Faculty Bibliography

An unprecedented account of social stratification within the US legal profession. How do race, class, gender, and law school status condition the career trajectories of lawyers? And how do professionals then navigate these parameters? The Making of Lawyers’ Careers provides an unprecedented account of the last two decades of the legal profession in the US, offering a data-backed look at the structure of the profession and the inequalities that early-career lawyers face across race, gender, and class distinctions. Starting in 2000, the authors collected over 10,000 survey responses from more than 5,000 lawyers, following these lawyers through the first twenty years of their careers. They also interviewed more than two hundred lawyers and drew insights from their individual stories, contextualizing data with theory and close attention to the features of a market-driven legal profession. Their findings show that lawyers’ careers both reflect and reproduce inequalities within society writ large. They also reveal how individuals exercise agency despite these constraints.

Beginning in the 1990s, India, Brazil, and China have each developed a distinct corporate legal "ecosystem," comprised of new (or newly repurposed) domestic "corporate" law firms, foreign law firms competing (on the ground or virtually) to serve both foreign and domestic clients, general counsel offices of both domestic and multinational companies, and law schools either designed or retooled to supply lawyers qualified to practice corporate law. In this Article, we utilize data from an unprecedented set of empirical studies to document the rise of this new corporate ecosystem in these three important emerging economies, and to develop grounded theory about the forces that have produced this transformation, and that help to explain differences among the three jurisdictions. Specifically, we argue that differences in what we call the "micro-level gearing" in the relative importance of the three key elements in the corporate legal ecosystems that have developed in India, Brazil, and China – law firms, clients, and legal education – can be explained, in part, by differences in what we will call the "macro-level gearing" in the relative power of the state, the market, and the bar – both between all three countries and the United States, and among the three jurisdictions. This difference has been most pronounced in China, where the dominance of the "state gear" in shaping the corporate legal market contrasts sharply with both the U.S. "market" driven model, and the influence of the "bar" in shaping the micro-level corporate ecosystems in India and Brazil. We conclude by offering some tentative thoughts about the implications of our findings for a rapidly globalizing corporate legal services market in which a growing number of states are beginning to exert greater control at the macro-level.

Beginning in the 1990s, India, Brazil, and China have each developed a distinct corporate legal "ecosystem," comprised of new (or newly repurposed) domestic "corporate" law firms, foreign law firms competing (on the ground or virtually) to serve both foreign and domestic clients, general counsel offices of both domestic and multinational companies, and law schools either designed or retooled to supply lawyers qualified to practice corporate law. In this Article, we utilize data from an unprecedented set of empirical studies to document the rise of this new corporate ecosystem in these three important emerging economies, and to develop grounded theory about the forces that have produced this transformation, and that help to explain differences among the three jurisdictions. Specifically, we argue that differences in what we call the "micro-level gearing" in the relative importance of the three key elements in the corporate legal ecosystems that have developed in India, Brazil, and China – law firms, clients, and legal education – can be explained, in part, by differences in what we will call the "macro-level gearing" in the relative power of the state, the market, and the bar – both between all three countries and the United States, and among the three jurisdictions. This difference has been most pronounced in China, where the dominance of the "state gear" in shaping the corporate legal market contrasts sharply with both the U.S. "market" driven model, and the influence of the "bar" in shaping the micro-level corporate ecosystems in India and Brazil. We conclude by offering some tentative thoughts about the implications of our findings for a rapidly globalizing corporate legal services market in which a growing number of states are beginning to exert greater control at the macro-level.

