Commenting on my earlier post about the “Better Legal Profession” project, Stanford Law Professor Michelle Dauber, a member of the project’s board, defends the mission of advocating for greater diversity in attorney hiring by BigLaw firms. Her response highlights the severe limits of the project’s scope and the fundamentally conservative nature of its ambition.

Michelle suggests that my critical assessment of the project makes “a fair point … only if you refuse to take the equity issues seriously or think … that if you throw in your lot with corporate power that you get what you get and if you get discrimination you shouldn’t be surprised” (emphasis added). The implication of the “only if” seems to be that, if you do take seriously the equity issues surrounding the underrepresentation of women, people of color, LBGT people, and other “others” within the ranks of BigLaw, then you ought to suspend criticism of what BigLaw lawyers actually do.

That is not a fair point at all. If you really take equity issues seriously, you can’t avoid confronting the fact that BigLaw — no matter how diverse its staff of attorneys, no matter how humane its attorney working conditions, and no matter how many heartwarming pro bono cases its diverse and not-overworked attorneys take on — is inextricably and centrally embedded in an institutionalized power relation that systematically reproduces inequity in the larger world beyond elite law schools and law firms.

Most glaringly, the “Better Legal Profession” project entirely ignores economic/class-based inequities. Even focusing on the identity-based inequities that are the project’s focal concern, it seems worth asking whether increased BigLaw attorney diversity is really such a significant goal. Even among law students, only a tiny fraction of women, people of color, and LBGT people attend the handful of elite institutions like Stanford from which BigLaw almost exclusively recruits. As for the rest of the world, how, exactly, does a more diverse BigLaw attorney workforce enhance equity for them?

Michelle believes that “there are social benefits attached to the racial and gender integration of the elite that obtain pretty much regardless of what the specific work in the elite is that is being performed (waterboarding and the defense of it excepted — sorry Condi)”. But, she doesn’t indicate what those benefits might be, nor point to any evidence of increased elite diversity actually yielding substantial benefit for those not within the elite ranks themselves. And why draw the line at “waterboarding and the defense of it”? Is that practice — horrendous as it is — really more harmful to the individuals subjected to it, or really more deleterious to social equity, than some of the everyday practices of the clients BigLaw attorneys serve (e.g. tobacco companies that push their products on communities of color and developing nations; drug companies that refuse to make life-saving medications available at affordable cost; employers who bust labor unions, engage in discriminatory employment practices, or impose inhumane working conditions; oil companies that pollute the earth; financial institutions that profit from predatory credit and lending practices; etc.)? Is there any evidence that BigLaw firms with greater attorney diversity are less likely to facilitate or defend such destructive and inequitable practices by their clients? (The example of the Bush administration — admirably diverse in terms of race and gender — does not inspire confidence, and not just because of the waterboarding.)

My point is not that expanding opportunities for traditionally-excluded groups in privileged occupations is an unworthy goal. As long as there is such a thing as BigLaw, it is (or should be) obviously desirable that admission not be limited to straight white men. The trouble with BigLaw attorney diversity, like the trouble with “diversity” more generally, is that it clouds the issue of power by obscuring the fundamental problem of class inequality. From this perspective, “diversity” truly does amount (as Walter Benn Michaels suggests) to little more than “the left’s way of doing neoliberalism” and “contribution to enhancing market efficiency.” (It is instructive, in this regard, that the “Better Legal Profession” project describes its mission as “seek[ing] market-based workplace reforms in large private law firms.” Hardly a clarion call of progressive, let alone radical, change.)

The “Better Legal Profession” project is a nice thing, as far as it goes. It just doesn’t go very far, and hardly merits all the fanfare it has received. Law students, particularly bright, energetic, and ambitious law students at places like Stanford, ought to be capable of setting and pursuing a more ambitious agenda than just making sure others like them get a fair shake in the job market. Where is the law student initiative asking why BigLaw is hegemonic in the first place and trying to conceive of ways to challenge that hegemony? Now that would be something to get excited about.

A group of Stanford Law School students are issuing report cards to law firms based on the gender, racial, and sexual diversity among their attorneys. So students from elite law schools will know at which firms woman, people of color, and LBGT people have the best opportunities to make bucketloads of money working on behalf of corporate power.