It’s a pretty big catch for a law firm, to represent Facebook, and what firm in today’s market wouldn’t be thrilled to nail the whale? But it comes with some curious strings attached.
Facebook is requiring that women and ethnic minorities account for at least 33 percent of law firm teams working on its matters.
Numbers alone, however, are not enough, under a policy that went in effect on Saturday. Law firms must also show that they “actively identify and create clear and measurable leadership opportunities for women and minorities” when they represent the company in litigation and other legal matters.
As with most social justice demands, it’s rather vague what is meant by “create clear and measurable leadership opportunities.” But then, while lawyers tend to use comprehensible language, we’re becoming increasingly alone and isolated. Either way, the one-third requirement is pretty clear.
Those opportunities “include serving as relationship managers and representing Facebook in the courtroom,” Facebook’s general counsel, Colin Stretch, said in an interview. The legal department, he said, has for the last few years been working on increasing diversity at all levels.
“Firms typically do what their clients want,” he said. “And we want to see them win our cases and create opportunities for women and people of color. We think the firms are ready — our articulation gives not just permission but a mandate.”
A mandate, indeed. Win our cases, but with lawyers whose virtue is their skin color or genitalia rather than their skill and experience. Remember when you thought the people at Facebook were smart?
Ironically, this is part of Facebook’s own dog and pony show, because it’s getting slammed for being white and male.
For Facebook, the move on outside lawyers is happening even as the company’s efforts at improving diversity in its own work force have so far shown little progress.
According to statistics released last year, blacks and Hispanics last July accounted for only 3 percent each of senior leadership, and women made up an additional 27 percent. Hiring for the 12 months beginning with July 2015 showed something of an improvement: Of those newly recruited to senior leadership posts, 9 percent were black, 5 percent were Hispanic and 29 percent were women.
The numbers, and the improvement in the numbers for the sake of diversity, seem pretty good. No, they don’t align with the demands that companies’ numbers match population statistics, a foundational requirement under the belief that the only way there can be disparate numbers is racism and sexism. But if Facebook can’t get its own workforce in order, the least it can do is use its money to force others to ride magic unicorns on rainbows.
But law isn’t diverse and inclusive? Perhaps. But law, like the coders Facebook desperately needs to keep itself up and running, can only draw from the pool of people available. Much as Facebook might want to be a mirror image of the colors and genders people claim exist, it’s got a problem. If you can’t code, what will they do with you? Sure, they could hire people to sit at desks and twit about Facebook all day long, but that’s not really the positions they need to fill. Like it or not, it takes certain skills.
Social justice orthodoxy says that women can code every bit as good as men, black code is as good as white. And all this may well be true, but only to the extent women want to code, blacks go to college and learn how to code. A black lesbian Course 6 graduate* can write her own ticket, as companies will fall all over each other to hire her. It’s no secret. She’s a diamond.
Law has even greater constraints. You need to be a lawyer. That cuts the pool of potential people from the start. Within that pool, you need to be a good lawyer. Remember, Facebook says it wants to win. Most clients do. That’s kinda why they go to lawyers.
Some might view Facebook’s effort to use its pocketbook as cynical, a pretense to compensate for its own failure to make its numbers and show that tech isn’t racist and sexist. But that ignores the fact that Facebook appreciates the difficulty it has in making competent people magically appear to fill its social justice quotas. They know they need people capable of doing the job, and if they could find them, they would hire them.
It’s harder to accept that the same issues exist elsewhere, especially in a profession like law, which has a notorious history of discrimination and a pretty lousy reputation for welcoming women and minorities into white shoe law firms. Even when I graduated law school in the dark old days, firms were still clearly segregated. There were WASP firms and a few Jewish firms, and the most likely place for a black or woman lawyer to find a job was government.
Consider the shifting demographics of law schools, where women now make up the bulk of graduating classes, and minorities made up 27% of grads in 2014, but only comprise 13.97% of hires at Biglaw. This, of course, is misleading, since Biglaw hires from the top law schools, while the stats reflect all law schools. That there are as many as 13.97% is shocking, as you can bet your sweet bippy that Biglaw isn’t hiring white male grads from T-4 schools, and there aren’t that many minorities graduating from HYS.
Can Facebook use its pocketbook to coerce law firms hungry for their business to defy reality? Will the answer be featherbedding? Will they make people partner based on color and genitalia? If there’s enough money involved, maybe they will.
But will they win Facebook’s cases? That’s where religion hits the wall. No judge, no jury, is going to hand Facebook a win based on the genitalia of their lawyers. Either they’ve got the skills or they lose. It wouldn’t surprise anyone if law firms will play the game, hire people on the basis of skin color instead of merit, as long as Facebook pays their legal tab.
If Facebook loses, well, at least they can take satisfaction in knowing they forced a law firm to do what they couldn’t do themselves. There should be no discrimination based on race or gender in the law, but if your lawyer isn’t very good, you’re going to lose despite your best intentions.
*For the unwoke, Course 6 refers to a computer science major at MIT. If someone manages to make it out the other end of that ringer, whether first or last in the class, they’re good. There is no “gentleman’s C” at MIT, and no one graduates without exceptional skills.
Update: At the ABA’s ignominously named “Legal Rebels,” Paul Lippe takes note of HP’s announcement that it will hold back 10% of legal fees to firms that fail to meet its diversity quotas. After a relatively clear, albeit lengthy, discussion of why lawyers aren’t pro wrestlers, Paul’s solution to the merit v. genitalia problem is to redefine merit.
