, THE UNFINISHED AGENDA: WOMEN AND THE LEGAL PROFESSION 14 (2001), available at http://womenlaw.stanford.edu/pdf/aba.unfinished.agenda.pdf; Epstein, Women in the Legal Profession, supra note 51; Kaye & Reddy, The Progress of Women Lawyers at Big Firms, supra note 51.

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within firms and are not as powerful as their male partners;145 and they make less money for similar work.146 Substantive diversity and equality are still a long road ahead, and by some measures, not only is progress not being made but in fact women lawyers are worse off.147 Racial minorities within the profession fare much worse than women law students and lawyers. In law schools, racial minorities are significantly underrepresented, failing to meet formal diversity requirements,148 and a disproportionate number fail to graduate and pass the bar exam, evidencing gross failure of substantive diversity.149 In elite institutions, such as large law firms, minority lawyers are under-represented in terms of formal diversity,150 and do even worse in terms of substantive diversity, that is, in terms of promotion to partnership and in holding positions of power, influence, and leadership.151 All told, while formal diversity is a first necessary step toward equality, substantive diversity is not a secondary, less important, goal. To the contrary, the goals of, and the case for diversity in, the legal profession make clear that substantive diversity is as important, if not more important, than formal diversity. Equality cannot be attained when notwithstanding formal diversity, at least in the case of women lawyers, the profession continues to feature, de facto, two classes of attorneys: men lawyers, who occupy disproportionately elite positions of power, influence, compensation, and leadership; and women lawyers, who occupy the lesser ranks of the bar. Similarly, equality cannot be attained when minority lawyers are so woefully under-represented, formally and substantively,

145. See Rhode, From Platitudes to Priorities, supra note 5, at 1042-44. See generally 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); Paula A. Patton, Women Lawyers, Their Status, Influence, and Retention in the Legal Profession, 11WM. & MARY J. WOMEN & L. 173, 173 (2005) (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). 146. See AM. BAR ASS’N, AT THE BREAKING POINT: THE REPORT OF 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.”); NANCY REICHMAN & JOYCE STERLING, GENDER PENALTIES REVISITED (2004) (documenting gender inequities in compensation). See generally Ronit Dinovitzer et al., The Differential Valuation of Women’s Work: A New Look at the Gender Gap in Lawyers’Incomes, 88 SOC. FORCES 819 (2009); Joni Hersch, The New Labor Market for Lawyers: Will Female Lawyers Still Earn Less?, 10 CARDOZO WOMEN’S L.J. 1 (2003). 147. See generally Wald, supra note 59. 148. See A DISTURBING TREND IN LAW SCHOOL DIVERSITY, http://blogs.law.columbia.edu/salt/ (last visited May 24, 2011) (a joint report of the Society of American Law Teachers (SALT) and the Lawyering in the Digital Age Clinic at the Columbia University School of Law, finding that the percentage representation of African-Americans and Mexican-American law students has trended downward between 1993–2008). 149. See generally Sander, Experimenting with Class-Based Affirmative Action, supra note 23. 150. See generally Wilkins & Gulati, Why Are There So Few Black Lawyers in Corporate Law Firms, supra note 51; Wilkins & Gulati, Reconceiving the Tournament of Lawyers, supra note 55. 151. See generally ROBERT L. NELSON, PARTNERS WITH POWER, THE SOCIAL TRANSFORMATION OF THE LARGE LAW FIRM (1988); Rhode, From Platitudes to Priorities, supra note 5.

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in the legal profession. Because of the role of law and lawyers in our society, the perception and appearance of inequality and under-representation of women and minority lawyers do great harm to the quest of equality outside the law. Effective access to the law for all remains a utopian vision when minority lawyers remain significantly under-represented and discrimination, past and present, remains painfully unaddressed. D. DISCRIMINATION AND DIVERSITY

The diversity discourse seems to draw a fundamental distinction between discrimination and diversity.152 Discrimination is generally viewed as inherently wrong, unacceptable, and as a phenomenon that demands aggressive intervention, by regulatory and other means. Indeed, even those who oppose regulatory intervention, followers of the “economics of discrimination” school of thought, pursuant to which discrimination is inefficient and will be eradicated by competition and efficient markets, share a strong aversion to discrimination.153 The dispute is only about how best to respond to it. Diversity, on the other hand, generates a more ambivalent response. To some, it is not inherently desirable and the case for it dubious, and even if it is desirable, opponents challenge the need for regulatory intervention in support of it. Unlike discrimination, where the disagreement centers on how best to defeat it, when it comes to diversity, some detractors argue that even if it is desirable, the costs of pursuing it are unjustified. More strikingly, there is essentially no agreement on who must or ought to pursue it, with the ironic exception of a consensus that the Rules of Professional Conduct should not prohibit discrimination, let alone make pursuing diversity mandatory.154 Affirmative action is a case at hand. When affirmative action is defended on the ground of addressing past discrimination, opponents tend to concede the basic premise and the need to address it. Debates center about challenges to whether actual recipients indeed suffered past discrimination, or on whether affirmative action is an effective solution to discrimination. When affirmative action is defended on the ground of pursuing diversity, opponents reject the need to address it as a problem and challenge that the costs of affirmative action are unjustified and unfair to members of the majority who meet the existing admission and hiring standards but are cast aside in favor of minority 152. The distinction is acknowledged not only by opponents, but also by advocates of diversity. See, e.g., Fran Ansley, Classifying Race, Racializing Class, 68 U. COLO. L. REV. 1001, 1010-11 (1997) (criticizing Deborah Malamud, a diversity proponent, for distinguishing between discrimination and diversity: “Malamud organizes her article around a discussion of two different rationales for affirmative action. One she refers to as the ‘economic inequality’ rationale, . . . or sometimes as one based on ‘social justice.’ The other she refers to as the ‘diversity’ rationale . . . She presents these two as a polarity, associating the social justice rationale with ‘redress,’ for past and present wrongs in contrast to the diversity rationale, which, she says, ‘is not by its terms based on the existence of discrimination.’” (internal citations omitted)). 153. See supra note 70. 154. See infra notes 173-75 and accompanying text.

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candidates.155 Such disconnect between discrimination and diversity is suspect because under-representation is often the result of discrimination, either past or structural. Indeed, where does diversity (often understood as voluntary and seemingly in need of justifications) end and discrimination (usually regarded as illegal and intuitively wrong) begin? For example, if one fails to hire or promote a qualified minority attorney, that is normally deemed discrimination, but if one argues credibly that pursuant to some objective criteria no such qualified minority candidate exists, that is considered an issue of diversity. The line between diversity and discrimination needs to be delineated exactly because notwithstanding their close relationship, diversity seems to depend on the good graces of well-intending benefactors, to be debatable and optional, whereas discrimination is more robustly understood as illegitimate. If so, whether particular practices are understood as issues of diversity or discrimination is important.156 Diversity is needed to correct for under-representation, and under-representation is often the result of bias and discrimination, past and present. In fact, in many instances diversity initiatives are needed as a response to discrimination, yet when the discourse is phrased in terms of diversity, as opposed to discrimination, the case for it is, somewhat erroneously, perceived to be weaker, and arguments that would not be tolerated as reasons for failing to combat discrimination are entertained as plausible rationales for not pursuing diversity. Consider diversity fatigue, referring to the weariness felt by those who bear the responsibility for leading diversity initiatives, those who are the supposed beneficiaries of diversity measures, those who believe they pay the price and experience the negative consequences of diversity, and even those who are but bystanders to the diversity debates.157 Diversity fatigue may be explained in part by the fact that efforts to diversify institutions are difficult in that they are costly and may be seen by some as a threat to existing structures, and in that progress is bound to be incremental, costly, and slow.158 Consequently, diversity fatigue may constitute a barrier to minority advancement within institutions,159 and is increasingly cited by diversity proponents as an increased threat to diversity

155. See generally Sander, Experimenting with Class-Based Affirmative Action, supra note 23; Malamud, supra note 12. 156. Peter Schuck has similarly argued that: “The fact that so much diversity-talk disregards this distinction is exceedingly important. Most proponents of diversity (and some opponents as well) seem to assume that demographic and substantive diversity are the same, or at least that the former is a proxy for the latter. This assumption is often based on ignorance, laziness, or self-deception.” Schuck, supra note 67, at 11. 157. See generally Joan MacLeod Heminway & Sarah White, Wanted: Female Corporate Directors, 29 PACE L. REV. 249, 282-86 (2009) (reviewing DOUGLAS M. BRANSON, NO SEAT AT THE TABLE: HOW GOVERNANCE AND LAW KEEP WOMEN OUT OF THE BOARDROOM (2007)). 158. See Donald C. Langevoort, Overcoming Resistance to Diversity in the Executive Suite: Grease, Grit, and the Corporate Promotion Tournament, 61 WASH. & LEE L. REV. 1615, 1642-43 (2004). 159. See Hannah Hayes, Is Your Firm Suffering from Diversity Fatigue?, PERSPECTIVES, Fall 2008, available at http://www.abanet.org/women/perspectives/enews/fall08/enews_fall08_fatigue.html.

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efforts.160 Yet as real as the concept of fatigue may be as a reason for slow gains in combating under-representation, it is no justification for sluggish diversity. Just as fatigue would not have been tolerated in the battle against discrimination, it ought not be accepted as a legitimate excuse in the fight against underrepresentation. Next, consider claims that the recession is drying up monies for diversity, cited by the ABA as a current diversity trend,161 if not an excuse for diversity inaction.162 Diversity initiatives are indeed costly and there is no doubt that the Great Recession has brought significant financial stress to many lawyers and law firms.163 Yet if diversity was understood to be a key priority and fundamental mandatory duty of the legal profession rather than a secondary, voluntary, aspirational goal, perhaps it would not have been so easily written off in times of economic hardship. No doubt, explicit instances of intentional discrimination do in fact warrant a stronger response than instances of under-representation. Yet the disconnect in attitudes toward discrimination and diversity is particularly striking because explicit discrimination in the legal profession is all but a thing of the past.164 More commonly, current discrimination is either past discrimination with ongoing consequences or structural, implicit discrimination, putting discrimination and under-representation on conceptual similar footing. In other words, some of the same evils that cause us to oppose discrimination are in play in under-representation and should lead to a similar commitment in support of substantial diversity. To be sure, some instances of under-representation are not the result of past or structural discrimination, at least not in the sense they are commonly understood. At first glance, socioeconomic or class under-representation in elite law schools, for example, appears to be more the result of disparities in socioeconomic status,

160. In his March 2011 monthly message, ABA President Stephen Zack cautioned against the impact of spreading diversity fatigue. See Stephen N. Zack, Let’s Pick Up the Pace, 97 A.B.A. J. 8 (2001); see also PRESIDENTIAL DIVERSITY INITIATIVE, supra note 62, at 14. 161. See PRESIDENTIAL DIVERSITY INITIATIVE, supra note 62, at 11; see also Diversity and Law Firm Profitability, 10 COMPENSATION & BENEFITS FOR L. OFF., no. 4, 2010 at 3 (citing a poll of 94 major U.S. law firms finding decrease in diversity spending). 162. See PRESIDENTIAL DIVERSITY INITIATIVE, supra note 62, at 25 (“The current economic downturn has made it exceedingly difficult for private practitioners to support their clients, employees, and programs. As such, this call to invigorate and expand diversity programming may seem to present a profound financial challenge.”); see also O’Kelly E. McWilliams III & Nimesh M. Patel, Diversity Management in an Economic Downturn: Diversity & Risk Mitigation, BUS. L. TODAY, Jan.-Feb. 2009, at 59, available at http://apps. americanbar.org/buslaw/blt/2009-01-02/mcwilliams.shtml (suggesting that adherence to diversity efforts in hard economic times may foster diversity fatigue). 163. See generally Eli Wald, The Great Recession and the Legal Profession, 78 FORDHAM L. REV. 2051 (2010). 164. See, e.g., Gaber, supra note 142, at 176 (“It is true that in the last twenty years, many formal barriers to women in the legal education have come down. It is also true that more subtle forms of gender bias have replaced outright sexism in many cases.”).