The word “alternative” is definitely trending in the legal zeitgeist. Beginning with the U.K. Legal Services Act and accelerating through the legal tech startup boom, discussion about the growing importance of Alternative Business Structures (ABS) and Alternative Legal Service Providers (ALSP) has become a cottage industry in the legal press, and increasingly in the legal academy as well. And yet, for all of the talk about the growing importance of these “alternatives,” the very discourse used to cast these new providers as the harbingers of impending dramatic changes in the market for legal services continues to marginalize and mask their true significance. In this Chapter, we argue that this characterization of the range of new providers competing for a share of the global corporate legal services market is fundamentally flawed. We do so by first reminding today’s lawyers and commentators that the large law firms and sophisticated in-house legal departments that we now consider to be the “traditional” standard against which all other legal service providers should be measured, were once considered radical “alternatives” posing a significant threat to the “core” values of lawyer professionalism. As market conditions changed, however, these marginalized forms of practice not only moved to the mainstream, but have become the very embodiment of professional excellence. Similarly, we argue, as corporate clients increasingly demand professional services that are “integrated,” “customized,” and “agile,” the parts of the market that are now considered “alternative” – e.g., technology, managed services, flexible staffing, and multidisciplinary practice – are also moving from the periphery to the core. At the same time, “traditional” law firms and in-house legal departments are under mounting pressure to demonstrate how the “core” services that they provide contribute to producing the kind of “integrated solutions” their clients need. We conclude by highlighting some of the challenges that this evolving “integrated solutions” model poses for other parts of the legal “ecosystem” such as legal education, legal regulation, and the rule of law, that either have not – or should not – change.

On January 10, 2017, President Barack Obama delivered his formal farewell address to the country in Chicago, the city that had given him his political start. In reflecting on the achievements and challenges of his two terms in office, the president paid special attention to an issue that he knew would, for better and for worse, define his presidency: Race. In the simple, yet elegant, language that even his harshest critics have come to respect, the president said this about the state of race relations after eight years of the Age of Obama: "After my election, there was talk about a post-racial America. Such a vision, no matter how well-intended, was never realistic. For race remains a potent and often divisive force in our society. I’ve lived long enough to know that race relations are better than they were 10, 20, 30 years ago — you can see it not just in the statistics, but in the attitudes of young Americans across the political spectrum. But we are not where we need to be. All of us have more work to do." In this Report, we offer a preliminary assessment of how much progress had been made — and how much work remains to be done — in a part of the American economy President Obama knows well: the legal profession. We do so by examining the careers of the black graduates of President Obama’s law school alma matter in the 16 years since the beginning of the new millennium. Harvard Law School provides an important lens through which to study these issues. One hundred and fifty years ago this year, the Law School enrolled George Lewis Ruffin, who would go on to be the first black person to graduate from any law school in the United States. In the intervening years, Harvard has graduated more black lawyers — over 2,700 — than any law school in the country with the exception of the great Howard University School of Law. Among their ranks are some of the most powerful and influential lawyers in the world, including the 44th President of the United States and the country’s former First Lady, Michelle Obama ’88. In 2000, the Harvard Law School Center on the Legal Profession released a Report on the State of Black Alumni: 1869-2000 chronicling the achievements and continuing challenges of this remarkable group of lawyers on the basis of a comprehensive survey of the careers of over 650 of the school’s African American alumni. In this new Report, based on a second survey of the school’s black alumni, including those that graduated in the new millennium and matured during the Age of Obama, we both bring that history up to date and offer new perspectives for this new era. Collectively, we hope that these two reports will provide the “common baseline of facts” that President Obama identified in his farewell address as key to a civil dialogue in a functioning democracy, for a profession that will always have a central role in guaranteeing the freedom and equality that are the cornerstones of our democracy.

In the 1990s Brazil and other emerging economies went through a major transformation. Closed economies were opened, foreign investment encouraged, and many state-owned enterprises privatized. This “global transformation” had a major impact on the Brazilian legal system. While many parts of the legal system were affected, the corporate law profession changed the most. This sector includes all the institutions and actors that provide legal advice to corporations whether domestic and foreign, public or private. Global transformation brought about major changes in the national political economy, led to a flood of new laws governing corporate activity, and created a demand for new kinds of legal services to help companies manage the new legal environment. This led to rapid growth of the complex of institutions that provide corporate legal services and affected the way lawyering was practiced and organized. Many forces came together to give new shape to the professional identity of lawyers, the structures they work in, and the roles they play. The result was the creation of a new and powerful segment of the legal profession whose activities had profound impacts on the rest of the profession, the legal system, the operation of enterprises (both public and private), state policy and global governance. In this book, we describe the growth of the corporate legal sector in Brazil, and the impact of this development on law-making, legal education, regulation of the legal profession, public interest law, trade policy, and gender roles. The book is part of a larger study of global transformation and its impact on the legal profession carried out by GLEE, the project on Globalization, Lawyers, and Emerging Economies. Based at the Harvard Law School’s Center for the Legal Profession, GLEE is currently studying these developments in Brazil, India and China, with plans to expand the project into Africa and the states of the former Soviet Union. In Brazil, GLEE’s research has been based at the law school of the Fundação Getulio Vargas (FGV) in São Paulo.

