WOMEN'S PARTICIPATION IN THE LEGAL PROFESSION

In every known society, the male's need for achievement can be recognized. Men may cook, or weave, or dress dolls or hunt hummingbirds, but if such activities are appropriate occupations of men, then the whole society, men and women alike, votes them as important. When the same occupations are performed by women, they are regarded as less important. In a great number of human societies men's sureness of their sex role is tied up with their right, or ability, to practice some activity that women are not allowed to practice. (Mead, 1975: 159-160)

The participation of women in the legal profession is remarkably uniform in the western industrialized nations (with a few notable exceptions). Since the 1970s women have entered in dramatic numbers, often accounting for all the growth in student enrollments and the profession. Because the profession has been growing, women generally have not displaced men or disturbed the male-dominated power structure. However, recent data demonstrate that the entrance of women has slowed the growth of the number of men (Curran, 1986).

Underemployment among lawyers also has increased. Women are disproportionately represented among those unemployed, employed part-time, and underemployed (Liefland, 1986). Women tend to earn less money than men in equivalent jobs. Perhaps most significantly, women and men are differently distributed across spheres of legal activity. Women are almost always found at the bottom of the professional hierarchy. Gender does not operate alone, however; occupational segregation is even greater when we add the variable of race (Sokoloff, 1987; Higginbotham, 1987) and marital status (Chambers, 1987; Swan, 1983).

WOMEN IN LEGAL EDUCATION

Women began entering law faculties in large numbers in the late 1960s and early 1970s (Neave, chap. 4, above). The reasons differ from country to country: in the United States the Vietnam war and its accompanying social reform and protest movements and the loss of draft deferments by male students, everywhere in Europe the expansion of universities, in Germany the decrease in teaching jobs (Blankenburg & Schultz, 1988). However, most nations felt the effects of the international women's movement (L. Gordon, 1976), postwar prosperity, and increased state subsidization of higher education (now declining in some countries, such as Great Britain) (Neave, chap. 4, above; Fossum, 1980). While the proportion of

women climbed rapidly in most countries, it has leveled off at 30 to 40 percent (although women constitute more than half of all law students in France, Norway, and Yugoslavia) (Abel, chap. 3, above).

In the United States women were barred from many law schools until well into the twentieth century; Washington and Lee in Virginia was the last to admit them, in 1972. Women gained entry most easily in state universities in the West and Midwest and encountered maximum difficulty in the elite Ivy League schools of the Eastern establishment (Morello, 1986). In some cases they had to bring lawsuits; in others they mobilized the influence of sympathetic fathers and husbands. One of the greatest embarrassments to American legal education is the association of some of its leading figures with sex discrimination. Clarence Darrow thought that women were too kind to be good lawyers; Harlan Fiske Stone barred women from Columbia Law School for several years; Roscoe Pound and Erwin Griswold did the same at Harvard until Dean Griswold begrudgingly admitted them in 1950 in "small numbers" (Morello, 1986).

Until the 1960s, women represented about 3 percent of American law students. By 1970 the percentage took its first leap forward to a little over 8 percent and then climbed steadily through the decade, stabilizing at about 40 percent in the mid-1980s (although some schools had enrollments of more than half women, such as Rutgers and Northeastern) (C. Epstein, 1981; Curran et al., 1985; Abel, 1986, 1988a ). This rapid growth of women in legal education in the United States can be explained in part by the increasing number of available seats; throughout the 1960s and 1970s new law schools opened and others expanded enrollments. Since the mid-1980s national enrollments have decreased, some schools have closed (e.g., Antioch), and legal educators have begun to worry about shrinking enrollments and declining student quality. As expansion slowed, the number of male applicants to American law schools has actually decreased (0.1 percent a year since the 1970s), while female enrollment has increased at an average annual rate of 41.4 percent (Abel, chap. 3, above).

Similar patterns are found in other countries. In England and Wales, the number of male university law graduates increased at an average annual rate of 5.4 percent between 1967 and 1978, but the number of female graduates increased at 31.2 percent (rates at polytechnics were similar) (Abel, 1988b ). In Canada the number of male students doubled between 1962/63 and 1980/81, while the number of female students increased twenty-four times. Women now represent approximately 35 to 40 percent of new entrants in virtually all provinces (Arthurs et al., 1988). There seems to be a higher proportion of women lawyers in French than in English Canada, which would parallel developments in Europe (Abel, chap. 3, above). These differences may be explained by the varying status of the profession across cultures (Silver, 1974).

In Continental Europe, where law is an undergraduate degree, women represented 37 percent of German law students, 54 percent of French, 35 percent of Belgian, and 54 percent of Norwegian, as of 1983.