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social, and cultural capital than it is the result of structural discrimination. Yet even socioeconomic and class under-representation are explained in part by, and their impact magnified by, structural discrimination. Law schools give preference to graduates of elite private colleges, weigh heavily LSAT scores that are in part a function of the ability to pay for expensive prep courses, and favor, at least on the margin, candidates with an “interesting” background, which is often a function of financial resources, like the ability to travel abroad, and develop musical skills.165 Moreover, even in instances in which under-representation is caused by economic inequities and cultural attitudes that have little to do with discrimination, the legal profession ought to zealously pursue diversity, given its commitment to equality, justice, and the rule of law. In sum, our society’s fervent response to and intolerance of discrimination in and outside the legal profession is well-justified. Our indecisive approach to under-representation and hesitant support of diversity, especially in the legal profession, is not well-justified, especially in a day and age when the types of discrimination that plague the profession, past and structural, are the very reasons that also explain under-representation and the need for diversity initiatives. E. THE RESPONSIBILITY FOR PURSUING DIVERSITY

The legal profession has a duty to pursue formal and substantive diversity. The duty applies to all segments of the profession, and applies with greater force to its leading constituencies, including the organized bar, law schools, and large law firms that purport to guide the bar, derive benefits from their elite status atop the profession, and have the ability to effectuate change. To begin with, notwithstanding significant erosion in recent years as the result of increased federal regulation and the rise of private regulation by powerful clients and insurance companies alike, the legal profession continues to be, by and large, a self-regulating one.166 Self-regulation is commonly explained in terms of the social contract struck between the profession and the public pursuant to which the lay public grants the profession a monopoly over the provision of legal services and the right to self-regulate, and in return the profession guarantees the quality of legal services by effectively enforcing rules of conduct against its members.167 Such rules of conduct are meant to protect clients and the

165. See generally Wald, supra note 29. 166. See Daniel R. Coquillette & Judith A. McMorrow, Zacharias’s Prophecy: The Federalization of Legal Ethics, 48 SAN DIEGO L. REV. 123, 124–27 (2011); Fred C. Zacharias, Federalizing Legal Ethics, 73 TEX. L. REV. 335, 345 (1994). 167. See Kenneth J. Arrow, Uncertainty and the Welfare Economics of Medical Care, 53 AM. ECON. REV. 941, 943 (1963) (noting the trust inherent in customers’ transactions with medical care providers and the understood ethical restrictions doctors must observe); Eli Wald, An Unlikely Knight in Economic Armor: Law and Economics in Defense of Professional Ideals, 31 SETON HALL L. REV. 1042, 1075 (2001) (applying Arrow’s insights to the legal profession and advocating “an implicit social contract in which the legal profession

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public from abusive and negligent attorney conduct, and ensure competence and quality. Yet because the profession self-regulates and resists attempts by others to regulate it, it falls to the profession to battle discrimination and underrepresentation and to pursue diversity within its ranks. If only because it continues to fight against external regulation, the legal profession must lead in the fight for diversity and equality. Unfortunately, the profession has, at best, a modest record in fighting discrimination within its ranks. Women and minorities were explicitly discriminated against and excluded from membership in the profession both de jure and de facto for centuries; the profession’s elite institutions, including leading bar associations and elite law firms, discriminated explicitly and blatantly against minorities well into the twentieth century.168 Structural discrimination continues to plague the profession to this very day, with courts tending to defer to law firms’ hiring and promotion decisions, making anti-discrimination lawsuits against law firms infrequent and mostly unsuccessful.169 In its rules of professional conduct, the profession takes only an implicit stance against discrimination. Section 8 of the American Bar Association’s Model Rules of Professional Conduct, titled “Maintaining the Integrity of the Profession,” includes Rule 8.4, which states in subsection (d) that “[i]t is professional misconduct for a lawyer to: (d) engage in conduct that is prejudicial to the administration of justice.”170 Comment 3 to Rule 8.4 explains that “A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice.”171 The comment, but not the Rule, thus forbids discrimination, but only “in the course of representing a client,” as opposed to in other professional or personal contexts, and only if the discrimination is “prejudicial to the administration of justice.”172 Thus, discriminatory conduct that is not taking place in the representation of clients or that has no prejudicial impact on the administration of justice is arguably not forbidden. The ABA’s failure to take a clear stand against discriminatory conduct is baffling. Twice before, in 1992 and 1998, the ABA rejected attempts to amend Rule 8.4 to explicitly prohibit discrimination, citing inability to reach a consensus about the relevant language and fear that deeming discriminatory conduct

guarantees the quality of legal services, and in return . . . is granted effective self-regulation of the behavior of its members” (citation omitted)). 168. See generally ABEL, supra note 3; AUERBACH, supra note 42. 169. See Rhode, What’s Sex Got To Do With It?, supra note 5, at 233. 170. MODEL RULES R. 8.4(d). 171. MODEL RULES R. 8.4 cmt. 3. 172. MODEL RULES R. 8.4(d).

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professional misconduct might violate the First Amendment free speech clause,173 claims refuted both by Supreme Court case law,174 and the adoption of anti-discrimination rules of professional conduct by numerous states.175 State rules showcase tremendous variety in their approach to prohibiting discrimination. Whereas a few states have not even incorporated subsection 8.4(d) and Comment 3,176 some states explicitly prohibit discriminatory conduct in connection with the practice of law,177 others prohibit only discrimination regarding conditions of employment,178 yet other states more broadly disallow discrimination in both the practice of law and in terms of employment,179 and at least one state deems all discriminatory conduct professional misconduct.180 Of note, several states have taken care to limit the scope of this rule of professional conduct to apply only to discriminatory conduct otherwise prohibited by federal, state, local statutes or ordinances,181 to discriminatory conduct that reflects

173. AM. BAR ASS’N, CTR. FOR PROF’L RESPONSIBILITY, A LEGISLATIVE HISTORY: THE DEVELOPMENT OF THE ABA MODEL RULES OF PROFESSIONAL CONDUCT 1982–1998 333 (2nd ed. 1999); Nicole Lancia, New Rule, New York: A Bifocal Approach to Discipline and Discrimination, 22 GEO. J. LEGAL ETHICS 949, 951-53 (2009). 174. See, e.g., Gentile v. State Bar of Nev., 501 U.S. 1030, 1074-75 (1991) (holding that lawyers’ free speech may be limited given their role in the administration of justice). The Court similarly upheld reasonable restrictions on lawyers’ commercial free speech in the name of protecting clients from predatory lawyer solicitation. See MODEL RULES R. 7.3, codifying Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978). 175. For a state-by-state comparison, see http://www.abanet.org/cpr/pic/rule_charts.html (last visited May 24, 2011) [hereinafter State-by-State Comparison]. See also Akshat Tewary, Legal Ethics as a Means to Address the Problem of Elite Law Firm Non-Diversity, 12 ASIAN L.J. 1, 28-31 (2005) (surveying applicable state rules); Lea E. Delossantos, Comment, A Tangled Situation of Gender Discrimination: In the Face of an Ineffective Antidiscrimination Rule and Challenges for Women in Law Firms – What is the Next Step to Promote Gender Diversity in the Legal Profession?, 44 CAL. W. L. REV. 295, 317-18 (2007) (same). It should be noted that in its Code of Judicial Conduct the ABA has taken a stronger anti-discrimination stance. For example, Rule 3.1 states in relevant part that: “A judge may engage in extrajudicial activities, except as prohibited by law or this Code. However, when engaging in extrajudicial activities, a judge shall not . . . (C) participate in activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.” Comment 3 explains that: “Discriminatory actions and expressions of bias or prejudice by a judge, even outside the judge’s official or judicial actions, are likely to appear to a reasonable person to call into question the judge’s integrity and impartiality.” MODEL CODE OF JUDICIAL CONDUCT R. 3.1 (2007) (emphasis added). Rule 3.6(A) states in relevant part that: “A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation” and Comment 1 notes that “A judge’s public manifestation of approval of invidious discrimination on any basis gives rise to the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary.” MODEL CODE OF JUDICIAL CONDUCT R. 3.6 (2007). See also Marina Angel, Sexual Harassment by Judges, 45 U. MIAMI L. REV. 817, 837-38 (1991) (calling on the ABA to adopt a strong anti-discriminatory position in its Model Rules). 176. See, e.g., Georgia, Hawaii, Kentucky, New Hampshire. See State-by-State Comparison, supra note 175. 177. See, e.g., Florida, Illinois (yet permitting legitimate advocacy in appropriate proceedings), Indiana (similar), and Rhode Island. See id. 178. See, e.g., District of Columbia. See id. 179. California (rule 2-400 prohibits discrimination in conditions of employment and with regard to accepting or terminating client representation, and other state statutes cover discriminatory conduct in the “performance of a licensed activity”), New York, and Washington. See id. 180. Minnesota. See id. 181. District of Columbia, Illinois, Minnesota, New York. See id.

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adversely on lawyers’ ability to practice law,182 to conduct held to be discriminatory by a tribunal,183 and otherwise.184 Importantly, many of the states amending their rules of professional conduct to prohibit discrimination have cited minority under-representation in the profession and concerns about lack of diversity as a cause,185 and at least in California and New York the rule is explicitly applicable not only to individual lawyers but also to law firms.186 Yet it should be noted that even in jurisdictions that explicitly deem discrimination regarding terms of employment professional misconduct, such as California, the District of Columbia, and New York, there have been no disciplinary actions enforcing these rules.187 Moreover, by limiting the scope of their anti-discrimination rules to prohibit only conduct by existing antidiscrimination law,188 states have implicitly exempted under-representation which results from structural discrimination, which, while the battleground of contemporary anti-discrimination law, is either not clearly prohibited by current law or is nearly impossible to establish under current doctrine. The Model Rules of Professional Conduct could be revised to reflect the profession’s commitment to battling discrimination. One modest possible revision could amend Comment 3 to Rule 8.4 as follows: A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d). when such actions are prejudicial to the administration of justice.” Such biased or prejudicial conduct could be evidenced by hiring and promotion policies which result in patterns of under-representation of minorities based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status.189

182. Illinois, Minnesota, New York. See id. 183. New Jersey, New York. See id. 184. New Jersey, for example, prohibits only discriminatory conduct intended or likely to cause harm, and exempts employment discrimination unless it resulted in a judicial finding of wrongdoing. See id. 185. See Lancia, supra note 173, at 958-59, 960. 186. See supra note 175. 187. Lancia, supra note 173, at 962-63. 188. See supra note 181. 189. The profession’s reluctance to take a stronger stance against discrimination in its rules of professional conduct may be based on a concern that a rule violation can be used and lead to civil liability. Comment 20 to the ABA Model Rules of Professional Conduct states in relevant part: “Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached . . . The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.” MODEL RULES pmbl. cmt. 20 (emphasis added). As employment discrimination law struggles to define and deal with structural discrimination, the bar’s concerns seem ill advised: civil liability for structural discrimination appears to be in the distant future, and even if it arrives, Comment 20 could still

