Wednesday, November 21, 2012
With at least one person arguing that any recent surfeit in law graduates is due to law schools' "exploitation of the career aspirations of women in particular," Professor Karen Tani's article, Portia's Deal, published in Chicago-Kent Law Review and available in draft on ssrn, reminds us that women's aspirations for legal careers is not a recent phenomenon.
Tani (pictured) argues that the New Deal "offered important opportunities to women lawyers at a time when they were just beginning to graduate from law school in significant numbers." Tani focuses on three women: Sue Shelton White, Marie Remington Wing, and Bernice Lotwin Bernstein. In her compelling article, she discusses their careers as well as the constitutional trenches of the New Deal.
According to conventional narratives, these women are not significant. They did not stand up before the Supreme Court and defend New Deal legislation. They did not become legislators, judges, or famous academics. Yet, their stories have much to offer us. White, the fiery suffragist who died too young, encourages us to consider the difference that gender made to the high‐stakes interpretive and administrative work of New Deal lawyers. White’s biological sex did not dictate the style or quality of her lawyering, but there are hints that her path to the New Deal—a path that had everything to do with gender—affected the way that she interacted with colleagues and analyzed legal questions. Wing, the “hell‐raiser” from Cleveland, inspires us to think more deeply about power and place. Regional outposts of the federal government were not as desirable to young, male graduates of Harvard Law School, and yet, as Wing discovered, they were the sites of political influence and vital legal work. Bernstein is perhaps the most intriguing case study, since in pedigree and placement she was the female equivalent of one of Felix Frankfurter’s “Happy Hotdogs.” Unlike most of her male counterparts, who used the New Deal as a launching pad for celebrated careers in academia, private practice, and politics, Bernstein remained an administrative lawyer for decades. We need more information about the costs and benefits of this career trajectory, both for the individual and for society.
Together, the lives of all three women provoke one final question. In the area of social welfare and elsewhere, much law‐making happens neither at the top, with Congress and the appellate courts, nor at the bottom, with the people. It happens somewhere in between, with ground‐level decision‐makers and mid‐level bureaucrats. Who occupied that level of decision‐making in 1935? Who occupies it now? Much of the content of today’s law is their doing.
Tani's analysis is certainly worth considering when we talk, even implicitly, about who is entitled to become an attorney.