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Article Excerpt
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.
I. THE RISE AND GROWTH OF THE LARGE WASP LAW FIRM (7)
A. 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)
B. 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 of the large law firm. (31) And yet, in reality, large New York City law firms did have an explicit religious and cultural identity. Until 1945, without exception, all large law firms were WASP and, for many years to follow, large firms were known as either WASP, Jewish, or Catholic. Given the dominance of the Cravath System and its merit-based ideology, the de facto religious identity of large law firms appears perplexing.
To be sure, the WASP identity of the large firm was not hidden at the time from practitioners (32) or from scholars of the legal profession. (33) The important question is not whether the large law firm had a de facto religious and cultural identity, but rather, given its purported commitment to meritocracy, why did it have a WASP identity?
1. Nativism, anti-Semitism, and snobbery
Nativism, combined with anti-Semitism and cultural snobbery, appears to provide a straightforward explanation for the inconsistency between the a religious theory of the large firm and the reality of large law firms divided along religious lines. Protestants were the native population in the United States and arguably used the advantage of nativism to oppose the ambitions of immigrants. (34) Specifically, the majority of American lawyers in the eighteenth and nineteenth centuries were Protestant. (35) By the late nineteenth and early twentieth century, even as newcomers entered the profession, the majority of graduates of elite law schools--the graduates recruited by large firms pursuant to its meritocratic path of excellence--were Protestant. (36) One might be tempted to conclude that the "religious identity" of the large law firm was both temporary and superficial: temporary because, as the American legal profession became more heterogeneous, large law firms would presumably hire and promote more non-Protestant lawyers, and superficial because it was nothing more than a reflection of the religious identity of the lawyers it employed rather than an expression of religious values and commitments.
Historical hindsight clearly disproves this temporal account. By the 1960s, the New York City bar was roughly sixty percent Jewish, (37) and the pool of elite law school graduates expanded dramatically to include the sons of immigrants with lower socioeconomic pedigrees, who were often Jewish, (38) and these "aspirants" began to rank at the top of their classes. Yet the large WASP law firms remained very much WASP firms, failing to reflect the growing heterogeneity of the New York City bar. (39)
Nor was the religious identity of the large firms superficial. While the merit-based hiring and promotion criteria of the Cravath System purported to ignore irrelevant considerations such as social standing and religious affiliation, its "carefully prescribed path" was never based on merit alone. Rather, "[i]n addition to academic credentials [the young men] were expected to possess 'warmth and force of personality' and 'physical stamina.'" (40) These hard-to-quantify and difficult-to-assess qualities were a cover for, or at least directly correlated with, certain religious, socioeconomic, and cultural characteristics. In other words, large firms used the "warmth of personality" standard to systematically exclude candidates who satisfied their merit-based criteria but nonetheless were not considered among the "best men"--young, white, Anglo-Saxon Protestant men from affluent socioeconomic backgrounds. (42)
Clearly, the religious identity of the large firm could not be attributed solely to nativism and the religious identity of its attorneys who happened to be Protestant, because the large firm remained predominantly Protestant even when non-Protestant lawyers could have been hired and promoted. This was the result of hiring and promotion practices that were blatantly at odds with the fundamental premise of the Cravath System--meritocracy.
No doubt that there were some anti-Semitic partners at some large law firms at the time who invoked the "warmth of personality" rhetoric to exclude Jewish attorneys for religious and ethnic-based discriminatory reasons. (43) Certainly, the large firms also featured some elitist snobs, who used the "stamina" criterion to dispose of Jews and WASP candidates of a lower socioeconomic background due to class-based bias. (44)
Moreover, commitment to professionalism based on merit should not be overstated. Prominent large law firm partners and leaders of the organized bar clearly discriminated against minority lawyers and on occasion did not shy away from making derogatory statements on the record. Commitment to meritocracy, as it turns out, was more a question of degree. Yet nativism, even when infused with anti-Semitism and snobbery, fails to fully explain the hiring and promotion patterns at large law firms because exclusion of otherwise qualified candidates for religious and cultural reasons directly contradicted the merit-based vision and organizational structure of the Cravath System and risked the success of its "professional project." The Cravath System was the embodiment of a real commitment of visionaries such as Paul Cravath. Seemingly contradictory dedication to Protestant values and the white-shoe ethos as evidenced by the near exclusive hiring and promotion of WASP attorneys thus cannot simply be explained in terms of nativism, anti-Semitism, and snobbery.
