BigLaw Identity Capital: Pink and Blue, Black and White

This Article advances a new capital framework for understanding the bargain between large law firms and their lawyers, depicting BigLaw relationships not as basic labor-salary exchanges but rather as complex transactions in which large law firms and their lawyers exchange labor and various forms of capital — social, cultural, and identity. First, it builds on the work of Pierre Bourdieu regarding economic, cultural, symbolic, and social capital by examining the concepts of positive and negative capital, exploring the meaning of capital ownership by entities, and developing the notion of identity capital — the value individuals and institutions derive from their identities. Then, the Article advances a capital theory of BigLaw, in which large law firms and their lawyers engage in complex transactions trading labor, social, cultural, and identity capital for economic, social, cultural, and identity capital. Capital analysis sheds new light on the well-documented and troubling underrepresentation of diverse lawyers at BigLaw. It shows that the underrepresentation of women and minority lawyers is not solely the result of exogenous forces outside the control of large law firms such as implicit bias, but rather the outcome of the very exchanges in which BigLaw and its lawyers engage. Specifically, large law firms take into account the capital endowments of their lawyers in making hiring, retention and promotion decisions, and derive value from their lawyers’ capital, for example, by trading on the identity of women and minority lawyers in marketing themselves as being diverse and inclusive to clients and potential recruits. Yet, while BigLaw trades for the identity capital of women and minority lawyers, it fails to offer them opportunities in return to acquire the social and cultural capital necessary for attaining positions of power, resulting in underrepresentation. Moreover, these labor-capital exchanges are often implicit and made by uninformed participants, and therefore unjust. Exactly because the capital framework describes the underrepresentation of diverse lawyers at BigLaw as an endogenous outcome within the control of BigLaw and its lawyers, however, it is a cautiously optimistic model that offers hope for greater representation of diverse lawyers in positions of power and influence. The Article suggests policies and procedures BigLaw can and should adopt to improve the quality of the exchanges it offers to women and minority attorneys and to reduce the underrepresentation of diverse lawyers within its ranks. Employing the concepts of capital transparency, capital boundary, and capital infrastructure, it demonstrates how BigLaw can (1) explicitly recognize the roles social, cultural, and identity capital play in its hiring, retention and promotion apparatuses and (2) revise its policies and procedures to ensure that all of its lawyers have equal opportunities to develop the requisite capital and compete on equal and fair terms for positions of power and influence.

Public Lawyers and Marijuana Regulation

Although 23 states and the District of Columbia have now legalized marijuana for medical purposes, marijuana remains a prohibited substance under federal law. Because the production, sale, possession and use of marijuana remain illegal, there is a risk of prosecution under federal laws. Furthermore, those who help marijuana users and providers put themselves at risk — federal law punishes not only those who violate drug laws but also those who assist or conspire with them to do so. In the case of lawyers representing marijuana users and businesspeople, this means not only the real (though remote) risk of criminal prosecution but also the more immediate risk of professional discipline. Elsewhere, we wrote about the difficult place in which lawyers find themselves when representing marijuana clients. We argued that while both the criminal law and the rules of professional conduct rightly require legal obedience from lawyers, other countervailing factors must be considered when evaluating lawyers’ representation of marijuana clients. In particular, we asserted that considerations of equity and access to justice weigh dispositively in favor of protecting lawyers who endeavor to help their clients comply with state marijuana laws, and we suggested means of interpreting relevant criminal law provisions and rules of professional conduct to achieve this result. This article builds on that analysis, taking on the particular issue of the public lawyer’s’ role in marijuana regulation. For government lawyers, the key issues in exercising discretion in the context of marijuana are not clients’ access to the law and equality but rather determining the clients’ wishes and serving them diligently and ethically. Lawyers representing state agencies, legislatures and the executive branch of government draft and interpret the rules and regulations regarding marijuana. Lawyers for federal, state and local governments then interpret those rules to determine the obligations and responsibilities of those they represent and to help their clients meet those obligations and carry out their required tasks. Both state and federal prosecutors are charged with determining what conduct remains illegal under the new rules and, perhaps more importantly, with exercising discretion regarding whom to prosecute and to what extent. Marijuana regulation is not a niche area of government regulation; it will influence the practice of virtually every public lawyer in the years to come. Public lawyers must understand the changes in marijuana law and the implications for government clients. Given the pervasiveness of the modern regulatory state, the situation is no easier — and, in many ways, it is more complicated — for public lawyers than it is for private ones. Public lawyers face myriad practice challenges with respect to marijuana law reform, and while we do not purport to identify and resolve all of the issues that are sure to arise in this short paper, we hope that the article helps alert public lawyers to some of the risks involved in participating in marijuana regulation so that they can think carefully about their obligations when these issues arise.

Background Checks for Firearms Sales and Loans: Law, History, and Policy

This article examines past and present systems requiring that a person receive permission before buying or borrowing a firearm. The article covers laws from the eighteenth century to the present. Such laws have traditionally been rare in the United States. The major exceptions are antebellum laws of the slaves states, and of those same states immediately after the Civil War, which forbade gun ownership by people of color, unless the individual had been granted government permission. Today “universal background checks” are based on a system created by former New York City Mayor Michael Bloomberg and his “Everytown” lobby. Such laws have been enacted in several states, and also proposed as federal legislation. Besides covering the private sale of firearms, they also cover most loans of firearms and the return of loaned firearms. By requiring that almost all loans and returns may only be processed by a gun store, these laws dangerously constrict responsible firearms activities, such as safety training and safe storage. Massachusetts, Connecticut, and California are among the jurisdictions which have enacted less restrictive, more effective legislation which create controls on private firearms sales, without inflicting so much harm on firearms safety.