On being a female law professor: Dispatches from the frontline—Afterword to the Foreword by Gráinne de Búrca, Rosalind Dixon, and Marcela Prieto

Abstract

Dear Mr. Shachar,

The reviews are in on your manuscript “XX XX XX X” and it is time for us to make a decision. Based on the reviewers’ comments and our own reading of the manuscript, our decision is to conditionally accept the paper for publication in YY YY YY Y. Please consider this letter notification of the formal acceptance of your manuscript. Thank you for your patience with the review process.

1. Introduction

When I started my academic career, people still had to go to the post office to submit their article manuscripts. In those days, the use of the internet was still in its infancy. During the first day of my orientation as an LLM student at Yale Law School, we climbed the stairs to the library to try out this wonderous new thing called the “World Wide Web.” At home, we used a modem. Tokens had to be purchased, and those who have had to endure the cacophonous sound of a modem connecting to the dial-in internet surely appreciate how lucky we are today to have the world at our fingertips (smartphones). Then, as now, it typically took a few weeks, if not months, for an editorial decision to be made. Instead of an email from the editor or a request to log onto the journal’s portal, one had to wait for a hardcopy letter to arrive with the verdict. There was a brief moment of trepidation before opening the envelope: Accepted? Rejected? To my surprise, regardless of the decision, I was often addressed in these letters as “Dear Mr. Shachar.” I quickly realized that my foreign-sounding name gave no obvious indication of the gender of the writer—recall, it was impossible at the time to simply Google a person’s profile.¹ By default, the assumption was that I was an ambitious junior male scholar trying to get their work published in academia’s top journals.² Referring to me as Mr. Shachar most likely didn’t strike the editors as a gendered presumption. Yet it is precisely this unstated “default” assumption that reflects what feminist scholars have long referred to as the invisible standard which, while purportedly universal, is never genderless or classless or raceless but instead treats the male category as the norm and everything else as derivation.³ We are so deeply familiar with this slippage—of man standing for human—that we often take it for granted. Think of the title of one of the most iconic documents in the modern era, The Declaration of the Rights of Man and of the Citizen (La Déclaration des droits de l’homme et du citoyen), as a concrete example.

2. Feminist legal theory 101

The basic premise of feminist legal theory, whose emergence coincided with the entry of women into legal academia and the legal profession, has been to question our understanding of dichotomous categories ingrained into law, including man/woman as representing polar opposites, reason/emotion (think of the ubiquitous reference to the “reasonable man” in legal doctrine), public/private, family/market, and so forth—imagining in their stead “possibilities for radically improving the lives of all individuals, men and women,” by transcending these dichotomies.⁴

A related concern for feminist legal theory is both epistemic and ontological. If, in law and liberal (or other) moral theories, knowledge has itself been shaped for centuries almost exclusively by and through men’s interests, viewpoints, and hegemonic power, then purportedly universal norms and standards will reaffirm and reify the invisibility of women’s perspectives, the contingencies and particularities of their lived experience—especially their subordination to the male gaze and the laws shaped in its image. Such erasure and deprivation of the opportunity to have a say and participate in the writing of the scripts through which we guide our shared lives has dire consequences for women and sexual minorities that require rectifying.

As renowned political theorist Iris Marion Young observed, in the face of the profound diversity of life experiences, a conception of law or philosophy that presents itself as ostensibly universal while based upon the experiences of predominantly white, middle-class, Christian men is not only partial (while claiming to be impartial) and unequal (while appealing to the value of equality) but also a tool and vehicle for preserving the privileges of the dominant group, making it the standard against which all others are (impossibly) measured.⁵