2. The "hidden" religious identity of the large WASP firm
When it first emerged, the large corporate law firm was not part of the established legal elite. While the corporate lawyer was gradually displacing the litigator as the paradigmatic attorney of the era, (45) the large law firm's new brand of professionalism and close association with its corporate clients were perceived by some as a race to the bottom, even a "sell out": (46)
The concept of a business lawyer seems logical now, but it was a new idea a century ago, and it was controversial.... There was, however, criticism of the corporate law concept within the legal profession. Many resisted the change implicit in the new dimension pioneered by Cromwell and others. It was feared that many lawyers, including some of the leaders of the profession, were becoming mere tools of powerful financial interests. There was apprehension that lawyers would lose sight of their obligations to the ordinary citizen." (47)
The large firm with its new ideology of professionalism was fighting to establish itself as the elite. Indeed, while "[t]he term 'office lawyer' was never lacking in dignity or respect; it merely lacked the halos which shone down upon the heads of advocates, the knights in shining armor." (48)
Rather than being based simply on nativism and bigotry, the use of a "warmth of personality" standard to exclude undesirable "aspirants" was founded on the large law firm's effective campaign to first establish a credible claim for elite professional status within the ranks of the profession and subsequently to maintain its dominance as the professional elite. (49) The large law firms attempted to translate Protestant values and the white-shoe ethos into professional capital, or, more accurately, to translate elite religious and cultural statuses into professional elite status. (50) For the WASP firms, professionalism was a collective assertion of special social status and a collective process of upward social mobility within the ranks of the profession. The translation process was complex, purporting to rely on special legal knowledge assessed by meritocratic standards to achieve social and economic rewards but in fact substituting scarce professional resources for scarce religious and cultural resources. The campaign for elite professional status consisted of three steps: claiming adherence to professional excellence and merit-based standards, manifested in the Cravath System, transferring and translating elite religious (Protestantism) and cultural (white-shoe) status into professional status, and demeaning the status of other segments of the legal profession.
In his seminal work, The Protestant Ethic and the Spirit of Capitalism, Weber explored the interplay between religious beliefs, economic ideology, and social institutions, examining the role Protestant values played in fostering conditions conducive to the growth of the capitalist system (51) and concluding that the spirit of capitalism found "in the ethic of ascetic Protestantism ... a consistent ethical foundation." (52)
Weber argued that Protestant values informed moral practice--that is, they shaped "those psychological sanctions which, originating in religious belief and the practice of religion, gave a direction to practical conduct," (53) which was both consistent with the spirit of capitalism and weakened traditional moral values that were inconsistent with capitalism. The notion of a calling, defined as the valuation of the fulfillment of duty in worldly affairs as the highest form which the moral activity of the individual could assume, justified and legitimized a perception of work broader than simply labor as the means of satisfying one's needs. Belief in predestination cultivated intense commitment to worldly activity as a means of proving one's faith, producing a moral sensibility according to which "God helps those who help themselves." (54) Pietism led to intensified asceticism and the development of a unified system of rational methodical control of human life. (55) Religious grace required one "methodically to supervise" one's own conduct in a state of grace leading to "rational planning of the whole of one's life." (56) Weber concluded:
[T]he religious valuation of restless, continuous, systematic work in a worldly calling, as the highest means to asceticism, and at the same time the surest and most evident proof of rebirth and genuine faith, must have been the most powerful conceivable lever for the expansion of that attitude toward life which we have here called the spirit of capitalism. (57)
Weber was careful not to overstate the nature of the relationship between Protestant values, capitalism, and specific social institutions: "[W]e only wish to ascertain whether and to what extent religious forces have taken part in the qualitative formation and the quantitative expansion of [social institutions]... by investigating certain correlations between forms of religious belief and practical ethics...." (58) Importantly, Weber never argued that Protestantism "caused" capitalism; (59) rather, he identified compatible ethical foundations underlying Protestantism and capitalism. (60)
In this Weberian sense, Protestant values constituted part of the ethical and moral underpinning of the large law firm. (61) Protestant values, to be sure, did not "cause" or lead to the emergence and growth of large law firms. Rather, Protestant asceticism cultivated conditions conducive to the development of such firms in two interrelated ways: first, indirectly, by elevating the practice of law to a calling, and second, directly, by providing the cultural building blocks of their organizational structure.
