A Legal Fempire?: Women in Complex Civil Litigation

Abstract

Justice Ruth Bader Ginsburg made headlines when she said that she would be satisfied with the number of women on the Supreme Court “when there are nine.” But why should that answer have been so remarkable? After all, there were nine men on the Court for nearly all of its history. Yet, Justice Ginsburg’s statement was met with amusement or from some quarters — disdain. What answer would have been considered more appropriate coming from a groundbreaking feminist litigator? Would four have been an acceptable answer? Would five have been presumptuous?

This episode reflects our cramped view of how much representation women can and should expect in the loftiest reaches of the legal profession. And indeed, while women have been attending and graduating from law school in record numbers, they are only a fifth of the partners in law firms. Even when they make partner, they are paid nearly half the compensation of their male counterparts. Likewise, women continue to be underrepresented as state and federal judges, as appellate practitioners, and in complex litigation.

This essay begins from the view that gender equity is important to the functioning and legitimacy of our legal system, and assesses gender equity — or rather the lack thereof — within the legal profession. First, the essay reflects on the gender bias task force movement that began almost four decades ago. Second, using a case study approach, the essay updates that work by examining the role of women on the Judicial Panel for Multidistrict Litigation, as judges, and in multidistrict litigation leadership roles. Finally, after assessing the ongoing barriers to gender equity in modern complex civil litigation as well as its modest genderequalizing reforms, the essay closes with a set of proposals for how to move toward gender equality.

Keywords: Complex Litigation, Multidistrict Litigation, Judges, Gender Bias, Feminism