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In response to Deborah, Orin, and Doug, I'd like to point out that law firms are finally starting to come around in this area—largely because they realize that if they want female partners, they need to find a reasonable way for female associates of counsel and partners to have children without hopping off the "partner track." My peers at other large firms tell me that it's become standard practice to offer reduced-work schedules and pay for parents (both mothers and fathers) who want to spend more time at home with their young children. And while such arrangements can slow associates in the quest to make partner, they don't derail them entirely (the way they used to). Further, many firms like mine are moving towards "merit-based" systems for compensation and promotion rather than old-school lock-step promotions based on how many years you've practiced after law school. The old systems placed a premium on a young lawyer's ability to sprint from graduation to partnership—and punished those who took time off for family, further education, public service, or other reasons. I think these new policies have the potential to help mothers (and fathers) balance their families and careers better, although I think it's too early to gauge their full effects.
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Deb's post on "Women in Law" raises an interesting question about why different subject areas tend to have different gender ratios among law profs. I've wondered about this myself. For example, in my own area, criminal law and procedure, most of the junior hires at "top 10" law schools in the last few years have been women. They include Jeannie Suk (Harvard), Erin Murphy (Berkeley), Rachel Barkow (NYU), Rachel Harmon (Virginia), and Eve Brensike Primus (Michigan). I'm not sure why that is, and it could just be a coincidence, but it's a pretty interesting trend.
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Well, Doug, between your support for Obama and that last post lamenting the continuing dilemmas of women lawyers with families, the progressive lawyers over at the American Constitution Society may need to declare you an honorary member.
I've always been reluctant to wade into public discussions about women and law, in part I suspect because ever since taking a great college course in feminist theory from de Beauvoir to Gilligan to McKinnon to bell hooks (et seq.), I've had the nagging feeling I've not read anything genuinely new on the subject of women's equality in the United States. Sure, there've been regular and unfortunate flare-ups in the appalling "mommy wars" and, of course, a regular diet of studies on women in the professions—which are always useful but never entirely convincing on questions of how things are, why things are as they seem to be, or what should be done about any of it. And there is also the likely possibility I've just not read everything I need to read.
Yet despite the risk of adding to the surfeit of nothing new, I admit Doug's post just brought rather acutely to mind several conversations I've had in the past few months with law professor friends and colleagues of mine, many of whom have been generous in offering advice and guidance as I ponder embarking on a career in legal academia (having already experienced for at least some time men and women at work during stints as a federal law clerk, a law firm associate, and a nonprofit attorney).
The most daunting advice was from a female tenured professor, who warned that constitutional law especially was one of the last great bastions of good-old-boy power in legal academe and that I'd better steel myself with all the arrogance I could muster if I expected to survive. And, fair enough, the "human rights law" conferences I've attended have been overflowing with talented women, while I've felt noticeably more isolated on panels in the realm of national security or constitutional law. The women I've spoken to often echo (more often less sternly) the notion that this is some remaining vestige of the good old boys. Most men have said they see it as an unexplained dearth of women in the field.
(A few other men in recent years have suggested that I, like their wives/colleagues' wives/junior colleagues, just not worry about a "real" tenure-track job. If research/writing/teaching is what I enjoy, easy enough to do that in a perpetual researcher capacity. After all (I paraphrase only slightly), my husband has tenure enough for us both. Such dinners generally haven't extended through dessert. And I am reminded of why arrogance can be such a boon to individual happiness in life.)
The most gender-uniform warnings, though, come from a certain kind of parent of young children (and I know such folks of both genders). "I haven't written anything since the first one was born." "I only write during the summer." "Our faculty seminars are always held at dinnertime/bedtime/after school." And so on. Despite all the generally well-meaning people of both genders I know and the every-few-years-in-every-venue-I've-worked-stunningly-sexist remarks I've heard (my longtime personal favorite: "You have to realize your mind is a sword, people are going to perceive it that way, and you need to work on softening that.")—it's the parenting argument I find most currently compelling. I've no doubt there are gender differences writ large here in how this plays out. But for this kind of professional parent of either gender, there just aren't enough hours in the day. And so I find myself struck by the family-friendly musings of Doug Kmiec. But pessimistic there'll be a solution during my working life.