Using a unique data set comprised of original research of both the corporate Web sites of the Big Four—PwC, Deloitte, KPMG, and EY—and their affiliated law firms, as well as archival material from the legal and accountancy press, this article documents the rise and transformation of the Big Four legal service lines since the enactment of the Sarbanes Oxley Act of 2002. Moreover, it demonstrates that there are good reasons to believe that these sophisticated players will be even more successful in penetrating the corporate legal services market in the decades to come, as that market increasingly matures in a direction that favors the integration of law into a wider category of business solutions that these globally integrated multidisciplinary practices now champion. We conclude with some preliminary observations about the implications of the reemergence of the Big Four legal networks for the legal profession.

Notwithstanding the increasing importance of technology, the practice of corporate law is—and is likely to remain for the foreseeable future—a human capital business. As a result, law firms must continue to attract, develop, and retain talented lawyers. Unfortunately, the traditional approach, which divides responsibility for professional development among law schools, which are supposed to teach students to think like a lawyer; law firms, which are expected to train associates to “be” lawyers; and corporate clients, whose job it is to foot the bill, is no longer well aligned to the current realities of the marketplace. In this Article, we document the causes for this misalignment and propose a new model of professional development in which law schools, law firms, and corporate clients collaborate to train lawyers to be lifelong learners in the full range of technical, professional, and network-building skills they will need to flourish throughout their careers. We offer specific proposals for how to achieve this realignment and confront the resistance that will inevitably greet any attempt to do so.

This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession.

This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession.

This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession.

This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession.

The longest running professional responsibility book on the market, Problems in Professional Responsibility for a Changing Profession has been thoroughly updated by its current and two new authors. It has retained its original problem-oriented focus on practical issues faced by lawyers in everyday practice, current issues faced by the profession, and its unique section examining the demographics, structure, and organization of the legal profession. The need of our profession to take account of our changing world is apparent in every chapter of the new edition.

"This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession. Employing a range of original data from twenty empirical studies, the book details the emergence of a new corporate legal sector in India including large and sophisticated law firms and in-house legal departments, as well as legal process outsourcing companies. As the book's authors document, this new corporate legal sector is reshaping other parts of the Indian legal profession, including legal education, the development of pro bono and corporate social responsibility, the regulation of legal services, and gender, communal, and professional hierarchies with the bar. Taken as a whole, the book will be of interest to academics, lawyers, and policymakers interested in the critical role that a rapidly globalizing legal profession is playing in the legal, political, and economic development of important emerging economies like India, and how these countries are integrating into the institutions of global governance and the overall global market for legal services." --Publisher

Globalization is rapidly changing the landscape of law practice in China, especially its corporate legal sector. This article reports on the preliminary findings of the China research of the Globalization, Lawyers, and Emerging Economies (GLEE) Project—a comparative study that examines how globalization is reshaping the market for legal services in important emerging economies and how these developments are contributing to the transformation of the political economy in these countries and beyond. Adopting an ecological approach, which examines how different segments of the legal system interact with one another in complex ways, this article maps the corporate core, international linkages, and domestic contexts of China’s globalizing corporate legal sector and discusses its impact on lawyers and society.

"Expressions of support for diversity are nearly ubiquitous among contemporary law firms and corporations. Organizations back these rhetorical commitments with dedicated diversity staff and various diversity and inclusion initiatives. Yet, the goal of proportionate representation for people of color and women remains unrealized. Members of historically underrepresented groups remain seriously disadvantaged in professional training and work environments that white, upper-class men continue to dominate. While many professional labor markets manifest patterns of demographic inequality, these patterns are particularly pronounced in the law and elite segments of many professions. Diversity in Practice analyzes the disconnect between expressed commitments to diversity and practical achievements, revealing the often obscure systemic causes that drive persistent professional inequalities. These original contributions build on existing literature and forge new paths in explaining enduring patterns of stratification in professional careers. These more realistic assessments provide opportunities to move beyond mere rhetoric to something approaching diversity in practice" -- Back cover.

