GUEST OPINION: Law Review has strong leadership


I CONCUR WITH THE sentiments expressed on this page two weeks ago by my former Law Review colleagues (“Law Review alums respond to Law Review alums”), which I signed on to, and write separately only to add the following points.

Why doesn’t the Law Review “release any data that could shed light” on the gender disparity? Last week’s alum letter suggests that “respecting privacy and the source of the data” was a motivating factor, and this is surely correct.

But there’s another reason, which would remain even if no one had any expectation of privacy in the data: the Law Review’s selection methods are not the HLS community’s business. A recent Record editorial tells us that “[g]ender disparity on the Law Review is a Law School problem,” and this is true in the sense that people at the Law School may care and be affected by the Law Review’s selection. I may care whether Bar Review is at the Kong, whether the Target Shooting Club goes to Manchester or Worcester, and whether the Law and Philosophy Society screens “The Big Lebowski.” Whether I have a named position (even an appointed one) in some organizations may even affect my future success as a lawyer. But being interested doesn’t give anyone the moral authority to meddle. The Law Review, for all its special status, is still a private student organization, and may legitimately keep its numbers secret for the same reason the rest of us keep our internal affairs secret and not subject to “productive debate”: because they’re our internal affairs. The HLS administration hasn’t seen fit to impose any gender parity requirement on the Law Review or any other student organization, so the Law Review isn’t breaking any student organization rules. And The Record and the HLS community may advocate whatever Law Review policy they like, but for organizations to give in to calls to make their data public just for the sake of campuswide “debate” is to give credence to the idea that they have some obligation, other than PR interest, to do so.

I’ll grant that on some issues, all people of conscience have the moral authority to speak out – for instance, if there were any evidence of intentional discrimination. But this is surely not such a case. Statistical disparity is bad evidence of intentional discrimination; in this case, there are nondiscriminatory explanations for the numbers, as well as a selection process that, on its face, is scrupulously neutral and related to the actual writing and editing work we do on the Review. I’ll need more evidence than mere numbers before I’ll call the disparity a “gender problem,” much less a problem that’s appropriate to discuss in The Record.

Finally, I wish to note publicly the admirable leadership on this issue displayed by current Law Review president Daniel Kirschner, who has been committed to the intra-Law Review gender debate from the start. After hours of debate, too numerous and tedious for me to count (the Law Review loves parliamentary procedure and talking far into the night), a majority of editors voted down a number of gender-oriented proposals.

Still, some would argue that “leadership” means we should have had more discussions, more brainstorming, more strategies, further sapping the soul and distracting from the important work that’s fun and that we do well, viz., putting out a good journal of legal scholarship. Just do it over and over again until we get the result you like – that’s leadership?