Would You Rather Be Jewish, or Female?

When I began practicing in New York in the early 1980's there were still vestiges of the "white shoe"/Jewish law firm divide; indeed, Breed, Abbott & Morgan, where I started, and Shea & Gould, where I also worked, were almost caricatures of that divide.

Today, of course, this (properly) feels like ancient history, but Eli Wald, a law professor at the University of Denver College of Law, has undertaken a study revisiting the history of the divide and how it was eventually surmounted, with an eye to the question of whether there are lessons in that history for today's challenges of diversity in large law firms—both with respect to minorities and to women.

The professor is not hopeful: 

"Indeed, his research into the history of Jewish lawyers and firms in New York from the late 19th century to the present seems to leave him extremely pessimistic about the prospects for minorities and women today."

First, let's recap this history.

For essentially the first half of the 20th Century, the elite corporate New York bar was upper-class white Ivy-League educated Protestant.  (Cahill Gordon was the exception:  A Catholic firm.)  Jewish firms were plenty numerous—Wald calculates that 60% of the city bar's membership in 1960 was Jewish—but even such powerhouses today as Paul Weiss, Fried Frank, Kaye Scholer, Stroock-Stroock, Weil Gotshal, Skadden, and Proskauer were marginalized and focused on (perceived as) distasteful, down-market practices such as real estate, litigation, and bankruptcy.  Protestant lawyers, 18% of the total, handily accounted for more than half of those at large "corporate" firms.

The practices Jewish firms specialized in, theorizes Wald, gave them a "protected" ecosystem in which to develop expertise and, when corporate America came calling for more sophisticated legal services in areas such as litigation, antitrust, and M&A, the Jewish firms were ready to respond while the white-shoe firms were caught temporarily flat-footed.  Wald sees the establishment firms' willingness to hire Jewish lawyers as driven by the competitive realities of the marketplace—which changed in the 1970's.

When Wald asks if this experience holds out hope for women and minorities, he comes up empty-handed.  In a world of globally competitive firms racing to seize even the slightest comparative advantage, long gone is the opportunity for women and minorities to cultivate "protected practice areas."

Worse for women and minorities, the "flip side of bias" that perversely ended up working in favor of Jewish lawyers will do women and minorities no favors.  "Flip side of bias?"  Yes:  If Jewish lawyers were viewed as being overly aggressive and money-grubbing, that could suddenly become a powerful attractor to firms determined to toughly represent their clients and make money doing it.

But stereotypes about women (preoccupied with work/life balance, never going to be as dedicated as men) and blacks (lazy, intellectually inferior) will never redound to their advantage, posits Wald.

So then, pretty bleak, eh what?

Not so fast.

Discrimination based on presumptive stereotypes deprives firms of potential talent.  Need we be reminded that women are still 50% of the population?  You might as well write off everyone whose birthday falls on an even-numbered day.  As one of a couple of dozen Jewish partners Wald spoke to who joined large firms between 1945 and 1962 put it:

"You sort of had no choice, even if at your heart you were racist," one of Wald's interviewees told him. "You had to understand that the economics of the business could no longer support your racism."

And doesn't that indeed say it all?  "Economics does not support racism."

One or more smart firms are going to figure out how to incorporate women and/or minorities into their ranks in ways that will endure, and gain access to an inexcusably neglected talent pool thereby.  And who would suggest that such a competitive advantage will not soon be mimicked by less progressive, but equally profit-obsessed, peer firms?

I'm far more optimistic than Prof. Wald—not because I always trust people to "do the right thing," but because I always trust people to "do the right thing [for their self-interest]."