BY TAMMY R. PETTINATO AND HUGO TORRES
The percentage of women on the Harvard Law Review is at the lowest point in over a decade. Numerous proposals to remedy this gender disparity have been discussed and voted on ever since women began to participate on Law Review, yet no clear solutions have emerged. According to an internal report acquired by The Record, Law Review studies indicate that most of the proposed remedies would have little effect on the representation of women on the Law Review. None of the proposed solutions would completely solve the problem, according to the report.
The report, presented internally to the Law Review in 2003, is an attempt to examine possible ways of reducing the gender gap within Law Review. It contains simulations of how the representation of women might have turned out in previous years depending on various changes that could have been made to the application system. The report was prepared by Law Review editors and uses applicant data covering 1992 to 2000 (with 1998 left out due to a lack of information) to run simulated application outcomes for each year based on possible changes to the editor selection criteria. The report examines eleven proposals for changing the competition to get on to Law Review. Ranging from minor tweaks to major modifications, the proposals include changing the weight of grade-ons from seventy percent grades, thirty percent writing to 50:50; from 70:30 to 30:70; selecting the top male and top female from each section for grade ons; eliminating grade ons completely; and adding a grade-on per section but reducing the grade weight from 70:30 to 30:70.
The simulations run under these proposals yield a surprising result. Little to no change would occur under the majority of these proposals. Changing the weight of grade-ons, for example, from grades counting as seventy percent of the application to grades counting as fifty percent would have resulted in an additional woman on the Review per year during the early nineties, and no change in more recent years. Changing the weight of grades even further to thirty percent results in modest increases in the early nineties, a dip in numbers during the late nineties, and an increase again in 2000.
Adopting a system of accepting the top male and top female from each section, meanwhile, results in almost continual jumps of two to three additional females per year. With only four sections in the years covered by the study, however, this creates complicated issues in a seven section class that results in a system of separate but equal where women in each section compete with women and men compete with men for the top spot to grade on to Law Review.
Meanwhile, eliminating grade-ons altogether does not result in a significant shift of women scoring onto Law Review. This is despite the fact that most close-call candidates who make it onto Law Review due to grades are male. A close-call is defined as all editors within ten percent of the lowest score to grade on or write on. In most years, an overwhelming majority of those who were grade-on close calls are men. In addition, keeping grade ons but reducing the number of grade-ons by half does not result in a significant change from that of eliminating them completely.
Of the proposals covered by the study, none result in sustainable parity for women on the Law Review.
The most successful in seeing great numbers of women join law review are Boalt and Penn. Boalt’s law review, at a school at which women make up a majority of the student body, does not take grades into account and has slightly more women than men on the law review. Penn, where men make up a majority of the student body, has seen the number of women on its law review greatly outpace that of men. Penn’s law review evaluates some of its applicants through a system that gives equal weight to grades, writing, and a personal statement.
Meanwhile, the University of Chicago Law Review has the lowest numbers of any of the schools examined, with Harvard being second to it in terms of gender disparity. Chicago and Harvard have a similar percentage of women in the class as a whole but Chicago’s law review lacks a scored writing portion to their application process and has far fewer discretionary slots than does Harvard, where grades accounted for seventy percent of getting on and writing accounted for thirty percent in grade ons (this has been changed since the study was conducted to a fifty-fifty split for the grade on slots). Harvard also accepts a portion of its editors based solely on the writing portion.
Those with near parity, Stanford and Duke, have different approaches that resulted in such parity. Stanford, at which women are a majority, does not take grades into account. Duke, which is the closest in achieving true parity of any of the schools, has a system where grades make up one-third of editors and write ons another third, with a combination of both making up the last third.
The school with the system closest to Harvard’s is Columbia, which has a six percent differential between women in the class and women on the review, whereas Harvard has a thirteen percent differential. Unlike Harvard, Columbia does not have write ons, which Harvard does, but according to the current editor-in-chief its criteria for discretionary slots includes gender as one of many possible factors that can be used to evaluate editors chosen through discretionary slots.
Law Review editor Mark Yohalem maintains that despite what others may think, the Law Review is looking for solutions. “Of course, there are always more efforts that can be made,” he says. “I can say that a great deal of time and energy is being committed by people who have scarce amounts of either on a problem that they could very easily-despite The Record’s inflammatory efforts-sweep under the rug and forget. The Law Review is a highly democratic institution, so it cannot be that the President simply declares affirmative action for women to be the law of the house. In terms of building popular support and evidence and so forth to encourage the enactment of affirmative action, there are many editors who devote themselves to this task. Obviously, there are conservatives who work in opposition. But neither side simply ignores the issue. In that regard, there are many, many steps being ta
ken-though I rather suspect it may be two steps forward, two steps back.”
