Perhaps we are not giving provocatively dressed lawyers enough credit

Since Judge Kopf’s, uh, provocative post about what female lawyers wear seems to have taken over the blogosphere this week, I thought I would offer two thoughts in addition to Nita’s and Eugene’s.

1: Eugene suggests that a lawyer’s dress in court ultimately can reflect on their chances of achieving victory for their client, and therefore should not be thought of as free-form self-expression. That seems right to me. But what Judge Kopf (and most commenters on this issue) never discuss is the serious possibility that some female lawyers who dress provocatively are indeed doing it strategically, and that their strategy might well be sound, given the circumstances.

Take Judge Kopf’s story (apparently written with “literary license”) of a female lawyer who dressed provocatively, irritating many female employees in the courthouse, though Judge Kopf thought she was a very good lawyer and also enjoyed her appearance. Perhaps the lawyer made a calculated choice that it was Judge Kopf’s opinion of her that mattered, and that, in fact, dressing provocatively would help. We would like to think that this isn’t how judges behave, and Eugene provides at least six reasons to think it might be counter-productive. But after reading Judge Kopf’s own confessed feelings, I am honestly not so sure.

A lot of trial attorneys are smart and strategic even when they are pretending not to be. So the assumption that female lawyers don’t know what they’re doing strikes me as patronizing. (Here’s a post from criminal defense lawyer Mark Bennett, making a similar observation.) In any event, I would not discount this possibility without further evidence.

2: Judge Kopf also alludes to a famous Saturday Night Live skit, writing: “Think about the female law clerks. If they are likely to label you, like Jane Curtin, an ignorant slut behind your back, tone it down.” But I fear he may have may missed the point of that skit.

You can go watch it here. Jane Curtin is not dressing provocatively. To imply, as Judge Kopf does, that Jane Curtin behaved or dressed inappropriately and thus caused other folks to label her “an ignorant slut,” is to miss the point.

If anything, one can draw a feminist lesson from “Jane, you ignorant slut!”: that women who appear in public are always at risk of being sexualized or labeled as a slut, and can’t do anything about it. Ironically, that may be the real (if unintentional) lesson of Judge Kopf’s post.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).

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