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Expanding the comment’s reach to lawyers’ conduct outside of client representation, to cover both professional conduct unrelated to representation of clients and personal conduct outside of the practice of law, would not be unusual for the Rules. Indeed, Rule 8.4(c) itself states clearly that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation,”190 and the comment makes it clear that 8.4(c) covers any such conduct, including personal conduct that has nothing to do with the practice of law.191 And discrimination could simply be assumed to be prejudicial to the administration of justice, rather than serving as a caveat for discipline. Alternatively, Rule 8.4 itself could be revised following any of the models put in place by the various states prohibiting discrimination, to disallow conduct in connection with the practice of law, employment conditions, all professional activity, or even encompassing conduct outside of the practice of law. Concerns about the applicability and scope of such a rule could be addressed by limiting its application to conduct prohibited by other law, to conduct which reflects adversely on the practice of law or otherwise. As modest and dissatisfying as the legal profession’s stance on discrimination is, its position with regard to diversity is even more disappointing. The Model Rules of Professional Conduct are completely silent regarding underrepresentation and diversity. Diversity initiatives are recommended by the ABA outside of its main contribution to the regulation of the legal profession—its Model Rules—and are left to the discretionary conduct of integrated and voluntary bar associations, law schools, and law firms. To be sure, the ABA has in the past twenty-five years dedicated significant resources to the study of under-representation and to developing initiatives for fostering diversity.192 Its position, however, would be more credible if it had taken a clear and strong stand in favor of diversity in its Model Rules, for example, by explaining in a new comment to an amended rule 8.4 prohibiting discrimination in terms of employment conditions that the rationale for the rule is to foster diversity, or by listing structural discrimination in employment conditions as an example of prohibited conduct, thus directly linking diversity and discrimination, or by stating a commitment to fostering formal and substantive diversity in the preamble.193

insulate the profession from liability, assuming, of course, that the concern regarding liability for structural discrimination is legitimate, which is a topic for another day. 190. MODEL RULES R. 8.4(c). 191. MODEL RULES R. 8.4 cmt. 2. 192. See supra note 60. 193. Delossantos, supra note 175. But see Andrew D. Pugh, Comment, The Antidiscrimination Amendment to Rule 8.4 of the Minnesota Rules of Professional Conduct: An Unnecessary Expansion in Professional Regulation, 19 WM. MITCHELL L. REV. 211 (1993).

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The organized bar must do more to pursue formal and substantive diversity.194 Integrated bar associations and state supreme courts in jurisdictions without integrated bars could direct mandatory dues toward funds in support of diversity initiatives throughout the profession. For example, such funds could help finance pipeline programs encouraging minority college students to apply to law schools, support diversity initiatives at law schools including the creation of scholarships for under-privileged and minority students, aid mentorship programs and networking events for practicing lawyers, and could pay for effective monitoring of diversity initiatives. Bar associations could also play a leading role in establishing mentorship programs creating opportunities for minority lawyers to acquire and hone social and cultural capital skills. For example, in addition to the existing categories of general and ethics continuing legal education (CLE), bar associations could require a certain number of “mentorship CLE” units as a condition for remaining in good standing. Such “mentorship CLE” may consist of regular monthly meetings and can be effectively regulated by asking both mentors and mentees to file a brief assessment form.195 Leading constituencies of the profession, such as law schools and large law firms, could be expected to lead by example. Their elite status atop the profession, the purported claim to lead by example, the benefits they derive from their position, and their ability to effectuate change all justify holding these legal institutions to a higher standard of compliance.196 Moreover, in instances where their current structures discriminate against minorities and result in underrepresentation, they must take strong action to support formal and substantive diversity, both to correct for the underlying discrimination and underrepresentation and because of the symbolic importance of demonstrating commitment to equality at the leading segments of the profession. Indeed, such instances trigger a heightened duty of these legal institutions to assume responsibility for diversity measures and their success. 194. That is not to say, of course, that the ABA and other bar associations have not instituted various programs in pursuit of enhanced diversity. In 1988, for example, the ABA created the Minority Counsel Demonstration Program, designed to encourage participating corporations to retain minority law firms and push their outside counsel to staff their representation with minority attorneys. See ABA COMM. ON MINORITIES IN THE PROFESSION, INTO THE MAINSTREAM: REPORT OF THE MINORITY COUNSEL DEMONSTRATION PROGRAM [hereinafter MINORITY COUNSEL DEMONSTRATION PROGRAM]. 195. See, e.g., Stacey Shrader, Get CLE Credit By Mentoring, 47 TENN. B.J. 5 (2011) (reporting a proposed mentorship CLE program pending before the Tennessee Supreme Court). See generally Hon. Terrence O’Donnell, Federal Court Practitioners Serve as Mentors to Newly Admitted Attorneys: The Supreme Court of Ohio’s Lawyer to Lawyer Mentorship Program, 57 FED. LAW. 28 (2010) (describing a mentorship CLE program approved by the Ohio Supreme Court). 196. See, e.g., 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, 614-20 (2009) (examining the position, role, and duties of large law firms as a professional elite). See generally STEVEN BRINT, IN AN AGE OF EXPERTS, THE CHANGING ROLE OF PROFESSIONAL IN POLITICS AND PUBLIC LIFE (1994) (exploring the leadership role and duties of professional elites).

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Law schools, for example, who have demonstrated a commitment to formal diversity with regard to racial and ethnic minorities and possibly to substantive diversity with regard to gender, must continue to pursue such racial and ethnic formal diversity and expand the minority groups who benefit from formal diversity initiatives, such as socioeconomic and class minorities.197 But just as importantly, law schools must pursue substantive diversity initiatives to support the educational experience of their student body, focusing on graduation rates, bar passage rates, and placement of their minority students.198 Holding law schools responsible for formal and substantive diversity initiatives stems not only from their elevated status within the profession, but also from their responsibility for past exclusion,199 and their contemporary reliance on economic inequities in the admission process, on the possession of social and cultural capital in both their admission policies and in impacting the quality of legal education, and in their adoption of policies that have a significant impact on law school diversity, such as the escalating cost of legal education.200 Large law firms, who have implemented formal diversity hiring policies, must adopt and pursue substantive diversity initiatives to increase equality among its women and minority equity partners. The obligation to pursue substantive diversity stems not only from their elite status and their financial strength (although something could be said for progressive taxation),201 but because their structural discrimination either causes or aggravates under-representation of women and minority lawyers.202 To be clear, the point here is not to demonize nor criticize large law firms, which have been in the forefront of spending on enhancing diversity. Rather, Part II explores the reasons for the, relatively speaking, little success in diversity retention large law firms have had, especially given their significant spending on diversity and commitment to it. Part II establishes, however, that their good intentions notwithstanding, large law firms have by and large undermined their own commitment to diversity by unintentionally implementing structures and policies that have and are likely to continue to frustrate formal and substantive diversity efforts. This is not to say, of course, that other segments 197. See generally Wald, supra note 29. 198. See generally id. 199. See, e.g., William C. Kidder, The Struggle for Access from Sweatt to Grutter: A History of African American, Latino, and American Indian Law School Admissions, 1950–2000, 19 HARV. J. ON RACIAL & ETHNIC JUST. 1 (2003). 200. See supra note 29. 201. The economic recession notwithstanding, some law firms have had record-setting years in terms of profit-per-equity-partner, making claims about financial distress as a reason for downsizing diversity commitments dubious, and even when profits per partner and revenue dipped, they were still, in absolute terms, high. See Douglas R. Richmond, The Contemporary Legal Environment and Employment Claims Against Law Firms, 43 TEX. TECH L. REV. 471, 477-87 (2011). And there is some indication that by 2010 many large law firms emerged from the Great Recession as financially strong as ever. See Martha Neil, BigLaw Money Machine Revs Up Again: PPP Rose 8.4% at Am Law 100 in 2010, to Average $1.36M, A.B.A. J. (Apr. 27, 2011), available at http://www.abajournal.com/news/article/biglaw_money_machine_revs_up_ppp_rose_8.4_at_ am_law_100_in_2010/. 202. See infra Part II.

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of the profession, like solo practitioners, small law firms, in-house legal departments, and governmental lawyers should not be held accountable for effectively pursuing formal and substantive diversity. Indeed, a focus on the role and responsibility of large law firms to combat under-representation may distract attention from the reality that a majority of American lawyers do not practice with large law firms.203 Yet, especially when their recently implemented policies and structures are likely to result in increased under-representation, the conduct of large law firms is worthy of study.

II. DIVERSITY IN LARGE LAW FIRMS: A CALL FOR ATTENTION TO STRUCTURAL DISCRIMINATION AND REFINED ACTION Large law firms have come a long way in terms of diversity. As late as the 1950s, the nation’s elite law firms featured almost exclusively WASP men.204 Today, women constitute about a third of the overall lawyers and account for approximately half the entry-level associate class at large law firms, reflecting formal diversity. Blacks, Asian-Americans, Hispanics, and Native American lawyers constitute twelve percent of attorneys and six percent of partners, and while this number is significantly lower than their percentage of the American population, or even of their representation in elite law schools, evidencing failure to meet formal diversity, it is higher than their representation in the legal profession overall, at ten percent.205 Women lawyers, however, still suffer great inequities at large law firms. As Deborah Rhode documents, attrition rates are twice as high for female associates compared with male associates, women lawyers are less likely to make partner, especially at the equity partnership rank, and their compensation, other than at the entry-level, lags behind that of male lawyers.206 For minority lawyers, equality is even more of a challenge. Not only are minority lawyers under-represented, but they also have high attrition rates and are less likely to make partner, let alone equity partner, than their Caucasian counterparts.207 Does under-representation of women require substantive diversity initiatives, and if so, who ought to be accountable for pursuing them? Does under-representation of minorities require formal and substantive diversity initiatives, and who should be responsible for pursuing them?

203. PRESIDENTIAL DIVERSITY INITIATIVE, supra note 62, at 13. 204. See generally ERWIN O. SMIGEL, THE WALL STREET LAWYER: PROFESSIONAL ORGANIZATION MAN? (1964); AUERBACH, supra note 42. 205. Rhode, From Platitudes to Priorities, supra note 5, at 1045. 206. See generally sources cited supra note 51; Karen Sloan, It’s Certified: These Firms Empower Women, NAT’L L.J., June 14, 2011, http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id⫽1202497263033 (reporting on the number of large law firms that meet various standards of gender equality). Notably, only about ten percent of over three hundred large law firms met at least three of the six modest criteria, which included: “women account for at least 20% of equity partners,” “women represent at least 10% of firm chairs and office managing partners,” and “women make up at least 20% of the firm’s primary governance committee.” Id. 207. Rhode, From Platitudes to Priorities, supra note 5, at 1045.

