A gag order hits the (almost) all-male Review

BY GREG LIPPER

Of the 88 members of the Harvard Law Review, only 28 are women. This year’s incoming class of 43 contained only 11 women. So how is the Review addressing the situation?

Well, I’d tell you, but then I’d be violating the Review’s Rule of Confidentiality: Anything that happens at any meeting, any statistics or other data that are generated relevant to this or any other problem, cannot be shared with anyone outside of the Law Review community. Among most members, this “rule” is accepted as gospel like the common law itself. You won’t find it written down anywhere — as far as anyone can tell, this rule has never been voted on or enacted pursuant to any procedure. But it’s a presence nonetheless — the straitjacket of silence is wrapped around Gannett House.

So guess what, 1L women: The Law Review is holding a party to figure out how many of you will join our ranks next year. Not only aren’t you invited, but we’re not even going to tell you what kind of cake is being served. In both its maleness and its secrecy, the Law School’s bedrock of legal scholarship is beginning to look more and more like the Catholic Church. Perhaps we should be called the Cardinal Law Review.

In most cases, secrecy on the Law Review makes sense. For instance, candid debate about the selection of articles requires that students speak openly without fear of retaliation by professors who might get wind of their comments. But when the subject of the debate shifts from the ivory tower to the glass ceiling, this silence is deafening.

The Review may be a nominally independent organization. I’ll even overlook its free rental of Gannett House from HLS, the Dean’s ex officio seat on its Board, and its prominent link on the HLS website. But whatever its technical status, the Review is a central symbol of HLS merit, and a critical rung on the ladder to legal power. Granted, the Law Review is certainly not the end-all, be-all of legal success (Laurence Tribe didn’t make law review, after all). But all things being equal, those lucky enough to make Law Review will be teaching the next generation of law students and making the next generation of laws. The Harvard Law Review is not the bridge club; it’s a bridge to the legal elite.

If Arthur Miller were to walk into the first day of Civil Procedure and inform his students that their exams would be graded only by their classmates, protests would erupt. And yet policy decisions that are often just as important to students’ futures are reserved for the 85 or so 2Ls and 3Ls who can’t help but be more concerned with their position in the rat race than with those who are still shackled to the starting line. Indeed, Law Review gender affirmative action has traditionally been most strongly opposed by many of its women, who fear that enactment of an affirmative action policy will lead others to question their “merit.” There may be something to this position. But the fact remains: those who have already climbed up the ladder always have an easier time kicking it down. Those who got kicked off the ladder are rarely considered and are almost never consulted.

When racial tension plagued the Law School last year, students couldn’t go ten minutes without receiving an e-mail from some Dean assuring us that the law school was going to take action. Though the problem emanated from a single 1L section, it was viewed as a significant problem affecting the entire campus, and there was no shortage of open discussion. Yet when the subject is a chronic problem of equal representation on the Law Review, the discussion never leaves Gannett House. Even The RECORD’s recent article about the issue quoted exclusively Law Review members. Was the rest of the school’s line busy?

Many students on the Law Review have taken a legitimate interest in remedying its gender imbalance, and many of them are working hard to devise what they believe will be workable solutions. For the most part, the Law Review’s membership cares a great deal about its gender problem. But the reality remains: A group of 85 2Ls and 3Ls, an overwhelming majority of whom are male, are assuming complete responsibility for solving a social problem with implications for women in the entire Law School as well as the legal profession. And they refuse to tell people what they are thinking until they have already made up their mind.

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