Editor’s Note: The author of this post is a law professor at University of Tennessee College of Law.
Lucy Jewel, Associate Professor of Law and Supervising Attorney, Appellate Litigation Clinic
As Law School Transparency’s podcast series highlights, women have not yet achieved full equity with men in the legal profession.
Despite the fact that women now make up a majority of law students, women are still underrepresented in the upper echelons of the profession. Women hold only one-third of judgeships at both the state and federal level. Only 18-21% of partners at large firms are women. Female lawyers continue to earn a fraction of what male lawyers earn. And they still face implicit and explicit discrimination in professional workplaces, boardrooms, and courtrooms.
This discrepancy is explained in part by broad societal and cultural norms. Women often shoulder the majority of childcare and housework responsibilities, an imbalance that gives men an edge in the competition for professional success. And, legal culture further propagates stereotypes, impairing the success rate for women in the legal profession.
Implicit bias is a particularly stubborn cultural barrier that prevents equal outcomes in the profession of law, particularly in the context of gender and racial equality. Research on implicit bias speaks to how harmful cultural stereotypes can become embedded in our minds and unconsciously affect perceptions of competence and intelligence, which in turn impact employment decisions. For instance, implicit bias is to blame when a male lawyer rapidly concludes that a female lawyer should not be taken seriously. This sort of bias silently acts to negatively influence outcomes in court, in the work place, and in other social settings.
Solutions to these problems should be aimed beneath the surface of U.S. legal culture. Law’s winner-takes-all mentality supports the generalization that legal culture is a masculine culture. This corresponds to those deeply-rooted gender norms. Men are conditioned to be competitive, unemotional, and tough. Women are inculcated to be more empathic, caring, and soft.
Indeed, practicing law often presents us with bellicose metaphors: attacking the adversary’s position, a discovery battle, a law firm’s war room, etc.
Much has been written recently about so-called toxic masculinity. Research shows that men suffer from unrelenting cultural expectations to be cold-blooded and macho. Here an analogy can be drawn to legal culture. Consider the scores of unhappy lawyers working on the hyper-competitive law practice treadmill. Lawyers experience statistically higher rates of suicide, depression, substance abuse, and family problems than most of their professional peers.
If lawyers are willing to identify harmful cultural attitudes and implicit biases and consciously take action to mitigate them, then collectively we might be able to remedy some of the most intractable inequities in our profession. Fortunately, law schools have the power to reshape legal culture from the ground up. In particular, lessons on client-centered lawyering skills can help reshape the individual mindsets and professional identities of future lawyers, which could then produce a cultural sea-change.
First, we can encourage students to master non-adversarial legal skills with the goal of fostering reparative remedies that work for all sides. Students should be encouraged to think beyond a dichotomous winning or losing framework. While most law schools offer opportunities for practical instruction, legal skills instruction often emphasizes a chess-like approach to law practice, where students are taught to annihilate their opposition. However, active listening, collaboration, and consensus-building are all non-adversarial skills, indispensable for a successful law practice. Skills-based education can also focus on business transactions, client interviewing and counseling, negotiation, and ADR, each of which allows students to acquire integral legal skills that fall outside of law’s adversarial (and masculine) paradigm.
Second, law teachers can engender a deeper understanding of how the practice of law intersects with societal and cultural norms in a way that reinforces racial and gender inequality. All too often law students learn practice skills in a vacuum. They learn how to perform tasks, but they are not always exposed to the nuanced interpersonal and institutional dynamics present in lawyering processes. A critical approach to legal skills instruction would bridge this gap. In addition to learning the skill, students can study how social stereotypes become embedded in people’s perceptions in these practice situations. For instance, when learning how to interact with clients and build client relations, all lawyers (women and men) can be taught skills designed to counteract implicit bias, but can also learn how implicit bias might infect their own perceptions of their clients, other lawyers, and co-workers. One of the best ways to counter implicit bias is to become aware of it, to raise to the conscious surface what was previously in the unconscious.
We can’t change law’s culture overnight, and until we see a cultural shift, full equity seems unattainable. But client-centered legal skills education is one promising tactic. Law schools, with support from alumni, can help students to identify and consider the deep-seated aspects of the profession that continue inequity for women, people of color, and other outsiders.