by Victoria Baranetsky
Stories of Ms. Law: Every lawyer loves a good story. From the complaint, to the brief, throughout the closing argument and up until the final decision, everything begins with the facts, the details, the story. Everyone knows exactly what happened to Ms. Palsgraf on the train platform, Dred Scott after he crossed state lines, and Captain Thomas Dudley and first mate, Edwin Stephens after their twentieth day marooned at sea. Certainly, lawyers extrapolate, twist and turn the facts when applying them to procedural and theoretical rules but the story remains the starting point, that wields undeniable power. Similarly, feminism has held out stories as having a primary importance. The entire feminist movement of consciousness raising in the 1960s and 70s applauded women for sharing their individual stories, believing they were the key to social change. In this blog, as a former journalist, a former storyteller, I hope to tell the real life stories of women in and related to the law and through their narratives revive a form of consciousness raising.
Heroes matter. As a rising 3L about to enter the legal profession, I have been on the search for a female legal hero, but the search has been difficult. All too often the “greats” in law have been men and the future prospects don’t seem to be much more encouraging. Certainly, people and their heroes need not be of the same sex. For example, Ruth Bader Ginsburg’s self-proclaimed hero was Justice John Marshall Harlan. But the more similarities you share with your hero, sometimes the more empowering it can be, especially when those similarities are immutable characteristics. For instance, it is undeniable that the election of President Obama, to the highest position in our country, was important for the African American community. President Obama serves as a hero to that community, in particular, in addition to others. Similarly, women in the law may benefit from looking at the highest positions in their field and seeing them filled with persons who share their same ethnicity or gender. The concern, however, is that women are nowhere to be found at the top.
The importance of heroes is undeniable; they aren’t just for the fledgling attorney. Even the most seasoned veterans within our profession have icons that provide them with a standard to live up to. For example, in his book, Letters to a Young Lawyer, Alan Dershowitz lists his personal heroes: Clarence Darrow, Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter, Hugo Black, William O. Douglas, Thurgood Marshall, and William Brennan.
This list is no great surprise; these are the names that are often cited in articles, award dinners, law books and on courthouse buildings. They are the paragons of our profession. And, they are all men. Dershowitz advises students to be careful not to idealize their heroes. Because hero-worshiping, he explains, always leaves one devastated when one’s hero’s imperfections are inevitably revealed. However, for many women the concern is not whether they will become disillusioned with their hero, rather, the concerns lies with whether they can even find one.
Although the nation’s law schools have their classes almost evenly split between men and women, something unusual happens to most women after they begin to climb into the upper tiers of the legal profession. They disappear. For example, women compose only a meager 17% of partners at major law firms (only slightly higher from the 13% in 1995); 24.7% of the federal bench (19% of all Supreme Court clerks); and a mere 29.3% of law school professors (even though 53% of assistant professors are females). In fact, according to an American Bar Association study, women only compose 31% of all practicing attorneys. This phenomenon is in no way endemic to the legal profession but is unsettling all the same.
Whatever the reasons*, the paucity of women in the highest tiers of our profession is not a new observation. But what is new, what this post argues and reveals, is that having fewer women at the top creates not only a disturbing asymmetry within the profession with fewer female attorneys but more importantly it creates a dearth of female heroes. For the past decade, studies, speeches, and articles have repeatedly reported on the phenomenon of the “glass ceiling.” Other articles catalog the sticky floors, clogged pipelines, and on-and-off ramps that women face today – creating fewer female attorneys. This most detrimental game of chutes and ladders, that women face not only offers less legal brain power to the world, means less reached potential, and less satisfaction for women (Sylvia Ann Hewlett- finds that 93% of women who have left the labor force want to return) but importantly, and often gone unmentioned, it means fewer idols for women to look up to. Without heroes, there is no script, no story to imagine for yourself. So without female heroes, future women professionals are less likely to reach the top. It is cyclical.
In 1971, the magazine ArtNews published an essay whose title posed a similar question for the field of art history. The essay, “Why Have There Been No Great Women Artists?” written by Linda Nochlin, explored the reasons why this shortage existed within the realm of art and “eventually spearheaded an entirely new branch of art history.” Nochlin argued that art education was generally gendered-male and that “the entire romantic, elitist, individual-glorifying, and monograph-producing substructure upon which the profession of art history is based” systematically precluded women. But Nochlin’s most important point was not just why there were not great women artists but what effects that had. Without any great women artists, Nochlin argued, budding female artists had no one to look up to – and frame their own career on. So the question became a self-fulfilling prophecy. The same can be said of law.
In law, certainly, some great lawyers exist. The most popular example is the current triumvirate on the Supreme Court: Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Additionally, you could name another select few: Myra Bradwell, Sandra Day O’Connor, Constance Baker Motley, Janet Reno, Hilary Rodham Clinton, Diane Wood, Catharine MacKinnon, Pamela Karlan and Elizabeth Warren. But, these are the exceptions, not the rule. Few women make it to that tier. Moreover, just as when Nochlin was writing her piece, a few great female artists had existed then, but they were sparce. For example, Mary Cassatt, Frida Kahlo, Georgia O’Keefe and Berthe Morisot had all made their claim to fame by the time Nochlin wrote her piece – but the bounds and reams of paper written about the many more great men dwarfed these women in comparison. So too, exists the story for the legal profession.
Like Nochlin, I refuse to admit that men have some inherent proclivity for “genius,” rather I believe, “specific and definable social institutions… academies, systems of patronage, mythologies of the divine creator, [lawyer] as he-man or social outcast” must have a hand in why there is a want of women at the top. Whatever the reason, it is time for a change. I need me a hero.
* Trying to understand these statistics, observers have enumerated several potential causes. For years, before the last half-century, animus was the defining factor. For example, Justice Brennan stated in the sixties that he might have to resign if a woman ever got nominated to the Court. (He also refused to hire female clerks). But this attitude has all but receded from the mainstream view. Only extremists on the fringes still hold such ludicrous perspectives and are often ostracized if they choose to voice them. Instead, today, firms compete for female attorneys and law schools boast their equal admission rate. So other factors have been suggested. First, far fewer women than men apply for jobs in the legal market. Second, childcare is of course cited as a major reason. But third, some people explain it is simply because “[w]omen self-promote in a different way than men, and because women don’t get their success acknowledged in the same way as men who more aggressively self-promote.”