Tearing Down the Maternal Wall in the Legal Profession: a Perspective Inspired By Difference Feminism

NOTES

TEARING DOWN THE MATERNAL WALL IN THE

LEGAL PROFESSION: A PERSPECTIVE INSPIRED BY

DIFFERENCE FEMINISM

LAUREN T. KATZ*

ABSTRACT

Since 1985, women have been attending law school in roughly equal numbers

as men, but today, they are approximately only 20% of all equity partners, 35%

of federal judges, and 36% of tenured or tenure-track professors. This Note

examines why women are still underrepresented in positions of power in the

legal profession. Tracing the legal profession’s historical exclusion of women,

this Note argues that the path towards making partner at a law f‌irm, which was

built around the experience of an archetypical male, unfairly ignores the bio-

logical and cultural experience of motherhood. Key career-building years—the

late 20s and early 30s—directly conf‌lict with the healthiest years for pregnancy,

disproportionately disadvantaging women. This Note analyzes policies for part-

nership through the lens of feminist legal theory, a critical legal theory devised

by women law school students in the 1970s and 1980s. It contends that policies

shaped by equity feminism, which insists that women can and should adapt to male-

def‌ined standards, while well-intentioned, have failed to surmount the motherhood

roadblock. Instead, policies grounded in difference feminism, which observes that

women have different biological and cultural experiences—specif‌ically, a six-month

paid maternity leave and f‌lexible work arrangements—would help tear down the

maternal wall and place more women in positions of power. With more women

leaders in the legal profession, shaping the law and public policy, society may shift

towards one that embraces and supports critical attributes of motherhood.

I. INTRODUCTION.......................................... 214

II. SEPARATE SPHERES AND SEPARATE LEGAL STATUS ................ 219

III. THE ENTRY OF WOMEN INTO THE LEGAL PROFESSION: DIFFERENT

FEMINIST APPROACHES .................................... 224

* J.D. Candidate, 2021, Georgetown University Law Center. I want to thank Professor Stephanie

Inks and Professor Julie Lake for their guidance as I was writing this Note and for their support during

my law school career. I am also deeply grateful for the signif‌icant time and energy the GJGL staff spent

editing this Note, with a very special thanks to Myunghee Sim and Kelly Garrison for all of their

brilliant comments and suggestions. This Note is dedicated to my Mommy, Bubbie, and Mom-mom.

© 2021, Lauren T. Katz.

213

IV. HOW EQUITY FEMINISM HAS FAILED: THE PERSISTENCE OF THE SEPARATE

SPHERES .............................................. 228

A. WOMEN SHOULD LEAN BACK, NOT IN..................... 228

B. THE DOUBLE-BIND OF MATERNAL WALL DISCRIMINATION . . . . . . . 230

C. SOCIAL EGG FREEZING: AN EXEMPLAR OF THE EQUITY FEMINIST

SOLUTION ......................................... 236

V. THE CASE FOR DIFFERENCE FEMINISM ......................... 239

A. A SIX-MONTH PAID MATERNITY LEAVE: GIVING MOTHERS REST

AND RECOVERY ..................................... 240

B. FLEXIBLE WORK ARRANGEMENTS: SUPPORTING MOTHERS AFTER

CHILDBIRTH ....................................... 243

VI. CONCLUSION ........................................... 249

“I had three strikes against me: One I was Jewish; two, I was a

woman. But the killer was that I was the mother of a four-year-old

child.”

1

I. INTRODUCTION

Myra Bradwell, a publisher at a legal news company, an apprentice in her hus-

band’s law off‌ice, and a mother of four, sat for the Illinois bar in 1869 upon the

recommendation of the state’s attorney and a federal judge.

2

Although Bradwell

passed the examination with high honors, the Illinois Supreme Court nonetheless

denied her admission to the bar.

3

As a married woman, Bradwell could not per-

form legal tasks without her husband’s consent.

4

Moreover, the court added that

women were ill-suited for the “hot strifes of the bar.”

5

Undeterred, Bradwell

appealed her case to the Supreme Court of the United States.

6

Eight male justices,

however, upheld the prior decision on federalism grounds,

7

stating that the

1. Justice Ruth Bader Ginsburg speaking in an interview with CBS in 2016 about her employment

prospects after graduating f‌irst in her class from Columbia Law School in 1959. Ruth Bader Ginsburg:

Her View from the Bench, CBS NEWS (Oct. 9, 2016, 9:54 AM), https://www.cbsnews.com/news/ruth-

bader-ginsburg-her-view-from-the-bench/.