First, Protestant values simultaneously informed the conception of law as a profession and its perception in America as a civic religion with lawyers installed as its high priests. (62) A defining characteristic of law as a profession--its claim to be practiced as a calling and a vocation (63)--established law as a secular avenue through which one could pursue religious grace. (64) It is thus no coincidence that the Protestant idea of the "new aristocracy" of the select few who will successfully manage to live according to the standards of an ethic of labor in a calling, the "soldiers of a new faith and the champions of God," (65) is reminiscent of de Tocqueville's observation regarding lawyers as the American aristocracy. (66) That is, the Protestant conception of labor as a calling served as a pretext for the rise of law as a profession and the establishment of law as an arena in which to pursue religious grace in the form of a legal calling. (67)
Moreover, while Protestant values were separate and distinct from any specific forms of legal institutions, (68) they were implicitly consistent with a particular legal institution, namely the large law firm. Protestant values supported a spirit, an ethos, and an ethical infrastructure, as opposed to a mere impulse, (69) for the creation of large firms as the way to practice law as a calling. The notion of performing one's moral duty in a legal calling was the ideal breeding ground for the new large law firm. The practice of law as a calling was a secular avenue in which one could pursue religious grace and the large law firm was the new rational, methodic, efficient form to pursue it. Thus the new large WASP law firm was the manifestation of Protestant values--work for a calling, intense commitment to worldly affairs, asceticism, and rational organization.
Not only did the notions of work in a calling, asceticism, and rational organization, adapted to the professional arena, inform the culture of the firm, but the same moral foundation also led to identification with organizational goals and values and to development of loyalty and organizational commitment. (70) That is, Protestant values help explain the sense of loyalty of large law firm attorneys to the institution and therefore the lack of competitive conditions within and among the large WASP law firms. (71) A contemporary perspective and current practice realities might suggest that the large firm "bought" the loyalty of its associates with high pay, as exemplified by Cravath's documented salary raises. (72) Yet such measures did not take place until the late 1960s. In the late nineteenth century and early twentieth century loyalty to the firm may better be understood in terms of commitment to Protestant values rather than the interest of associates in higher pay.
Though some scholars attempted to expressly base professional values on religious values, (73) Protestant values did not have such a direct causal impact on the emergence and rise of large law firms. Rather, in the Weberian sense, Protestant dogmatic foundations and Protestant work ethic, which were generally consistent with the spirit of the law as a profession and the practice of law as a calling, specifically informed and inspired the organizational structure and culture of the large WASP law firm, and, importantly, legitimized its claim to elite professional status. (74)
The Cravath firm exemplifies the impact of Protestant values and ethic on the organization of the law firm. Associates and partners alike were required to consider the practice of law to be their primary interest, and "solely as a member of the Cravath team." (75) Associates, and even partners, were expected to remain available and dedicated to the practice of law continuously. For example:
much of Cravath's work with the associates was at night.... Many nights young lawyers from the office sat [at his home] awaiting his return, spent an hour or two past midnight going over papers or discussing a question of law with him, and then returned to the office with instructions to be back at eight o'clock in the morning with a new draft or the answer. (76)
Partners worked equally hard.
The story, doubtless apocryphal, has long been told that when some of his partners urged that the office was under such pressure as to make additions to the staff imperative, Moore replied: 'That's silly. No one is under pressure. There wasn't a light on when I left at two o'clock this morning.' (77)
Moreover, in his history of the Cravath firm, Swaine repeatedly mentions a particular partner's religious commitments as evidence of that partner's "warmth of personality." (78) Indeed, nearly every attorney promoted to partner from the time Paul Cravath, himself an eighth-generation American Protestant, (79) took charge until the firm's history was written in 1948 was of the appropriate religious lineage. (80) Similarly, accounts of Shearman & Sterling and Sullivan & Cromwell partners refer to the partners' Protestant values and lifestyle as evidence of their professional merit and excellence. (81)
Protestant values thus help explain the de facto existence of religiously divided law firms. To be sure, the goal of the large law firm in its formative era was never per se to exclude Jewish lawyers. If that had been the goal of the WASP firms, nativism and prevailing anti-Semitism would have sufficed. Rather, the WASP firm sought to establish itself as the professional elite. To achieve professional status it purported to organize itself as a meritocracy, consistent with the bar's "professional project." Yet in order to achieve elite professional status within the profession, the large law firm constituted itself as a Protestant-inspired institution, so it could translate elite religious status into elite professional status. Welcoming Jewish attorneys or, later on, even competing with Jewish law firms, would have been inconsistent with its translation project, vowing for upward social mobility within the ranks of the legal profession. (82)
3. The "hidden" cultural identity of the large WASP firm
The large law firm's campaign for elite professional status also relied on the cultural status of its attorneys and clients. This resulted in a cavalier and elitist concept of professionalism, establishing a gentlemanly, anti-competitive legal environment that reflected the firm's focus on high socioeconomic and cultural values: compensation was scarcely discussed; (83) lateral hiring was taboo; (84) competition for clients was considered discourteous, (85) and the firms cooperated in setting the "going rate"--the starting salary of associates in lieu a market-determined rate. (86) Advertising and client solicitation were forbidden, (87) in part because the large firms needed to do neither.