In Brazil, where law represents a liberal education for the. Elite, women were about 25 percent of law graduates in 1980. Although women never were barred from law practice in New Zealand, they were only 9 percent of law students in 1981. Two years later they were 35 percent of law graduates at one university and were expected to be half of all lawyers with less than seven years of experience by 1990 (Murray, 1988).

In India and Japan women continue to represent a small fraction of law students (Abel, chap. 3, above; Gandhi, 1988; Rokumoto, 1988). In Japan this is attributed to the persistence of traditional beliefs that men should be breadwinners and women should perform domestic chores at home. Although coeducation has been the official policy since the late 1940s, women frequently are educated in single-sex schools. Although 95.5 percent of girls entered high school in 1984, compared to 92.8 percent of boys, only 12.6 percent of women attended four-year universities and colleges, compared to 36.4 percent of men. Furthermore, more than a third of postsecondary women students attended single-sex institutions, and the percentage of women in the older, prestigious coeducational universities remains very low. Increased sexual equality can be attributed to international pressures, most notably the United Nations Convention on the Elimination of All Forms of Discrimination of 1979, to which Japan was a signatory, and to Japan's desire to be seen as a "progressive" nation. These pressures come from the government and not from activist women's organizations. The small women's liberation movement of the early 1970s is dormant if not dead, and women professionals are satirized in the media as wanting to be men and as "ego-centrist elitists" (Kamiya, 1986a ).

These figures tell us only about women's entry into university law courses. There are wide national variations in the type of education and the likelihood that entrants will actually practice law. Italy and Brazil, for example, display high attrition rates during law study because entry is easy, but students must incur high opportunity costs in delaying earning capacity for as long as seven years, unassisted by government support. University law study is even less closely related to law practice than it is in the common law countries (Stevens, 1983), and practical legal education actually occurs in costly "crammer" courses, often established by private entities (and offering low-paid employment for law graduates). If legal education generally has become more available to women, entry into the profession remains controlled at later stages by alternative mechanisms. In Brazil, for example, women are 24.6 percent of law graduates but only 20.9 percent of legal professionals. These decisions are more particularistic, on the basis of factors such as personal affinity, and generally less visible.

Many students in Europe and South America study law part-time while working at some other job. This extended period, lasting as long as seven to ten years, frequently is interrupted by other employment opportunities, financial pressures, and changes in family structure (marriage and children).

The fact that female enrollment has stabilized at an almost uniform rate of 35 to 40 percent is difficult to explain. Is there some worldwide conspiracy to keep the profession predominately male, or have we collectively reached the "peak" of women's interest in the legal profession?

The increase of women in legal education in many countries has occurred at the expense of the working class (Neave, chap. 4, above). Despite democratization of the university, law students, including women, remain solidly middle- or upper-class in most countries (Abel, chap. 3, above). This presents a dilemma for feminist political activists, who want to align women with other groups excluded on the basis of race and class. However, in most Western industrialized nations feminism has represented a white middle-class movement (Hull et al., 1982; Bunch & Myron, 1974; Davis, 1981; Joseph & Lewis, 1981; Fox-Genovese, 1987). In the United States in recent years there has been a decrease in the number of ethnic minority students throughout higher education and particularly in legal education and admission to the bar.

WOMEN IN THE LEGAL PROFESSION: OVERVIEW

It will take another generation for the entry of women to have its full impact on the practicing legal professions of most countries. Although women constituted 34 percent of new entrants to the American profession in 1983, they still represented only 12 percent of lawyers. It is important to try to uncover the places and rates of female attrition, failure, or discouragement. There are many anecdotes about women leaving large law firms before the partnership decision because they fear negative decisions, but there is little systematic research (Liefland, 1986; Loden, 1986). One study of the Harvard Law School class of 1974 reported that many women opted off partnership ladder (Abramson & Franklin, 1986). Women still do not represent more than about 4 percent of partners in major law firms, though this is changing about one percent a year (C. Epstein, 1981; Fenning, 1984). It is said that women do not like the demands of the "greedy institutions," which require up to 2,300 billable hours a year, and they find the work inconsistent with childbearing plans (Stanford Law Review, 1982). If women graduate from law school at about age twenty-four and take about seven years to "make" partner, they must work hardest during the optimal years for bearing children (Harvard Woman's Law Association, 1985). Women also face greater discrimination at the higher levels of professional achievement and in discretionary employment decisions (Bartholet, 1982;

Fenning, 1984). A recent study of UCLA law students demonstrates that women may be preferred to men for summer law firm clerkships (especially if the interviewer is male)but still are less likely to be hired permanently (Png et al., 1988). This is consistent with national data demonstrating that women are now disproportionately likely to be large firm associates but remain underrepresented at the higher levels (Curran, 1986). Finally, many argue that it is simply too early to expect high rates of participation at the top levels of the profession, given career trajectories that require up to ten years before partnership. Thus, while rates of entry to legal education are quite high, rates of admission to the bar and actual participation in the profession are lower in most countries (Abel, chap. 3, above).

