Some categories of authors, for example women, are underrepresented in law reviews. There is research to support this claim. For example, Cynthia Grant Bowman, Dorothy Roberts & Leonard Rubinowitz have a great discussion of this issue in their article “Race and Gender in the Law Review” (100 Nw. U.L. Rev. 27 (2006)) about the history of underrepresentation of women and minorities in the pages of the Northwestern Law Review. Minna Kotkin also did a multi-journal study in her article “Of Authorship and Audacity: An Empirical Study of Gender Disparity and Privilege in the ‘Top Ten’ Law Reviews (http://ssrn.com/abstract=1140644) that supports this claim.

I also wrote about this issue in my article “From Imperial Scholar to Imperial Student: Minimizing Bias in Article Evaluation by Law Reviews” (From Imperial Scholar to Imperial Student: Minimizing Bias in Article Evaluation by Law Reviews, 20 Hastings Women’s Law Journal 197 (2009), available at http://ssrn.com/abstract=1117764). In this article, I argue that there is systemic bias against ‘dissent scholarship’ and for ‘safe scholarship’ and that this systemic – but not necessarily consciously intentional – bias is one factor that can help explain why women are underrepresented in the pages of law reviews.

This is excerpted from my article:
For example, safe legal scholarship prior to the 1960s and arguably into the 1970s and 1980s conformed to a worldview that developed out of the values, norms, and experiences of the predominantly white, male, heterosexual (or at least not openly homosexual), middle or upper-middle class members of the legal academy. I define dissent scholarship as the expression of disagreement with or rejection of established ideologies or methodologies or both. It is often coupled with the presentation of conceptual alternatives. Safe scholarship and dissent scholarship are not static categories so their substance evolves and changes over time.

Here I should note that I do not assume that a scholar is writing dissent scholarship simply because the author is a woman. However, it does seem likely that women may often be writing dissent scholarship if they write from a perspective that does not stem from a worldview that has being white, male, heterosexual (or at least not openly homosexual), middle or upper-middle class as its starting point.

Assuming that you accept the evidence that there is systemic bias that contributes to the exclusion of scholars from the pages of law reviews based on gender, the question is: Why is there systemic bias?

The following is a block quote from my article:
“The application of the economic theory of network effects, which will be discussed in greater detail in Section III.C., Network Effects, suggests explanations for a systemic bias. First, the more scholars there are who conform to contemporaneous standards for safe scholarship, the more attractive it is for other scholars. Second, the more legal scholars write articles that conform to contemporaneous standards for safe scholarship, the more likely it is that law reviews will continue to value and publish safe scholarship. Third, the more law reviews publish articles that conform to contemporaneous standards for safe scholarship, the more useful it becomes for legal scholars to acquire skills associated with safe scholarship. Fourth, the more scholars acquire the skills associated with safe scholarship, the greater the incentive is for legal scholars to produce scholarship that is compatible with contemporaneous safe scholarship. Fifth, the more safe scholarship is written and published, and the more law students, lawyers, and academics are trained in the ideologies and methodologies of contemporaneous safe scholarship, the more inexorable the conclusion that one”must”adhere to the standards of whatever has achieved the status of safe scholarship at any given time.”

Thank you, Drew, for your comment. My intention with this post was to make the observation, not draw conclusions. I ask, “What’s going on,” because it does seem that women’s representation among contributors to this particular volume 84 is low in proportion to their representation in the academy and in the law school student population. I don’t have enough information to draw conclusions about the reasons that women are not published at the same rate as men in this volume.

To the extent that a similar pattern might be observed across multiple journals at multiple schools (and one could read what Drew refers to as “apocalyptic reports” as single observations), I think it is worthwhile to ask – and to investigate – whether bias of some kind could be at work, whether alone or in conjunction with other factors. The subject merits rigorous study, which I do not claim to have done.

I’m honestly wondering, because if you do not mean to imply bias then it would put to rest the frustration that this blog’s use of statistics out of context inspires in me.

Obviously, my quibble doesn’t change the basic fact of sever underrepresentation, which I think Prof. Crawford captures in her final sentence, and which I agree with.

This post was mentioned on Twitter by FeministLawPrfs: New blog post: Where are the Women? Not in 78% to 88% of NYU Law Review’s Publication Slots http://feministlawprofessors.com/?p=13766...