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More on Sex and Supreme Court Clerks:

Ann Althouse (whose work I generally very much like) bristles at one of the several candidate explanations I included in my earlier post:

Eugene Volokh asks why are there so many more male Supreme Court clerks than female? His first guess is:

Is the cause possible differences in innate intelligence at the tail ends of the bell curve (what I'd heard called the idiot-genius syndrome, which leads men to be overrepresented both among the very low-IQ and the very high-IQ)?

Oh, please. I know it's in question form, but really...

Perhaps I misunderstand Ann's reason for the "Oh, please." Still, I'd have thought that when one is seeking the causes of disparities such as this, the possibility of men's biologically caused overrepresentation at the tail ends of the IQ bell curve must be one candidate explanation that one should consider. Even if the effect is relatively small, too small to explain by itself a 2.5 to 1 disparity (just to use as an example the disparity the year I clerked), it may still be important as one of the explanations: Five causes, each of which would cause an extra 1.2 to 1 disparity, can multiply out to 2.5 to 1. And I'd think that any analysis that infers some cause -- or estimates the magnitude of some cause -- from the disparity but fails to consider this other possible cause would itself be unsound.

Of course this potential explanation might ultimately prove to be entirely unsound -- but is there really any a priori reason why we should dismiss it as implausible? Has scientific research, for instance, conclusively dismissed this possibility? I'd be delighted if people who (unlike me) have actually seriously studied sex-based cognitive differences (or the absence of such differences) could speak to that.

(I should note that my listing the possibility of intelligence differences first wasn't meant to suggest that I think this is likely the most important factor, just as my listing the possibility of sex discrimination second wasn't meant to suggest that I think it was the second most important factor. I really don't know which if any of the factors are important, or how important they are.)

LawProfCommentator (mail):
I recall reading that at the genius IQ level, men outnumber women 10-1, while the same is true at the "moron" (I think that's actually the technical term) level. Not all USSC clerks are geniuses, but some (like Eugene) are, and geniuses are obviously more likely to get the top grades, etc., that make them elibible for clerkships. (Getting a USSC clerkship strikes me as a being a result of a combination of brains and political skills, with, after a certain level of each, one being able to compesnate for the other). So dismissing this as a possibility strikes me as ideology.
7.10.2006 11:01am
Anon.:
I had the exact same reaction.

If you make the claim "hmm, maybe we men are more likely to be geniuses than you ladies", without any good statistical reasons FOR IT, as opposed to a lack of studies definitively rule it out--I perceive people as being positively EAGER to believe this.

Do you understand how bad a track record "maybe it's not discrimination, maybe we're biologically superior" theories have?
7.10.2006 11:07am
frankcross (mail):
Nothing should be ruled out, but I think the real question is why it is ruled in. We don't suspect the Trilateral Commission, why rule that out? I think it is vastly more likely that the large tails of the mail distribution are due to something cultural rather than anything biological.

It's fair to offer anything, I suppose, but yesterday's NYT had an extensive article documenting how undergrad women are blowing past men and getting a disproportionate number of the honors recognitions. I'm sure that's cultural and not biological too
7.10.2006 11:08am
LawProfCommentator (mail):
FC, on what possible basis can we argue that the divergences between male and female IQ levels (same median, but wider divergence among males) are "cultural" when they recur in all different cultures?
7.10.2006 11:11am
RJT:
I bet Eugene can empathize with Larry Summers right about now.
7.10.2006 11:13am
LawProfCommentator (mail):
Just wanted to clarify that I'm not sure if the 10-1 statistic was for all genius level IQ (>160) or a particular genius level of IQ (>180?)
7.10.2006 11:17am
Adam:
I've heard a similar explanation offered to explain the fact that left handed people (approximately 8-15% of the population) make up a higher proportion of "smart" people than they should. Apparently they also make up a higher proportion of "dumb" people too.

And while some might point out that a large number of recent presidents were left handed (Ford, Reagan, Bush I, Clinton) only 7 of the 43 have been left handed, or 13% (not counting multiple terms as multiple presidents).
7.10.2006 11:20am
anonyomousss (mail):
i have to agree with frank on this one. here are some thoughts:

1) you list it first. this usually implies that you see it as the most plausible or otherwise most salient possibility.

2) consider your choice of language in the parenthetical. "idiot-genius syndrome"; "leads men" (emphasis added in both places) suggest that you see substantial innate differences as proven, and the dispute is about whether they're explanatory in this particular context.

so why put it first, and why use that language?
7.10.2006 11:21am
AF:
I think Althouse's point was that SCOTUS clerks are not characterized by genius. Therefore, even if there are more male than female geniuses, that cannot explain why there are more male than female SCOTUS clerks. Similarly, the "idiot-genius" syndrome cannot explain why there are more male than female firefighters.

I don't necessarily agree with Althouse's premise -- the SCOTUS clerks I know are pretty darn clever -- but I think that was her point.
7.10.2006 11:23am
You Know Who:
Related:

This is a no-brainer for math ability at the extreme upper tail of distributions of large nationally representative samples.

Women might perform better than men at the central tendency of a distribution, but men perform much better than women at the extreme upper end of a distribution on more complex math problems (see p. 148, Selectivity of Sample, d’s=~.50)

REF

Benbow and Stanley (see Science article on mathematically precocious youth) rule of a host of sociological explanations and focus on biological ones (and more recently on testosterone diffs). One hypothesis is that women who have higher levels of testosterone, or who are exposed to higher levels of the hormone in utero (compared to other women) should perform better on math problems.
7.10.2006 11:30am
frankcross (mail):
commentator, first I would like to see evidence that they do recur in all cultures.

If that were true, though, that would in no way dispel the cultural explanation, though, as there are various reasons why common cultural features emerge. The book, the Evolution of Culture, contains much material here.
7.10.2006 11:40am
anonyomousss (mail):
you know who, what has that got to do with the topic at hand? we are talking about supreme court clerks, who afaik have to do very little math.
7.10.2006 11:45am
Data (mail):
Although men do (slightly) better than women on all scoring levels of the LSAT, there isn't really much of an idiot-genius effect; see the chart on page 12 of this document.
7.10.2006 11:48am
Kingsley Browne (mail):
I had a couple of posts on the earlier thread dealing with this, which prompted an ad hominem response -- one of the almost inevitable consequences of weighing in on this issue.

According to Arthur Jensen's 1998 book, "The g Factor," there is a "near zero" difference between the sexes in the general cognitive-ability factor "g", but greater variability in males and hence, as mentioned before, more males in the extreme high and extreme low end of the IQ range. More recent studies have suggested that there might in fact be a mean difference -- in addition to a difference in variability -- amounting to 3 to 4 IQ points. I understand (based purely on hearsay) that Jensen now thinks that he may have been premature in his "near zero" conclusion. The reason for the newer numbers is that many studies are based on pre-adult samples, and males complete their maturation process (both mental and physical) later than females.

In a post on the other thread, I noted several good books on the subject of sex differences in cognition or sex differences more generally.

There is a recent large-scale British study showing a greater variance in boys from three-years of age on (as well as a higher male mean from 10-years of age): Rosalind Arden &Robert Plomin, Sex differences in variance of intelligence across childhood. Personality and Individual Differences Vol 41(1) (Jul 2006): 39-48.
7.10.2006 11:56am
Brooklynite (mail) (www):
FC, on what possible basis can we argue that the divergences between male and female IQ levels (same median, but wider divergence among males) are "cultural" when they recur in all different cultures?


Perhaps you'd be willing to provide a cite for this claim, before we go any further?
7.10.2006 12:00pm
anonyomousss (mail):
arent men and women treated differently in some fairly systematic ways in all different cultures too?
7.10.2006 12:03pm
Brooklynite (mail) (www):
There is a recent large-scale British study showing a greater variance in boys from three-years of age on


As the father of a three-year-old, I can tell you that by that age kids have internalized a huge amount of cultural conditioning about how boys and girls are "supposed" to behave. I'd be very hesitant to draw conclusions about innate differences between the genders on the basis of such studies.
7.10.2006 12:04pm
Data (mail):
See the chart above; the bell curves for men and women are nearly identical in shape (women do slightly worse than men on the LSAT, but men aren't noticeably more variable).
7.10.2006 12:06pm
anonyomousss (mail):
the lsat isnt a terribly good place to look for an idiot-genius effect. those who take the test are all college graduates or about to be. "idiots" probably never take the test.
7.10.2006 12:09pm
LawProfCommentator (mail):
I'm dissapointed to see that VC commentors (and thus readers) have absorbed the nonsense about gender differences being predominately cultural. What possible difference in "culture" "expectations" or "divergent treatment of girls and boys" could logically account for males being overrepresented among very high AND very low IQ individuals? And why is the protest only that males can't be overrepresented in the high category, but no protest that dumb women must be just as dumb as dumb men?
7.10.2006 12:09pm
Brooklynite (mail) (www):
What possible difference in "culture" "expectations" or "divergent treatment of girls and boys" could logically account for males being overrepresented among very high AND very low IQ individuals?
Perhaps boys are more likely to receive educational advantages and also more likely to be neglected. Mightn't that account for it?
7.10.2006 12:19pm
Mike BUSL07 (mail) (www):
The mental hoops some people are willing to jump through to avoid acknowledging the mere possibility of intrinsic differences in intelligence between the genders are quite remarkable, given that there are many such intrinsic differences that are outright undeniable. To name a few, men have on average significantly higher weight, muscle mass, height and bone mass. To make a really obvious statement, men and women have different kinds of genital organs. Why in the world would we be so sure that there are no other differences, except for the ones that are so obvious that they would be ridiculous to deny?

Incidentally, one explanation for the disparity is that in hunter-gatherer societies, where men tended to be hunters and women tended to be gatherers, different kinds of mental skills were rewarded with surival. This is used to explain why men have (marginally) higher spatial intelligence than women, and are accordingly over-represented in math and science.

I don't know of anything that states that men have higher verbal intelligence. So the above does not really explain why there are fewer female law clerks, (assuming that law is primarily a function of verbal rather than spatial intelligence).
7.10.2006 12:19pm
Mike BUSL07 (mail) (www):
Brooklynite:

Perhaps boys are more likely to receive educational advantages and also more likely to be neglected.

Perhaps, though that claim seems to be more speculative then the "g" explanations others here have offered. I guess the question is - why?

On a sidenote, I observe that whenever the subject of intelligence comes up, those who are uncomfortable with it tend to attack the methods of social scientists who gather the data. Usually, this involves assumptions about the quality of their work that seem intricate to (those of us who are) laymen, such as, "Oh, but did they control for variable Y?" or "They probably didn't consider test bias." Well, "they" probably did. In fact, "they" thought of much tighter controls on the studies than I could think of sitting here. Anyone who thinks this is junk science should go out and read "Bell Curve," and take the time to read the technical stuff and uderstand it. It's worthwhile.
7.10.2006 12:24pm
LawProfCommentator (mail):
Brooklynite, studies of identical twins separated at birth show an extremely high genetic correlation for IQ. And what evidence is there that a genius IQ can be cultivated by "educational advantages"?
7.10.2006 12:25pm
anonyomousss (mail):
mike, i'm more amazed by the hoops people will jump through to attribute favorable performance of men to innate superiority. men are vastly overrepresented in math and science because they're better at spatial visualization? news flash: most math has exactly nothing to do with spatial visualization.
7.10.2006 12:27pm
anonyomousss (mail):
lpc, could we have some citations please?
7.10.2006 12:29pm
Hank:
It doesn't seem that the possibility of males' being overrepresented among the very low I-Q is relevant. Was it mentioned just to take the sting out of the suggestion that males may be overrepresented among the very high I-Q?
7.10.2006 12:37pm
LawProfCommentator (mail):
On twin studies, you can start with the very interesting book, Entwined Lives. For male-female differences (across a variety of matrices, with women better than men at some things, men better than women at others), start with Pinker, The Blank Slate. Both written for a popular audience, but scientifically sound.
7.10.2006 12:38pm
John McCall (mail):
I have no constructive input on the differences between men and women, but I would argue that yes, there's a substantial intersection between the particular skills needed for formal legal analysis and the skills needed to do well on the mathematics portion of a standardized test (Hyde et al., at least, is based entirely on the ACT, GMAT, SAT-Q, SAT Math 1 and 2, DAT, GRE-Q, GRE-Math, CAT, and ITBS).

Supplemental points:
1. Standardized mathematics tests are hardly pure measurements of analytic skill; a lot of questions require (or are at least greatly eased by) familiarity with their subject areas.
2. A much better analysis would look at the AP or higher-level IB mathematics exams, which (IIRC) have free-form analysis sections.
3. If anything, legal analysis skills ought to be better measured by "comprehension"-style questions from the verbal/analytic sections.
4. On the other hand, verbal/analytic tests stress advanced vocabulary more than anything else.
5. Performance on the GRE's analytical writing section would be a decent measurement, except that it's very tightly targeted towards a particular demographic.
6. Couldn't a wider distribution be most obviously accounted for by an increased willingness to take risks? I'd be very surprised if men weren't innately prone to riskier behavior — culture has a large effect here, too, but so does biology.
7. This list was much more attractively formatted before the forum software forced me to strip the <ol> tag from my post.
7.10.2006 12:41pm
Brooklynite (mail) (www):
I haven't seen anyone dismiss the possibility of intrinsic differences in intelligence between the genders out of hand. What I have seen is scoffing at Volokh's suggestion that such differences might be "the cause" (not a cause, the cause) of gender disparities in a cultural practice.

