And Here We Thought That Ideological Diversity Is Good Enough:

The Federalist Society general tries very hard to make sure that panels as its conferences represent many different views, and not just those within the Society itself. There may be some exceptions (the tribute to Judge Bork seems to have had fewer liberal speakers than is the norm for us, though I expect that some libertarian speakers, such as the Conspiracy's own Ilya Somin, expressed views that differed markedly from Judge Bork's). But as a general matter, our panels are about as diverse as you're likely to see in the conferences of any ideologically minded organization.

Eric Muller (Is That Legal?) and Mary Dudziak (Legal History Blog) are unsatisfied by this: They fault the Bork conference, and, in Prof. Muller's case, another panel for having no women. I agree that people who care deeply about the sex of the person speaking should probably go to other organizations' events. (Federalist conferences often include quite a few women, but we don't try to provide any sort of sex balance.) On the other hand, people who don't care about the sex of the speakers but care about the substance — including on whether the substance reflects genuine diversity of views — should find Federalist conferences to be quite interesting.

The Federalist Society and All-Male Panels:

Recent criticism of the Federalist Society for hosting some all-male panels and conferences is, as Eugene explains, seriously misguided. As Eugene implies, the main goal for a conference or panel (in addition to quality) should be ideological and viewpoint diversity. Gender, like race and religion, sometimes correlates with ideological orientation and can serve as a crude proxy for it. However, in the case of academic panels and conferences, there is no need to use such a proxy because the views of potential participants can be much more accurately inferred from their previous writings and public statements. For example, I was invited to be on one of the panels at the Bork conference criticized by Eric Muller and Mary Dudziak because, as a libertarian, I strongly disagree with Judge Bork's proposals for government regulation of culture, which were the subject of the panel. The organizers could have relied on the crude proxy that most Russian Jewish immigrants and most atheists are more socially liberal than Bork is. However, they rightly relied instead on my publicly expressed views on the subject, which are a much more accurate indication of my position than my ethnicity, gender, or religious orientation.

A second problem is that it is dangerous to infer an organization's general policies from the composition of one or two individual panels. For example, Professor Dudziak criticizes the Federalist Society for organizing an all-male panel on the Supreme Court's terrorism cases. However, the rival liberal American Constitution Society has also held an all male panel on terrorism jurisprudence. Are they somehow biased against women as well? A more comprehensive analysis of Fed Soc panels would almost certainly reveal that women are represented in rough proportion to their general presence among elite lawyers and legal academics (in both of which groups women are still significantly less than 50% of the relevant population), with probably some additional disparity from the fact that there are proportionately fewer women among conservative and libertarian legal scholars than among liberal and left-wing ones. The latter is partly a function of the fact that women in general are somewhat more liberal than men, and partly a result of the reality that ideological gap between male and female legal academics is considerably greater than in the general public, with female Republicans being the most underrepresented group on law school faculties relative to their proportion of the general population. Although the Federalist Society tries hard to find liberal and left-wing speakers for most of its events, it is logical that conservative and libertarian speakers would be disproportionately represented at events sponsored by what is after all a conservative and libertarian organization.

Finally, Prof. Muller faults the Federalist Society for having a "male President, Senior Vice President, and Executive Vice President." However, Fed Soc Senior Vice President Lee Liberman Otis (one of the founders of the organization) is in fact a woman. The Fed Soc website Muller links to lists not only Otis, but quite a few other women in Fed Soc leadership positions. Many women serve in other prominent Fed Soc roles not listed at that particular site. For example as board members of the Society's practice groups on various issues. It is the practice groups (along with local chapters) that organize most Fed Soc-sponsored events. The Federalism and Separation of Powers Practice Group board has usually had 2-3 female members out of 6 or 7 total during the year that I have been a member of it myself.

Personally, I don't much care how many women are in the Fed Soc leadership (so long as female candidates are considered on the same criteria as men), except in so far as a higher figure might increase the appeal of libertarianism and small government conservatism to women more generally. However, it is wrong to suggest that the Fed Soc somehow excludes women from leadership roles or as panel speakers.

UPDATE: I see that Prof. Muller has acknowledged the error about Otis in an update to his original post. He was, perhaps, misled by her first name ("Lee"), which is more commonly a male name.

