You will notice that law schools where women succeed have lots of things in common, like being public institutions and having satisfied students of both sexes, and you'll see that law schools where women fail have lots of things in common, too, like being mostly in the South or in the city of Chicago and having students who sound kind of grumpy.
After studying the matter at Penn, newly appointed Harvard professor Lani Guinier wrote a whole book about what she thinks is wrong with all legal education. But other than the Penn numbers, most of the thinking was just speculation. This article is going to look at what a couple of success schools are doing that's different.
This matters to you as future law students for three reasons. One, you will see that good schools for women are good for people of both genders and good for training lawyers. So you won't feel like a whiner if you ask the school to give you what you need (for your $30,000 or $40,000 in tuition money). Second, you will find out what to ask for at your schools of choice.
Finally, if you care about other women and want to do a little something to make a better world, you'll learn what you should be seeking at your law school. After all, most congressmen, mayors, presidents, and so on, are lawyers. If law students learn to expect women to be successful fellow and sister citizens and are educated in a respectful law school environment, maybe they'll run the world a little better for women as a result.
This article takes a closer look at two success schools, NYU, the second most women-friendly of the elite schools in Status Group #1, and Arizona State University, the most women- friendly of the middle range of schools in Status Group #4. We also take a look at two less successful schools, George Mason, one of the least women-friendly, and McGeorge, where women didn't make law review much, which is a surprise in the failure category, because McGeorge is not located in the Old South.
For this article, I also looked at the literature about how social institutions other than law schools react to a change in the racial or gender composition of their members. I was amazed to learn-and maybe you will be, too-how accurately the literature about racial and gender diversity predicts where women will succeed and fail in law school. Briefly, the literature asserts that there are four responses to the appearance of newcomers in an institution. First, Exclusion, in which outsiders are completely shut out. The famous white male canon of Western literature is an example of Exclusion. The second stage is Quantitative Diversity, in which women or the excluded group are brought into the institution without any intent or desire to change anything else about the place. Cigar-smoking tax lawyers in skirts are an example of the Quantitative Diversity of many law firms.
Sometimes, Quantitative Diversity requires "retooling the newcomers," so they can be assimilated or "fit in." I want to confess right here that this article is in part an effort to retool women to succeed according to the unreconstructed norms of formerly exclusive institutions of legal education. Some retooling is both difficult and necessary.
The retooling is necessary, because, regardless of gender, going to law school of necessity requires some retooling of all incoming students. All law students must acquire new learning habits, because they must learn how to argue from an existing law or set of case decisions to a new outcome. Remember the case of the sixteen-year-old who deliberately misled the merchant we discussed in the previous article. If the law the legislature passed doesn't specifically address the problem, lawyers are going to have to convince judges to interpret the law in favor of their client, whether the youngster who's trying to escape his contract or the merchant who's trying to enforce it. Because the political history of the English-speaking democracies requires most law to be the product of elected legislatures, if the law is unclear, mostly unelected judges can't just free-associate about what they'd like the law to be. Accordingly, law students must learn how to make arguments to push the interpretation of existing statutes in the direction of their clients' positions, in order to achieve the outcomes their clients desire from judges who are ultimately answerable to the democratically elected legislators.
The retooling also exists because the common law system we inherited from our English settlers, which lacks even the fig leaf of legislative authorship of statutes, actually allows judges to make law themselves. This presents judges in a democracy with an even harder problem. The common law system solves this problem similarly to the way it solves the problem of having unelected judges tell us what the statutes mean. It pretends the judges are just extending preexisting doctrines. Accordingly, law students in our common law system are going to have to work even harder than in statutory systems to learn how to imagine cases stopping short or going beyond their existing rationales and facts. If, for example, you are faced with a case involving a sale to someone under eighteen, you are going to have to learn to reason by analogy ("Is this more like the rare mature thirteen-year-old, or the mature, deliberately misrepresenting sixteen-year-old?") And you will be subjected to Socratic dialogue to inculcate the habits of pressing your assumptions to the limit. If you contend that mental age should count, your teacher may ask, "If we're going to consider mental age every time we're concerned with age, how long would it take to sell a beer?" You will be asked to demonstrate your ability to reason by analogy and defend your ideas on issue-spotting examinations ("An underage but very smart sixteen-year-old college freshman approaches a computer salesman"). Very few colleges use those teaching methods. Some retooling for law school is unavoidable.