In the United States, the number of women admitted to the bar climbed dramatically throughout the 1970s, although the number of men admitted peaked in 1973. In Canada, women represent 35 to 40 percent of new entrants to the bar. In England and Wales 20 percent of those called to the Bar are women (although they constitute about 34 percent of law students); and in Scotland in 1982 they represented 36 percent of new advocates (and 40 percent of law students) (Paterson, 1988). Many countries report that women perform better than men in law school but still have greater difficulty finding jobs. In Norway, where 54 percent of law students now are women, a much smaller number actually enter the profession, partly because law study does not necessarily lead to practice but may serve as a general liberal arts education (Johnsen, 1988).

The British case illustrates the discrimination that appears during apprenticeship. Although comparable numbers of men and women law students receive honors, women have greater difficulty in obtaining pupillages and tenancies (only 40 to 45 percent of women obtain the latter, compared to 60 to 70 percent of men) and then finding clients (over half of the women surveyed reported problems) (Abel, 1988b ).

Although women have been legally entitled to practice since 1919, the Sex Discrimination Act of 1975 does not apply to the Bar because barristers are not "employees." The Equal Opportunities Commission recommended to the 1979 Royal Commission on Legal Services that both branches of the profession register as "training agencies" under the Act in order to provide further opportunities for women, set aside seats on the governing bodies, and offer maternity leaves and other flexible working arrangements. There is little evidence that these things have been done (Royal Commission, 1979).

The United States Supreme Court recently held that partnership status, although not itself "employment," was a "condition or term of employment" under the civil rights laws, which a major law firm may have violated in denying partnership to a woman (Hishon v. King & Spaulding, 1984; cf. Hopkins v. Price Waterhouse, 1985).

Women in Great Britain report discrimination not only from male bar-

risters but also from clerks and clients (Podmore & Spencer, 1982). As recently as 1967, two-thirds of London chambers had no women; in 1976 one-third still had no women. Many scholarships at the Inns of Court have been denied to women. In 1975, 17 percent of those called to the Bar were women but only 12 percent of those who commenced practice. In 1979, 50 percent of men called to the Bar had started practice but only 33 percent of women. Of those who began practice, 47 percent of the women had left within ten years of call compared to 13 percent of the men. Women barristers attributed these differences to the difficulty of obtaining a tenancy, whereas men said that women stopped working because they wanted to have children (Royal Commission, 1979). Apprenticeships may not constitute the same barrier for solicitors, but the attrition rate is quite high. In 1974 2,296 women were on the rolls, but only 1,299 women took out practicing certificates. A higher percentage of women law students than men express interest in becoming solicitors, a reflection of the greater discrimination in the banister's apprenticeship (Abel 1988b ).

Thus, while the enrollment of women, in meritocratic university education has expanded, the actual participation of women in law practice is increasing at a generally slower but widely varying pace because of resistance by the male-dominated profession. While some of the barriers express blatant or subtle discrimination, others are socially constructed impediments that are presented as external choices by women. As long as partnership decisions are timed to coincide with the years of childbearing, women may be unable to succeed in large numbers. Even when some American firms permit maternity leaves or allow part-time work, women who avail themselves of such "innovations" find they are considered less committed as lawyers (Abramson & Franklin, 1986; Fenning, 1985; Stanford Law Review, 1982). Thus, women are perceived as "opting out" without any thought whether the work structure contains impediments that preordain the outcome. Such "neutral" rules or constructs have a "disparate impact" on women. Both men and women law students still expect women to bear the principal burdens of childrearing, which are inconsistent with conventional work structures (Stanford Law Review, 1982).

Outside the Western industrialized world different patterns emerge. The number of women in the legal profession in Ghana is relatively high (over 8 percent as early as 1974) compared with many Western countries at that time. One analyst has attributed this to the strong and independent economic role of women in traditional Ghanaian culture, although women do not fare well in obtaining access to education if they must compete with brothers. In an ironic reversal of the patterns discussed above, women who graduate from law school may actually have an easier time obtaining initial jobs, precisely because they are expected to leave shortly after

having children and thus do not represent as great a commitment for a law office. Although a large proportion of women lawyers do not marry, household help is much more available than in the West. Women still spend more time with their families than do men and consequently are more likely to be found in the less demanding public sector jobs, with lower pay and prestige (Houghton, 1981).

In the Soviet Union women are well represented in the legal profession (as well as in medicine). In 1975 they were more than half of those employed in the legal system: about 40 percent of lawyers, over one-third of judges, and about one-tenth of those in leading positions in courts and ministries of justice. As in other countries, however, the majority of women work at the lower levels, as notaries, investigators, and assessors (Matveev, 1977/78). The proportion of women in the legal professions is higher in socialist countries partly because those administrative jobs are less prestigious than the commercial work and litigation performed by lawyers in capitalist nations.