Instead of competition, the firms relied on socioeconomic, cultural, and religious networking to establish their elite status, attract elite law students and secure elite corporate clients. These anti-competitive practices were based on the white-shoe ethos, upper-class privilege, and cultural standing. (88) They reflected, and intentionally meant to capture, the elite socioeconomic and cultural status of the firm, of the lawyers the firm employed, and of the clients the firm represented. The large law firm fought to establish, and later to maintain, a credible claim to elite professional status. It was attempting to build, and to translate the elite socioeconomic and cultural status of its attorneys and clients into, elite professional status. (89)
It is important to note that while the Cravath System revolutionized the practice of law--replacing old, paternalistic, lawyer-centered, inefficient professional habits with client-centered, cost-effective, service-minded principles--the large law firm, nonetheless, did not induce market competition for legal services. To the contrary, the large law firm's vision of professionalism suppressed market competition, instead building on social connections of the old-boys' club sort, the white-shoe ethos, and Protestant values to establish and maintain elite professional status. Professionalism-- large law firm style--and the white-shoe ethos were actually two sides of the same coin. The elite large law firm thus defined itself not only by explicit reference to meritocracy, but also by implicit reference to the ethnic, religious, socioeconomic, and cultural characteristics of its client base and lawyers. In other words, the WASP firms sought more than financial success; they sought elite professional status and were willing to expend wealth and build on the white-shoe ethos and Protestant values to achieve it. (90)
The merit-based Cravath System and the conversion of religious, socioeconomic, and cultural status into professional status were prima facie incompatible. While the former rejected religious and other non-performance-based elements as irrelevant to legal practice and firm organization, the latter built on these allegedly "irrelevant" considerations to justify its claim to elite professional status. This duality was the result of the large law firm's quest for elite professional status. In pursuit of professional status it was ostensibly a religious and meritocratic. In seeking elite status within the ranks of the profession, however, it featured a deep, hidden nexus between professional identity and religious, socioeconomic, and cultural characteristics, (91) a nexus that was meant to allow it to rely on the latter in order to establish the former. Specifically, the large law firm cultivated an elite professional culture operating alongside its seemingly a-religious organizational structure, which was in part a function of Protestant values and the white-shoe ethos. In other words, the prima facie inconsistent duality of the large firm--purporting to be an a religious institution while cultivating a deep religious and culture identity--was a function of its attempt to establish itself not only as professional but as the elite within the profession.
4. Institutionalizing elite status: elite education and professional regulation
The large law firm's campaign for elite professional status included a third component: bolstering its claim for exclusive elite status by separating and distinguishing itself from the lower segments of the bar. (92) The large New York City law firm rose against the backdrop of a changing legal profession as the nineteenth century brought waves of immigrants and growth to the New York bar. (93) Against this backdrop, "[o]ld-style practitioners ... cooperate[d] with [corporate lawyers] in a united front to preserve the legal profession ... as an Anglo-Saxon Protestant enclave." (94) As documented by Karabel, elite institutions imposed admission restrictions on the number of less-desirable candidates, resulting in the misleadingly "natural" correlation between top educational credentials and indicia of elite status. (95)
Bar associations and newly promulgated attorney regulations entrenched and solidified the profession's stratification. (96) The new WASP white-shoe Wall Street firms, previously criticized for turning a profession into a business, (97) rose quickly to professional respectability. The WASP elite expanded and accepted the large law firm corporate lawyers, who, after all, shared its key characteristic: "Best Men." The New York City bar became strongly stratified. In the top hemisphere, the large corporate firms proudly asserted and wore the badge of elite status, generally serviced large corporate clients, and employed the "Best Men" of the era. (98) The religious and cultural identity of the large WASP firm was...
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