Monday, August 31, 2009

Deadline for applying for federal judge extended

Sen. Amy Klobuchar has extended the deadline for applying for the vacancy on the U.S. District Court to Friday, Sept. 18. All other information about the application process is the same and is available here.

The final chapters of part three of Equal

12. Time to Settle

The case settled in the spring of 1977. The press coverage said that Sullivan & Cromwell had been “brought to its knees.” The firm agreed to supervision by Rabb of its recruiting, interviewing, payment and treatment of women. The firm also paid $30,000 in legal fees, $2,000 of which went to Blank for her own work. A case against Rogers & Wells settled for $40,000 in fees and a hiring quota.

Blank and her classmates had brought 10 complaints to the NYC Commission on Human Rights, and five led to settlements.

Seven years later the issue of whether law firms were bound by discrimination laws in partnership decisions would reach the Supreme Court. At that time, Sullivan & Cromwell would have 75 partners and one woman.

13. The Chief Justice's Second Draft

The issue of law firm discrimination in partnership opportunities was back before the Supreme Court in the 1980s against King & Spaulding of Atlanta, Georgia. One of its senior attorneys was Griffin Bell, a former federal judge and former attorney general of the U.S.

Betsy Hirshon was only the second woman ever hired by the firm. The first woman was hired in 1944 and never made partner. King passed Hirshon over for partner and forced her to leave after 7 years.

The firm argued not only that Title VII did not cover partnerships but the First Amendment granted law partners freedom of association and expression. The firm prevailed in District Court and before a three-judge panel in the court of appeals. It was supported by the U.S. Attorney general.

But then came the bathing suit contest, with the prize to a summer intern with “the body we'd like to see more of.” The Wall Street Journal picked up the story.

The justices voted in conference unanimously against the law firm and Chief Justice Warren Burger took the opinion for himself. (In 1971 he had delivered a letter of resignation to the White House over the issue of appointing a woman to the Supreme Court.)

Burger angered the court by circulating an opinion suggesting that partners might not be employees and thus exempt from Title VII. He suggested that Hirshon's rights would be limited to those available by contract.

The rest of the court rose up. Justice Brennan circulated a draft opinion attacking the “novel theory” that petitioners must prove a common-law contract to receive the rights afforded by federal law.

Burger capitulated. He discussed contract rights but conceded in a footnote they did not apply. But he did overrule the lower courts. George Will wrote in the Washington Post that the opinion said to King & Spaulding, “give me a break.”

Thursday, August 27, 2009

Minnesota Lynx Event

The Professional Development committee and the Public Policy committee of Minnesota Women Lawyers are hosting an event at the Minnesota Lynx game on Wednesday, September 9.

The event is not limited to women who are lawyers--anyone is welcome. The game starts at 7 pm and is being played at the Target Center. The cost is $35 per person, and a portion of the proceeds will go to Civil Society's Human Trafficking Program. MWL is also hosting girls from the YWCA at the game.

Registration can be done here. Check out the Lynx's Wikipedia Site for more background on the team. They play the Detroit Shock that night--perhaps an apt name for when they are Detroit Shocked by what is sure to be the Lynx's awesome playing.

Wednesday, August 26, 2009

Chapter 11 of 'Equal'

11.A Young Woman Takes an Old Wall Street Firm to Court

Harriet Rabb represented Diane Blank and other women against Sullivan & Cromwell. By chance, the case was assigned to Constance Baker Motley, a civil rights lawyer and the only woman judge in the Southern District of New York, and a descendant of slaves. The defense pressured Motley to recuse.

Blank's deposition revealed a weakness in her case: She could not identify a male law student hired at Sullivan & Cromwell whose qualifications she could match. She did not seem to recognize the problem.

The next issue was class certification. Motley called a conference at which she decided to reverse her earlier decision giving the defense five more weeks to argue against class certification. She certified the class, which then required the defendants to respond to discovery. The defendants wanted to avoid class certification by arguing that the law firm's discrimination, if any, was not ongoing and that Blank's EEOC action was untimely.

The defense, whose litigation tactics struck Motley as unseemly, responded by not only asking Motley to remove herself but also going directly to the Court of Appeals asking for a reversal on the class certification. Motley did not hide from her background as a lawyer for the NAACP but refused to recuse, and was upheld by the appellate court.

