Flash! Kaiser’s Troops Invade Belgium! (a series)

Well, guess what?  The National Association of Women Lawyers has just discovered that the demands of child-bearing and holding a family together are (i) murderously difficult, (ii) incompatible with life in BigLaw (i.e. an AmLaw 200 firm), and (iii) especially hard on women who would like to have children before the odds of having a Down’s Syndrome child hit 50/50.  They’ve just released their seventh annual “Survey on Retention and Promotion of Women in Law Firms.”

A couple of observations: 

First:  Their sample was the AmLaw 200, the 200 largest law firms in the United States.  All of 56% of the firms surveyed responded, which works out to be something like 112 firms.  That’s like evaluating the federal employment experience by surveying the president and his cabinet members.  It’s the equivalent of Field Marshal Haig trying to run the Western Front while never actually visiting the trenches, or even sending his staff officers up very much.  Even if they’d surveyed the 750 largest firms in the country that would still capture only a tiny slice of the total population of lawyers in general or female lawyers in particular.  This survey, in other words, is fascinating for the sorts of people who join (a word at which I get the involuntary shivers) outfits like the National Association of Women Lawyers; for the rest of the universe of lawyers, women, and women lawyers, not so much. 

Second:  In only one place does the survey mention the 600 pound gorilla in women’s lives, viz. the biological reality of child bearing, and then only in passing.  The study is full of data on women being “represented” in this, that, or the capacity within firm structures of sundry types.  [Why is it that a person, any person, who happens to have been born with a particular set of genitals is deemed to be able to “represent” everyone else also born with that same set?  I am not “represented” by any given redneck in whatever position you choose to name, nor by any left-handed person, nor by any person above a certain height, nor by any person with a particular educational background or holding a specific license.  Yet studies like this assume that anyone wearing a bra is somehow a proxy for everyone else wearing one.  I don’t understand.]  But there is zero examination or even mention of things which any wife or mother — lawyer or no — would find curious:  for each female lawyer in an “of counsel” position who is considered to be or not on the partnership track at her firm, how many children does she have? how old was she at the first birth? is she married to the father of her children? how old was she when she married the father? was this her first or a subsequent marriage? is her husband also a lawyer at a BigLaw firm? how old are her children? do any of those children have special needs?  Each and every one of those questions is going to have an enormous impact on how much of herself a woman can or is willing to give to a law firm.

Third:  The survey mentions “anecdotal” indication that women in “low status” positions like “staff attorney” (of which set women comprise 70%, the only category in which they are a majority) may enjoy lower stress, a better work-life balance, etc.  Really?  What sorts of follow-up questions would that sort of “anecdotal” evidence suggest to someone with the investigative smarts of, oh, say, a high school journalist?  Ummmmmm . . . did you choose to be a “staff attorney”?  For married lawyers, was this a choice which you made unilaterally, or did you and your husband “study on it” together and make the decision together?  Have you attempted to get out of the role of “staff attorney” at your current firm?  At another firm?  But this is what the survey contents itself with:  “Anecdotally, we understand some women staff attorneys are pleased with their situation: they work in a pleasant environment with intelligent colleagues, earn good wages, and can achieve the kind of work-life balance that simply isn’t possible for partner-track lawyers and partners in the large firm environment. Some even view their exclusion from a partnership track as beneficial, since they don’t face the same competitive stresses as associates and don’t have to concern themselves with firm ‘up or out’ policies.”  Well now.  No kidding?

Fourth:  The survey is full of calls for lawyering to become different, to be made more so that female lawyers can have it all.  The survey assumes without any showing that male lawyers can have it all.  This assumption is transparently bogus.  I still recall a classmate of mine who worked at one of the firms surveyed during a summer.  There were well over 150 partners at that office; not a one of them was married.  Not.  One.  Partner.  They were either divorced or had never married.  Since the assumption of this survey is that measurable outcomes ought to be indistinguishable among any sample of lawyers at BigLaw, irrespective of non-lawyer personal attributes, why is there no reporting of their “control group”?  It seems to me that anything which aspires to any sort of statistical validity ought to cite a control group.  What are the measurable outcomes for single males, for married males, for fathers?  What are the salary and bonus figures for male lawyers whose areas of practice, billing loads, pro bono activities, and family lives mimic their female colleagues’?  Anyone ask any of those fathers when the last time he saw his daughter’s softball team play?  When the last time he went camping with his boys?  Yeah, I didn’t think so either.

Statisticians refer to “levels of aggregation,” which is the technical expression for the analytical evaluations used to avoid the sort of meaningless results which you obtain when you lump dissimilar things together based on one or a few measurable attributes.  Income levels for all men and all women tell you nothing.  Even “all male college graduates” and “all female college graduates” tells you nothing because you’re comparing STEM fields, which are both self-selected and overwhelmingly male, with people who go through four years at the school of “education,” which is likewise self-selected and overwhelmingly female.  And so forth.  This survey has an enormous problem with levels of aggregation, a problem brought about in part through its minuscule sample size.

The survey assumes, in other words, that child bearing and family existence have indistinguishable effects on the workplace choices and outcomes of both males and females.  This is simply not the case and never has been, either in BigLaw, law in general, or any other occupation.  Whether you’re a farmer or a cabinet minister or a field geologist or a lawyer, someone has to take care of that baby.  Your average mother has been terrified now by years of horror stories of nannies, paedophiles, baby snatchers, and so forth.  She’s been guilted up for not breast-feeding.  She can’t stand in the line at a grocery store without having pictures of Hollywood trollops bragging about how they lost 45 pounds six weeks after giving birth to twins.  The simple truth is that for most families, under most circumstances, the voluntary choice of all parties is that the mother becomes the primary caregiver.  What this survey is complaining about is the workplace reflection of those voluntary choices made by extremely highly educated, accomplished, and well-paid (by any objective standard) women.  But those choices don’t match their political narrative, so they must be condemned.

Even moreso than the assumptions about family life and physiology, the biggest problem with the survey is once again an unspoken assumption.  It assumes that the AmLaw 200’s clients will permit those firms not to have a 24/7 approach to lawyering; that they will suddenly stop wanting everything by Monday 9:00 a.m. when they call at 2:15 p.m. Friday; that they will magically cease to have legal problems or opportunities which implicate sixteen distinct fields of law in 23 of the 50 states and four foreign countries; and, that those problems and opportunities can be made — from the law firm’s end of things — to have timelines and windows of opportunity that offer the kind of human existence which the vast majority of people, male and female, want for themselves.  Errrrmmmm, guys gals, I don’t know if anyone has explained this to you recently, but we’re a damned service industry.  Either we provide the service our customer wants or that customer is going down the street to find him someone who will.  You can lament the fact that 47% of law skool grads are women but only 45% of new associates are female all you want.  You can bemoan that only 30% of BigLaw considers its “of counsel” positions to be partnership-track eligible (even though female “of counsel” earn 95%+ of what their male counterparts do).  But you cannot change the world in which BigLaw has to keep the doors open.

The survey’s findings and exhortations assume, in other words, a universe of facts that does not exist and will never exist.  The survey concludes that female lawyers are exiting BigLaw in droves, and the higher up they go the more likely they are not to be there the next time you look.  The survey does not examine in any meaningful depth the simple question of why that should be so.  In short, this survey is a very nice illustration of the sort of irrelevance which results when you have a bunch of joiners artificially defined by a single attribute examine a tiny sample of women who have damned near nothing in common with 99% of other female lawyers except (i) a law license, and (ii) a vagina.

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