First!

Number 2 here, well played Number 1.

Yeah, let's make it even harder for "non-diverse" (i.e. white male without disability) law students who aren't at the absolute top of their class to get a job, while hiring more people who are incapable of doing work.

Great idea, client.

That is a racist and sexist policy. Giving preference to firms based on their attorney's race and sex is blatant bigotry and discrimination.

The clients should be worrying about who the best attorneys are, not not their racial/sexual profile.

It is beyond ridiculous that this occurs in 2008.

"pale male" - i like it.

"then" not "than" please

I imagine that the listed corporations are doing this for PR reasons. Why wouldn't they want the "best" legal representation, regardless of background?

White Obama would have been a Fordham Law grad.

I've generally assumed that clients hire law firms to get good advice and good advocacy at a reasonable price.

I'm not sure how identity politics figure into that, but Sager seems to be trying pretty hard to argue that it does.

9: how many times must we re-hash this argument? Obama graduated magna cum laude from HLS, which means he was in the top 10%. It's valid to surmise from that accolade that his incoming 1L numbers were as solid as anyone else's.

"But the goal is clearly to push clients towards retaining law firms that place an emphasis on gender and racial diversity." I don't get it... who is doing the pushing in this sentence? It was the clients themselves that published this list, yes? So they are trying to push themselves?

Not to mention president of HLS LR.

Reverse discrimination is out of control.

Ha, this is dead on!! A few months ago I interviewed at an AmLaw 100 firm and was told (in a roundabout way) that my gender would be a factor in their hiring decision. Apparently many of their clients are now requesting data on how the firm staffs their cases to ensure that there were enough women/diversity on their matters. I got the strong impression they were going to start hardcore recruiting female laterals to reduce their male to female ratio.

14: There is no such thing as "reverse" discrimination.

Discrimination is discrimination.

September 4th 9:00 A.M. DuPont board to adopt official "Down with White Boys" policy, Tom Sager excepted, I suppose.

There's nothing wrong with this list. If there are bad lawyers on this list, companies will stop using them pretty quickly. If there are good lawyers on the list, so much the better.

Does anyone buy his argument? Why would you assume that you're more likely to win in front of a minority judge with a minority lawyer? Doesn't that presume, even in a prejudicial manner, that the two think alike? Or that the lawyer's background matters to the case, rather than some standard of legal thinking?

19 - Get a clue. This isn't about winning, this is about "diversity".

Smart companies want the best people to work for them, regardless of race and gender. DuPont is obviously not a smart company. I am selling all my stock in their company.

20: interesting point. I wonder what the shareholders think of this decision. If it erodes investor confidence, I think they'll reveal their true colors quickly.

What's the difference between a woman lawyer and a pit bull?

Lipstick.

Is this even legal? The whole thing seems to violate civil rights laws.

20: you're missing the point. Smart companies want the best people to work for them, but smart minority applicants are often passed by because of the stratified, hegemonic identity complexes that exist, or at least existed, in this country. These policies allow us to overcome prejudicial tendencies and restore the level playing field.

Thank you 7. Good lord, you're dumb, Elie.

20- Get a clue! Dupont is the company. Thus, it can't sell stock in "their company."
In any event, the proper possessory pronoun is "its."

This is the best you've got? Clients have been saying this for years. And it's not going to change.

27: Clients haven't been saying this for years.

Right, 24. Grades and test scores don't help with that at all... nor does lowering the bar, because grades and test scores are racist too.

19 - The logic is based on a realist view of law and policy making. That is, the view that we are all inately biased based on our background and upbringing. That we are not unbiased robots, but very biased human beings.

It is no secret that judges and juries favor advocates that they trust. It is also no secret to social science that human beings naturally trust people they relate to, and generally speaking, we relate well to people that remind us of ourselves.

So yes, generally and broadly speaking, a female asian judge will probably trust a female asian lawyer more than she would another race and gender of lawyer, because she relates to her better. As much as she tries to be fair and balanced, it is all but impossible for human beings to behave as such.

Y'all all crazy. Fact o da matter is like this: have you seen the people that make up juries? Smart, qualified, and academically gifted lawyers have very little to offer with reaching them. Joe Jamail is famous for huge jury verdicts and not for his mediocre grades. If a company believes its chances of success increase with 'diversity', it should have the prerogative to hedge its bet accordingly.

29: Precisely. I think it can be persuasively argued that those barometers are faulty. The success of some applicants, both minority and majority, can depend on more useful factors, and these policies allow us to celebrate diversity while providing such a fair, equitable playing field.

30: but why couldn't you argue the exact opposite -- that the female Asian judge would be more wary of her bias when approaching the rare(r) female Asian advocate? She might want to avoid accusations of tokenism, no?

