Originally posted on July 22, 2018
Last week, a top law firm in Toronto, Lenczner Slaght, announced they were embracing a “Name-Blind” process to address the diversity and inclusion problems in the legal profession. Lenczner Slaght raised a good point; Bay Street in Toronto – which is home to the top law firms and companies in Canada – has struggled to embrace a more diverse population. A notable example of the struggle on Bay Street is demonstrated by Hadiya Roderique in her powerful essay, “Black on Bay Street.”
When the announcement came out by Lenczner Slaght, I was thrilled. I tweeted my excitement to the managing director of Lenczner Slaght because studies showed “whitening” your name in a resumé is likely to yield more callbacks for an interview.
However as days passed and critiques came forward from my friend and former Ottawa Law colleague Naomi Sayers, namely her article in Canadian Lawyer Magazine, I started to realize that there were some problems with Lenczner Slaght’s name-blind process. So at the core, I argue that the “name blind” process assumes we all began from the same place (the “original position” in philosophy). This is a rebuttable presumption because the truth is, we all haven’t started from the same place. In fact, some of us had to fight some societal barriers to even apply to law school. Allow me to explain.
So as a former Liberal Arts student, I studied literature, economics, and some philosophy before law school. I know, I’m a proud nerd. In philosophy, there is a concept called the “Veil of Ignorance.” In discussions related to the social contract and political order, John Rawls proposed a theory called the “Veil of Ignorance.” Without engaging in a full blown lecture of philosophy, Rawls argued that in order to yield more effective political decisions, we must go back to the “original position.” To achieve the original position, we must be blind to identifying traits and characteristics of the person and society. In the opinion of Rawls, he argues that this ensures everyone in society is guaranteed equal opportunity. It sounds like a pretty awesome theory, right?
But there’s a problem with this theory: it assumes that the original position is the same for everyone. This is simply not true because we know some segments of society have faced intergenerational violence, racism, colonialism, sexism, to name a few.
The name-blind process is similar to the Veil of Ignorance in the sense that it assumes by not knowing the background of the name, you are able to judge the person on equal merit. However, even with the name blocked, some candidates were not provided with equal opportunities for internships, jobs, and schooling because their original position isn’t the same as their peers.
So what can we do instead?
In my second year at the University of Ottawa, I took my favourite class with Professor Elizabeth Judge. The class was called “Law and Literature.” In my class thesis, I argued we should apply literary theory to judicial decisions to produce a more equitable society. If (former) Chief Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit could apply economic theory to judicial decisions, why not apply literary theory as well? (FYI I found out this is a source of debate in academia but that’s for another blog post).
Applying literary theory to judicial decisions has been done before. Let’s use the classic contract case: Lloyds Bank v Bundy,  QB 326. This case is a landmark case in contract law because it recognized the unequal bargaining power between Mr. Bundy and the bank. In this case, Mr. Bundy took out a loan to help his son’s struggling company. While in examination, he also suffered a heart attack. As a first year law student, you can’t help but feel sympathy for Mr. Bundy. Lord Denning brings out the story and characteristics of Mr. Bundy. Lord Denning recognized that the common law assumed equal bargaining power between the two parties. In other words, the two parties had the same original position (sounds familiar?) Lord Denning ruled that Mr. Bundy didn’t have equal bargaining power – he was a lonely man going against a big bank because he wanted to help his son.
So how does this apply to Lenczner Slaght’s hiring process? Equality in the common law was achieved by knowing the story of Mr. Bundy. Equality and diversity on Bay Street (and law in general) will be achieved by knowing the story of the candidates – not by blocking their name. Not every candidate started from the same or “original” position, as stated by Rawls. That’s okay – that is what makes the practice of law beautiful.
Assess a candidate by their grades but also ask, “What is your story?” Allow the candidate to talk about their story. Are they an Indigenous law student who left their community? Are they a single mom who studied at night? Are they a Latina with two cats who follows the gospel of Oprah? Okay maybe that last one is me.
Point is: I’m happy we are talking about the name-blind process. To give full credit, Lenczner Slaght is already a step ahead by at least talking about the subject matter. I hope my critique adds constructive value to the discussion.