Angela N. Johnsonwww.womenaslawyers.wordpress.com

Women in the Legal ProfessionDisparity in Law School,

Inequality as Lawyers

Why Care About Women’s Inclusion in the Legal

Profession? Like women in congress, women lawyers fought for

women’s equality.

Workplace Discrimination

Inclusion to Employment Regardless of Gender

Voting Rights

Clara Foltz, one of the first women lawyers in the U.S. established the public defender system and legal aid clinics.

Women comprise the majority of public interest lawyers.

• How long have women been included?

• How difficult was it for women to become lawyers?

• What were reasons for excluding?

• Why care about these early pioneers?

History of Women as Lawyers

Notable Firsts Margaret Brent -1638

First woman to practice law (before licensing requirements)

Mary Magoon – 1868 First woman to open a law office. Permitted to practice at county-level.

Myra Bradwell – 1869 First woman to be denied a law license.

Arabella Mansfield – 1869 Granted a license to practice law at just 23 years old. First woman officially recognized lawyer.

• First woman to apply for a law license in the U.S.

• Illinois law giving married women their own earnings (other states subsequently followed).

• In examining the Bradwell’s struggle to obtain a law license, we learn the excuses for women’s exclusion.

Prior to applying for a law license, Myra Bradwell published the highly regarded law journal, Chicago Legal News which was respected by male law practitioners.

“By reason of the disability imposed by your married

condition” (Since women experienced civil and legal death upon

marriage, the court in Bradwell v. Illinois (1869) used this rationale for denying her law license)

Denying Women’s Inclusion to the Legal Profession:

“The Paramount destiny and mission of woman (sic) are

to fulfill the noble and benign offices of wife and

mother. This is the law of the

Creator” (Justice Bradley’s Concurring Opinion, 83 U.S. 130 (1873)

“Women were limited to their functions of womanhood,

based on their weakness and inability to be rational,

maintained by ‘the laws of the creator’” (Meg Gorecki referring to the United States Supreme

Court decision in Bradwell v. Illinois (1973))

• Are women really in the majority?• What proportion of law students are

women?• Are their experiences different?• Are women more likely to drop out?• Do women remain in the legal

profession post-graduation?

Women in Law School

Page 191: “And law schools now admit more women than men.”

http://oregonstate.edu/cla/applying-law-school

?

?

?

Female First Year Enrollment for 2001: 49.4%Female Total JD Enrollment for 2001: 49.0%Source: ABA “First Year and Total J.D. Enrollment by Gender, 1947-2008”

Where did this rumor begin???

?

“Entrants” are not equal to “Applicants”

1947-1

948

1949

-1950

1951

-1952

1953

-1954

1955

-1956

1957

-1958

1959

-1960

1961

-1962

1963

-1964

1965-1

965

1967-1

968

1969

-1970

1971-1

972

1973

-1974

1975

-1976

1977-1

978

1979

-1980

1981

-1982

1983

-1984

1985

-1986

1987

-1988

1989

-1990

1991

-1992

1993

-1994

1995

-1996

1997-1

998

1999-2

000

2001

-2002

2003-2

004

2005

-2006

2007

-2008

2009

-2010

-

5,000

10,000

15,000

20,000

25,000

30,000

35,000

1L Enrollment in ABA Accredited Law Schools

First Year Male Enrollment First Year Female Enrollment

1947

-1948

1949

-1950

1951

-1952

1953-1

954

1955-1

956

1957

-1958

1959

-1960

1961

-1962

1963

-1964

1965

-1965

1967

-1968

1969-1

970

1971-1

972

1973

-1974

1975

-1976

1977

-1978

1979

-1980

1981

-1982

1983

-1984

1985-1

986

1987

-1988

1989

-1990

1991

-1992

1993

-1994

1995-1

996

1997-1

998

1999

-2000

2001

-2002

2003

-2004

2005

-2006

2007

-2008

2009

-2010

-

10,000

20,000

30,000

40,000

50,000

60,000

70,000

80,000

90,000

100,000

Total JD Enrollment in All ABA Accredited Law Schools

Total JD Male Enrollment Total JD Female Enrollment

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 201043.00%

44.00%

45.00%

46.00%

47.00%

48.00%

49.00%

50.00%

51.00%

Women Applicants v. Admitted StudentsPe

rcen

t of a

ll A

pplic

ants

/Adm

itted

Stu

dent

s

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

49.11% 49.19% 48.65% 47.76% 47.33% 46.74% 46.05% 47.22% 47.18% 46.74% 45.88%

66.70% 66.34%

61.23%

56.05%54.03%

56.89%60.61%

63.94% 64.15% 65.48% 66.45%

% of Women and Men Who Apply and Are Admitted% Women Admits % of Men Admits

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

3.09%2.78% 2.76%

3.38%3.70%

4.48%

5.91%

4.96%

5.65%

4.16%4.49%

Disparity Between Men and Women Admits (Based on % of Applicants)

Disparity Between Men and Women Admits (Based on % of Applicants)

Women earn lower LSAT Scores but apply with higher undergraduate GPAs.

