Legal Commentary

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 :-)

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.