The proportion of women in the legal profession is smallest in Japan and India. In 1981 women represented 2.7 percent of the Indian bar. Even upper-caste women in the Punjab encounter structural barriers and are expected to interrupt their careers to bear and raise children (Sethi, 1987). In Japan women represent about 10 percent of those who pass the extremely difficult bar examination. Fewer than ten women are prosecutors, and only about fifty are judges, most at the lower levels (district and family court) (Kamiya, 1986 b ). These data suggest that traditional gender roles remain very strong in Asian cultures.

Although relatively large numbers of women work in the judicial system in Morocco, they suffer "humiliation" at home and have failed to act collectively to challenge a legal regime in which "polygamy, repudiation and unequal inheritance are daffy practice," for fear of the repercussions at home. Women are largely excluded from the important spheres of politics and religion. Those who work at all are encouraged to remain in the "social-cultural" sectors of their professions—the arts, education, medicine, and some segments of the civil service (Memissi, 1986).

OCCUPATIONAL SEGREGATION OF WOMEN IN THE LEGAL PROFESSION

The most significant finding of this comparative study is that women everywhere are concentrated in the lowest echelons of the profession, although these differ from country to country. There appears to be a push-pull effect: women are "pulled" into work for which they are thought to possess special talent (such as domestic relations) and "pushed" (or more

likely kept) out of high-status work (such as private commercial matters in capitalist regimes). Gender segmentation of the work force is amplified by the fact that some occupations, particularly those in the public sector in Europe, have done much more to accommodate the burdens of childbearing and childrearing.

Public Versus Private Sector and Litigation Versus Transactional Lawyering

In Germany, women prefer public sector jobs because the civil service, particularly the judiciary, permits part-time work and allows maternity leave for many years with guaranteed reentry to the same job. Women currently represent 28 percent of judges in practice training and 30 percent of all probationary judges (those with less than three years' experience). Unfortunately, these jobs are becoming less available as the economy slows. Since women experience difficulty in obtaining jobs in private corporations many are becoming advocates. In 1983 they represented 36 percent of advocates (Blankenburg & Schultz, 1988).

In Belgium, by contrast, where judges are less numerous and even more prestigious, women are less well represented. They constituted 14.5 percent of the judiciary in 1982, and only 3.5 percent at the highest level, but 20 percent of the bar. Women made up less than 5 percent of law graduates employed in banking and other commercial spheres but 23.4 percent of law teachers and 35.6 percent of advocates. They represented only 3.5 percent of notaries—a highly prestigious and remunerative office in Belgium—but 80 percent in the Soviet Union, where the functions are more bureaucratic and ministerial. Women represented 35 percent of law students but 50 percent of law graduates seeking work, which suggests higher levels of unemployment. Fifty percent of all Belgian women attorneys work in Brussels, perhaps because lifestyle is more anonymous in the city (Huyse, 1988). In contrast, French women lawyers are over-represented in suburban practices serving working-class populations and underrepresented in prestigious commercial Paris practices (Boigeol, 1988).

In Norway women are underrepresented in litigation partly because the role is viewed in Norway as requiring "aggressive defiance" and contacts with trade, both of which women are thought to lack (Johnsen, 1988). They are overrepresented in the lower ranks of the central government. Women in private practice handle two-thirds of all personal relations clients, while men handle three-fourths of all matters involving property (twice as many men as women reported having consulted a lawyer: 27 vs. 13 percent).

In Brazil women are 46 percent of all legal aid attorneys, who earn the lowest salaries, and 20 percent of public prosecutors. Because poverty makes the courts inaccessible to most people, police chiefs (who are law graduates) settle many disputes. Women constitute only 6 percent of police chiefs (Falcäo, 1988).

In the common law countries the patterns are strikingly uniform. Women are underrepresented at the highest levels of private practice; and although they are overrepresented in public sector jobs, they are concentrated at the lower levels. Few women have been lawyers long enough to have climbed the ladder to a senior partnership or high court judgeship. In the United States, 21 percent of women but only 12 percent of men are in government positions (Curran et al., 1985; Vogt, 1986; Chambers, 1987). Women in the private sector are overrepresented in large firms (as junior associates) and in solo or very small practices and underrepresented in medium-sized firms. This may reflect their perception that large firms are more bureaucratic, adhering to universalistic standards, and small firms offer dose personal relationships, whereas medium-sized firms permit the greatest scope for discrimination. In 1984 women were 15 percent of all law firm associates but only 2 percent of partners (Curran et al., 1985). This latter figure is changing yearly; a study of Los Angeles firms with over 100 lawyers revealed that 3 percent of partners were women in 1983 but 4 percent in 1984 (Fenning, 1984). Still, given the rapid increase in the number of women entering the profession in the 1970s, these partnership rates seem quite low. A recent study of the Harvard Law School class of 1974 revealed that, although women were more likely than men to begin working at large elite law firms, ten years later 23 percent of those women were partners, compared to 51 percent of the men. Over half of the 49 women who initially entered large firms had left within ten years (Abramson & Franklin, 1986).

