Biologically speaking

By Thomas Brennan

When the reporter from the State Journal called and asked if he could interview me about the law school and the state of the legal profession, I readily agreed.
We lawyers always suffer from negative press. The abundance of lawyer jokes only reflects the underlying hostility to our profession which permeates so much of American thought. I welcomed the chance to put in a good word for the bar.
It isn’t easy to recruit students, or solicit contributions when people think that a law school is akin to a pariah factory. At the time, there was an additional public relations problem; recent publication of statistics showing that lawyer income was declining and magazine stories about disillusioned young associates leaving prestige law firms for other pursuits.
The interview was wide ranging. The reporter simply turned on a small recording device and we talked. Mostly I talked.
Among other things, I discussed what I called the feminizing of the legal profession. When I was in law school nearly 60 years ago, there were only three women in my class. As late as 1973 when the first Cooley class was organized, only a handful of female students were enrolled.
Much is made of the oversupply of lawyers, I told the reporter, but in fact the actual number of male law students has not increased in the United States in 50 years. The difference is in the dramatic increase of women law students and women lawyers. The distaff side now represents at least half of the students and perhaps as many as a third of the profession.
This sea change has had many subtle influences on the legal profession, not the least of which shows up in statistics about the economics of law practice, I said. Then I pointed out that many female lawyers take sabbaticals from the practice to raise their families. In addition, they often prefer shorter hours in order to be home when their children come in from school.
It’s a simple matter of biology, I said. It’s the women who have the babies, and the stronger biological impulse to nurture. I gave some examples, like the Cooley alum who graduated first in her class, made partner at a prestigious Lansing firm, then simply quit to have a child and be a stay at home mom.
When you multiply that scenario by thousands, you begin to understand why average lawyer income has declined.
As we talked, I made it clear that the women lawyers were every bit as competent as the men. In fact, it had been our experience, and that of most other law schools, that women applicants generally presented somewhat higher LSAT scores and undergraduate credentials than their male counterparts.
True to the apparent axiom of the fourth estate that the best reporting is that which generates the most controversy, the State Journal story charged that I had laid the decline in lawyer income to the biological differences between men and women.
Quite understandably, the women lawyers took umbrage. I was soon inundated with mail claiming that I had inferred that women lawyers were not as good as men; that they didn’t work as hard, that they were not as productive or worthy of the same hourly rates as male lawyers.
Fortunately, the reporter kept the tape and when I insisted that the full text of my comments be published, the newspaper issued a correction which mostly assuaged the onslaught. Of course there were still a few who thought of me as a Neanderthal, Roman Catholic, father of six who likes to keep his wife in the kitchen or the laundry, barefoot and pregnant.
They just don’t know me. Or my wife.
When I was chief justice, the women lawyers petitioned for a ruling on whether it was appropriate for them to wear pants instead of skirts when appearing in court. I had no idea. I went home and asked Polly who said of course it was, assuming the pants were ‘dress’ as opposed to ‘casual.’ I didn’t know what that meant, but the lady lawyers seemed to be very satisfied with that guideline.
The first full-time employee of the law school was a young woman just out of high school, named Marylynn Curtis. She proved to be an extremely capable administrative staffer, who ably performed many duties over the years.
Eventually, she and her husband, Cooley graduate John Bain, started their family. Marylynn was torn between a job she loved and her new baby. It was a time before ‘cottage industry’ and ‘home office’ had become common job descriptions, but we agreed on an arrangement that allowed her to work at home. It proved to be a win-win situation.
My three daughters all took the LSAT at my insistence. None of them chose to go to law school, however. Still, I was able to convince my secretary, Cherie Beck, who was a de facto member of the Brennan family, to continue her education at Cooley, and eventually it was my great pride and pleasure to preside at her graduation.
Women lawyers are good lawyers. Biology has nothing to do with the quality of a lawyer’s work. Of course, there are biological differences between men and women, but as the French might say, “vive la difference.”
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Thomas Brennan was admitted to the State Bar of Michigan in 1953, and practiced law in Detroit for nine years. He was elected to the Detroit Common Pleas Court in 1961, advancing to the Wayne County Circuit Court and finally to the Michigan Supreme Court, where he served as chief justice in 1969 and 1970. In 1972, Brennan founded the Thomas M. Cooley Law School.
©Thomas E. Brennan