Sometimes, Berger et al. note, the newcomers take on the task of trying to fit in. Where the retooling is necessary, this is an appropriate response. The problem is that women seem to be having a harder time retooling for law school than men are. Scholars speculate that this is because women are more relational, more consultative, less confident in public argument, and so forth, so their retooling job for a culture of distinction drawing, Socratic arguing, and issue-spotting is bigger. At some level, it doesn't matter whether this female stereotype is true or not. Sociologist Claude Steele has produced remarkable evidence that when behaviors stereotypically associated with an excluded group are disfavored, the group members experience stereotype threat. Stereotype threat means they internalize their low status and expect themselves to fail. Anticipating failure, they fail at higher rates than necessary. If the law school can't value the traits of relationalism, consultativeness, conciliation, and thoughtfulness, then women are stuck. They must do all the hard work of retooling the guys do, plus correct for their disfavored traits if they have them, and labor under a burden of stereotype threat whether they have those female traits or not!
We will see that law schools can value such traits as building on other people's statements, taking time to think before claiming a share of the collective attention of the class, cooperative problem solving, patient research, careful writing, thoughtful analysis, and skillful listening, and would benefit from doing so. So a piece of the burden of retooling that women bear is unnecessary. Nonetheless, to the extent that the legal system requires the contrary traits of arguing risky or imaginative points, thinking on your feet alone, and analyzing from your clients' interests exclusively, etc., women must retool.
The third response is to establish Perspectives on Exclusion and Perspectives on Difference. We will hear the stories of the women at dozens of law schools. By telling these stories, we will identify such sources of exclusion as lack of confidence and the naturalizing of social or learned behaviors. My favorite is the story of the male law student who brought into the classroom a lot of information he learned clerking in a law firm. When one of his male classmates asked him how he knew so much, the know-it-all admitted he had seen a lot of cases in his clerking job. When a woman asked the same question, the classroom big mouth said the law came "naturally" to him.
I'd like to go one better than just describing stereotype threat and identify why the lack of confidence extracts a price. It will help the excluded group, because it makes the stereotype threat visible, hopefully discouraging women from internalizing their inferior status. I also seek to realize Perspectives on Difference by identifying bad differences-I will argue that it's bad for women to be unwilling to take the risks associated with participating in the law review writing contest, for example. And I will emphasize examples of good differences-for example, female cooperativeness led to the establishment of a class outline network open to anyone who wished to participate to replace the exclusive Old Boy outline network at the University of Arizona.
Finally, the community may come to the point of integrating the newcomers in part by adopting the good differences, what Berger et al. call "Qualitative Integration." We will see how all the firms we spoke to and the schools where women succeed have integrated the differences rightly or wrongly associated with women, differences such as listening, mediating, community building, and collective problem solving that the newcomers bring, to the apparent advantage of all the people involved. Coincidentally, this integration minimizes the effect of stereotype threat.
Bottom line of institutions that have reached Qualitative Integration? Women do better. Let's see the process at work in real schools.
Two Law Schools Where Women Succeed: NYU and Arizona State
Although NYU has been approved by the American Bar Association since 1930, in an important sense it is as new as Arizona State University, which celebrated its thirtieth anniversary recently. For reasons of history, NYU had come into ownership of a pasta manufacturer, the Mueller Macaroni Company. When the law school sold its pasta holdings in 1977, NYU became one of the richest law schools in the country. Like any of the newly rich, the school responded by building itself a fancy new home along with a bunch of other buildings-libraries, dormitory, etc. That's when the fun began.
For about a generation, law schools have been competing for status based on the "scholarship" of their faculty. No one exactly knows how this development came about, in an educational institution originally intended to train people in the methods and content of legal doctrine to enable them to engage in the professional practice of law. (Law schools coexisted on an equal footing for a long time with "reading" law as an apprentice in a law office. The Harvard philosophy department they were not.)
The likeliest culprit in this "scholarship" business is Yale, which, a perpetual second to Harvard in the corporate-lawyers-trained- and-employed department, some time in the sixties began to evolve an image as an intellectual bastion, with people on the faculty writing about-and then teaching-courses in law and literature and the like. The University of Chicago produced a bunch of men devoted to analyzing law as an economic system designed to produce efficient outcomes, and then everybody picked their favorite nonlegal discipline to pursue. Reacting to the incursion of outside disciplines, traditional legal scholars produced theoretical analyses rooted in the development of legal doctrine. Fine distinctions and at least a superficial familiarity with disciplines like economics became central to prestigious law teaching. Interpreting, rather than learning, the law became the vogue. Writing up interpretations rather than training students in the range of practical skills necessary for them to take their places in the corporate world became the avenue to successful academic careers. Since lawyers seem to be natural creators of hierarchy, they quickly established a pecking order of prestigious publications, led, not surprisingly, by the Yale Law Journal, and the race was on.