But since you ask, I'll step up. As someone who believes that essentialist explanations for gender differences are generally ill-founded and misguided, I'm happy to concede the "possibility of intrinsic differences in intelligence between the genders."

I concede the possibility. Now what?
7.10.2006 12:43pm
Mike BUSL07 (mail) (www):
anon, read this, as a start. both sides are presented fairly, and you get an idea of what the arguments are.

http://www.edge.org/3rd_culture/debate05/debate05_index.html
7.10.2006 12:44pm
Mike BUSL07 (mail) (www):

I concede the possibility. Now what?

Now, thank you. That's a reasonable start, (some apparent vitriol aside).
7.10.2006 12:47pm
Ken Hirsch (mail):
From the LSAT data linked above, at +4 SD (which is about 1 in 23000 individuals), there would be 2.2 times as many men as women. I'm just aggregating the averages without any weighting by the number of people taking the test.

In Excel, the percent of men above 4SD:

=1 - normdist(189,150.98,9.77)
and for women:

=1 - normdist(189, 149.52, 9.69)

which gives a ratio of about 2.2. Actual individual LSAT scores are cut off at 3 SDs (180), but that doesn't significantly affect this aggregate calculation.
7.10.2006 12:50pm
William Newman (mail):
This idea isn't just something people cooked up from nothing, it's also what you might expect from theory. In particular, for any important gene on the X chromosome, a male mammal gets a single random selection, while a female gets two. The two selections tend to get averaged in various (messy) ways but roughly it is easier to roll one or six on one dice than to roll snakeeyes or boxcars on two. This is a simplification, but not so simple as to be divorced from the real world for some genes at least: famously and very conspicuously hemophilia, e.g. That said, it's not clear that that's actually what's going on in academia; it's just such an obvious theory that a great weight of evidence shouldn't be required to consider it as a candidate explanation. (at least unless you're an academic scientist or something).

I was amused that the NY Times' otherwise rather PC agitprop front page article on women's high college admissions and GPAs yesterday mentioned this tendency ("Professors interviewed on several campuses say that in their experience men seem to cluster in a disproportionate share at both ends of the spectrum...") in a favorable authoritative way but without mentioning its connection to the dangerous ideas of the Summers affair.

frankcross: True, though, as I note above, the NYT article actually acknowledged the distribution in question. Also... Just to pick one point in a lengthy article, the article seemed pointedly disinterested in why women choose different fields than men, even when their choices predictably pay significantly less. It nodded to it, but only to lump today's hot subfield of engineering in with physics as "male-dominated." It did not deign to make the connection when it mentioned men's higher wages on graduation. Nor did it deign to address the popular stereotype of different grade inflation in such field. (Possible GPA connection? Inconceivable!) And evidently no cognitive dissonance was expected among the better class of reader when men afflicted with "lassitude" who "don't seem to hustle as much" and so forth grind partial differential equations and becoming chemical engineers (at least in those years when it looks like the job market will be good), while higher wages seem insufficient to motivate the women "who feel more pressure to achieve" to do so. So one man's "extensive documenting" becomes another man's "PC agitprop."

anon: The track record of "genetics has nothing to do with it" advocates is rather poor as well. Identical twin studies on heritability, anyone? 20/20 hindsight doesn't make it shameful to've guessed wrong in that controversy, but, e.g., it does make it at least very embarrassing to've been so certain of one's wrong guess that one designed one's studies to simply ignore the possibility instead of controlling for it.
7.10.2006 12:53pm
A.C.:
Because the question is political? I love this topic because it shows that liberals as well as conservatives can let their politics mess with scientific objectivity. Not that I advocate any particular position mentioned here, but I do think that people have trouble talking about questions like these without bringing their politics into the mix. Beats me why. My commitment to equality of the sexes doesn't depend on men and women being exactly the same, and it certainly isn't rattled by the possibility of tiny differences that are very hard to measure.

(I'm also more interested in what happens to normal people rather than what is going on in the extremes of the distribution, but that's another matter.)
7.10.2006 12:53pm
frankcross (mail):
Commentator, average IQs in the US have been going up for decades. That's pretty clear proof that they are not a measurement of innate intelligence but influenced by nurture. And research such as that of Pinker has been pretty much taken apart in sources like the book Adapting Minds.

There are obviously biological differences between men and women. But people are too quick to leap to this explanation. The cultural differences are not so crude as sex discrimination. They are different societal expectations on matter such as risk taking.
7.10.2006 12:54pm
A.C.:
Sorry -- my previous response was to Hank from several posts ago. I got interrupted, and a bunch of people posted in between.
7.10.2006 12:55pm
Brooklynite (mail) (www):
Mike [1], I was merely responding to LPC's dismissal of the idea that cultural factors could produce an overrepresentation of men at both ends of the bell curve. The explanation I offered was just off the top of my head.

Mike [2], my "now what" wasn't rhetorical. Now what? What does conceding the possibility lead us to in terms of policy, in your view?

LPC, I don't have an opinion as to whether genius-level IQ can be cultivated by educational advantages. But it does seem likely to me that whether a person realizes his or her intellectual potential is at least somewhat dependent on the education --- both formal and informal --- that he or she receives.
7.10.2006 12:57pm
frankcross (mail):
Here's some other research.


there is good statistical evidence that “the development of genius may sometimes be enhanced by traumatic or adverse experiences in childhood and adolescence.” Many had chronic disabilities or illnesses in childhood, and a markedly disproportionate number lost a parent in childhood. One study of 699 eminent figures showed that 45% had lost a parent before age 21; another study indicated that one-third of creative geniuses had lost their father early in life. A quarter of eminent mathematicians had lost a parent before age ten. Another study of British Prime Ministers found that 63% had lost a parent, a number much higher than a comparable control group of English peers.


Now, would you say that there is some genetic feature that predisposes both to family crisis and genius? Or would you think that perhaps early life crisis alters a person in such a way to make genius more likely.
7.10.2006 12:59pm
Mike BUSL07 (mail) (www):

My commitment to equality of the sexes doesn't depend on men and women being exactly the same, and it certainly isn't rattled by the possibility of tiny differences that are very hard to measure.

This sentiment, I suppose, sums up aptly enough why people shouldn't be afraid of this topic. The people who fear this discussion are afraid, not without some justification, that accepting group cognitive differences will pave the way for moral and political subjugation of those groups. That does not have to be the case at all. We are not building a master race here. It would just be very nice to know some of these things to adjust social policy to the real world, instead of addressing it to perceived wrongs that may be explained away by genetics, rather than anything more nefarious.
7.10.2006 1:00pm
Mike BUSL07 (mail) (www):

Mike [2], my "now what" wasn't rhetorical. Now what? What does conceding the possibility lead us to in terms of policy, in your view?

One concrete policy example would be as follows. If we concede the possibility of intrinsic differences, and then have an honest public discourse about it, what we MAY find is that there is a strong correlation between gender and certain "types" of intelligence. If we can properly assess the relationship between genes and environment, instead of just putting all of our chips into the environment camp, we can change affirmative action policy accordingly.
7.10.2006 1:05pm
Brooklynite (mail) (www):
It would just be very nice to know some of these things to adjust social policy to the real world, instead of addressing it to perceived wrongs that may be explained away by genetics, rather than anything more nefarious.
It would indeed be nice to know. But we don't know, and we aren't likely to know for quite some time. By all means, let's keep doing the research. But let's acknowledge its limitations, and let's bear in mind that where ambiguity exists it's prudent to attribute difference to culture rather than biology.
7.10.2006 1:09pm
Ann Althouse (mail) (www):
Wow, Eugene, you're getting all the comments. I did a post linking to this and no one's saying a word. Imagine if you'd offered up the biological theory to explain the racial disparity in Supreme Court clerks.

It's a touchy subject. And just to underline my point: though you have to be very smart to make it to Supreme Court clerk, the behavioral element is big and the biggest geniuses probably don't go into law.
7.10.2006 1:13pm
LawProfCommentator (mail):
Frank, there are many kinds of genius, and "creative genius" is perhaps one of them. But we are talking about a particular technical definition of genius, someone with an IQ over 160. The "other research" you address seems to be referring to something else. There are plenty of "losers" with very high IQs, and having a high IQ doesn't guarantee that one will be a creative thinker, or have any impact on the world at all. But people with very high IQs will (way) disportionately get into the very top law schools, and, I will wager, disporportionately finish at the top of their class there, and thus be eligible for USSC clerkships.
7.10.2006 1:15pm
MikeMaven (mail):
frankcross-- Perhaps another explanation would be that people with that genetic feature are better able to transcend crisis?
7.10.2006 1:18pm
Old Dad (mail):
Great comments.

Is there an IQ threshhold that might correlate to super law school achievement? What's your guess?

As I understand it, there are statistically significant gender differences for certain types of cognition, especially at 3+ standard deviations. Is that true for IQ? Can any of these cognitive abilities be correlated to super law school achievement? The LSAT data hints that there might be.
7.10.2006 1:27pm
Ed Minchau (mail) (www):
"average IQs in the US have been going up for decades"

This is incorrect. Average IQ is 100 by definition. It wouldn't matter if everyone's intelligence suddenly doubled, the average IQ would still be 100.
7.10.2006 1:40pm
frankcross (mail):
Well, we know IQ is highly heritable. We also know that heritability does not completely explain IQ. I think it explains about 0.5 to 0.7 of IQ. So we are of course a mix of nature and nurture. Given this mix, it is difficult to isolate the roles of each. We also know, as observed by commentator, that some percentage of high IQ people do not succeed greatly in life.

What does this tell us about gender differences? It makes it possible that they are genetic, but unlikely. Examine recent history. Consider the gender differences that existed in 1900 or 1950. Now consider how foolish one would look if one ascribed them to genetics rather than environment, given the vast changes that have occurred since that time.
7.10.2006 1:40pm
Brooklynite (mail) (www):
If we concede the possibility of intrinsic differences, and then have an honest public discourse about it, what we MAY find is that there is a strong correlation between gender and certain "types" of intelligence.
Public discourse isn't how scientific knowledge advances, though. The folks who are doing the studies should of course not be prevented from doing so, but you seem to be calling for something more far-reaching than that --- something that the mere "possibility of intrinsic differences" doesn't to me justify.

We may discover, as science advances, that there are provable intrinsic differences in cognition between the sexes, or we may not. These differences, if they exist, may be substantial, or they may not. They may translate into measurable differences between populations, or they may not. They may be relevant to educational or professional aptitude, or they may not.

And even if they do exist, and they are substantial, and they are measurable on the population level, and they are relevant to real-world aptitude, we may decide that they are relevant to public policy, or we may not.

Given all that, it is not obvious to me that any great social benefit would accrue from a high-profile push to uncover genetic differences between the sexes, at least at the present time. And the social costs of such an effort --- particularly if it uncovered spurious "differences" that were prematurely incorporated into public policy --- could be immense, and catastrophic.
7.10.2006 1:51pm
Kingsley Browne (mail):
frankcross wrote:


"Commentator, average IQs in the US have been going up for decades. That's pretty clear proof that they are not a measurement of innate intelligence but influenced by nurture."


I don't think anyone argues that IQ is determined solely by genetic factors. Most estimates of heritability of IQ range between .5 and .8 (meaning that 50 to 80% of variability in intelligence is accounted for by genetic differences). So, everyone concedes that environment plays an important role. Therefore, demonstrating that environment plays a role does not disprove a genetic contribution (any more than showing that environment plays a role in determining adult stature means that genes play no role in causing individual differences in stature).

anonyomousss wrote:


"the lsat isnt a terribly good place to look for an idiot-genius effect. those who take the test are all college graduates or about to be. "idiots" probably never take the test."



That is why one can make no strong prediction about the sex compostion of the bottom of the law school class (or even the bottom of the LSAT distribution) based upon variability. The entire distribution of a law school class (at least we hope) comes from the right side of the ability distribution. That is not to say that what is being called the "idiot-genius effect" would not show up at the very far right of the distribution. The geniuses may be in the distribution, but the idiots would not be.

Brooklynite wrote:


"I haven't seen anyone dismiss the possibility of intrinsic differences in intelligence between the genders out of hand. What I have seen is scoffing at Volokh's suggestion that such differences might be "the cause" (not a cause, the cause) of gender disparities in a cultural practice."


In fairness to Eugene, his original post asked whether a whole series of things might be "the cause" and also whether it might be a combination of multiple factors.

Brooklynite (mail) (www):


"As the father of a three-year-old, I can tell you that by that age kids have internalized a huge amount of cultural conditioning about how boys and girls are "supposed" to behave. I'd be very hesitant to draw conclusions about innate differences between the genders on the basis of such studies."


I'd be interested in knowing what the mechanism might be for cultural expectations creating greater variability among male toddlers than female toddlers and what support there is for that explanation.

Bear in mind that children are unreliable at even identifying people's sex until they are about three, and even after they can they tend to stereotype themselves less than they stereotype others.

For example, 3- and 4-year-olds will justify their selection of toys for others on the basis of sex stereotypes, but they justify their own preferences in terms of the toys' characteristics. Eisenberg, N., Murray, E., and Hite, T. 1982. Children’s reasoning regarding sex-typed toy choices. Child Development, 53:81-86.

Moreover, many behavioral sex differences show up before children can even identify their own sex. Lisa A. Serbin, Diane Poulin-Dubois, Karen A. Colburne, Maya G. Sen, &Julie A. Eichstedt, Gender Stereotyping in Infancy: Visual Preferences for and Knowledge of Gender-Stereotyped Toys in the Second Year, International Journal of Behavioral Development, 25:7-15 (2001).

