A Rose by any other Name Might Become a Judge

Bentley Coffey and Patrick McLaughlin have recently published their intriguing article, titled “Do Masculine Names Help Female Lawyers Become Judges? Evidence from South Carolina,” in American Law and Economics Review (Spring 2009). Here are some excerpts from the paper’s introduction (citations omitted).

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In Shakespeare’s Merchant of Venice, a woman named Portia masquerades as a man in order to argue before the court as an attorney. Indeed, for centuries the only way a woman could have practiced law was incognito because the courtroom was a domain reserved exclusively for men. A notable exception on record is Miss Margaret Brent, circa 1640, who was permitted by Lord Baltimore to practice law as a woman; nonetheless, she was still addressed as “Gentleman Margaret Brent” during her several dozen appearances in the Maryland colonial court.

Most jurisdictions in the western world refused to admit women to the bar before World War I. By the end of the nineteenth century, any woman attempting to practice law was labeled Portia, as was the first school established exclusively for the legal education of women. The first Portia to be admitted to the South Carolina bar was Miss James (Jim) Margrave Perry in 1918. Although women no longer needed a male disguise to practice law, a male persona or male moniker still might have helped.

Despite the fact that women made up half of the students graduating from law school in the past 15 years, the legal profession remains a male-dominated world. Consequentially, one would suspect that having a male persona or male moniker might still be advantageous to a career in law. We dub this the Portia hypothesis: females with masculine names are more successful in legal careers than females with feminine names. The purpose of this paper is to conduct the first empirical test of the Portia hypothesis, using data from South Carolina.

We have good reason to expect to find the Portia hypothesis holding in our data. The first female lawyer in South Carolina had a masculine name and today many female lawyers privately express their belief that their nominal masculinity matters. Anecdotally, the legal profession remains one of the last bastions of the “good old boy network”, particularly in South Carolina. Even in Massachusetts – a state that is often viewed as less traditional than South Carolina – females comprise a small minority of all partners in law firms. Just as precedent-bound law changes slowly, the legal profession is notoriously slow to embrace change. On the other hand, females are a protected class under the Equal Protection Clause of the US Constitution’s 14th Amendment, and no one should understand (and, arguably, respect) that better than lawyers and judges. Yet judicial positions turn over rarely, some even being held for life, so that the equal status for women may not yet have propagated into the upper echelons of the legal profession.

Several different mechanisms could be at work to make the Portia hypothesis hold in the data. A lawyer’s gender could explicitly matter for advancement to some decision makers; for example, some judicial positions are determined by popular election, and the electorate (or sufficiently large subset of it) could categorically prefer men to women. If nothing else were known about an individual besides that individual’s name, the name itself could contain information on the gender of the individual, just as a name contains information on the race of an individual. Just as with the racial discrimination on call-backs for resumes submitted in job applications, individuals may be more likely to get into the pool of candidates receiving serious consideration for the sorts of positions that lead to potential judgeships, i.e. getting their “foot in the door”, when they have a male moniker.

Alternatively, nominal masculinity might matter when opinions are formed about a lawyer’s work, not face-to-face, but through the written word, such as through briefs or publications in law journals. If there is some gender bias in the citation process – that is, if authors are generally more likely to cite a writer with a masculine name than with a feminine name – then we might observe female lawyers with masculine names receiving more citations than female lawyers with feminine names, ceteris paribus, and having relatively fewer citations could affect career outcomes. The mechanism could be even subtler yet. There could be a subconscious preference for male names, even when the gender is known; jurists, clients, superiors, professors, legislators, etc., might just feel more comfortable with a woman called “George” than one called “Barbara”; in the context of the good old boy network, a woman with a male moniker might just feel more like “one of the boys”. Finally, it could just be that the parents who successfully nurture a girl’s ability are the same people who believe that bestowing a child with a masculine name would be advantageous in her future career path.

In this paper, we use the frequency of names and genders of all registered voters in South Carolina to construct a measure of nominal masculinity and assign this measure to each member of the South Carolina bar. Examining the correlation between a lawyer’s advancement to a judgeship and his/her name’s masculinity, we find that nominally masculine names appear to be favored over nominally feminine names. This could be due to the Portia Hypothesis. Alternatively, the correlation between attaining judgeship and masculine names could also arise from the fact that most judges are males, who tend to have more masculine names (by definition).  Because we do not observe the gender of South Carolina bar members, we are unable to control for male domination of the judiciary with that data source.

To separate these two possible causes of correlation between nominal masculinity and judgeship, we combine data on the names and genders of the entire population of registered voters in South Carolina with the publicly available names and genders of judges.  Controlling for gender, we find a significant correlation between nominal masculinity and judgeship, supporting the Portia Hypothesis.  A series of robustness checks confirm the Portia Hypothesis.

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You can download a pre-publication pdf draft of their paper here.

For a sample of related Situationist posts, see “The Gendered Situation of Chess,” “The Situation of Gender-Science Stereotypes,” “Women’s Situational Bind,” “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,” and “Your Group is Bad at Math.”