Emphasis on LSAT score hinders women applicants’ competitiveness.

~A Forked River Runs Through Law School Clydesdale, 2004

“For women law students, the hardest part of the journey is

being allowed to begin”

In a study of law student classroom participation, the student body makeup was 46% female and 54% male; yet “the average number of times that a male student spoke in class was 38% higher than the average number of times that a female student spoke in class” (Bashi and Iskander 2006, 405).

In classes with greater overall class participation, the gender disparity was even greater; men were 52% more likely than women to speak in class.

Among student volunteers to participate in classroom discussion, male students volunteered to speak 40% more than female students (Bashi and Iskander 2006, 406).

The average number of times that a male student is asked to speak without volunteering is 17% higher than the average number of times that a female student is asked to speak without volunteering (Bashi and Iskander 2006, 407).

A female professor observed that while male students tend to jump to interrupt lectures, female students tend to preface their questions with self-depreciating caveats such as, “I’m sorry, I didn’t get this …” The professor even recalls one student who consistently stated, “I’m really stupid, but . . .” prior to her questions yet she wrote an outstanding exam in the class (Bashi and Iskander 2006, 407-408).

“Faculty members did not report that women students are less prepared for class; one female professor noted that while volunteers in her class are disproportionately men, male and female students demonstrate the same level of preparation, confidence, and intelligence when she calls on them without warning” (Bashi and Iskander 2006, 408).

Women in Law School

• Earn higher law school GPAs• Speak less frequently in class• Volunteer in fewer extracurriculars

• Hinders resume building• Less likely to seek out-of-class time with professors• Hindered networking and professional development

Despite applying in equal numbers, women comprise 44.3% of law review members but just 33% of Editors in Chief

Source: Ms. JD, Women on Law Review, a Gender Diversity Report, accessed February 24, 2011

Women on Law Review

37%

63%

Law Professors

Women Men

Women law professors improve women’s experiences as law students (the greater the portion of women professors, the greater equality for women law students)

45%55%

Clinic & Skills Courses (non-tenure, low prestige)

Women Men

1981

-1982

1983

-1984

1985

-1986

1987

-1988

1989

-1990

1991

-1992

1993

-1994

1995

-1996

1997

-1998

1999

-2000

2001

-2002

2003

-2004

2005

-2006

2007

-2008

0.00%

2.00%

4.00%

6.00%

8.00%

10.00%

12.00%

14.00%

1L Attrition Rates for ABA Accredited Law Schools

1L Male Attrition (% of all male students)1L Female Attrition (% of all female students)

• Are women remaining in law post-graduation?• What proportion of judges are women?• Is there a “leaky pipeline?”• Future Research: “Where are all the women lawyers

going?”

Women in LawPost-Graduation

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

43% 43% 44% 45% 45% 45% 46% 48% 48% 49% 50% 49% 48% 48% 47% 46%

25% 26%30%

27% 28% 29% 30% 29% 29% 28% 29% 30%33% 33% 34% 32%

Women in Law Law Graduates Vs. Working Lawyers

Law Degrees Awarded Women Lawyers

Source: ABA JD Degrees Awarded and U.S. Census Employment by Gender

http://ms-jd.org/files/ms._jd_lr_8.23.2010.pdf

• How many judges are women?

• Do women judges rule differently?

Women as Judges

Women Candidates and Judicial Elections

“Status as incumbents helps men in funding their campaigns, whereas women incumbents receive no similar benefit. Incumbency correlates in a statistically

significant way with men’s campaign contributions. In contrast, it has no statistically significant effect on the contributions reported by women. Also, campaign spending (beyond a certain level) has less impact on women’s vote

shares than on men’s” Id. at 467.

Having trial or appellate court experiences helped men convince voters to support them but women received no similar electoral boost.

Less than 60% of the male candidates had judicial experience while 83% of the women were either current state court judges or had been a trial or appellate court judge.

Women raised substantially more money than men, and men, as a group, spent about 70% less on their campaigns than did their female counterparts. Yet only 1.4% separated their mean shares of the vote.

“This means that having stronger credentials and more money, women were unable to parlay electoral assets into sizable electoral gains.”

http://www.nawj.org/us_state_court_statistics_2010.asp

Women’s Representation in State Courts

Women on the Federal Bench

Having a female on a three-judge panel federal appellate case increases the likelihood it will find in favor of the plaintiff by 86% in sexual harassment cases; 65% in sex discrimination cases.”

Source: (J.L. Peresie 2005, 1776).

President Clinton proved that increasing women on the federal judiciary doesn’t mean sacrificing quality appointments!

He appointed 111 women to the judiciary, many receiving higher American Bar Association ratings than male appointees.

Source: Ehrlich and Jurik The Organizational Logic of the Gendered Legal World and Women Lawyer’s Response. 2007.

