Implicit Gender Bias in Legal Profession

Justin Levinson and Danielle Young posted their excellent article, “Implicit Gender Bias in the Legal Profession: An Empirical Study” (Duke Journal of Gender Law & Policy, Vol. 18, No. 1, 2010) on SSRN.  Here’s the abstract.

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In order to test the hypothesis that implicit gender bias drives the continued subordination of women in the legal profession, we designed and conducted an empirical study. The study tested whether law students hold implicit gender biases related to women in the legal profession, and further tested whether these implicit biases predict discriminatory decision-making. The results of the study were both concerning and hopeful. As predicted, we found that implicit biases were pervasive; a diverse group of both male and female law students implicitly associated judges with men, not women, and also associated women with the home and family. Yet the results of the remaining portions of the study offered hope. Participants were frequently able to resist their implicit biases and make decisions in gender neutral ways. Taken together, the results of the study highlight two conflicting sides of the ongoing gender debate: first, that the power of implicit gender biases persists, even in the next generation of lawyers; and second, that the emergence of a new generation of egalitarian law students may offer some hope for the future.

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Download article for free.

Related Situationist posts:

• Unequal Juries
• What Are the Legal Implications of Implicit Biases?
• The Gendered Situation of Math, Humanities, and Romance
• Not Just Whistling Vivaldi
• “Women’s Situational Bind,”
• “The Nerdy, Gendered Situation of Computer Science.”
• “Social Psychologists Discuss Stereotype Threat,”
• “The Gendered Situation of Chess,”
• “The Situation of Gender-Science Stereotypes,”
• “The Situation of Gender and Science,”
• “Stereotype Threat and Performance,”
• “The Gendered Situation of Science & Math,”
• “Gender-Imbalanced Situation of Math, Science, and Engineering,”
• “Sex Differences in Math and Science,”
• “You Shouldn’t Stereotype Stereotypes,”
• “Women’s Situation in Economics,”
• “Your Group is Bad at Math,” and
• “Belonging.”

Subtly Sexist Language – Abstract

Pat K. Chew and Lauren Kelley-Chew recently posted their interesting article, Subtly Sexist Language (16 Columbia Journal of Gender and Law 643 (2007) on SSRN.  Here’s the abstract.

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Sometimes, sexist language is blatant and universally shunned. Other times, it is more subtle and even socially acceptable. For instance, as summarized in this article, substantial social science research has considered the use of male-gendered generics (the use of such words as he, man, chairman, or mankind to represent both women and men) rather than gender-neutral alternatives (such as she or he, human, chairperson, or humankind). This research concludes that male-gendered generics are exclusionary of women and tend to reinforce gender stereotypes. Yet, these words may not be recognized as discriminatory because their use is perceived as normative and therefore not unusual. In addition, those who use these words may not be intentionally harmful. Complaining about their use may even be criticized as a trivial activity or an overly sensitive reaction.

Given this social science research, there is a surprising absence of awareness on the use and effect of these words among lawyers, law faculty, law student, and judges. Based on our original empirical analysis of hundreds of legal documents (judicial opinions, legal briefs, and law review articles), we find that the legal community continues to use male-gendered words even though gender-neutral alternatives exist. Thus, while some judges, lawyers, and legal scholars may not intend to be sexist, they are being subtly sexist. The research reveals a strong general pattern of the dominant use of the male-gendered option in a number of word pairs (four out of the nine word pairs) and substantial use in three other word pairs. In contrast, there is the dominant use of the gender-neutral word option in two word pairs.

Finally, the article offers some proactive suggestions. While the legal community is reluctant to change, it did shift from using the male-gendered option of reasonable man to the gender-neutral reasonable person. We suggest that this change occurred because of the legal community’s heightened awareness of the sexist nature of the use of reasonable man, and that a heightened awareness of the subtle sexism of all male-gendered generics could prompt further changes. The article ends with a useful guide on gender neutral language that can be duplicated for distribution in the legal community and elsewhere.

Gatekeepers Inside Out – Abstract

Situationist contributor Sung Hui Kim’s article, “Gatekeepers Inside Out,” was published in the latest issue of Georgetown Journal of Legal Ethics, Vol. 21, p. 411, 2008. The article is available to download for free on SSRN. Here is the abstract.