Blank ultimately was unable to persuade Motley to order the defense to disclose data about its partnership practices. The firm argued that the constitutional guarantees of freedom of association and due process trumped Title VII and protected partnerships. Upon rehearing, the EEOC stepped in on Blank's side. Motley then decided that she did not have to decide whether the firm had a constitutional right to discriminate in its partnership practices, but could be required to provide information tending to show an illegal pattern in the hiring of associates. “Here was precisely the ruling that Sullivan & Cromwell had been dreading.” Settlement talks ensued.

Monday, August 24, 2009

On-line magazine for women litigators

I've just run across an on-line magazine called "Sue Magazine: For Women in Litigation." I don't have a subscription, but maybe I should. One of the articles this month is titled, "How to Get a Reporter to Pay Attention to You." Free advice: return phone calls promptly. Here's the link.

Local Sotomayor Celebration

The Minnesota Hispanic Bar Association is hosting a celebratory reception for the confirmation of Justice Sonia Sotomayor to the U.S. Supreme Court.

The event will be held on Thursday, August 27 beginning at 5pm at the Landmark Center in St Paul. Confirmed speakers include U.S. Senator Amy Klobuchar, U.S. District Court Judge Michael Davis and State Senator Patrcia Torres Ray. U.S Senator Al Franken and Governor Tim Pawlenty have also been invited.

The event is free of charge but space is limited. Individuals may RSVP to

An invitation to the event can be found here.

Thursday, August 20, 2009

Out of work? Have a baby

This is a weird but apparently serious posting from Above the Law:

"In these tough economic times, people are (1) having trouble finding jobs as they come out of law school, (2) recently laid-off, or (3) miserable in the jobs they still have, given how low morale is and how many hours they're expected to work now (given the 'be grateful for your job' mentality).

"People in such situations are often unable to make a change, given how few jobs there are out there and how much competition there is for them. But they're scared to just up and quit, because very few employers would actually buy that they had resigned and not been fired.

"What's a girl to do? Make babies. That's what."

Comments to the post seem to say that "a lot" of women lawyers (whatever that means) are taking this path.

Ellen Luger, Tom Sullivan to head Klobuchar judicial advisory committee

U.S. Senator Amy Klobuchar has announced the formation of a Judicial Selection Committee to assist her in making a recommendation to the president to fill the vacancy on Minnesota’s Federal District Court that was created by Judge James Rosenbaum’s decision to assume senior status.

The Committee is co-chaired by Tom Sullivan, Provost for the University of Minnesota and former Dean of the University of Minnesota School of Law, and Ellen Luger, an attorney and the Executive Director of the General Mills Foundation. Other Committee members include Russell Anderson, former Chief Justice of the Minnesota Supreme Court; Leo Brisbois, the President of the Minnesota State Bar Association; R. Ann Huntrods, an attorney with an extensive federal practice; Tom Johnson, former president of the Council on Crime and Justice and Hennepin County Attorney; former Minnesota District Court Judge Carol Person; and Chief Judge Edward Toussaint Jr. of the Minnesota Court of Appeals.

In announcing the Judicial Selection Committee, Klobuchar said:

“I look forward to the advice and counsel of these distinguished members of Minnesota's legal community.

“Federal judges are appointed for life, which makes it all the more critical that these individuals be fair-minded, have impeccable integrity, and take seriously their obligation to apply the law fairly. I am looking for someone with a deep knowledge of the law, a wide breadth of professional experience, and an excellent judicial temperament.

“Judge Rosenbaum has served Minnesota well for more than two decades, and we are lucky that we will still have the benefit of his service when he takes senior status this fall. I have no doubt that, with this Committee’s help, we will find an outstanding replacement that will carry on the fine work that Judge Rosenbaum has done for many years.”

Those wishing to be considered for the position of Judge, U.S. District Court for the District of Minnesota should submit a letter of interest and resume by Friday, Sept. 4, 2009 to: Co-Chairs Tom Sullivan and Ellen Luger, Judicial Selection Committee, Office of Senator Amy Klobuchar, 1200 Washington Avenue South, Suite 250, Minneapolis, MN 55415. Materials may also be e-mailed to Sullivan and Luger at References will be requested at a later date during the interview process. All other inquiries should be directed to Paige Herwig at (202) 224-3244.