So how can we better measure lawyer performance, recognizing that we are a long way from WWF? I gave a talk on that topic last month at Santa Clara Law School. I would say there are four rules:
• Metrics must be outcomes-based, aligned with clients’ metrics.
• Metrics must be process-specific, i.e. the metrics for doing an M&A transaction are very different from the metrics for a temporary restraining order.
• It’s better to imperfectly measure important things than perfectly measure unimportant things.
• Metrics work much better when considered with ideas about how to improve performance (e.g., Design Thinking) , because in general it’s not super-meaningful to measure something unless we have some notion of comparison or improvement.
If anyone has a clue what this means, I would love to know. From here, this looks like the same jargon-based circular gibberish that warms the hearts of the terminally passionate, which is why there is nothing in there reflecting comprehensible ideas.
Paul’s ultimate point, however, seems clear: if diversity can’t be accomplished by hiring good lawyers, redefine what constitutes good to “align” with vaginas. If it still doesn’t work, just keep dumbing it down until it does. Problem solved!!! Except for losing the cases.
Course 6 is Electrical Engineering and Computer Science. Every graduate can code, but courses in circuits, systems, signal processing, physics, etc. are required. Part of the exceptional skills is understanding what happens on the other side of the keyboard.
Congratulations on your son’s achievement.
My son was Course 2, so by Institute standards, his coding chops suck. But GIRs.
If it comes out that FB doesn’t care about outcomes as much as diversity, I will be starting the world’s first all black/latino/gay/woman/leprechaun law firm with FB as my client.
I self-identify as a leprechaun. That counts, right?
You’re hired!
Leprechauns are white and male – and I don’t think ginger’s get victimhood credit either.
So, its back to government work for you.
I’m sure this is on the ABA’s “to do” list for reforming the legal system.
“It’s better to imperfectly measure important things than perfectly measure unimportant things.” You betcha. You could rebuild an engine on this principle, but you might not want to start it.
Remember when people aspired to getting things right rather than coming up with great rhetorical excuses for getting things wrong?
Actually engines are built/rebuilt on this principle. Accuracy to a micron might be important when doing a capability study on a crank grinding process, but that level of precision is not required to match a journal to a set of bearings.
He’s basically saying measure the things that matter even though it may be difficult or have a greater degree of uncertainty rather than selecting a metric of little importance because the ease of monitoring. The latter being done accredited fields/organizations all the time to bolster ones “capability”. It’s a way of gaming the system.
“Actually,” you’re wrong on both counts. Allen’s analogy didn’t, as you conveniently assumed, suggest it applied to only those aspects of engines that didn’t require precision. One might say you raised a strawman, using the favored method of the 12-year-old pseudonymous shit for brains, the “actually” intro, to feign some deeper knowledge that you don’t have the authority to claim and, actually, isn’t at all the point of Allen’s analogy.
And actually, you’ve done the same, creating a strawman that is completely contrary to what “he” is “basically saying.” He offers nothing to suggest his metric is of “things that matter” unless what matters for lawyers is gender and skin color and not competence and client service.
So actually, you’re that asshole who tries to spew stupidity if nobody notices that you’re full of shit. Actually.
“If anyone has a clue what this means, I would love to know.”
Perhaps I’m wrong, but I think anyone who has been in an organization with a formal Quality Management System such as ISO 9000, TS 16949 or A2LA will recognize the “jargon-based circular gibberish” in the article.
Good try digging yourself out of your strawman on the engine. As for the jargon, apply it to law, not empty generic horseshit.
“It’s better to imperfectly measure important things than perfectly measure unimportant things.”
He’s saying it’s better to imperfectly measure unmeasurable things than perfectly measure measurable things. And then he proceeds to want to measure only measurable things (e.g., demographics) while giving less importance to unmeasurable things (e.g., work ethic, skill).
BTW, the “WWF” reference in the last linked article is to the Scrabble knock-off “Words with Friends,” not pro wrestling. Not that it helps.
I prefer it be pro-wrestling (come on, it’s so much more appropriate and funnier). Don’t harsh my lived experiences.
How does Facebook decide if Lawfirm is sufficiently gender-diverse?
“We don’t have enough vaginas to get the facebook contract” is a little unseemly and wouldn’t read well on the company accounts. Of course, woman == vagina is antiquated dogma, gender should be determined by listening to all sides of the debate and making an informed choice, then communicating it by anonymous survey to the firm.
“great news on the diversity survey; no two people agree.”
The jargon about metrics makes perfect sense to me in and of itself, I just don’t think it’s really a sensible thing to apply to “diversity metrics” – because performance on diversity metrics doesn’t inherently improve performance on any other metrics. In certain circumstances it might presumably lead to better outcomes (e.g. marketing campaigns), but as far as I can tell, there’s no reason to expect it would do so in lawyering.
That was the point. It was generic business jargon without any comprehensible connection or application to the practice of law.
>If anyone has a clue what this means, I would love to know.
It’s quality control/quality assurance jargon; metrics are an issue in software engineering, so I’ve had to study it (There are so many ways to do software metrics wrong…) I assume it is not an issue in criminal defense law, at least not on the scale of small firm/solo practice, and that’s why you haven’t run into it?
My question was from the perspective of its application to the issue at hand, not generic. Of course, you could have read other comments and realized this yourself.