Where do we start? The gender gap in legal education and the legal academy: Afterword to the Foreword by Gráinne de Búrca, Rosalind Dixon, and Marcela Prieto Rudolphy

Abstract

1. Introduction: Gender gap in law—expanding our temporal lens

In a magisterial Foreword, Gráinne de Búrca, Rosalind Dixon, and Marcela Prieto Rudolphy grapple with the main causes for the persistence of the gender gap in legal academia, champion its significance from both a consequentialist and justice perspective, and identify some important responses to narrow this gap.¹ I agree wholeheartedly with the claims and suggestions in the Foreword. What else, then, is there to say in an Afterword?

In the spirit of a collaborative enterprise, this Afterword builds upon one aspect that the authors briefly mention but do not fully develop: the existence and depth of the gender gap in legal education and its connection to the gender gap in legal academia. I invite the reader to view the gender gap in legal academia as starting not from the point of employment but even before that. After all, if we are to create more opportunities and inculcate a more gender-equitable environment for the legal academy, including increasing the proportion of female academics, we need to also ask the question: From where would these female candidates come? Are there enough potential candidates in the pipeline?² As we broaden our perspective, we see that the gender gap often begins with law schools, and addressing the gender gap in legal academia must include consideration of the gender gap in legal education as a whole.

To be sure, we could trace the origins of the gender gap to even earlier stages, before legal education. This is, after all, a complex phenomenon. How young girls experience the world can significantly impact their self-perception, access to career opportunities, and subsequent achievements. Studies have shown, for instance, that experiences of discrimination based on salient social identities, such as gender, race, and ethnicity, can have harmful effects on one’s mental and physical health, social adjustments, and academic outcomes.³ Nonetheless, this Afterword focuses on legal education due to its direct and pivotal role in leading up to legal academia. Furthermore, studies have shown that there could be something specific about legal education that contributes to the gender gap, since there is evidence that women enter law schools on an equal footing with men, with identical entry-level credentials, but tend to have poorer experiences and outcomes compared to their male counterparts.⁴

2. Gender gap in legal education: Pedagogy and virtues

The gender gap can be defined by gender disparities in opportunities, experiences, and outcomes. In a recent study, Khoo and I show that, in a highly competitive top-ranked institution like the National University of Singapore (NUS), how female students experience law school has a significant impact on their legal outcomes.⁵ Using a granular dataset on student as well as course and grading characteristics, controlling for a wide range of covariates such as standardized entry scores, high-school rankings, income proxies, and a large array of fixed effects, we found evidence that female students systematically underperform their male counterparts at NUS Law despite coming to law school with comparable entry-level scores. Our study shows further that even seemingly small differences in law school class participation marks have a significant impact on final scores and the students’ class of honors.⁶ This, in turn, affects the students’ access to clerkships and, potentially, entry into an academic career.

Interestingly, our findings show a few nuances in the relationship between class participation and academic outcomes. We found that disparities in class participation scores significantly contribute to the presence of a gender gap, i.e., that women tended to score lower on class participation marks, and this affects their overall scores. We also found that an increase in class participation weights led to a wider gender gap. As the weight increases, the men perform even better as a whole. In other words, it appears that when the stakes are higher and the outcomes more competitive, men excel more, while the women do not. In addition, we observed contrasting findings for compulsory and elective courses, where the gender gap is narrower for elective courses compared to compulsory courses. This suggests that female students may feel more comfortable engaging in class participation when they have the freedom to select courses aligned with their interests.

Our study of an elite institution outside of the United States tracks earlier research conducted there showing the existence, nature, and depth of the gender gap in legal education. Since the 1980s, several empirical studies at major law schools in the United States have found evidence of a gender gap. Guinier and colleagues’ pathbreaking article, “Becoming Gentlemen,” for instance, shows that female students experience law school markedly differently, including reporting lower rates of participation in class than men and achieving significantly divergent academic outcomes despite identical entry-level credentials.⁷ Several such studies examined female law-school experience at single institutions, such as Yale,⁸ the University of Pennsylvania,⁹ Stanford,¹⁰ Harvard,¹¹ and the University of California-Berkeley,¹² while others take a cross-institutional focus.¹³ As a whole, they provide strong evidence of gender disparities, reflected in differential grades, classroom and extracurricular experiences, as well as educational outcomes and career prospects.

