by Jill Norgren
In various ways issues of professional decorum raise the question of whether, to succeed, women need to follow the example of men. In March 2011, however, a far more troubling matter was raised by Supreme Court Justice Sonia Sotomayor. Speaking to a group of Northwestern University law students, Sotomayor said that female candidates for the judiciary are treated differently than their male counterparts.9 Women jurists, she contended, need a thick skin. “There are expectations about how women and men should behave,” she said. “I am probably a bit more aggressive, but to hear people describe me as brash, and rude, the language used suggests a difference in expectations about what’s OK for people’s behavior.”10 The justice also suggested that unmarried female judicial candidates experience a more thorough vetting process, and harsher questioning, with respect to their private lives than is the case with male candidates. Sotomayor, divorced for many years, said that she is very careful in her private life, contending that if she behaved like single male colleagues who date, her morals would be questioned.
The story of women in the profession of law is, then, neither one of complete triumph nor one of Sisyphean failure. The first generation provided the shoulders upon which subsequent generations of American women lawyers have stood as they struggled to expand the place, and contributions, of women attorneys. The struggle is not over: women account for about one-fifth of law firm partners, and even fewer Fortune 500 general counsels.11 In 2009 male federal judges outnumbered women judges three to one.12 Imagine, however, what Myra Bradwell, Belva Lockwood, and Lelia Robinson might say about the large number of women graduating from law schools, and about the fact that there are now opportunities in corporate law firms. Other changes are found in the work available to women lawyers in state and federal government, the presence of women associate justices on the Supreme Court of the United States, and the larger number of women arguing cases at the high court.
The first generation of women lawyers fought for equality of opportunity, and knew it would take several generations to realize their dreams of an unfettered place in the profession. Justice Ruth Bader Ginsburg has said that there has been “exhilarating change,” even as vigilance is necessary in maintaining the trend.13
Notes
ABBREVIATIONS USED IN NOTES
CLN
Chicago Legal News
HWS
Elizabeth Cady Stanton, Susan B. Anthony, and Matilda Joslyn Gage, eds., History of Woman Suffrage (1881-1922; reprint New York: Arno, 1969 and Project Gutenburg eBook)
LC
Library of Congress
LDJ
Lockport (New York) Daily Journal
LGP
Lavinia Goodell Papers, Chapin Library of Rare Books, Williams College
LRS
Lelia Robinson Scrapbook, Chapin Library of Rare Books, Williams College
NA
National Archives
SCPC
Swarthmore College Peace Collection
WGF
Papers of the William Goodell Family, Hutchins Library, Berea College
WL
Virginia G. Drachman, Women Lawyers and the Origins of Professional Identity in America: The Letters of the Equity Club, 1887-1890 (Ann Arbor: University of Michigan Press, 1993)
WLH
Women’s Legal History Biography Project: http://wlh.law.stanford.edu/biography_search/articles
PREFACE
1. Bradwell v. Illinois, 83 U.S. 130, 141 (1873).
2. In the Matter of the Motion to admit Miss Lavinia Goodell, 39 Wisc. 232, 245-46 (1875).
3. Bradwell, 130.
4. Catharine G. Waugh (McCulloch) to Equity Club members, 2 May 1888, WL, 136.
5. Ibid., 136.
6. LRS, Boston Times, September 11, 1881, quoting the Globe.
7. In 1894, African American Ida Platt graduated with honors from the Chicago College of Law and, as a member of the second generation of women lawyers, helped to establish the Cook County Bar Association, the nation’s oldest African American bar association.
CHAPTER 1
1. Barbara Sapinsley, The Private War of Mrs. Packard. (New York: Kodansha International, 1991), and the Directory of Jacksonville State Hospital Patients, 1854-1870. Her name was spelled incorrectly with an “s.” Elizabeth Packard was discharged on June 18, 1863. http://www.rootsweb.ancestry.com/~ilmaga/morgan2/statehosp/mc-sh_adm-pq.html.
2. Edith B. Gelles, Abigail and John: Portrait of a Marriage (New York: Morrow, 2009), 77.
3. Rosemarie Zagarri, Revolutionary Backlash: Women and Politics in the Early Republic (Philadelphia: University of Pennsylvania Press, 2007), 1.
