A Proposal for Law Schools to Combat Structural Discrimination at Law Firms through Management-Based Regulation

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Although women and minorities are no longer excluded from most jobs by law or overt discrimination, significant barriers continue to preclude full workplace equality for these groups. The legal profession in particular lacks gender and racial parity as women and minorities remain dramatically underrepresented in senior positions (1) and, as importantly, may be getting less out of their jobs than their white, male counterparts. (2) Despite these significant disparities, there is no consensus on how to progress toward full workplace equality (3) or on what such equality would look like. (4) Recently, a growing number of employment law scholars have suggested that persistent inequality may result from "structural" forces in workplaces that impose real but unseen barriers on achievement by women and minorities. (5) These scholars argue that traditional antidiscrimination law is focused on overt, animus-based discrimination, and is therefore insufficient to address more subtle and generally unintentional structural sources of ongoing inequality. (6)

A new regulatory tool, sometimes called management-based regulation, might better address the complex problem of structural discrimination. A management-based system mandates that regulated firms engage in an internal review process to locate possible sources of a social problem and then engage in planning, usually in cooperation with experts, to create a strategy for eliminating these firm-specific sources. (7) This Note argues that, by requiring broad participation from the private sector while also providing supervision and expert assistance from a regulator, management-based regulation has the potential to contribute to a solution to structural discrimination, particularly in the legal profession.

In light of this potential, this Note applies the lessons of management-based regulatory successes to design a management-based system that will combat structural employment discrimination in law firms. Part I puts the discussion in context by examining management-based regulation in more detail and arguing that management-based regulation may hold promise particularly for combating structural discrimination in law firms. Part II suggests specific design elements for a proposed system, based on specific needs in the legal industry. Part III argues that law schools, rather than activists or government actors, are the best choice to implement such a management-based regime and might do so by conditioning on-campus interviewing privileges on law firm participation. Part IV addresses potential criticisms of this approach, and Part V concludes that a management-based system that marshals the power of law schools to combat structural discrimination at law firms could enable substantial progress and improve upon structural approaches previously suggested in the employment discrimination literature.

I. THE CASE FOR MANAGEMENT-BASED REGULATION OF STRUCTURAL DISCRIMINATION AT LAW FIRMS

This Part explores management-based regulation in more detail and explains how such a regulatory approach to structural discrimination builds on, and improves upon, prior suggestions for solving the problem of structural discrimination. It then details why management-based regulation may be a particularly appropriate choice for combating the unique and persistent problem of structural discrimination in law firms.

Scholars have suggested that a solution to the problem of struc-tural discrimination will require participation from the private sector. For example, Professor Susan Sturm proposes a reform under which companies and private consultants would work together to pool in-formation and identify the best practices for decreasing structural discrimination in the workplace; they would then share these practices with courts, allowing judges to scrutinize employer practices more carefully. (8) Other scholars have similarly suggested relying on private parties to provide expert assistance to courts in combating structural sources of discrimination. …