In some ways, the fact that a gender gap exists among students in law—commonly seen as a humanities subject—may be surprising. Studies suggest at least two persistent factors: the first is the use of a masculine pedagogy, and the second, relatedly, is the persistent preference for masculine virtues in legal education. Regarding pedagogy, critics identify teaching style and classroom environment as key contributors to differences in gender experiences, which could disadvantage female students.¹⁴ Specifically, the Socratic and case method style of teaching¹⁵ has been identified as privileging “masculine” behavior¹⁶ as it involves professors cold-calling students and interrogating them about the facts and decisions in various court cases.¹⁷ Criticism of this pedagogy includes that it is unstructured, that it is susceptible to causing confusion in classrooms when done poorly, and that it can be intimidating for students.¹⁸ From the gender perspective, the Socratic and case method style of teaching has an added complication, as it fosters a more aggressive and competitive environment which could result in lower female participation. Several important studies show this gender disparity. Weiss and Melling’s observational study sparked sustained attention at Yale Law School on pedagogy and has been confirmed by follow-up studies showing higher rates of participation among male students at Yale Law School. The initial study showed that male students spoke, on average, 1.63 times more frequently than would be expected from their relative numbers in the classroom.¹⁹ A subsequent study in 2002 showed similar results, with female students less likely to participate in class and male students making up 53% of participation events. A decade later, the situation had in fact worsened, with a 2012 study showing that male students made up 58% of participation events.²⁰

Observational studies at other institutions show similar gender disparities in participation rate in classrooms. An early study published in the Stanford Law Review, which relies on qualitative survey data on class participation and other experiences, shows statistically significant differences between female and male students’ self-reported class participation experience. Male students were more likely to ask questions and volunteer answers in class than their female counterparts.²¹ They are also more likely to ask professors questions outside of class.²² The study also suggests that professors are more likely to call on male students and correspondingly that male students tend to dominate classroom discussions. Similarly, in a 2004 study on gender issues at Harvard Law School, Neufeld found that male students were 50% more likely than female students to volunteer at least one comment during class, and 144% more likely to speak voluntarily at least three times.²³

Other studies on law school experience also show that classroom participation affects not only students’ performance but also their mentorship and professional prospects.²⁴ When male students participate in class, they use it as a way to follow up and approach professors for consultations and to gain access to their professors, paving the way for offers of collaborations or even co-authorship.²⁵ Female students showed more insecurity about their ability to build rapport with faculty members and tended to be more hesitant to approach them for fear that faculty members will not know who they are.²⁶ Relationships with professors and mentors also become significant where “interpersonal relationships, informal evaluations, and networking are important tools for advancement.”²⁷ This is starkly seen in law schools like Yale which do not use a traditional grading system and do not compute class rank.²⁸ There is also evidence that female students tend to experience stronger feelings of alienation during their legal education, compared to their male counterparts.²⁹ The effect of such alienation on their openness to the prospects of a career in legal academia needs to be more properly studied.

Regarding virtues, scholars identify the existence of a subtle discriminatory tradition of “masculine virtues”³⁰ and a generally unfavorable institutional environment of “hostile, elite, and previously all-male organizations,”³¹ which in turn create de facto barriers to gender equality. Law schools, at least in North America, still emphasize individual performance and aggression over other important social skills like teamwork, cooperation, collaboration, negotiation, and mediation, which are often seen as softer skills. Here, one may characterize the former as “masculine” and the latter as “feminine,” without necessarily essentializing them to male or female students. The point is that law schools may need to broaden their perspectives on what constitutes lawyerly skills and reconsider lawyerly virtues to create a more inclusive educational environment. Furthermore, some studies suggest that there are subtle aspects of traditional legal education that tend to disadvantage women because they tend to focus more on the social ramifications of legal holdings and engage with their personal ethics.³²

Notably, most studies focused on institutions in the United States, leaving open how the gender gap manifests in other cultural settings. The gender gap may vary across countries and cultures and depend on a combination of intersectional factors. For instance, both female and male students from lower socioeconomic backgrounds may have less time to prepare for their classes because they must work to supplement the family’s income, resulting in lower educational outcomes. At the same time, in many cultures, women would additionally be expected to be caregivers or assist with household chores more than the men. As such, their ability to prepare well for classes may be even more limited. This is a subject that merits further investigation. As a whole, there is a need for more studies, including in the United States, to continuously update our data on the scope and dynamics of the gender gap across diverse settings.

3. Closing the gender gap: Intentional pedagogy, mentorship, and interrogation

Having summarized evidence for the existence of a gender gap in legal education, what could be done in response to it? Here, a few interventions may be suggested: intentional pedagogy, intentional mentorship, and intentional interrogation.

First, regarding intentional pedagogy, instructors must be more conscious of the gender-coded nature of certain pedagogies. When it comes to class participation, interventions include having faculty members adopt a more active role in managing classroom dynamics. For instance, some studies suggest including more structured class participation assessments, such as assigning students to lead class discussions, answer questions, or prepare presentations, instead of relying on a freewheeling approach that relies on volunteering. Such an approach could create a more encouraging and equitable environment.³³ It would ensure that all students are given an opportunity to speak and are able to plan their answers ahead of time, mitigating asymmetrical distributions of “speaking time” across genders.³⁴ Other curricular reforms³⁵ include smaller classes³⁶ and a move toward more cooperative learning techniques. To be clear, pedagogical shifts do not just benefit female students. A more cooperative environment could generally encourage more students, irrespective of gender, to share their ideas and learn from one another.

