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Tuesday, August 30, 2016

Blinding and Bias in Law Hiring

As some of you may know, I inadvertently started a heated debate over what students should call professors, see here, and here, (Eugene Volokh’s take here) and here (Orin Kerr’s take).

This debate has turned into a larger one about trying to improve respect and even reduce bias in the classroom and has led to some really interesting conversations.  Without fail, my male colleagues are shocked when I tell them that I routinely introduce myself as Professor Baughman and am in turn called “Shima.” They could never imagine a student not thinking their first name was professor even when they first started teaching. Even Volokh’s post acknowledges that though he asks students to call him Eugene, they don’t take him up on this offer. Could this possibly be because he's a white male (and also really famous)?

I actually remember wishing early on in teaching that I was white, much older, and a man.  I still wish this sometimes when I speak at certain events.  Obviously, I can’t do anything about that in teaching and presenting and luckily it has not presented a big obstacle in my career.  But part of that is because at least some of what helps us achieve our success is done in a blind manner. 

We receive our grades in law school blindly.  The bar is graded blindly. And even now as a professor, my articles are submitted and judged (at least to some law reviews) presumably blindly (I say presumably because there is always a lot of doubt that the schools that claim blind judging of law review articles are truly doing this (fully) in a blind manner. I’m not entering that fray today).

But still a lot of what we do as lawyers and law professors is not done in a blind manner. I’ve written about this blinding issue with Sunita Sah and Chris Robertson in the context of prosecutors. We believe prosecutors should be blinded to the race of victims and defendants at the initial charging decision (before they actually meet defendant). Blinding has caught on in other fields.  Just a few examples in our article: doctors blind the race of patients because that has biased their treatment in clinical experiments. Musicians often audition behind a screen so they are solely judged by their music and not their appearance—or gender or race. And so on. In our article we discuss the fact that in some tech job searches, companies have blinded the resumes from the reviewer to try to avoid any implicit bias in hiring.  Why go through this trouble? Well, studies have demonstrated that we all have bias and even being aware of, or trained against this bias, does not help (and can in some contexts actually make it worse).  I would argue, that whenever possible, we should at least consider blinding in decisionmaking.

Recently I spoke at a diversity panel hosted by a large law firm in Salt Lake City.  The discussion centered around how we could create more diversity and reduce bias in hiring at big firms.  But it is a live issue in legal academia, which is something more present on my mind since I am on the Appointments Committee at Utah. Obviously there is a lot that can be done on this front. One suggestion I brought up that I haven’t heard discussed is—what about blinding the initial screening committee at a firm or among an appointments committee to the names of the individuals applying (or other information that indicates their race or gender)? Could that possibly reduce bias?  Could it avoid the famous resume bias documented in studies or even bias documented in hiring research assistants (where women and minorities with similar resumes received less offers? Or could it backfire because at least at some law schools (like ours) or firms, they are hoping for gender and racial diversity and look for these cues on resumes (Black Student Union, Women’s Law Forum, or simple race indicators on FAR forms.)?  Is there any way to use blinding in legal hiring that would help decrease bias and increase diversity?

Posted by Shima Baradaran Baughman on August 30, 2016 at 01:29 PM in Getting a Job on the Law Teaching Market | Permalink


"how we could create more diversity and reduce bias in hiring at big firms"

You say these things and imply that they point in the same direction, but they do not. Not necessarily at least. If there is demand for diversity--as others in this thread have noted--then reducing bias would go counter to this demand. [of course, I am making the implicit assumption that bias is relative to some neutral metric of quality and that diversity is not, by itself, a measure of quality]

Posted by: Zell | Aug 31, 2016 9:16:37 PM

John, hear hear.

Posted by: Edward Cantu | Aug 31, 2016 12:03:35 PM

Anon2016 makes a good point. Any bias faced by women or minorities in legal academia pale to near nothingness compared to the impact of the insane levels of obsession with pedigree in legal academia. I can't think of another field that is quite so obsessed. Not even horse-racing.

The low hanging fruit of increasing diversity in law faculty is not dreaming up ways to fairly decide between all Yale Law graduates with COA clerkships.

Posted by: john | Aug 31, 2016 9:52:22 AM

I think conversations like this could be helped by more clearly defining what is meant by "bias". Traditionally it is viewed as a systematic deviation in an estimator from a true value, but how do we translate "true value" to law prof hiring? What would law prof hiring look like in the absence of "bias"? It is common to define true-ness by reference to general population demographics, but this approach is hugely problematic for a bunch of obvious reasons. I suppose you could try to compare whether individuals of different races/sexes/genders with CVs of similar qualities are more or less likely to get AALS call-backs, or to get hired, but I would worry about difficulties in determining/measuring differences in "quality" of CVs, in part because of the arbitrariness of what is considered an objectively "good" CV, as well as to serious debates about _what_ objectively makes a candidate better than another.

I will also admit to having been under the impression that, at least as to law prof hiring, minority candidates were encouraged to signal their minority status on their FAR forms, as a way to appeal to the many law faculties out there that claim to be, and that, I assume, actually are, eager to diversify. If this is indeed an effective tactic, it perhaps problematizes the notion of "bias" in a different way. Maybe though I am wrong about this tactic being either widespread or about it being effective.

Posted by: Jason Yackee | Aug 30, 2016 3:21:25 PM

See Martha Nussbaum, Cooking for a Job, in Green Bag 2d, for a useful discussion

Posted by: David N | Aug 30, 2016 3:13:38 PM

"Or could it backfire because at least at some law schools (like ours) or firms, they are hoping for gender and racial diversity and look for these cues on resumes (Black Student Union, Women’s Law Forum, or simple race indicators on FAR forms.)?"

That. I think blindness would overwhelmingly help white males. My impression is that schools that genuinely and aggressively seek to hire women and minorities are not the exception. And my understanding is that there are also studies that indicate a bias in favor of women applications in certain contexts (if I remember correctly, STEM positions). So, as is often the case in matters such as these, the empirical extent and nature of hiring bias is not settled (especially with regard to sex).

Posted by: Edward Cantu | Aug 30, 2016 3:10:12 PM

There is no such thing as "blinding." The very metrics we rely upon for just about anything have embedded prejudices and biases. The fact that the ranking of the law school of a law review matters more than the citations or reputation of the law review itself reveals the embedded bias toward "prestige" and the arbitrariness of the metrics we use to evaluate just about everything in the legal profession. This arbitrariness reveals itself from how we judge candidate for the schools they attend (opting for a low cost, low ranked, law school with a scholarship is often a death nail for prospects in legal academia), from the choice to practice rather than choose that prestigious clerkship.

Posted by: anon2016 | Aug 30, 2016 2:36:31 PM

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