NYU had lagged significantly behind in the emphasis it put on "scholarship" in this sense. However, as the heritage of its scrappy past, NYU had two very avant-garde programs-the Root-Tilden Public Interest Fellowships and a very large, very well regarded legal clinic, for teaching students by actually working on cases-and those mostly practical programs absorbed a lot of the resources and interest of the institution. Right about the time Sexton was being considered for dean, famed criminal lawyer Anthony Amsterdam conceived of a third, non-scholarship program, the "lawyering program," wherein first-year students spend several credit hours per term in small groups, in real and simulated client interviews, counseling, negotiations, and advocacy, both formal and informal.
At this crossroads, Sexton was the scholars' candidate. In the decade of his stewardship, he has boasted of luring scholars from Yale itself and going head-to-head with Harvard over the hottest prospects in the legal academy. However, despite his extraordinary energy and education, he was himself not all that noted a scholar, and this probably turned out to be a blessing in disguise. In addition to hiring all these philosophers and doctrinal theorists, Sexton also presided over the expansion of the lawyering program, with its insatiable demands for faculty staffing and the establishment of a colloquium designed to analyze the process of lawyering. Steven Kalban, the executive director of NYU's Public Interest Law Center, started the Public Interest Law Colloquium, which now boasts eighty-five to ninety member schools, to try to build students' access to public interest programs. Through programs in loan forgiveness, public interest scholarships, and $3,000 summer stipends, NYU brings resources to bear to enable its students to pursue public interest careers.
The most remarkable thing about the NYU program is that public interest is not marginal at NYU. The Root-Tilden fellowships, which provide tuition in exchange for a commitment to public interest, are among the most prestigious in the school. The "Roots," as they are called, are selected from a huge pool of applicants by a committee of former Roots, faculty, present students, and federal judges, and often the application process is a fast track to the prestigious clerkships students at the elite schools so cherish. In 1996, 80 percent of Roots had clerkships with federal judges, while only 17 percent of the overall student body did.
Although many of the Roots are women, Kalban would not concede to a pink ghetto: "To say it's a woman thing is to degrade it. NYU expects [students will] be doing public service during your years at the firm. We're not second-class citizens here." Kalban credits Sexton: "The first thing the dean talks to the students about in orientation is the responsibility to incorporate public interest in your career."
Why do these programs help women to succeed? Women express themselves as interested in public interest careers in much greater numbers than do men. As it turns out, at least for the class of 1995, only a tiny percentage of NYU grads were actually working public interest jobs, although we know a lot of the Roots were clerking for judges. Perhaps, even without much actual product, the simple regard for public interest work, stereotypically associated with women students, removed the stereotype threat a little.
Second, women are stereotypically associated with a wider range of capacities than the "dreaded first year" calls forth, at least in most places. At NYU, the lawyering program, by honoring and eliciting capacities for careful listening, for human community forming, for cooperative working, is prominently situated in the required first-year curriculum. Lawyering occupies only a few of the hours of NYU's required first-year curriculum, and lawyering is only pass/fail, so it wouldn't raise the grades of the first-year women and alone account for their superior performance in making law review. But here, again, women are offered a world in which they are expected to succeed right in the middle of the dreaded first year. And they do succeed. The connection is up to you to decide. Remember, even at places where nothing is done to ease the process of retooling, one study reports that women only lag behind men an imperceptible amount at the average and one grade in eight courses at the median.
Maybe the amount of respect activities traditionally associated with women get at NYU is just enough to boost their confidence and enable them to retool as a man would do.
I don't want to overstate the case. Lots of the women at NYU have complaints similar to women elsewhere. They complain that the classes are too big, and only the big mouths get known, and only the known get clerkship recommendations. They started a group, the 2Xers, to look into problems of gender after Lani Guinier blew the whistle at Penn. NYU is not heaven. But it's obviously doing some things right.
Started in 1967 when the boom in lawyers just began, Arizona State University law school is a very young law school. Not only is ASU the top school for women in its status hierarchy, Group #4, it's one of the top over all.