3. Gender and the legal academia

I was reminded of my letter-from-the-editor anecdote when I read the wonderfully rich, nuanced, and insightful “Gender and the Legal Academia” intervention by Gráinne de Búrca, Rosalind Dixon, and Marcela Prieto Rudolph. The authors articulate the multiple ways in which the gender gap in legal academia remains prevalent today, even decades after women (finally) entered the gates of legal academia which—at least in the United States—opened widely for them from the 1970s onward. Yet their analysis does not stop there. The Foreword elucidates consequentialist and justice-based reasons to criticize the current state of affairs, before turning to articulate reform proposals. The latter include innovative ideas such as promoting “micro-accommodations” as a useful strategy to counter “micro-aggressions,” as well as pragmatic suggestions ranging from the inclusion of the costs of childcare in research funding to facilitate participation in academic conferences to de-biasing hiring and promotion, to mention but a few.⁶

I fully endorse these proposed reforms, which, precisely because they are concrete and measured, have the virtue of being implementable. At the same time, building upon the authors’ impressive repertoire of recommendations, I also want to push the envelope further by offering a few friendly amendments and making a plea for not losing sight of the impossible, of the aspirational, and of the radical element of social change that requires us to strive for a horizon that is not-yet-present, and perhaps will never be achievable.⁷

Despite—or perhaps precisely because of—its centrality to the discussion, the term “feminist legal academy” is not defined in the Foreword, most likely because its authors hold “different views in terms of what exactly that should entail.”⁸ The piece helpfully mentions, however, that such a vision could take “quite different forms,” the core feature of which would be “an academy that is attentive to questions of gender justice and distribution in research, teaching, and pedagogy, and in the design of universities and law faculties as workplaces.”⁹ How to give meaning to these goals? Which key areas of intervention could foster a feminist academe? In the spirit of the collaborative dialogue that informs and underlies the Foreword’s analysis, I would like to take on the authors’ invitation to begin to put meat on the bones of the commitment to a “feminist legal academia”— to explore potential steps that could get us from here to there, namely, closer to a more just and inclusive academia for all.¹⁰

4. Slouching towards equality

The challenge is massive. The problems are wildly complex and multilayered. They are also structural and, therefore, often resistant to change and susceptible to backlash. Legal academia is not an island; it is grounded in and reflective of a far broader range of persistent inequalities and histories that cast long shadows. Instead of raising our hands in despair, a more productive line of thought is to explore a set of interrelated ideas about how to potentially foster a concept and vision of feminist legal academia by identifying key areas for intervention. In the limited space allotted to my response, I will identify four such potential courses for action. (A few caveats are in order: None of these proposals is a magic bullet, nor do they pretend to address the full range of concerns. Quite the contrary. Instead, this exercise is devoted to anchoring our energies and taking action, rather than ruminating endlessly about the difficulties of the tasks ahead.)

4.1. Creating a safe and inclusive learning and working environment

One of the most powerful and disturbing parts of the Foreword pertains to evidence establishing that “sexual harassment in academia may be pervasive and worse than in many other work environments.”¹¹ The risk of harassment, abuse, or gender-based violence is higher for women, as well as “gay, bisexual, transgender, queer, intersex, or asexual women and multiracial students.”¹² While some of the gender gaps identified in the Foreword merit a reformist approach, I believe this issue calls for an abolitionist-type response. The authors call upon law faculties and international scholarly organizations to “strengthen their anti-harassment policies . . . [and] to provide support for changes of this kind.”¹³ An even more stringent way to phrase this commitment is to demand that universities, law faculties, and international scholarly organizations create a safe learning and research environment that is free of gendered hostility or intimidation, by adopting zero-tolerance policies toward sexual violence, sexual assault, sexual harassment, and the like.¹⁴

Given the concern that vulnerable populations tend to underreport sexual crimes committed against them, the authors thoughtfully raise the idea of reversing the burden from the individual, who is currently required to come forward with a complaint (before it has been investigated), to placing it on the workplace or organization in which the harm took place, to avert and prevent such incidents or promptly respond to them once they come to light.¹⁵

