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U.S. Supreme Court,
Law Practice

Aug. 21, 2017

Raising up the work of (s)hero lawyers

There a several reasons for each of us in legal education and in the profession to broaden our own perspectives and evaluations of who are legal heroes.

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Kathleen Sullivan in 2007.

When I recently had the opportunity to browse the shelves of an independent bookstore, I came across the title “Pillars of Justice: Lawyers and the Liberal Tradition,” by Owen Fiss. My first thought was, “Great! A book portraying lawyers as heroes.” Reading the book jacket I learned that the book consisted of essays about “thirteen lawyers who shaped the legal world during the past half century.” I turned to the table of contents to see which 13 were featured. Man, man, man… seven men, then one woman, then five more men. Really? Going back to the top of the list, I read Thurgood Marshall, a black man. The woman? Catherine MacKinnon.

Well, perhaps the introduction explains how these 12 men and one woman were selected as legal heroes of the last half century. The only other characteristic these lawyers have in common is that the author, Owen Fiss, Sterling professor emeritus of law at Yale University, had gotten to know them personally by having worked for, worked with, or taught them. Professor Fiss even went outside of the U.S. to include Carlos Nino of Argentina and Aharon Barak of Israel as lawyer heroes.

While it is understandable that Fiss would focus on lawyers he has known, it is regrettable. Fiss does not even acknowledge how lopsided his list is, or lament about how difficult it was for him to narrow his list down to 13. The acknowledgments reveal that only men worked with Fiss to research, edit and publish this book.

The names of 10 women can be found in the index of “Pillars of Justice.” Judith Resnik is mentioned five times. Mainly, as the catalyst who encouraged Professors Fiss and Robert Cover to turn their collection of essays, “The Structure of Procedure,” into a casebook. Although Professor Resnik eventually became a third author of the casebook and joined Fiss in authoring “Adjudication and Its Alternatives,” she was not featured among the lawyers who make up “Pillars of Justice.” Yet, Resnik’s career has focused on civil rights, women in legal education, the rights of prison inmates and other areas that fit well with the theme of Fiss’ book.

Professor Fiss also mentions his former student and research assistant who became his colleague, Riva Siegel. While Fiss is certainly to be commended for creating a seminar on feminist legal theory in the early 1980s and for following the guidance of his then-student Professor Siegel, her work is certainly worthy of a chapter; she has engaged in important work related to reproductive rights and other subjects consistent with the theme of “Pillars of Justice.”

Justice Ruth Bader Ginsburg and her path-breaking work on gender equality at the ACLU and as the second woman appointed to the U.S. Supreme Court is not even mentioned! Justice Sonia Sotomayor, the first Latina appointed to the U.S. Supreme Court, and the perspective she brings to her role, is not mentioned either. The date of the book’s publication? 2017.

In 2017 — when, for example, at Golden Gate University School of Law, 64 percent of our entering first year class is made up of women, and 63 percent identify as being a member of at least one racial minority, 44 percent are first-generation college graduates, and 11 perent identify as LGBTQ — a book that seeks to raise up lawyers as heroes and as essential to the continuous improvement of our democratic society, should include lawyers who look more like our students and recent law school graduates.

It is not difficult to identify such lawyers. Women, people of color and LGBTQ people have engaged in tremendous work that has shaped the law, legal education and the meaning of leadership. Indeed, Sharon Rowen’s documentary “Balancing the Scales” features many pioneering women lawyers. Other examples include, Kathleen Sullivan as the first woman named partner of an Am Law 100 firm and an accomplished First Amendment appellate expert. Elaine R. Jones litigated the death penalty case, Furman v. Georgia, and became the first female director of the NAACP Legal Defense Fund. Deborah Rhode, Kimberlé Crenshaw and Michelle Alexander have each engaged in important and prominent work that makes them pillars of justice, as well. This list is by no means exhaustive and everyone has their own list of top lawyers. A few quick Google searches result in many top 10 lists that include one or two women lawyers.

There a several reasons for each of us in legal education and in the profession to broaden our own perspectives and evaluations of who are legal heroes. Indeed, within the last two months essays in the New York Times have emphasized the struggles that women lawyers continue to face. Elizabeth Olson, in “A Bleak Picture for Women Trying to Rise at Law Firms” (July 24, 2017), describes how difficult it is for women who do obtain positions at law firms to achieve equity partnership. Shira A. Scheindlin expresses dismay that female attorneys are relegated to second chair in courtrooms in “Female Lawyers Can Talk, Too” (Aug. 8, 2017).

In addition, despite the increase in diversity among law school student bodies, the legal profession remains over 80 percent white and 64 percent male. There are many women, people of color and LGBTQ people to celebrate as hero lawyers who are engaged in the hard work that continues to be necessary to strengthen and improve our system of justice and democratic society. While we have made some progress in diversifying the legal profession (and thereby better serving a broader range of and more diverse clients), we clearly have a long way to go.

Few dispute the value and importance of role models who mirror the diversity of our society, and, in particular the growing diversity among our law students. All who engage in list making, or raising up lawyers as heroes must consider the importance of featuring those who can serve as role models for our students today.

#342876

Ben Armistead

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