INTRODUCTION I. THE RISE AND GROWTH OF THE LARGE WASP LAW FIRM A. The Theory." The A-Religious Identity of the Large Law Firm B. The Reality: The "Hidden" WASP and White-Shoe Identity of the Large Firm 1. Nativism, anti-Semitism, and snobbery 2. The "hidden" religious identity of the large WASP firm 3. The "hidden" cultural identity of the large WASP firm 4. Institutionalizing elite status." elite education and professional regulation C. The Growth of the WASP Firm 1. The growth of the large firm--the standard account 2. Elite professional status, WASP religious identity, and white-shoe cultural identity as impetus for firm growth II. THE RISE OF THE LARGE JEWISH LAW FIRM A. The "Jewishness" of the Jewish Firm B. The WASP Roots of the Jewish Law Firm's Success 1. Protected pockets of "Jewish" practice areas 2. Effective discrimination by WASP firms in the shadow of a robust supply of Jewish lawyers 3. Tournament theory and the white-shoe ethos as a restriction on firm growth C. Being at the Right Place at the Right Time--and Making the Most of It 1. Size and numbers matter 2. The visibility of individual success and its impact on firm growth 3. The "flip side of bias". 4. The rise of inside counsel 5. A Jewish client base III. THE DEMISE OF THE LARGE RELIGIOUS LAW FIRM A. The Disintegration of the Religious and Cultural Identity of the Large WASP Firm 1. Embracing meritocracy 2. The professionalism paradigm shift: The rise of "law as a business" ideology 3. The economics of discrimination in play 4. The decline of religious discrimination B. The Decline of the Religious Identity of the Large Jewish Firm 1. The collapse of the Jewish firm monopoly on recruitment of Jewish lawyers 2. The "flip side of bias" revisited and the future of the Jewish firm C. The Large Law Firm in the Post-Religious Age--Can It Sustain Its Elite Status? CONCLUSION INTRODUCTION
During their "golden era" in the 1950s and 1960s, (1) large American law firms (2) were segregated along religious and cultural lines between WASP and Jewish law firms. (3) The rise and success of large law firms with distinctive religious and cultural identities is surprising because the large firm was purportedly a-religious and meritocratic.
After introducing the conventional wisdom regarding the explicitly a-religious and meritocratic identity of the large law firm, Part I explores the "hidden" religious and cultural identity of the WASP law firm. (4) It argues that the dual and seemingly contradictory identities of the large firm were a product of its complex quest for professional elite status. Seeking professional status and recognition, or in Larson's terminology, participating in the "professional project," (5) required the large law firm to present itself as a-religious and meritocratic. Seeking to establish itself as the elite within the ranks of the legal profession, however, the large firm cultivated and pursued a parallel de facto WASP identity. It first translated elite Protestant values and white-shoe ethic into elite professional status and later on, with its elite status secured, relied on its religious and cultural identity to enable its rapid growth.
Part II studies an unintended and counterintuitive consequence of the WASP identity of the large firm--the rise and growth of the Jewish firm. Though as late as 1950 there was not a single large Jewish law firm in New York, by the mid-1960s six of the largest twenty law firms were Jewish, and by 1980 four of the ten largest law firms were Jewish firms. Moreover, the accomplishment of the Jewish firms is especially striking because while the traditional large WASP law firms grew at a fast rate during this period, the Jewish firms grew twice as fast and did so in spite of explicit discrimination. Part II asserts that the WASP identity of the large firm--and the consequences and commitments embedded in it--led to the emergence of firms that were Jewish by discriminatory default and fostered conditions that explain the rapid growth of the Jewish firm. (6)
Part III investigates the demise of large religious law firms, WASP and Jewish alike. It tracks the disintegration of the hidden religious identity of WASP firms, the decline of the overt religious identity of Jewish firms, and concludes by exploring the ability of the large law firm to sustain a credible claim for elite professional status in the post-religious twenty-first century.
