Sunday, August 26, 2018

Fixing Underrepresentation: Some Reflections on the Lack of Women in Legal Top-Scholar Lists

I haven't posted in a while as the move to Essex from Aarhus was a little more intense than I expected. But the situation of women in law academia deserves a proper post and not just some twitter thoughts, which is what it's been so far.

Yesterday, Oona Hathaway drew my attention to how few women appear on Brian Leiter's annual lists of the most cited US law scholars. I went through the numbers and it was pretty abysmal.

There are no women on the overall most-cited list. In the subject-specific areas, here are the numbers for top-ranked scholars:

Corporate & Securities: 2/10
Commercial: 0/10
Criminal Law & Procedure: 4/20
Public Law: 6/25
Constitutional Law: 1/20
Election Law: 2/10
Law & Economics: 1/15
Law & Social Sciences: 2/15
Law & Philosophy: 2/10
Legal History: 0/10

That's 20/165 slots for top-cited US law academic staff. 12%.

Admittedly, as I based the division a bit on stereotypes about the names, perhaps I missed 1 or 2 more (Michaels & Toms were all assumed to be men).

In response to Oona's tweet, Brian suggested it's not surprising because the lists are dominated by scholars over 60. I wanted to know if this was a solid explanation. It isn't.

I was even more inclusive when compiling numbers for scholars under 60 -- looking not only at top-ranked scholars but also those included in the 'other highly-cited scholars' list. But still, men are out-cited to their female counterparts in disproportionate numbers.

77 of the top 165 slots are held by people 59 years old and younger. Obviously, with no women featuring as top-ranked scholars, there were no women under 60 on the overall top-ranked list. There were, however, 2 men. And, again, the subject-specific areas do not fare much better (this time the second number is the number of slots occupied by people under 60):

Corporate & Securities: 1/5 (20%)
Commercial: 0/7 (0%)
Criminal Law & Procedure: 2/12 (16%)
Public Law: 6/16 (37.5%)
Constitutional Law: 0/3 (0%)
Election Law: 2/8 (25%)
Law & Economics: 1/7 (14%)
Law & Social Sciences: 0/8 (0%)
Law & Philosophy: 1/5 (20%)
Legal History: 0/4 (0%)

In total, there were 12 slots held by women, meaning 15%. The only list in which women appear as more than 1/3 of the top-cited scholars under 60 is in Public Law. And thank goodness for the Public Law scholars because without them it's 7/61, meaning 11%.

These numbers are important and they need to be acknowledged. We cannot afford to go on instinctual reasons like "but it's mostly older scholars, so that's why they're cited." Clearly that's not it.

As I woke up this morning, I was still thinking about these numbers. When I went back to twitter to comment further, I found I was tagged (by the brilliant Carla Ferstman) in a thread raising awareness of female law professors on twitter ('law professors' being used in the US, not UK, sense, to mean those who teach & research on law at Universities). The thread, with the hashtag #WomenAlsoKnowLaw, was started because Nancy Leong asked the legitimate question:

It's not a coincidence - nor is it shocking - that the most cited law scholars in the US and the most followed law scholars on Twitter are men. The question is what causes this and what can we do better in the future. In the next hour (I'm setting a time limit for this so it won't be exhaustive), I'm going to outline what I think are the causes and what we can do differently. Some of this will be old-hat to women in legal academia. Still, we need to keep discussing this until there are changes.

Structural Barriers

There are three structural barriers I want to discuss: (1) the impact of maternity; (2) the impact of student evaluations; and (3) non-promotable tasks.


Maternity is still a hindrance to professional success for women. Women are expected, and sometimes financially required, to stay home with their children after birth. But it doesn't stop there. The cost of child care means that I don't know a single scholar-mother who doesn't research and write in between feedings and diaper changes and football (soccer) matches. I do know scholar-fathers who are able to escape all that, at least for a day a week.

Scholar-mothers are often less likely to travel for longer conferences, whereas scholar-fathers seem to rarely cut their conferences short because they can only leave their spouse and child for 48 hours not 72.

Yet, we expect scholar-mothers to produce at the same rate as others. We treat any lost time as a delay and something to be caught up from. And we don't promote them until they "catch up." We don't say "actually, since you were off work for 12 months we only require X-1 papers for promotion, not X."

With delayed promotions comes delayed prominence, beginning a downward spiral that many women never catch up from.