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.

* * *

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.)

God Forbid That People Should Look at Demographic Data

(except, of course, when God forbid that people should ignore demographic data): The Feminist Law Professors blog writes:

[TITLE:] Oh for the love of...

Exactly what possessed Eugene Volokh to look into the sexual orientation of female law profs whose scholarship gets cited a lot? See his "update" at end of this post and try to avoid banging your head on the computer monitor.

Hmm — what would possess an academic to look into disproportionate representation by sexual orientation when one is looking at data showing disproportionate representation by sex and ethnicity? Could it be academic curiosity? A desire to find — and then to call attention to — interesting data points that might help shed light on the degree to which personal attributes correlate with professional success, and potentially influence professional success?

Look, let's say the data I give did generalize beyond its very small sample. I stressed that it was quite limited, since it revealed only that 2 of the 6 women law professors on the list of the 50 most cited professors who entered law teaching since 1992 were lesbian or bisexual; at this point, it is at most very tentatively suggestive. But let's say it did lead some readers to look more closely, and find that indeed lesbians and bisexual women are substantially overrepresented among successful women in certain fields.

Wouldn't that be a matter of some scholarly interest? It doesn't matter what one thinks the cause for this disproportion might be: different patterns of discrimination by outsiders, different internal cultural norms within the group, different social and familial structures, biological differences, or whatever else. It doesn't even matter if one is unsure of the cause at the outset, but is just trying to find data that may eventually help identify the cause. Wouldn't the data be pretty interesting to people who are seriously interested in sociology, biology, demography, the legal profession, and a wide range of other fields?

To me, the glory of the academic life is that you're supposed to look for interesting data, bring it up to colleagues, investigate it, speculate about it, and the like. All people should be entitled to do this, but for us this sort of inquisitiveness is part of our jobs. It's too bad that identifying such data leads some to want to bang their heads against their monitors.

More broadly, if you're curious about human behavior — as a scholar or just as a fellow human — isn't there something striking and intriguing about the marked correlations between sexual orientation and participation in various professions? Male homosexuals are notoriously overrepresented in some fields, and while some such claims might at times be spurious, my sense is that on balance conventional wisdom reflects reality. Lesbians are also often said to be overrepresented in other fields (chiefly athletic, in my experience, though not only that); again, some of this may be myth, but I see no reason to assume that it's all myth.

Why is this? Is it culture? The effects of discrimination? Biology? Some mix of these factors? Does it relate only to different rates of interest in the fields, or also to different rates of success? Fascinating questions, it seems to me, and ones that get more fascinating as one acquires more data. So that's what possessed me, and I don't see what's wrong with such possession.

What Fraction of the Population is Gay or Lesbian?

This question comes up every so often, so I thought I'd pass along what seems to be the best data out there -- from Laumann et al., The Social Organization of Sexuality 311 (1994). All numbers are percentages.

1. Sexual partners:

Last year (men / women)Past 5 years (men / women)Since age 18 (men / women)Since puberty (men / women)
No partners10.5 / 13.35.9 / 7.13.8 / 3.43.3 / 2.2
Opposite gender only86.8 / 85.490.0 / 90.791.3 / 92.590.3 / 94.3
Both men and women0.7 / 0.32.1 / 1.44.0 / 3.75.8 / 3.3
Same gender ony2.0 / 1.0 2.0 / 0.80.9 / 0.40.6 / 0.2

2. Sexual identity ("Do you think of yourself as heterosexual, homosexual, bisexual, or something else?"):


3. Sexual attraction ("In general are you sexually attracted to only men, mostly men, both men and women, mostly women, only women?"):

Sexual attractionMenWomen
Only opposite gender93.895.6
Mostly opposite gender2.62.7
Both genders0.60.8
Mostly same gender0.70.6
Only same gender2.40.3

Naturally one has to be cautious about even well-conducted random studies of small sexual minorities, especially when some respondents might lie. Also, note that even though the study tried to be precise in the questions it asked, other studies might not, or might focus on different questions -- whether someone is "gay" or "lesbian" is not unambiguously defined, and the definitions may vary from survey to survey and respondent to respondent. Still, this seems to be the best approximation I've seen.