REAL REVOLUTION

By BARBARA ALLEN BABCOCK

I went to law school without having a woman teacher, or hearing a class hour devoted to women's position in the legal profession. Professors took little interest in our small band -- less than three percent of the class total. Judges of incandescent liberal credentials declared themselves uneasy about employing female clerks (they liked to work in their shirtsleeves; to tell dirty jokes; had to remain late at night). Law firms were doubtful about our staying power and intellectual drive.

Today I teach at Stanford Law School on a faculty full of women stars, to women students (nearing fifty percent) who will not face that sort of sex discrimination. Women's issues are everywhere in the curriculum, and the law itself -- both in doctrine and theory -- has changed almost overnight (measured in legal time).

Yet the real revolution lies ahead. We must now force the practice to accommodate the lives of women. That process, in turn, will take us a long way towards restoring the abandoned public service and redemptive ideals of the profession. Why now? After all, women have been lawyers for over 100 years, and arguably have not yet made much of an impression on the practice of law.

First, the profession is open to change now, as never before. Lawyers, though never popular, have hit an all-time low in public esteem. Books and bar speeches abound on failing faith and lost lawyers. Needless aggression and soulless unconcern about societal consequences -- such is the indictment from the outside. Internally, the complaint is that our learned profession has become a bottom-line business. The legal workplace is built on the ten-hour day, the six-day week, extreme hierarchy, constant testing, and all-out competition. Everyone from the freshest associate to the graying partner works too hard, leaving no time for family and communal life, pleasure or pro bono publico.

The profession is psychically reeling. Add to this timing the sheer numbers of women lawyers -- and their male allies -- and the scene is set for revolutionary change. For just as the profession is falling apart, the women's movement is poised to enter its next phase. Law is where we always start.

Although the first women's movement sought access to all professions, the battle quickly centered on the legal field, because it was the most intransigent. In other professions, women could explain and excuse their presence. Doctors treating other women were preserving female modesty. Teachers only extended their role of mothers as moral instructors. But there was no way to sugarcoat the incursion of females into the practice of law.

In the nineteenth century (and until very recently), nothing could have been further removed from the image of the "true" woman than the stereotype of the good lawyer: brilliant, aggressive, and ruthless in the interest of justice or a client. On the one hand, lawyers were the architects of government, spokesmen of politics and philosophy -- Tocqueville's American aristocracy. Paradoxically co-existing with these ideals was the notion of law as a dirty business involving the rankest deeds and basest motivation, and lawyers as the amoral hired guns of wealth and power.

Whether women were deemed unfit for the law or the law unfit for women, the result for early women was often a fight just to join the profession. Clara Foltz, the first woman lawyer on the Pacific Coast, faced all-out discrimination at every turn. When she lobbied for a woman lawyer's bill, a legislator charged that she was a free lover. On the day Foltz was admitted to the bar, a fellow lawyer cheerfully predicted she would fail because women could not maintain confidences. And at one of her first trials, the prosecutor argued to the jury that her sex rendered her incapable of reason.

ways to deal with what one called "the burden of double consciousness:" how to be both a woman and a lawyer. Lelia Robinson, the first woman lawyer in Massachusetts, said: "Do not take sex into the practice. Don't be 'lady lawyers'. Simply be lawyers and recognize no distinction between yourselves and the other members of the bar." Foltz, on the other hand, urged using difference to one's advantage, remarking: "They called me the `lady lawyer' -- a pretty sobriquet which [enabled] . . . me to maintain a dainty manner as I browbeat [sic] my way through the marshes of ignorance and prejudice."

Such tactical disagreements within the first women's movement did not extend to suffrage. Most women lawyers perhaps naively believed that the vote would almost instantly change their professional status, assuring them admission to the inner circles of law as judges, elite professors, and wealthy practitioners. All such hopes were dashed as achieving the vote had little impact on women's professional advancement, and women lawyers continued to feel isolated and unsuccessful.

From this political disappointment was born the first divergence between feminism and professionalism. Women put aside their special concern for each other's lives, and focused instead on the professional ideal of objective and verifiable merit as the basis of individual achievement. In the legal profession they rapidly assimilated themselves to the male model of lawyer. Though women struggled to combine domestic and professional responsibilities as few men did, none would ask for individual favors or even collective recognition.

This gloomy post-feminist period stretched from the 1930's to the opening of the renewed women's movement in the early 1970's. Once again, access to the legal profession was near the heart of the movement -- this time with the amazing results summarized at the beginning of this piece.

Now we are ready for the next phase, and are ready to turn from self-interested promotion, and the quest for formal equality, to fundamentally changing the ways in which lawyers work. We can do this by making the balancing of the personal and professional a group effort, rather than leaving it to individual struggle. We can do it through an inclusive praxis, one that particularly involves male allies.

Feminist women and men working together to reconstruct the legal profession. Is it possible? In fact, it is not only possible but already well underway. It has started, like the first and second women's movements did, with forward-looking education, interchange, and revelation occurring on many levels, and in many writings. We are also looking backward, at the early women lawyers and what we can learn from them. I teach a course in which students write biographical chapters in the lives of early woman lawyers to be collected on our website.

From such efforts, the next women's movement will devise its specifics, launch its experiments, draw its inspiration. With the feminism of the first women lawyers firmly in mind, we are setting out, not (to paraphrase Virginia Woolf) to burn down the house of the law, but "to make the windows blaze."

Barbara Allen Babcock is the Judge John Crown Professor of Law at Stanford Law School.

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