Abstract

Excerpted From: Keerthana Nunna, W. Nicholson Price II and Jonathan Tietz, Hierarchy, Race, and Gender in Legal Scholarly Networks, 75 Stanford Law Review 71 (January, 2023) (252 Footnotes) (Full Document)

The traditional myth of legal scholarship is that it is largely meritocratic and largely solitary. Under such a view, what gets you ahead is simply a good idea: a head-turning paper that generates a whirlwind of citations and chatter purely through its brilliance. Under such a view, demographic considerations like an author's race, gender, and academic pedigree should matter little in the marketplace of ideas. That myth may comfort those who ended up atop the tower, but it is belied by reality. Hierarchy, race, and gender matter to a legal academic's success; they matter to the acceptance of her ideas; they matter to her own experience.

Against a rich backdrop of theoretical and qualitative work examining these issues, we present here a quantitative study of one way to observe the impact of hierarchy, race, and gender: the acknowledgments sections of law review and what they can tell us about legal scholarly networks. The author footnote--variously known as the star, dagger, biographical, vanity, or bug footnote--gives a peek into who contributed (nominally, at least) to the intellectual product that is the final, published law review article. provide small, partial portraits of the author's professional and social networks. Taken in the aggregate, these give a peek (cloudy, to be sure) into the underlying relationships, interactions, and social networks that make up legal academia. And we can examine that picture for signs of the effects of hierarchy, race, and gender to see whether those characteristics show up in a quantitatively observable fashion. (Spoiler alert: They do.)

Here, we examine the star of nearly 30,000 law review articles published in generalist law journals over nearly a decade. We probe who acknowledges whom, how school rank matters, and what racial and gender-based disparities exist in who gets asked for help or who gets credit (it's hard to tell) in scholarly papers. We freely admit that the operative mechanism is hard to discern: We have no ready way to tell, for instance, whose comments at conferences get thanked and whose don't, or who has time and funding to attend conferences in the first place. But we do what we can with the data we have. Not to hide the ball: We find that authors tend to acknowledge scholars from peer schools, most of all their own school, but also typically acknowledge folks from somewhat fancier schools. We find that men are acknowledged more than women and nonbinary scholars, and white scholars more than scholars of color. We examine intersectional effects, which are complex--read on to find out more. One bright spot here: Networks of scholars of color appear to be particularly robust.

We also look to one subcommunity to see whether patterns change. We examine the network of scholars working in technology and intellectual property law (“tech/IP”), an unwieldy but meaningful classification, as a specialist group that we might expect to interact meaningfully within itself (and with which we are most familiar). Surprisingly, nearly half of acknowledgments by tech/IP scholars are to scholars outside the field. But even within a subcommunity known to be friendly and welcoming, pernicious effects persist; white tech/IP scholars are acknowledged much more than tech/IP scholars of color.

These results cast more light on the problems of inequality pervasive throughout the legal academy. Our findings are not definitive answers, but provide some quantitative evidence to add to the growing body of scholarship in the area.

This Article proceeds in four Parts. Part I provides some scholarly background in the field. Part II presents our methods, drawing heavily on prior work by two of us (NP and JT). Part III gives our results. Part IV discusses those results and offers some concluding thoughts. An Appendix provides more details on our methods and descriptive statistics for those who are particularly interested.

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Our data show disturbing evidence that hierarchy, race, and gender are implicated in the structure of scholarly networks, including in knowledge co-production in legal scholarship. That is, it is not just citation counts or article placement that are different for these groups: It is the social network of legal academia.

As we noted at the outset, acknowledgments are an imperfect proxy for the scholarly community. For instance, over-acknowledgment of white men could reflect active or implicit racial bias on the part of authors; the structural inequalities that cause women and especially women of color to have increased informal service expectations and thus possibly less time to offer comments; or differential attendance at conferences, where bigwigs may both have the resources to attend more conferences and may also be disproportionately white and male. Relatedly, it could reflect the potential race and gender imbalance of questions and comments at conferences independent of who attends. Or it could reflect the tendency of some authors to try to cultivate particularly fancy or senior authors in their acknowledgments, who are disproportionately white and male. It may reflect the varied demographics of subfields, each of which might have its own acknowledgment norms. Finally, it could Also reflect the desire by some senior faculty members, likely disproportionately white men, to give back to the community; or any number of other possibilities. There are many possibilities, even if few of them are really untroubling. We can present patterns and suggest possible interpretations, but fully understanding scholarly networks and knowledge co-production should include robust qualitative work that is outside our scope here. Further quantitative work could also be fruitful. Still, given the stringent authorship norms of legal academia, and the narrow topical dependence of citations, we at least think that acknowledgments, imperfect as they may be, represent a rich complement to the existing picture of the network landscape based on coauthorship and citations. Acknowledgments probably present a fuller view of academic communities.

