Thursday, October 23, 2003

Gender and Harvard Law Review

There's been a lot of debate at Harvard Law School lately over the fact that not enough women make it onto the Harvard Law Review.

According to this article, men make up 55% of the student body at Harvard Law, but 75% of the editors on the Harvard Law Review. Notably, however, the process of making law review is totally anonymous:
Applicants to the Law Review go through a "double-blind" process where applicants are judged without reference to their identities. This is done by assigning numbers to the applications in two phases before any editors sit down to read the applications.
Despite the double-blind nature of the process, some students have still claimed that the Law Review discriminates against women. This editorial claimed that there are "fifteen years of documented discrimination." Then, this guest column by fifteen former editors noted that "over the last eleven years (including 2003), 42.7% of each HLS class is female, compared with 33.4% of each Law Review class," and this proves that there is a "systematic denial of equal opportunity to join the Law Review."

The current Law Review President responded in a guest editorial:
We have spent literally thousands of hours over the past year trying to understand the reason our double-blind selection process - a process that hides identities of applicants from every single editor, including myself, until after new editors have been selected - has resulted in a lower percentage of female editors than comprise the Law School class.
And indeed, that's the question. For all the talk of "discrimination" and "denial of equal opportunity," the fact is that anyone at Harvard Law School can apply to be on the Review, and the grading is totally anonymous. It is inconceivable that any genuine discrimination could be occurring.

The only possible explanation that involves discrimination (of a sort) was offered by a couple of letter writers:
Remedying the imbalance requires institutions to change their standards of "merit" where those standards reward characteristics which are more likely to be displayed by men than by women, yet which fail to reflect the diversity of skills needed for good lawyering and scholarship.
Yet they never specify exactly what are those characteristics that men have in greater supply, nor how those characteristics differ from those that are "needed for good lawyering and scholarship." In my experience, the Law Review competition was fairly precise in measuring the skills that one would need as a Law Review editor, namely, writing and editing other people's writing. (Certain other skills were sometimes needed -- photocopying, checking out library books -- but I can't imagine that testing for those skills would eliminate any gender disparity.)

Whether the skills of writing and editing are coterminous with "good lawyering" is another question, I suppose, but they are most certainly relevant to the job of a Law Review editor. And I don't think anyone is seriously proposing that the Harvard Law Review competition should test other lawyering skills, such as rainmaking, schmoozing, or negotiating.

One possibility is affirmative action, but as another set of letter writers (including Sasha Volokh) point out, most women Law Review editors have historically opposed adding gender to the law review's affirmative action policy.

So if the men who attend Harvard Law School consistently happen to do better by a 10% margin on an anonymous test measuring the relevant skills, it's a puzzling question. I'm not sure what the solution is supposed to be, but it probably won't come through reckless and unsupportable complaints of "discrimination."

UPDATE: Sasha Volokh links to a new op-ed that he just wrote on the subject.


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