Law in Contemporary Society
This is a revision of Jenai St. Hill's first paper. Aside from minor grammatical changes and added links, I put forth some options for Black lawyers should they choose to work for a law firm and value diversity. In addition, I used the Wilkins/Harris pieces in a slightly different way.


The “meaningful” practice of law depends upon a person's highly individualized values on advancing social justice, accumulating wealth, intellectual stimulation, personal fulfillment, etc. Despite that variation, I think there is cohesion among groups of individuals, especially Blacks and other underrepresented minorities, because of several common threads that have shaped our experiences.

Some of those experiences prompt us to seek wealth and status in a society that has fused race and economic domination, making White identity and whiteness sources of privilege and protection. Cheryl Harris, “Whiteness as Property”, 106 Harv. L. Rev. 1709. Practicing law at large, predominantly white firms offers the opportunity to escape one form of economic domination, but may also force us to wrestle with the tradeoff between that freedom and injury to or loss of racial identity. Whether this tradeoff actually takes place depends on how we view the balance of power between ourselves and law firms: the tradeoff would not be as stark if we recognized our collective ability to increase the value of diversity, either by strategic selection of law firms or through making changes at non-diverse firms using words.

The Benefits:

Black law students at CLS, like others at elite institutions, are in privileged positions, from competitiveness at top law firms to candidacies for clerkships, public interest fellowships, government jobs, and the like. Because the legal profession is highly stratified and because organizations often make hiring decisions based on law school reputation, we stand closer to the types of markers of prestige and success unavailable to an overwhelmingly large segment of our community. To abandon that journey in law school, seems foolhardy, especially when the economic benefits are large, visible, and imminent.

The Costs:

Despite the financial benefits and reputational capital that corporate America provides, many Black lawyers will be forced to struggle with their identity and role as a minority in an organization that values assimilation into the majority. I have had many conversations with friends who will fearfully and begrudgingly work at a large, predominantly white firm upon graduation. For many of us, some measure of assimilation is not particularly novel: in higher education and professional schools, we are rarely taught not have to down those safeguards but how to assimilate into them whenever possible.

However, unlike the educational context, where diversity is celebrated (at least to some degree), top corporations and elite law firms are comparatively worse at inclusiveness, creating tremendous incentives to abandon diversity by creating a “firm culture.” As an undergraduate, I participated in Management Leadership for Tomorrow, a career preparation program for minorities. In the last decade, these programs have proliferated, as more people of color begin their education on how to work within corporate America. Law firms have held similar workshops that speak to professionalism through assimilation, some with less than ideal consequences. While these programs can be tremendously helpful in ushering in many qualified and diverse candidates to top corporations and law firms, questions remain on whether promoting assimilation into white corporate culture is the best for their participants.

Are Corporations Changing the Equation?

In “'Separate is Inherently Unequal' to 'Diversity is Good for Business," David Wilkins argues that most corporate firms are primarily concerned with recruiting clients and maximizing profit, but these firms have also found that recruiting and hiring a diverse pool of candidates may reap reputational benefits that may later manifest themselves as profits. Despite an outward semblance of commitment to diversity, there are still severe constraints defining the type of minority candidate firms actually recruit.

To merge Harris and Wilkins, the timeless, blue-chip commodity of Whiteness (a currency in heavy supply at law firms for generations) competes and conflicts with the relatively new and undervalued commodity of diversity. Worse yet, real diversity, as exhibited through divergent viewpoints, interests, etc. is valued even less than hollow, purely descriptive diversity. Says Wilkins, “[m]angers have strong incentives to screen out potential employees whom they suspect of holding such disruptive views. Minorities are likely to be especially fearful of being too “diverse”. 117 Harv. L. Rev. 1588.

Being the Change

Assuming the goal is to force large corporate firms to embrace diversity in meaningful ways, students can counteract the trend of lip-service to diversity by collective action. By recognizing that we have the power to choose firms that affirm minorities rather than simply assimilate them, law students can create a market-based “race-to-the-top”: identifying law firms for those interested in working at humane and sensitive places. Indeed, Building a Better Legal Profession, has done some legwork to provide students with demographic data on partners and law firms across the country. Of course, there’s nothing stopping us from using collective action of a different sort, by creating firms that value diversity to the same degree that we do.


There are options available to those of us who want to go to law firms, but value diversity. However, they will require us to make changes by using both words and actions. We may use our licenses to force firms to develop better practices once minorities arrive at firms, select firms on the basis of their commitment to meaningful diversity, or start our firms altogether. But to point the finger at law firms while accepting a fate of assimilation or devaluation is a mistake. Should we choose not to seize the power that we have, we are no less responsible for mere lip-service to diversity than the firms themselves.

  • I think this is a good edit. Jenai's first draft was a good draft, and I agree that this was an improvement. I think I find myself here left pretty much where her response to my comments left me: you're right that you have now got a chance to do what was really hard to do for any African-American person before. You could now get the high-prestige high-money partnerships in big law firms in which even the traditional ruling white people are unhappy. Moreover these firms are now being transformed out of existence or into serious trouble by irreversible changes in the economic organization of the profession. Given that the firms are failing, that one can see by looking at 1600 Pennsylvania Avenue that the American power structure is changing, that there are lots of ways to make comfortable livings doing interesting and socially-responsible work that don't involve living within white-dominated organizations, and that the big firms make people unhappy no matter what skin color they have, I'm just not convinced that "to abandon that journey in law school seems foolhardy." On the contrary, it seems like plain good sense to me.

  • Which isn't to say that I think you and Jenai have somehow missed the point. I think we're talking about a real and important consequence of the present period of rapid social change, which makes reconsideration of basic conclusions advisable. The objectives you choose for your life should be built upon the realities now, and your reasonable guesses about your future, not the objectives selected at an earlier moment, as "the places we would go if we were allowed to go where our talents take us." Those were the right objectives then, as other objectives might be the right objectives now, when at true long last, after centuries of hoping, we can honestly say that for you, having gotten where you have gotten, there is nothing to stop you from going anywhere you choose to go.


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r6 - 08 Jan 2010 - 22:26:51 - IanSullivan
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