2. Two of Bradwell’s children passed away at an early age. See Jane M. Friedman, Myra Bradwell:

On Defying the Creator and Becoming a Lawyer First Women: The Contribution of American Women

to the Law, 28 VAL. U. L. REV. 1287, 1287–92 (1994).

3. Friedman, supra note 2, at 1288.

4. Melissa Murray, Law School in a Different Voice, in WOMEN & LAW 131, 133 (2020) (joint

publication of the top sixteen law reviews).

5. In re Bradwell, 55 Ill. 535, 542 (1869); see also Friedman, supra note 2, at 1291 (observing that

the Illinois Supreme Court did not want to admit Bradwell to the bar because it would “open the

f‌loodgates,” allowing women to occupy other public positions).

6. Murray, supra note 4, at 134.

7. Friedman, supra note 2, at 1297–98.

214 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. XXII:213

regulation of professional occupations was within the power of the state.

8

In his

concurrence, Justice Bradley departed from this deferential approach, claiming

that the legal profession should exclude women, when he noted that “[t]he 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 women are to fulf‌ill the noble and benign off‌ices of wife and mother. This is

the law of the Creator.”

9

Fast forward about a century and a half later, and I am a f‌irst-year student at

Georgetown University Law Center, reading Justice Bradley’s concurring opin-

ion and critiquing his sexist rhetoric reinforcing the ideology of “separate

spheres,”

10

what feminist scholars have referred to as the patriarchal belief that

women belong in the private sphere of the home and men belong in the public

sphere of the workplace.

11

Today, American women outnumber men attending

law school across the country.

12

Additionally, the editors-in-chief of the top law

reviews are all women.

13

Despite these profound achievements, vestiges of

Justice Bradley’s opinion still linger. Although 40% of law school students were

women in 1985 and women reached a majority of incoming J.D. candidates in

2001,

14

women have not yet attained parity with men in the upper echelons of the

profession. Approximately 20% of law f‌irm equity partners are women;

15

35% of

federal court judges are women;

16

and 36% percent of tenured or tenure-track

8. Writing for the majority, Justice Miller cited the recently decided Slaughterhouse Cases, f‌inding

that a state does not violate the Fourteenth Amendment and abridge the Privileges and Immunities of its

citizens by regulating admission to the bar. Id. at 1297; see Bradwell v. Illinois, 83 U.S. 130, 141 (1872)

(holding that it is the states’ right to regulate admission to the bar).

9. Bradwell, 83 U.S. at 141 (Bradley, J., concurring).

10. Murray, supra note 4, at 134 (providing further information on the comparisons between the

ideology of separate spheres and Justice Bradley’s concurrence). The Illinois Supreme Court also noted

the ideology of separate spheres in its opinion denying Bradwell’s admission to the bar, stating, “That God

designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply and

execute the laws, was regarded as an almost axiomatic truth.” In re Bradwell, 55 Ill. 535, 539 (1869).

11. See Linda Kerber, Separate Spheres, Female Worlds, Woman’s Place: The Rhetoric of Women’s

History, 75 J. AM. HIST. 9, 14–16 (1988) (providing an in-depth historical overview and explaining the

“public/private dichotomy” concept of the separate spheres ideology).

12. Stephanie Francis Ward, Women Outnumber Men in Law Schools for First Time, Newly

Updated Data Show, ABA J., (Dec 19, 2016, 9:03 AM CST), https://www.abajournal.com/news/

article/women_outnumber_men_in_law_schools_for_f‌irst_time_newly_updated_data_show. The incoming

Georgetown University Law Center class of 2021 was 59% female. Georgetown Law Juris Doctor

2019-2020, https://www.law.georgetown.edu/wp-content/uploads/2019/09/JD_Viewbook_19.pdf (last visited

Mar. 26, 2020).

13. Karen Sloan, Women Hold Editor-in-Chief Positions at the Sixteen Most Elite Law Reviews,

LAW.COM (Jan. 21, 2020, 3:52 PM), https://www.law.com/2020/01/21/women-hold-editor-in-chief-

positions-at-the-16-most-elite-law-reviews/.

14. Dara Purvis, Female Law Students, Gendered Self-Evaluation, and the Promise of Positive

Psychology, 2012 MICH. ST. L. REV. 1693, 1695 (2012).

15. Risa L. Goluboff, On Firsts, Feminism, and the Future of the Legal Profession, in WOMEN &

LAW 81, 90 (2020) (joint publication of the top sixteen law reviews).

16. Id. For minority women, this number hovers around 2.8%. For more information about the

additional obstacles and hardships that minority female attorneys experience, see Kristen Hardy, Don’t

2021] TEARING DOWN THE MATERNAL WALL 215