As for cognitive differences, psychologist Diane Halpern reports that “the male advantage in transforming information in visual-spatial short-term memory is seen as early as it can be tested – perhaps at age 3 – and in mathematical giftedness as early as preschool.” Diane F. Halpern, Sex Differences in Intelligence: Implications for Education, American Psychologist, 52:1091-1102, at 1093 (1997).

One of the difficulties in attributing differences in cognitive performance to "cultural expectations" is that those expectations have to explain not only why males tend to do better in certain tests of ability but also why girls get better grades throughout their school careers. That is, why is it that girls suppress their performance on anonymous standardized tests but not on more visible measures such as school grades?

Another thing to bear in mind in this discussion is that one of the alternative hypotheses on the table is that the apparent sex disparity among Supreme Court clerks is a consequence of discrimination by Supreme Court justices in their hiring. So, even if sex differences in variability of intellectual performance can plausibly be blamed on some pre-school social experience that children have, that is still not something that can be laid at the door of the justices. That is, the range of explanations goes beyond "Is it biology or are the Justices discriminating?"
7.10.2006 1:53pm
Charlie (Colorado) (mail):

It doesn't seem that the possibility of males' being overrepresented among the very low I-Q is relevant. Was it mentioned just to take the sting out of the suggestion that males may be overrepresented among the very high I-Q?


Hank, if the mean is the same and the variance is larger, it's a necessary consquence that males will be over-represented at both ends of the distribution. In fact, saying it that way is logically equivalent to saying "greater variance".
7.10.2006 1:56pm
PersonFromPorlock:
You know, this business of who is smarter than whom would have no bite at all if it weren't for our assumption that people of lesser intelligence are inferior. In defending this group or that group against the 'canard' of intellectual inferiority, we betray a prejudice of our own.
7.10.2006 1:58pm
anonyomousss (mail):
even if sex differences in variability of intellectual performance can plausibly be blamed on some pre-school social experience that children have, that is still not something that can be laid at the door of the justices. That is, the range of explanations goes beyond "Is it biology or are the Justices discriminating?"

i think that depends on your theory of what consitutes discrimination. i think it's extremely plausible that justice scalia, at least, is discriminating, given how overtly sexist his opinion in the vmi case was.
7.10.2006 2:03pm
anonyomousss (mail):
Hank, if the mean is the same and the variance is larger, it's a necessary consquence that males will be over-represented at both ends of the distribution. In fact, saying it that way is logically equivalent to saying "greater variance".

to be pedantic, this isnt true, unless you are assuming a curve of a certain shape. to take a simple example, compare a normal distribution centered on zero with standard deviation s and a distribution where equal numbers of data points are at 1.5*s and -1.5*s, and no other values are represented (i.e. the distribution is two vertical straight lines). obviously the normal curve has infinitely more data points at, say, +/-3*s
7.10.2006 2:10pm
Brooklynite (mail) (www):
Kingsley Browne:
I'd be interested in knowing what the mechanism might be for cultural expectations creating greater variability among male toddlers than female toddlers and what support there is for that explanation.
I don't know what the mechanism might be. In my view, the default assumption is that any two human populations are of equal intelligence, and any contention otherwise bears the burden of proof.

Bear in mind that children are unreliable at even identifying people's sex until they are about three, and even after they can they tend to stereotype themselves less than they stereotype others.
Awareness of gender difference isn't a precondition of gender-based behavior. If adults treat children differently on the basis of gender from birth --- and they do --- then that difference in experience is likely, it seems to me, to translate into different behaviors and aptitudes at a very early age.

Moreover, many behavioral sex differences show up before children can even identify their own sex.
Again, I'd say this is irrelevant. If a child is discouraged from certain behaviors and encouraged in others because of his or her gender, that child is going to be shaped by that experience regardless of his or her own understanding of gender difference.

As for cognitive differences, psychologist Diane Halpern reports that “the male advantage in transforming information in visual-spatial short-term memory is seen as early as it can be tested – perhaps at age 3 – and in mathematical giftedness as early as preschool.”
By the age of three, a typical American child has been playing with gendered toys --- to pick just one small example --- for three years.

One of the difficulties in attributing differences in cognitive performance to "cultural expectations" is that those expectations have to explain not only why males tend to do better in certain tests of ability but also why girls get better grades throughout their school careers.
That's a difficulty that both cultural and biological explanations encounter, it seems to me, and I don't see why it's a bigger difficulty for one than the other.

[T]he range of explanations goes beyond "Is it biology or are the Justices discriminating?"
I'd certainly agree with this, and whole-heartedly.
7.10.2006 2:17pm
Mike BUSL07 (mail) (www):

Public discourse isn't how scientific knowledge advances, though.

No, it's not. The scientific knowledge however is largely already there. Public discourse is needed to get our social policy on par.
7.10.2006 2:19pm
frankcross (mail):
Kingsley Browne, I think studies have shown that the genetic component of IQ is the same for 4 year olds as 60 year olds. This suggests that the important environmental factors happen in the first few years of life. It's far from implausible that parents typically treat girl children differently from boy children in subtle ways that are consequential.
7.10.2006 2:21pm
anonyomousss (mail):
Bear in mind that children are unreliable at even identifying people's sex until they are about three, and even after they can they tend to stereotype themselves less than they stereotype others.

dont all people stereotype themselves less than they stereotype others? i dont know what the research says about this, but i'd be surprised if three-year-olds were in some way unusual.
7.10.2006 2:26pm
Charlie (Colorado) (mail):

to be pedantic, this isnt true, unless you are assuming a curve of a certain shape. to take a simple example, compare a normal distribution centered on zero with standard deviation s and a distribution where equal numbers of data points are at 1.5*s and -1.5*s, and no other values are represented (i.e. the distribution is two vertical straight lines). obviously the normal curve has infinitely more data points at, say, +/-3*s



Sorry, I thought it was obvious that we were talking about a large population and a gaussian (normal), approximately symmetrical distribution ... since we were talking about the distribution of IQ across the whole of humankind, I guess I imagined this was clear from context.
7.10.2006 2:40pm
Another Clerk (mail):
Well, to answer Eugene's original question, I say, let's ask some women. I was a Supreme Court law clerk and I'm a woman. My experience is as follows: First, as Eugene hypothesizes, moving twice in two years (for a prestigious appellate court clerkship) would have been extremely difficult for my husband's career. I was fortunate to get a prestigious clerkship in the city where we already lived, leaving only one year when we had to deal with our jobs being in different cities. Second, during the time that I was a USSC law clerk, the wives of several men I clerked with gave birth. This was not an option for me or any of the other women I clerked with. Other men I clerked with also arrived at the Court already parents. As of the term I clerked there (OT 96), to my knowledge, there had been two women EVER who were parents while clerking. As a mother now, and one with a demanding career, I cannot imagine doing both at the same time. Notably, to the best of my recollection, all of the men who had children while clerking had stay-at-home wives. (There may have been one or two moms who worked outside the home, but I can't remember any.) Third, ditto for doing the things in law school that would give one the necessary credentials to be a USSC clerk. (By ditto I mean that fathers were among those who achieved those credentials, again many with stay-at-home wives, but most women I knew who were mothers (many of whom were plenty smart) opted out of the competition.) Let me add that while clerking, many of my female friends and I were keenly aware of these disparities and of the ticking of our biological clocks. (Not all law clerks are 25.) Nor are these disparities unique to USSC law clerks or high performing law students. They are replicated in many other professional settings.

As for the biological explanation, IMHO, the reason it is so strongly resisted is that many of us who believe in women's equality see that reliance on such arguments is often used as an excuse to maintain the status quo. Oh well, no need to reconsider social or work structures for example. After all, women just don't tend to be as smart. So, I agree with the question "now what?" Even if it were true that there is some minor biological difference causing men to be overrepresented at the two ends of the bell curve, I can't see how that would change a single policy reform that I would advocate, and I would consider putting a lot of resources into finding the answer to the question to be a significant waste.
7.10.2006 2:49pm
nc_litigator (mail):
doesn't eugene's hypothesis also explain why we have had so few female supreme court justices?
7.10.2006 2:53pm
Kingsley Browne (mail):
I hope this is my last post on this thread, as it's keeping me from getting my work done :)

Brooklynite wrote:


In my view, the default assumption is that any two human populations are of equal intelligence, and any contention otherwise bears the burden of proof.



I have no problem with that as a default assumption, but what I do have a problem with is the imposition of a "beyond a reasonable doubt" standard of proof. (I don't mean this addressed to any particular commenter, but it is my experience that any old conjectural sociological explanation is taken seriously and is taken to trump even well-founded biological arguments).


"Awareness of gender difference isn't a precondition of gender-based behavior. If adults treat children differently on the basis of gender from birth --- and they do --- then that difference in experience is likely, it seems to me, to translate into different behaviors and aptitudes at a very early age."


It's true in concept that awareness of a difference between sexes is not logically necessary in order to result in sex differences in behavior. However, the differences in treatment tend to be pretty subtle, so I don't think one can make a strong argument for the effect of differential socialization without conceding that children are actually predisposed to learning "gender roles" very easily.

Also, bear in mind that much of the treatment of children, even infants, is responsive to the child's own characteristics. I hate to quote myself, but here is an excerpt from an article of mine from the Cardozo Women's Law Journal article that I referred to on the other thread:


Christine Williams, for example, attributes women’s “greater desire and need for emotional intimacy” to the greater frequency with which parents caress and hold their infant daughters. It may, however, be the other way around. A study of adults’ perceptions of infants found that individuals blind to the sex of newborns rated female infants substantially more “cuddly” than male infants. This finding makes it problematic to conclude that later emotional sex differences were caused by differential cuddling of boys and girls. It seems equally plausible, if not more so, that parents are more likely to cuddle particularly “cuddly” infants and that particularly cuddly infants are more likely to be girls than boys.


Discussing Joyce F. Benenson, Maria Philippoussis, &Rebecca Leeb, Sex Differences in Neonates’ Cuddliness, Journal of Genetic Psychology, 160:332-342 (1999) &Christine L. Williams, Gender Differences at Work: Women and Men in Nontraditional Occupations, at 11 (University of California Press, 1989).

Brooklynite wrote:


By the age of three, a typical American child has been playing with gendered toys --- to pick just one small example --- for three years.



Again, there is substantial evidence that toy choice is responsive to child preference. Fathers are certainly less likely to give dolls to their sons than their daughters, but sons are also less likely to play with them if they are given.

In many ways, children are more sex-typed than adults. For example, parents are much less likely to give children sex-typed toys when they choose the toys themselves as opposed to when they give children the toys they ask for. See Campenni, C.E. 1999. Gender stereotyping of children’s toys: A comparison of parents and nonparents. Sex Roles, 40:121-138; Fisher-Thompson, D. 1993. Adult toy purchases for children: Factors affecting sex-typed toy selection. Journal of Applied Developmental Psychology, 14:385-406.

Even young monkeys exhibit the same kind of sex-typed toy preferences found in humans, and as far as I know no one argues that they have been indoctrinated into sexist societal expectations. See Gerianne M. Alexander &Melissa Hines, Sex Differences in Response to Children’s Toys in Nonhuman Primates (Cercopithecus aethiops sabaeus), Evolution and Human Behavior, 23:467-479 (2002).

Brooklynite wrote:


[Browne]: One of the difficulties in attributing differences in cognitive performance to "cultural expectations" is that those expectations have to explain not only why males tend to do better in certain tests of ability but also why girls get better grades throughout their school careers.




Brooklynite: That's a difficulty that both cultural and biological explanations encounter, it seems to me, and I don't see why it's a bigger difficulty for one than the other.


I think it is a bigger difficulty for the "cultural" side of it, because the argument for sex differences in math performance are usually based upon such things as expectations that "math is for boys" or that girls are "playing dumb" or that teachers aren't serious about teaching math to girls, etc. If that is true, then I would have expected girls to do relatively better on anonymous measures of ability and relatively worse on public ones.

Instead, it is the other way around. What you see is that on tests of mathematical reasoning, boys tend to do better, both on average and at the high end, even though they get worse grades. Part of the reason for that is that at least in primary and secondary school, grades are given in part for "compliance," and girls tend to be more likely to give teachers what they want than boys. Also, in general, girls do relatively better on curriculum-based tests of knowledge compared with tests of reasoning ability, which is thought to account for the lesser sex difference on portions of the ACT (which is heavily curriculum-based) compared with the SAT (which is less so).

I have not outlined any of the substantial evidence for hormonal contributions to sex differences in cognitive abilities (and in temperament), which provides a biological mechanism for some of the sex differences to develop.

Finally, "Another Clerk's" response should remind us that there are in fact lots of causal factors involved and that no one is arguing that cognitive differences (if any) are solely (or even mostly) responsible for existing patterns. If I had to guess (and this is just a guess), I would guess that the kinds of factors she refers to (and that were discussed in the other thread) are more important than the ones that are the subject of this thread. They, of course, have some biological roots, as well, but that is another story and one I will leave for others.
7.10.2006 3:08pm
Well, Sure:
FrankCross (Re: genetic variation in IQ over the lifespan): Not true. Genetic influences on IQ, as measured in behavioral genetic studies, actually increase into later adulthood, although the reasons for this are not clear (but see Detterman’s age-related (de)differentiation hypothesis).

Kingsely Brown: You missed this article: LINK

One possibility is that competitive pressures, probably mediated by testosterone, drive men to higher levels of achievement (and, indirectly, to higher levels of performance on IQ tests) – although this is a theory. If true, then individual (and perhaps sex differences) in testosterone should correlate with IQ. (Hmmmm: LINK)

Ed (Re: IQ scores going up for decades): “This is incorrect. Average IQ is 100 by definition. It wouldn't matter if everyone's intelligence suddenly doubled, the average IQ would still be 100.”

