Benchmark Litigation recently posted this list of the top trial lawyers in Canada.
Twitter was abuzz. Many people questioned the selection of the lawyers. Not over competence. The lawyers selected are all outstanding trial lawyers. But whether a list composed of almost all white men was truly representative and unbiased.
In the journal article, “Why Women: Judging Transnational Courts and Tribunals” by Kathryn Stanchi and Bridget J. Crawford, diversity on the Bench is discussed. In the article, Stanchi and Crawford comment on the selection criteria of judges. They comment that the selection process is tainted by elitism and bias. Their comments about the selection of judges can be applied to the selection of lawyers for awards. In the article, the authors write that:
Federal judges, for example, tend to be chosen from prestigious clerkships and big corporate law firms, two professional enclaves that tend to favor white, wealthy and male candidates. The more than 1300 sitting federal judges overwhelmingly attended Harvard (140 judges) and other elite law schools. These elite law schools – including Yale, Columbia, Stanford, Berkeley, NYU – tend to skew white and wealthy… Every step leading up to that first appointment to the bench – from academic indicators to standardized testing and beyond – embeds race, class and gender bias…
While calling for more “women” in the judiciary may yield a short-term gain, the real work lies in broadening the definition of who is “qualified” to be a judge. That requires open acknowledgment of the biases inherent in the admissions processes that lead to judicial positions: elite law schools, clerkships, prestigious law firms and other gate-keepers. Otherwise, the effort will yield only female judges who “are able to construct a biography that somewhat approximates the male biography…
Why did we think that women would transform institutions without simultaneously — or alternatively — being transformed by them? Why did we believe that women appointed to positions of power would be ‘representative’ of women as a group, rather than being those who most resemble the traditional incumbents and are thus considered least likely to disturb the status quo?” Catharine MacKinnon has long observed that the women who benefit from feminism’s emphasis on formal equality are “mostly women who have been able to construct a biography that somewhat approximates the male norm . . .. They are the qualified, the least of sex discrimination’s victims.”
Stanchi and Crawford recommend that to improve diversity on the bench we should consider people who have faced “discrimination based on race, class, disability, immigration status, gender identity, sexuality or other personal identities beyond biological sex.”
Similar to the appointment process for judges, we should consider lawyers from various backgrounds in handing out awards. We should celebrate lawyers that perform everyday legal work, and not just award lawyers working on large cases. Helping individuals with everyday matters is just as important and deserving of applause. And should be encouraged. However, the lawyers that tend to work on the sexy projects that get the most attention and award buzz are often the ones that have benefited from a process tainted by bias and elitism.
(Views are my own and do not represent the views of any organization.)