After three decades of research on gender inequality in the legal profession, it is getting harder for any researcher to say something new. We know as facts that, in many countries across the world, female lawyers earn less than their male colleagues, have fewer chances of promotion, face various forms of gender penalty and sexual harassment in the workplace, and tend to leave the profession earlier and more frequently (see Kay and Gorman 2008 for a good review). However, very few studies have examined the macro-level factors that structure the patterns of gender inequality in the legal profession, such as the differentiation of the public and private sectors, the mobility of lawyers across geographic areas, or the supply and demand in the legal labor markets. This is precisely the approach that Dinovitzer and Hagan take in their recent study on hierarchical structure and gender dissimilarity in American legal labor markets.
The authors use data from the first two waves of the After the JD study, a longitudinal survey of a cohort of lawyers who entered the American legal profession in 2000 conducted by researchers at the American Bar Foundation. The survey included four major markets for legal services (New York, Los Angeles, Chicago, and Washington, DC), five additional large markets (Boston, Atlanta, Houston, Minneapolis, and San Francisco), as well as nine smaller markets. The concentration of high-status corporate legal work varies significantly across the three types of legal labor markets. Dinovitzer and Hagan use the concept of “hierarchical market structure” (HMS) to measure this macrostructural characteristic of the legal profession. Locales with a higher concentration of corporate legal work (e.g., New York) are higher on the HMS index, consisting of four items: elite law graduates, highly leveraged law firms (i.e., firms with high partner/associate ratios), lucrative billings, and corporate clients.
How does the HMS matter for gender inequality? As the authors demonstrate in their analysis, the leveraged nature of legal labor markets benefits women in notable and interesting ways.
In those markets higher on the HMS index, women’s salaries increase more rapidly than men’s, though men continue to out-earn women. This effect of the HMS on gender inequality is not limited to New York City or the five most highly stratified markets (i.e., NYC, Washington, Boston, San Francisco, and Los Angeles), but found across all the markets included in the sample. In other words, high concentration of corporate clients, elite law graduates, and highly leveraged and profitable law firms has a significant effect in reducing the income gap between men and women—a finding contrary to our common wisdom that hierarchy and concentration usually work against gender or racial equality.
Yet the positive effect of the HMS on gender equality is complicated by another structural measure, namely, sex segregation in the legal profession, or what the authors call “gender dissimilarity.” Traditionally, women were overrepresented in the lower-paying public sector, whereas men were more likely to be found in private practice. With the increasing feminization of law schools and the legal profession, however, the glass ceilings of the profession have been gradually weakened. Dinovitzer and Hagan use gender dissimilarity, defined as the proportion of women who would be required to move into the law firms sector from the public sector to create gender balance, to measure the distributional dissimilarity of men and women across sectors of legal practice. This measure is different from the commonly used measures of gender inequality because it focuses on the difference between sectors of the labor market (e.g., law firms vs. government agencies) rather than the difference in the same sector (e.g., law firms).
Unlike the hierarchical market structure, gender dissimilarity contributes to income inequality between male and female lawyers. In labor markets in which women are disproportionately allocated to the public sector, women’s wages are significantly depressed across all sectors. That is to say, income inequality between men and women is more prominent where the boundary between public and private sectors of the legal profession is more rigid. In contrast, where the boundary between male and female work is more flexible, it benefits women and diminishes the wage gap in earnings. This finding may sound unsurprising to many people familiar with gender inequality in the workplace, yet it has an important policy implication, that is, increasing the mobility of women and men between public and private sectors could have a positive effect on gender equality, at least in terms of earnings.
The picture that Dinovitzer and Hagan paint in this article, therefore, is not a totally pessimistic one for women in the legal profession. It shows that gender inequality is not only a matter of discrimination in the workplaces of lawyers, but also shaped by broader structural changes in the profession. What is missing from the study is a fully convincing explanation of why the high concentration of corporate legal work would benefit women. The authors build their theoretical arguments primarily on Charles Tilly’s theory of durable inequality, particularly the two mechanisms of exploitation and opportunity hoarding, by which the dominant group (in this case, male lawyers) extract resources from the other group (female lawyers) and restrictively controls the use of a value-producing resource (in this case, corporate legal work) so that the other group cannot benefit from it. This theory works very well for explaining how gender dissimilarity contributes to inequality, but not for how the hierarchical market structure reduces it. As the authors acknowledge in the conclusion, they “are not able to fully account for the range of processes that differentiate men and women and their choices to pursue a law degree, practice law, or work in the corporate sector, all of which may ultimately be related to their earnings.” (P. 951.)
While I cannot offer a full-fledged account of all these processes either, I do want to point out at least one important mechanism that partially explains why the concentration of corporate legal work reduces the wage gap between men and women, namely, the promotion-to-partner tournament in large law firms (Galanter and Palay 1991; Galanter and Henderson 2008). As most elite law firms on Wall Street and in other major markets adopt nearly identical salary rates for their entry-level associates and maintain a similar tournament system of promotion (despite many variations in details), the wage gaps between male and female associates in these firms would not be salient until they are closer to the “up or out” stage of their careers. As corporate law firms employ an increasingly large number of associates in the legal labor markets, the effect of this tournament system on gender inequality would also become more significant (though Galanter and Palay were completely silent on gender in their original theory). Women have fewer chances of promotion than men and they are more likely to exit the tournament or even the profession (Hagan and Kay 1995; Reichman and Sterling 2004; Kay and Gorman 2008), yet the wage gaps between female and male associates could be smaller in corporate law firms than in other types of law firms. This might also explain why in smaller legal markets where corporate work is scarce, female lawyers seem to lag even further behind their male colleagues in terms of earnings.
The findings in this article, as well as in Ronit Dinovitzer’s other recent writings, give high hopes for the results from the third wave of the After the JD study, which was conducted in 2012, ten years after the cohort of respondents entered the bar. The attrition of women from the legal profession, as well as the mobility between law firms and other legal sectors, would probably be more salient at this stage of lawyers’ careers. For research on the legal profession, the power of this longitudinal study increases exponentially as the waves of data accumulate. Perhaps some of the unresolved issues in the present article, such as how lawyers move across firms and sectors, can be explained more rigorously in future studies with the new data available.