Vol. 5 No. 10 (October, 1995) pp. 242-245

GENDER IN PRACTICE: A STUDY OF LAWYERS' LIVES. by John Hagan and Fiona Kay. New York: Oxford University Press, 1995. 212 pp. Cloth $35.00.

Reviewed by David S. Mann, Department of Political Science, College of Charleston

This book purports to be a "major contribution to discussions of sexual equality in the legal workplace" (flyleaf). It succeeds.

Primarily sociologists, Hagan and Kay offer two somewhat contradictory theoretical frames of reference which their data test. Human capital theory, from the economic theory of Gary Becker, "explains patterns and developments within the legal profession as products of the combined operation of efficiency and choice. By making efficient choices to invest in human resources, individuals and firms develop their human capital" (at 12). Political scientists may recognize a notion of human capital theory from Justice Bradley's infamous opinion in BRADWELL V. ILLINOIS, 83 US 130, at 141: "The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. . . . The paramount destiny and mission of woman is to fulfill the noble and benign offices of wife and mother. This is the law of the Creator." Hagan and Kay refer to the "chosen spheres" argument of human capital theory throughout their tome -- the struggle to separate work and family according to gender. Individuals who are the most highly committed, who have "chosen to give priority to their occupational careers" (at 13) are the most likely candidates for success as traditionally measured in the legal community.

Gender stratification theory "argues that differences in the occupational success of women and men in law. . . inefficiently penalizes the comparable efforts of committed women who, often in spite of constraining demands of family and inadequate rewards in occupational advancement, invest heavily in their careers. . . . [W]ork structures [are] inflexible and unyielding sources of disparities in the opportunities and rewards open to women. . ." (at 14).

Hagan and Kay discuss those theories and test them, reporting the results of (1) a panel study survey sent to lawyers in Toronto, Canada in 1985 and 1991, (2) a separate random sample survey conducted of lawyers throughout the province of Ontario in 1990, and (3) interviews conducted with fifty female lawyers in 1985.

Though one's initial reaction might be to question the applicability of Canadian findings for American students, the authors convince the reader otherwise. They review previous research to illustrate that relevant differences between Ontario and the U.S. are far surpassed by similarities.

After a careful discussion of the changing nature of the legal profession, Hagan and Kay organize their findings into ceiling effects in practice, the beginnings of practice and first job selection processes (perhaps the most differences between the U.S. and Ontario are shown here), becoming partners, career conflicts, billable hours as a measure of success, and the "pleasures and perils of practice" (at 155). They discuss these sets of findings with one eye toward human capital

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theory and the other to gender stratification theory. For the novice, they also offer an appendix on survey research and data analysis. The list of sources is thorough.

My only complaint about the book's format is that copies of their questionnaires are nowhere to be found. They report questionnaire return rates of 79.3% for the second wave of the panel study and 67.7% of the random sample from Ontario lawyers -- which are outstanding response rates worthy of comment. The questionnaires, or maybe the subject matter itself, was of obvious interest to these Canadian lawyers and would be of interest to me.

The legal profession in Ontario, as in the U.S., is restructuring. The partnership class is shrinking. Both men and women are affected, but women are affected more. Discrimination exists in hiring. Those with contacts do better than those without contacts. More men have contacts than women. Men who lack contacts attribute this deficiency to be the most serious drawback in obtaining a first job. Women attribute their most serious drawback to be their gender, followed by marital status. Hagan and Kay find a statistically significant difference between men and women who received help in finding jobs with large firms: 33% of men "who received help finding articling positions are still located in large firms, . . . only 15.7% of women who received help at the articling stage find first jobs in large firms" (at 65). Catching my attention as a pre-law advisor is that grades in law school appear to be the "most consistent statistically significant" (at 66) variable. The effects of grades are greater for women than for men. A woman to be hired in a large firm has to have better grades than men comparably hired. There is in addition some evidence indicating that WASP men with contacts do better than women with great grades.

For many lawyers, becoming partner is the ultimate achievement. But studying that process is, in the word of Hagan and Kay, "challenging" (at 84). What follows illustrates how careful the authors were with this study.

