The latest edition of Harvard Law Today (Jan. 2006) appeared in my real-world mailbox on Saturday. In it, I learned that HLS Dean Elena Kagan has been assessing “the status of women in law” and is quite concerned that women “still lag behind men in most measures of success.” (see her full remarks in the Leslie H. Arps Memorial Lecture, to ABCNY, Nov. 17, 2005).
Dean Kagan thinks the problem starts in law school, because women law students are less likely to speak in class, or graduate with honors, and give themselves poorer evaluations for the use of legal logic. Then, once they leave law school, Kagan believes that the numbers tell an ominous story:
“While women account for almost 30% of lawyers, they account for only about 15% of general counsels of Fortune 500 companies, 17% of law firm partners, and 23% of federal district and circuit court judges. At law schools, women account for roughly 19% of deans and 25% of tenured professors.” (from ABA 2005 Women at a Glance stats)
Virtually every law student, by the end of their first year, should be able to explain to the Dean why these numbers alone don’t tell even half of the “story.” Kagan says time has shown it is not just a “pipeline” problem – getting enough women into the profession’s pipeline. But, I believe much of the so-called problem is indeed related to how long the female lawyers have been practicing, what areas they have chosen to specialize in, and what other priorities have shaped their career choices and timing.
Many women make choices early in their careers that start them on paths that are far less likely to end up in the CEO’s suite — or the Dean’s chair. Kagan notes that they leave law schools for jobs in non-profits and in government at a higher rate than men. When they do go to law firms, Kagan is concerned that “even just two or three years into practice, women are far more dissatisfied than men with every aspect of their jobs except the work itself.” I say, that’s a healthy sign, in what Professor (and federal court nominee) Patrick J. Schiltz calls our “Unhappy and Unhealthy Profession“ (52 Vand. L. Rev. 871) See our prior post.
Kagan echoes issues raised recently in many parts of the media about whether highly-educated women are “off-ramping” or “opting out”: deciding, once they have children, that they “can’t — or don’t want to — ‘have it all’.”
See Ellen Goodman, “Homemakers, heed opt-out warnings,” Jan.
17, 2006; Boston Globe, “Relaunching Mothers,” by Carol Fishman
Cohen and Vivian Steir Rabin, Jan. 23, 2006; Kansas City Star, “More
women opt out of work, but why?,” by Donna Vestal, Jan. 10, 2006;
Sarah Gilbert at BloggingBaby, the feminist elite talk back, Jan. 25,
However, Dean Kagan points out that Lisa Belkin’s “opt-out revolution” may
be a mirage. Kagan notes that 93 percent of women who leave the general
workforce want to return. She wants law schools to help off-rampers get
back into “successful” career paths, and they surely should. But, I’m
afraid the Dean shares Linda Hirshman’s notion that taking the off-ramp
to raise children (or to take advantage of your spouse’s high income and
the choices it brings) somehow demonstrates that feminism has failed.
Kagan frets that not enough women say that having a “powerful
position” is a worthy career goal. She suggests that the preferences
shown by women may in fact reflect “contingent circumstances”
and “unnecesary structures and constraints that prevent them from
creating the work lives they most desire,” rather than their fully-
informed, mature judgment. She also wonders why so darn many
women go into “public interest” jobs.
My sentiments are far more with “Dani,” an interviewee at Blogging Baby,
who asks: “And how exactly is Hirshman treating women with respect by
accusing them of opting out when they prioritize their families over financial
Dean Kagan points out that many off-ramping lawyers want to go in very
different career directions when returning to work — heading for non-profit,
or solo, or part-time practice. We might suggest that this helps explain,
a least a little, why women as a whole in the legal profession “still lag
behind men in most measures of success” and never seem to quite catch
up after their child-rearing break from the partneship track. (In “Relaunching
Mothers”, Cohen and Rabin point to the improved post-offramping career of
Justice O’Connor as a role model and sign for optimism.)
I’ve been working for equality of the sexes for several decades. If any
real discrimination exists in our profession, it must be eliminated. How-
ever, if women are lucky enough to have, or smart enough to make,
choices that get them out of the most dehumanizing, demoralizing, or
stressful parts of our profession — or out of it completely — I say “bravo.”
If they find their priorities greatly changed — and their willingness to make
tradeoffs increased — once they give birth, we should not devalue their
There are an awful lot of male attorneys who would love to have such
opportunities, such courage, and such common sense.
By the way, over the weekend, J. Andrew Lockhart, a
poet and music teacher, left a Comment at dagosan’s
haiku diary, that said: “p.s. – I used to be an attorney
but left 10 yrs ago after a stroke -best thing that ever
happened to me!
my daughter asks where
we are going …
first snow gone –
this steady need
the three of us
close back then
lingering in bed
has no answers
the deep well, two boys
talk about girls
……………………… by george swede
The Heron’s Nest (Dec. 2005)