Second, intentional mentorship requires professors to be more thoughtful about the way they engage with and mentor female students. Among the interventions suggested by Guinier and colleagues is to “reinvent the law school” by expanding opportunities for relationships with female mentors.³⁷ This must start with awareness—an understanding that female students may be less aggressive and forward in approaching professors. As a whole, professors have to be more intentional in encouraging promising female students to publish research papers and pursue graduate studies. Professors could also be more intentional in advertising research assistance opportunities openly and, where appropriate, offering their promising research assistants co-authorship instead of waiting for students to ask. In addition, institutions could create more structured opportunities for engagement, such as small group outreach. Indeed, Fischer shows the positive impact of numerous programs to improve the experiences of female law students, including open-door policies, practice examinations, faculty mentorship programs, and increasing the number of female and minority professors.³⁸ More intentional talent-spotting may also help identify promising female students suited for graduate studies and academic careers.

That said, this area requires delicacy, as professors must maintain professional boundaries and avoid sexual harassment. In addition, as the Foreword authors astutely point out, “many positive initiatives that can help address problems of gender biases and stereotypes, gendered networks, or a gender confidence gap may worsen or exacerbate gendered care dynamics and sources of time-poverty in ways that reinforce the original problem.”³⁹ For instance, female academics may end up doing more work mentoring female students, further increasing their care load and taking time away from other responsibilities such as research, which tends to be a primary measure of academic success. Indeed, the authors note in their Foreword that “[m]entoring support and networking events can likewise involve a significant amount of time and emotional labor, particularly on the part of senior and mid-career women.”⁴⁰ Thus, female students should also be more intentional in approaching professors and seniors for help. While not ignoring extant structural issues causing the gender gap, women should also be encouraged to proactively seek ways to overcome barriers to their academic and career success where possible. They could be supported by their peers and seniors. Such peer mentoring could effectively help female students navigate law school emotionally as well as academically.

Third, there is a need to continue having intentional studies and conversations about the gender gap in legal education, in legal academia, as well as in the legal profession as a whole. The gender gap is discernible along a continuum of pathways, with complex mechanisms impacting one another. This requires sophistication in how we study the gender gap. For instance, the Foreword authors rightly observe that it is not just a matter of determining the percentage of women hired in legal academia, but also in what positions. As the authors and other scholars have emphasized, we need to be mindful of the type and quality of the jobs women occupy, and the troubling phenomenon of inter- and intra-occupational segregation.⁴¹ It is not only that women are underrepresented in general, but that they are underrepresented in tenured and tenure-track positions in law schools, while overrepresented in staff, non-tenure-track, clinical, and legal writing positions.⁴² The former types of positions are widely considered to be more prestigious, more secure, offering potentially higher pay, and with greater influence on the development of legal scholarship and policy. The latter roles involve more instruction and support work, with lower pay, less job security, and lower prestige in many universities. There is also evidence that women are still underrepresented in senior leadership positions. More than just numbers, women also remain underrepresented, the authors note, in their influence in academia, reflected in their comparative rate of publication in leading journals and their citation rates.⁴³

Thus, while it may sometimes be necessary to put in place direct mechanisms like quotas, the gender gap is often a much more complex phenomenon requiring more calibrated tools. It is not merely a matter of increasing numbers but also of asking what kind of participation, access, outcomes, and achievements we are aiming for. Basic accounts of gender breakdown in law faculties (e.g., X% are women) are only the starting point; we need more data and nuanced studies to address the causes of the gender gap. For instance, the Foreword authors mention that the University of Tokyo, which only has a dismal 5.45% of women on its law faculty, announced a university-wide action plan in 2021 to increase the number of female faculty members by 50% by the academic year of 2027.⁴⁴ This would take the university-wide ratio of 16% to at least 25%. However, without knowing what kind of faculty positions the initiative involves, it is hard to be fully enthusiastic. At best, blunt measures like quotas can lead to more women on the faculty; at worst, they may lower women’s status in the faculty by creating an “underclass” of women undertaking less significant roles.

4. Concluding reflection

To connect the gender gaps in legal education to those in legal academia is one way to respond to the Foreword authors’ call to promote a feminist legal academy and engage in this “collective task of tackling injustice along all its dimensions in the academy and beyond.”⁴⁵ The gender gap affects significant aspects of our legal education and feeds into gender gaps in legal academia. Addressing it requires rethinking legal education and intervening at critical points to create a more inclusive and fairer environment for all. At the very least, there is a need to continuously update and expand our data on the subject.⁴⁶ This means conducting more empirical studies contextualized to different jurisdictions to develop transnationally informed, but locally tailored solutions. After all, as the Foreword shows, studying the gender gap is not merely a positive exercise, but also a normative one.

Footnotes