You’re right, and that’s why raw scores are used. Although average raw scores on g-loaded tests (Ravens) have been increasing over historical time (the so-called Flynn effect), average differences between groups (White-Black) have remained stubbornly persistent. I would expect this to be true for male-female differences, too, to the extent that such differences are mediated by biological/genetic differences (hormones, brain size) that are relatively immune to cultural influence.
7.10.2006 3:09pm
Mary Katherine Day-Petrano (mail):
"Eugene Volokh asks why are there so many more male Supreme Court clerks than female? His first guess is:

Is the cause possible differences in innate intelligence at the tail ends of the bell curve (what I'd heard called the idiot-genius syndrome, which leads men to be overrepresented both among the very low-IQ and the very high-IQ)?

Oh, please. I know it's in question form, but really..."

A fair question dserves a fair answer. It is really pretty simple to anyone who has extensively researched the structure of the legal professin and standardized testing for more than 16 years. Men ARE cognitively different than women, and one of those differences is the ability of men to have higher success rates on standardized tests. Then there is the structure of the legal profession where grades earned at a top tier law school are not the equivelant of grades earned at a second or third tier law school, and the "percentiles" (e.g., top 10%) screening criteria that screens out everyone who lacks this standardized test taking ability from all meaningful opportunities in the law -- udicial clerkships, big firm employment offers, law review in the schools that do not utilize write-on competitions.

The upshot is that the current state of affairs not only perpetuates the exclusion of the disabled and African Americans, but serves to perpetuate the male dominated heirarchy at the highest levels of the legal professon. Sorry women, but that is how it is, cognitively speaking (supported by research).

EV, no watering down of your accomplishments intended. You are a class act. But a fair questions deserves a fair answer.

P.S. Please name for me each and every mentally disabled, learning disabled, and autistic clerk to Supreme Court Justices since the institution's inception. Bet there are none.
7.10.2006 3:10pm
Well, Sure:
Money Quote (from article LINKED above):

“The study made it understandable how an exponentially growing male/female ratio at the high end of the g distribution—with the exact numerical ratio being a function of the size of the average sex difference in mean g and of the dispersion of g—provides part of an explanation of the male dominance in high society.”
7.10.2006 3:16pm
anonyomousss (mail):
in general, girls do relatively better on curriculum-based tests of knowledge compared with tests of reasoning ability

you were sounding very convincing until you got to this. when did we develop these curriculum-independent tests of "reasoning ability"?
7.10.2006 3:21pm
Mary Katherine Day-Petrano (mail):
"the lsat isnt a terribly good place to look for an idiot-genius effect. those who take the test are all college graduates or about to be. "idiots" probably never take the test."

Wow. An admission the LSAT violates the Americans With Disabilities Act by design to exclude the mentally disabled.

"See the chart above; the bell curves for men and women are nearly identical in shape (women do slightly worse than men on the LSAT, but men aren't noticeably more variable)."

Significantly absent from the statistical study is the category of "disabled," as well as the agenda of the outfit that paid for the statistical research. Why do people just take statistical studies at face value without critical thought? the results can be slanted just as any version of one side of a case by that side's legal counsel.

Another reason for requiring joint J.D./M.B.A. degrees.
7.10.2006 3:34pm
frankcross (mail):
The article in Well, Sure's link is interesting but it doesn't conform to the hypothesis. It concludes that males are smarter overall than women but the disparity is most prominent at higher levels, because the ratio of bell curve size is most different there.

If this were true, why are women outperforming men in college today?

I would say the reason you need very strong evidence to depart from presumptions of equality is because history is littered with countless examples of claims of genetic differences that are plainly wrong. We've had a lot of false positives.
7.10.2006 3:37pm
frankcross (mail):
Here's some more interesting research that may inform the question


HOGAN ( 1978 ) REPORTED on 11 different studies, all with U.S. college students, in which the participants were asked to estimate their IQ scores. Various studies in Western societies over the past 20 years have suggested that men's estimates of their IQs are higher that women's estimates of their IQs. Hogan found that compared with men, women significantly (50% of the time) underestimated their scores and that nearly all believed their fathers had higher IQs than their mothers.

Beloff ( 1992 ) replicated this study with Scottish students and found similar results. Young women saw themselves as intellectually inferior to young men and to their fathers, whereas young men felt superior to their mothers.

Byrd and Stacey ( 1993 ) replicated and extended Beloff's ( 1992 ) study in New Zealand by asking students to estimate the IQs of their brothers and sisters. Although there were no gender differences in self-estimates of IQ, the Beloff ( 1992 ) finding was replicated. Furthermore, the men thought they had higher IQs


Do women genetically underestimate themselves, or is that more likely to be cultural?
7.10.2006 3:42pm
Mary Katherine Day-Petrano (mail):
"Many had chronic disabilities or illnesses in childhood ... Now, would you say that there is some genetic feature that predisposes both to family crisis and genius?"

Duh ... learning disabilities and autistic savants are predisposed to genius. However, they are also disabled, and heck if the legal profession is apt to embrace opportunities for such individuals.

As is asked ... name one Supreme Court clerk who is autistic.
7.10.2006 3:50pm
TC (mail):

As for the biological explanation, IMHO, the reason it is so strongly resisted is that many of us who believe in women's equality see that reliance on such arguments is often used as an excuse to maintain the status quo. Oh well, no need to reconsider social or work structures for example. After all, women just don't tend to be as smart. So, I agree with the question "now what?" Even if it were true that there is some minor biological difference causing men to be overrepresented at the two ends of the bell curve, I can't see how that would change a single policy reform that I would advocate, and I would consider putting a lot of resources into finding the answer to the question to be a significant waste

I'm curious as to what policy reforms would rectify this.
7.10.2006 3:51pm
frankcross (mail):
Here's another interesting study, examining the records of students in England.


Studies in Higher Education

Issue: Volume 13, Number 3 / 1988
Pages: 315 - 331

Another look at the degree results of men and women
Simon Clarke


It finds that men are at the top of the class in some subjects and not others but attributes this to culture. The interesting data, though, is that men and women in law do equally well. As many women in England get top scores in law as do men. Also true at the bottom.
7.10.2006 3:55pm
Mary Katherine Day-Petrano (mail):
"One concrete policy example would be as follows. If we concede the possibility of intrinsic differences, and then have an honest public discourse about it, what we MAY find is that there is a strong correlation between gender and certain "types" of intelligence."

And ... maybe we should completely change the structure and how we test and provide opportunities to those seeking to be a part of the legel profession?
7.10.2006 3:58pm
Witness (mail):
I think Althouse's basic point - that there aren't many geniuses in law - is correct. Based on my own experience coming out of a top undergrad institution, the classmates I considered geniuses invariably went to either med school or a PhD-track grad program (if they were going to pursue a post-grad degree at all). Those going to law school - even the very best law schools - always seemed to be in a slightly lower tier of intelligence (myself included), slightly above those going into consulting or i-banking and slightly below those going to write for The Simpsons.
7.10.2006 4:00pm
Bob Smith (mail):

It concludes that males are smarter overall than women but the disparity is most prominent at higher levels, because the ratio of bell curve size is most different there. If this were true, why are women outperforming men in college today?

Generally, boys get worse grades but score higher on tests. IQ is tested, not graded. QED.
7.10.2006 4:01pm
Mary Katherine Day-Petrano (mail):
"Imagine if you'd offered up the biological theory to explain the racial disparity in Supreme Court clerks."

Ann, review the six decade debacle in Florida of Virgil Hawkins. The Florida Bar advocated Mr. Hawkins not be granted bar admission 'until he turns white' or the KKK rides out of Gainsville. 'Until he turns white' is the phrase describing drapetomania, a psychiatric disability made up about African Americans, that is the inability to turn white. And this was occurring as late as the mid-1970s!! This is pretty close to a "racial disparity."
7.10.2006 4:03pm
byomtov (mail):
the biggest geniuses probably don't go into law.

This is critical. Before you can say that this "more men at the extremes" idea has an important impact you have to show that clerks in fact come from that far out on the curve. I find this dubious. Looking pure IQ scores, for whatever they are worth, I suspect that the top law students do not match the top students in mathematics, say, or the sciences. So this may not matter at all.

The statistics may even cut the other way. If there are more men way out on the right of the curve, then there are more women in some range that stretches from the median to well above average. There is some point at which the curves cross. Are we sure that top lawyers come from a region where there are more men than women? Maybe, or maybe not, or maybe even if they do the difference is so small that other factors like social pressures are far more important. I'm dubious, but then I'm not a lawyer, so I have no investment in the assumption that the law is an especially demanding profession intellectually.
7.10.2006 4:09pm
Mike BUSL07 (mail) (www):

And ... maybe we should completely change the structure and how we test and provide opportunities to those seeking to be a part of the legel profession?

I'm all for equality of opportunity and access. But that's quite different from endorsing equality of condition. Put another way, everyone should have a chance to go to a decent school and to live in a safe home - without regard to gender or race or any other such intrinsic factor. NOT every group should be assured of equal representation.

Will you also have us change the standards of being allowed to play in the NBA, on the ground that the present ones disproportionately exclude the short, (and whites?)
7.10.2006 4:10pm
Well, Sure:
Frank: “If this were true, why are women outperforming men in college today?”

College performance is largely based on GPA; GPA and mental ability tests have different validity coefficients.

In particular, GPA doesn’t come close to matching IQ in predictive utility (i.e., predicting later outcomes such as job or academic performance): LINK (cf. grade point averages to mental ability tests).

These differences in predictive utility can probably be attributed to GPA being loaded with measurement error (differences in computing GPA across institutions) and unique variance that has nothing to do with mental ability (e.g., a teacher liking a student based on characteristics that do not generalize outside of the classroom). IQ, in contrast, has low measurement error, high test-retest reliability (your IQ is more reliable than your weight, measured at 12 mo intervals), and excellent predictive validity beyond the classroom. Based on everything we know about IQ and GPA and their predictive utility, the sex differences in mental ability (as measured by IQ) should account for more variance in real-outcomes (including clerking at the SC) than the sex differences in GPA. This pattern has been confirmed to my knowledge for almost all (all?) jobs that have been studied to date. (IQ validity coefficients are actually stronger for jobs that involve higher levels of complexity, but you still find correlations in the predicted direction for jobs that ostensibly involve low complexity, like janitorial work.)

The classic article on the predictive utility of mental ability tests (which include IQ tests) is: Hunter, J.E. and R.F. Hunter (1984) The validity and utility of alternative selection predictors of job performance, Psychological Bulletin, 96, 72-98.

Frank: “I would say the reason you need very strong evidence to depart from presumptions of equality is because history is littered with countless examples of claims of genetic differences that are plainly wrong. We've had a lot of false positives.”

I don’t disagree with the sentiment. But if you don’t think the findings concerning mental ability are important in explaining sex differences at the highest levels of achievement, what (evidence) would satisfy you that mental ability *is* important?
7.10.2006 4:14pm
AJK (mail):
Finally, "Another Clerk's" response should remind us that there are in fact lots of causal factors involved and that no one is arguing that cognitive differences (if any) are solely (or even mostly) responsible for existing patterns. If I had to guess (and this is just a guess), I would guess that the kinds of factors she refers to (and that were discussed in the other thread) are more important than the ones that are the subject of this thread.


It's just fairly frustrating to have the entire discussion focus on whether or not these differences exist, with little or no attention paid to the actual obstacles in the way of talented female law students who want to clerk on the Supreme Court. (I really don't thinkthere is very much intentional discrimination going on - indeed, I believe there are one or two justices who practice a degree of gender-based affirmative action - but there are difficulties for most married women of childbearing age in clerking on the Supreme Court that do not necessarily exist for the equivalent pool of men.)

In math, gender intelligence differences at the highest levels of performance seem reasonably well documented, but most of the discussion of whether the same is true in law is based on wholly unfounded speculation not backed up by any data whatsoever. Further, even if such differences do exist and are a cause of the Supreme Court disparity (and, in this regard, it's important to note that attaining a Supreme Court clerkship depends on many factors in addition to raw intelligence), unless they are the only cause, so what? It is just as intellectually dishonest to ignore other possible causes of the disparity as it is to ignore the possibility of cognitive differences, yet I don't sense the same rush to explore and document those other potential causes here.
7.10.2006 4:14pm
cathyf:
I'm not sure if anyone else has already pointed this out, but if the male distribution is significantly more leptokurtotic than the female distribution, then men will be not only overrepresented in the tails, but also overrepresented at the center of the distribution. So if the male and female distribution have mean and standard deviation the same, but the male distribution has higher kurtosis, then you would expect men to be (relatively) overrepresented at the genius, the idiot, and the right-in-the-middle level, while women would be (relatively) overrepresented at the smart-but-not-genius level and the dumb-but-still-functional level.

Blaming the higher moments of the distribution (well, higher than the standard deviation anyway) is an intuitively attractive model for two reasons. First of all, you can construct a leptokurtotic distribution from two normal distributions with the same mean but different standard deviations. If there is something going on with the X chromasome, and there are several traits with differing standard deviations, then women have more chances to end up with mixed smart/dumb than men do. If one variation is not fully dominant over the other, or there are more than two variations, the statistics get very interesting, and start looking like the sort of distributions we see in real life.

