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Efficient Discrimination and the South African Legal Profession

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Efficient Discrimination and the South African Legal Profession Michigan Journal of International Law Volume 23 Issue 3 2002 No Black Names on the Letterhead? Efficient Discrimination and the South African Legal Profession Lisa R. Pruitt University of California, Davis, School of Law Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Civil Rights and Discrimination Commons, Comparative and Foreign Law Commons, Law and Race Commons, and the Legal Profession Commons Recommended Citation Lisa R. Pruitt, No Black Names on the Letterhead? Efficient Discrimination and the South African Legal Profession, 23 MICH. J. INT'L L. 545 (2002). Available at: https://repository.law.umich.edu/mjil/vol23/iss3/2 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. NO BLACK NAMES ON THE LETTERHEAD? EFFICIENT DISCRIMINATION AND THE SOUTH AFRICAN LEGAL PROFESSION Lisa R. Pruitt* INTRODUCTION ...................................................................................... 547 I. A BRIEF HISTORY OF 20TH CENTURY SOUTH AFRICA ................. 553 II. THE LEGAL PROFESSION DURING APARTHEID .............................. 561 III. THE POST-APARTHEID LEGAL PROFESSION .................................. 573 A. Reform in Legal Education and Regulation of the Profession .................................................................. 573 B . Racial D emographics............................................................ 576 C . Elite Law Firms .................................................................... 579 D. The Emergence of Black Commercial Firms........................ 585 IV. THEORETICAL PERSPECTIVES ON THE LEGAL PROFESSION: ELITE LAW FIRMS AND INSTITUTIONAL RACISM .......................... 590 A. The Internal Labor Markets of Elite Law Firms: Pyramids, Tournaments, and High Wages ............................. 590 B. Economic Theories of Discrimination................................. 593 1. Taste D iscrim ination ...................................................... 593 2. Workplace Cultures, Worker Preferences, and the C osts of Integration ....................................................... 596 C. Wilkins and Gulati's "Richer" Theory of Discrimination in Elite U.S. Law Firms ........................................................ 597 V. ELITE LAW FIRMS IN SOUTH AFRICA ............................................. 602 * Acting Professor, University of California, Davis, School of Law (Martin Luther King, Jr. Hall), [email protected]. I am indebted to the many South African attorneys, legal educators, and judges who took time to be interviewed for this project. Thanks to Alan Brown- stein, Diane Marie Amann, Martha S. West, Kevin R. Johnson, Nancy Amoury Combs, Ursula Fikelepi, Megan Reimers, Leon Trakman, Annelise Riles, David B. Wilkins, Joel Dobris, Bill Hing, Jon Klaaren, Penny Andrews, Francois du Bois, Carlo Scollo-Lavizzari, Theresa A. Hammond, Evelyn Lewis, Laurie C. Self, David A. Herbert, Spencer Overton, Tom W. Joo, Madhavi Sunder, Julia Robinson, Daniel J. Steenkamp, Scott M. Schdnfeldt-Aultman, Rachel Valente, Tobias Barrington Wolff, and Robert Paul Wolff for helpful comments and conversa- tions that have informed this Article. I was fortunate to have the opportunity to present an earlier version of this paper at the Stanford-Yale Junior Faculty Forum where Judith Resnik, Robert Weisberg, Peter Strauss, Ronald Gilson, Jonathan Molot, and Joseph Kennedy, among others, offered helpful comments. Thanks to Beth Colgan, Chris Calfee, Randi Jenkins, Dan- ielle Thiry-Zaragoza, Tiffany King, Paul Hanley, Joshua D. Boxer, Kelly Z. Bowra, Carrie Rosenbaum, and Eli Makus for superb research assistance. U.C. Davis law librarian Erin Murphy made many helpful contributions. The editing of Jill Van Dalen and Hillary Spike of the Michigan Journal of InternationalLaw added great value to the finished product. I am particularly indebted to the U.C. Davis School of Law for financial support of this project and to Lise Bosman, whose love for her country inspired my first visit to South Africa in 1994. Any errors or omissions are my own. Michigan Journalof InternationalLaw [Vol. 23:545 A. The Internal Labor Markets of Elite Firms: Monoliths, Apprenticeships, and FinancialEndurance Contests ............ 602 B. The Commercial Incentive to Integrate: Needing Black Names on the Letterhead ..................................................... 608 C. Responding to the Incentives ................................................ 615 1. Flexibility Regarding Traditional Hiring Priorities Has Led to Gains by Blacks in Hiring ........................... 