As at NYU, the women I interviewed at ASU differed widely on what they thought. In an anonymous student survey, several of them expressed the usual discomfort with speaking in the big classes because of fear of "people wait[ing] for you to make an ass of yourself" or feeling the professors are using them or "standing] up there like God" "with absolutely no interest in what women think." They also articulated a powerful anger with their male classmates-"guys talk and say almost nothing . . . these men never shut up . . . even the class bully gets reinforcement from the professors," and lots, lots more. ASU had a big problem with an alleged sexual harassment incident a couple of years ago, and last year students protested the return from leave of the accused teacher.
But others are extremely happy there. One first-year student, a woman with an interest in Indian law, thought the entire law school experience was individual, estimated that the women participated in the same numbers as the men, and perceived the professors as extremely receptive. Even one first-year teacher generally classified as the Kingsfield of ASU didn't scare Ms. Indian Law. "He's smart and funny and knowledgeable," she said. "I learned a lot."
Ms. Law's attitude was especially convincing, because when I interviewed her she had only achieved respectable first-semester grades, so she didn't have the common bias of people to love an institution that has valued them highly. Moreover, she had left her prior field due to gender bias, and she was trained in a specialty dealing with human behavior in groups. So, as she quickly assured me, she was the last person to miss gender bias or stereotype behavior or stereotype threat, if it was there.
As a big western state school, ASU is more representative of the success schools than NYU is. Women outperform themselves at the University of Washington, at UCLA, at the University of California at Davis, at Oregon; even at the state school of conservative Mormon Utah, the University of Utah. Yet, as different as Tempe, Arizona, is from Greenwich Village, lots of things are the same.
Students and faculty at both places report a powerful norm of cooperativeness and a downgrading of competitiveness. The faculty at ASU contended in interviews that there's a "culture here that's passed on," a "cooperative atmosphere." The atmosphere at ASU gets going at orientation before the students start. Speculating about why ASU's women succeed so well, faculty mentioned in passing that orientation had included a psychologist. Although the faculty weren't sure it mattered, one of the women students I interviewed mentioned it immediately. "One of the first people I saw was a psychologist!" she said, in some amazement. "The psychologist told us we were in a class full of 'top ten percent' students and that 'P=JD,' which means pass equals juris doctor." The student continued, "At exam time you could hear the students going around chanting 'P=JD, P=JD.' " Such input can't help alleviating the burden of the first-year competition for grades. The student services department at ASU helps the students with everything from counseling to loans to extensions of due dates. The woman who ran student services for years reputedly knew the name of every student within weeks after their arrival.
Perhaps not coincidentally, ASU, like NYU, has a program in the first year that powerfully rewards the traits stereotypically associated with women. At ASU, the program is moot court. Moot court is the training in appellate argument and consists generally of an assigned legal problem that the students must brief and argue in "teams" of "lawyers," each team representing one side of the issue. Moot court is part of legal writing at ASU, and like lawyering, is essentially pass/fail and not part of the GPA, although the students who make it to the finals get to argue before real local lawyers and judges. After the students complete their closing briefs and arguments for the moot court part of legal writing, they can submit their final briefs and arguments for an optional competition.
The year following the competition, the three winners are placed on the school's moot court teams, which compete in the three national moot court competitions-the general national moot court competition, the First Amendment competition, and the Environmental Moot Court Competition. At the present moment, the entire moot court program at ASU is run by women students.
There are very few women on either faculty-only 21 percent at ASU and 20 percent at NYU. ASU makes up for its failure to hire women faculty in part by concentrating the women in the first-year classes. Of the six women on the faculty, all but one teach in the first year. Since ASU is so small (student body 463 altogether), there are only two sections in the first-year class. These two statistics, taken together, mean that most students at ASU have at least one and usually more than one female first-year teacher. Making such good use of a small number of female faculty members doesn't help the many qualified women looking for jobs in law teaching, but it sure may affect the students.
As a state school in a big city, ASU does manifest one characteristic that NYU lacks: It's an opportunity school for very well qualified women who would otherwise not get to go to law school. The availability of in-state tuition and location in a population center where they would find work or where their husbands or mates have work mean that women can shoehorn law school in. I can't cite statistics, but if you think about your lives and the lives of the women you know, you will realize that women, more than men, have to shoehorn in their educational and career ambitions among a host of other commitments. For long-standing social reasons, women move to where their men's work is, not vice versa. Instead of going to where Harvard is, women have to find a law school where they happen to be living. Because of these social reasons, although women go to college in large numbers, women are also less likely to claim familial resources or go deeply into debt to go to graduate school. They just have to manage law school financially somehow.
