David Wilkins (Harvard Law): Bias Without Bigotry

Big Law has spent decades and a fortune on diversity, and the numbers barely moved at the partnership level. The usual explanation is that somewhere in the building (or somewhere in your head) there's racism and misogyny. David Wilkins, Harvard Law professor and possibly the most important scholar on the legal profession, has a less satisfying answer: you don't need bigots to get this result. You just need busy partners.

In this conversation, Wilkins joins Joel and John to explain how a firm full of well-meaning people still produces lopsided results. Partner time is scarce. Partners hand it out on almost no information, so they bet on associates who look like the last associate who made it, and hesitate over the profiles they've watched walk out the door. That partner isn't a villain, Wilkins says. He's just "a person in a competitive market."

Wilkins also takes apart Big Law's favorite metaphor — the "tournament" where associates compete and the best rise to partner. Partners aren't neutral umpires with time for all. They're busy people rationing training, and the associate with a sponsor or a feel for the unwritten rules draws the good work while an equally capable one drafts the same motion for the ninth time. Money runs through all of it: who gets to Harvard, who graduates without loans, who can survive a lean year. Wilkins describes a loop where family wealth becomes educational capital, then opportunity, then wealth again.

Then there's the post-SFFA landscape, where firms have quietly killed their fellowships and stopped saying the word "diversity" out loud. (Longtime listeners will recall our earlier guest Richard Sander, Episode 10, made the case for the decision.) Wilkins is less impressed with what firms have done since. His point is that the Court reached admissions, not hiring, and much of the retreat traces to political pressure that goes well beyond anything the Court held. The demographics didn't change. Neither did the structural problem. The encouraging part, in Wilkins's telling: a firm that fixes how it hands out training, sponsorship, and real work doesn't just get more diverse. It gets better at finding the talent it's currently wasting.

Guest: David B. Wilkins is Vice Dean for Global Initiatives on the Legal Profession and Faculty Director of the Center on the Legal Profession at Harvard Law School. He has written more than 80 articles on how lawyers actually build careers, co-authored The Making of Lawyers' Careers (the twenty-year After the JD study), and his working motto is "great lawyers are made, not born."