616 2. Affirmative Action Programs Suggest that Blacks A re U nqualified ............................................................. 624 3. Training Efforts Fail to Respond to the Needs of M any Black Attorneys ................................................... 630 D. Establishment Explanationsfor Black Underrepresentation................................................... 637 1. Blacks Are Intellectually Inferior to Whites .................. 637 2. Blacks Have Less Human Capital than Whites ............. 638 3. Blacks Lack Exposure to and Are Uninterested in Com mercial Legal Work ................................................ 641 4. Blacks Are Unwilling to Accept the Deferred Financial Gratification Associated With Law Firm Partnership ... 645 VI. A THEORY OF EFFICIENT DISCRIMINATION IN SOUTH AFRICA'S ELITE L AW FIRM S ......................................................................... 648 A. The Role of the Individual: The Black Experience in Elite Commercial Firms ....................................................... 650 B. The Role of the Organization: Bias Disguised ..................... 658 C. The Failureof the Market: When No Competitor Is G etting It R ight .................................................................... 660 1. White Firms Cannot Overcome Their Taste for D iscrim ination ......................................................... 660 2. White Firms Don't Believe Blacks Can or Will Be Integrated into Their Institutions ................................... 663 3. White Firms Cannot Justify the Extra Costs of Training and Assimilating "Atypical" Black Workers ................. 665 4. The Commercial Incentive to Integrate Is Not as G reat as It A ppears ........................................................ 668 C ON CLU SIO N.......................................................................................... 67 1 Although there have long been black lawyers in South Africa, during apartheidonly a handful joined the ranks of the country's large commercialfirms. Now, in the post-apartheidperiod, these firms are keenly aware of a range of economic and political in- centives to hire black attorneys, and most are doing so at a recordpace. Very few black attorneys, however, are enduring the path to partnership in these firms. Based on more than seventy- five interviews conducted in South Africa in 1999 and 2000, this Spring 20021 No Black Names on the Letterhead? Article both documents and critically examines the reasons for black attrition. While firms' incentives to integrate include com- mercial ones associated with clients' newfound attention to the racialdiversity of their vendors, such incentives apparently have not yet outweighed the forces impeding integration-some of those forces being incidental to the country's history and poli- tics, some attributable to the institutionalcharacteristics of law firms, others to the acts of individuals within those institutions. Although the underrepresentationof blacks in these firms is fre- quently attributed to blacks' own failings or choices, Professor Pruitt argues that the lack of integration is also the result of dis- criminatory actions of white individualsand the institutions they run. Still building on the descriptive platform she has laid, Professor Pruitt goes on to construct a model of efficient dis- crimination with respect to South Africa's elite legal sector, arguing that firms are able to survive in the new marketplace, even absent retention of black attorneys, because the power of the incentives to integrate does not match the rhetoric around it. In addition, because no firm is achieving integrationand thereby taking advantage of existing incentives, no firm is raising the integration quotient, which would presumably challenge other firms to do the same. INTRODUCTION The emerging black business elite will be looking for black firms. The white firms will adapt [and] offer black practitioners partnerships. There will be African names in partnerships of large firms. You find no one in this country who ever supported apartheid. Firms are behaving with the ostensible zeal of new converts. -Judge, High Court of South Africa' Tomorrow is Another Country,2 the title of one of the popular books about South Africa's transition to democracy, denotes the country's rapid move from apartheid to majority rule over the course of a few years in the late 1980s and early 1990s. "Tomorrow" however, has not proved to be "another legal profession" there. The pace of change and racial 1. Interview No. 41, in Johannesburg, S. Afr. (Mar. 17, 1999) (colored male, Judge, High Court of South Africa) (transcript on file
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