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Some argue that women and minority lawyers either opt out of equity partnership or fail to possess some of the objective merit criteria necessary to attain that status, such as the ability to generate business, and commitment to the firm and its clients in a highly competitive environment.208 As Deborah Rhode argues compellingly, however, women and minority lawyers practicing at large law firms suffer from structural discrimination: they face racial and gender stereotyping, in-group bias, escalating workplace demands, inflexible practice structures, and backlash against (ironically, unsuccessful) diversity initiatives.209 Because structural discrimination is at the core of these under-representations, strong diversity measures, formal and substantive, are warranted. How then, can large law firms more effectively promote equity and diversity? The first step is to understand, in context, the complexity of the varying challenges facing them. The second is to explicitly accept primary accountability and responsibility for addressing it, alongside other legal profession constituencies. Without compelling answers to these two preliminary questions, large law firms may and have retorted that they should not be held accountable to pursuing costly diversity initiatives in a highly and increasingly competitive marketplace for legal services, especially in hard economic times. Moreover, large law firms have committed significant resources to advancing diversity, achieving noticeable gains in entry-level recruitment but disappointing results in terms of retention. The main goal of Part II is to explore in detail contemporary structures, practices, and policies implemented by large law firms and show how they have unintentionally undermined the firms’ diversity initiatives. It also demonstrates how accepting responsibility for pursuing diversity can help large law firms become more effective at achieving it. Conceptually, the diversity challenges facing large law firms differ. Gender under-representation requires substantive diversity measures, given that women account for approximately half of all graduating law students and meet or exceed all of the hiring merit criteria of large law firms. Racial under-representation likely demands a mix of formal and substantive diversity initiatives, targeting not only the hiring and promotion practices of large law firms but also the practices of law schools and also economic inequities and cultural attitudes outside of the legal profession.210 Moreover, initiatives that may effectively address gender under-representation may be a poor solution to racial under-representation and vice versa, because, as we have seen, the causes of these under-representations 208. See Wald, supra note 59 (summarizing the relevant literature), at 2255-56; EPSTEIN, supra note 70, at 77; see also Christen Linke Young, Note, Childbearing, Childrearing, and Title VII: Parental Leave Policies at Large Law Firms, 118 YALE L.J. 1182 (2009). 209. Rhode, From Platitudes to Priorities, supra note 5, at 1046-60. 210. Of course, gender and racial categories overlap, for example, in the case of women of color. See generally ABA COMM’N ON WOMEN IN THE PROFESSION, VISIBLE INVISIBILITY, WOMEN OF COLOR IN LAW FIRMS (2006); 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).

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vary. Sections A and B therefore explore gender and minority underrepresentation respectively. A. ACCOUNTABILITY FOR GENDER UNDER-REPRESENTATION

Consider gender diversity first. Large law firms have the primary responsibility to pursue substantive diversity. To be clear, large law firms are not responsible for all societal gender-based structural discrimination. Some gender stereotyping that afflicts women lawyers at large law firms is very much present in and a product of processes that take place outside of large firms.211 Similarly, large law firms are certainly not the only institutions to build on the social and cultural capital of their workforce, to feature in-group bias, conservative workplace structure, or backlash against affirmative action and other diversity measures.212 Furthermore, there is some merit to large law firms’ claims that they do not solely control the pool of partnership candidates, and faced with higher attrition rates among female associates and so-called lack of capability and commitment, they cannot be expected to miraculously promote women lawyers who do not apply or do not fit the bill to equity partnership positions.213 The point is, however, that while large law firms are not responsible for all gender discrimination in our society and do not control all or even a significant portion of its manifestations, they are certainly responsible for their own share of structural discrimination. Large law firms are not responsible for gender stereotyping, but they are responsible for tolerating it among their male partners and clients. They are not responsible for in-group bias and backlash in society, but they are responsible when their own partners act on it. Most importantly, large law firms are very much responsible for their own conservative and rigid workplace structures, and, in particular, for implementing recent changes to their organizational structures, which are likely to further aggravate gender underrepresentation within their ranks. And while their conduct toward women lawyers is not intentional, large law firms are still very much responsible for such implicit structural discrimination. A significant body of work documents some familiar aspects of gender-based structural discrimination at large law firms.214 Large law firms permit gender stereotypes to affect staffing, allocation of quality assignments, mentoring opportunities, business development skills, and compensation decisions.215 For

211. See VIRGINIA VALIAN, WHY SO SLOW? THE ADVANCEMENT OF WOMEN 198-208 (1999). See generally JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT IT (2000). 212. See, e.g., ROSABETH MOSS KANTER, MEN AND WOMEN OF THE CORPORATION (1977). 213. To be clear, while large law firms do not solely control the size of the pool of senior female candidates for promotion, their promotion policies and organizational structure significantly impact the pool. 214. See generally sources cited supra note 51; Rhode, From Platitudes to Priorities, supra note 5, at 1046-62. For a summary of this literature, see Wald, supra note 59, at 2250-58. 215. Rhode, From Platitudes to Priorities, supra note 5, at 1046-62.

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example, they fail to implement, in practice, part-time and flex-time work arrangements, as well as out of the office virtual work conditions.216 Finally, women lawyers also suffer from past discrimination, which in turn reduces the number of female role models in senior, management, and powerful positions at the firms. Again, large law firms are not responsible for all societal gender-based past discrimination, but they are responsible for their own share, depriving generations of women lawyers of a fair opportunity to compete for partnership, and others of having mentors, role models, and networks.217 That large law firms engage in structural discrimination, as opposed to intentional discrimination, is an important aspect of contemporary practice realities. As Elizabeth Chambliss has forcefully established, “law firm [structural] characteristics significantly affect the level of law firm [gender and racial] integration.”218 Unintended structural discrimination requires that we abandon simplistic labels of “good guys” and “bad guys,” which implies that the solution to under-representation is to “fix” large law firms by ridding them of presumably “old school” discriminators,219 and pay close attention to the structures and policies law firms put in place and their consequences for women and minority lawyers. While large law firms do not intentionally discriminate, the importance of structural characteristics to firm integration suggests that “individual law firms (and firm leaders) bear a substantial responsibility for determining the level of law firm integration.”220 Notably, while large law firms are traditionally considered to be rigid and resistant to change, and so the usual critique of them has been that they fail to adjust to allow for effective pursuit of diversity,221 these firms in recent years, and especially following the Great Recession, have undergone significant structural transformation.222 Responsibility stems from the

216. See generally Young, supra note 208. Ironically, the Great Recession may lead large firms to reconsider their approach to part- and flex-time arrangements, as some of their senior male partners experienced significant losses to their investment portfolios, causing them to defer retirement plans and to show interest in these very arrangements. On the impact of men reshaping the dynamics of the work-life balance at the workplace, see JOAN C. WILLIAMS, RESHAPING THE WORK-FAMILY DEBATE – WHY MEN AND CLASS MATTER (2010). 217. See Cynthia Thomas Calvert et al., Reduced Hours, Full Success: Part-Time Partners in U.S. Law Firms, 21 HASTINGS WOMEN’S L.J. 223, 258-59 (2010); Linda C. Morrison, The National Association of Women Judges: Agent of Change, 17 WIS. WOMEN’S L.J. 291, 299 (2002) (American women lawyers “had no written history and far too few role models” (quoting KAREN BERGER MORELLO, THE INVISIBLE BAR: THE WOMAN LAWYER IN AMERICA 1638 TO THE PRESENT 249 (1986))); see also Maureen A. Sanders, A Woman for Her Time and Our Future, 39 N.M. L. REV. 29 (2009). 218. Elizabeth Chambliss, Organizational Determinants of Law Firm Integration, 46 AM. U. L. REV. 669, 739 (1997). 219. See, e.g., Wilkins, supra note 17, at 22. 220. Chambliss, supra note 218, at 739. 221. Id.; see also Fuchs Epstein et al., supra note 51, at 392-414. 222. Marc Galanter & William Henderson, The Elastic Tournament: A Second Transformation of the Big Law Firm, 60 STAN. L. REV. 1867 (2008).

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adoption of structures, policies, and procedures that are likely to have a significant impact on diversity. The remainder of this article examines these structural changes and their impact on diversity. One important caveat, however, must be borne in mind. Without an exception, all of the structural changes implemented by large law firms have legitimate and reasonable goals meant to enhance the organization, efficiency, and profitability of the firms. To be clear, the point of the analysis is not to suggest otherwise, or to imply that large law firms should not have pursued these structural changes. Rather, it is to highlight their unintended impact on gender and minority under-representation and to underscore the duty of large law firms to address and mitigate their consequences for women and minority lawyers. Four trends taking place in the world of large law firms demonstrate their primary responsibility for pursuing formal and substantive diversity measures. First, and this one is far from recent, is the adoption of the billable hour as the predominant method which law firms use to bill clients and assess the contributions of its attorneys. The billable hour became increasingly common between the 1950s and the 1970s,223 and ever since billable hour targets have dramatically increased.224 Without a doubt, the billable hour serves legitimate firm needs. Externally, it allows law firms to accurately charge clients who increasingly demand specific accounting of their bills and internally, it allows firms to measure the performance and output of their associates and partners. Law firms, large and small, have been justified and greatly benefited from adopting the billable hour. Over time, however, billable hours have ascended in importance, becoming “the litmus test of worth and financial success of a lawyer or a law firm.”225 As described by Anthony Kronman: The increased emphasis on hours billed as a criterion for measuring associate performance—which reflects in part the cultural devaluation of other attributes less directly connected to the external good of money-making and in part the administrative need for a uniform quantitative standard of evaluation in firms whose size makes more-qualitative criteria unworkable—has in turn propelled the competition of associates more and more in this direction. Increasingly, associates at large firms themselves equate success—promotion and prestige— with hours billed.226

223. WILLIAM G. ROSS, THE HONEST HOUR: THE ETHICS OF TIME-BASED BILLING BY ATTORNEYS 9-22 (1996). 224. 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, 246-47 (2000) (internal citations omitted). 225. WALT BAUCHMAN, LAW V. LIFE: WHAT LAWYERS ARE AFRAID TO SAY ABOUT THE LEGAL PROFESSION 102 (1995). 226. ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 302 (1993) (emphasis added).

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Many accounts explore the impact of the fetish of the billable hour on large law firms and their lawyers: the institutional expectation of increased billable hours creates a “famine” for hours impacting lawyers’ vanishing personal lives, and consequently, their increased dissatisfaction; higher levels of stress and distress, evidence of diminished quality of work; pressures to over-bill; and the decline of mentorship, among other consequences.227 When it comes to gender diversity, the billable hour fetish has combined forces with gender stereotypes regarding women lawyers’ divided loyalties and commitment to spend significant hours away from the firm as wives and mothers, to make it more difficult for female attorneys to advance at large law firms. And while empirical studies such as After the JD establish that women lawyers in fact bill as many hours as their male counterparts,228 gendered assumptions to the contrary help create significant barriers and a glass-ceiling effect for women lawyers seeking advancement in large law firms. Until recently, the adverse impact of the billable hour on substantive gender equality would have been a classic example of a well-justified structure having unintended diversity consequences. The takeaway would have been not that large law firms should not have adopted the billable hour but rather that having legitimately and reasonably adopted it, large law firms—because they have a duty to pursue substantive gender diversity—have a corresponding duty to be sensitive to the impact of the billable hour on gender diversity when combined with prevailing gender stereotypes, and act accordingly. The solution would be not to abandon the billable hour but to proactively fight the false gender stereotype of women’s divided loyalties and insufficient commitment to the firm and its clients, for example, by educating senior partners about the findings of After the JD, monitoring their assignment of quality work based on gender, and ensuring that female associates receive their fair share of quality, career-building assignments. Recent changes in the world of large law firms, however, further reveal the significant impact of large law firms’ insufficient attention to the unintended consequences of their structures. As David Wilkins shows, large law firms are increasingly facing client pressures to abandon the billable hour as the basis for billing clients.229 Instead, large corporate clients are pushing for more costeffective billing methods, attempting to have large law firms carry more of the risk of representation and correspondingly get compensated more creatively with incentives for achieving milestones and specified goals. The decline of the

227. Fortney, supra note 224, at 263-92. 228. RONIT DINOVITZER ET AL., AM. BAR FOUND. & NALP FOUND., AFTER THE JD II: SECOND RESULTS FROM A NATIONAL STUDY OF LEGAL CAREERS 68 (2009). 229. See generally David B. Wilkins, Team of Rivals? Toward a New Model of the Corporate Attorney-Client Relationship, 78 FORDHAM L. REV. 2067 (2010) (surveying new billing methods utilized by large law firms, including partnering with large entity clients).