When a company demands that a law firm engage in racial, ethnic, and gender discrimination, it is demanding that it violate federal law. See this article [link: http://www.law.com/jsp/article.jsp?id=1173776613828] and this paper [link: http://www.americanlawyer.com/pdf/levey.pdf].

When a client asks a lawyer to violate the law, the lawyer should refuse to do so. One hopes a firm would do so if a company demanded only white male lawyers on its team; the law and principle are no different when the client demands politically correct discrimination.

Sincerely,

Roger Clegg
President and General Counsel
Center for Equal Opportunity
703/442-0066

9 and 11 - Both of your arguments are flawed.

9 - Harvard's ranking makes it very difficult to determine whether Obama's race was a factor. The URM with the 167 and the URM with the 175 can both go to HLS. The URM with the 167 will not likely choose a school of lesser prestige, but the URM with the 175 was headed to HYS in the first place. Thus, there are too many variables in play to validate such a broad statement.

11 - Obama's performance in law school has absolutely no correlation to his undergrad GPA or LSAT score. If such was the case, law students could just interview with firms after receiving an admission letter to their V14. The countless students with stellar GPA's and LSAT scores that have not succeeded in law school are a testament to the lack of such correlation. This is not limited to academia. cf. Brien Taylor

Solution: Obtain Obama's undergrad GPA and LSAT score. Then hang self.

30: In fact, it could be argued as persuasively that the best advocate would be a identity neutral one. If the judge doesn't have any reason to swing one way or the other because of identity, then the judgment is a fairer one.

9: Obama did not mark his race on his HLS app

34: with all due respect, I don't think that one of us understands what the corporations are asking the firms to do. As I understand it, this is nothing more than a widely-circulated list of firms that meet certain diversity benchmarks. How is that tantamount to asking the firms to openly discriminate?

Good arguments above against this policy. Not to mention their "justification" is misguided. What is the percentage of corporate lawsuits that go to trial and what percent does litigation make up in a particular client's cases. I would assume that litigation makes up less than 50% of most firms business with corporate clients and only 5 to 10% of these litigation cases actually will go to trial.

Further, you don't need a law firm full of diversity. You only need one good litigator from each "diverse" background to parade them in front of a jury, as the client would have you.

Wait, someone cares about diversity and it may impact hiring? I've never heard about that before. Can we get follow up posts?

When are people going to wake up??? This is 2008, your race and gender will not prevent you from doing ANYTHING in this country. If you are a talented and motivated individual, you can accomplish ANYTHING in this country.

Thank you, Roger Clegg. I'm so happy that someone is fighting for the oppressed white man. (Along with Roy Den Hollander, that is.)

39, great points all. feel free not to request diversity on the legal teams you hire.

This was a good post Elie. Concise, to the point, just the right level of commentary / humor.

Wait, wait, wait. Hold on, Elie. I thought you were going to post a "counterargument" after the jump. Is the best you can come up with as a "counterargument" the portion of a sentence you wrote stating that "there is a serious discussion to be had about whether any firm should be hired just because the firm has some arbitrary number of female or minority attorneys?" That's it? Really? A partial sentence admitting that a discussion should take place before you attempt to discredit the sentiment? Were you sick the day they taught advocacy at law school? Or are you so opposed to the idea that there are meritorious arguments on the side you disagree with that you cannot bear to list one or two of them?

Elie -- you are pathetic.

If DuPont is looking for a diverse trial lawyer stable, more power to it. Do I think that that will save them if they have a clear liability case with horrific injuries-no. It seems to me that listing the diverse friendly firms is their right. Of course, if they choose lawyers based upon diversity alone, the representation will be subpar; the results poor and the bottom line impacted. Then the Board will fire Mr. Sager and there will some new guidelines with additional "qualities" that are to be considered (i.e. number of jury trials tried to verdict in the past 5 years etc.) All of this stuff is cyclical. We are in the age of Obama and nobody wants to miss out on that train as it pulls away from the station.

None of the firms on the list are large law firms. These companies will obviously still have to hire the Amlaw 100 firms for their big cases.

The train wreck that is Elie.

To 38: There's some history here, and while this latest salvo does not appear to be demanding discrimination, there's no doubt that this is what many clients want. The Levey paper I cited (in 34 - you may have to cut and paste the link for it to work) details this; see also this more recent article: http://www.law.com/jsp/ihc/PubArticleIHC.jsp?id=1202422926103

Let's assume that the whole "aesthetically diverse lawyers make better advocates" argument is false. Is there any other self-interested reason for Corporate Clients to want their law firms to be aesthetically diverse?

50: PR, maybe? I'm also confused.

Please ignore my arbitrary punctuation.

-50

Obama has admitted that he was a mediocre student in high school and at the junior college he attended (Occidental college in LA). Somehow, he miraculously transferred from junior college to Columbia. I'm sure that his minority status played no part. After all, don't all sub-par community college students get into Columbia?? Following his less than stellar community college performance and transfer to Columbia he made it into Harvard law school. I'm sure that race played no factor in that as well. I mean, come on! It was totally merit based.