The other effect is when you look at the distributions from the point of view of college admittence, naming to SCOTUS clerks, placement in regular classes rather than special ed, you expect that there is not some hard and fast cutoff, but some function where as you move from the smartest to dumbest ends of the distribution, you exclude a larger and larger fraction. If you think of how this works from the point of view of a fat-tails-fat-mean distribution, vs a tall-shouldered distribution, then you would expect a characteristic shape, which would be a function of how "exclusive" the grouping is. So SCOTUS clerk might be basically populated only by people on the genius tail of the distribution. While looking at say the undergraduate population of a good liberal-arts college your population is centered around the smart shoulder of the distribution, where the women outnumber the men. And you would expect such a college to have a small number of very smart kids, disproportionately male, and then of the 95% not in that group, it would be 60-40 female male with a higher proportion of women on the smarter side. If you compare to a not-very-selective college, there you would expect very few members of either tail (geniuses got attracted to better places; idiots weren't allowed in). But you would reach down somewhat into the "dumber" shoulder. So there you would expect men to cluster at the middle, while the women would have a far flatter distribution, and on average, smarter than the men.

Having observed close up an excellent college, a very good college, and a pretty lousy college, what I saw was pretty much what I would expect to see if the kurtosis of the male distribution were significantly higher than the female distribution, and then you applied the 3 different college admissions criteria.

cathy :-)
7.10.2006 4:17pm
Mary Katherine Day-Petrano (mail):
"Another thing to bear in mind in this discussion is that one of the alternative hypotheses on the table is that the apparent sex disparity among Supreme Court clerks is a consequence of discrimination by Supreme Court justices in their hiring."

Oh, my. Wasn't it Chief Justice Roberts who expressed concern whether his law clerk might be able to sue him over employment? See, the Chief Justice is really so intelligent, even I would not sue a Justice over not hiring an autistic Supreme Court clerk, but rather would try to use my very best skills to persuade how capable an autistic clerk can be. Isn't that what diversity is about?

Another thing, I have to say the Chief Justice has many supporters, and during his nomination when I asked his views on disability discrimination, one of his very good supporters won me over by citing me to a Circuit Judge Roberts Rehabilitation Act decision to show me why he deserves to be the Chief Justice. Like EV, the Chief Justice and his supporters are also class acts, by trying to persuade my point of view rather than attacking the disabled.
7.10.2006 4:18pm
Mary Katherine Day-Petrano (mail):
"i think that depends on your theory of what consitutes discrimination. i think it's extremely plausible that justice scalia, at least, is discriminating, given how overtly sexist his opinion in the vmi case was."

How has this turned into Justice bashing? For every VMI there is a Goodman v. Georgia (unanimous), upholding the rights of the disabled.

If what some people are saying is somehow the Supreme Court Justices are responsible for setting the policies for criteria and testing format to enter the legal profession, including selection for clerkships, then they should say so. And if THIS is the perceived problem, maybe it is high time for the Supreme Court to revisit bar admission.
7.10.2006 4:24pm
Brooklynite (mail) (www):
Two things that strike me, looking at the studies cited here, are that [1] the strongest claims of innate difference between the sexes seem to be in the area of personality rather than cognitive ability, and [2] the strongest of the claims to differences in cognitive ability tend to cluster around one or two narrow capacities.

Even if we take these claims as proven, in other words --- at least for the sake of argument --- they don't add up to a demonstration that men and women possess broad differences in cognitive capacity. At most, they suggest that men or women may, on average, be more adept at solving certain problems in specific ways. They seem to make no credible case for any biological difference in aptitude in a field like law, and no credible argument for revision of public policy on questions such as affirmative action.
7.10.2006 4:26pm
Mary Katherine Day-Petrano (mail):
"What you see is that on tests of mathematical reasoning, boys tend to do better, both on average and at the high end, even though they get worse grades. Part of the reason for that is that at least in primary and secondary school, grades are given in part for "compliance," and girls tend to be more likely to give teachers what they want than boys. Also, in general, girls do relatively better on curriculum-based tests of knowledge compared with tests of reasoning ability, which is thought to account for the lesser sex difference on portions of the ACT (which is heavily curriculum-based) compared with the SAT (which is less so).

I have not outlined any of the substantial evidence for hormonal contributions to sex differences in cognitive abilities (and in temperament), which provides a biological mechanism for some of the sex differences to develop."

Men have such a propensity to oversimplify. No doubt men were the creators of the faux multiple choice testing format. Now I am wondering in light of the statistics, correlations, causations, and gender, what happens to all of these assumptions in light of 1 in 166 children born being autistic, fact that more men than women are autistic, and the new research indicating hormonal balances in the womb affect autistic outcome.

I am just saying there are many potentially significant factors other than simple conjecture ...
7.10.2006 4:34pm
Mary Katherine Day-Petrano (mail):
"If this were true, why are women outperforming men in college today?"

Maybe because they take classes with papers and assignments or group projects instead of standardized tests? Has anyone tracked this?
7.10.2006 4:37pm
Well, Sure:
Cathy: “If there is something going on with the X chromasome, and there are several traits with differing standard deviations, then women have more chances to end up with mixed smart/dumb than men do. If one variation is not fully dominant over the other, or there are more than two variations, the statistics get very interesting, and start looking like the sort of distributions we see in real life.”

Now that’s interesting. A great deal of effort has been spent trying to determine why men fall at the extremes of a distribution. Explanations for males at the lower tail have focused on sex-linked genetic disorders. Explanations for males at the higher tail are more varied (recent theories have targeted testosterone). I haven’t heard anyone proffer the XX dilution theory, though, which seems very plausible. Got a citation?
7.10.2006 4:48pm
Lorenzo (mail):
The reason I love VC is that the commenters are wideley read and their comments are great reading - and civil too. You can actually learn something here, and get enough leads on a topic to take you to an adventure.
One point Professor Volokh made that doesn't seem to be getting much notice is that there may be multiple causes. The intelligence/gender angle is just one, and I think he mentioned it first so it wouldn't get lost or easily dismissed.
I commend Adam on placing a wide range of left-handers in the population. His point was that they are overrepresented at the extremes like males, but include both genders. As a left-hander, I made a point of checking how many other lefties were in my school classes, from the first grade on. There were as few as 2 in grammar school classes of 40-50 (we baby boomers had LOTS of classmates) and as many as 6 in my college classes of 28-36. My point is that there's so little accurate data that it's impossible to determine how many lefties there are in a population, much less draw any conclusions.
It's anecdotal, but I noticed most lefties were boys in grammar school, gender-equal in high school, and female-dominant in college - and the overall gender ratio in college was nearly 1:1 four decades ago.
As for Ann Althouse's comment that Eugene's getting all the comments, that's easy to figure. Anyone can comment here, but at Ann's site you have to register. Ann can get more comments if she opens the comments, but if she wants a better class of commenters, she should rename her blog "Ann Althouse's Law Blog" - and stop posting about her favorite contestants on American Idol.
7.10.2006 4:48pm
frankcross (mail):
Well, Sure, the point of the thread was about GPAs and Supreme Court clerks. It was pointed out that men dominate the high tail of grades in US law schools. It was suggested that this was due to genetics. If they do not dominate the high tail in British law schools that would seriously call into question the genetic explanation.

As for IQ, it is a stew of nature and nurture. I don't doubt that and I recognize the possibility that gender may have an effect. But I doubt it, simply because of all the past false positives. They don't prove that today is not a true positive but I'd want strong evidence that it is. I think there's a human tendency to think that current conditions in the locale are the "normal" or "natural" state of the world, but they inevitably are not.
7.10.2006 4:54pm
Mike BUSL07 (mail) (www):

It was pointed out that men dominate the high tail of grades in US law schools. It was suggested that this was due to genetics. If they do not dominate the high tail in British law schools that would seriously call into question the genetic explanation.

If we link male dominance at the top in US law schools with intelligence, then a failure of this trend in Britain could speak not to the domestic trend's validity, but to British testing methods. For example, are their tests blindly administered? Highly g-loaded? Do men and women go into very different types of law, the result being that the former take test-based classes, while the latter opt for the essay-based?

...Or perhaps you are right - necessarily conjectural as the above paragraph is.
7.10.2006 5:00pm
David Lewis (mail):
I understand the "Oh please" fully. The notion that the number of women Supreme Court clerks is a function of the relative "innate intelligence" of women vs. men in the pool of likely applicants (say Circuit clerks) seems facially ridiculous to me. Such clerks are all very smart in some way, and the differences among the ones I've met and worked with in that general regard are fundamentally indistinguishable. Even if I were sure which of their many fine characteristics constituted "innate intelligence" (and not just common sense or hard work or good judgment or linguistic ability or memory or speed of reading &comprehension or general knowledge or myriad other such abilities), I'm sure I'd be hard pressed to believe that the "innate intelligence" of members of the group could be isolated and then accurately measured for each subgroup. And furthermore, I've know any number of "innately intelligent" people who were practical idiots (one abject failure as an Assistant U.S. Attorney who is now a star professor comes particularly to mind).

The suggestion that "innate intelligence," whatever that is, was at the root of the situation could only have been made by a former male Sup. Ct. clerk with a fair amount of hubris among his own characteristics, at least that's what I would bet.
7.10.2006 5:10pm
Mike BUSL07 (mail) (www):

Even if I were sure which of their many fine characteristics constituted "innate intelligence" (and not just common sense or hard work or good judgment or linguistic ability or memory or speed of reading &comprehension or general knowledge or myriad other such abilities),

Many supporters of the concept of "innate intelligence" will tell you that things you call common sense, or good judgment, or linguistic ability etc., all comprise what the psychometricians would call "g." Volokh's claim may seem facially ridiculous to you, but I assure you that there are many reasonable people to whom it does not. Also, way to end it with an ad hominem.
7.10.2006 5:16pm
Mary Katherine Day-Petrano (mail):
"Will you also have us change the standards of being allowed to play in the NBA, on the ground that the present ones disproportionately exclude the short, (and whites?)" You pose a fallacious argument, comparing apples to oranges.

Essential functions to participate in the NBA are mostly physical and visual-spatial skill based (i.e. hands-on performance skills). no different than the essential functions to ride and jump a horse in show competition or (analogizing to the NBA coach, teaching someone else to do so).

Essential functions to be a Supreme Court clerk are highly language-oriented, written and spoken (one has to relate to their boss and the other clerks), not physical visual-spatial hands-onperformance based.

I can give you a classic example of why your coparison does not hold. Job Candidate A applies for equestrian riding and instructor position. Employer conducts office-type interview based on written and spoken language criteria, screens person out of employment for dictating responses to inaccessible employment application form by Dragon Dictate softeare on attachment in essay format, implies person is "illiterate," and begins quizzing person as to any "crimes" committed. Employer never permits job applicant to ride a horse or give a sample riding lesson. Result: Employer violates Title I of the Americans With Disabilities Act for using prohibited criteria (office style interview) that tends to screen out the disabled qualified to perform the essential functions of the position (riding a horse, giving a riding lesson), and for using prohibited non-essential functions to deny employment.

Ahh, but you must be a reader of Justice Scalia's and Thomas' dissenting opinion in PGA Tours, whereby they described the California Bar Exam as an employment test for entry into the competition to be a licensed lawyer not different than that for which Martin sought accessibillity to perform the hands-on performance requirements to play in the PGA Tour. This definitely complicates everything, because now it would appear Title II (incorporating Title I) employment provisions of the ADA apply to the legal profession, bar admission, bar examinations, and attorney discipline.

That still does not convert prohibited non-essential functions into essential functions, only adds additional protections to bar applicants (no physical or mental medical examinations in the character and fitness stage until after a conditional offer of bar admission has been made.

"I'm all for equality of opportunity and access. But that's quite different from endorsing equality of condition." Uh, no ... see US Airways v. Barnett (US Sup.), accommodations preferences are required to level the playing field because the disabling conditions create the inequality of opportunity vis-a-vis the non-disabled. Where did you go to law school? There is no distinction between "equality of opportunity and access" vs. "equality of condition" written into the language of the ADA. Another example of why your argument is nonsense: person who is autistic cannot place information into written format by manually keyboarding due to both cognitive limitations and physical conditions. Autistic person is entitled to "equipment and devices" to equalize her condition in comparison to a non-dsiabled person's condition, i.e., speech recognition software and extra time. Somehow you just don't get it.

"Put another way, everyone should have a chance to go to a decent school and to live in a safe home - without regard to gender or race or any other such intrinsic factor. NOT every group should be assured of equal representation." And this is ... more of the same of the last 100 years of oppression of the disabled? You need to read the Solicitor General's briefs in Medical Board of California v. Hason (US Sup. dismissed) and Tennessee v. Lane.

In sum, there are differences that cause some people (largely non-disabled white men) to suceed with high scores on standardized tests at the expense of many women, African Americans, and the disabled, thereby perpetuating the heirarchy of such men over the rest.
7.10.2006 5:23pm
David Lewis (mail):
Sorry, I think lumping all those things as Q or even Z is the most ridiculous thing anybody ever did. As I had hoped that I made clear, lack of common sense can trump the other factors, lack of memory could etc, etc. How to weigh them? Long ago, in the wake of the Bell Curve crap, I read a fair amount about this, enough to convince myself that Q has as much reality as say, the "ether." Sorry to hear that other "intelligent" people disagree.
7.10.2006 5:30pm
Mike BUSL07 (mail) (www):
Mary Katherine, I regret that my argument, made in good faith, apparently caused you to lose control of your manners. I have no desire to get into a piss-fest with you, so I'll just say

- (1) I wasn't even talking about the disabled. I'd be out of my element to discuss the ADA - I don't know anything about it.
- (2) To answer your question, I'm actually still in law school, that law school being Boston University. I was hoping my name here made that kind of obvious, but I guess not to you.
- (3) I respect your position in that I find it well-meaning and sympathetic. You apparently do not respect mine. I urge you to use a more diplomatic tone if you want your position to be taken seriously - and not as shrill ramblings of an "always on" agenda-driven special interest advocate.
7.10.2006 5:35pm
Mike BUSL07 (mail) (www):
At any rate, MK, David, I have to go bill some hours now. Have a good night.
7.10.2006 5:39pm
Charlie (Colorado) (mail):

Before you can say that this "more men at the extremes" idea has an important impact you have to show that clerks in fact come from that far out on the curve.


