Faculty Bibliography
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Fifty years after John W. Davis, one of America's premier corporate lawyers, took on the defense of segregation in Brown v. Board of Education as a pro bono case, corporate America appears to have firmly embraced the mantra that diversity is good for business. In this Article, I examine this surprising turn of events by investigating the rise of market-based diversity arguments in the legal profession itself. Specifically, I examine how black lawyers seeking to integrate corporate law firms have increasingly staked their claim on the contention that diversity is good for the business of law firms and clients. Although it is not surprising that diversity advocates have been drawn to such arguments, I argue that whether these claims will actually produce greater opportunities for black lawyers - and whether the resulting diversity will in turn further Brown's other goal of promoting social justice through law for all Americans - depends upon a closer examination of the connection between diversity and business than most proponents of the business case for diversity in the legal profession have been willing to undertake or even to acknowledge. As a preliminary matter, advocates must confront the profession's deep commitment to the idea that it is actually homogeneity that best serves firms and clients - a commitment that may be even harder to shake in law firms than it apparently has been in corporate America. At the same time, advocates must also be aware of the danger that market-based diversity arguments will encourage various forms of race-matching, pigeonholing, and moral evasion that can end up harming the cause of diversity by marginalizing and alienating minority lawyers. Ironically, taking note of these complexities may also hold the key to making progress on Brown's social justice goals as well. Integrating the corporate bar is a social justice issue of considerable importance. Nevertheless, if bringing diversity to the elite ranks of the American legal profession is going to do more than accentuate the yawning gap between the legal haves and have-nots, then those who come to occupy these positions of power must have normative commitments that both shape and constrain the business interests of their powerful clients. Contrary to the gloomy predictions of diversity advocates who urge abandoning social justice arguments for diversity altogether, however, there are good reasons to believe that black lawyers who maintain a normative understanding of diversity that goes beyond corporate self-interest may, paradoxically, have important advantages in building a credible business case for diversity in their own careers.
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Susan Carle has given us a fascinating, thoroughly researched, and well-argued examination of the early history of the modern civil rights movement. She frames her inquiry of this rarely investigated period in terms of the tension between the NAACP's litigation tactics during the early part of the twentieth century and the professed ethics of the establishment lawyers who authored and approved these controversial measures. How, she asks, could leading corporate lawyers such as Charles Boston justify authorizing the NAACP's concerted campaign to solicit plaintiffs and create test cases while at the same time serving on ethics committees that expressly condemned such practices?
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This paper uses information from over 250 in-depth interviews with black lawyers in US corporate law firms to critique the widely held claim that the internal labor markets of these institutions are organized as standard economic "tournaments." Although tournament theory fits some obvious features of large law firms, as well as the profession's sense of itself as a meritocracy opened to talent, the economic concept of a rank-order tournament in which firms bestow partnership as a reward to the "best" associates for their past contributions to the firm does not accurately describe the hiring or promotion practices of elite firms in the United States. Instead, these practices define a much different kind of competition - one that looks more like a figure skating tournament, complete with subjective standards, political bias, tracking, seeding, and information control - than the neutral meritocracy suggested by tournament theory. These rules disadvantage blacks in hiring, promotion, and partnership. Blacks are less likely to be hired by large firms because employers place too much emphasis on "objective" signals (such as law school status and grades) that are at best only loosely correlated with future productivity, while at the same time allowing considerable room for the kind of subjective decisionmaking that accentuates the importance of background stereotypes and preconceptions. Similarly, informal tracking of associates into those who will receive training and those who will not makes it more difficult for black associates to obtain the good work and mentoring that will enable them to develop into successful lawyers. Finally, even those blacks who become partners face structural barriers to participating in the three markets that are essential to partner success: the external market for new clients, the internal market for referrals from existing clients, and the labor market for senior associates. These structural disadvantages, in turn, create incentives for black lawyers to adopt rational career strategies that, paradoxically, further decrease their opportunities for winning the tournament.
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There is a growing body of scholarship in the United States on the structure of elite law firms. Virtually all of this work, however, is written from the perspective of the firms themselves or the lawyers who work inside these institutions. Surprisingly little attention has been paid to the perspective of another group with an obvious interest in the structure and practice of large firms: law students. Consequently, we have almost no information about what law students know, or more accurately, think they know, about the practices of elite firms and how these practices are likely to affect their careers. This omission is important since perceptions are important both as a potential window on actual firm practices and as a significant influence on the strategic choices of students, firms, and law schools even if the perceptions prove to be incorrect. This paper begins to close this gap by reporting the preliminary results from a nationwide survey of third year law students at American law schools about hiring and promotion practices at elite law firms. The survey tests three hypothesis about elite firms: 1) that the hiring practices of these entities are more concerned with sorting prospective applicants on the basis of a few visible, rankable signals (such as law school status and grades) than on evaluating a candidate's substantive knowledge or skills, thereby leaving those with hiring authority substantial discretion to make decisions on the basis of subjective determinations about whether a given student will "fit in" to the institution's culture; 2) that succeeding at a large law firm is as much about whether one finds a mentor or is perceived as being a "star" or a "team player" as doing high quality work and playing by the rules; and 3) that perceptions about what it takes to be hired or promoted at a large law firm are likely to vary according to the respondent's gender, racial, and law school identity. Survey results suggests that third year law students subscribe to some version of each hypotheses. The paper concludes by discussing the implications of our findings for students, firms, and law schools.
