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Tuesday, August 19, 2008

Gender, Authorship, and the History Boys

Thanks to Al Brophy's train-spotting abilities**, I was alerted a week or so ago to a new paper by Brooklyn Law School's Minna Kotkin. Professor Kotkin, who blogs over at "Clinicians With Not Enough to Do," has just posted on SSRN a draft of a paper examining gender bias at the top law reviews. She sent me the link this morning and I read it with interest.

Professor Kotkin deserves commendation for gathering and analyzing a lot of important data regarding why women are not appearing as authors of articles in law reviews in numbers that reflect their percentages among "the writing cohort" among tenured/tenure-track faculty at law schools. It seems to me that the main stumbling block with the study is that we don't know whether the gap actually exists relative to the number of submissions by women.  The study didn't have access to the "base rate," ie., the number of articles actually submitted for consideration to law reviews by women, and therefore, without knowing whether law reviews are accepting articles at rates greater or lower than the numbers submitted by women, we cannot really make conclusive determinations about an unfair gap; all we can say is: there's a gap.

Of course, just the fact that there is a gap is interesting and triggers questions about why this would happen, but without evidence of it being an unfair gap, it's hard to make the suggestion that "editorial boards examine their selection processes for unconscious bias with regard to gender and conscious bias." So here's a plea to law review editors, since we know some of you are reading this blog: would you please consider keeping track of this data?

Here are some other observations and reactions.

First, I wonder if the data from Professor Kotkin's study could easily be extended to study whether there's a gap between authorship in the "top 10" law reviews and representation among visible minorities.

Second, one of the things Professor Kotkin suspects is at work in explaining the gap is that "some number of women academics have not perfected the "audacity" factor that may contribute to article placement in elite journals." This conclusion reminded me of the story in "The History Boys," and the time that I studied for an M.Phil at Cambridge, where I was frequently told that males got more "firsts" and also more "thirds" because they were more prone to risk-taking in exams, and that females scored proportionately more seconds. The same types of stories have been bandied about in the context of law school exam performance. Of course, if Professor Kotkin is right about the audacity thesis, that raises the question of whether the standard of audacious scholarship is one that we should hold up or denigrate.

Further, Professor Kotkin gathers some important data about the "home-placement advantage" in the "top 10" law reviews, of which there are actually 15 :-)

Home school

# articles

# home school

%

# female

%

female

%

female authors overall

Yale

32

8

25.0

2

25

25.0

Harvard

32

10

31.3

0

0

18.8

Stanford

62

5

8.1

1

20

16.1

Columbia

34

6

17.6

3

50

29.4

NYU

41

4

9.8

2

50

24.4

Berkeley

71

11

15.5

3

27

22.5

Chicago

37

17

45.9

2

12

16.2

Penn

40

10

25.0

0

0

12.5

Northwestern

21

1

4.8

1

100

14.3

Michigan

68

2

2.9

0

0

25.0

Virginia

52

5

9.6

0

0

9.6

Cornell

32

3

9.4

1

33

15.6

Georgetown

37

2

5.4

1

50

27.0

Texas

37

3

8.1

0

0

12.5

UCLA

59

7

11.9

0

0

27.1

Over a three year period, these numbers are impressively revealing, although we again don't know what the relevant base rates are. On gap alone, putting aside potential unfairness, Michigan and Northwestern (their law reviews and their faculty) are to be commended for their "relative" independence. But in light of the fact that Yale LJ recently reported here receiving 2500 submissions per year, and assuming that number is constant for the other journals in the top 10, we can't really extend praise or blame without knowing more about the acceptance rates of people at these schools. I will say I was surprised to see that the apparent manifestations of the Columbia, Berkeley and Virginia's "home school advantage" were as low as they are--my crude impression was that they would have been higher.

One last point about this great study: just having the numbers of articles each journal publishes and the subject matter they are in is very helpful, or as Al calls it, very "sobering." On average, the top journals are publishing only 10-11 articles a year. A few are publishing as many as 20-23 a year. I wonder if the ones publishing more articles (Michigan(!), Stanford) deserve plaudits for taking on more work or selecting shorter articles...

** Al, I mean train-spotting in the sense that you can see when the next train is coming, not trains-potting, which is its other more culturally loaded meaning.

Posted by Dan Markel on August 19, 2008 at 11:03 AM in Article Spotlight, Life of Law Schools | Permalink

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» Gender and Law Reviews: from The Volokh Conspiracy
Back in 2005, we had a thread on the topic of gender and law review placements. The question was, why are so many of the placed articles in top journals authored by men? Minna Kotkin ha... [Read More]

Tracked on Aug 19, 2008 9:30:16 PM

Comments

I have long been struck by the SSRN "top law author" statistics. Those statistics, which can be viewed by total downloads, total new downloads, and downloads per paper, provide a much larger basis for measurement. The latest "top law author" listing shows, in the category of all time downloads, just a half dozen women in the top 100. And looking at downloads per paper, there are just a dozen women in the top 100. So men (in the top 100) get more downloads in total and more downloads per paper as well. This isn't easily explained by "bias." Men and women law professors have equal opportunities [or roughly--we'd need to apply a discount for numbers of professors] to download each others' work and yet both men and women seem to prefer papers written by men. Of course, there might be additional factors in play here (perhaps men download more often than women; perhaps men download from a smaller universe of papers, pumping up those numbers, while women spread their downloading more evenly, etc.). Regardless, it's hard to cast stones at law students making publishing decisions when those decisions track the choices professors make about what is worth reading.

Posted by: Jason Mazzone | Aug 19, 2008 10:56:09 PM

even if it turns out that women are less prone to audacious scholarship than men, what possible bearing should that have on whether the academy prefers audacious scholarship? if people with brown hair are more audacious cooks than people with blond hair, should we denigrate audacious cooking because of it?

Posted by: Colin | Aug 20, 2008 10:22:30 AM

Without endorsing or denigrating the argument, Colin, I believe the concern would be that audacity is being used as a proxy or pretext to advance men's careers. There's the canary in the coal mine analogy: if women are suffering disproportionately under a given practice (eg. bonuses in law firms go only to those who bill 2400 hours or more), it might be a signal that the standard, which is gender-neutral, nonetheless should be re-assessed because of the harm it does to everyone by having it. Another way of thinking about it is how much to credit people's preferences under the existing order of things. That might have application to the context Jason mentions about SSRN downloads--it might not also.
As applied to this particular context, the point of Paul's post is well-taken.

Posted by: Dan Markel | Aug 20, 2008 12:27:00 PM

Prof. Kotkin may account for this, but it does seem like law review editor choices based on seniority, name-recognition, publication record and institutional affiliation may influence the numbers of women published if women are underrepresented in the most senior ranks and in the top ranked schools.

Posted by: Verity Winship | Aug 21, 2008 7:21:19 AM

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