I don't think this is getting better. While my University has a nursery on campus that is supposed to make things easier, an early career researcher could easily spend half of their take-home salary on nursery tuition. These fees make it harder for scholar-mothers to prioritize in the same way non-mothers do.
(Since this is about research and not teaching, I'll just briefly mention that (1) the nursery operates the same hours as our teaching timetable, so there isn't time to both drop off and pick up children outside of potential teaching hours, and (2) the nursery also requires parents to decide which days they'll send their kids to the nursery around the same time as our draft timetables come out. So before the final timetable is announced, our faculty-parents have to tell the nursery when they'll need it, and they might not be able to change days if their teaching schedule changes.)
Student evaluations

We know student evaluations carry implicit bias. This is not a debate anymore; the only debate is how extensive of a problem it is. We know it affects women, ethnic and racial minorities, persons with disabilities, non-native speakers, and immigrant faculty members.

We know the bias gets worse when it's intersectional, so that an Asian, immigrant, non-native speaking, woman with a disability is likely to be perceived as less competent and less intelligent than I am even if we deliver the same content in the same way.

Age is also a factor here. The younger a woman looks, the less competent she is for students. For men, it doesn't appear that they are ever too young to be competent. Instead, in my experience, the younger a man looks, the more students see this as indicative of his 'rising star' status and of his 'gravitas.'

Male colleagues assume it's not a social or structural barrier. They assume it's about the women themselves because they don't have that issue, and this protects the 'honesty' and purity of the praise that they receive.

This is important to understand because student evaluations remain a factor in promotions. And promotions remain a factor in prominence. Until we find better ways to evaluate teaching -- more time-intensive but more honest ways -- then we will continue to under-value women in the field.

Non-promotable tasks

There should be no such thing as a 'non-promotable task' in higher education. If it's worth someone doing, if it's something we need for the department or the programme to function, it should be promotable. In the UK, that should include non-glamorous admin roles (if I had a pound for every time someone told me to be bad at admin because it's non-promotable, I could afford a nice 4-day weekend off in Paris), and personal tutoring.

Even where these roles are assigned and assigned hours, if often isn't considered essential to promotion, or even a promotable criteria. So what happens when certain members of staff fail to do the non-promotable tasks? They fall on others, usually women and junior members of staff. As a result, women often end up pulling more than their fair share in non-promotable tasks, taking time away from their research, and then ultimately from their citations.

When men refuse to or fail to do tasks that are deemed 'non-promotable,' it essentially steals women's research time and hampers their career.

Sometimes this is in the power of the department to fix, but sometimes it's not (i.e., I'm told students come to women more because they feel more comfortable discussing feelings with women; this is likely the result of implicit biases). But one way in which it can be fixed is to ensure these tasks are part of the promotable criteria. If it's essential for the department to run well, then it's an essential part of our job and needs to be promotable.

Social Barriers

There is just one social barrier I need to address in addition to the social-structural issues above: implicit bias amongst scholars.

Students are not the only ones who carry implicit bias. Scholars do, too. This is most obvious when we sit down to develop a list of invitees to any scholarly endeavor.

It's easy for me to come up with a list of 'top legal scholars' in business and human rights.

It would also be easy for me to make that list all-male (or all-male plus Anita Ramasastry).

It shouldn't be that easy. The legal landscape of business and human rights is female dominated.

But, if I wasn't attuned to these issues?

Surya Deva, Michael Addo, David Bilchitz, Sheldon Leader, Jernej Letnar Cernic, Larry Cata Backer, Doug Cassell, Shane Darcy, Andrew Clapham, Nicholas Carillo, Humberto Cantu Rivera, Robert McCorquodale, Peter Muchlinski, Olivier de Schutter, Danny Bradlow, Daniel Augenstein, Radu Mares, Camilo Sanchez, and John Ruggie (despite his not being a lawyer, he had a profound impact on the law).

There's not a man on that list that I don't respect, even when I have vehement disagreements with them. And if I wasn't thinking strategically about who to invite to a conference, these are names that would easily flow and that could easily lead to a full conference.

The same thing is true for scholarship. If we are not attuned to who we cite and why -- is it default? is it habit? is it necessary? -- it is easily to fill up our citations with men. Men who Say Important Things, but male voices all the same.

This is starting to change with conferences because people are demanding that it does. Every organizer I know now does a Santa Claus -- going through their lists and checking it twice to make sure they're not being naughty but ... intentional, professional, and inclusive ('nice' is not the right word there).