Beyond such institutional-level measures, which are indispensable for holding wrongdoers to account and making academia a safe(r) place for all, could we not also imagine complementary courses of action, which are more granular and could be implemented from the bottom up? I would propose we should. When it comes to the gender gap in legal academia, one group often overlooked is international students and researchers who might feel silenced, ashamed, or fearful of losing their visa status if they report the sexual harassment they experience in an academic setting. Moving to a new country and operating in a whole new cultural setting, in one’s second or third language, is hard enough. Add to that the risk of exploitation, domination, or improper conduct. Who does one turn to? Instead of leaving people out in the cold, why not familiarize newcomers with resources to consult and doors to knock on before incidents occur? Why not make a habit, individually and collectively, of including in course syllabi or orientation materials prominent information about—and relevant links to—the confidential and free support resources and services afforded (preferably in multiple languages by universities with the budgetary muscle to extend such support) to anyone affiliated with the community, whether as staff members, faculty affiliates, or students?¹⁶

This would not single out those who have suffered gendered violence, harassment, or discrimination, or generate action only after such harms have occurred, but instead would demand that a repudiation of sexual violence and abuse of power be made clear on day one, as part of the “mission statement” of every law faculty. While addressing root causes is extremely difficult, including such language in a course syllabus is rather easy to undertake. Your students would surely appreciate it, and you could pave the way for others to follow by planting the seeds for more systemic, institutional change.¹⁷

And while we are at it (we all have to prepare our syllabi if engaged in teaching), why not take additional steps to reduce and redress other forms of vulnerability, hardship, and suffering in the here and now? I was struck a few years ago when, after an end-of-term reception for a program I ran, one of my students asked if she could take home some of the remaining fresh produce; she mentioned she hadn’t had unprocessed food for weeks on end because she was trying to save on costs. From that day onward, I made a vow to include information about local food banks and community food programs in the syllabi and to underscore this information in class, too (there is growing evidence of the increased prevalence of poverty and food insecurity among students in general and international students in particular). Social change takes years, if not decades, to achieve but, in my interpretation of the Foreword, it also motivates the search for concrete and humane steps to give effect to the view that we owe a heightened duty of care to the people with whom we interact and share space and time in the rich and varied universe of legal academia.¹⁸

4.2. Mentoring and networking

One of the main recommendations of the Foreword authors is that “law schools and international organizations address current problems of gender bias [by] creat[ing] and encourag[ing] mentoring and sponsorship arrangements.”¹⁹ I strongly agree with this proposal, but would also like to point out how quickly the argument transitions from a discussion of legal academia as a workplace, teaching institution, and vocation devoted to the pursuit of knowledge, to a conversation about the measures to be taken by learned societies in the profession. The authors specifically mention the Interactional Association of Constitutional Law (IACL), the International Society of Constitutional Law (ICON-S, the society with which this Journal is associated), and the American Society of International Law (ASIL), among other examples. These associations play a crucial role in the lives of many of us, providing vibrant forums for research dissemination, cross-fertilization, and networking. However, membership in these associations is voluntary and usually culminates in participation in a given society’s annual meeting.

By definition, the level of engagement and time commitment devoted to membership in a professional association is quite different from the more encompassing networks of relations and commitments facilitated by law schools as learning institutions and workplaces. The difference is not only in the scope of operation but also in the intensity and magnitude of interactions. In law schools, such interactions are ongoing, multilayered, and formalized through different institutional roles, the period spent together (a semester, a year, one’s whole career), and the range of activities the participants undertake (doctrinal and non-doctrinal classes, clinics, committees, public-facing activities, leadership roles, and so on). Unfortunately, law faculties are notoriously difficult to change. This may be a result of their legacy, their public standing, or the habit of mind that comes with engaging in a profession where legal interpretation and decision-making processes demand we look back to precedent in the common law tradition or focus on codes and treaties as the primary sources of doctrine in civil law jurisdictions.

No less significantly, law schools operate as gatekeepers to admission to the gilded profession of lawyering—a profession that entrusts its members with the expertise to shape society and the responsibility of guarding the integrity of the grammar and principles of governance in the modern constitutional state—a weighty responsibility. So much so, that in response to today’s era of deepening polarization in the United States (as elsewhere), the American Bar Association Task Force for American Democracy unveiled a letter signed by more than 100 law school deans concerning the training necessary for the next generation of lawyers to sustain the rule of law and democracy, and to teach students to disagree respectfully and to engage across partisan and ideological divides.²⁰ For these and related reasons, law schools are akin to large and heavy carrier ships that require significant effort to make any directional correction, whereas learned societies and professional associations are like sailboats, easier to navigate and redirect their course.

