A Stitch in Haste

A story about diversity quotas (i.e., reverse discrimination) at major law firms is making its way around the blawgosphere:

At a minority counsel conference earlier this year, one speaker told the crowd that his former company, McKesson Corp., had cut a prominent firm out of the bidding for its legal work.

Though Arthur Chong says he didn't name the firm, he did explain his reason to the audience: "It had been highlighted in a legal magazine for not having much diversity."

Chong was followed on stage by Wal-Mart General Counsel Thomas Mars, who, Chong and others say, told the audience: "I know who that firm is, and I am going to speak to them."

Analysis, mostly negative and indignant, from Overlawyered, WSJ Law Blog, Crime & Federalism; Sui Generis posts a response.

The phenomenon of big clients requiring diversity of their big law firms is not new news. I blogged about it over a year, in this post from July 2005.

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Wal-Mart has informed the major law firms it hires — all 100 of them — that they must impose racial and gender quotas on the "relationship teams" it assigns to the mega-retailer:

The company's general counsel has told its top 100 law firms that at least one person of color and one woman must be among the top five relationship attorneys that handle its business.
...
[Wal-Mart's general counsel], whose department spends about $200 million a year on outside legal services, said he realized he had to do something when he saw that 82 of the top 100 relationship partners handling the company's business are white men.
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Wal-Mart's new policy signals a growing determination by corporate legal departments to pressure outside counsel. It is no longer enough, the general counsel at the symposium said, to raise the numbers of women and minority lawyers in a firm's lower ranks if its upper echelons remain an exclusive club for white men.

Now I have long been a defender of Wal-Mart in other contexts (one example here), and as a private company they are of course entitled to spend their legal budgets as they see fit. But I wonder whether this new trend is the best approach.

All the classic arguments against reverse discrimination apply to Wal-Mart no less than they apply to government: better qualified candidates are unfairly passed over, those filling the quota — including those qualified for the job — may question their own achievements and status, discrimination is economically inefficient, and so on.

And in the special case of the legal profession, is it realistic to lament the "oppression" of female and minority lawyers? Just how "oppressed" can any lawyer at a top firm — minority, female or otherwise — truly be? (This was a key issue in the recent Supreme Court case Grutter v. Bollinger, 539 U.S. 306 (2003), which upheld open-ended racial preferences, but not quotas, at the University of Michigan Law School.)

In the majority opinion of that case, Justice O'Connor wrote the following:

We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

I wonder what those 100 law firms will look like 25 years from now, and how much of the difference will be attributable to Wal-Mart and how much to general "progress."

POST SCRIPT: Oh, and why no "gay lawyer" quota?