Oyer feels that because Law Review’s efforts do not happen in a vacuum, it cannot fix the problem alone. “The gender disparity on the law review seems primarily to reflect the larger problem of the underperformance of women relative to men in top law schools,” says Oyer. “We as an organization can and will continue, as we have for as long as I have been on the Review, to consider every approach that we can come up with and to take every step that we as a body think might improve the situation. But as long as the underlying problem persists, proportionate representation of women seems like an unrealistic goal for the law review.”
Professor Carol Steiker agrees. “I see the under-representation of women on the Harvard Law Review as one facet of a larger problem which both puzzles and concerns me,” says Steiker. “Each year, when the faculty votes the ‘magna cum laude’ degrees, which are awarded to the top 10% of the graduating class, women are significantly under-represented in that group-despite the fact that women are admitted to the Law School with ‘predictors’ of law school performance (such as grades and LSAT scores) comparable to those of admitted men. To the extent that the Law Review relies on grades to select its editors, it will have similar under-representation.” Yet the source of such a disparity is unclear. “Precisely why this under-representation regularly occurs (although to be fair, the degree of under-representation fluctuates some from year to year) is truly a mystery to me-does it reflect something about the nature of legal education?”
One editor believes solving the gender disparity issue is best dealt with through incremental change. “Editors hold a firm belief that a truly merit-based process would not likely result in such outcomes and therefore have tried to make the admission process as fair as possible,” says the editor. “Every year changes are made to enhance the process without sacrificing a commitment to the Review’s merit-based tradition. That evolution continues.”
Maintaining a reputation for being merit based is also a concern of law professors. “Such a plan would offer Law Review membership to perhaps a handful more women per class while making all women selected for the Law Review wonder whether they would have been selected absent such a program (and making other Review editors, as well as judges and other future employers wonder the same thing),” worries Steiker. Although Steiker supports affirmative action programs in general, she is concerned that the negatives would outweigh the positives in this case.
“Often, the positive effects of affirmative action programs-through creating diverse communities of learning or work that otherwise would not exist, or by empowering a ‘critical mass’ of a group that would otherwise be merely isolated individuals, or by more equitably distributing important opportunities-clearly outweigh this particular disadvantage,” believes Steiker, noting that in the case of Law Review she does not “believe that the benefits of gender-based affirmative action in the Law Review context outweigh its costs.”
Professor Elizabeth Bartholet, who is on the Board of Directors for the Review and who was the only woman on the Law Review when she was a student here at HLS, agrees with Steiker. “I am generally supportive of affirmative action programs, but do think they should be instituted only where there is a real need, and where serious thought is given to make sure they will do more good than harm to the group that is supposed to be the beneficiary,” writes Bartholet. “I do not think the Review should adopt an affirmative action program to address the issue of women on the Law Review today.”
Dean Elena Kagan echoed something similar. “My own priors are against affirmative action on the basis of gender, but my opinion is not the one that matters most,” she said. “I look forward to talking to the Law Review editors about this issue.”
Of the student organizations asked to comment about this issue, the Women’s Law Association was the only one to respond with a statement. “The Women’s Law Association declined to comment for this article, but the organization will be issuing a formal statement on this issue later this month,” their statement read.
Though the gender disparity issue looms large, it is not insurmountable. The success of other elite schools in closing the gap, points to the possibility of achieving gender parity within the Law Review. Furthermore, the few years in which Law Review has achieve parity indicates that women progress is indeed possible in the short term.
However, some believe that focusing on gender disparity on the Law Review should no longer be a priority. Professor Christine Jolls believes that as the importance of Law Review diminishes in legal life, so too will the importance of reforming its application procedures. “While a generation ago the Review was the primary road to Supreme Court clerkships and other plum legal jobs-making the issue of the race and gender composition of the Review of substantial importance-this is simply not the case today,” notes Jolls.
“I have enormous respect for the work of the Harvard Law Review, but I also think it’s important not to overstate the importance of the Review in the intellectual life of the school or in the future careers of HLS graduates,” adds Jolls.
“I would rather see the HLS community focusing on the rich and diverse range of intellectual opportunities here…than focusing on the issue of the race and gender composition of the membership of the Harvard Law Review in a given year.”