Law Review’s ‘enormous problem’

BY YONI TORRES

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The newly elected editors of the Harvard Law Review began their tenure this August serving on what is arguably the most distinguished legal journal in America. By all accounts, the men and women in Gannett House find their peers to be challenging, welcoming and friendly.

They also find them very likely to be male.

The Law Review finds itself this year with a group comprised of almost three-quarters men, a figure that is greatly at odds with the population of the law school as a whole, where men account for only fifty-five percent of the student body. In looking at the number of women admitted to Law Review, twelve were admitted this year, only one more than last.

The root causes of this disparity have been unclear since the days when Law Review first began admitting women. Adding to the lack of clarity is a culture of silence at the Law Review that prohibits public dialogue on the matter. Numerous editors on Law Review refused to give comments to The Record, and of those who did comment many asked that their names not be printed.

In an opinion column published in The Record last year, Greg Lipper, a 3L and Law Review member at the time, decried this culture of secrecy. “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,” wrote Lipper.

“The straitjacket of silence is wrapped around Gannett House.”

Statistics are not released by Law Review, making it difficult for a public conversation to occur – or for the progress of Law Review to be measured in any way other than by counting the women who end up editors. This has led to frustration among HLS students. Wade Ackerman, President of the Law School Council, expressed concern over the continued gender imbalance within Law Review. “Since it seems that the Law Review has not been able to address this issue itself, it may be time to ask ourselves whether the law school community should gain access to statistics to determine the cause of the disparity and how it can be redressed. I ask myself why it is necessary for the Law Review to place secrecy on its statistics.”

For his part, Law Review President Dan Kirschner last year called gender diversity an “enormous problem” and called for “concrete steps” to address the issue. Although only one more woman made it on to Law Review this year as opposed to last, Kirschner promises to continue addressing the issue. “To be honest, I am very disappointed about the gender disparity,” said Kirschner. “Last year, we collected and studied a lot of the data to try to understand the source of the gender imbalance. The organization gathered together to consider changes to our competition. We made a change based on the data, de-emphasizing the role grades play in ‘grade-ons,'” said Kirschner, referring to the new policy in which the top two candidates from each section have their grades account for just fifty percent of their applications, as opposed to the older system where grades accounted for seventy percent.

However, releasing information about applicants is not an option being considered at the moment. “We have looked at some information in the past, but we are discussing the issue as an organization. The information we have looked at is really for the organization to consider.”

One female editor, who wished to remain anonymous, illustrated the impact that gender disparity has on the Law Review, saying, “I get very sensitive about what proportion of the conversation is conducted by the men. In classes, I hate it when ten men volunteer in a row and no women do. Often I want to say something – anything – just to redress the imbalance. So it is at Law Review.”

There is concern that the lack of women may create a cycle where women applicants feel wary of applying to a male-dominated organization. “It would be a shame if we were losing intelligent female students,” because of such an image, said one male editor. At the same time, the editor went on to explain that he “strongly opposes any attempt to alter the qualifications for the Law Review because the quality would suffer.” Such changes, he argued, would “unnecessarily stigmatize women” and cause “self-doubt.” This opinion was shared by others who spoke to The Record.

Applicants to the Law Review go through a “double-blind” process where applicants are judged without reference to their identities. This is done by assigning numbers to the applications in two phases before any editors sit down to read the applications. In addition to the “grade-on” policy which helps students with top grades in each section, there is also an affirmative action policy in place that gives the Law Review discretion to give additional points to minority applicants. Whether a member gets a spot due to a “grade-on,” due to affirmative action or due to scoring well on the application is never revealed, not even to members. The Law Review has had a discretionary affirmative action policy in place for racial minorities since 1982.

There are years when the gender disparity seems to become an issue on its way to being solved. Dean Elena Kagan notes that while “the number [of women] fluctuates over the years, with a consistent imbalance,” it was not much of an issue while she attended HLS. “I had a great time on the law review,” stated Kagan, noting that “when I was there women ran the Law Review. [Professor Carol] Steiker was the President and I was sort of her second in command.”

Indeed, for all its secrecy, Law Review does have reasons for its policies, as Lipper explained in The Record last year. “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,” said Lipper, defending the necessity of secrecy on certain occasions.

Still, such policies can only go so far argued Lipper. “When the subject of the debate shifts from the ivory tower to the glass ceiling, the silence is deafening.”

Additional reporting by Jeremy Blachman.

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