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Globalization has finally hit the legal services market. Not surprisingly, lawyers in Britain, Europe, Asia, and other commercial centers who seek to take advantage of this trend frequently pattern their efforts on American law firms. Lawyers from around the world, however, should pause before uncritically accepting the self-interested claims of US lawyers about the competitive and professional virtues of American-style legal practice in a global marketplace. To be sure, the fast paced, entrepreneurial, and business oriented style of lawyering pioneered by US law firms is at the heart of global legal practice. What is less easy to see - but no less true - is that the "Cravath System" which most American firms employ also contains structural and ideological features that will make it difficult for firms embracing this system to meet the challenges of globalization. To see these limitations, the world's aspiring global legal elite would do well to look carefully at the record of US law firms on what might at first seem like an unrelated issue: the attempt by women and minority lawyers in the US to integrate elite law firms. Globalization and diversity are almost never expressly linked beyond the trite (albeit true) observation by diversity advocates in the United States that the majority of the world's population is neither white nor male. This truism, and the corresponding claim that "diversity is good for business," however, obscures as much as it reveals about the important connection between these two concurrent trends. Whether or not the world's undeniable demographic diversity will be good for the business of global law firms depends upon whether these institutions learn how to compete in a global arena in which many of the conditions that spawned the American model of legal practice have been fundamentally transformed. Specifically, in order to be successful, global law firms must confront five interrelated challenges: growth, cultural conflict, institutional innovation, fluid career paths, and the transformation of professional ideals. In this paper I will argue that efforts to diversify American law firms cast important light on each of these important issues. A careful review of this history, I submit, yields important lessons about the limitations of nineteenth century Cravathism as a blueprint for twenty first century global law firms.
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Reprinted: Rostain, Tamina. Lawyers and the Legal Profession. Vol 1. Ashgate Publishing Company (2008).
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David B. Wilkins, Everyday Practice Is the Troubling Case: Confronting Context in Legal Ethics, in Everyday Practice and Trouble Cases (Austin Sarat et al., eds., 1998).
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Although the number of black students graduating from law schools has increased significantly in recent decades, blacks still make up a very small minority of the lawyers working in large corporate law firms. Available data indicate that these firms hire few blacks, and that those they do hire are more likely than their white peers to leave the firms before becoming partners. Conventional explanations blame the underrepresentation of blacks in corporate firms on either the racism of firms and their clients, or a shortage of qualified, interested black candidates. While acknowledging that in some instances these factors may help to explain the problem, this Article looks behind them to examine institutional factors that tend to perpetuate the existing underrepresentation. Specifically, the Article shows how the ways in which large corporate firms recruit and train lawyers tend both to shield discriminatory choices between black and white candidates from any competitive disadvantage, and to discourage black law students and lawyers from investing in skills that will enable them to succeed within corporate firms. Thus, the Article argues, firms' hiring and training decisions both shape and are shaped by the strategic choices of black candidates, with the net effect of keeping all but a few blacks from being hired and succeeding in the firm setting. Finally, this Article explores the implications of these incentives for five commonly proposed tools for diversifying corporate law firms: anti-discrimination laws, race-neutral institutional reforms, diversity education within firms, demand-creation initiatives, and supply-side initiatives to encourage hiring and promotion of black lawyers.
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Reviewing William H. Simon, Should Lawyers Obey the Law?, 38 Wm. & Mary L. Rev. 217 (1996).
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In this Article, Professor Wilkins argues that the traditional model of legal ethics is premised on formalist assumptions about the constraining power of legal rules. Specifically, that model assumes that "the bounds of the law" provide objective, consistent, and legitimate restrictions on zealous advocacy. This assumption, however, is inconsistent with the claim, generally associated with legal realism, that law is indeterminate. Although Professor Wilkins concludes that the law is not radically indeterminate from the perspective of the practicing lawyer, there is sufficient truth in the realist claim to undermine both the descriptive and the normative force of the traditional model. Though reform is therefore needed, proposals concentrating solely on rationalizing the current system of professional regulation and those delegating primary responsibility to individual practitioners are neither fully workable or desirable. Instead, Professor Wilkins advocates a "middlelevel" approach that tailors ethical rules to relevant contextual differences.
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