Barack

Oba

ma

George

W. B

ush

Bill Clin

ton

George

Bush

Reaga

nCart

erFord

Nixon

39

252 267

156

347

217

64

226

3671

111

36 31 401 1

Presidential Appointments by Gender

Male Appointments Female Appointments

Court Total Judgeships % Women

U.S. Supreme Court 9 33%

U.S. Court of Appeals 179 30.2%

U.S. District Courts 677 28%

State Final Appellate Courts 359 31%

State Intermediate Appellate Courts 935 31%

State Trial Courts 10,654 24%

Sources: National Association of Women Judges, 2010 United States Supreme Court Women Judges and U.S. Courts Federal/Article III Judgeships.

The Leaky Pipeline to the U.S. Supreme Court

Required “Prerequisites”

• Formal Requirements (Admission by “Sponsors”)

• “Feeder” Court Clerkship Experience (where women only comprise 46% of clerks) which requires:

• Elite law school

• Law Review and other Accolades

• Research for Key Professors and Mentorships

• Elite “Gatekeeper” Firm Employment

• Years of Experience (a/k/a Survival of the Fittest)

• Repeat Litigants (recognition as an elite litigator increases future cases in the court)

Source: The Attorney Gender Gap in U.S. Supreme Court Litigation. Judicature, Volume 91, Number 5.

Men67%

Women33%

2010-2011 Supreme Court Clerks

Justices Roberts, Sotomayor, Breyer, Kagan, and Ginsburg: 2/4

Justices Alito and Thomas: 1/4

Justice Alito: 0/4

The “Evolving enlightenment” of the Supreme Court justices continues to dawn and grow. “I

strive to make women’s participation at our Court and in all manner of legal work, not ‘momentous,”

but ‘commonplace.’”

~Justice Ginsburg, 1998 Wilson Lecture at Wellesley College

U.S. Supreme Court cases studied between 1993-2001

• Women represented 13.91% of oral-argument litigants and 25.52% of “on brief” litigants.

• 23% of male litigants and 2% of female litigants had over 26 years of bar experience.

• 38% of the oral-argument litigants were previous U.S. Supreme Court clerks and over 60% of the “on brief” litigants were clerks.

Source: The Attorney Gender Gap in U.S. Supreme Court Litigation

The attorneys debating the nation’s most important legal questions

(and the judges who decide them) are predominantly white male.

O’Connor’s Impact •Ruled favorably for plaintiffs on gender discrimination cases 66%, often breaking precedent by influencing male-colleagues decisions.

•Justice Rehnquist increased his support for gender discrimination claimants from 25% to 50%.•Justice Burger from 32.1% to 50%•Justice Stevens from 57.1% to 83.3%•Justice Byron White 69.8% to 91.7%.

Does it matter?

•Justice O’Connor and Justice Ginsburg agreed in only 52% of the decisions in the 12 years they served together (1993-2005).

•Agreed in 90% of gender discrimination and abortion cases.

“A wise old man and a wise old woman reach the same conclusion”

~ Originally stated by Minnesota Supreme Court Justice Jeanne Coyne, restated by Justices O’Connor and Ginsburg

•Ledbetter v. Goodyear Tire and Rubber Company (2007)•AT&T v. Hulteen (2009)

• Both narrowly finding against allegations of workplace discrimination.

• Ginsburg: “I am convinced that Justice O’Connor would have sided with me in the Ledbetter case, shifting the Court’s ultimate decision to favor complainant Ledbetter.”

O’Connor’s departure and gender discrimination cases

“The Court needs another woman.” ~Justice Ginsburg

USA Today, May 5, 2009.

The Last Woman Standing

•Apparent struggle with colleagues during oral argument more apparent after O’Connor’s departure.•Safford Unified School District #1 v. Redding (2009).

• 13-year old girl subjected to strip-search.• Court held that student’s 4th Amendment Rights were

violated, but school officials were entitled to qualified immunity.

• Ginsburg’s public disgust by Justice Stephen Breyer’s inability to realize the “traumatic effect that an adolescent girl would experience when forced to strip down to her underclothes in front of school administrators.”

Newcomers improve the profession by bringing new perspectives.

Exclusion sends negative signals to women about their own careers.

Reflective Justice increases public confidence.

Women judges are more likely than men to rule favorably to women in gender harassment and discrimination cases.

Reasons for Women’s Inclusion

www.womenaslawyers.wordpress.com

“Researching Women as Lawyers”

Sharing findings with others in convenient, concise, summaries. Getting the word out about the findings/problem – increase the attention on the issue.

Blogging as a professional development tool.

5-minute clip (law school, SCOTUS, gendered-judging)http://abcnews.go.com/WNT/video/chat-women-supreme-court-11976773

11-minute clip (with video of Sotomayor and Kagan)http://abcnews.go.com/WNT/video/sandra-day-oconnor-ruth-bader-ginsburg-womans-perspective-11983540

Justices O’Connor and Ginsburg on the U.S. Supreme Court, their experiences, and what their roles have meant for women in

the legal profession.

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