Now that questions of scope are out of the way, let us turn to the substance of the recommendation to facilitate and support mentoring programs to help address the gender gap. I could not agree more. Mentoring, networking, and “showcasing” younger talent are vital for creating a more level playing field for those not historically included in the old boys’ network. Whether formally or informally, providing constructive feedback and putting early career scholars into conversation with established scholars is a fantastic recipe for intellectual dynamism, just as it is a stepping stone to building a more inclusive academic community. It also contributes to transferring knowledge and “know-how” and to creating bonds of trust. Returning to our earlier discussion about transforming the workplace, such bonds of trust could also prove crucial if one faces sexual harassment or any other gender-based violation of their person, safety, or dignity.²¹

4.3. Tackling the (gendered) mailbox avoidance problem

Even if no harassment or stereotyping is experienced, having meaningful and non-hierarchical relationships across different “generations” in academia can help address another key pattern that the Foreword identifies, namely the confidence gap, or what I will refer to as the “mailbox avoidance” problem. Mailbox avoiders adhere to exceptionally demanding standards of performance; they feel pressure to be “perfect,” impeccable, and to answer every critique before submitting their work for review or publication. Like many others, I have observed a disproportionately high concentration of “mailbox avoiders” among talented women and minority students or junior scholars. Recent studies affirm such gender gaps and have found that female law students entering with admission score achievements just as high (if not higher) than their male peers participate less frequently in class and tend to speak up when they “have something important to say,” rather than when they “have something to say.”²²

These patterns have broader societal causes and implications, but in a law school setting, learning to speak up is vital even if one (mistakenly) believes they merely have “something,” not necessarily “something important,” to say. So here is my plea: when encountering mailbox avoiders among JD, LLM, and JSD students, post-doctoral fellows, emerging scholars, and others climbing up the rungs of the academic career ladder, consider speaking to them and encouraging them to give life (and impact) to their voice by pressing that dreaded “send” button. A gesture as simple as pointing out that a paper is quite polished and encouraging its timely submission can go a long, long way.

4.4. Against reinforcing structural injustice: Diversifying diversity

The authors close the piece with a somber discussion of how and why measures designed to address the existing gender gap in legal academia may unintentionally backfire by “exacerbating or reinforcing aspects of the problem.”²³ For example, there is a real concern about entrenching gendered (and racialized) stereotypes that assign women the primary responsibility for caregiving at home—and at work. This is especially true for Latina faculty members or Black female law professors, who serve as visible—and often the sole—role models for students from historically marginalized and excluded communities. We are thus still an ocean away from a future in which legal academia will reach a critical mass of, among others, women, queer people, people of color, and first-gen students and professors.

In such a brave new world, members of underrepresented communities that were once (and currently still are) newcomers to positions of privilege—and the levers of power associated with gaining access to society’s core institutions of knowledge production—would enjoy the same space for, and recognition of, internal diversity within their respective group(s) as that which is taken for granted among members of dominant ones. In this yet-to-exist world, we can envision an embarrassment of riches in terms of diversity and equity along multiple, intersecting axes. Role models would be plentiful, too, and people could share the “load of everyday role-modeling. That way, it will be less of a load for each of us to bear.”²⁴

In this reconfigured legal academia, people would enjoy greater freedom and agency to define how to express their identity and excellence. Today, it would strike no one as surprising to learn that some male professors use the Socratic method, while others do not; some are tough as nails, while others use humor to crack difficult cases. They can bond together on certain issues but are free from the pedestal of forever “speaking” in unison on behalf of communities that are inevitably diverse and varied along multiple axes.

We are still waiting for a tomorrow in which female deans, queer law professors, Black and Latinx academic leaders, students from underprivileged backgrounds, and many others will enjoy the same not as an exceptional or remarkable occasion but as the new normal.

