Volume XXII

Tearing Down the Maternal Wall in the Legal Profession: A Perspective Inspired by Difference Feminism

by Lauren T. Katz

Since 1985, women have been attending law school in roughly equal numbers as men, but today, they are approximately only 20% of all equity partners, 35% of federal judges, and 36% of tenured or tenure-track professors. This Note examines why women are still underrepresented in positions of power in the legal profession. Tracing the legal profession’s historical exclusion of women, this Note argues that the path towards making partner at a law firm, which was built around the experience of an archetypical male, unfairly ignores the biological and cultural experience of motherhood. Key career-building years—the late 20s and early 30s—directly conflict with the healthiest years for pregnancy, disproportionately disadvantaging women. This Note analyzes policies for partnership through the lens of feminist legal theory, a critical legal theory devised by women law school students in the 1970s and 1980s. It contends that policies shaped by equity feminism, which insists that women can and should adapt to male-defined standards, while well-intentioned, have failed to surmount the motherhood roadblock. Instead, policies grounded in difference feminism, which observes that women have different biological and cultural experiences—specifically, a six-month paid maternity leave and flexible work arrangements—would help tear down the maternal wall and place more women in positions of power. With more women leaders in the legal profession, shaping the law and public policy, society may shift towards one that embraces and supports critical attributes of motherhood.

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