Imagine clients publish a list of firms that are predominantly composed of white men.

"Judges, juries and public officials are [mostly white men], so companies benefit from using firms that offer [white male] lawyers who can identify with these decision-makers."

Who's comfortable with that?

53 - Occidental College is one of the better small liberal arts colleges west of the Mississippi. It ranks above, for example, Union College.

His transfer from Occidental to Columbia is a step up, but not extraordinary.

I've said it before, I'll say it again - if clients want to promote diversity in corporate America, then fucking hire more women and minorities. DON'T TRY TO FORCE YOUR LAWYERS TO DO IT.

53, Obama also excelled at Harvard and did well for himself afterward. If he needed AA to get into Harvard, then his story is a great argument in favor of the policy.

All commentors = pale males?

I used to work at a firm that handled matters for Shell. I was explicitly told when being staffed on several Shell matters that one factor in selecting me was the fact that I'm female. When we later had to add another attorney to the largest matter, there were two equally qualified junior associates who had free time - - one male and one female. I was told to add the female associate because it would look better when the time came to make a diversity report to the client.

The whole situation left a foul taste in my mouth. I would rather be selected for assignments based on the quality of my legal work and skills as a lawyer than because of my gender. I don't have a lot of respect for these types of policies or the firms that cowtow to them. A client should expect the best lawyers to be staffed on their matters, not the first available female or minority. If the best lawyer happens to be a white male, so be it.

57 - Regardless of whether he excelled at Harvard and did well afterward, he most likely did not deserve to be admitted in the first place. Think of how many better qualified candidates he leap-frogged. Who knows, he could've pushed out the next Richard Posner or someone who could've been a possible presidential candidate. We'll never know. Your "end justifies the means" logic is flawed.

Who cares if Obama benefited from AA in applying to HLS? Even if he did, he clearly rocked HLS--magna and president of HLR--so proved that he deserved his spot (however he came about it). Honestly, if anything, AA seems to hurt Obama because people keep questioning his credentials and accomplishments. You might disagree with his politics, but one would be hard pressed to credibly argue that his credentials are anything but impressive.

Um. Yes clients have been saying this for years. Maybe I'm just more in the know than some of the "pale males."
-27

If you really want to push the diversity envelope, ask firms and companies what they are doing to recruit and retain disabled attorneys. The look on the diversity coordinator's face as he or she stammers out an answer will be priceless.

61, Obama's credentials are unimpressive because they've been tainted by affirmative action. Most of the battle is getting ADMITTED to the prestigious university. Especially given the rampant grade inflation at the Ivies.

60, I'm not 57, but you're clearly missing his or her point.
Obama rocked HLS, he outperformed a considerable majority of his class by a very convincing margin (magna cum laude, law review, president of law review).
If he needed AA to get into Harvard, what does that say about the admissions system? Obama is not the one that "pushed out the next Richard Posner," all the lesser performing (statistically white) admits did that.
How did they get into HLS? I expect strong pedigrees.

It's fun to read comments by a bunch of whining pale males.

Its amazing that many of you equate diverse with inferior. How about just different. Its hard to get a diverse opinion or approach to a legal or business issue when everyone "on the team" is from the same damn background with the same damn ideals. What so many here scoff at has been common practice for hundreds of years, only in your favor. Get over yourselves, move over, and wipe your nose....CHANGE IS COMING!

67 - That's because diverse does tend to, in practice, mean inferior. Not that the person is inferior, their credentials are certainly as good as many non-diverse peers, but that their credentials are not as good as better-qualified non-diverse people.

It doesn't have to be something as extreme as adding points to an application to be a joke. 1L "diversity clerkships" at biglaw fall in the same catagory. Most of the people who take those are unemployable by the firm they are working at.

Nevermind that white males still can't claim they are diverse, despite the fact that almost all colleges and an increasing number of law schools are majority diverse between women and minorities.

66 - who's doing the whining? The pale males or the minorities/clients whining for more jobs? "Waaaah, hire more minority and female attorneys, waaah"

67,
You have not identified the strongest argument against your position. Why should race, gender, or who one enjoys having sex with correlate strongly with one's ability to give a "diverse opinion" on a particular matter? Why should one expect that "diverse opinions" are particularly valuable in law, which is by its nature a conservative (little "c") institution? Most importantly, why wouldn't you expect marginalized groups whose "different" perspective makes them better lawyers to rise to the top on their own merits? (cf. Wachtell, Skadden)

YOU DO REALIZE, ELIE, THAT ALL OF THOSE COMPANIES WHO PARTICIPATED IN THE BACKING OF THE DIVERSITY WEBSITE DO NOT ACTUALLY USE THOSE FIRMS LISTED? THEY USE VAULT100 FIRMS AND THE LIKE, NONE OF WHICH ARE LISTED ON THEIR DIVERSITY WEBSITE. THIS IS CROCK AND INSULTING.