4. Linda Kerber, Women of the Republic (Chapel Hill: University of North Carolina Press, 1980).
5. Zagarri, Revolutionary Backlash, 146, 180; Catherine Allgor, Parlor Politics: In Which the Ladies of Washington Help Build a City and a Government (Charlottesville: University Press of Virginia, 2000), 30, 47.
6. Sarah Grimke culled data from twenty thousand newspapers and used this information in her book American Slavery, which sold one hundred thousand copies, at least one of which was in the hands of Harriet Beecher Stowe when she wrote Uncle Tom’s Cabin.
7. Margaret Fuller, Woman in the Nineteenth Century (New York: Norton, 1971), 171.
8. “Declaration of Sentiments and Resolutions,” available with commentary at http://ecssba.rutgers.edu/docs/seneca.html All subsequent quotations from the Declaration may be found at this site.
9. Elizabeth H. Thomson, “Elizabeth Blackwell,” in Edward T. James, ed., Notable American Women, 1607-1950 (Cambridge, MA: Harvard University Press), 1: 163.
10. Barbara M. Solomon, “Antoinette Louisa Brown Blackwell,” in James, Notable American Women, 1: 159. See also Rebecca Larson, Daughters of Light: Quaker Women Preaching and Prophesying in the Colonies and Abroad, 1700-1775 (New York: Knopf, 1999).
11. Kathryn Kish Sklar, Catharine Beecher: A Study in American Domesticity (New York: Norton, 1976), 78.
12. Ibid., 97.
13. Ibid., 181.
14. Our Mothers before Us: Women and Democracy, 1789-1920 (Washington, DC: Center for Legislative Archives, National Archives and Records Administration, 1998), 2: 31.
15. Evening Herald (Utica, NY) editorial, reprinted in Geoffrey C. Ward and Ken Burns, Not for Ourselves Alone: The Story of Elizabeth Cady Stanton and Susan B. Anthony (New York: Knopf, 1999), 68.
16. Ibid., 68.
17. Joan Hedrick, Harriet Beecher Stowe (New York: Oxford University Press, 1994), 11.
18. Solomon, “Blackwell,” 1:159.
19. Andrea Moore Kerr, Lucy Stone: Speaking Out for Equality (New Brunswick, NJ: Rutgers University Press, 1992), 60.
20. HWS, 1: 228.
21. “American Anti-Slavery Anniversary,” The National Anti-Slavery Standard, May 13, 1865, 2.
22. Stanton to Phillips, 25 May 1865, reprinted in Theodore Stanton and Harriet Stanton Blatch, eds., Elizabeth Cady Stanton (New York: Arno, 1969), 2: 104-5.
23. Helena B. Temple, “Interview, Mrs. Belva A. Lockwood,” Women’s Penny Paper, October 5, 1889, 1.
24. “Woman Suffrage,” Evening Star, January 19, 1870, 4.
25. Ibid., 4.
CHAPTER 2
1. Jerold S. Auerbach, Justice without Law? Resolving Disputes without Lawyers (New York: Oxford University Press, 1983), 3.
2. Ibid., 8; James Willard Hurst, The Growth of American Law: The Law Makers (Boston: Little, Brown, 1950), 277.
3. Gerard W. Gawalt, “Sources of Anti-Lawyer Sentiment in Massachusetts, 1740-1840,” American Journal of Legal History 14 (1970): 284.
4. Ibid., 284. Gawalt writes that the need for lawyers in Massachusetts Bay Colony was first formally recognized in 1701 when the legislature established an oath of office for attorneys, and set maximum fees for court cases that only regularly admitted attorneys could collect. Gawalt, “Sources,” 284.
5. J. Hector St. John de Crèvecoeur, Letters from an American Farmer and Sketches of Eigh
teenth-Century America (1782; reprint New York: Penguin Books, 1981), 151-52. Lawyers loyal to England also provoked petitions that they be disbarred. Gerard W. Gawalt, The Promise of Power: The Legal Profession in Massachusetts, 1760-1840 (Westport, CT: Greenwood Press, 1979), 48-50.
6. Washington Irving, A History of New York from the Beginning of the World to the End (London: John Murray, 1820), 261.
7. Gawalt, Promise of Power, 51.
8. John Phillip Reid, Legitimating the Law: The Struggle for Judicial Competency in Early National New Hampshire (DeKalb: Northern Illinois Press, 2012), 22. Reading Federal as well as Republican New Hampshire papers, Reid observes “how much anti-lawyerism was part of the political culture.” Ibid., 23.
