Blog Forum – WOMEN in the LEGAL PROFESSION [Seron]

NLR BLOG FORUM:  What is happening to women in the legal profession?

We begin this forum with some observations on the current status of women in the legal profession from research by Carroll Seron, President elect of the Law & Society Association, and a faculty member at the new University of California at Irvine Law School (by courtesy) and in the Department of Criminology, Law & Society.

As is by now well-known, beginning in the mid-1970s there was a marked change in the demographic composition of the educational pipeline into the legal profession.  Spurred by the Civil Rights Movement and the Women’s Movement, minorities and women entered law school in relatively large numbers.  The proportion of women entering law school has gone from less than 10 percent as of 1971 to about 47 percent as of the fall of 2011.  The demographic change in the educational pipeline of lawyers has been reflected in the composition of the profession at large, but while women and minorities are represented in greater proportion, they still face challenges in making it to the top of the profession (as measured by top-quartile income or partnership in law firms).  Whereas studies in the 1970s revealed that the legal profession was stratified along ethnoreligious lines, more recent research reveals a pattern of gendered and raced stratification that leaves women and minorities in lower-ranked rungs on the professional hierarchy.  Over time, the profession seems to have followed a path predicted by C. Wright Mills in 1951, increasingly organized into “law factories” that serve the most wealthy and powerful in society.

While career patterns became less stable or predictable between 1975 and 1995, white men continue to enjoy more success within these career trajectories than did their female and minority counterparts.   Women are generally less likely to occupy the highest paying rungs of the ladder, and are more likely to leave the law altogether than are their male counterparts. Overall, then, the profession has become much more heterogeneous, but much less integrated across worksites.  Looking at income, the evidence is stark. Foremost, the kind of organization in which a lawyer works became much more salient for predicting income between 1975 and 1995.  Even after controlling for work experience and performance in law school, there remains a growing inequality in income across the profession. Simply put, the gap in pay for work settings in, for example, government and corporate America has grown between 1975 and 1995. Because women and minorities tend to be concentrated in settings with a relative decline in pay, these new entrants tend to earn less.  However, even when we examine just the law firm setting alone, the persistent gaps in earnings by white women and minorities relative to white men reveal residues of sexism and racism.  The upper reaches of power and decision making within the legal profession, especially, remain disproportionately inaccessible or ascribed by status markers of gender and race.

Organizations have adopted new policies and programs in an effort to overcome and remedy these persistent patterns.   For example, some employers have instituted part-time and flexible scheduling, job sharing, and formalized mentoring programs through firms and bar associations. Unfortunately, however, an enormous body of sociolegal research has shown us that on the ground, rules and policies are frequently enacted in discretionary and contingent ways.  Researchers who study law and society are working to investigate how these kinds of policies unfold in practice. I argue that it is particularly important to examine how policies and practices designed to enhance the opportunities of women interact with (1) the time norms of professionalism, (2) the role of social reputation and stereotype, and (3) the structural consequences of tokenism to keep women and minorities “in their place” – that is, outside the doors of boardrooms.

1.Time Norms and Professionalism — Sociolegal research reveals that women have met with notable success in some legal fields, but not in others. For example, Mather, McEwen, and Maiman (2001)report that women who specialize in divorce, where they have long been relatively well represented, have leveraged their numbers and advocated for reform of procedures through leadership positions in their field. Other research shows that women are well represented in government, particularly at the local level in district attorney offices but, then in contrast to their male counterparts, are less likely to gravitate to criminal defense work (Dinovitzer 2004). Kritzer (2004) has shown that women are underrepresented compared to their numbers in the profession in contingent fee practice. Finally, women are, as mentioned above, underrepresented at the senior levels of large firms compared to their proportion in the pipeline of this elite stratum of the profession, but find somewhat more rewarding berths as in-house counsel in industry.

To understand the impact of change in the gender composition of the professions and the messy patterns of women’s presence or absence across occupational specializations, scholars have begun to rethink the institutional supports of professional work. Early theories of the professions took it for granted that professionalism meant that one will “always be on the job” (Zerubavel 1981, 148) or that one’s work and one’s commitment to clients is all encompassing and primary (Epstein and Seron 2001). In this scheme, professional time is all of the time. The change in the gender composition of the legal profession has begun to challenge this presumption, helping to reveal how professional time is socially constructed and institutionally embedded.

2. Social Reputation and Stereotype — Research on the legal profession has also demonstrated that a great deal of an attorney’s success depends on social reputation or social capital.  Building a reputation requires “good” credentials, as well as what sociologists would call “sponsored mobility” (or access to networks and mentors).   Empirical studies have shown that young, white men are much more likely to be candidates for this scarce, but essential process of “supportive mentoring.”  In light of a large body of research that consistently shows that individuals feel more comfortable mentoring protégés who look like them, these findings should not be surprising.

For women and minorities, the residuals of stereotypes add to the challenge of securing a mentoring relationship that will allow recruits to get the right assignments, be placed on the right committees, and be introduced to the right clients.  In the face of persistent racial and gender stereotyping, do women and minorities develop skills, orientations, and plans that suggest exit out of choice or necessity – agency or institutional arrangement?  Since such a small proportion of all associates will make partner, it would only be rational for the majority of associates to build skill sets that would serve them well in the labor market more generally.  But when women and minorities engage in this same strategic action, it may serve to confirm and reinforce stereotypes of race and gender.

3. Structural Consequences of Tokenism — Those few women and minorities who make it past these enormous social hurdles are on the “hot seat”; these tokens become the stand-ins for the group.  Because of their small numbers, these tokens are called on to work where they are always observed in “contrast” to the dominant group.  There has been much debate about whether a change in numbers would be sufficient to counter the influence of stereotyping.  Some recent studies have provided “modest support” for such a view.

In a recent article, Cythnia Fuchs Epstein and Abigail Koker have systematically reviewed blogs and the legal press to develop a picture of how white and minority women have done in the aftermath of the Great Recession.  Their reading of these materials supports a long-standing theme in employment patterns: the last hired are the first fired.  That is, their findings show that with one important exception, women and particularly minority women have been disproportionately affected through terminations in the post-2008 Recession.  The one bright spot is that the proportion of women in corporate counsel have not experienced disproportionate layoffs; this may be due to the growing proportion of women who sit at the top as the General Counsel at Fortune 500 corporations.

While the change in the place of women in the legal profession over the latter decades of the 20th century is nothing short of a revolution, a close look at patterns of hiring and promotion still suggest residuals of gendered and raced stereotyping.

Read More!  Seron, Carroll, The Status of Legal Professionalism at the Close of the Twentieth Century.  Law & Social Inquiry 32(2): 581-607 (Spring 2007).

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