God, I hate white people.

- Self-hating pale male

Can we all agree to call affirmative action the "tan man plan" ?

I don't really care if firms have these types of lists. If one of these firms does shitty work on some mildly important matter, they are getting canned just like any other firm who doesn't happen to have minority owners. If the GC still insists on using that firm who screwed up the first time, well, he or she should probably start polishing that resume too. Boards and officers talk a big game about "diversity", but they aren't going to cost the company money and erode shareholder value in the process.

More importantly, is there any sort of empirical evidence that even suggests that having a diverse legel team leads to better legal results on a given matter? For example, are there any case studies done on litigation outcomes or the like? It gets even harder to judge the impact of diversity in the transactional context. This premise underlying many diversity initiatives like this one seems a little suspect to me.

I thought clients want to win....not play affirmative action games??

This strikes me as not too different from Jim Crow policies in restaurants: owners claimed that they weren't racist, but that clients demanded white-only establishments. Racial discrimination not in the name of racism but in the name of profit is just as bad.

Bring back Billy Merck! We want our shitty posts about some douchebag's political views to be written by some other douchebag who didn't overcome his suckiness using "diversity directories."

What a short-sighted policy. By lowering the bar for women and minorities, firms will create an even larger disparity between white males and everyone else.

Obama certainly proved he belonged at Harvard Law. However, the argument that he was not a beneficiary of affirmative action when he was admitted because he didn't check the "Black" box is ridiculous. His name is Barack Hussein Obama, and he's from Hawaii. I'm pretty sure the HLS admissions staff figured out he was African-American.

Also, there's no doubt that one quite large professional achievement of Obama's was due to affirmative-action-- his hiring at U of C law. They hired him straight out of law school, and offered him tenure shortly thereafter even though he hadn't hardly published anything. There's no way a Caucasian man or woman gets that sort of opportunity that quickly. And, again, that's not to say he wasn't a good prof (by all reports he was excellent), and I'm not trying to argue that legal scholarship is an absolute requirement to be a law prof (it certainly shouldn't be), but there's just no way Obama would have gotten that opportunity at that point in his career if it weren't for his ethnicity.

I love the fact that whenever I sue Walmart, I will be going up against some affirmative action retard.

Occidental is not a junior college! Jeez!

35 - you second statement is demonstrably false. The LSAC has published studies of a very strong correlation between LSAT and law school GPA. That has been backed up by several other studies, one of which was posted on ATL fairly recently. In fact, most studies have concluded that the LSAT is the best available predictor of 1L grades. The ATL linked study argued that the LSAT was so predictive because of the similarly time-pressured nature of law school exams. I don't have time to look up the studies, but if you care a google search should turn them up.

71, this is not BS. I have first hand knowledge that Shell has a policy of preferring law firms that are "diverse" (i.e. fulfill certain racial or gender quotas). A partner at my former law firm went in-house at Shell and did not give the firm a single lick of business. When I asked the former partner why she didn't send any business our way, she specifically mentioned the firm's lack of diversity. I personally think this policy is crap myself. Outside counsel should be the best qualified, not the most diverse. Stupid.

Companies don't need an official policy re preferences for diverse outside counsel -- all it takes is a comment from a high ranking in-house atty, inquiring why the only attys working on her matter were men...it was a long term project and as the guys were transitioned off, more women were added, women who already worked for the firm and were equally, if not more, qualified to do the work.....

I am a minority lawyer and let me be very clear... after 2 years of practice at an AmLAW 100 firm, it is IMPOSSIBLE to be successful as a minority at a law firm (if you get through the door, that is). The review system to become "partner" is false along with many aspects of law firms.

Minority initiatives at ALL law firms are a joke. Very few have a chance of making it to the top. A better solution than trying to fix some attitudes at the highest echelons of law is simply to get the entire system an overhaul from a Michael Moore style documentary.

Michael Moore should do a film like his others where the law firm system is analyzed inside out. I imagine the mystique of law firms disappears before the average American's eyes, the way things operate will change.

85 says: "I am a minority lawyer and let me be very clear... after 2 years of practice at an AmLAW 100 firm, it is IMPOSSIBLE to be successful as a minority at a law firm (if you get through the door, that is). The review system to become "partner" is false along with many aspects of law firms."

are you looking to be successful as a minority, or as any attorney? Few things are "IMPOSSIBLE"....

As a disabled individual finding out that no one gives a fuck, I'm against affirmative action until it finally includes us. Diverse my ass - I'm suffering from diabetic neuropathy, and women are judged as having it harder.