As former members of the Harvard Law Review and recent HLS graduates, we share The Record‘s frustration with the Law Review’s continued intransigence in the face of an undeniable and unacceptable gender gap, and with the excessive secrecy that surrounds its deliberations about the issue. In our 2L year, a body of editors that included our class of editors refused to make any changes to the selection process, and unequivocally refused to permit the consideration of gender disparities in our selection process. We failed to act despite the obvious persistence of a significant gender disparity and a growing understanding of the impact that disparity has on our organization. In our 3L year, after collecting substantial and damning data about participation in the competition, the write-on and grade-on elements of our selection process, the effects that different selection processes would have had in past years, and the gender disparities at peer law reviews, the Law Review again rejected all meaningful solutions to the problem. The adopted change to the grade-on process was mostly symbolic – it has no hope of substantially increasing the number of women on the Law Review. Because the Law Review’s inaction and silence affect all of HLS, we feel the HLS community deserves to know what has been happening in Gannett House over the past two years.
The data collection and analysis we engaged in was as thorough as it could have been, given available information and institutional constraints (including HLS’s refusal to disclose the gender breakdown of first-year grades). The data revealed that:
- Women are consistently underrepresented on the Law Review, as compared with the proportion of women at HLS as a whole. On average over the last eleven years (including 2003), 42.7% of each HLS class is female, compared with 33.4% of each Law Review class. Only 25% of the editors selected over the past two years have been women. Moreover, each of the last eleven years has witnessed a disparity, usually a substantial one.
- If anything, the disparity has been getting worse recently. Out of the last eleven years, the last two have been the worst, and 2001 (our year) tied for fifth worst. Still, 1993 and 1995 were almost as bad as the last two years, 1996 and 1999 were roughly as bad as our year, and it is common knowledge that disparities were, on average, even worse in previous decades.
- The disparity results largely from the selection process we have chosen to employ, not from any failure of women to apply. The average proportions of women in HLS (42.5%) and women in the Law Review applicant pool (41.8%) for 1993-2002 are quite similar.
- On average, from 1994 – 2000, the percentage of grade-ons who were female was 26.3%.
- Not one of the eleven selection process modifications we explored, commonly touted as neutral “structural solutions,” would have meaningfully improved the gender gap. Even eliminating consideration of grades would likely lead to less than one additional woman per year.
- Out of eight peer law reviews that provided us with information on their gender disparities in 2001 and 2002, only one had a worse gender gap than the Harvard Law Review.
Based on our experiences at HLS and in the professional world, we refuse to believe that HLS men are more capable than HLS women. The disparities present in the Law Review’s admissions and (most likely) in first year grades simply must have some explanation other than that HLS women are objectively inadequate. Unless the Law Review or those within it who oppose change to its selection policies are prepared to say that HLS women are, on average, less qualified than HLS men, they have some explaining to do as to why women are consistently underrepresented.
Faced with this strong evidence of what was already apparent to all of us, the Law Review still refused to do anything more than “emphasize recruitment,” call for “more study,” and engage in an aggressive policy of interior remodeling in order to make Gannett House “more attractive and comfortable” to current and future editors. This inaction is unconscionable, given the corrosive effects the gender disparity has on both the Law Review and broader HLS communities. The tendency of men to dominate group discussions, including those involving articles selection, and consistently to occupy virtually all of the most intensely sought-after offices makes the Gannett House environment uncomfortable for a number of women and men. Moreover, the systematic denial of equal opportunity to join the Law Review translates into a similar denial of preferential access to many opportunities in the legal profession.
We feel that it is time for the silence to be broken. We recognize that this letter is in tension with the strict, albeit unwritten, confidentiality policy imposed by Law Review leadership. However, we have been careful to respect the spirit of that policy – to ensure continued anonymity in the selection process. We hope that Law Review President Daniel Kirschner will commit himself to bringing the entire HLS community into the discussion. More importantly, because each and every year brings a new class of Law Review editors, and because each class ultimately is responsible for the decision either to maintain or to abandon the status quo, we call on the current class of editors to act boldly where our class floundered. If the Law Review is unwilling to so act, we call upon the entire HLS community to join the discussion and to demand meaningful reform.