Expressions of support for diversity are nearly ubiquitous among contemporary law firms and corporations. Organizations back these rhetorical commitments with dedicated diversity staff and various diversity and inclusion initiatives.

On January 28, 2016 Georgia Law's 113th Sibley Lecture was delivered by Harvard Law School's David B. Wilkins, who currently serves as the school's Kissel Professor of Law, its director of the Center on the Legal Profession and its vice dean for global initiatives on the legal profession. Wilkins presented "The Accountants Are Coming ― Again!: The Rise and Transformation of the Big 4 Accountancy Firms and What it Means for the Global Market for Legal Services” at the event.

There is widespread consensus that the legal profession stands at an important inflection point. Traditional models of professional organization, practice, and education are under increasing pressure to adapt to important changes in the environments in which lawyers work. At the same time, these same forces make the profession’s commitment to its traditional ideals of equality and the rule of law more relevant and important than ever. The current status of women in the legal profession mirrors this complex duality. On the one hand, the number of women entering the profession has increased dramatically in recent decades, and women lawyers can now be found in leadership positions in virtually every major legal institution in the country, including three female justices on the United States Supreme Court. And yet, the percentage of women in these top positions remains far below their representation in the profession, even when adjusted for the fact that women did not begin to enter legal practice in significant numbers until the 1970s. To make matters worse, even women who have achieved important career success appear to be leaving their prestigious positions - and the profession as a whole - in alarming numbers. It is against this background that we offer this Preliminary Report on The Women and Men of Harvard Law School. The Preliminary Report presents the results of the Harvard Law School Career Study (HLSCS), conducted by the school’s Center on the Legal Profession (CLP). Begun with a generous grant from a visionary group of women alumnae in connection with the 55th celebration of the graduation of the school’s first female students in 1953, the study seeks to deepen the understanding of the career choices made by HLS graduates by providing for the first time systematic empirical information about the careers trajectories of graduates from different points in the school’s history. In this Preliminary Report, we offer a first look at the Study’s findings about the salient similarities and differences between the careers of the school’s female and male graduates.

Large law firms patterned on the Anglo-American model can now be found in most major commercial centers around the world. Yet, at the very time that mode of the production of law is spreading around the world, the traditional ‘Cravath System’ upon which the Anglo-American model is based is increasingly under pressure, both by sophisticated clients demanding ‘more for less,’ and by a range of alternative providers offering competing services at the intersection of law, technology, project management, and other professional expertise. This article seeks to explain this paradox and posits some alternative futures for large law firms in the new ‘global age of more for less.’

This essay presents a practical vision of the responsibilities of lawyers as both professionals and as citizens at the beginning of the 21st century. Specifically, we seek to define and give content to four ethical responsibilities that we believe are of signal importance to lawyers in their fundamental roles as expert technicians, wise counselors, and effective leaders: responsibilities to their clients and stakeholders; responsibilities to the legal system; responsibilities to their institutions; and responsibilities to society at large. Our fundamental point is that the ethical dimensions of lawyering for this era must be given equal attention to—and must be highlighted and integrated with—the significant economic, political, and cultural changes affecting major legal institutions and the people and institutions lawyers serve.

Here is the question legal academics have been asking for the last few years. Did the Global Financial Crisis (GFC) that began in the United States with the fall of Lehman Brothers in 2008, and eventually spread to slow growth in most of the worlds major economies – including here in Spain – herald a fundamental paradigm shift for the legal profession? Or are we just having the kind of correction that we have seen before as a result of past economic downturns, and that things will eventually return, roughly speaking, to the way that they were before the crash?

Despite the importance of globalization for Indian lawyers, there have been surprisingly few attempts to integrate the rich scholarship on the processes of globalization with the sociology of the Indian legal profession, and to conceptualize and explain major recent legal developments in India in this context. This article uses three globalization processes – economic globalization, globalization of knowledge and globalization of governance – as lenses for analyzing the Indian legal profession. It argues that understanding these processes and their intersections can help frame a much-needed empirical investigation into the globalization of the legal profession in India, and possibly in other major emerging economies.

