Demographics and Legal Academic Reputation:
A lot of interesting things have been said about the gender makeup of Federalist Society events. But there's something much more complicated going on here, I think, than just the demographic makeup of Federalist Society regulars, or for that matter anything else that's specific to the Federalist Society. It may also be much more interesting — and possibly more troubling, depending on what you think the cause might be, and what causes along these lines you find troubling.
1. Most-cited law professors: Let's say that instead of going to a Federalist Society conference on Judge Bork (which had 19 panelists), you wanted to organize your own all-star conference with 19 law professors. And, wanting a proxy for scholarly reputation, you invited the 19 most-cited full-time law professors. (This is a highly imperfect proxy, but it's probably the most objective one we can use for this thought experiment. Note also that citation counts are for citations by law review articles, not by courts; that's just the data I happen to have.) How many women would there be at this conference?
Fortunately, Brian Leiter's 2002 most cited law faculty rankings give us an answer — one that's some years out of date, but that I suspect wouldn't differ much today. The answer is that 1 of the 19 panelists would be women; 18 of the 19 most-cited law professors (all but #15) would be men.
Of course, there's an obvious problem with that sample — most of the most-cited professors are in their 50s and 60s; when they were going to law school, there were few women in law school, and few women going into law teaching. For a better sense of the coming pattern (though not necessarily for a much better sense of what we might expect from conference invitations), we should be looking at a younger cohort. Let's avoid the gender imbalances caused by past gender imbalances in law school attendance by just inviting the 19 most-cited younger law professors, for instance ones who entered teaching since 1992 — conveniently, the result of another survey by Brian Leiter. And indeed this panel will not be 18/19th male.
It would be 100% male. Indeed, of the 50 younger scholars on Brian Leiter's list, only 6 (starting with #23) are women. Of all the cites to articles by those 50 scholars, only 8.7% are to articles by women. (See my spreadsheet based on the Leiter data.)
Again, I stress that citation counts are a very rough proxy for reputation, and they are biased among other things in favor of fields in which many articles are written. Within certain fields, the gender breakdown of the most-cited scholars may be quite different. And of course there are many women whose work has been heavily cited; the most cited active faculty colleague of mine at UCLA is Kimberle Crenshaw.
Still, the overall pattern of the data seems quite consistent, hard to dismiss as simply random or arbitrary, and thus quite striking. It also suggests that to the extent conference invitations are based in large measure on reputation, then if reputation is closely correlated with citation counts, it would be quite logical to see a lot of heavily male conferences.
2. Possible causes? Why, though, would this be? Women are 35% of all law professors, including 25% of all full professors. Women routinely graduate with top credentials from law schools; about 20-30% of Supreme Court clerks tend to be women. Why aren't we seeing 25-35% women among the top 20 most cited scholars?
Is it that scholars (whether just men or both men and women) are subconsciously or deliberately ignoring women's scholarship? Is it that women authors are being unfairly turned away by top journals? Is it that women are writing less, perhaps because they spend more time caring for kids? If so, how much of that is because the children's fathers refuse to do their fair share of the work, and how much of that is because the mothers value time with children more than the fathers do (and should the difference between the two causes matter)?
Is it that men tend to on average be more ambitious than women, more self-promoting, or more of whatever else that produces attention (quality-related or otherwise) for scholarly work, whether because of cultural reasons, biological reasons, or some mix of both? Is it that women tend to gravitate towards fields that for some reasons draw fewer citations? Are these effects chiefly present at the ends of the bell curve, or do they persist in considerable measure even further into the body of the bell curve?
These are difficult questions to answer, and perhaps even to ask — but they need to be asked if we want to think really hard about why we're seeing stark sex disparities in a wide range of legal academic contexts, from Federalist Society panels on.
3. Race and ethnicity: If you thought the sex picture was hard to explain, try this: If you look at the same top 50 most-cited who entered law teaching since 1992, you also see that (by my rough count, and judging by likely ethnicity, not by religiosity) 19 are Jews, a group that makes up 2% of the full-time working population. Part of this is the wild overrepresentation of Jews generally among the legal professoriate, a number that itself is hard to explain — Jim Lindgren's tentative survey from several years ago reported that 26% of law professors at top 100 law schools were Jews — but the numbers exceed even that.
Another 12 are Asians (meaning East or South Asians), a group that makes up 4% of the full-time working population. If you separate out South Asians (since in many ways it's just zany to lump Indians together with Chinese, or for that matter to lump together Chinese, Koreans, and Japanese), you'll find that 5 of the top 50 are South Asians, though South Asians make up 2/3 of 1% of the population. I don't recall precisely what fraction of the legal academy is Asian, but my recollection is that the fraction is no more than 5%, and thus far less than the 24% (or 10% for South Asians).
What's the reason for this? Subconscious tendencies to overcite certain ethnic groups? Disproportionate cultural distribution of various temperaments? Of attraction for certain kinds of intellectual questions? Beats me.
But look at this also another way: The 94% of the population that is neither Jewish nor Asian accounts for 30% of the total cites to articles written by the top 50 most-cited young scholars. Blacks make up 2 of the 50 spots, but once one excludes the Jews and the Asians, they make up 2 of the remaining 19 spots — a percentage not far different from the black population of the U.S. divided by the total non-Jewish non-Asian population. (The numbers would doubtless differ for the overall list of most-cited professors, not limited to those who entered teaching since 1992, but I take it that the more recent list is a better picture of where the profession is headed, especially as to Asians.) Query then whether the underrepresentation of blacks is underrepresentation of blacks as such or overrepresentation of some tiny minority groups.
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So, there it is. I am most emphatically not making any claims that I know the causes of these patterns. And I'd love to hear others' similar analyses of other datasets. As I mentioned, the most-cited data is hardly the whole picture, and maybe there are even some glitches that undermine the representativeness of this particular set of 50 names collected with certain date cutoffs. I'm trying to ask questions here, not to give answers.
But I also want to suggest that one set of answers, or at least reactions, is misguided: If we're going to wonder about demographic disproportions in reputation-based legal academic contexts — such as conference invitations — it's a mistake to see the Federalist Society as particularly unusual. Our own profession's citation patterns show stunning disproportions that can't be put off to any Federalist-Society-specific practices.
UPDATE: Christine Hurt (Conglomerate Blog) has information on the gender breakdown of professors who publish in the Harvard Law Review.
UPDATE: If you want an even zanier data point to explain, note that of the 6 women in the top 50 most cited scholars who entered the field since 1992, 2 are listed in the AALS Gay, Lesbian & Bisexual Community Law Teachers list (which, to my knowledge, is a means for people to identify their own sexual preference, and not just their scholarly interest area). This suggests that the underrepresentation of heterosexual women is even more striking than one might have at first thought — but that lesbian and bisexual women are overrepresented compared to women generally, and in this particular (small) list overrepresented even compared to their fraction of the overall population . A different sample that is more weighted towards older scholars, the 120 overall most-cited, yields a disparity that is less striking but still quite substantial: of the 19 women, 2 are listed in the AALS Gay, Lesbian & Bisexual Community Law Teachers list. (According to Laumann et al., 4% of women report some same-sex partners since age 18, which I suspect slightly overstates the fraction who would report themselves as lesbian or bisexual; that 4% of women maps out to 2% of the public generally.)