May 19, 2005
More on Gender, Scholarship, and HLR
Posted by Christine Hurt

Thanks for the expert commentary on Tuesday's post about a letter published in The Record at HLS pointing out disparities in gender and race in the authors published in the Harvard Law Review.  As one commenter (and an emailer) pointed out, we need to examine the topics represented in the HLR to see if somehow that information could explain the disparity.  Because I don't have enough summer research projects, I decided to do some investigating.

The tables of contents for Volume 116 and 117 are available online.  (www.harvardlawreview.org, then click on "recent issues.")  However, my numbers from these TOCs didn't match up with the letter writers' numbers, so I had to go to the library (gasp).  The numbers in The Record piece included "In memoriam" pieces in both volumes (116:  Justice Byron R. White; 117:  John Hart Ely).  The numbers also include all non-student written pieces, including book reviews and essays.

To refresh, Volume 117 featured pieces authored by 28 male professors and 6 female professors.  Excluding the "in memoriam" pieces, the numbers are 22/5.  Excluding these pieces and book reviews, the numbers are 19/3.  Volume 116 featured pieces authored by 26 male professors and 6 female professors.  Excluding the "in memoriam" pieces, the numbers are 22/6; without book reviews, 19/5.

Now for the hard part:  What are the topics of these pieces?  By examining the titles and abstracts only, I can make the sweeping statement that the vast, vast, vast majority focus on Constitutional Law.  I'm sure that a ConLaw scholar could look at these pieces and place them in 20 different categories (First Amendment, Law & Religion, Law & Education, Civil Rights, Second Amendment, Judicial Review, Constitutional Theory, Voting Rights, Right to Privacy, CRT, etc.)  However, if I can be so vulgar as to have one Constitutional Law category, then (counting narrowly), the number of pieces would be 14 out of 21 (Vol. 116) and 15 out of 21 (Vol. 117).  In addition, many of the other pieces have conlaw pieces to them.  For example, three pieces were criminal law pieces, which may have a civil rights aspect.  Volume 117 contained two corporate law pieces, and Volume 116 contained two taxation pieces.  Each volume had an IP/cyberlaw piece.  The female authors of articles wrote in the area of constitutional law, criminal law, and education law; the last two of course may have aspects of the first.

I have no reason to believe that articles editors anywhere are sitting around saying, "No, I don't want to publish a piece by a woman."  So, something else must be at work.  Given the roughly equal numbers of female to male assistant professors, I would suspect that law reviews receive an equal number of papers authored by men and women.  So, does a ConLaw bias have gender effects?  Or a bias toward well-known, established authors?  These numbers roughly correlate with the percentage of female full professors.

Oh, well.  More to chew on.

UPDATE:  Gordon asked in the comments what academic rank the authors were.  I have not had time to run all the male professors through the AALS book, but it did not take me that much time to check out the women.  Of the women who authored articles, all except one were full professors (one formerly), and most of them chaired professors:  Martha Minow, Kathleen Sullivan, Jody Freeman, Reva Siegal, Molly McUsic, Lani Guinier, Margo Schlanger.  The remaining female author co-authored an article with Tom Merrill at Northwestern and appears to have been his student at the time.

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Comments (3)

1. Posted by Gordon Smith on May 19, 2005 @ 9:57 | Permalink

Christine, That's very interesting stuff. Whenever you start down the data road, the next stop is more data. One thing I would be interested to know is whether most of the articles are written by established professors or whether assistant professors are widely represented. My impression is that HLR has a pretty good mix, though I wouldn't be shocked to see that most of the articles are by older professors. If that is the case, it could account for some of the differences you are interested in explaining.


2. Posted by Gordon Smith on May 19, 2005 @ 10:38 | Permalink

In response to the update, if the males published in HLR have a similar profile, this would help to explain the disparity, since males still outnumber females in the senior ranks. I doubt that it explains the whole difference, but it may account for some of it.


3. Posted by jim guyot on May 20, 2005 @ 0:34 | Permalink

No need to focus so much here or over at VC on volume by rank and field. Why not consider also gender differences in temperament and talent as signalled by law student grades at HLS? Last fall Orin Kerr referenced a massive study of a year ago by Harvard Law School itself that found a systematic difference in grades, even (if you look at the full distribution rather than part of the top tails) controlling for gender of professor. More simply put, the Sears Prizes (top 0.5 percent) for the late '90s and early '00s have been one-quarter to one-third female while women's proportion of the student body hovered in the middle 40 percents.

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