Folks, get a grip! Eugene stated several hypotheticals, one of which Ann dismissed derivsively. Maybe the "greater variance" hypothesis is correct, maybe not. You lawyers argue in the hypothetical all the time; you should be abloe to cope with this. And simply stating it as one possibility in a list of possibilities isn't an argument that it has an important impact. But it can't be simply dismissed out of hand --- or rather, it can, but that's a rhetorical trope to avoid argument, not an argument in itself.
7.10.2006 6:13pm
Well, Sure:
What exactly has Mike BUSL07 said that brought forth the ire of the commenters? Men really are disproportionately represented at the extreme upper tail of the mental ability distribution (http://volokh.com/posts/1152400709.shtml#119051); test scores on ALL mental ability tests are POSITIVELY correlated, a phenomenon called positive manifold (which, by implication, means that people who do well on verbal tests also do well on math tests); mental ability really does have moderate to high correlations with real world achievements (Hunter, J.E. and R.F. Hunter (1984) The validity and utility of alternative selection predictors of job performance, Psychological Bulletin, 96, 72-98.); and mental ability test scores are not discriminatory, in a psychometric sense, against women (women and men who obtain the same IQ score have the same real world outcomes; there’s just fewer women who obtain exceptionally high scores).

Given these data, it is certainly plausible that men may be overrepresented in the highest levels of legal practice (SC clerkships), as well as in other professions, that require exceptional levels of ability and achievement.

Could the alternative hypotheses mentioned better account for the data? Is it really plausible that people with exceptional ability have less “common sense” or less “political acumen”, two factors that undoubtedly affect opportunities for SC clerkships as well as other jobs, while also having exceptional intelligence? That’s an odd argument.

Related: On a legal note, going back to Duke Power (LINK), a group difference in mental ability test scores does not, in and of itself, constitute discrimination. Today, the general test for discrimination is to determine if people who have the same score on a test show the same level of achievement, and to determine whether the test assesses job related characteristics. All widely-used and validated mental ability tests (Wonderlic) pass this test.
7.10.2006 6:19pm
Mary Katherine Day-Petrano (mail):
"Such clerks are all very smart in some way, and the differences among the ones I've met and worked with in that general regard are fundamentally indistinguishable."

One would hope so, but I do not think this is the case. Example, clerks write essay-style opinions using computers and use electronic research; they do not hae to fill in the boxes of forms to perform their clerk jobs. Yet, look at some of the selection criteria to become a Supreme Court clerk (or even a fellow) -- sorry Honorable Justices, but maybe what I have to say is the fault of the Supreme Court's web site agency, GPO, and not the Court. To apply, a candidate has to fill out an application form, with boxes that are inaccessible to speech recognition software essay-style format. Speech recognition works to perform the essential functions of a Supreme Court clerk, but the barriers is the Supreme Court's web site employment application form. Hence, the manner in which a Supreme Court clerk is "very smart in some way" may in fact be distinguishable by the Supreme Court web site application form barriers to those intelligent andidates who use speech recognition.

"Even if I were sure which of their many fine characteristics constituted 'innate intelligence' (and not just common sense or hard work or good judgment or linguistic ability or memory or speed of reading &comprehension or general knowledge or myriad other such abilities), I'm sure I'd be hard pressed to believe that the 'innate intelligence' of members of the group could be isolated and then accurately measured for each subgroup."

Actually innate intelligence can be isolated and measured for at least some subgroups. It is widely know that, for example with autistics, standard IQ tests developed in the 1930s do not accurately measure the IQ of autistics due to their lenguage-communucation barriers. Autistics are frequently given non-verbal based IQ tests specifically designed to measure their innate intelligence without regard to their impaired language skills. And while on the subject, it is interesting to see other attributes lumped together. No one disputes autistics, for example, are capable of hard work or good judgment or even linguistic ability; they do lack the specific brain cell to acquire "common sense" from social interaction and emptions (but instead acquire such from logical analysis and pattern recognition, do have short term working memory deficits (but overdeveloped 100% long-term photographic memories), an do read slower than most others. However, the fact an autistic's language processing skills are pictoral based in the right hemisphere of the brain (rather than the verbal-sequential left), does not mean they lack innate intelligence, inability to comprehend what tey read, or lack linguistic skills, only that they require different accommodations (e.g., speech recognition software) to express it. I am only pointing out that standard IQ tests do not necessarily measure innate intelligence. I know, mine though quite high measures below what it would measure of it were normed to autism. What is the IQ of the autistic savant who can beat IBM mainframe computers playing 3-D tic tac toe at age 7? It is all in how you measure it.

"And furthermore, I've know any number of 'innately intelligent' people who were practical idiots (one abject failure as an Assistant U.S. Attorney who is now a star professor comes particularly to mind)."

Again, I am a strong advocate of measuring and requiring a fit between the tests we use and the essential functions of a position. What a U.S. Attorney and a law professor does are usually very different: most U.S. Attorney are federal court litigators; law professors write scholarly articles, teach law students, and think up assignents, papers, and tests.

This is why I have such a hard time with the current criteria used by most states for bar admission. Take Florida. After meeting the ABA-accredited requirements to graduate with a Juris Doctor degree, then a person has to pass two multiple choice examinations (MBE and MPRE) designed by a National body that is not state specific, tests the ability to find the most correct answer among 4 choices, as well as an essay examination. Legal research skills, knowledge of local rules and standing orders, courtroom demeanor, ability to relate to a client, skills to manage a law office, and ability to negotiate are not tested. And somehow the current bar examinations that mis-match the very different skills required for very different areas of the law can measure ability of a licensure candidate to competently perform the essential functions of each of those very different areas? not only is there is big difference in the tasks of a U.S. Attorney vs. a law professor, but how about a litigator vs. a transactional attorney?

And while on the topic, it is just plain ridiculous that the 50 states mostly use the NCBE's National generalized MBE and MPRE to evaluate the competency of graduates of ABA-accredited law schools, but a person cannot take one National examination and obtain an attofney license to practice anywhere? What an obstacle for the ability to maximize the ability to repay enormous amounts of student loans, move to take care of an elderly parent, or flee Hurricane disasters. And while availing themselves of the ABA-accreditation and NCBE National MBE and MPRE exams, we hear the States complain about "state rights" to regulate bar admissions due to the need to ensure those they license understand the vagaries of each individual state's laws?

And then, of course, we have problem after problem of iindividuals state license who turn out not to perform competently. Maybe this is because of the entire runaway structure of the big-privatation of standardized exams business? We enrich BarBri, water down ABa-accrreditation standards, and require as licensing criteria only that law school grads can pass a standardized multiple chooice or essay test that is WAY different that how an attorney prepares open-book style court pleadings?

What are bar examiners not asking open-ended State-specific questions, with access to LEXIS or WESTLAW during the examination, like: Client A's relatives are after his home. His objective is to keep his home. Client A is disabled. Discuss the available options, forums, procedures, and costs for Client A to reach his objective within the attorney ethics rules.

Or, why aren't bar examiners giving an interactive civil procedure/evidence examination that goes something lime this: You are the Plaintiff. Begin and successfully resolve a civil action to maximize the result for Client A. The examinee then enters choice of the first step, forum, and say (e.g.), drafts and files a complaint. Oops, examinee forgot to allege all elements of negligence, and computer responds with motion to dismiss. Etc. By this method, an examinee's competence level to perform the essential functions of a licensed lawyer would be accurately tested. Lost 25% for failure to stae a claim, but all is not lost. Enter motion for leave to file amended complaint and fix the error. Now complaint states a cause of action. See? now the wheat woudl be separated from the chaff, those who can teach to the test from those who are really comptent to perform the essential functions.

But wait, what if a person wants to be a transactional attorney, not a litigator? Then the bar examiners should permit selection of licensure options. this also suggests the entire idea of board specialization is exclusionary, serves to restrain trade, and fixes fees for lawyers holding a board specilization. Why is it a person examining for initial licensure cannot select options for admiralty or criminal certification to demonstrate an extra level of comptetence? Surely if a person right out of law school can pass an appellate board specilization examination testing the essential functions for that, why shoudl the person have to wait five years to even sit for that test?

No, the entire structural approach to attorney licensure, intelligence, and who is competent to do what legal job is mismatched with tests that mismeasure and perpetuate certain groups heirarchies at the expense of subjugating others, and really have nothing to do with measuring competence to perform essential functions of specific legal positions.

The question I want to know, is why is everyone so resistant to changing this inaccurate, mismatched system? Do we really care about merit and competence? Or is it just who you know, your rank, and your gender, race, or disability?
7.10.2006 6:19pm
Mary Katherine Day-Petrano (mail):
"test scores on ALL mental ability tests are POSITIVELY correlated, a phenomenon called positive manifold (which, by implication, means that people who do well on verbal tests also do well on math tests); mental ability really does have moderate to high correlations with real world achievements"

And women are ... stupid? So we are not supposed to know that correlation means only that, correlations, but does not mean there is causation? Good try. You have not proven your point, which is ... ???
7.10.2006 6:25pm
Mary Katherine Day-Petrano (mail):
"All widely-used and validated mental ability tests (Wonderlic) pass this test."

And this is the justification for the American Psyhcological Association's involvement in designing bar examinations -- specifically to weed out and exclude those with mental disabilities irratiobally feared as too dfective to be lawyers and Supreme Court law clerks?
7.10.2006 6:29pm
Mike BUSL07 (mail) (www):

And women are ... stupid? So we are not supposed to know that correlation means only that, correlations, but does not mean there is causation? Good try. You have not proven your point, which is ... ???

"Correlation" is a term of art, Mary, one I'm surprised to find you unfamiliar with. Wiki it, (I'm too lazy to explain).

Women are certainly not stupid - not any more so than all people are stupid, (which we overwhelmingly are).
7.10.2006 6:35pm
Bob Loblaw (www):
Thread-jack by Mary = this thread has jumped the shark. It's getting old.
7.10.2006 6:39pm
lyarbrou (mail):
If a very high degree of verbal ability is one of the primary requisites to be a supreme court clerk then one might expect that there would be more women than men, if this was the deciding factor. David Lubinski and his coworkers published a study in 2001 in the Journal of Applied Psychology entitled:

"Top 1 in 10,000: a 10 year follow-up of the profoundly gifted"

The 320 participants were identified on the basis of their performance on SAT exams before age 13 and had estimated IQs of over 180.

Ethnic makeup was:

Caucasians 78%
Asians 20%
other 2%

They were sorted into three groups:

High Verbal (42 female, 32 male)
High Math (169 male, 16 female)
Balanced (high verbal and high math) (53 male, 9 female)

One post raised the possibility of group differences in IQ. Henry Harpending, an anthropologist at Utah and his colleagues recently published a paper discussing the evolution of IQ among the Ashkenazi (The Natural History of Ashkenazi Intelligence). It is a very thought provoking paper and well worth reading. It is available at:

http://harpend.dsl.xmission.com/Documents/

lyarbrou
7.10.2006 6:54pm
Christopher Cooke (mail):
I think the answer as to why there are fewer female SCOTUS clerks than male law clerks is initially explained the fact that there are fewer female clerks than male clerks at the "feeder" circuit courts. As to why the feeder circuits have fewer female than male clerks, Another Clerk's explanation seems the most plausible. I would also not be surprised if some male bias against hiring female clerks caused some of the discrepancy, but I also would not be surprised if such bias only explained a small part of the discrepancy.

I very much doubt the "bell curve" explanation posited by Professor Volokh--that there are more male "geniuses" than female "geniuses" and this fact may contribute to the disparity, even assuming the "bell curve" findings are true (I have doubts that they are, but let's put them aside). He is assuming that most SCOTUS clerks are "geniuses," as opposed to people who simply worked very hard in law school and achieved success, and I for one do not believe his assumption is necessarily true. Most people I knew who were SCOTUS clerks were much more academically driven and ambitious than their peers, which is why they did well in law school and got these clerkships. They did not strike me as "geniuses" but maybe I have a very high standard for a genius. Also, he is assuming that the Supreme Court justices prefer hiring "geniuses" over non-geniuses, and I am not sure that is true, either.
7.10.2006 6:54pm
DClawer:
Mary:

Another example of why your argument is nonsense: person who is autistic cannot place information into written format by manually keyboarding due to both cognitive limitations and physical conditions. Autistic person is entitled to "equipment and devices" to equalize her condition in comparison to a non-dsiabled person's condition, i.e., speech recognition software and extra time. Somehow you just don't get it.



Umm...I'm not sure that "extra time" is a reasonable accomodation at the level(s) of competition we're talking about. Perhaps those who find it difficult to "place information into written format" will simply work longer hours, but that might be difficult when even those of us who normally aren't called inarticulate or unintelligent (at least not to our faces) struggle to meet deadlines in clerkships and big-firm practice. In fact, in my experience, the ability to concentrate for long periods and occasionally function on limited sleep are the most important components of success. This has nothing to do with intelligence, but it might be an indicator that "extra time" in completing real-world legal assignments wouldn't be an "accomodation", it would be an "impossibility."
7.10.2006 7:28pm
Mary Katherine Day-Petrano (mail):
"'Correlation' is a term of art, Mary, one I'm surprised to find you unfamiliar with."