There is vast and growing cause lawyering literature demonstrating how attorneys and their relationship to social justice movements matter greatly for law’s ability to engender progress. But to date, there has been no examination of the work of ADA disability cause lawyers as cause lawyers. Similarly, despite an extensive literature focused on the ADA’s revolutionary civil rights aspects and the manner in which the Supreme Court’s interpretation has stymied potential transformation of American society, no academic accounts of disability law have focused on the lawyers who bring these disability civil rights cases. This Article responds to these scholarly voids. We conducted in-depth interviews with many of the nation’s leading disability rights cause lawyers. What we found makes three novel contributions. As the first examination of the activities of these public interest lawyers and their advocacy, it brings to light a neglected sector of an otherwise well-examined field. In doing so, this Article complements but also complicates the cause lawyering literature by presenting a vibrant and successful cohort of social movement lawyers who in some ways emulate their peers, and in other ways have a unique perspective and mode of operation. The Article also forces a re-consideration of academic critiques of the efficacy and transformative potential of the ADA, because it demonstrates how disability cause lawyers have effectively utilized the statute to achieve social integration in the shadow of the Court’s restrictive jurisprudence.

The article discusses the growth of in-house counsel in U.S. companies and their performing the work traditionally done by the outside counsel. It also discusses the rise of in-house counsel movement in other parts of the world, especially in the emerging economies. The internal counsel's new and increased roles in the companies are also discussed.

How are relationships between corporate clients and law firms evolving? Drawing on interview and survey data from 166 chief legal officers of S&P 500 companies from 2006–2007, we find that—contrary to standard depictions of corporate client-provider relationships—(1) large companies have relationships with ten to twenty preferred providers; (2) these relationships continue to be enduring; and (3) clients focus not only on law firm platforms and lead partners, but also on teams and departments within preferred providers, allocating work to these subunits at rival firms over time and following “star” lawyers, especially if they move as part of a team. The combination of long-term relationships and subunit rivalry provides law firms with steady work flows and allows companies to keep cost pressure on firms while preserving relationship-specific capital, quality assurance, and soft forms of legal capacity insurance. Our findings have implications for law firms, corporate departments, and law schools.

The article discusses the factors considered by general service law firms when deciding whether partners may represent controversial clients. It cites the conflict between King & Spalding and former solicitor general Paul Clement over Clement’s contract to represent the House of Representative on the issue of the Defense of Marriage Act. It notes that considerations in client selection include principles screening by the firm’s management and screening by firm management based on the controversy’s impact on the reputation of the business.

Professors Stein, Waterstone, and Wilkins review Samuel Bagenstos’s Law and the Contradictions of the Disability Rights Movement, suggesting that the disability rights movement’s success has been limited by a lack of “cause lawyering.” Many constituencies that have lobbied for civil rights, such as people of color, women, and lesbians and gays, have had significant internal divisions, and the disability rights movement is no exception, as Bagenstos documents. However, say the authors here, these other movements have benefited from lawyers dedicated to the shared goals of the group and attuned to effective, focused litigation. In contrast, the lawyers who have represented people with disabilities before the Supreme Court have had little affinity with the disability rights movement as a whole; instead, these lawyers have focused on the narrow needs of particular constituencies. Thus, the movement has chosen to advance its goals–granted, often with substantial success–through means other than the Supreme Court. However, the professors suggest, conditions have changed and the time may be ripe for the disability rights movement to reengage the Court.

Lawyers increasingly occupy roles that cross traditional boundaries between “public” and “private.” Sometimes they do so sequentially – for example, the growing number of lawyers moving between public and private sector jobs – and sometime simultaneously – for example, the role that private practitioners play in access to justice or the practical realization of human rights norms through pro bono policies and the development of internal company rules on issues such as child labor or the environment. These developments arguably have important implications for the field of legal ethics, which tends to view a lawyer’s public and private responsibilities as either indivisible and mutually reinforcing (the traditional model), or as antagonistic and mutually exclusive (the prevailing model). In this article, I examine these implications through the lens of the growing tendency by governments at all levels to hire private lawyers to act as “substitute” attorneys general to pursue public claims against private defendants, often for monetary damages. After documenting the rise of such arrangements in cases ranging from litigation against lead paint manufacturers to the federal government’s efforts to oversee the TARP program, I discuss how this practice challenges traditional understandings of the responsibilities of both the private practitioners who assume these public responsibilities and the public lawyers who are charged with overseeing them. Contrary to the objections of some critics, I conclude that the fact that private and public responsibilities are often blurred in this context does not mean that such arrangements should be prohibited. Instead, I argue that both policymakers and lawyers should move beyond the caricatures of public and private roles that underlie many of these objections to create a new set of institutional arrangements and ethical norms that can help lawyers conceptualize and discharge their competing – and often conflicting – public and private responsibilities in particular contexts.