9. Philip S. Foner, ed., The Complete Writings of Thomas Paine (New York: Citadel Press, 1945), 29.
10. Alexis de Tocqueville, Democracy in America (New York: Random House, 1945), 1: 282.
11. Ibid., 283.
12. Ibid., 283. Tocqueville offers a brief caveat: “I do not, then, assert that all members of the legal profession are at all times the friends of order and the opponents of innovation, but merely that most of them are usually so.” 1: 284-85.
13. Ibid., 283.
14. Reid, Legitimating, 26.
15. Perry Miller, The Life of the Mind in America from the Revolution to the Civil War (New York: Harcourt Brace & World, 1965), 242. Italics in the original. In the 1860s Waterville College was renamed Colby College. Reid, Legitimating, 26.
16. Gawalt, “Sources,” 291.
17. Susan Dunn, “When America Was Transformed,” New York Review of Books, March 25, 2010, 29. Banking had become less elitist. One observer noted that by 1820, “wherever there was a church, a tavern, and a blacksmith, one could also find a bank.” Ibid., 30.
18. Charles Sellers, The Market Revolution: Jacksonian America, 1815-1846 (New York: Oxford University Press).
19. Ibid., 51.
20. Ibid., 47, 51.
21. Miller, The Life, 109; Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge, MA: Harvard University Press, 1977), 140, 154; personal communication from John Phillip Reid, 29 July 2010. In The Americanization of the Common Law, William E. Nelsen also explains that contracts were no longer enforced according to community values but according to the purpose intended by the parties to the contract.
22. Horwitz, Transformation, 144.
23. Ibid., 226.
24. Miller, Life, 237-38.
25. Horwitz, Transformation, 253.
26. Reid, Legitimating, 26-27.
27. Laura F. Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009), 4.
28. Ibid., 4.
29. Ibid., 48, quoting historian Lars C. Golumbic. Edwards argues that within the culture of localized law “everyone participated in the identification of offenses, the resolution of conflicts, and the definition of law.” This local commitment to “peace” empowered the powerless as even members of the community without rights—wives, children, servants, slaves—as well as free blacks, unmarried free women, and poor whites had direct access to the process by which neighbors sought to re-establish the all-important social order.
30. Ibid., 80. See also John Phillip Reid’s study of the law-mindedness of ordinary people: Law for the Elephant: Property and Social Behavior on the Overland Trail (San Marino, CA: Huntington Library, 1980).
31. Edith B. Gelles, Abigail and John: Portrait of a Marriage (New York: Morrow, 2009), 206.
32. Sellers, Market, 47; Gawalt, Promise of Power, 172.
33. Emma (Mrs. E.D.E.N.) Southworth allegedly based her immensely popular nineteenth-century novel Ishmael on Wirt’s life and career.
34. For a full discussion see G. Edward White, The Marshall Court and Cultural Change, 1815-1835 (abridged ed.) (New York: Oxford University Press, 1991), 95-117.
35. Walter Theodore Hitchcock, Timothy Walker: Antebellum Lawyer (New York: Garland, 1990), 96.
36. Ibid., 101.
37. Steve Sheppard, ed., The History of Legal Education in the United States: Commentaries and Primary Sources (Pasadena, CA: Salem Press, 1999), 1: 292.
38. Hurst, Growth, 256.
39. Gawalt, Promise, 60, 66, 91, 93-118.
40. Robert T. Swaine, The Cravath Firm and Its Predecessors, 1819-1947 (New York, Ad Press, 1946), 1: 6, quoting to the issue of June 27, 1818.
41. George Shattuck to Walker, 29 March 1831, Walker Papers, reprinted in Hitchcock, Timothy Walker, 125-26.
42. Hitchcock, Timothy Walker, 25.
43. Ibid., 59.
44. Miller, Life, 259.
45. Ibid., 259.
46. Allen Nevins and Milton Halsey Thomas, eds., The Diary of George Templeton Strong (New York: Macmillan, 1952), 1: 301.
47. Ibid., 1: xxiii and 165.
48. Ibid., 3: 28; Edwin G. Burrows and Mike Wallace, Gotham: A History of New York City to 1898 (New York: Oxford, 1999), 967-68.
49. Nevins and Thomas, Diary, 1: xxix-xxxi; 2: “1854”; William P. LaPiana, Logic and Experience: The Origin of Modern American Legal Education (New York: Macmillan, 1994), 81-87.