Correlation simply means one thing is correlated (occurs with) another. It does not mean the one thing causes or is caused by the other. So the fact something is correlated with another only has limited informational value.
7.10.2006 7:40pm
lol:
I'd be delighted if people who (unlike me) have actually seriously studied sex-based cognitive differences (or the absence of such differences) could speak to that.

Eugene,

I have to wonder if you (or any of the other conspirators) ever find any of these comments to fall in the category of learned observer. I find most people are just shooting from the hip. And the few that cite empirical data seem to just have googled your question.

Thus, I always sort of chuckle at the optimism that line (or similar) in one of your posts has.
7.10.2006 7:42pm
Mary Katherine Day-Petrano (mail):
Unfortunately, another misconception. "Perhaps those who find it difficult to 'place information into written format' will simply work longer hours." Actually placing stuff into written format using speech recognition software is pretty fast once the software is voice trained, can average appx. 90 wpm equivalent. So I really do not think that should prevent competativeness for a person who uses such accommodation to meet essential functions of a Supreme Court clerk.

The extra time is required to accommodate slow reading and organization. But "the ability to concentrate for long periods and occasionally function on limited sleep" are definitely not one of the limitations of an autistic or learning disabled (unless there is ADHD, which I do not have), nor is the willingness to work hard to finish the reading.

However, the idea that deadlines do not have to be reasonably modified by law firms and courts has been rejected by Congress in enacting the ADA as well as a number of federal courts by promulgating Communications Disabilities Acts for their districts. I believe there is a good law review article about how this deadline modification (extra time) anti-discrimination requirement can actually advantage, rather than disadvantage, big law firms. So it is another one of those stereotypical prejudices that have no place in the legal professio to think this anti-discrimination requirement is an "impossibility."

As for clerkships, I surely can imagine certain fedral judges snapping their fingers, barking, and biting to move things along with their overburdened case loads, but really, are you suggesting that a Supreme Court that is cutting down on the number of cases they are taking has some clerkship overload that would prevent a disabled person from being able to perform the essential functions? I could buy it, maybe, if you were talking about a district court, but not the Supreme Court's extremely truncated current case load.

Of course, If I were a lawyer, I would not be running out to sign up for criminal speedy trial cases without a lot of legal support staff, I do know my limits. But it is just in appropriate irrational fear of "what if ...." that has no place in a egal profession that prodes itself on diversity to suggest it would be "impossible" for disabled people to competently perform a Supreme Court clerkship.

How absurd.
7.10.2006 8:01pm
byomtov (mail):
Charlie (Colorado),

I don't understand what you are upset about. My statement was simple enough. If clerks don't come from the very high end of the distribution then the variance argument is invalid. And I am not convinced they are rare geniuses, so I am dubious of the idea.

Christopher Cooke makes the same point at 5:54.
7.10.2006 8:03pm
Jim Copland (www):
Just to add a fact to the discussion, which is generally very interesting. When I was at Yale Law School, the percentage of females admitted to the school had dropped fairly suddenly--from almost 50% of the class to around 40%. Needless to say, there was significant discussion/protest. What emerged, in an official study authorized by Dean Kronman, was that women were actually being admitted at a higher rate than men at each LSAT range. But after the LSAT had been changed from a 48-point scale to a 180-point scale, the upper end of the testing distribution was substantially stretched out, and men outperformed women at each LSAT range, more noticably at the top. Because Yale follows a very decentralized admission system--professors independently assess applications that aren't pre-weeded--professors were, understandably, taking these variations into account on average. Nowadays, the numbers have returned closer to parity, presumably because professors give women a slight "bump" in assessing LSAT scores, as they do for some ethnic minorities.

But normalizing the percentage of women in the class won't normalize the very top performers. If in fact LSAT scores correlate with law school grade performance (since Yale doesn't rank, there's no way for me to know vis-a-vis Yale, but I think that we'd generally find that LSAT scores do correlate with grades), then the fact that men make up a significantly higher percentage of LSAT scorers in the 175-180 range could well be an explanatory factor as to why men constitute a significantly higher percentage of Supreme Court clerks.

I doubt seriously whether Yale's experience is unique; I'd bet most top students apply to Yale, and indeed, the data linked above showing that males have a higher mean and standard deviation in every year for LSAT results suggests strongly that there could be a disproportionate result in the tail. We needn't assume in any respect that "geniuses" go to law school rather than other professions to believe the following: Supreme Court clerks are predictably drawn from individuals with LSATs in the range of 175-180, who are disproportionately male, so we would expect that Supreme Court clerks would be disproportionately male.

A few important qualifications. (1) I totally agree with the commenters suggesting that marriage and other gender-influenced relationship issues are a significant explanatory factor in explaining Supreme Court clerk hirings, perhaps moreso than LSAT gaps. (2) To determine that the LSAT gap data is a significant explanatory factor in clerkship hiring, we need not know whether the gap is due to genetic or cultural reasons. (3) Being a genius with great grades is hardly the only factor determining who gets a Supreme Court clerkship, though it is highly likely to generate interviews. See, e.g., Akhil Amar. (4) Noting that this gap likely helps to explain Supreme Court clerkship hiring doesn't defend that hiring (or, as others have noted, current law school grading). I for one think Justices would be well served to hire clerks several years out of school, with legal experience. Such a "one-year hiatus" position could still be very valuable to top lawyers, and would be a lot better in my view than getting geniuses straight out of the ivory tower.
7.10.2006 8:04pm
Mary Katherine Day-Petrano (mail):
"I find most people are just shooting from the hip."

I think this really discounts the very good point made by Another Clerk:

"Notably, to the best of my recollection, all of the men who had children while clerking had stay-at-home wives. (There may have been one or two moms who worked outside the home, but I can't remember any.) Third, ditto for doing the things in law school that would give one the necessary credentials to be a USSC clerk. (By ditto I mean that fathers were among those who achieved those credentials, again many with stay-at-home wives, but most women I knew who were mothers (many of whom were plenty smart) opted out of the competition.) Let me add that while clerking, many of my female friends and I were keenly aware of these disparities and of the ticking of our biological clocks. (Not all law clerks are 25.) Nor are these disparities unique to USSC law clerks or high performing law students. They are replicated in many other professional settings."

While I was talking about people with disabilities, I did not disagree with this valid point about how the deck is stacked against women by men, unequally. This same phenomenon definitely impacted grade measurements where I went to law school, and I have personally been rejected for some good positions by the assumtipn I would "Mommy track" out. I can only imagine I might have topped my law school class if only I had a house husband to do everything for me for four years so I could just devote my time to study and exam prep.

Perhaps on this point, preferences shoudl be given to higher amounts of financial aid awards to women so they can afford house-husband help, and men's financial aid shoudl be reduced since they have unused available capacity to both have house wives and to do additional non-academic work while in law school. Might this not be a way to equalize opportunities in the legal profession for women vs. men?
7.10.2006 8:10pm
Truth Seeker:
Please name for me each and every mentally disabled, learning disabled, and autistic clerk to Supreme Court Justices since the institution's inception. Bet there are none.

And name for me every blind brain surgeon and every dwarf basketball player and every deaf orchestra conductor. The world of Harrison Bergeron.

The question is, do we as a society want to have the best qualified person for every job or do we want to lower the standards for everything so anyone can have any job recardless of ability, skills or qualifications?
7.11.2006 1:07am
Hans Gruber (www):
I don't think the law is like physics or mathematics, where the highest IQ folks dominate decisively (in these areas it's clear that the distribution Eugene describes makes a big difference).

To excel in the law, one probably needs a base IQ of around 130 or so. After that other characteristics become more important, like writing ability and dedication.
7.11.2006 1:08am
J.B.:
Fantastic discussion from almost everyone. I have to ask though, does anyone else find Mary Katherine Day-Petrano's views incredibly weird and dysfunctional? She challenges us to "name for me each and every mentally disabled, learning disabled, and autistic clerk to Supreme Court Justices since the institution's inception. Bet there are none." And she repeatedly scolds the Court for passively screening out autistic applicants.

The DSM lists these among typical symptoms of an autistic person:

—failure to develop peer relationships appropriate to developmental level

—delay in, or total lack of, the development of spoken language (not accompanied by an attempt to compensate through alternative modes of communication such as gesture or mime)

—in individuals with adequate speech, marked impairment in the ability to initiate or sustain a conversation with others

—apparently inflexible adherence to specific, nonfunctional routines or rituals

These all seem like pretty straightforward, and fatal, impairments to the tasks of a Supreme Court clerk, regardless of accomodations. By MKD-P's own reckoning, autistic people often need "extra time." But I imagine that serving as brief-writing, cert-screening, justice-politicking executive assistant to the heads of the Judiciary Branch of the U.S. government doesn't allow much "extra time" for anyone.

I don't know if the VC blog often experiences "flaming" or "flame-baiting," but MKD-P's views are so absurdly and fervently expressed, I'd expect her posts to be labeled as insincere bids for attention on another forum.
7.11.2006 2:02am
Witness (mail):
I had the same reaction as J.B. - that some of this stuff spewed out by MKD-P couldn't possibly be for real. And then I googled her name. While it turns out that she's a pretty prolific "flamebaiter" - both on-line and in the courts - she appears, unfortunately, to be for real.
7.11.2006 2:56am
Daryl Herbert (www):
1 - IQ is real and valid. People generally score consistently across different intelligence tests, and it does measure something important. And the LSAT is such a test that measures IQ.

2 - Ann didn't challenge that IQ is real and valid, she erected a friendly straw-man that some people don't believe it:

Ann says on her vlog at about 2:45: "even if you believe IQ tests, and obviously people challenge IQ tests, but even if you believe IQ tests..."

If this is indeed a battle of "wills," "will" she stand behind the arguments she relies on? She found a way to weasel out of admitting that IQ matters without taking a solid stand that could be attacked head-on.

3 - The "idiots and geniuses" phenomenon is real and valid. You don't have to accept that IQ scores are meaningful in order to accept that Dr. Volokh's description of the statistics is correct. Even a belief that IQ doesn't matter doesn't change the fact that men have more of the highest scorers.

4 - You don't have to believe that women's (current) lesser membership in the highest eschelons of IQ is necessarily biological in nature, but you still must recognize it as a fact (or dispute the fact, but you can't sidestep it).

5 - There's a very, very simple way to take into account Ann's criticism that we need to look at who pursues law: There are more men than women at Harvard Law School.
According to HLS, it's got 46% women. 54 divided by 46 is 1.17, which is almost 1.2, so it's almost exactly the number given by Dr. Volokh needed to explain 1/5 of the phenomenon. And that treats all HLS students as equals, ignoring their LSAT scores once they are in, as if their LSAT scores ceased to matter!
7.11.2006 6:12am
Yangon (mail):
Here's the citation "Well, Sure" sought for X dilution: Robert Lehrke, "Sex Linkage and Intelligence: The X-Factor."
You may also be interested in an explicit linkage I once made of male variability with law school performance in: http://darwin.baruch.cuny.edu/faculty/guyot. It begins with one of the pioneer women at Wisconsin Law, which should interest Prof. Althouse.
7.11.2006 6:20am
Daryl Herbert (www):
If a very high degree of verbal ability is one of the primary requisites to be a supreme court clerk then one might expect that there would be more women than men, if this was the deciding factor. David Lubinski and his coworkers published a study in 2001 in the Journal of Applied Psychology...

High Verbal (42 female, 32 male)
High Math (169 male, 16 female)
Balanced (high verbal and high math) (53 male, 9 female)


42 + 9 is less than 32 + 53

A lot less.

Why discriminate against those who are good at math? Logic (math) is at the heart of complicated legal reasoning, though I certainly wouldn't dismiss the importance of verbal skills.
7.11.2006 6:30am
Daryl Herbert (www):
the lsat isnt a terribly good place to look for an idiot-genius effect. those who take the test are all college graduates or about to be. "idiots" probably never take the test.

Your argument fails! We can ignore the idiot half of the equation and still verify the genius half (which is all we're interested in, anyway, insofar as Supreme Court clerks are concerned!)
7.11.2006 6:43am
logicnazi (mail) (www):
Look people as has already been pointed out there are sound scientific studies that show men have a higher deviation on IQ tests and perhaps cognitive ability more generally. This by itself might not be that suggestive but since we have good theoretical reasons to suspect that evolution favors a more 'risky' strategy for men than women this is highly suggestive.

A man who is doesn't have that great genes is simply far more likely to totally 'crap out' in terms of offspring than women while a man who has better than average genes is far more likely to hit an evolutionary jackpot (sleeping with many women) than an above average woman. This will tend to make the expectation greater for a man who has a greater variation than one who plays it safe (and indeed it does seem that men are more risk taking than women as one would expect as well).

In any other species we would take these two facts together as very suggestive. Now it is still possible that the effect is from something else in humans but the burden is now clearly on those who dispute this to come up with plausible alternative hypothesises and while these are easy to come up with for differences in the average they are more tough to come up with for a difference in the variation.

Also I did a great deal of reading after the whole Summers thing and while the difference in deviation between men and women isn't universally accepted it was taken seriously in a very large body of academic research on the subject (though it isn't large enough to create the observered differences in the sciences).