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billable hour as the yardstick for external client billing has important consequences for law firms concerned with gender diversity: it eliminates one of the key justifications for the supremacy of the billable hour and, given law firms’ duty to pursue substantive diversity, renders it imperative that law firms proactively develop ways to assess the contributions of their lawyers, which unlike the billable hour do not also entail gender bias and under-representation. The point, again, is not that large law firms must abandon the billable hour as a convenient, if crude, method of tracking their lawyers’ performance. Rather, it is that as a key justification for the adoption of the billable hour—a method of externally billing clients—no longer applies with the same force as before, law firms are under a heavier duty to address and mitigate the gender consequences of the fetish of the billable hour on women lawyers. Second, the adoption of risk management procedures is a hot trend among large law firms.230 Risk management denotes a set of standardized policies and procedures meant to lessen individual lawyer discretion and increase reliance on uniform responses to specific situations in an attempt to decrease errors and ultimately minimize exposure to liability,231 driven by the rise in malpractice statistics and changes in the market for lawyers’ professional liability insurance.232 Examples of risk management procedures include referring conflicts matters to a committee as opposed to vesting decision-making authority at the hands of individual partners, and requiring a second signature on an opinion letter before it goes out to a client.233 Successful and effective risk management procedures reduce exposure to malpractice, employment discrimination, and other claims, enhancing the efficiency and profitability of law firms. It is particularly appropriate in the case of large law firms, who have increased the diversity of their practice specialties, increased lateral recruitment, and routinely recruit lawyers from diverse backgrounds and cultures, thus making it less likely that agreements can be easily reached regarding professional values and decreasing the probability of a uniform application of professional judgment among the growing partnerships.234 Undoubtedly, the adoption of sound risk management procedures serves the legitimate interests of large law firms.235 Indeed, effective risk management

230. Anthony V. Alfieri, The Fall of Legal Ethics and the Rise of Risk Management, 94 GEO. L.J. 1909, 1910 (2006); Anthony E. Davis, Legal Ethics and Risk Management: Complementary Visions of Lawyer Regulation, 21 GEO. J. LEGAL ETHICS 95, 96 (2008). 231. Milton C. Regan, Jr., Risky Business, 94 GEO. L.J. 1957, 1962-64 (2006); see also Anthony E. Davis, The Long-Term Implications of the Kaye Scholer Case for Law Firm Management—Risk Management Comes of Age, 35 S. TEX. L. REV. 677, 683-85 (1994) (listing categories of risk in law firm management). 232. Anthony E. Davis, Professional Liability Insurers as Regulators of Law Practice, 65 FORDHAM L. REV. 209, 220 (1996). 233. Regan, Risky Business, supra note 231, at 1962. 234. Id. at 1963. 235. Id. at 1983 (“[F]or good reasons, risk management is here to stay.”).

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may result not only in higher profits, but also in better and more cost-effective service to clients.236 Risk management procedures have begun spreading quickly among large law firms. Whereas fifteen years ago experts described educational risk management programs as the “clearly foremost” risk management tool utilized by large law firms,237 followed by risk audits and only then by internally implemented law firms’ risk management systems,238 today the same leading experts unabashedly claim that “firms need to establish a system of practice oversight that evaluates the status of all open matters, and clients’ payment history, as an ongoing process.”239 The institutionalization and professionalization of risk management has caught on, complete with a cottage industry of consultants, with large law firms establishing risk management departments, appointing risk officers, and implementing extensive risk management procedures. While some commentators have welcomed risk management with open arms, expecting it to improve and enhance legal ethics,240 or with “qualified optimism,”241 other critics have cautioned against some of the unintended consequences of risk management. Some have pointed out that the experience of the medical profession suggests that unreflective adoption of risk management procedures and an eventual shift of decision-making power from individual practitioners to non-lawyer administrators and technocrats may end up harming the quality of service provided to clients,242 while others have argued that risk management policies may in some instances displace or interfere with reflective ethical decision-making by individual lawyers.243 Yet others have begun to question and assess the impact of risk management policies on other aspects of law practice, for example, lawyer mobility.244 In this colloquium, Tony Alfieri points out that risk management procedures may have an unintended impact on diversity within large law firms.245 What would be the impact of risk management policies on women lawyers? In theory it might appear that the adoption of risk management policies will increase gender

236. See generally Davis, supra note 230. 237. Davis, supra note 232, at 220. 238. Id. at 220-21. 239. Anthony E. Davis & David J. Elkanich, Identifying and Managing the Increased Risks Law Firms Face in a Recession, 81 N.Y. ST. B.A. J. 28, 30 (2009) (emphasis added). 240. Davis, supra note 230. 241. William H. Simon, The Ethics Teacher’s Bittersweet Revenge: Virtue and Risk Management, 94 GEO. L.J. 1985, 1992 (2006). 242. See generally Stephan Landsman, The Risk of Risk Management, 78 FORDHAM L. REV. 2315 (2010). 243. See Alfieri, supra note 230, at 1933-40; Regan, Risky Business, supra note 231, at 1966 (arguing that “conceptualizing ethics as a matter of avoiding liability can influence [personal] dispositions, attitudes, and motives, and, therefore, how someone exercises her discretion”). 244. See generally Robert W. Hillman, Law Firm Risk Management in an Era of Breakups and Lawyer Mobility: Limitations and Opportunities, 43 TEXAS TECH L. REV. 449 (2011). 245. Alfieri, supra note 19, at 17-23.

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diversity because under-representation at entry-level or subsequently at the promotion to partnership stage may lead to a higher risk of discrimination lawsuits.246 Moreover, the business case for diversity suggests that enhanced diversity will lead to better decision-making in client representation by law firms,247 reducing mistakes, disciplinary complaints, and malpractice lawsuits. Indeed, perhaps both to avoid discrimination lawsuits and to benefit from improved decision-making, large law firms have been routinely hiring women who meet their merit criteria.248 Finally, to the extent that the increase in billable hours has led to a decline in the quality of attorneys’ work product,249 risk management procedures designed to minimize exposure to liability may serve as a counter force pushing for limits on billable hours, thus indirectly enhancing gender diversity.250 Risk management procedures, however, may have also resulted in an unintended negative impact on women lawyers. To begin with, some of the theoretical benefits risk management policies could have on diversity may not be taking place in practice. In theory, risk management may result in enhanced diversity because pursuant to the business case for it, diversity will result in higher quality decision-making by law firms, which may decrease their exposure to discipline and civil liability.251 In practice, however, promotion decisions are heavily influenced by rainmaking capabilities. That is, in making equity partners firms are likely to value more the ability to generate business than the abstract and theoretical contribution to reduced liability. In an increasingly specialized and competitive era, particular departments or practice groups within a firm are likely going to push for electing rainmakers, and will resist promotion within their group of “diversity” candidates,252 especially as powerful clients pressure firms 246. On the relationship between risk management and diversity, see Lissa L. Broome et al., Dangerous Categories, Narratives of Corporate Board Diversity, 89 N.C. L. REV. 759, 792-97 (2011); Betty Simkins & Steven A. Ramirez, Enterprise-Wide Risk Management and Corporate Governance, 39 LOY. U. CHI. L.J. 571, 586-91 (2008). 247. See Steven A. Ramirez, Diversity and the Boardroom, 6 STAN. J. L. BUS. & FIN. 85, 99 (2000) (citing evidence showing that diverse groups achieve superior cognitive outcomes). 248. Interestingly, unlike law schools, large law firms have not explicitly adopted affirmative action admission policies. First, because law schools pursue such diversity measures, law firms have had an increased pool of minority candidates from which to recruit. Second, unlike law schools, which pursue rigorous admission standards, law firms continue to hire more informally. While grades and extra-curricular activities certainly go a long way towards securing one an interview, most law firms will not make a summer offer without an interview, and are thus able to apply an informal test of “personal fit,” akin to their old “warmth of personality” test. And just as the old test allowed large law firms to de facto discriminate while claiming to apply merit-based standards, so does the new standard allow law firms to pursue affirmative action while claiming to pursue color-blind merit standards. 249. Fortney, supra note 224, at 263-92. 250. By curbing institutional expectations for increased billable hours, which, combined with gender stereotypes, compromise women lawyers career advancement, risk management may support greater gender diversity. 251. See Ramirez, supra note 247, at 99. 252. See generally MILTON C. REGAN, JR., EAT WHAT YOU KILL: THE FALL OF A WALL STREET LAWYER (2004).

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to reduce staffing and have their top partners actually do the work,253 thus limiting the ability of the firm to benefit from broader brainstorming of large, diverse teams of lawyers. More importantly, to avoid liability for failure to promote, risk management policies have increasingly caused law firms to provide content-less “soft” written evaluations, filled with generic criticisms.254 Written reviews, from the law firms’ perspective, are a “double-edged sword”:255 consistent real praise may constitute evidence in a discrimination lawsuit down the road (as in, “plaintiff received positive evaluations but was not promoted for discriminatory reasons”), and repeated real criticism may serve as evidence of gender bias. As a result, risk management procedures may pressure law firm lawyers to provide content-less evaluations, consequently providing unhelpful generic feedback. Such a practice, however, is particularly harmful to, historically speaking, “outsiders,” such as women lawyers, who can benefit from feedback and constructive criticisms.256 Of course, all attorneys can benefit from substantive critiques, yet the burden of “soft” evaluations impact female lawyers disproportionally compared with their male counterparts. In the absence of substantive evaluations, firms are likely to revert back and rely on harmful gender stereotypes and heuristics.257 Substantive evaluations tend to force evaluating attorneys to articulate reasons for their assessment, thus making it harder to unintentionally rely on stereotypes. Generic “soft” written evaluations, on the other hand, decrease the quality and possibility of an objective and meritorious assessment and reinforce subjective assessments, reliance on networking, and “warmth of personality” type judgments, which have historically been unkind to women (and minority) lawyers. As was the case with the billable hour, the point is not that large law firms should not adopt risk management procedures. Rather, it is that legitimate and reasonable policies may entail unintended consequences that large law firms

253. See Wilkins, supra note 229, at 2132-33. 254. See generally Susan Bisom-Rapp, Scripting Reality in the Legal Workplace: Women Lawyers, Litigation Prevention Measures, and the Limits of Anti-Discrimination Law, 6 COLUM. J. GENDER & L. 323 (1996). 255. Id. at 364. 256. Other factors contribute to the decline of mentorship at large law firms. See Paul H. Burton, What Money Can’t Buy: Organic Mentoring in Law Firms, 43 ARIZ. ATT’Y 12, 13 (2007) (“Organic, mano a mano mentoring is all but extinct in today’s frenetic legal environment.”); Fortney, supra note 224, at 281-83 (2000) (addressing the decline of mentoring at firms); Elizabeth K. McManus, Intimidation and the Culture of Avoidance: Gender Issues and Mentoring in Law Firm Practice, 33 FORDHAM URB. L.J. 217, 220 (2005) (studying the decline of mentorship and its impact on women lawyers). See generally 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 (1998) (discussing the significance and decline of mentoring in large law firms). 257. The decline in substantive evaluations is consistent with large law firms’ decreased commitment to mentorship. See Burton, supra note 256, at 13; Fortney, supra note 224, at 281-83 (addressing the decline of mentoring at firms); McManus, supra note 256, at 220; Schiltz, supra note 256; see also infra Part II.B, footnotes 287-92 and accompanying text.