In England few women are heads of chambers, Queen's Counsel, or judges. Women barristers are concentrated in the least favored specialties—criminal law, domestic relations, and general civil practice—and rarely found in the more remunerative fields of tax, commercial law, and chancery practice. In Scotland, only 2 out of 148 principals in the leading law firms were women (Paterson, 1988).

Women are also overrepresented outside the professional category. In the United States women account for almost all the paralegals—paraprofessionals who perform routine legal tasks and "assist" lawyers. In Japan women make up 67 to 78 percent of law clerks (Rokumoto, 1988).

Recent research confirms the relative stability of these patterns in the United States. A study of University of Michigan Law School graduates who entered the profession in the late 1970s demonstrates that five years

after graduation 70 percent of men worked in private practice compared to 44 percent of women; 37 percent of women, compared to 21 percent of men, were in government service, legal aid, or offices of corporate counsel; 15 percent of women compared to 9 percent of men were in teaching; and 4 percent of women but no men described themselves as "full-time parents" (Chambers, 1987). A study of law school graduates from seven Northeastern law schools revealed that women were twice as likely as men to be in government positions eleven years out of law school and much less likely to be employed in law firms of all sizes. Women were greatly over-represented in legal aid and law-related work and greatly underrepresented in large firms and non-legal business positions (Vogt, 1986).

Although the Chambers study is limited to a single elite American law school, it does suggest some reasons for these differences. More men than women recall beginning law school with an intent to enter private practice; after five years of private practice, more women than men decide to leave. Men and women explain that pressures of work and family tend to push women out of private practice in both large and small firm settings. (This can be contrasted with the Stanford study, which revealed that women were much more likely than men to be conscious of family and work conflicts.) The national data, by contrast, reveal that women are found in very small firms specializing in "women's areas," like domestic relations work, where they may have more control over their work lives (Curran, 1986). Women's political values may explain some of the differences: women were more likely than men to describe themselves as liberals, and political orientation was the most powerful variable in explaining who chose government service and legal aid. Within each graduating class, smaller proportions of women than men obtained partnerships. Thus, there is support for the claim that women may be suffering discrimination in partnership decisions (Fenning & Schnegg; 1983). Preliminary data from the classes of 1982-1986 indicate that the proportion of women entering private practice has increased, so that at least at one elite school gender differences in choice of work setting may be narrowing.

Work and Life Cycle

In a study analyzing aggregate 1980 U.S. census data, Halliday et al. (1987) found that women lawyers were more likely than men to be employees in bureaucratic settings, where they worked fewer hours and were paid less. Women lawyers exhibited greater changes in the number of hours worked at different stages of their life cycle. One reason may be that more women attorneys than men were divorced with children and had no other source of support, either social or financial.

A recent proposal by the Working Party on Women's Careers of the Law Society in London has suggested that the profession must take responsibility for women's childrearing responsibilities by providing reduced fees for practicing certificates, refresher courses for those returning to work, tax relief for childrearing expenses, institutionalization of part-time work for solictors, and maternity leave, pay, and security clauses in partnership agreements (Working Party on Women's Careers, 1988).

Race

Occupational segregation is even stronger when race is combined with gender. Some have argued that black women have actually done "better" than white women. Sokoloff (1987) focuses on percent change, which draws attention to the small base from which black and other minority women began. Cynthia Epstein (1973) proposes a more qualitative argument that minority women have been able to take advantage of a "double negative" and that black women have done better as professionals, when compared to black men, than their white sisters have when compared to white men. She attributes this to the black woman's recognition that she may not be able to depend on male income and that, because she is black, she will not be considered a "woman" in the workplace (unless employers wish to take credit for hiring a member of two underrepresented categories).

Much of this analysis has been discredited in recent years. Given the broad definitions of "professional" job classifications in American census categories, the numbers of black women may appear to be greatly improving when many of the "professional" job classifications actually are "technical" or "assistance" jobs (such as paralegals) or female-dominated professions (teaching and social work) (Sokoloff, 1987). More detailed analysis of where minority women are located in specific professions, such as law, reveals even greater occupational segregation. Black women are more likely to work in the public sector (as a result of civil rights victories), the criminal justice system (disproportionately in public defender jobs), and small firms in large cities, serving mainly black populations (Higginbotham, 1987). This "ghettoization" within both specific jobs and geographic locations may parallel the American immigrant experience, particularly that of Catholics and Jews in large cities. But white male immigrant entry to the profession has been characterized by firms serving local communities (Heinz & Laumann, 1982), some with great success (the "Jewish" firms of mid-town Manhattan), or by eventual integration into mainstream law firms (Auerbach, 1976). There is less evidence of such "success" among minority women, whose "communities" may be less affluent.