All Prof. Volokh's placing this first shows is that it is an issue of controversy and hence the first thing that comes to mind nothing else. If the people here are going to go nuts about all the supposed liberal irrationality and PCness then at least start with some of the more transparent effects to control the discussion. It is quite clear that other explanations with similar levels of support listed first wouldn't have recieved such a harsh reaction. If Volokh had listed cultural effects in early childhood or other supposed cultural contenders, many of which have even less supporting evidence than this (partial) explanation no one would have paid it any heed.

Unfortunatly just making tons of disclaimers and careful wording for one explanation and not others has a pernecious effect on what explanations are advanced and how we evaluate their truth. This difference in treatment creates a clear conversational bias against one explanation over and above any evidence or argument against it. At worst the criticism should be no worse than any other initially plausible but ultimately unproven explanation. Anything more is an attempt to slight scientific explanations we don't want to be true.
7.11.2006 7:36am
Onlooker:
In running some searches on this topic, I've found what purports to be a rigorous, data-driven mathematical analysis of hiring dispairities in high-end science faculty hiring:



Given the resemblance of this discussion to the one generated by L'Affaire Summers, I thought it might be of interest to those readers who can follow the math (which I admittedly can't).

http://www.lagriffedulion.f2s.com/math.htm
7.11.2006 9:22am
TC (mail):
Priceless and telling:


I can only imagine I might have topped my law school class if only I had a house husband to do everything for me for four years so I could just devote my time to study and exam prep.

Perhaps on this point, preferences shoudl be given to higher amounts of financial aid awards to women so they can afford house-husband help, and men's financial aid shoudl be reduced since they have unused available capacity to both have house wives and to do additional non-academic work while in law school. Might this not be a way to equalize opportunities in the legal profession for women vs. men?

7.11.2006 9:28am
A.C.:
This discussion may be tapering off, but all this discussion about autistic law clerks made me think of something new. I didn't meet anyone with serious autism in law school, but I did meet several people who made me think of Asperger's Syndrome. They were very smart and incredibly focused on weird details -- the kind of people who could tell you everything about the footnotes on page 437 but who didn't understand what was happening in front of their faces. They were just like the stereotype of the ultimate science nerd, except in law. And most were female.

So how about this notion... some very smart people are so bizarre socially that they don't get the kind of jobs that require political skills (or much human interaction at all). A fair number of men with these traits end up in scientific fields. Fewer women go into science, though, so women in this category are more likely to turn up in law school. This would get you a category of women who are qualified for Supreme Court clerkships but somehow can't get through the process that leads to them.

Or maybe women just want to earn more money at the start of their careers, perhaps so they can downshift when they have children. Clerkships are a major financial hit as well as a big time commitment.
7.11.2006 10:05am
Daryl Herbert (www):
Charlie said: "You lawyers argue in the hypothetical all the time; you should be abloe to cope with this"

Do you really think Ann is experiencing a failure to cope? Or is she just making cynical choices about how to argue a losing position?

Mary said: "And women are ... stupid? So we are not supposed to know that correlation means only that, correlations, but does not mean there is causation? Good try. You have not proven your point, which is ... ???"

This is a great technique for arguing: if anyone uses the word "correlation," for any reason whatsoever, click your heels, look them squarely in the eye, and say "aha! any idiot knows that correlation does not imply causation!" Act like you've made a point and hope the audience falls for it. It works best when you don't understand why you're stupid for saying it, because then you don't have to fake sincere outrage.

Data said: "Although men do (slightly) better than women on all scoring levels of the LSAT, there isn't really much of an idiot-genius effect; see the chart on page 12 of this document."

I would encourage readers to click through the chart and count for yourselves (it's the 16th PDF page, with the number 12 on it). It looks like men have at least a 50% advantage at the high end of the bell curve. That's not much of an effect? Please.

Data said: "See the chart above; the bell curves for men and women are nearly identical in shape"

The bell curves both look like bell curves. There's a shocker. Read the chart. It supports Eugene 100%. What did you expect, a wart on the genius end for males, where the curve goes back up to make room for all of the geniuses?

AJK said: "It is just as intellectually dishonest to ignore other possible causes of the disparity as it is to ignore the possibility of cognitive differences, yet I don't sense the same rush to explore and document those other potential causes here."

Eugene offered this as one possible, partial explanation. The reply he received was that his suggestion was impossible or otherwise false. To refute that, one shows that it is in fact possible, that there is evidence for it, that it could be an answer. Talking about cultural differences is going off-topic.

We're trying to have a grown-up discussion, and part of what that entails is dealing with issues one-by-one. There is one way to "win" and two other ways to end the discussion. You can win by putting forth a good argument for why what Dr. Volokh said cannot be true, cannot explain anything, has zero explanatory power.

If you can't do that, you can admit that Dr. Volokh is right. Or, you don't have to admit that he's right. Just admit that you can't come up with an argument that refutes his theory. That's good enough. Do that much, and we can all move on.

If people were actually interested in moving the discussion forward, that's where we'd be right now. We could be discussing other interesting theories of why there are more male clerks, such as women's reluctance to relocate, women's aversion to wanting to be someone's secretary (that's what Ann Althouse suggested), judges' sexism, etc.

We don't have to surrender Dr. Volokh's theory just because you'd rather talk about something else! And we are most certainly not "intellectually dishonest" because we're staying on-topic to defend a theory that has been attacked, meritlessly.

In every single mention of the word cultural, so far on this thread, the issue being discussed is whether cultural factors could or could not account for the idiot-genius effect. NO ONE here has been so stupid as to argue that cultural factors could not account for some of the disparities in the proportions of Supreme Court clerks!
7.11.2006 10:22am
Mike BUSL07 (mail) (www):
Daryl, that's-uh nice fisking to get the day going, thank you.
7.11.2006 10:41am
Hans Gruber (www):
Ann Althouse wrote:

"It's a touchy subject. And just to underline my point: though you have to be very smart to make it to Supreme Court clerk, the behavioral element is big and the biggest geniuses probably don't go into law."

Bingo.
7.11.2006 11:54am
Bruce Hayden (mail) (www):
I think that Eugene's point that this discrepancy may be caused by a multiplication of effects is most likely correct. I think that at some point, he points out that (1.2)↑5≈2.5 (I am not sure how this equation came out everywhere - my intent here is to point out that 20% (1.2) to the fifth power is approximately equal to 2.5). This means that if you have five factors that each advantage men by 20%, the result could be a 2½ times (250%) cumulative effect.

I find it quite plausible that the greater standard deviation for male IQs may indeed account for one of these 20% factors. Some of the plausible cumulative factors that I think may affect the result are:
- Aforementioned greater standard deviation of male IQs
- Social requirements of gender roles, in particular, that women tend to have less flexibility in moving to take jobs. This may also have some afffect on class rank (I am reminded of one of the top woman in my LC class who was stuck with the kids at social events - indicating that she was most likely still saddled with a lot of the typically female duties in her family, despite the demands of law school).
- Somewhat greater ability of women to balance their lives, while men are somewhat more likely to concentrate on one thing. This most likely has some affect on class rank.
- Men also seem more likely to make the sacrifices for their careers such as a SCOTUS clerkship.
- Slightly different career objectives (on average) between men and women.
- Due to life tenure, appeals judges are still predominently male, and judges have some tendancy towards hiring those they feel more comfortable with.

The depressing thing, if you are trying to alleviate this situation, is that if this theory is correct, the only place where it is likely that there will be significant changes is in the predominence of male judges at the appeals level. Gender roles may change somewhat over time, but any change is likely to be slow.
7.11.2006 11:55am
Data (mail):
The bell curves both look like bell curves. There's a shocker. Read the chart. It supports Eugene 100%. What did you expect, a wart on the genius end for males, where the curve goes back up to make room for all of the geniuses?


Of course not, but the point is that you would expect longer tails on the male bell curve if men were more variable on LSAT performance, which they're not (at least not by any substantial degree). It's a somewhat trivial point, I admit, because it is a fact that men who take the LSAT do slightly better than women on the LSAT, including at the higher score ranges, so Eugene's general point (that there may be a larger pool of highly talented men in law school) still stands. But the greater male success at the higher score ranges is not substantially a result of greater variability in LSAT performance.
7.11.2006 2:24pm
Christopher Cooke (mail):
Very coincidentally, there was an interview on my local PBS affiliate this morning on the "Gender Divide in Higher Education."

Here is the description of the show:

The Gender Divide in Academic Achievement -- Forum discusses the gender divide in academic achievement at the college level. Guests include: Jacqueline King, director of the American Council on Education's Center for Policy Analysis and co-author of the report "Gender Equity in Higher Education"; Sara Mead, senior policy analyst for Education Sector, a non-profit education think tank, and author of the organization's report on male and female performance in grade school and higher education; and Linda Sax, associate professor at UCLA's Graduate School of Education and Information Studies.

The gist of the show was on the gender differences in educational development and accomplishments that recent research has uncovered, here more along the lines of "why are women getting better college grades than boys" and "why are there more women in college than men."

Professor Volokh, you might want to pose your question to Ms. Sax at UCLA's Graduate School of Education, who is an expert on this subject.
7.11.2006 3:54pm
snark:
I have met Supreme clerks who, in lacking all common sense, are morons.
7.12.2006 1:39am
Mary Katherine Day-Petrano (mail):
"Please name for me each and every mentally disabled, learning disabled, and autistic clerk to Supreme Court Justices since the institution's inception. Bet there are none.

And name for me every blind brain surgeon and every dwarf basketball player and every deaf orchestra conductor. The world of Harrison Bergeron.

The question is, do we as a society want to have the best qualified person for every job or do we want to lower the standards for everything so anyone can have any job recardless of ability, skills or qualifications?"

What makes you think an autistic J.D./M.B.A. is not qualified to be an extremely competent Supreme Court clerk?

Facts, please.

And if you can give none, I challenge any one of the Justices to see for themselves.
7.12.2006 2:52pm
Mary Katherine Day-Petrano (mail):
"But I imagine that serving as brief-writing, cert-screening, justice-politicking executive assistant to the heads of the Judiciary Branch of the U.S. government doesn't allow much "extra time" for anyone."

Not proven. A more accurate argument would have considered the size of the case load the Supreme Court takes, as well as the fact the Supreme Court has available other positions, such as fellows, to asist the justice-politicking aspects -- e.g., to the Judicial Conference. The argument fails as taken out of context, and for making many assumpsions without the factual basis to support it.

Just goes to show hot hated autistics are by the mainstream.
7.12.2006 2:58pm
Mary Katherine Day-Petrano (mail):
"This is a great technique for arguing: if anyone uses the word "correlation," for any reason whatsoever, click your heels, look them squarely in the eye, and say "aha! any idiot knows that correlation does not imply causation!" Act like you've made a point and hope the audience falls for it. It works best when you don't understand why you're stupid for saying it, because then you don't have to fake sincere outrage."

Funny, this more closely describes the technique followed by the counsel who put on the perjury in The Vessel Mistress case (M.D.Fla. on PACER) -- no sincerity, no outrage, and -- isn't it more fun to flame autistics who complain about unfairness, inequality, and injustice in the legal profession?

"Anything more is an attempt to slight scientific explanations we don't want to be true."
7.12.2006 4:08pm
logicnazi (mail) (www):
To clarify my position I don't think that the difference in the standard deviation of IQ is a significant factor in the ratio between male and female clerks. This effect is fairly small and I tend to find Althouse's argument that supreme court clerks aren't selected to be at the very extreme end of intelligence to be compelling. However, it isn't a priori unreasonable to consider this possibility and Prof. Volokh's consideration of it should provoke no more outcry than any other explanation we might ultimately deem to be insignificant/nonexistent.

As for this notion that the people claiming a genetic/inherent (most research seems to suggest genetically influenced factors during pregnancy) explanation have a higher burden of proof I disagree wholeheartedly. Yes, similar explanations have often been offered in the past to justify discrimination and this justifies skepticism of such arguments made purely from authority. However, this is a very different thing from increasing the burden of proof. Luckily we don't have to rely only on arguments from authority or just a priori arguments but have carefully conducted professional studies which, unlike the 'science' that claimed to prove racial superiority in the past, considers the best alternative explanations and is subject to very vocal criticism from people who object to any hint of inherit sex differences. Besides it is undeniable that there are many people who have a strong psychological investment in the absence of inherent differences so any incentive to overstate the case cuts both ways.

Sure if we are considering what is best to tell people it is quite possible that it pays to err on the side of a natural explanation. Arguably telling people that there are inherent differences has troubling effects. However, if this conversation is interested in the truth of the claims then our confidence in some explanation should (obviously) be in direct proportion to the total evidence for it (subtracting evidence against it).

Finally, to make a point I raised in the other threat again I agree that it is harder for a woman who wants to have children and raise them to compete in demanding careers than it is for men who have wives to raise children for them.
However, having children is a choice and this is no more of an argument for business accommodation of childrearing than the greater male interest in going out at night to strip clubs and getting trashed is an argument for business to accommodate hangovers. Of course unlike drinking at strip clubs men (at least those who like families) receive a benefit if their wives sacrifice careers to raise the children. But this is an exchange between husband and wife and if you gave something up as part of a fair exchange it can't suddenly become someone else's responsibility to compensate you for what you gave up.

In short there is only one place we can look for unfairness in the situation where more women give up careers to raise families, namely in the agreement between man and wife. Either your husband is taking advantage of you by not sufficently compensating you for the sacrifices you are making, a situation which should be remidied by direct social change not by forcing non-childrearers to support your hobby, or he isn't and the career sacrifice you made is adequately compensated so their is no discrimination.
7.13.2006 1:16am