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must address. Just as the billable hour has developed into a cult of increased hours, large law firms must guard against the emergence of an unreflective fetish of “risk avoidance.” If risk management procedures calling for written evaluations were to result in a race to the bottom, depleting evaluations of all real content harming female and minority associates disproportionately, that would be a real shame. After all, the risk management rationale for written evaluations and peer review is grounded in the insight that the majority of malpractice claims against law firms relate to the conduct of senior lawyers, not associates.258 Put differently, the intended focus of risk management’s call for the development of peer review policies is partners, not associates, and it would be both lamentable and unnecessary if female associates ended up as risk management’s unintended victims. The solution large law firms must pursue, therefore, is not the abandonment of risk management procedures. Rather, a commitment to pursuing substantive gender diversity simply calls upon law firms to implement clear, transparent, objective, and substantive evaluative and assessment standards and insist that evaluating lawyers apply these standards evenly and consistently to all firm lawyers. Incidentally, guarding against the pitfalls of simplistic and counterproductive application of risk management procedures will serve not only women lawyers and the goals of attaining substantive diversity but also the interests of large law firms. Third, large law firms are increasingly moving toward a multi-tiered governance structure, including equity and non-equity partnership positions, associates on the partnership track, and non-partnership track associates and contract positions. For nearly a century, large law firms utilized a basic tournament theory to bring together associates, with their need for work but few contacts and clients, and partners, with their excess of reputation and clients but insufficient ability to attend to them all. Associates were hired straight out of law schools and put on a partnership track, where they were provided training and work and expected to earn their keep servicing partners’ clients. At the conclusion of a probation period, usually eight to ten years, associates were either promoted to partnership or asked to leave the firm. This tournament structure was supposed to effectively serve the interests of associates and partners alike. Associates would receive work, be paid handsomely by the firms, and would be assured quality training because the firm would have every incentive to invest in its future partners. Partners in turn would be assured that associates would not shirk, grab clients, or leave, all ill-advised as making partner would be a form of deferred compensation.259

258. Inst. of Mgmt. & Admin., Inc., Performance Evaluations, 09-1 PARTNER’S REP. 4 (2009) (“While law firms strive for fair evaluations, subtle stereotypes about behavior and character often derail the best of intentions.”). 259. Galanter & Palay, supra note 55.

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Leaving behind the basic up-or-out tournament structure, large law firms now hire lawyers into various tracks, with some as associates on the partnership track, others as “associates” ineligible for promotion,260 some as contract lawyers without the expectation of long-term employment, and yet others as shorter-term temporary lawyers.261 Even those who are hired as associates increasingly experience a longer track, as law firms abandon the lock-step system according to which associates were considered for partnership at the conclusion of a set period of time, and replace it with a core competencies regime, whereby associates are only promoted based upon the attainment of certain benchmarks.262 As a result, the partnership track has become uncertain in terms of its length and more subjective. Finally, at the conclusion of the probation period, associates may be asked to leave, may stay as long-term lawyers off the partnership track, or may be promoted to partnership.263 Furthermore, the tournament does not end once one is elected partner of the firm. Under this new elastic model, several partnership tracks may exist, including non-equity and equity partnerships. Some “partners” may become partners of the firm by title only and remain salaried employees, others may become “junior” partners with a lesser ownership interest, and partnership has been stripped of its presumed tenure status with partners increasingly being demoted or asked to leave the firm if they fail to meet certain financial goals.264 As in the case of the adoption of the billable hour method and risk management policies, large law firms may have ample good reasons to shift to a more flexible governance structure and expand the number and type of lawyering tracks they offer. For example, such a flexible elastic model may allow large law firms to become more efficient and enhance their profits-per-equity-partner, thus allowing the firms to retain their top rainmakers and promote stability, in a highly competitive era in which partner departures and increased mobility have become the norm.265

260. Catherine Rampell, At Well-Paying Law Firms, a Low-Paid Corner, N.Y. TIMES, May 23, 2011. 261. See Debra Cassens Weiss, Uncertainty and Stigma Plague Growing Legions of Contract Lawyers, A.B.A. J. (June 15, 2011), available at http://www.abajournal.com/news/article/uncertainty_and_stigma_ plague_growing_legions_of_contract_lawyers/?utm_source⫽maestro&utm_medium⫽email&utm_campaign⫽ weekly_email; Vanessa O’Connell, Lawyers Settle . . . For Temp Jobs, WALL ST. J., June 15, 2011, available at http://online.wsj.com/article/SB10001424052702303714704576383641752966666.html. 262. See, e.g., Scott Westfahl, Response: Time to Collaborate on Lawyer Development, 59 J. LEGAL EDUC. 645, 650 (2010) (describing Goodwin Proctor core competencies program); see also Heather Bock et al., Constructing Core Competencies: Using Competency Models to Manage Firm Talent, 1787 PLI/CORP 413 (2010). 263. See generally Galanter & Henderson, supra note 222. Nicholas Varchaver first described the changing structure of large law firms as “diamond shaped.” See Nicholas Varchaver, Diamonds Are This Firm’s Best Friend, AM. LAW., Dec. 1995, at 67. 264. See Galanter & Henderson, supra note 222, at 1882-91. 265. See id. at 1896-97.

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Moreover, large law firms have been long criticized for being rigid and failing to offer female attorneys flexible work-life work arrangements, such as part-time positions. Their growing elasticity appears to address this very complaint: the adoption of multiple associate and partner tracks would allow women and men attorneys alike greater flexibility to choose the career path that best fits their work aspirations and personal commitments. Criticizing large law firms for implementing multiple tracks—supposedly the very flexibility they were urged to adopt— seems inconsistent, even unreasonable. Yet once again, an unintended gender consequence may lurk on the horizon. Women lawyers may find themselves, over time, over-represented off the partnership track, in permanent associate positions and non-equity partner ranks, and, in particular, under-represented at the equity partnership level.266 To be sure, such proliferation of lawyering tracks may be desirable from the perspective of some female (and male) lawyers. It may allow lawyers to stay with large firms in circumstances where previously they were forced out, may allow more flexible working hours, and may allow a variety of positions with different risk allocations. To be clear, not every women attorney who chooses to opt out of the equity track constitutes a failure of gender diversity. Nonetheless, as law firms move to adopt a more flexible governance structure for business reasons, the burden is on them to appreciate and respond to the gender consequences of their actions. They must provide men and women alike who wish to compete for an equity partnership position an equal opportunity to do so, by providing quality assignments, ensuring effective mentoring and opportunities to develop business developments skills, and combating gender stereotyping. Large law firms must develop workable part- and flex-time arrangements free of stigma and effectively monitor and account for gender under-representation under their new regimes. Large law firms’ attorneys who wish to opt out of the partnership track should be, of course, able to do so and indeed would be able to do so under the new elastic model. As importantly, however, a commitment to substantive gender diversity suggests that firms should also offer part-time partnership tracks for those interested in them, and even part-time equity partnership tracks. In sum, fundamentally, law firms must acknowledge their responsibility for pursuing substantive diversity as they implement new hiring and promotion policies which are very likely going to result in increased gender under-representation. Fourth, large law firms are experiencing an ideological and cultural shift, abandoning the 1980s and 1990s’ dominant ideology of merit-based competitiveness, and replacing it with an ideology and culture of hyper-competitiveness, one that celebrates 24-7 availability to clients and around-the-clock commitment to

266. See generally Rebecca Korzec, Working on the “Mommy-Track”: Motherhood and Women Lawyers, 8 HASTINGS WOMEN’S L.J. 117 (1997).

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the firm and its clients as the key definition of professional excellence, demoting merit-based criteria such as high quality performance and exercise of professional judgment to necessary but insufficient conditions.267 To be sure, even in the 1980s and 1990s, the most successful lawyers at large firms were available 24-7. The difference, however, is that the old merit-based ideology made room, even relied on, the existence of “working bee” partners who helped service the clients of “rainmakers.” Contemporary hyper-competitive ideology, in contrast, expects all equity partners not only to be rainmakers, but, if you will, “super-rainmakers,” crowding out “working bees” or at least demoting them to either non-equity partners or to “of counsel” status. The new ideology thus defines success as, and molds, either rainmakers or aspiring rainmakers. A lot could be said in favor of this new hyper-competitive ideology. For some, it captures a desirable shift in favor of client-centered representation, part of a larger trend of power transfer from lawyers to clients, a decline in professional mystique, and its replacement with service ethos.268 Indeed, a sympathetic observer might argue that large law firms are driven to adopt such an ideology and culture as a result of hyper-competitive market conditions, and loss of power vis-a`-vis large institutional clients. At the same time, hyper-competitive ideology and the culture it fosters have significant drawbacks, for clients, law firms, and their lawyers.269 Clients may, in the short run, benefit from lawyers’ increased accessibility, but may in the longer run lose valuable strategic advisors and experience a decline in the quality of services as their law firms will, in turn, experience higher burn-out and attrition rates, as well as feature the survival of lawyers with the ability and willingness to work 24-7, which may or may not correspond with being the highest quality lawyers. Large law firms, by promoting an unsustainable and unstable culture, may lose their professional allure, may not be able to continue to attract top talent out of law schools, and may not be able to retain well-rounded lawyers who may be interested in more than an around-the-clock professional career. As a result, large law firms may not be able to sustain their elite status.270 Most relevant here, hyper-competitiveness has a significant negative effect on women lawyers. The 24-7 ideology demands, indeed celebrates, at least for partnership track associates and for those competing for equity partnership, total commitment to the firm, which may drive women out in disproportionate

267. See Wald, supra note 59, at 2264-73; see also Pearce, supra note 117 (exploring the notion of ideological paradigm shifts). 268. See, e.g., POSNER, supra note 115, at 185-211 (advocating for a market-based approach to professionalism that would replace the traditional prevailing professional mystique and would result in more effective client service); see also Pearce, supra note 117, at 1263-76 (describing the business paradigm of professionalism). 269. See Wald, supra note 59, at 2286-88. 270. See generally David B. Wilkins, Partner, Shmartner! EEOC v. Sidley Austin Brown & Wood, 120 HARV. L. REV. 1264 (2007).

