Legally Female - Brief History of Women in Law
A Brief Historical Overview of Women in the Law
For years, women faced a unique challenge in their efforts to penetrate the profession of the practice of law. Unlike other professions, all institutions of the law, namely the law schools, the bar associations and the courts, were under the exclusive control of men. Women were left with no door to enter this entirely male-controlled monopoly…and men didn’t want to let women into their turf. Therefore, the history of women in the law is closely connected to the women’s suffragist movement in its early stage and later, the women’s rights movement. For example, by 1890, about five percent of doctors in the United States were women as opposed to only a handful of women who were individually gaining the right to practice law on a state by state basis. By 1930, fifty years later, only two percent of all American lawyers and judges were women. As a subset, African-American women, often slaves, have an early powerful history in pursuing the law as a means of obtaining their own freedom. In 1655, Elizabeth Kay, a slave, sued for her freedom by arguing that her status should be determined by the ancestry of her father, a free white, rather than that of her mother, a slave. Although Ms. Key won her case, in 1662, the Commonwealth of Virginia responded by legislating that whether or not a child is a slave or a free person will be determined in accordance with their mother’s status (thereby overturning the court’s decision).
The Eighteenth Century remained a period of little change for the status of women in the law, both in terms of their rights as women and their right to be lawyers. Women generally could not own property and were even themselves considered to be the property of their husbands! (Oh My God, as Elle Woods would say!) The 1700s found women slaves again arguing in court for their right to be free. Notably, in 1781, Mum Bett won her independence from slavery in a Massachusetts court after advising her counsel to use the constitutional premise that “all men are born free and equal.” This is seen as the first time that a state constitution was used to challenge slavery. Following her victory, she changed her name to Elizabeth Freemen. Slightly over a century later, it would be another African-American woman, Lutie A. Lytle, who would become the first woman law professor in the nation.
Beginning with Belle A. Mansfield in 1869 in Iowa, women slowly began gaining the right to practice law, state by state…In 1923, Delaware was the last state to admit women to the bar. In 1869, Lemma Barkaloo entered the Law Department of Washington University in St. Louis, thus becoming the first woman law student in the nation. She did not complete her studies but passed the Missouri bar upon the conclusion of her first year of study and began practicing in 1870. It is interesting to note that of all the regions in the US, the Northeast, with the highest concentration of male attorneys, the longest history of male attorneys, and the most prestigious law schools, was the most resistant to the admission of women to the practice of law. In fact, Harvard University, ostensibly the best law school in the nation (and law school of choice for Elle Woods in Legally Blonde), did not admit women to its law school until as late as 1950.
From early on, as women entered the profession of law, contrasting views have arisen as to their role and contribution to the law. On one hand, women have argued that there is no difference in the way law is practiced by men and women, that the two genders are equivalent and thus equal in all aspects. However, another argument is made that women have brought to the law a unique perspective, one that is less adversarial than the traditional method (established by men) of trying cases in a court of law and declaring one side the winner and the other the loser. In an effort to find case resolution that entertains the philosophy of a “win-win” instead, women have expanded the law into areas of alternative dispute resolution such as mediation, especially in the areas of employment and family law, where it is not necessarily appropriate or desirable to have an outright winner and loser. Similarly, a more gentle approach to adjudication has been suggested by Supreme Court Justice Ruth Bader Ginsburg. In a speech given shortly before her nomination to the Supreme Court, Ginsburg suggested that “[m]easured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable.” Ginsburg has also urged that the Supreme Court allow for dialogue with elected branches, a notion not previously considered by the men who served before her.
February 2nd, 2010 at 8:04 am
Behind any achiever is a woman