Even if acknowledgments aren't a good reflection of underlying scholarly networks, relationships, and interactions, the imbalances observed above are problematic--especially absent any conceivable and demonstrable innocuous explanation. In prior work, two of us (NP & JT) have shown that acknowledgments matter in the law-review placement process, which in turn matters for scholars more generally (more than it should, certainly). While we focused in that work on the instrumental value of acknowledging other scholars in placing a work, if acknowledgments are a kind of academic currency, then inequality in the spending and receipt of that currency is itself troublesome, even if it doesn't say much about underlying relationships. After all, the point might be that some groups are valued less than others by authors, even if inadvertently. But we think that acknowledgments do say useful things about underlying relationships--or, at least, that they suggest problems that accord with the strong qualitative and semiquantitative work that already exists in this field, and thus lend supporting quantitative evidence to those points.

Scholarly networks reflect law school hierarchies; authors tend to acknowledge scholars at schools near theirs in rank. There are many possible explanations, and it's difficult to pin one (or more) down. It might be that folks at high-ranked schools have lots of free time to give sagacious comments, or that they have funds to travel to conferences and offer thoughts, that they just prefer to interact with and acknowledge others at other fancy places, or that they preferentially address feedback from those at those places and only acknowledge those whose feedback they address. But to the extent that hierarchical acknowledgments reflect scholarly networks, we should at least wonder whether that's healthy. Initial placement into academic positions is heavily pedigree-based, after all. And so if one's scholarly network largely hovers around where one first lands, that's a problem both for dispersion of ideas as well as for upward academic social mobility. And recall: This prestige-proximity postulate isn't simply explainable by same-school citing, nor by other properties of highly placed articles (for example, that higher-ranked journals tend to have articles with more acknowledgments). If publication, research, and mentorship can increasingly be done across institutions (and even over Twitter), shouldn't scholarly networks increasingly bridge the prestige gap? (That said, it's beyond our current data to look longitudinally. Perhaps professors' prior prestige-proximity proclivity will pass.)

Scholarly networks have racialized, gendered, and intersectional disparities. These disparities are prima facie problematic, though some subset seem justifiable (for instance, we see little to criticize about members of underrepresented minorities building strong scholarly networks within those groups). The contours of these disparities are complex, and the overlap of differing effects is nonobvious (for instance, racial demographics vary somewhat by school rank). But patterns of acknowledgment provide suggestive quantitative evidence to support existing claims that scholars of color, women and nonbinary scholars, and especially women and nonbinary scholars of color are systematically excluded, at least partially, from aspects of legal scholarly networks and interactions. This is, to put it mildly, deeply problematic.

What to do? The most trivial intervention, and the most straightforward, is to ensure that if scholars from underrepresented groups do contribute to a paper, they are most certainly acknowledged. We would encourage authors to make a special effort to pay attention to their acknowledgments and not, for instance, default to acknowledgments of casual comments by fancy usual suspects at the expense of contributions by those outside the spotlight.

At a deeper level, many interventions to better integrate scholars outside the white-male default have been suggested, and we hope that such suggestions would help increase integration into scholarly networks. Efforts to increase diversity and representation at conferences, especially small conferences where most participants are expected to contribute, would likely help build more diverse scholarly networks. Conferences that foster close connections are an especially attractive option; the Junior Scholars in IP conference at Michigan State University, for instance, connects senior IP scholars with juniors in the field, and uses a double-blind selection process. Reaching out to more diverse scholars for comments is, of course, something of a double-edged sword: On the one hand, strengthening diverse networks seems to be an unarguable good, but on the other hand, burdening scholars from underrepresented groups with additional informal obligations adds to the already heightened loads carried by such scholars. Decreasing those other burdens is itself an important goal, which may free up space and time for additional scholarly engagement. Best suited to advancing all these efforts, of course, and to increasing the diversity of scholarly networks--with the concomitant benefits to collegiality and the quality of scholarship--are efforts to diversify the legal academy itself. Build a diverse legal academy and the network effects will help with the rest.

Keerthana Nunna is a 2021 graduate of the University of Michigan Law School.

W. Nicholson Price II is a Professor of Law, University of Michigan Law School.

Jonathan Tietz is an associate at Perkins Coie LLP.