Accordingly, state schools in cities where women can already live their roles as wives and breadwinners play the role they have historically played in America: helping otherwise qualified people in the society to raise their sights. If these women were men, they wouldn't be at ASU; they'd be at Berkeley or Duke or Vanderbilt or the University of Illinois, all schools with much higher status ranking. But they have to live in Phoenix. So they go to ASU.
I had figured this all out when, by chance, my interviewing schedule presented me with a flesh-and-blood example of this phenomenon, an older ex-M.B.A. and second-year law student I'll call Juliet. Juliet, eastern born and bred, got a B.A. from a prestigious Ivy League college, an M.B.A. from a respectable grad school, but then followed her husband to a southern state as he pursued his career. She got a job she hated working for a corporation with a bad woman problem, and then followed her husband again when he moved to Phoenix, in pursuit of his career. If Juliet hadn't met her Romeo, it seems pretty clear she would never have moved to the South, never worked for a company that was a holdover from an earlier era of American life, never gone to Phoenix, and never gone to ASU law school.
As it was, Juliet was destined to star there. With an LSAT of 167, she was well over the median at ASU. Indeed, chances are she could have gone to Stanford. By the end of her first year, she was in the top 10 percent of her class, had made law review, and was on the award-winning environmental moot court championship team. The wide-open West also seemed incredibly welcoming to Juliet after her stint in the South. She described law school as a veritable haven of gender equality after her last experience and, like Ms. Indian Law, said she would surely recognize discrimination after her experiences in the M.B.A. program and at work. "The women here really speak up," she said, and "there's no hostility from the professors."
As someone in the top 10 percent of her class, Juliet had no problem at all getting a job at one of the most prestigious firms in Phoenix, all of which interview at ASU. When asked about women's success, she identified some of the same factors the faculty had. While she had had "only" two women professors the first year, "the two were fabulous persons," and Juliet also noted that the assistant dean (and professor) Hannah Arterian was "a fabulous role model." Juliet articulated the beneficial effect of the heavily female moot court competition, expressing gleeful satisfaction with the warm and trusting cooperative relationships that had developed among the women in her all-women team. Since moot court teams argue as a team, of course, characteristics stereotypically female and thus the source of stereotype threat in most circumstances are beneficial. So where moot court is important, women benefit. In Juliet's case, they went on to win the nationals.
She also thought that being a little older helped her succeed. If she could advise you readers of only one thing, she said, she'd tell you to wait a few years before going to school. Juliet: and Ms. Indian Law both told me something that almost summed up completely the atmosphere for women at ASU: They said that in 1998 the Womens Law Student Association was voted the best student organization on the whole campus.
Two Law Schools Where Women Don't Succeed As Well:
George Mason and McGeorge
Does history matter? ASU is only thirty years old; NYU reinvented itself in the seventies and eighties. Seven of the top fifteen success schools are in western states. Chris Littleton, the well loved feminist law teacher at UCLA (rank fourth out of sixteen in its status group; success rate for women 101 percent) thinks that women do well at UCLA because it's just too new to have the historic sexist baggage of older schools in its status group.
None of the guidebooks tell you, but George Mason University School of Law (rank third out of three in Status Group) #6) was founded by a conservative Christian group in Virginia as the old International School of Law in 1972. Facing some difficulty getting accreditation and coming to the realization that all its graduates weren't going to be evangelical Christians, the school began broadening its hiring practices in the seventies and also acquired a very valuable piece of property in Arlington, Virginia. Meanwhile, George Mason, a Virginia state school in Fairfax, had been looking for a law school, and a deal was struck.
George Mason Law School didn't really come onto the map until it hired the law and economics entrepreneur Henry Manne as dean in 1986, just before full accreditation. Manne, a New Orleans native, who had been converted to a strict economic analysis of law at the University of Chicago in the sixties, had been making his way up the academic ladder for decades, first at Miami, then Emory, and so forth. Law and economics emphasizes that the law should aim at making the most economically productive social arrangements, with an assumption that productivity usually results from everyone being a free individual acting as competitively as possible. Government should be as small as possible, law should do as little as possible, and individuals should be as free as possible. As a political matter, this approach results in great freedom for the most powerful players, and it has garnered great support from traditionally conservative thinkers and funders. Everywhere Manne went, he took his Law and Economics Institute, funded by conservative foundations such as the Olin Foundation.
