The leading trade magazine for the big law firm industry is called The American Lawyer. This month, they devote most of a full issue to what they call "The Diversity Crisis." As they define the term, the "diversity crisis" consists of the under-representation of African Americans in the ranks of big firm lawyers, the even greater under-representation of African Americans in the ranks of big firm partners, and the still greater under-representation of African Americans in the ranks of the top partners identified by The American Lawyer itself as handling the largest and most important transactions and litigations. The cover illustration has photographs of some 131 top attorneys identified as "[leading] big law's top deals and suits"; just three are black. (One of those is a partner of Willkie Farr.)
There are no fewer than four feature articles on the subject, covering some 22 pages, plus an intro called "About Our Cover" and an editorial called "Time To Call It Racism?" Guilt pervades. Law firms are said to be "lagg[ing]" in matters of diversity, and their record is called "bleak." Charts show the percentage of African Americans at big law firms dropping from 3.2% in 2004 to 3.0% in 2013, while the percentage among partners increased over the same period, but only from 1.7% to 1.9%. Numerous prominent firms are listed as having not one single black partner. Is this a major problem?
Well, it seems to me that there is a gigantic elephant in the room that one must deal with in order to discuss this issue intelligently. That elephant is that fact that, while African Americans may well be under-represented at the top ranks of the American legal profession, there is one small ethnic group that is hugely, hugely over-represented. That over-represented group, of course, is Jews. The over-representation of Jews is so large that, inherently, all other ethnic groups must be under-represented, which in fact they are. Some groups are more under-represented than others. It is not at all clear to me that African Americans are the most under-represented among the remaining groups, nor does The American Lawyer even address that subject.
According to data here from the Jewish Virtual Library, in 2012 there were 6,671,680 Jews in the United States,constituting 2.1% of the population. What is the percentage of Jews among the partners of the top law firms in the country? In an hour of internet searching, I can't find anyone who has collected current data, but I am here in the middle of this industry. Among partners of the top law firms in New York, I estimate that at least 25% are Jews. And then we have an entire phenomenon here of what once were called the Jewish firms, many of them now at the very top of the profession -- Wachtell Lipton, Skadden Arps, Weil Gotshal, Paul Weiss, Fried Frank, Proskauer, Kramer Levin, Schulte Roth, Stroock, Kaye Scholer, and I could go on. The percentage of Jews among partners at these firms has declined some in recent years, but I would estimate still well exceeds 25% in all cases, and is up to half in some. And at the very top of these firms, running the place, it's still higher. So, American Lawyer, is this a problem?
If you are unfamiliar with the history of Jews in top New York law firms, it is a very fascinating story. Jews immigrated to the U.S. in large numbers in the first half of the twentieth century, concentrated in New York, and after World War II they began flooding into the legal profession. But the large and prominent law firms at the top of the profession very overtly discriminated against the Jews, in a way that no one would dare to discriminate against any ethnic group today. A 2006 article in the New York Law Journal (no longer available online but extensively quoted at jewlicious.com here) has the following story:
Ezra G. Levin, co-chair of Kramer Levin Naftalis & Frankel recalled that a classmate of his from Columbia Law School interviewed at a white-shoe firm in the late 1950s. “It wasn’t possible to tell from the candidate’s name whether he was Jewish or not,” said Mr. Levin. The interviewing partner led the candidate into a conference room festooned with the seals of Ivy League universities and pointed to Yale’s insignia, which bears a Hebrew inscription. “The partner wanted to know if he could read it,” said Mr. Levin.
A now-retired partner of mine, himself a top graduate of Harvard Law School in the early 60s but not Jewish, told many similar stories about the very smartest people in his class, who were Jewish, getting turned away from all the top firms, with the firms being completely explicit in their refusal to hire Jews.
But somehow it seems that the prospective Jewish lawyers just were well-suited to their chosen profession and found another way around the problem. The linked NYLJ article contains some almost unbelievable statistics: By 1960 "Jewish lawyers actually comprised 60 percent of the city’s bar membership." But, since many of the large firms excluded them, "these lawyers were overwhelmingly found in solo practices or small firms." Many of the now-powerhouse Jewish firms were founded in this period of the 1950s and 60s, and started to grow and take the most profitable business away from their establishment competitors. By the 1970s, all firms were hiring Jews in large numbers. From the 2006 NYLJ article:
[Eli] Wald . . . points out that Jewish lawyers perversely benefited from what he calls “the flip side of bias.” He notes that the white-shoe ethos of the first half of the 20th century rejected most Jewish lawyers based on stereotypes of their being aggressive and money-grubbing. By the late 1960s, however, being aggressive and “maximizing profits” have become virtues at large firms, and Mr. Wald says he thinks Jewish lawyers were then able to benefit from the negative stereotype.
And of course, it is a necessary consequence of the great over-representation of Jews in our trade that all other ethnic groups are under-represented. Because a group that is only 2% of the population occupies something like 25% or more of the top law partnerships, that means that white protestants are under-represented by close to 25% as against their share of the population, and white Catholics (such as yours truly) are under-represented by even more. Asians? According to Wikipedia they are now 4.8% of the population, and according to The American Lawyer they are about 6% of big law firm associates and 1.6% of partners. Is this discrimination, reverse discrimination, or just what happens as people seek work that suits them? And then there are ethnic groups that have virtually no representation at all in these big firm partnerships. Middle-Eastern muslims come to mind.
Here's my favorite paragraph from the whole American Lawyer guilt-fest: Buried as a "P.S." at the end of the "About Our Cover" intro, we have this unbelievable admission:
P.S.: For those of us who cover Big Law, we must do better too. ALM [American Lawyer Media] has no blacks among the senior leaders of its national publications, including The American Lawyer. And less than 1 percent of our reporters are black.
Well, has anybody considered the possibility that blacks have just found something they prefer doing with their time? I don't know why Jews occupy such a prominent and disproportionate place in our profession. I do know that the most pervasive, blatant and overt possible discrimination could not keep them out. Given the Jewish experience, and the very extensive efforts of all large law firms today to recruit and promote blacks, isn't it a little hard to blame black under-representation on some kind of hidden discrimination?