"[I]f we consider only those lawyers now in firms who have been there for a considerable period of time, we will ignore many lawyers who set out to become partners but have since left firms or the practice of law entirely. On the other hand if we begin with undifferentiated samples of all lawyers who enter practice, our comparisons of outcomes will include entrants to the profession who have never practiced in firm settings and for whom partnership decisions are irrelevant. Further, if we consider only very recent entrants to the profession, there will have been little opportunity for partners to emerge" (at 84).

The research strategy embraced this sampling problem and solved it to the reviewer's satisfaction. At the outset, 42% of the female lawyers in Toronto were partners by 1991; for males, it was 60%. The Ontario data set showed 25% and 49% respectively. Multivariate logit equations display several statistically significant predictors of positive partnership decisions: gender, grades, children (a plus for males; a negative for females), specialization, and corporate clientele. It is remarkable that "having a family can be an

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asset for men and a liability for women" (at 91). Especially fascinating is Table 4.3, which provides probability estimates for significant variables in the equation predicting a successful journey to partnership for Toronto lawyers who began practice in firms (page 93). Six variables show significant differences in partnership decisions between men and women: gender, children, law school grades, attendance at an elite law school, corporate clientele, and maternity leave. Hagan and Kay report: "[T]he more women lawyers make themselves similar to men lawyers, for example, in declining parental leaves and in displaying undivided attention to their work, the more likely they are to be treated like men in partnership decisions" (at 94).

The chapter entitled "Careers in Conflict" continues that theme. The discussion includes the timing of parenthood, child care responsibilities, distribution of labor in the home, and schedules and leave availability at the workplace. All show that women lawyers are at a significant disadvantage compared with their male colleagues. This pattern also holds for career choices and decisions to leave the law entirely.

Women who wish to balance career and family are seen to be at yet another disadvantage, especially for those who work in law firms, where the bottom line is billable hours. Both human capital and gender stratification theories offer potential explanations. Their data show a gender gap in earnings. Men earn more per year because they bill more hours. Even after mitigating relative circumstances, the authors find that "men earn about $70 for each hour of billed income, while women earn about $40" (at 143). Men's time is more valuable to the firm. Interestingly, the effects of having children "are favorable for the work commitment of women in full-time private practice. . . . Men are also generally favorably affected by having children" (at 151). These findings do not fit four-square with human capital theory. One of my favorite quotes from the text appears on page 153: "The question . . . is not why women in the private practice of law sometimes bill fewer hours than do men, but why they bill as many hours as they do. Given our findings, a plausible answer is a high commitment of women to work in the profession, over and above the earnings it produces."

Hagan and Kay then discuss why some lawyers of both genders are dissatisfied with their chosen profession, and why some simply leave the practice of law. Eighty women and forty-five men in the Toronto sample reported leaving law practice. The discussion is interesting, especially the open-ended interview or questionnaire comments (the reader is left to wonder which). The statistical analysis is nicely done, as always, however the R-square for these equations is quite low and the authors don't discuss it. Generally, more women are dissatisfied with the legal profession than are men because attempts to balance work and family, with lower pay and fewer rewards and incentives, can lead to despondency and depression, not an entirely unexpected empirical referent to support gender stratification theory.

The authors conclude by suggesting that gender stratification theory alone, even if supported by empirical data, will not provide a justification for reform. That part of human

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capital theory "acknowledges a tendency of men to exploit stereotyped conceptions of women's roles" (at 181) may ironically serve to assist at reconstructing the legal profession. Hagan and Kay discuss remedies. One is of the HISHON V. KING AND SPAULDING (467 US 69, 1984) variety, simply, filing discrimination lawsuits to seek remedy and reform. Bar-sponsored programs are designed to encourage the retention and promotion of women and minorities, even or perhaps especially in an era where affirmative action is under attack in the U.S. This chapter, in some sense a summary of the theoretical frames of reference as well as a discussion of some reforms, is derived from the data reported in earlier chapters and is least satisfying. It is almost as if the authors couldn't figure out a way to end the book otherwise.

GENDER IN PRACTICE is an excellent research report. It contains a wealth of data which merits our attention and replication. It is well written, well thought out, and carefully considered; it is a meaningful contribution to the discipline. This book should be on the reading list of sociologists, legal scholars, legal historians, students of the judicial process, and pre-law advisors.