Wednesday, August 19, 2009


LAWYERING (1968-1984)

9.A Problem in the Profession

NYU law students Diane Blank and Mary Kelly found at their summers at Cadwalader, Wickersham & Taft that the lawyers expected them to be secretaries. Women at NYU also found that Shearman & Sterling had passed over many women for interviews. Women who did manage to get hired at Shearman were relegated to trusts and estates because they would work well with widows and orphans, would not be allowed to travel and would not join the men at a Long Island country club.

This was not new, but Title VII had deemed it illegal to refuse to hire women. NYU's Women's Rights Committee conducted a study of 700 women practicing law in New York. Seventy seven answered and 26 of those heard some variation of “we don't like to hire [too many] women." They made less money, were excluded from firm events and treated in a humiliating fashion.

Attorney Eleanor Holmes Norton would soon play a crucial role in the effort to open New York law firms to women.

10.Taking Action

In April 1970 women from 17 law schools gathered at NYU and agreed on a set of resolutions, one of which was to participate in a Title VII action through the EEOC against New York law firms.”These aspiring lawyers planned to charge a handful of the nation's most powerful law firms with sex discrimination.” Norton met with the group.

Meanwhile, the Association of American Law Schools created a special committee on women in legal education and surveyed law schools. Of the 76 that responded, more than one-third reported complaints of discriminatory conduct that revealed discrimination in law firms nationwide (including Minnesota).

The NYU women surprised a meeting of the Association of the Bar of the City of New York when Gloria Steinem, who had been invited to speak, allowed them to speak about discrimination in New York law firms. After they got cut off, Betty Friedan and Norton stepped to the podium.

Three weeks earlier, the U.S. Supreme Court had decided in Griggs v. Duke Power that the effects of employment practices, rather than their intent, would determine whether an employer was practicing illegal discrimination. Consequently, attorney Harriet Rabb began to lead an Employment Rights Project at Columbia Law, funded by the EEOC.

Women law students then discovered that they would be separated from their male classmates during the bar exam and that their group would be assigned ID numbers in a narrow range, allowing graders to guess at their sex. Also within that group would be men who had previously failed the exam and whose scores could be expected to be lower. The women did not want to be graded against each other, rather than the men, because statistically women performed better on the exam than men. The bar examiners caved, and although the test remained segregated, it was for the last time and grading safeguards were put in place.

The law students' complaints proceeded and Margaret Kohn, who had complained about Royall, Koegel & Wells, and Diane Blank, who had butted up against Sullivan & Cromwell, got EEOC right to sue letters.

Tuesday, August 18, 2009

Sotomayor casts first anti-execution vote

Jason Getsy died this morning after receiving a lethal injection in an Ohio prison. His was the first death penalty matter addressed by Supreme Court Justice Sonia Sotomayor, who dissented from the denial of stay that allowed the execution to proceed. She was joined by Justices Ruth Bader Ginsberg, John Paul Stevens and Stephen Breyer.

What's in a Name?

The Feminist Law Professors blog has an entry today on a new article in the American Law and Economics Review titled Do Masculine Names Help Female Lawyers Become Judges? Evidence from South Carolina.

Examining the correlation between a lawyer’s advancement to a judgeship and his/her name’s masculinity, the study found that nominally masculine names appear to be favored over nominally feminine names, in comparing the judiciary to the entire population of South Carolina. The paper's intro sums up what was found:

This paper provides the first empirical test of the Portia Hypothesis: Females with masculine monikers are more successful in legal careers. Utilizing South Carolina microdata, we look for correlation between an individual’s advancement to a judgeship and his/her name’s masculinity, which we construct from the joint empirical distribution of names and gender in the state’s entire population of registered voters. We find robust evidence that nominally masculine females are favored over other females. Hence, our results support the Portia Hypothesis.

The authors determined the masculinity of a name depending on the number of males that shared the name. Some of the most masculine names included Bobby, Francis, Chris, and Carroll.

Although several reasons are probably at the root of the findings, the positive correlation between judges and masculine names does evoke many questions, and also reminds us about the unconscious and inconspicuous elements that may be determining women's legal careers.

Thursday, August 13, 2009

The dangers of flextime?

The three Minneapolis firms recently recognized as Best for Women were hailed in part because of their alternative work options. But recently featured an article that asks: Will flextime set you up to be laid off?

The article notes that the recession has altered the relationship between employers and employees. A top priority used to be to retain top talent by allowing flexible working time and spaces. But are employees using these flexible options putting a target on themselves if lay offs are necessary?