The Judiciary

Even when women attain prestigious jobs, their access routes may be different. A study of recruitment to the American judiciary reveals that women (both white and minority) were more likely than men to have attended Ivy League law schools and to have excelled academically and less likely to have been active in local politics or to have achieved judicial office by election (rather than appointment). Also, women (and minorities) were less likely to have come from private practice (especially as litigators) and more likely to come from academia, other judgeships, and other public offices (Slotnick, 1984).

Women in Legislatures

Recruitment to the legislature also appears to be different for women. While 44 percent of the men in the U.S. House of Representatives and 66 percent of the men in the Senate are lawyers, only one woman representative is a lawyer. Most women legislators have backgrounds in social work, served on school boards, or "inherited" their jobs from deceased husbands. Many of the most prominent women attorneys in American public life have been married to prominent male attorneys: U.S. Supreme Court Justice Sandra Day O'Connor; U.S. Court of Appeals Judges Shirley Hufstedler, Patricia Wald, and Ruth Bader Ginzberg; and Cabinet members Elizabeth Dole and Carla Hills. Although this should not detract from their own notable achievements, it does raise questions about access to power and the role of supportive spouses (and parallels the experience of many of the pioneer women lawyers in the nineteenth century) (Fossum, 1987).

Bar Associations

Most common law countries also report low representation of women in the governance of bar associations, whether compulsory or voluntary. Women are rarely to be found in the Councils of the Law Societies in Scotland, England, or New Zealand. Similarly, women are virtually absent from the House of Delegates to the American Bar Association and are just beginning to occupy leadership positions in state and local bar associations (Fenning, 1987). This, of course, is attributable to the fact that such positions are filled from the elite commercial sectors of the bar, where women remain underrepresented. In some countries women have formed their own bar associations in recent years. There is some evidence that women's bar associations improve women's status in the profession by serving as

both a source of female candidates for public office and a powerful lobbying agent (Fenning, 1987). However, some feel that separate bar associations only exacerbate occupational segregation and distract women from becoming active in the male-dominated bar associations.

Substantive Law Reform

Many assert that women's bar associations are necessary for articulation of women's substantive law reform concerns. In Canada, for example, the Women's Law Association is a general membership organization, but the Women and Law group has a more explicitly feminist political agenda, focusing on the role of women in the profession and the impact of law on women (Arthurs et al., 1988; Harvey, 1970). In a recent California Supreme Court case involving the legal treatment of a professional degree at the time of marital dissolution, two women lawyers groups differed over appropriate political strategy. The Women Lawyers Association of Los Angeles argued on behalf of the wife's interest in having the degree considered community property (and thus shared), while the California Women Lawyers' Association identified with their professional class by seeking to have the degree treated as separate property (thus protecting women's new professional status and income investment) (Menkel-Meadow, 1985).

Similar conflicts faced American women lawyer groups in litigation over pregnancy disability leave. The issue was whether pregnancy was to be treated like any other disability, assimilating women to a male standard in a claim for equality (the federal approach), or whether to acknowledge actual physical differences requiring accommodation in the workplace in order to equalize opportunities (the state law) (Williams, 1984; Littleton & McCloud, 1986). The U.S. Supreme Court decided that states could go "beyond" federal formal equality in granting some "additional" protection for pregnant workers but were not required to do so (California Federal Savings v. Guerra, 1987; Wimberly v. Labor & Industrial Relations Commission, 1987; Littleton, 1987).

These differences in philosophy and approach can already be seen in the personal stories of women lawyers that demonstrate the variations in class and gender identifications (Couric, 1983; Smith, 1984; Abramson & Franklin, 1986; Morello, 1986; Warsaw, 1987).

WOMEN LAWYERS' INCOME

The extent of occupational segregation is confirmed by the available data on women lawyers' incomes. In Ontario, Canada, women may have little

difficulty entering elite law firms, but five years after law school all women earned Can$2,946 less per year than men (Adam & Lahey, 1981). More recent Canadian studies confirm that women earn less than men with comparable experience, in large part because they practice less remunerative subjects (family law) and work fewer hours (Hagan, 1987; Hagan et al., 1988). Yet, as earnings at the Canadian bar have decreased in recent years, women have suffered slightly less than men (in part because their starting point was lower) (Stager & Foot, 1988a , 1988b ). In New Zealand, only 2 percent of women earn over NZ$50,000 (compared to 25 percent of men), and 7 percent of women but no men earn under NZ$7,000 (Murray, 1988). In a poorer nation, Brazil only 5 percent of men but 15 percent of women earn less than three times the minimum wage, and 21 percent of men but only 5 percent of women earned twenty times the minimum wage (Falcäo, 1988). In England female barristers earned about half what male barristers earned with the same experience and type of practice (Royal Commission, 1979; Abel, 1988b ; Pearson & Sachs, 1980).

