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October 27, 2022 11:02 am
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BigLaw’s Jewish Problem

avatar by Kenneth L Marcus

Opinion

A pro-BDS demonstration. Photo: Wikimedia Commons.

The Jewish community has finally awakened to antisemitism on the college campus and in the streets — only to find it seeping into the corporate boardroom and, more recently, BigLaw.

Last week, White & Case LLP, a major international law firm, confirmed sponsoring a controversial conference on “Racism and the Crime of Apartheid in International Law,” featuring Omar Shakir. Shakir, a human rights activist, was once forced out of Israel by an expulsion order. The event was presented by the American Branch of the International Law Association, and was accused of promoting the anti-Israel Boycott, Divestment, and Sanctions (BDS) movement.

It was not a one-off. White & Case has also reportedly admitted — after initially denying — that it had sponsored a University of Chicago event earlier this month in which Shakir was invited to speak on Israel’s alleged “crime of apartheid.”

Historically, White & Case faced criticism for defending foreign governments and the German railway against lawsuits filed by Holocaust survivors. Allegations have also recently resurfaced that this firm once relegated its few Jewish lawyers to back-office research work, and forbade them from interacting with clients.

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White & Case is the same law firm that the Morningstar financial services firm retained to review alleged anti-Israel bias within its research arm, Sustainalytics. To its credit, the firm found bias, leading Morningstar to drop one of its products and to speak with various groups, including the Brandeis Center, about cleaning up its shop.

Nevertheless, they provided Morningstar with ammunition to fend off pressure from attorneys general in over a dozen and a half states. Now, White & Case will face significant questions about whether it has any credibility as an independent reviewer of anti-Israel bias, when it has been exposed as a source of this very problem.

And the problem extends beyond this one firm.

StandWithUs has exposed several BigLaw firms for bankrolling Berkeley Law’s anti-Zionist bylaws. Four of the student groups that adopted antisemitic bylaws have publicly acknowledged their financial backers. The list includes some of the country’s leading law firms: Morrison & Foerster, where I formerly practiced, as well as Latham & Watkins, Covington & Burling, Debevoise & Plimpton, Skadden Arps, Wachtell Lipton, and Weil Gotshal.

These developments are concerning. We should not, however, overstate the problem. It is too soon, for example, to say whether these firms are underwriting anti-Zionism out of ignorance, rather than malice.

White & Case may have intended only to support international legal scholarship, in order to burnish its reputation in international law. The firm maintains that it has sponsored the American Branch of the International Law Association’s International Law Weekend for many years. The firm also claims that it would not have agreed to be associated with the University of Chicago event had they known the details in advance.

It is plausible that the firm sponsored the conference despite its anti-Israel extremism, and not because of it. Maybe White & Case’s partners have so much money that they don’t know or care where it is going. Similarly, BigLaw may have been ignorant of the Berkeley Law student groups’ anti-Jewish bias when they provided funding.

Nevertheless, these well-heeled lawyers should know the first rule of law: ignorance is no excuse. If they were not aware of the ramifications of their actions earlier, they are certainly aware of them now.

If these firms want to demonstrate that they are on the right side of these issues, they must stop underwriting antisemitism. At a minimum, they should freeze contributions to BDS, anti-Zionist, and antisemitic programming. That includes withholding contributions from any group that excludes Jewish speakers.

As employers, BigLaw should ask all law student applicants whether they have been part of any organization that excludes members, officers, or speakers based on their race, religion, or ethnicity. They should be explicit that this includes groups that have excluded Jewish speakers. Students who have been members of exclusionary groups should be asked what, if anything, they did to try to fix the problem.

Judges should do the same. Several judges have banned Yale Law students from clerkships based on lesser infractions than what we have seen at Berkeley. Judges should ask clerkship candidates whether they have been part of any exclusionary organization, including any group that bars Zionists. And if so, what actions did they take to try to eliminate the discrimination? At judicial nominations hearings, potential judges should be asked whether they will do this. If they decline, senators should weigh this declination in deciding whether to confirm.

BigLaw can do more. Where appropriate, they should apologize for their long histories of limiting or excluding Jewish applicants, much as Stanford has done. They should also apologize for mistreating the attorneys whom they have hired in the past.

Better yet, they should address current problems today. They should ensure that their diversity, equity, and inclusion programs address Jewish identity and antisemitism. If they have employees resource groups for others, they should form them for Jews. If they observe ethnic heritage months, they should observe Jewish American Heritage Month as well.

If they haven’t yet partnered with Shine a Light, firms should join that important nationwide initiative to raise awareness and take action against antisemitism. They should encourage their clients to do so, too. Whether intentionally or not, they have funded the darkness. Now they can shine some light.

The author is Founder and Chairman of the Louis D. Brandeis Center for Human Rights Under Law.

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