Your advice, colleagues, remains most welcome.
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My thanks to Deborah Pearlstein for her thoughtful reply, which illustrates well the professional disregard for both women and family in academia as well as in the law firm and corporate contexts—though, by virtue of de facto independent contractor status of most professors, the groves of academe are sweet compared to the bitter hardships borne by single moms. I've been helping a single mom in my parish church for the last several weeks try to retrieve her car from an impound lot when the sheriff towed it (after her ex-husband turned her in for various alleged vehicle-code violations). Stepping into her well-worn shoes for even these brief moments has been unnerving, to say the least. To make an unbelievable story short, after several continuances (which took no account of her job or child-care responsibilities), the judge recognized the charges to be more spousal spite than legal breach, and dismissed. When single mom went to get her car, the city had (wrongfully) sold it, and so now we begin a civil action which will no doubt worsen the Bleak House nature of it all. In the meantime, she knows the car is out there somewhere, because, apparently, the city sold it to a scofflaw who is running up parking tickets under her registration.
This personal experience merged together this morning with Deborah's intervention of her own experience among the haughty con-law fraternity and another response to my earlier post, this one from a reader who forwarded an article on "maternal profiling" which suggests that in some places—Pennsylvania (which has a primary, last time I looked, later this month)—employers are not only turning a dismissive eye on the value of family like our professor "colleagues" and the law firms but actually and brazenly (and apparently lawfully) discriminating against single women with a family. According to the Pittsburgh Post-Gazette, Pennsylvania state law allows employers to inquire into one's maternal status and use that openly to make an adverse hiring decision.
The presidential candidates are crisscrossing the keystone kingdom, and while sometimes they are accused of floating at levels of generality that exceed my vagueness in the classroom, on this topic, they stand amidst tangible opportunities to bring worthwhile change to the lives of, apparently, one of Pennsylvania's most suspect classes (presently without the benefit of strict scrutiny, of course): single moms.
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Sen. Clinton may or may not be the next Democratic nominee for president. But her candidacy represents to many voters a positive statement in favor of gender equality.
I've cast my lot with Sen. Obama, but if he fails to cross the finish line, I bet it will have less to do with the overheated statements of his pastor or his bowling than with the fact that—however much the Clintons together generate suspicion or should be eliminated on the democratic (small “d”) “no second rides” theory—Mrs. Clinton is still, well, a woman and more than a few citizens (myself included) think having a woman president long overdue.
Why overdue?
Because, frankly, I have three daughters among my five children and it would be salutary if they would be less subject than my wife’s generation to arbitrary gender-based impediments as they reach toward their aspirations. For more than 30 years now, I’ve watched highly talented women law graduates face the same overly rigid law-firm and corporate structure that somehow pretends not to know that many (not all) women have a desire to both practice their chosen profession and parent. I’m all for the free market, but the market has been treating families as if they were a free good, and just as “the tragedy of the commons” despoils the commonly held air and water, corporate elevation of its bottom line over family well-being shortchanges the family—and us all.
Men, of course, too often silently shrug this off as if it were none of their business, perhaps even thinking again silently (since openly would yield a cold stare or litigation) that gender-based distinctions are not arbitrary impediments at all but simply the rational economic calculus applied. Of course, we men know it's darn hard to do parenting and professional work at the same time, which is, of course, why most of us don’t attempt it. So it came as no surprise when, lo and behold, a recent Canadian study by Jean E. Wallace and Marisa C. Young proved the obvious that women with children are less “productive” than women without children.
As I indicate in additional commentary on this study, and as Emily Bazelon has noted, “productive” is in scare quotes because the study measured productivity in accordance with the dreaded billable hour, which persists in making law practice a modern form of well-paid slavery, rather than service—which, digressing just for a moment, the practice might have a chance of becoming yet again were flat or contingent fees the more standard means of law-firm accounting. In any event, apart from the severe damage the billable hour does to the sheer enjoyment of legal work, it is not a perfect measure of productivity, since obviously some people can get a lot more done in a small amount of time than others, and women are often superb multi-taskers.
