Posted by Eugene Volokh:
Demographics and Legal Academic Reputation:
http://volokh.com/archives/archive_2007_07_08-2007_07_14.shtml#1184046901
A lot of interesting things have been said about the gender makeup of
Federalist Society events. But there's something much more complicated
going on here, I think, than just the demographic makeup of Federalist
Society regulars, or for that matter anything else that's specific to
the Federalist Society. It may also be much more interesting -- and
possibly more troubling, depending on what you think the cause might
be, and what causes along these lines you find troubling.
1. Most-cited law professors: Let's say that instead of going to a
Federalist Society conference on Judge Bork (which had 19 panelists),
you wanted to organize your own all-star conference with 19 law
professors. And, wanting a proxy for scholarly reputation, you invited
the 19 most-cited full-time law professors. (This is a highly
imperfect proxy, but it's probably the most objective one we can use
for this thought experiment.) How many women would there be on this
conference?
Fortunately, Brian Leiter's [1]2002 most cited law faculty rankings
give us an answer -- one that's some years out of date, but that I
suspect wouldn't differ much today. The answer is that 1 of the 19
panelists would be women; 18 of the 19 most-cited law professors (all
but #15) would be men.
Of course, there's an obvious problem with that sample -- most of the
most-cited professors are in their 50s and 60s; when they were going
to law school, there were few women in law school, and few women going
into law teaching. For a better sense of the coming pattern (though
not necessarily for a much better sense of what we might expect from
conference invitations), we should be looking at a younger cohort.
Let's avoid the gender imbalances caused by past gender imbalances in
law school attendance by just inviting the 19 most-cited younger law
professors, for instance ones who entered teaching since 1992 --
conveniently, the result of another [2]survey by Brian Leiter. And
indeed this panel will not be 18/19th male.
It would be 100% male. Indeed, of the 50 younger scholars on Brian
Leiter's list, only 6 (starting with #23) are women. Of all the cites
to articles by those 50 scholars, only 8.7% are to articles by women.
(See [3]my spreadsheet based on the Leiter data.)
Again, I stress that citation counts are a very rough proxy for
reputation, and they are biased among other things in favor of fields
in which many articles are written. Within certain fields, the gender
breakdown of the most-cited scholars may be quite different. And of
course there are many women whose work has been heavily cited; the
most cited active faculty colleague of mine at UCLA is Kimberle
Crenshaw.
Still, the overall pattern of the data seems quite consistent, hard to
dismiss as simply random or arbitrary, and thus quite striking. It
also suggests that to the extent conference invitations are based in
large measure on reputation, then if reputation is closely correlated
with citation counts, it would be quite logical to see a lot of
heavily male conferences. 2. Possible causes? Why, though, would this
be? Women [4]are 35% of all law professors, including 25% of all full
professors. Women routinely graduate with top credentials from law
schools; about 20-30% of Supreme Court clerks tend to be women. Why
aren't we seeing 25-35% women among the top 20 most cited scholars?
Is it that scholars (whether just men or both men and women) are
subconsciously or deliberately ignoring women's scholarship? Is it
that women authors are being unfairly turned away by top journals? Is
it that women are writing less, perhaps because they spend more time
caring for kids? If so, how much of that is because the children's
fathers refuse to do their fair share of the work, and how much of
that is because the mothers value time with children more than the
fathers do (and should the difference between the two matter)? Is it
that men tend to on average be more ambitious than women, more
self-promoting, or more of whatever else that produces attention
(quality-related or otherwise) for scholarly work, whether because of
cultural reasons, biological reasons, or some mix of both? Are these
effects chiefly present at the ends of the bell curve, or do they
persist in considerable measure even further into the body of the bell
curve?
These are difficult questions to answer, and perhaps even to ask --
but they need to be asked if we want to think really hard about why
we're seeing stark sex disparities in a wide range of legal academic
contexts, from Federalist Society panels on. 3. Race and ethnicity:
But if you thought the sex picture was hard to explain, explain this:
If you look at the same top 50 most-cited who entered law teaching
since 1992, you also see that (by my rough count, and judging by
likely ethnicity, not by religiosity) 19 are Jews, a group that makes
up 2% of the full-time working population.
Another 12 are Asians, a group that makes up 4% of the full-time
working population. If you want to separate out South Asians (since
it's in many ways just zany to lump Indians together with Chinese, or
for that matter Chinese, Koreans, and Japanese), you find that 5 of
the top 50 are South Asians, though South Asians make up 2/3 of 1% of
the population.
What's the reason for this? Subconscious tendencies to overcite
certain ethnic groups? Disproportionate cultural distribution of
various temperaments? Of attraction for certain kinds of intellectual
questions? Beats me.
But look at this also another way: The 94% of the population that is
neither Jewish nor Asian accounts for 30% of the total cites to
articles written by the top 50 most-cited young scholars. Blacks make
up 2 of the 50 spots, but once one excludes the Jews and the Asians,
they make up 2 of the remaining 19 spots -- a percentage not far
different from the black population of the U.S. divided by the total
non-Jewish non-Asian population. (The numbers would doubtless differ
for the overall list of most-cited professors, not limited to those
who entered teaching since 1992, but I take it that the more recent
list is a better picture of where the profession is headed, especially
as to Asians.) Query then whether the underrepresentation of blacks is
underrepresentation of blacks as such or overrepresentation of some
tiny minority groups; certainly non-Jewish whites are more
underrepresented on this list than blacks.
* * *
So, there it is. I am most emphatically not making any claims that I
know the causes of these patterns. And I'd love to hear others'
similar analyses of other datasets. As I mentioned, the most-cited
data is hardly the whole picture, and maybe there are even some
glitches that undermine the representativeness of this particular set
of 50 names collected with certain date cutoffs. I'm trying to ask
questions here, not to give answers.
But I also want to suggest that one set of answers, or at least
reactions, is misguided: If we're going to wonder about demographic
disproportions in reputation-based legal academic contexts -- such as
conference invitations -- it's a mistake to see the Federalist Society
as particularly unusual. Our own profession's citation patterns show
stunning disproportions that can't be put off to any
Federalist-Society-specific practices.
References
1.
http://web.archive.org/web/20030803114454/www.utexas.edu/law/faculty/bleiter/rankings02/most_cited.html
2.
http://web.archive.org/web/20030811225933/http://www.utexas.edu/law/faculty/bleiter/rankings02/50_most_cited.html
3. http://volokh.com/files/top50young.xls
4. http://volokh.com/posts/chain_1152309759.shtml
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