BigLaw representatives recently suggested that, to diversify, large firms should seek associates beyond the elite law schools and top-ranked students. This recalls the scene from Casablanca when, after Rick asks why his place is being closed down, Captain Renault states that he is “shocked, shocked to find that there is gambling going on”—as a croupier hands him his winnings.
As reported by Reuters, the remarks were made during a recent day-long “Black Lawyers Matter” conference co-hosted by the University of Houston Law Center, the Southern Methodist University Dedman School of Law, and the Law School Admission Council.
The irony lies in the fact that BigLaw has been gambling exclusively on the elite law schools since forever, knowing that its gamble could never lead to the diversity the large firms purport to seek. At the conference, Anthony Upshaw, Partner and Global Head of Diversity & Inclusion at McDermott Will & Emery, correctly noted that while prestige and ability do not necessarily go hand in hand, members of law firm recruiting teams “are, more likely than not, going to recruit people who look like them.”
The narrowness of BigLaw’s traditional hiring perspective goes unappreciated. I recall a discussion many years ago at a meeting of my firm’s hiring committee about whether to extend an offer to a candidate from an elite school whose transcript was less than stellar. One committee member ventured that earning a “C” at the student’s school would be like earning an “A” at a lower-ranked school. That was not true then, of course, and it is no more true today.
In retrospect, it says something that the committee was looking at candidates outside the top ten percent of their class. Every large firm likely has a percentage of attorneys who were not in that elite group in law school. What most firms have in greater abundance, though, is attorneys who attended the same small cohort of elite law schools, which is one reason why, as Upshaw observed, the attorneys doing the hiring are drawn to candidates from those schools—that is, to the students with whom they share that particular connection.
But simply calling attention to the relatively limited scope of BigLaw hiring may not be sufficient to effect change. Recruiting and hiring are one thing, retention another. All things considered, associates represent a not-insignificant investment of time, resources, and money by a firm. Given the stakes, one might think that firms would have an interest in figuring out a way to find the best associates to fit their needs, rather than using law school admissions standards as a proxy for quality.
Setting aside the dedication of resources necessary to actually recruit and hire associates, the bigger obstacle to diversity might be a legal culture that has embraced the belief that only certain law schools can produce the attorneys that BigLaw needs.
This belief is reflected at the highest levels of the profession. One need look no further than the makeup of the faculties at most laws schools, or the composition of the federal bench. Indeed, the US Supreme Court is a prime example of the extent to which the law announces its elitism. Of the nine justices, eight attended just two law schools: Harvard and Yale. The outlier is Associate Justice Amy Coney Barrett, from Notre Dame—still an elite law school by any measure. It is absurd to suggest that Supreme Court justices should only come from a few of the nation’s two hundred-plus law schools.
Perhaps large firms can figure out a way to address and overcome the elite bias that pervades legal culture. While we rarely look to BigLaw for leadership when it comes to promoting the values of meritocracy, if these firms are truly committed to diversity they will need to be serious about recruiting beyond the top-ranked students at the top-ranked law schools. If they do that, they may, in addition to diversifying their own ranks, create some pressure on other sectors of the profession to mirror their efforts.
Lawrence Friedman is a law professor at New England Law | Boston.
Suggested citation: Lawrence Friedman, An answer to BigLaw’s Diversity Challenge, JURIST – Academic Commentary, December 6, 2021, https://www.jurist.org/commentary/2021/12/Lawrence-Friedman-Big-Law-Diversity-Challenge/.
This article was prepared for publication by Esther Chihaavi, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org