Confirming as it does that we men are not particularly helpful when it comes to making the family-work balance possible, it’s tempting to hide the Canadian study under the rug. That's not to say that husbands don't lend moral support to our personal spouse's effort at not forgetting those grueling years of law, business or medical training as she is singing the alphabet song for the 15th time or is driven to the edge by the "see and say" machine. Some men—especially guests on Oprah—do this and more. It's just that—if we're honest—kicking doors open for women generally at the office has not been high on our to-do list—what with foreign outsourcing and all. In fact, according to the Canadians, men may be giving family-friendly benefits a bad name. Things like flexible hours were found to have a negative impact on a man's productivity while working at odd hours didn't affect a woman's productivity one whit. Men, it seems, tend to use these flexible hours to goof off, while women use them to finish drafting the merger agreement while waiting interminably in the doctor's waiting room. Second, men with babies at home work overtime. Go figure. Third, even when men attempt to do more of the parenting, they're not that very good at it. The study found that men who have a stay-at-home partner get a lot done, whereas women who have stay-at-home husbands don't receive any particular advantage from it.
None of this is particularly encouraging for those of us who believe the workplace—still dominated by men, of course—has a special obligation to accommodate the needs of the family as an irreplaceable cultural building block. Indeed, one “unexpected”—though perhaps not surprising—finding given the above pattern is that women without children work the hardest of all, including men. It's bad enough that men are seemingly misusing the flex benefits; just think what the male senior partners will rationally deduce when the word gets out that the hardest worker bee in the hive is the childless queen. To quote the researchers themselves, the obvious way for women “to balance work and family is to reduce their family commitments, which may be accomplished by having fewer or no children.” Yes, that's one way, but it is also a prescription for cultural suicide.
We like to think work is for the benefit of men and women and not the other way around. At least, the last time I checked this was the right order of things. The reverse proposition—that we live to rack up billable hours—would be bleak indeed, though that is pretty much the life of a young associate at any major law firm in the United States. To have a chance at getting our priorities straight, I suggest some changes in employment practices, nondiscrimination, and tax law, but would being family-friendly violate Equal Protection?
Possibly to a justice who doesn’t think child-rearing an important or compelling state interest. But who’s in that group? Surely Justices Ginsburg and liberal-thinkers like John Paul Stevens and David Souter wouldn’t want the law to be construed in a way that narrows a woman’s choices. Since under existing law pregnancy (or “pre-birth child care”) cannot be a basis of discrimination against women, why should care delivered “post-birth”? It would make no sense for either Justice Thomas, who flirts with natural law, or Justice Kennedy, who is often its modern source—worrying as he does about the ability of folks to “define their own place in the universe”—to object to giving a public tax subsidy or telling public employers not to discriminate against working mothers. If the limitation extended to private employers, Justice Thomas might drop a footnote telling us again how much he misses the original understanding of the commerce clause, but he has let similar measures go through biting his stare decisis tongue. Those in the law-as-umpire (“just callin’ em as we see ‘em”) group, the chief justice and Justices Scalia and Alito, might raise a judicially-restrained eyebrow at these innovations, but it would be perverse if those who oppose an unfettered abortion right were to go out of their way not to understand the relevant customs and traditions that underlie the “liberty” of the Fifth and 14th Amendments as family-friendly. And if these measures promote a more “active liberty”—and expanding opportunities for women does, one would think (though I confess the whole “active liberty” concept still is a tad elusive)—Justice Breyer should also be satisfied. In any event, any law is certain to be drafted gender-neutrally, using terminology like "primary caregiver" (though everyone will know that category will still mostly be women).
The presidential candidates like to talk about change. It is time we explore new employment relationships that don’t reflect 19th-century attitudes that undervalue home and family to the detriment of us all.