Several American studies demonstrate that women continue to earn considerably less than men in comparable jobs. A 1982 study of Minnesota lawyers revealed that the median income for women lawyers was $27,960, compared to $43,690 for men. Disparities persist within age cohorts: among those who graduated between 1975 and 1981, women earned $26,810, compared to $33,410 for men (Silas, 1984).

The study of University of Michigan law graduates attributed income disparities within age cohorts ($48,000 versus $40,000) to the fact that women worked disporportionately in lower-paying fields (Chambers, 1987). The 1980 U.S. census data suggest that women are more likely to interrupt careers and to work for fewer hours. Women are more likely to be working in public sector jobs that do not require as many "billable" hours; and women's work hours drop when children are born (but increase dramatically when women become single mothers). Nevertheless, within all age cohorts women's mean hourly wage is less than men's and women's total income is considerably less than men's, the greatest differential occurring at the "peak" professional years of forty-five to fifty-five (Halliday et al., 1987).

Among those who had graduated from seven Northeastern law schools eleven years earlier, women earned less than men in every size of law firm and in nonlegal business positions. Women and men earned similar salaries only in legal services and "law related" occupations, such as teaching (Vogt, 1986).

EXPLANATIONS: THEORIES OF OCCUPATIONAL SEGREGATION

The composite picture that consistently emerges from these data despite difficulties of comparison, is that women legal professionals, while more

numerous, continue to face occupational segregation, low status, and lower income. The segregation of the sexes in the workplace has been well documented across all types of work—unskilled, skilled, and professional—not only in the Western world but also in socialist and third world nations (Blaxall & Reagan, 1976; Reskin, 1984; Reskin & Hartmann, 1986; Bose & Spitze, 1987). Widely differing theories have been offered to explain these patterns, ranging from historical to psychosocial and economic, from patriarchal oppression to women's preferences (Rhode, 1988). With respect to the legal workforce, some have argued that the very recent entry of women into the legal profession explains much occupational segregation, which will soon fade away (Chambers, 1987). That has not happened elsewhere, however; gender configurations in the workplace are remarkably durable. As a profession such as teaching or clerical work begins to change gender composition it often "tips" and becomes the work of the other sex; or subfields within a profession remain sharply segregated, even when the "profession" broadly defined seems to become integrated (as in banks and the computer industry) (Nieva & Gutek, 1981).

Occupational segregation is measured by an index that represents the "minimum proportion of persons of either sex who would have to change to an occupation in which their sex is underrepresented in order for the occupational distributions of the two groups to be identical" (Reskin & Hartmann, 1986: 18). The index is 0 where there is complete integration and 100 where there is complete segregation. Indices of segregation are computed within occupational groupings, industries, and firms. Several researchers using census data for more than ten occupational categories found that race segregation fell dramatically between 1940 and 1981 in the United States (from 43 to 23 among men and from 62 to 17 among women), while gender segregation has decreased much less (from 46 to 41 among whites and from 58 to 39 among minority races) (Treiman & Terrell, 1975a , 1975b ; Reskin & Hartmann, 1986). One researcher, using a limited number of occupational categories, computed national indices of occupational sex segregation, which ranged from a low of 27 for Japan to a high of 60 for Sweden, with the United States falling toward the high end with 47 (Roos, 1985). Men are more likely than women to work in sex segregated occupations: in 1980, 71 percent of all American men were employed in jobs that were at least 80 percent male, while only 48 percent of women were employed in jobs that were 80 percent female (Reskin & Hartmann, 1986). A recent California study demonstrates that segregation may be strongest within firms; women and men shared no job titles in 201 of the 393 firms studied, and 30 firms employed no women at all (Bielby & Baron, 1984). This is consistent with data showing that a small minority of law firms and chambers have hired virtually no women or made no women partners (Fenning, 1985; Royal Commission, 1979; Pearson & Sachs, 1980).

"Preferences"

It has been long claimed that occupational segregation is the product of individual preferences. Historically, this argument reflects the pride with which nineteenth-century women in the Western world claimed "moral superiority in their separate sphere" (Bernard, 1976). Women were said to choose occupations that were extensions of their nurturing familial roles: teaching, medicine, and social work. More recently, some psychologists and sociologists have claimed that little girls assert preferences for "female" work and that these are consistent with cultural stereotypes about appropriate sex roles and "innate" sexual differences in aggressiveness, endurance, capacity for abstract thinking, and emotionalism. However, the extensive research on gender differences has failed to demonstrate strong consistent differences in psychological or performance measures (Maccoby & Jacklin, 1974).