But it hasn't trickled over, in my experience, to written scholarship, where the dynamic is less visible. We know there's one woman on the panel because we are looking at it with intention. We don't as easily know that women are under-cited in an article because that takes a lot more intentional examination. We need to address this and start holding ourselves and others accountable.
By the way, my go-to women legal scholars in business & human rights include (in no real order and off the top of my head): Anita (obviously) Sabine Michalowski, Nicola Jagers, Nadia Bernaz, Sara Seck, Erika George, Jena Martin, Justine Nolan, Sarah Joseph, Mary Footer, Chiara Macchi, Anil Yilmaz-Vastardis, Olga Martin-Ortega, Rachel Hatch, Charline Daeman, Katerina Yiannibas, Harpreet Kaur, Penelope Simons, Ciara Hackett, Tineke Lambooy, Bonita Meyersfeld, Beth Stephens, Erica Bravo, Sigrun Skogly, Lisa Laplante, Gabrielle Holly, Lise Smit, and the late, great Gwynne Skinner. [See how many more there are??]
The Quirkiness of US Law Reviews

This has to be recognized as a serious barrier to the advancement of women in legal academia: US law reviews remain, predominately, student-run. American scholars entrust students who haven't yet completed their first law degree to decide who gets prominence in a journal. That prominence has carry-over effects in a variety of ways.

Let's start with one: student decisions on prominence impact perceptions of prominence amongst scholars.

A while ago, for personal reasons, I wanted to move back to the US. It hasn't happened yet (and I love being at Essex), but I did apply through the AALS system a few years ago. When I showed my CV to American profs, I was asked "Are any of your journal articles lead articles?" That's not a question anyone in Europe has ever asked me. It doesn't appear on my European CV that I do, now, have a lead article (although the fact that the page numbers start at 1 should be a good clue).

But it carries weight in the US. And yet it's something decided by students who haven't yet finished their first degree in law.

And it's disappointing when we understand that students, who are not generalized specialists in all areas of law, are put in the position of taking short-cuts, and that those short-cuts in turn exacerbate inequality issues. US decisions (generally) aren't blind and they aren't peer reviewed. Back in the days when I was less attune to these issues, the Editor-in-Chief and Managing Editor for the Law Review I was on were discussing whose paper to select. One of the criteria? How would they impact on our citations. How did we decide that? Where did they publish last time, how prominent was that piece, and how many citations did it get?

Even European scholars know that if you want to publish in a US journal, you try to get accepted at a 'lower' review and then play that against the students at the 'higher' journals, because the students are looking for external indicators about the significance of the piece as they are not advanced enough in their careers to judge a work solely on its internal quality and significance. 

This all becomes cyclical. Students elevate certain scholars to more prominent positions because other students elevated them to a more prominent position because they had once a more prominent position. In doing so, we ignore the very clear link we know exists in student evaluations between student perceptions of competence and gender.

The US law journal system exacerbates gender inequality (and I assume race inequality as well). It builds on and is built on the structural and social barriers discussed above, and until American scholars require a different approach, the entire system will remain fundamentally broken.

What we can do Differently

1. Do our Due Diligence. We examine who we invite to speak at our conferences. Why don't we apply that same diligence to our scholarship? And if we do, why don't we expect other scholars to do so and call them out when their footnote list looks like a Who's Who of Male Scholars in My Field?

2. Stop using student evaluations in promotion criteria. There's no need for it. Bad data = bad results. Let's instead start using student evaluations how they should be used -- to identify any consistent, serious, and documented / documentable deficiencies. If student evaluations actually flag up something that needs to be followed-up on, then there should be a process for that that is separate from promotion criteria. It should lead to more peer-reviews and training, but not a stalled career.

3. Elevate non-promotable tasks to promotion criteria. If something is essential for a programme to run, and it's essential that an academic member of staff do it, then it's an essential part of our jobs. It should be promotable. When women get promoted, they gain prominence; when they get prominence, they get cited; when they get cited, they gain more prominence, and the spiral moves upward.

4. Let's change our expectations for mothers. Yes, there are exceptional mother-scholars, and some women will object to this suggestion, but we need to have better and more appropriate assessment criteria for mothers. By suggesting this, I am not indicating that this is some sort of affirmative action. It's instead recognizing that motherhood is like other 'non-promotable' tasks that we often require women to do. It should be recognized and it should affect our expectations of them.

5. Introduce standard blind, peer-review in the US. We know it's not fun (sorry to the law journal I owed a review to on Friday; it'll come tomorrow). But it's also necessary, it helps protect the quality of the scholarship, and it combats implicit biases that emerge when students are required to use short-cuts to decide impact and importance.