4.5. The backlash

While we can dream of change, the reality outside the halls of academia—and in certain places, also within them—is rancorous and divisive. We are witnessing open assaults in growing parts of the world on the promotion of the values of equality, diversity, and inclusion—whether on account of gender identity, race, intersectionality, or other prohibited grounds for discrimination. The conveners of the new ICON-S interest group on feminism and constitutional democracy, established in Madrid 2024, powerfully captured the zeitgeist of the moment: “the recent success of the conservative, religious, nationalist and populist attacks on women’s rights in many constitutional democracies has brought new urgency to feminist concerns.”²⁵ These concerns are amplified by data showing that a record number of countries, home to more than a third of the world population (some of which, but not all, are defined as constitutional democracies) are “autocratizing.”²⁶

Autocratizing regimes—note the active verb—thrive not only on nationalist sentiments and anti-immigrant rhetoric that ratchets up calls for control measures over borders and membership boundaries; they also thrive on the desire to re-create gendered domination closer to home: restricting women’s reproductive freedoms, resisting gender non-conforming identities by adopting anti-trans laws that codify rigid definitions of gender and sex, and re-criminalizing and in extreme instances prescribing the death penalty for consensual same-sex intimacy.

As the judicialization of politics and the politicization of the law have become ever more prevalent today, constitutions have turned into the battleground upon which competing visions of rights and freedoms and narratives of collective identity are fought.²⁷ When constitutions are under strain, as they are in many parts of the world, the rights of women and LGBTQ+ persons are among the first to be targeted and restricted—think Dobbs v. Jackson Women’s Health Organization in the United States or Uganda’s recent passage of the draconian Anti-Homosexuality Act in 2023. In several countries in Europe (Germany frighteningly among them), we witness calls for “remigration” of asylum seekers, permanent residents, and even citizens who are deemed “unassimilated.” In South Asia, new forms of precarity are associated with the creation of gray zones of “de-citizenship”—the disenfranchisement of members of racialized or targeted minority religious communities by creating lists of “declared foreigners” or “stateless citizens,” in the process dissolving once-non-derogable rights. The backlash against and dispossession of the rights of women and various “Others” is both a bellwether for and a consequence of these seismic pressures.²⁸

But there are also rays of hope. In India, a group of female constitutional lawyers has secured, through litigation, women’s access to the holiest parts of a Hindu temple from which women of reproductive age have traditionally been excluded due to their “impurity.”²⁹ The Supreme Court of Mexico decriminalized abortion nationwide, marking a contrast to the US Supreme Court decision in Dobbs.³⁰ Portugal, Latvia, and South Korea rank high among countries that provide affordable childcare combined with extended and well-paid parental leave, whereas richer countries such as Switzerland and the United States lag behind.³¹ With a looming backlash in many parts of the world, there is no better time to be reminded of the urgency of the Foreword’s call for “renewed commitment and determination in the collective task of tackling injustice along all its dimensions in the academy and beyond.”³²

5. Closing words

Norms, expectations, and institutional structures are incredibly difficult to transform. Much has changed in the short twenty-five years I have been in academia. Yet even the best ideas or policies will flounder if there are no actors to pursue them. When it comes to matters as charged and complicated as undoing centuries of gender and sexual hierarchies, we need champions; we need buy-in from colleagues who are in positions of authority and privilege; we need to know when to stand up and when to lean in; and we need a radical change in institutional culture. While rewriting laws and regulations is a key step forward, it is the transformation of hearts and minds that will bring about lasting change. Great leaders can accelerate such change, whereas mediocre or uncommitted leaders can hold it back.

Whatever your position in academia, however, your actions speak volumes. So let me close with a plea: next time you encounter a mailbox avoider who is not yet certain whether their work is “good enough,” encourage them to proceed to the virtual post office, the online submission portal. There is no other way to engage in the multilogue of academic discussion, to get your name out there, and to build a body of work and a line of argument that is yours. And today’s journal editors might not reflexively assume that you are “Mr. X” and not “Ms. Y” seeking to make a major scholarly break.

Footnotes