Convictions: Slate's blog on legal issues

The Precedent

With all this talk of the possibility of Hillary Clinton on the Supreme Court, I'm surprised no one has mentioned the most obvious precedent for it. Not so long ago, a former U.S. senator and a loyal Democrat was confirmed to the Supreme Court. Like Hillary, he was born in the Midwest and had studied law at Yale.  Like Hillary, he had been considered a rising Senate star. Like Hillary, he was widely admired for his interpersonal skills.

That justice was, of course, Sherman Minton. (Crickets chirping...)

Family Friendly Legal Practice: Why Not.

Phil—to echo Orin’s skepticism about part-time at law firms, I wonder whether flexibility isn’t actually part of the same phenomenon that also accounts for heavier and heavier workloads. While it’s true that firms are becoming more flexible in terms of part-time arrangements to accommodate working parents and flexible partnership tracks, isn’t a lot of this just a move toward an eat-what-you-kill system generally? The demise of lockstep for partnership, for instance, does mean people who take time off aren’t fired (so long as they are otherwise productive and valuable to the firm), but it also has meant longer probationary periods before partnership generally and the rise of a whole range of demi-partnership statuses (such as the somewhat puzzling status of “non-equity partner”—basically a glorified associate who gets to pay self-employment tax). Large firms now routinely fire or demote partners (technically vote them out of the partnership) who fail to perform to expectations; conversely, rainmakers demand salaries that rival those of investment bankers and necessitate higher billable-hours requirements across the board for associates and partners alike.

This has made things more equal in a sense because there’s less room for favoritism and gender bias in a world of ruthless competition and an unyielding focus on the bottom line—as any economist will tell you, highly competitive markets tend to punish irrational discrimination. But they reward rational discrimination. For women and men who want more time off, this means they can get whatever they can negotiate in a competitive market. Maybe this is better than a system where part-time is out of the question, but it’s not exactly “family friendly.” And even if you do take leave or swing a part-time schedule, the bottom line is still the bottom line: If you’re a partner, you can’t just take three months off and forget about your clients; if you’re an associate and you check out for three months, someone else is going to be doing all of what used to be your work (or at least all of your good work) when you get back, and you’ll have to scramble to make your billables. Obviously this all affects women disproportionately, but little of it is sex discrimination.

Official firm leave and part-time policies don’t mean much in this context—they set a tone, but in the end your schedule depends on your relationship to clients and partners. Suppose you go on paternity leave, and two weeks later a partner you enjoy working for asks if you can help out a little bit from home on an exciting new matter. “I just want to be sure you’re in the loop so when you get back from leave you can take the lead on this.” You could, of course, forbid this type of request and insist that parents take their leave. But is that really better for women? That partner is doing you a favor—she could have just gotten someone else who’s not on leave to take the case and they’d have the plum assignment. Ditto a long-hours assignment for someone supposedly working part time.

My wife for instance, who works for a large firm in San Francisco, was in the office a week after she gave birth to our daughter (and without an epidural, no less!). No one forced her to come in, and in fact, she was roundly chastised for it. A week later, a courier delivered five banker boxes of documents and a laptop to our home so she could keep up while out on “leave” (for the last two years she's also been "part time," which is roughly 40 hours a week, plus the inevitable weeks or months "from hell" when something explodes and she has to take care of it). Again, this was her decision—she’d have a job in three months even if she did no work on her leave. But there’s no way she can just come back to the same job she left while doing nothing—her clients and relationships require some ongoing maintenance, many of the relationships are personal and can’t be transferred back and forth, it takes time to get up to speed on a client’s portfolio, etc. If the firm had more people working on a given matter, one person could take up the slack for someone on leave without taking over entirely. But except for huge deals and make-or-break litigation, firms tend to staff leanly. Given the hourly rates big-firm attorneys charge, clients understandably demand it. And given the salaries attorneys earn, firms can’t afford to write off too much idle time.

So the bigger problem is, as Phil and Orin suggested, the general crazy upward spiral of salaries and hours. No one is really to blame for this—or everyone is. Maybe it’s a collective action problem—firms think they need to offer larger and larger salaries to get the best students out of law school; status-conscious law students think high salary is an indicator of prestige and pick firms accordingly, even though they’d prefer less pay and lower hours. If so, there should be solutions, such as the initiatives among law students to rate firms based on lifestyle and social responsibility in order to change what counts as high status. On the other hand, it could be that people like to complain about their hours, but in fact they prefer long hours and high salaries to the alternative (it might be a bit like airlines: Everyone gripes about the lousy amenities, delays, and tiny seats, but they choose almost exclusively based on price).

Mom, Esq.

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.

Women in Law

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.