In this article, I document the connection between the election of the nation’s first black president and the fledgling, but nevertheless important, creation of a new black "corporate" bar. Specifically, I argue that the new generation of black lawyers who moved into important positions of power and responsibility in corporate America since the mid-1960s played a critical role in opening the door for an Obama presidency – and that understanding the experiences and attitudes of these new "social engineers" is critical to understanding the President's approach to integrating his obligations as leader of all of the people and his expressed commitment to improving the lives of black people in the first decades of the twentieth century. My argument proceeds in four parts. Part I documents the important role that Houston’s and Marshall’s original social engineers played in paving the way for Obama. As the President frequently acknowledges, he stands on the shoulders of these giants who quite literally laid the groundwork for his success. Indeed, before running for the Illinois State Senate in 1996 Obama’s career was eerily reminiscent of the great social engineer Wiley Branton for whom the Symposium at Howard Law School where this article appears is named. But for all of his connections to the original social engineers, it was a new generation of black lawyers who actually propelled Obama’s meteoric rise from the Illinois State Senate to the U.S. Senate, and eventually to the presidency. Part II charts the rise of this new generation and explains both their connections to, and differences from, the prior generation of social engineers. Although much has rightly been made of the theme of generational change in Obama’s ascendance, many have mischaracterized both the formative experiences and the commitments of what I will refer to as the Brown generation of black lawyers who came of age in the years following that historic decision. Using original interview data and other sources, I document these experiences and commitments and demonstrate how this generation’s unique status as black professionals with role-related obligations that are separate from, and potentially in opposition to, their continuing commitment to use their positions in corporate America to advance the cause of racial justice both drew this new black legal elite to Obama, and in turn, shaped the way in which the President has responded to similar tensions between his role as president and his desire to use the powers of his office to improve the plight of black Americans. Part III explores these tensions by examining how Obama has attempted to use the office of the presidency to advance the cause of racial justice. In each of the three major avenues through which he has pursued this goal – using the "bully pulpit" to assist traditional civil rights organizations and to inspire individual responsibility and high aspirations among blacks generally, placing talented black professionals in important positions in his administration, and, most importantly, promising to improve the lives of black Americans through a combination of vigorous enforcement of anti-discrimination laws and a series of new race-neutral social programs targeting areas of particular concern to blacks – the President has employed strategies also employed by the Brown generation. Not surprisingly, many of the same problems that the nation’s first black corporate lawyers encountered when they attempted to negotiate the complex and sometimes conflicting demands of the "equal opportunity" and "social justice" legacies of the Brown decision have also come to haunt the nation’s first black President as he has engaged in an even more public balancing act between his obligation (and right) to be the president of all the people and his commitment to use his office to improve the lives of black people in this country. Part IV closes by briefly examining how the election of the first black president presents unique opportunities – but also poses unique challenges – for this country’s still fragile black bar.

Kaufman and Wilkins mark the 20th anniversary of Problems in Professional Responsibility for a Changing Profession with a new 5th edition. Their new edition covers judicial, legislative, and executive developments in the traditional fields of conflicting interests and confidentiality, specialty fields of corporate and government representation as well as representation of those with impaired capacity. It also deals with the problems created by the increasing nationalization and internationalization of law practice, including the basic problem of trying to determine whose professional responsibility law governs the activity of lawyers when they engage in activity beyond their home jurisdictions. Various efforts to reform the profession here and abroad to meet the legal needs of clients and would-be clients are also presented. The authors have added substantial new material dealing with the demographics and institutions of law practice and their effect on professional identity.