There's no evidence that flextime schedules are bad for business--in fact, some proponents say that it is better for business. In the legal field, flexibility could also mean a changed business model for large law firms, with less hours in exchange for less salary, that could save money and therefore jobs. Further, alternative work options can help people that also need to prioritize family obligations--which has been noted is disproportionately women.

However, the stigma that is attached to different work practices makes people even more reluctant to take advantage of flextime opportunities in a time where job retention is a top concern. The article gives tips about how to keep yourself in employers' minds when you are out of sight, but there is also a bigger question--how should employers present and sustain alternative work arrangements so that they can be used--and effective--in any economy?

Wednesday, August 12, 2009

Chapter 8 of 'Equal' -- The Pregnancy Discrimination Act

8.The Final Pregnancy Battle: Beyond the Supreme Court

The plaintiff's lawyers heard the court say that responsibility to end pregnancy discrimination rested with Congress, and they moved ahead. The EEOC had already determined that a loss at the Supreme Court would lead them to lobby for congressional action. The Pregnancy Discrimination Act of 1978 was passed and signed less than two years after the GE case. Pregnancy discrimination was now sex discrimination.

Tuesday, August 11, 2009

Misogyny and guns: 'a toxic mix of the most tragic proportions'

Check out this great column by Bob Herbert in the New York Times a few days ago. Cheryl Thomas, director of the women's program at The Advocates for Human Rights, says, "It is an eloquent indictment of the complacency in our communities towards violence against women and a powerful response to those who argue that violence against women is not a gender issue."

3 Minneapolis Firms are "Best for Women"

Working Mother magazine and Flex-Time Lawyers LLC, a consulting group for law firms and corporations the retention and promotion of women, have released their 2009 List of Best Law Firms for Women.

Three Minneapolis Firms made the list: Dorsey & Whitney; Gray Plant Mooty; and Lindquist & Vennum. This is what the judges had to say about each firm:

Dorsey & Whitney
  • Efforts to retain talented attorneys start as soon as a new associate comes on board. Last year, this Minneapolis-based firm, which has 13 offices nationwide, initiated a procedure that charges diversity partners, department heads and office heads with monitoring and reviewing female and multicultural associates’ work assignments. The Diversity Advisor program helps women advance by pairing senior female associates with partners from another practice area, who can give a different perspective on the firm.
Gray Plant Mooty
  • When it comes to being family-friendly, this Twin Cities firm knows that formal policies must offer support but that office culture is important, too. Lawyer parents are encouraged to display their children’s artwork, and practice groups hold baby showers for expectant colleagues. (It doesn’t hurt, either, that the firm has one of the lowest billable-hour requirements in the region.) For inspiration, lawyer moms here need only turn to Tamara Hjelle Olsen, its first female managing officer (partner) in 140 years.
Lindquist & Vennum
  • It’s not only up-and coming lawyers who embrace reduced hours at this corporate law firm, which has offices in Minneapolis and Denver. From 2004 to 2008, 28 lawyers worked a reduced-hours schedule as they phased into retirement, signaling that flexibility is a benefit that’s relevant to everyone. The firm’s Millennia Leaders program provides women lawyers with intensive leadership training and the chance to forge new professional relationships. (Last year, female attorneys accounted for 40% of those in management training.

Friday, August 7, 2009

Sotomayor confirmed!

Judge Sotomayor was confirmed by the Senate on Thursday to be the nation’s first Hispanic Supreme Court justice. The vote was largely done along party lines, with 68 voting in favor of her confirmation and 31 voting against it.

Chief Justice John Roberts is expected to swear the new justice in at a private ceremony at the Court tomorrow morning.

Minnesota Women Lawyers and the Infinity Project have released a joint statement:

Minnesota Women Lawyers and the Infinity Project congratulate Second Circuit Court of Appeals Judge Sonia Sotomayor on the confirmation of her appointment to the U.S. Supreme Court. As President Obama observed, "Judge Sotomayor has the intellect, the temperament, the history, the integrity and the independence of mind to ably serve on our nation's highest court." We look forward in the future to the appointment of similarly highly qualified women to seats on the Federal bench, and in particular, to the Eighth Circuit Court of Appeals and the U.S. District Court for the District of Minnesota.

Thursday, August 6, 2009

'Equal' Continues: General Electric

7.The Second Pregnancy Case: General Electric

Ruth Weyand, the attorney on General Electric, was one of the most successful women lawyers in the history of Supreme Court litigation. She had never lost at the Supreme Court. After first being denied admission she graduated from the University of Chicago Law School in 1932 at the age of twenty, but could not find a job. She eventually found a job as “R. Weyand.”