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Gatekeepers Inside Out challenges the conventional wisdom that in-house counsel are simply “too captured” by their senior managers in their corporations to serve as effective gatekeepers of our securities markets. The author revises classical gatekeeping theory introduced by Prof. Reinier Kraakman in his seminal article (Gatekeepers: Anatomy of a Third Party Enforcement Strategy, 2 J.L. Econ. & Org. 53 (1986)). In that article, Kraakman clarified that a gatekeeping strategy requires gatekeepers “who can and will prevent misconduct reliably, regardless of the preferences and market alternatives of wrongdoers.” Although Kraakman did not make much of the distinction, he recognized that successful gatekeepers must not only be “willing” but also “able” to prevent misconduct. Now, consider also that gatekeepers must not only be prepared to “interdict” misconduct but also to “monitor” to detect such happenings in the first place. By combining these two simple observations, we see that potential gatekeepers can be evaluated by their: (1) willingness to interdict, (2) willingness to monitor, (3) capacity to monitor, and (4) capacity to interdict. Using this new framework of analysis, the author compares inside and outside counsel for the gatekeeping role. Along the way, the author departs from traditional gatekeeping theory’s exclusive reliance on rational choice theory and imports empirical findings from social psychology and sociology that illuminate the four conditions of effective gatekeeping. By running inside and outside counsel through this rigorous mill of analysis, the author comes to unexpected conclusions. The analytical framework set forth by the author can also be used to evaluate the effectiveness of other traditional gatekeepers, including investment bankers, securities analysts, accountants, and, yes, even credit agencies.

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Here is a quotation from the article:

[T]o understand the willingness of gatekeepers to interdict misbehavior, it may not be most illuminating to consider costs and benefits consciously calculated based on the model of the rational actor. Indeed, the efficacy of sanctions in constraining behavior may be seriously eroded by various psychological factors. Instead, as social psychology teaches us, we may be inclined toward certain behaviors through cognitive processes guided by the the situation and the roles we inhabit in those situations.

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To link to the entire article, click here. To access a related article by Professor Kim, see “The Banality of Fraud: Re-Situating the Inside Counsel as Gatekeeper.” For related Situationist posts by Professor Kim, see “Why Do Lawyers Acquiesce In Their Clients’ Misconduct?” — Part I, Part II, and Part III.

Gatekeepers Inside Out – Abstract

Situationist contributor Sung Hui Kim recently posted her forthcoming article, “Gatekeepers Inside Out” (forthcoming in the Georgetown Journal of Legal Ethics), on SSRN. Here’s the abstract.

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Gatekeepers Inside Out challenges the conventional wisdom that in-house counsel are simply “too captured” by their senior managers in their corporations to serve as effective gatekeepers of our securities markets. The author revises classical gatekeeping theory introduced by Prof. Reinier Kraakman in his seminal article (Gatekeepers: Anatomy of a Third Party Enforcement Strategy, 2 J.L. Econ. & Org. 53 (1986)). In that article, Kraakman clarified that a gatekeeping strategy requires gatekeepers “who can and will prevent misconduct reliably, regardless of the preferences and market alternatives of wrongdoers.” Although Kraakman did not make much of the distinction, he recognized that successful gatekeepers must not only be “willing” but also “able” to prevent misconduct. Now, consider also that gatekeepers must not only be prepared to “interdict” misconduct but also to “monitor” to detect such happenings in the first place. By combining these two simple observations, we see that potential gatekeepers can be evaluated by their: (1) willingness to interdict, (2) willingness to monitor, (3) capacity to monitor, and (4) capacity to interdict. Using this new framework of analysis, the author compares inside and outside counsel for the gatekeeping role. Along the way, the author departs from traditional gatekeeping theory’s exclusive reliance on rational choice theory and imports empirical findings from social psychology and sociology that illuminate the four conditions of effective gatekeeping. By running inside and outside counsel through this rigorous mill of analysis, the author comes to unexpected conclusions. The analytical framework set forth by the author can also be used to evaluate the effectiveness of other traditional gatekeepers, including investment bankers, securities analysts, accountants, and, yes, even credit agencies.

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To read related Situationist posts by Professor Kim, see “Why Do Lawyers Acquiesce In Their Clients’ Misconduct?,” Part I, Part II, and Part III.