THE RISE AND GROWTH OF THE LARGE WASP LAW FIRM (7)
The Theory: The A-Religious Identity of the Large Law Firm
The large law firm emerged as a distinctive unit of law practice around the turn of the twentieth century. (8) The literature on large law firms describes six unique organizational characteristics of the new entity: a hierarchical structure based on two distinct types of attorneys, partners and associates; (9) close working relationships among partners and associates emphasizing teamwork as opposed to individual work product; (10) development of recruitment procedures based on a carefully prescribed path of excellence, (11) followed by systematic training of associates; (12) a probation period for associates, followed by promotion to partnership for some and an "up or out" policy for those not promoted; (13) specialization of individual attorneys' expertise and departmentalization of work within the firm based on groupings of individual attorneys; (14) and utilization of technology. (15)
The omission of religion as an explicit formal organizing theme of the new entity is by no means a coincidence. The large law firm's organizational structure, commonly referred to as the "Cravath System," (16) reflected a vision and an ideology of the practice of law which was radically different from the era's accepted and prevailing notions of lawyering. (17) Cravath's model sought to develop and implement a professional ideology of meritocracy based on quality standards of professional performance. (18) Cravath's meritocracy, reflected in the organizational characteristics of the new firm, purported to deem considerations such as religious affiliation, cultural and socioeconomic background, ethnic identity, and social status irrelevant in assessing professional qualifications. The new large firm was ostensibly a-religious because religion per se, like cultural and social standing, was irrelevant under its new, merit-based model of professionalism. In a speech at Harvard Law School in 1920, Cravath specifically stated that a person's family connections or social class were irrelevant to success in the law:
He advised his hearers that for success at the New York bar "family influence, social friendships and wealth count for little" and he emphasized the large number of successful lawyers who had come to New York from small places and "worked up from the bottom of the ladder without having any advantage of position or acquaintance." (19) Similarly, Arthur Dean of Sullivan & Cromwell opined:
In today's larger legal partnerships advancement is by and large by competence alone. Those who achieve positions of influence and leadership in such firms tend to be those who have manifested their ability to relate into a more comprehensive picture diverse fields of specialization and to view the major problems of clients in a broad social perspective. (20) Indeed, religion as an organizing theme was not only irrelevant but inconsistent with the merit-based vision and structure of the Cravath System. (21)
In fact, Cravath's version of merit-based professionalism was aligned with the emerging notions of professionalism advocated by the newly organized legal profession. (22) Magali Larson has famously argued that the "professional project" is "an attempt to translate one order of scarce resources--special knowledge and skills--into another--social and economic rewards." (23) Importantly, Larson argued that the legitimacy of professionalism was not based on class and property but "on the achievement of socially recognized expertise" and on the creation of a systematic body of knowledge: the image of formal training and meritocratic standards was a desirable asset, lending high public credibility to the claims of expertise and professionalism. (24)
The legitimacy of both the "professional project" and, more specifically, the new entity's claim for professional status depended on avoiding "irrelevant" considerations such as attorneys' religious affiliations or cultural backgrounds. As the legal profession and large law firms were trying to establish their professional status, the latter could not afford to acknowledge formally a religious or cultural identity. Large law firms bearing an explicit religious identity would have been inconsistent with the claim for merit-based professionalism and would have pulled out the rug from underneath the law's "professional project."
Moreover, the apparent rejection of religion as a constitutive feature of the Cravath System was consistent with the teachings of formalism, the dominant American jurisprudential school of thought until the 1920s and 1930s. (25) Formalism celebrated law as an independent science, a body of esoteric knowledge based on and derived from general self-contained principles. (26) In particular, law was to be independent of religion, (27) the practice of law was to be free of religious influences, (28) the professional identity of attorneys was to be separate and distinct from their religious identity, and the religious identity of a firm was to be non-existent. For the new law firm to formally adopt a religious identity would have amounted to a rejection of formalism and its claim for the law's independence from religion. (29)
The Reality: The "Hidden" WASP and White-Shoe Identity of the Large Firm
By 1920, the supposedly a-religious organizational structure of the Cravath System dominated the expanding world of large law firms, (30) and by the 1960s, it was so entrenched as to become synonymous with the notion...