Beginning in the 1980s, a group of black legal entrepreneurs frustrated with the slow pace of integration in mainstream large law firms set out to create their own “black” (or “minority”) “corporate” firms. Although rarely articulated in quite these terms, their goal was to create institutions capable of doing for black lawyers in the waning decades of the twentieth century what the “Jewish” firms successfully accomplished for a similarly marginalized group in the century’s middle decades: to create institutions so large and successful that they would eventually forced the mainstream bar to eliminate (or at least significantly reduce) the discriminatory barriers that prevented blacks from achieving full professional status. For a brief period, it seemed like history would repeat itself and the dream of creating true black corporate law firms would succeed. But by the turn of the twenty first century, most of the firms that had been started with such hope just a few years before had either shuttered their doors or shrunk significantly in both size and ambition. In this article, I chronicle this rise and fall through the voices of over 50 lawyers who were either involved in creating black corporate law firms or were in a position to help these fledgling organizations succeed. I argue that the stories of these pioneers shed important light on the transformation of the market for legal services, as well as contemporary debates about diversity in the legal profession, the importance of self-identified “black” institutions in an increasingly integrated world, and the lasting value of quixotic quests.

The article discusses the reasons why larger law firms are losing 30, 40 or 50 percent of associates after rendering their services for three or four years. Some of the reasons include some associates had no intention of staying, they just wanted to pay off their debts in law school, others needed to follow a spouse, and some are attracted with higher-paying jobs in other industries.

In a recent article in the Stanford Law Review, Professor Richard Sander argues that law schools should dramatically reduce or eliminate their affirmative action policies for black applicants because these policies harm rather than help their intended beneficiaries. Although Sander presents many troubling statistics about black performance in law school and on the bar exam, his core claim that blacks are harmed by affirmative action rests on the counterintuitive assertion that blacks who attend more highly ranked law schools because of such policies are hurt more by the lower grades that they are likely to receive at these institutions than they are helped by the benefits of graduating from a more prestigious institution. In a Response that will also be published in the Stanford Law Review, I argue that the evidence Sander proffers does not come anywhere close to proving that most black lawyers would be better off in a world in which the vast majority of them would attend law schools 20-50 places below the ones that they currently attend, and where hundreds of blacks who currently attend law school today would be denied the opportunity to do so altogether. Affirmative action has played a crucial role in helping black lawyers to overcome the systematic and persistent obstacles that continue to make it more difficult for these new entrants to succeed notwithstanding the progress the country has made in reducing the overt discrimination that for the first two centuries of our history kept blacks out of virtually every desirable aspect of American society. Indeed, it is precisely because these policies have been so successful that for the first time blacks with high grades from lower-status schools have a plausible chance of gaining entry into high-paying positions in the legal profession. These tentative gains, however, are unlikely to continue if the number of black graduates from highly-ranked schools were to decline dramatically. Although the picture is more complex with respect to those black students who are unlikely to end up in high-status jobs, they too have benefited more from affirmative action than Sander's analysis suggests. Equally important, the problems those in this group undoubtedly confront have as much to do with the way that bar exams are conceived and administered as they do with these students' potential to become competent practitioners. The argument proceeds in four parts. Part I briefly reminds us of the long and sorry history of exclusion that gave rise to the need for affirmative action in the first place and examines how this legacy continues to disadvantage black lawyers. Part II examines Sander's contention that grades are more important than law school status in the context of black graduates from highly-ranked schools. Contrary to Sander's assertion, black lawyers in this group gain benefits from their prestigious degrees that extend far beyond the starting salaries that they receive upon graduation. In turn, these fledgling members of the profession's elite provide important benefits to all black lawyers - and to society as a whole. Part III examines those black lawyers who appear to have benefited the least from affirmative action: those who attend lower-tier local and regional law schools. Although Sander makes a persuasive claim that these students face daunting risks in pursuing a career in law, a significant number plausibly benefit from their legal education, even if they do not go on to become lawyers. Moreover, given that bar passage is the most important obstacle facing blacks in this group, we can gain as many new black lawyers by reforming the way that such exams are administered and taken as Sander claims will result from eliminating affirmative action. Part IV briefly concludes by arguing that, rather than improving conditions for black lawyers, Sander's proposal runs the risk of making many of the problems he identifies worse.