50. Hitchcock, Timothy Walker, 14-15; White, The Marshall Court, 105, citing to William W. Story, ed., The Life and Letters of Joseph Story (Boston: Little, Brown, 1851), 2: 1-7.
51. Nevins and Thomas, Diary, 2: 388; 3: 25, 29, 31, and 269.
52. For a variety of reasons, state and even county bar associations did not flourish in the first decades of the nineteenth century. Some associations sought to control local admission standards, but many were largely quasi-social clubs. Bloomfield argues that “it was the judiciary, not the bar, that did most to establish the guidelines for legal practice, with the acquiescence of state legislatures.” Maxwell Bloomfield, “Lawyers and Public Criticism: Challenge and Response in Nineteenth-Century America,” American Journal of Legal History 15 (1971): 272. Some state legislators tried to limit their growth, describing bar associations as undesirable protectionist leagues (e.g., New Hampshire from 1842 until 1872). Robert Steven, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill: University of North Carolina Press, 1983), 9.
53. 10 U.S. 87 (1810).
54. R. Kent Newmyer, “Joseph Story,” in Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States (New York: Oxford University Press, 1992), 842.
55. Cherokee v. Georgia, 30 U.S. 1 (1831) and Worcester v. Georgia, 31 U.S. 515 (1832). See Jill Norgren, The Cherokee Cases (Norman: University of Oklahoma Press, 2004).
56. Nevins and Thomas, Diary, 1: xxiii.
57. Edwards, The People, 49.
58. Nevins and Thomas, Diary, 1: xxiv; Deborah S. Gardner, Cadwalader, Wickersham & Taft: A Bicentennial History, 1792-1992 (New York: Cadwalader, Wicker-sham & Taft, 1994), 2-3.
59. David Dudley Field, “The Study and Practice of the Law,” Democratic Review 14 (April 1844): 345.
60. Ibid., 345.
61. Ibid., 346.
62. Ibid., 345.
63. Ibid., 349.
64. Ibid., 349.
65. Ibid., 349.
66. Ibid., 349-50.
67. Mark E. Steiner, An Honest Calling: The Law Practice of Abraham Lincoln (DeKalb: Northern Illinois University Press, 2006), 103-4.
68. Ibid., 125-26. U.S. Constitution, Article I, Sections 2 and 9, and Article IV, Section 2.
69. Steiner, Honest Calling, 137-59.
70. Gordon Morris Bakken, Practicing Law in Frontier California (Lincoln: University of Nebraska Press, 1991), 2; Reid, Law for the Elephant, 17.
71. Bakken, Practicing Law, 41.
72. Ibid., 83.
73. Ibid., 103.
74. Ibid., 112; C. Robert Haywood, Cowtown Lawyers: Dodge City and Its Attorneys, 1876-1886 (Norman: University of Oklahoma Press, 1988), 242-43.
75. Bakken, Practicing Law, 118.
76.
Ibid., 12.
77. Rebecca Edwards, New Spirits: Americans in the Gilded Age, 1865-1905 (New York: Oxford University Press, 2006), 4.
78. Swaine, The Cravath, 91-92.
79. Hurst, Growth, 297-98. American writer Winston Churchill warns about the power of railroads and their lawyers in his 1908 reform novel Mr. Crewe’s Career. He makes a hero of lawyer Austen Vane, who would not take a retainer from the railroads.
80. Hurst, Growth, 311. Hurst demonstrates that the top bracket earners, in contrast, did very well. He also describes the competition encountered by local attorneys as title insurance companies and debt collection agencies expanded their reach. Ibid., 319 ff.
CHAPTER 3
1. Jane M. Friedman, America’s First Woman Lawyer: The Biography of Myra Bradwell (Buffalo, NY: Prometheus Books, 1993), 18, 41.
2. Mary A. Livermore, The Story of My Life (Hartford, CT: A.D. Worthington, 1898), 457.
3. Friedman, America’s First Woman Lawyer, 38-39, quoting the Chicago Tribune, May 12, 1889, 26.
4. Ibid., 38.
5. Mary A. Livermore, My Story of the War: A Woman’s Narrative (1887; reprint New York: Da Capo Press, 1995), 411.
6. Ibid., 455.
7. Ibid., 430. The manuscript, placed by its owner in the archives of the Chicago Historical Society, burned in the Great Chicago Fire.
8. Livermore, My Story of the War, 439-40.