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numbers, especially when combined with the fetish of the billable hour, decline of mentorship, rise of soft, content-less written evaluations, and relegation to off-partnership tracks. Furthermore, this new ideology plays into existing gender stereotypes and actual practice realities that are likely to result in even greater under-representation and inequality in partnership, especially equity partnership ranks for women.271 This is not only bad news for diversity, but also may harm law firms who might end up with highly loyal and dedicated lawyers who may or may not also be the best attorneys. Interestingly, anticipating the consequences of adopting hypercompetitiveness as its underlying ideology, organizational structure, and culture on gender under-representation, large law firms could be expected to shift to an elastic structure, which would allow them to retain women lawyers, if only off partnership and equity partnership tracks.272 But of course, the combined reinforcing effect of adopting hyper-competitiveness ideology and the elastic tournament structure might be devastating in terms of gender representation in the equity partnership track. And while large law firms are not solely responsible for hyper-competitiveness, one should not overlook the active role large law firms play in advancing it, the impact on their women lawyers notwithstanding. As Tony Alfieri argues, “the high-stakes promotion tournament” prevalent at large law firms “encourages a hypercompetitive culture.”273 In other words, while practice realities and competition drive law firms’ ideology and conduct, large law firms adopt a not inevitable governance structure that also promotes hyper-competitiveness within the firm—the high stakes tournament structure. There is nothing inevitable about a 24-7 ideology and culture, nothing to suggest that law firms could not accommodate client needs by means other than requiring their lawyers to be available around the clock, and nothing to suggest that loyalty and commitment to clients should serve as the defining quality of excellent professionalism. Of course, reform is costly, will alter the status quo, and may shake the existing power structure within large law firms. And certainly, highly paid equity partners and those who are likely to become equity partners under the hyper-competitive model have little incentive to resist it, and, in fact, a strong incentive to oppose reform. Some have argued that in order to maintain a credible claim to elite status atop the legal profession, large law firms will have to reinvent their professional ideology and culture, and that hyper-competitiveness is not only unattractive but also unstable.274 Time will tell, but in the meantime their role in actively adopting

271. See Wald, supra note 59, at 2276-86. 272. See generally Galanter & Henderson, supra note 222. 273. Alfieri, supra note 19, at 7 (citing Tom Baker & Sean Griffith, Predicting Corporate Governance Risk: Evidence from the Directors’ and Officers’ Liability Insurance Market, 74 CHI. L. REV. 487, 514 (2007)). 274. See Wilkins, supra note 270, at 1273-77.

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and pursuing hypercompetitive ideology and culture, notwithstanding the impact on their women lawyers, makes large law firms culpable and responsible for mitigating their gender under-representation consequences and renders them primarily responsible for pursuing substantive gender diversity measures. Incidentally, as Susan Sturm and Lani Guinier argue, attempting to pursue diversity and equity within an inequitable institution may be self-defeating, and worse, counterproductive.275 The way to bring about gender equality to large law firms may be not to pursue substantive diversity initiatives meant to combat the impact of the fetish of the billable hour, risk management policies, the elastic tournament, and hyper-competitiveness ideology and culture, but rather to remove the causes of women’s under-representation within equity ranks, that is, to develop monitoring methods other than the billable hour, especially as it is used less frequently as the sole basis for billing clients externally, to refine risk management procedures to mitigate their unintended gender impact, to control and respond to the gender consequences of the elastic tournament structure, and to outright reject hyper-competitiveness as a dominant professional ideology. This, to be clear, is all within large law firms’ reach. Indeed, their significant investment in diversity initiatives indicates that large law firms are committed to and are trying to pursue diversity. What is required is not radical changes to their organizational structure, but rather a different attitude, one that takes substantive diversity seriously and acknowledges the firms’ responsibility to pursue it. Ironically, large law firms are already experiencing significant structural transformation, and are already investing heavily in diversity. Paying closer attention to and addressing the unintended gender consequences of the various policies and procedures they have been implementing will allow large law firms to also meet their substantive diversity goals and obligations. In sum, because women lawyers clearly meet the meritorious hiring criteria of large law firms, and because women lawyers “opt out,” fail to meet the merit criteria for promotion, and suffer from structural discrimination perpetrated by large law firms even if unintentionally so, large law firms should be held accountable for the under-representation of women at their partnership ranks, especially as equity partners, and be responsible for pursuing strong substantive diversity measures. Especially as they actively implement policies and structures that are likely to increase gender under-representation, large law firms simply cannot hide behind claims of diversity fatigue and bad economic times drying diversity funds to escape moral responsibility for substantive diversity.

275. See Sturm & Guinier, supra note 87, at 997-1008; Charles R. Lawrence III, Two Views of the River: A Critique of the Liberal Defense of Affirmative Action, 101 COLUM. L. REV. 928, 931 (2001) (“I am concerned that liberal supporters of affirmative action have used the diversity argument to defend affirmative action at elite universities and law schools without questioning the ways that traditional admissions criteria continue to perpetuate race and class privilege.”).

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With primary responsibility for pursuing substantive gender diversity clearly assigned to large law firms, the next step is to identify suitable measures of diversity. Deborah Rhode correctly identifies several possible strategies, arguing that firms need to centralize responsibility for developing and overseeing diversity initiatives, establish monitoring procedures, develop reward structures for successful pursuit of diversity, and attempt to cultivate a culture of commitment to diversity.276 Moreover, law firms need to do all of this in context, addressing different diversity challenges specifically and uniquely. Yet at the same time, robust evidence shows that aggressive compliance monitoring can unfavorably effect the motivation of actors to comply with the rules.277 Arguably, an impediment to the success of diversity initiatives launched by large law firms is that they are perceived by some lawyers as intrusive and antagonistic to the firms’ goals. The main assertion explored in Part II is that a meaningful commitment to substantive diversity in fact is not inconsistent with the mission of large law firms. Diversity is very much attainable if law firms were to pay closer attention to the unintended consequences of their policies and procedures and address them in context. Law firms need to proactively resist the adoption of a hyper-competitive professional ideology and culture—the complete opposite of a culture of commitment to diversity—with emphasis on developing policies to combat gendered assumptions and bias regarding commitment to the firm and its clients. Firms could develop assessment methods to supplement the billable hour. Indeed, the recent departure from lock-step promotion of associates and adoption of the “core competencies” model may be a step in the right direction. Appreciating the possible impact of the adoption of risk management procedures on evaluation and mentorship of women lawyers, firms need to require and monitor the provision of detailed written and informal feedback to women lawyers, specifically addressing areas in need of attention as well as strengths and accomplishments. Written evaluations, at least for associates, should provide detailed substantive feedback, outlining areas of weakness that need improvement. Recognizing the likely disproportionate effects of a move to elastic governance structures on women lawyers, large law firms must endeavor to create and maintain mentorship programs designed to encourage female lawyers to effectively compete for equity positions within the firm. Firms could put in place extensive part-time and flex-time arrangements, including partnership track and equity partnership tracks, advertising them to lawyers and clients alike, and assigning powerful partners within the firm to encourage and monitor performance. Mentorship programs should focus on business development skills of women lawyers, providing incentives for powerful partners to gradually turn over 276. Rhode, From Platitudes to Priorities, supra note 5, at 1073-78. 277. Regan, Risky Business, supra note 231, at 1970-77 (surveying literature on instrumental compliance programs).

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lucrative clients and client development opportunities to female colleagues. In addition, law firms ought to pay close attention to compensation, ensuring equal application of its compensation standards to female and male lawyers. B. ACCOUNTABILITY FOR RACIAL AND ETHNIC UNDER-REPRESENTATION

Next, consider racial and ethnic diversity. The under-representation of racial minorities at both middle and senior levels at large law firms is, as we have seen, the result of past discrimination combined with structural discrimination, economic inequities, and cultural attitudes.278 The responsibility for pursuing formal and substantive diversity initiatives to address the under-representation of racial minorities should not fall to large law firms alone. First, the legal profession as a whole owes substantive and symbolic duties to address past discrimination and exclusion. Some dues collected at both mandatory and voluntary bar associations (and dues collected by supreme courts in nonintegrated jurisdictions) ought to be directed for the creation and support of pipelines to increase minority interest in and eligibility for membership in the legal profession. Once again, as Deborah Rhode correctly points out, accountability would be key for achieving success. Bar associations should set realistic goals and monitor performance and compliance.279 Law schools must be held accountable for the implementation of substantive diversity measures. Law schools simply cannot rest on the implementation of formal diversity initiatives, such as affirmative action and admission preferences for minority candidates, although they should be encouraged to expand their formal diversity efforts to include additional under-represented groups, such as socioeconomic and disabled minorities. Rather, law schools must be held accountable for pursuing substantive diversity measures. They must be responsible for graduation rates of minority students, take a more proactive role in helping their students prepare for and pass the bar exam, and must offer support, meant not only to ensure success in law school, but also to provide their students with meaningful opportunities to develop and acquire essential skills for success in the practice of law, such as cultural and social capital.280 The widespread adoption of academic success programs is a step in the right direction, although to the extent that the focus of these programs has been bar passage, it ought to be expanded to include fostering and cultivating social and cultural capital. Law schools should not attempt to accomplish these goals alone. The cultivation of cultural and social capital, for example, should be pursued in close cooperation with the practicing bar. Once again, specific goals should be

278. See supra notes 70-100 and accompanying text. 279. See Rhode, From Platitudes to Priorities, supra note 5, at 1075-76; see also, e.g., MINORITY COUNSEL DEMONSTRATION PROGRAM, supra note 194. 280. See supra notes 27-29 and accompanying text. See generally Schulze, Jr., supra note 27.

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set, monitored, and supervised, for example, the implementation of a mentorship CLE policy.281 The goal of such a multi-faceted approach would be not only to increase the size of the minority pool but also graduate candidates who are better qualified and prepared for law practice, both in and outside of large law firms. To be clear, the point here is not to foster what is commonly referred to as “practice ready” law students in the Carnegie Report sense (although that is also a worthy and desirable goal).282 The goal of formal and substantive diversity initiatives of law schools and bar associations should be to allow minority lawyers to compete on equal footing with their Caucasian counterparts: to foster cultural and social skills, to combat the stigma of affirmative action, and to help minority students acquire the skills they need to succeed in law practice. In collaboration with other constituencies, large law firms would also be tasked with pursuing formal and substantive diversity initiatives, tailored specifically to address racial and ethnic under-representation. While law firms are not primarily responsible for racial and ethnic inequities, they are responsible for their own structures and policies that foster under-representation. The existing diversity literature documents the impact of racial stereotypes and of rigid workplace structures on racial and ethnic minorities, resulting in subpar work assignments, insufficient mentoring, and exclusion from opportunities to develop necessary business development skills.283 Wilkins and Gulati have shown how large law firms effectively track (protecting their superstar associates from internal competition by systematically providing them with preferential access to training opportunities), seed (favoring certain associates by immediately assigning them to projects which offer the potential for creating high levels of firm-specific and relational capital), and unevenly provide their associates varying degrees of information about the partnership process.284 These mechanisms, stress Wilkins and Gulati, are efficient from the firms’ perspective, notwithstanding their unintended, disproportionate consequences for minority lawyers. And, as in the case of gender diversity, contemporary policies adopted by large law firms further aggravate racial under-representation. First, tracking, seeding, and asymmetric distribution of firm-specific information already make it an up-hill battle for minority lawyers seeking crucial mentoring at large law firms. The fetish of the billable hour combined with increased competition and a growing emphasis on the financial bottom line further hinder the prospect of securing necessary mentorship for minority attorneys. The importance of

281. See supra note 195 and accompanying text. 282. WILLIAM M. SULLIVAN ET AL., EDUCATING LAWYERS (Carnegie Found. for the Advancement of Teaching, 2007). 283. Wilkins & Gulati, Why Are There So Few Black Lawyers in Corporate Law Firms, supra note 51; Wilkins & Gulati, Reconceiving the Tournament of Lawyers, supra note 55. 284. Wilkins & Gulati, Reconceiving the Tournament of Lawyers, supra note 55, at 1644-57, 1665-73.