In 1949 she married Leslie S. Perry, a black man, and they kept their marriage secret. When it became known, she was fired from the National Labor Relations Board, where she had worked since 1938. She continued to practice labor law and was instrumental in introducing the concept of pay equity or comparable worth. As a union lawyer, she negotiated with General Electric.

In 1971, The EEOC issued a ruling that it was illegal for a company to refuse to cover disabilities related to pregnancy. Title VII of the Civil Rights Act of 1964 had made inroads on employment discrimination, building on the Equal Pay Act of 1963. The addition of sex to Title VII was controversial and Rep. Howard Smith of Virginia, who had added the language, reportedly said he meant it as a joke. Nevertheless, the EEOC was born—-underweight, but alive. It did not want to be a “sex commission” and did not always help women.

It had no power to initiate litigation but Weyand sued GE in District Court in the Eastern District of Virginia, where Judge Robert R. Merhige Jr. had previously ruled that a pregnant schoolteacher could not be forced to leave her job in her fifth month of gestation. That case, Cohen v Chesterfield County School Board, was affirmed by a three-judge panel but overruled by an en banc court, which was then reversed by the Supreme Court.

was tried before Judge Merhige while Cohen was pending and he did not rule until after it was decided at the Supreme Court. He ruled that pregnancy discrimination was sex discrimination because males receive full disability coverage and females do not—disparate treatment.

Two months later the Supreme Court issued Aiello, which upheld discrimination between pregnant women and nonpregnant persons.

While the case was pending at the appellate court, the Supreme Court granted cert in case involving Liberty Mutual that also excluded pregnant women from disability insurance. Because both sides in GE wanted their case to make the law in pregnancy discrimination under Title VII, as opposed to the Liberty Mutual case the lawyers filed a joint petition asking for immediate review at the Supreme Court. This was unavailing, but the Court of Appeals affirmed 2-1. Liberty Mutual and GE would go to the Supreme Court together.

The case was argued in January 1976. Liberty Mutual was dismissed as being appealed prematurely, and the court then ordered GE reargued in October, 1976. Justice Blackmun, who had recused in the first case because of ties to Liberty Mutual, participated knowing that the rest of the justices were evenly divided. Blackmun eventually sided with GE, and joined with the majority in a 6-3 decision that Geduldig controlled. Justices Marshall, Brennan and Stevens dissented.

Wednesday, August 5, 2009

The Great Debate

Yesterday marked the beginning of the U.S. Senate debate on Judge Sotomayor's confirmation to be a justice on the United States Supreme Court.

The real news about it is that there really is no news. Her confirmation is almost certain, as at least six Republican senators have said they will vote for her.

A few items of passing interest have been mentioned. Sotomayor's confirmation is the first one on which the NRA has chimed in, asking all the senators to vote "no." But reportedly at least 8 out of 36 senators who have been endorsed by the NRA have said they will vote to confirm her.

Some speculation has also questioned the Republican senators strategy in blocking Sotomayor's confirmation. They are in a tough spot: a conservative party base insists on a vote against her. But the more moderate voters could be disappointed with a vote against a highly-qualified, history-making judge.

A vote could come as early as tomorrow.

Monday, August 3, 2009

Taking Stress Seriously

Last week, the London Times reported a tragic story about a successful woman lawyer committing suicide.

Catherine Bailey became a partner at SJ Berwin in London in 2003. She was married to a consultant kidney specialist, and had returned to work just before Christmas after the birth of her third daughter six months earlier. The couple also had a five- and four-year-old daughters. Bailey texted her husband to tell him that she was sorry and loved her family about 30 minutes before she was found in the River Thames.

Postnatal depression has been mentioned as a possible contributor to her decision, but people can't help but speculate that the stress of being a female lawyer also had to be part of the equation. Such a tragedy begs so many questions--are women facing greater pressure to produce once they return from maternity leave to make up for the time they were gone? How damaging is the guilt about being pulled in so many directions to one's emotional state? How does the perfectionist aspect of lawyers' personality magnify all these feelings?

One thing is clear: stress and depression of any kind must be taken seriously, and services such as Lawyers Concerned for Lawyers exist exactly for when things start to feel like too much. Listen to yourself, and to others, to help yourself or others before problems get too extreme.