We start this post with the story of a solitary figure, someone who – like the lone protester facing the tanks of Tiananmen – decides to fight mountainous odds: in this case, centuries of gender bias against women. The year is 1875; the venue: Supreme Court of the State of Wisconsin. Our protagonist-heroine is “Miss R. Lavinia Goodell.”
Ms. Goodell wishes to practice law. She petitions the Wisconsin Court for permission to do so. Back comes the answer: “Never, never, never, never!”
With passion and clarity, the Supreme Court explains its decision:
There are many employments in life… [fit] for female character. The profession of the law is surely not one of those. The peculiar qualities of womanhood… its delicacy, its emotional impulses, its subordination of hard reason to sympathetic feeling are surely not qualifications for forensic strife. …Womanhood is molded for gentler and better things. (Emphasis added.)
Writing for the court, Judge Edward F. Ryan points out that, “it is not the saints of the world who give employment to our profession.” Rather, it is the element of humankind that is “knavish,” “coarse,” “brutal, repulsive, and obscene.” And it would be revolting for female innocence to mix professionally with all the nastiness that is to be found in a court of justice. In re: Goodell, 39 Wis.232, 245-46 (1875).
HOLD YOUR PITCHFORKS!!
I don’t subscribe to any of these antediluvian attitudes. My tone was merely designed to pique your interest and capture your attention. Now that I’ve succeeded admirably, let me turn to the theme of my piece.
There can be no question that women have made astonishing progress in the legal profession. As of this writing, they occupy one-third of the nine U.S. Supreme Court seats. Women comprise close to 50 percent of the student body at some of the country’s leading law schools. Given all these advances, one would think that in 21st century America, the weltanschauung generating the Goodell decision would be dead and buried, interred in the graveyard of superseded, extinct ideas.
And yet, I wonder.
I remembered the Goodell case as I was reading a recent report and several articles about the status of female law students at Yale and Harvard, two of the country’s top law schools. The reports were written from a purportedly feminist perspective. I suspect, however, that the judges who slammed the door to Lavinia Goodell would find themselves quite at home with some of the stereotypes held by 21st century Ivy League law students.
In May 2013, the Harvard Crimson reported that many female students felt uncomfortable with the “Socratic method” style of teaching. The method is a long-practiced form of law school instruction through which a law professor questions a law student with a series of questions, building on each answer with another query (Source: Black’s Law Dictionary, 8th edition, p. 1425). The resulting give and take is a bit like oral argument in a court, and helps build the critical thinking that is essential to successful lawyering. The Socratic method can, at times, be something of a contact sport. The famous opening scene in the movie, “The Paper Chase,” shows the method at its most terrifying, with the ferociously imperious Professor Kingsfield toying with and then masticating an unprepared law student on the first day of class. But “The Paper Chase” is fiction and exaggerated for dramatic effect. The on-the-ground Socratic method is considerably gentler. But not gentle enough for everyone.
Women take longer to process thoughts before they feel comfortable to say them out loud than men do (sic).
One can virtually hear the Wisconsin Supreme Court (circa 1875) hooting and hollering in patriarchal approbation.
Then there was the Yale Law School Women’s 2012 report, which focused on the gender imbalance in classroom participation. While conceding that “we hesitate to ascribe excessive importance to speaking up in class,” the report found that, “Men are 16 percent more likely to speak in class than women in Yale Law School courses…” This differential was viewed as a problem, symptomatic of sexism.
The report offered a number of solutions for female taciturnity. One fix was for professors to increase “cold calling” on students so that volunteering could be limited or better controlled.
The subtext running through the Yale report would have been familiar and congenial to the Wisconsin judges who denied Lavinia Goodell the right to practice law. Women are too delicate, too genteel to engage in the rough and tumble intellectual jousting that is part of the law school learning experience.
In the real-life world of lawsuits and trials, of course, there is no such thing as “cold-calling.” When the lawyer on the other side tries to smuggle in improper evidence, you had better “volunteer” and make an objection. And if you’re being grilled by a hostile judge, process your thoughts quickly, Ms. Jensen, and come up with a convincing argument — even if it forces you to “talk like a man.” Coddled law students will be less likely than their battle-hardened, Socraticized classmates to enter the profession with advocacy skills sufficiently developed.
The notion implicit in some of the Harvard Crimson comments – that women law students or lawyers are too sensitive to succeed in the rigors of the classroom or in the practice of law – is untrue. At my firm, a mostly female trial team won the largest gender discrimination class action verdict in U.S. history: $250 million. And the women of my firm have scored a series of successes for victims of gender discrimination against some of the largest corporations in America. When the opposition tries to intimidate them, sometimes in the archaic belief that women lawyers can be pushed around, they have held their ground and more.
In a 19th century world, where women were regarded as radically inferior to men, it is, perhaps, unsurprising that a judge drenched in the ethos of his era, would reflexively shout, “No!” to a woman seeking entry as a lawyer. The Yale and Harvard stories teach us, however, that the boundary between the past and the present may be more permeable than some of us would like to think. Not an impregnable Chinese wall, but Swiss cheese instead. The reactionary past can travel back to the future and dress itself up in the academic gown of progressive thought.
*NB: Not all unhappy beginnings end alike. There is a second chapter to Lavinia Goodell’s story. In 1878, the Wisconsin legislature enacted a statute which prohibited the court from denying admission to the practice of law because of sex. On June 18, 1879, the Supreme Court of Wisconsin granted the motion to admit Ms. Lavinia Goodell as a member of the Wisconsin bar. Application of Miss Goodell, 48 Wis.693 (1879). A foolish consistency being the hobgoblin of small minds, Judge Ryan, the author of the first Goodell ruling, dissented. But he did so without writing an opinion. Fear of volunteering, possibly?