Socialization

Other have argued that any "preferences" are the result of socialization, not innate characteristics. They have demonstrated how early in life sex role education begins and how quickly it serves to differentiate sexual expectations about performance (Treiman & Hartmann, 1981). Occupational aspirations may become more sex-typed with age, education, and media exposure and continue well into adulthood (Marini & Brinton, 1984). Tracking, single-sex vocational training, and teacher expectations all have been related to expressed occupational preference (Reskin & Hartmann, 1986).

Human Capital Theory

Human capital theory suggests that women do not invest in the extensive training required for professional "careers" when they expect to hold temporary and interrupted "jobs" (Becker, 1974). Although this "explanation" is contradicted by the large number of women who have "invested" in legal education, law firms still invoke it, particularly the assumptions about women's commitment to work, in making partnership decisions and justifying the lower salaries paid to women.

Institutional Opportunity Structures

Opportunity structures in particular jobs and industries obviously are affected by formal barriers, such as the legal prohibitions against practicing

a trade or profession. But perhaps just as important are the economic changes that occur during wartime mobilization or revolution. During both world wars women engaged in factory labor traditionally considered male work (Kessler-Harris, 1982; Milkman, 1982). Similarly, the shortage of labor in the Soviet Union allowed many women to take traditionally male jobs (Lapidus, 1976). Yet, such "horizontal" moves often are not accompanied by "vertical" moves within a profession, as demonstrated by the data on lawyers. Much significance has been attached to the role of women physicians in the Soviet Union, but men still dominate the supervisory positions (Lapidus, 1976), just as they dominate the higher levels of the legal profession in every country.

Employers may engage in "statistical discrimination" (Arrow, 1972) by attributing to each individual the stereotypes about the group, for instance, that all women will leave work at some time so that it is unprofitable to train them. It has been suggested that some women lawyers are assigned less desirable and less lucrative clients because firms assume that they will not be available over the long term; for similar reasons they may be retained as "permanent associates" rather than promoted to partnership (LaMothe, 1987). Structured socialization patterns, such as male clubs, may further deny women access to clients and "conventional" advancement information.

The structure of the profession is changing radically, just when women have entered and are approaching more "powerful" positions (Carter & Carter, 1981). In the United States (and other countries) there has been a growing trend toward bureaucratization, salaried employment, and larger work units (Schwartz, 1980). Although Chambers (1987) notes that women lawyers are more likely to hold supervisory positions in the public sector, the proportion of law firm partners who are women is not expanding as fast as the representation of women in those law firms (Curran, 1986; Vogt, 1986; Fenning, 1985). Women are disproportionately represented in a new class of legal professionals—"contract associates" (Kingson, 1988). Consequently, they are not in a position to influence structural change at the "top" levels of the profession (Halliday et al., 1987).^[3] Changes in international commercial practice are having similar effects throughout the world. As large law firms open branch offices in all the major European and Pacific Rim cities the day of the multinational law firm has arrived. Cultural differences may reinforce structural barriers as Japanese businessmen encounter American female lawyers. In a legal culture where billable hours increase almost 100 a year (the "average" at a major Los Angeles law firm is said to be 2,300 hours per year) and competition intensifies for good lawyers and good clients, the demands of work increase sex segregation. This parallels the heightened professionalization of medicine, which has muted the effects of women's entrance into that profession (Morantz-Sanchez, 1985).

Gender segregation may be strengthened by other barriers, such as exclusions from informal work networks ("mentoring' in the popular literature) (Collins, 1983), male language and "shop" talk, and sexual harassment (MacKinnon, 1979). Some experimental research indicates that men prefer to hire men when selecting from among equally qualified male and female candidates (Fidell, 1970).

Exclusionary Patriarchy

Psychological and political theories explain occupational segregation as expressing men's desire to escape from women at the workplace—either to avoid powerful "mothers" or distracting "sex objects" or simply to bond with other males (Tiger, 1969; Bernard, 1981). A Marxist-feminist approach maintains that patriarchy advantages men economically by separating women as a class, paying them less, and preventing them from organizing, thereby fostering male-dominated hierarchical work structures (Hartmann, 1976). Thus, protective labor legislation, initially advocated by women, could be supported by union men as a means of excluding women from jobs by making them more expensive employees (Babcock et al., 1975).

An understanding of occupational segregation is complicated by different levels of analysis (individual choices vs. institutional structures) and paradigms (e.g., economic and socialization theories). It should not be surprising, therefore, that available quantitative and qualitative data do not sustain a single theory. Indeed, in a recent American lawsuit challenging discriminatory employment practices in the retail industry (EEOC v. Sears Roebuck & Co., 1987), feminist labor historians appeared on both sides, one arguing historical female preferences for certain low-paying jobs while the other challenged the assumption that only men wanted "aggressive" high commission sales jobs, which underlay recruitment practices (Milkman, 1986).