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mentoring to the success of lawyers in and outside of large law firms cannot be over-stated.285 Yet the “eat what you kill” compensation structure of large law firms with its emphasis on the billable hour creates a disincentive for partners and senior associates to spend substantial time in mentoring activities because mentoring is not a billable activity.286 The decline of mentorship affects all law firms’ associates, indeed, it affects the law firms themselves, but it has a disproportionate impact on minority lawyers. As Payne-Pikus et al. empirically document: “[p]artner contact and mentoring are clearly salient factors in explaining associates’ thoughts about seeking alternative employment and in the more frequent plans of African American associates to do so.”287 Moreover, the study found that “[t]here is instead predictability to [African American associates’] plans to leave these firms shortly after their recruitment. Like women before them, many African American associates find the institutional experience of large law firms, and more specifically their reduced partner contact and mentorship in these firms, to be adverse.”288 It concludes that “[o]ur findings suggest an institutionalized pattern of discrimination in which African American associates in particular are less likely to experience the benefits of being socially integrated and mentored by partners.”289 This is not to say, of course, that law firms must abandon their “eat what you kill” compensation structure or discard the billable hour method in the name of rehabilitating mentorship and fostering racial diversity. The unintended impact of diminished mentoring on racial minorities does suggest, however, that large law firms must pay close attention to mentoring, its cost notwithstanding, as an imperative of their commitment to diversity. Institutionalizing mentorship, for example, by requiring every firm partner, especially equity partners, to engage in it, may not sound compelling when explained in terms of some abstract commitment to associate well-being, but may be more persuasive to partners when its impact on diversity and under-representation is articulated. Second, the adoption of risk management policies diminishes the quantity and quality of feedback provided to all associates, with a disproportionate impact on historical outsiders, racial and ethnic minorities included, who could especially benefit from such constructive criticism. To be sure, effective associate evalua285. Monique R. Payne-Pikus et al., Experiencing Discrimination: Race and Retention in America’s Largest Law Firms, 44 LAW & SOC’Y REV. 553, 561 (2010) (“Partner contact and mentoring is increasingly recognized as a key process and source of dissatisfaction and departures from law firms” (internal citations omitted)); Reichman & Sterling, Recasting the Brass Ring, supra note 51, at 955. 286. Reichman & Sterling, Recasting the Brass Ring, supra note 51, at 956-57; Fortney, supra note 224, at 281 ([large law firm attorneys] “face tremendous pressure to bill hours and generate business, making it difficult for them to devote time to ‘non revenue’ producing endeavors, such as training and supervision”); Schiltz, supra note 256, at 740 (the “pressure to bill hours— pressure to ‘bill or be banished’—is necessarily pressure not to mentor”). See generally REGAN, supra note 252. 287. Payne-Pikus et al., supra note 285, at 572. 288. Id. at 576. 289. Id. at 577.

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tions have long been a sore spot for large law firms, and tend to be “both infrequent and, when done, cursory.”290 The relative poor quality of associate evaluation is not a coincidence. As Wilkins and Gulati explain, “by all accounts firms spend an enormous amount of time and energy conducting annual (and sometimes semiannual) associate evaluations. Paradoxically, these accounts also confirm that notwithstanding the time and expense firms put into this process, these evaluations are often perfunctory and unreliable, particularly in an associate’s early years.”291 Furthermore, “firms have an incentive to keep these assessments vague in order to induce some associates to stay who might otherwise leave. Nevertheless, . . . reaching even a general assessment of the overall quality of an associate’s work—and credibly communicating that assessment to associates—requires a large investment of firm resources.”292 As understandable as “soft” and cursory associate evaluations may be, they have a disproportionate adverse impact on minority lawyers. In the absence of substantive insights to rely on, law firms risk reverting back to racial stereotypes in assessing minority lawyers’ performance. Just as content-less evaluations may foster gender stereotypes regarding lack of sufficient commitment to the firm on the part of women lawyers, such evaluations may allow racial stereotypes about compromised quality and failure to meet merit standards as well as resentment about affirmative action programs at both law schools and, less formally, at large law firms to creep up and impact the career paths of minority lawyers. To the extent, therefore, that risk management procedures further pressure large law firm attorneys to refrain from providing meaningful feedback in written evaluations, they unintentionally harm efforts at fostering substantive racial diversity. Third, the implementation of the elastic tournament structure is likely to further complicate an already challenging reality in which many minorities depart large law firms before making partner, resulting in the channeling of minority associates who do not leave firms to non-partnership tracks and in the disempowerment of non-equity minority partners. As Wilkins and Gulati powerfully note, “good lawyers are made, not born,”293 and are the product of “on the job” complex processes of institutional training and mentoring. Increased competition, an “eat what you kill” compensation structure, the billable hour, and the decline of training, evaluations, and mentoring will all provide senior lawyers at large law firms further incentives to work with “superstar” associates who need little or no training and mentoring, exclusively focusing on these associates to the

290. Wilkins & Gulati, Reconceiving the Tournament of Lawyers, supra note 55, at 1592 (citing EDWARD P. LAZEAR, PERSONNEL ECONOMICS 104-05 (1995)). 291. Id. at 1600. 292. Id. at 1600-01. 293. Wilkins & Gulati, Why Are There So Few Black Lawyers in Corporate Law Firms, supra note 51, at 524.

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exclusion of others.294 This trend will tend to result in a higher number of minority (and women) associates relegated to non-partnership and non-equity partnership tracks. A familiar pattern emerges. Large law firms have legitimate, even compelling reasons to adopt elastic structures, yet the measure is likely to disproportionately impact minority (and women) lawyers. Importantly, minority and women lawyers are going to end up over-represented in less prestigious tracks within firms and under-represented in the elite tracks, not because they are less qualified for these positions of influence and power or because they select, on an informed basis, to opt out of competing for them, but rather, because of the impact of unintended consequences of structural changes at large law firms which are likely to hinder their career progress. Accordingly, and this too emerges as a pattern, large law firms who ought to be concerned with gender and racial under-representation and committed to pursuing substantive diversity must act to address and mitigate the impact of the structural policies and procedures they put in place that cause such underrepresentation. The solution does not entail foregoing flexibility and the creation of multiple associate and partner tracks, but rather paying close attention to their racial and gender consequences and ensuring that minority and women lawyers who wish to compete for the prestigious positions offered by the firms will have a meaningful opportunity to do so. Finally, hyper-competitive ideology and culture, combined with prevailing racial bias and stereotyping, are likely to increase racial under-representation. As Payne-Pikus et al. establish, diminished opportunities for essential training, mentorship, and partner contact frustrate minority associates, lead to dissatisfaction, and ultimately cause them to pursue departure plans shortly after joining large law firms.295 Such attitudes, unfortunately, diametrically contradict the ethos of hyper-competitiveness—that of ultimate loyalty to the firm and its clients. Ironically then, the very same racial stereotypes that breed structural discrimination against minority lawyers end up as a self-fulfilling prophecy, “proving” that such lawyers “do not understand the culture and ethos of the firm” and do not “buy into” the ideology of 24-7 commitment which they increasingly demand. In these turbulent economic times following the Great Recession, large law firms have been experiencing significant structural transformation, leading them to adopt a host of necessary changes, yet having chosen and been pressured into adopting and implementing the fetish of the billable hour method, risk management procedures, flexible tracks, and a hyper-competitive professional ideology, in an era of increased competition, the dominance of the “eat what you kill” compensation structure, increased mobility, diminished training and declin-

294. Id. at 537-42. 295. Payne-Pikus et al., supra note 285, at 572.

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ing mentorship, large law firms are nonetheless responsible for addressing and mitigating the, admittedly unintended, racial and gender consequences of their policies and procedures. Goals should be set to combat biased assumptions about capabilities, emphasis should be given to the provision of detailed evaluations and constructive feedback, mentors assigned, and opportunities to develop the skills necessary for a successful career within these institutions provided.

CONCLUSION For far too long, diversity initiatives within the legal profession have been relegated to the domain of the aspirational, voluntary, abstract, and tentative. Diversity measures have been thought of as controversial, in need of justification, and in tension with merit and profit-maximization considerations. Stripped of its fundamental normative imperatives, diversity is often only discussed as an instrumental and utilitarian defense of affirmative action. Worse, this sense of confusion and ambivalence has resulted in a failure to understand some aspects of diversity as a facet and as an extension of structural discrimination, and allowed the legal profession to take a passive posture in the face of increased under-representation and structural discrimination. This article argues that diversity within the legal profession must be thought of as an imperative and fundamental goal. Under-representation is often the result of past intentional discrimination and present structural discrimination, and the legal profession must combat it and pursue diversity with the same passion and commitment with which it has struggled and battled explicit intentional discrimination. Indeed, even when under-representation is not the result of discrimination, but rather of economic inequities and cultural attitudes, it contradicts the legal profession’s commitment to equity, justice, and the rule of law. Diversity, therefore, should not only be aspired to; it must be pursued in concrete steps. It should not be left to voluntary pursuits; it must be mandatory upon all segments of the profession. It should not be abstract and tentative, but must be specific and firm. To that end, the article has advanced the notion of diversity conceptually and contextually, drawing a distinction between types of discrimination—formal and substantive—exploring the various causes of underrepresentation, methods for combating them, and the responsibility for doing so. The article concluded by applying these refined ideas in the context of the pursuit of gender and racially-based diversity by large law firms, arguing that their elite status atop the legal profession, their leadership role, their relative ability to effectuate change, and their pursuit of policies and structures that are likely to aggravate under-representation impose a heightened duty on large law firms to pursue formal and substantive diversity measures. With regard to gender under-representation, large law firms’ role in perpetuating and escalating inequities should burden them with the primary duty to mitigate the consequences of the very policies, structures, and programs they have implemented.

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With regard to racial and ethnic under-representation, large law firms’ partial role in bringing about inequities ought to compel them to work with other legal institutions to foster greater formal and substantive diversity. One way of drawing a distinction between discrimination and diversity is to define the former in terms of intentional conduct and the latter in terms of prevailing conditions. Building on these definitions, opponents of diversity in the legal profession argue that making the bar responsible for conditions, even if bar members’ conduct itself seemed non-discriminatory, is unwarranted and unfair (for example, opposing affirmative action programs in law schools on the ground that they are unfair to blame-free applicants). In response, proponents of diversity often find themselves arguing that all conditions are actually related to prior conduct, and that under-representation in the legal profession today is the result of prior discriminatory conduct against women and minority attorneys (consider justifying affirmative action programs on the ground that they are necessary given past discrimination). Arguably, this state of affairs captures the state of the diversity discourse in the legal profession. Viewed from such a perspective, this article makes two contributions to the diversity discourse. First, it argues in Part I that conditions of underrepresentation are unacceptable in the legal profession, and that the entire bar bears responsibility for pursuing diversity. This proposition, however, leaves the question of who specifically is responsible for pursuing diversity unanswered. Should all members of the profession bear equal responsibility? Should all be held accountable in equal parts? Part I concludes by asserting that some constituencies bear a heightened burden if they are not blame-free, that is, if they pursue conduct that contributes to under-representation. Part II advances the claim that large law firms are engaged, unintentionally so, in structural discrimination against women and minority lawyers, and are therefore responsible for mitigating the consequences of their own policies and procedures that contribute to under-representation. Such reasoning leaves for another day two related questions. First, do large law firms and other leading constituencies of the profession also owe a duty to address under-representation for which they are blame-free, under either an “all conditions are actually related to prior conduct” theory or a “progressive taxation” regime or any other theory? Second, what are the obligations, if any, of other non-discriminatory blame-free members of the bar to address underrepresentation and pursue diversity? Do solo practitioners and small law firms, for example, owe a duty to pursue diversity? And what would this mean in practice? The imposition of some professional dues on all members of the profession directed toward a diversity fund? Or other, more specific, measures?