When Manne became dean, he fired or bought out most of the faculty and hired a lot of law- and economics-oriented academics. He made Quantitative Methods, a course in economics, accounting, and statistics, required, and established four specialty tracks: Regulatory Law, for practice before agencies that regulate business, International Business, Litigation, which is explicitly "not a clinical training program," and Intellectual Property, for engineers or other science types who want to become patent lawyers. Manne took the law review away from the student editors and insisted that grades be uninflated and workload high.
Although faculty interviewees insisted that there was no sectarian holdover from the school's Christian conservative founding, one professor noted that the school does employ twenty-four law and economics scholars out of its twenty-seven academic faculty, and such intellectual diversity as exists comes almost exclusively from the inclusion of all types of law and economics scholars. Even among the economics types, however, there are, one faculty member says, no Marxists, and no followers of Harvard welfare economist and recent Nobel Prize winner Amartya Sen; among noneconomics scholars, there are "no crits [leftist critical legal scholars], no traditional feminist scholars." After Manne came, he hired two failed Reagan Supreme Court nominees, Robert Bork and Douglas Ginsburg. Manne's law and economics summer institute drew fire from the left-oriented Alliance for Justice, because it takes federal judges to very fancy resorts and pays all their bills, amounting sometimes to thousands of dollars, all under the aegis of teaching them how to analyze problems to produce what the law and economics people consider economically desirable results.
The Olin Foundation countered that the George Mason courses expose judges to several different economic theories, including some that the Alliance would find congenial, and the attendees are "perfectly capable of drawing their own conclusions."
George Mason has very few women on its faculty; current women teachers speculate that the word of mouth on George Mason's orientation may be a factor, regardless of how true it is. There are usually no women teaching in the first year, except for the traditionally marginal legal writing teachers and an occasional section of criminal law. Last year, Manne was succeeded as dean by a law and economics scholar, Mark Grady, formerly from Northwestern.
Although Status Group #6 is small, because only three schools had median LSATs of 158 for the class of '98, George Mason is not only last of three in Group #6, it would be second to last in each of the larger status groups around it; in Group #5,Tulane is lower, and in Group #7, only South Carolina is lower. George Mason has a part-time program, which is not formally included in the calculations of rank, but even counting its part-time program, George Mason would still be in roughly the same place.
When asked to speculate on the reasons for GM's women's limited success, my source reported that in some classes, there are a handful of women at the very top, but then it drops off rapidly in the next fifteen or so ranks, with women emerging again at a B+ level.
The reason is not clear. As we will see, one common complaint from women at schools where women don't succeed as well is that the constitutional law teachers imply that women must forgo their support for abortion rights or other more female-oriented interpretations of the Fourteenth Amendment as a measure of their tough-mindedness. But sources at GM deny that that's a problem: "The con law guy is one of the more liberal on the faculty." A lot of the teachers give multiple choice exams; one of my sources speculated that George Mason's women may succeed in lesser numbers because women are more reluctant to guess than men are.
With less than the average number of female students for the years we looked at, George Mason might actually still be in the exclusionary phase of the stages of institutional diversity. However, the numbers of women students seem to go up and down over the years reported in the ABA guide, so exclusion seems too simple an answer. Instead, I suspect, George Mason is willing to take newcomers, but only if they willingly replicate the formerly exclusive norm. In an interview a few years ago, Dean Manne unwittingly gave a graphic description of the Quantitative Diversity approach. When Manne came to GM in 1986, he found two young women faculty members whom he thought had potential but had gotten "off on the wrong track" before his arrival. Accordingly, he offered them the following deal: You can stay at George Mason, but you have to go to the university and get a master's degree in economics. Both took him up on it, he reported a few years later, and both pursued economics Ph.D.'s.
I spoke to one Ph.D., Margaret Brinig, who reported that she was grateful for having done the study; she said Manne pushed her to do a lot of very careful scholarly work. The happy picture of a fuzzy female thinker liberated by retooling to a male norm was somewhat blurred by the fact that Brinig is a single mother whose ex-husband was very involved with the children and tied to the D.C. area, so she had to stay in George Mason's geographical location regardless of how she liked it. She reported herself as having no one to talk to at George Mason and told me she had to go to other schools in the area to find someone else who was working along the lines she was pursuing. In a pattern that surfaced again and again among retooling females, she even manifested a kind of civil disobedience to Manne's regime, using her economic learning to look for "where law and economics breaks down." (Think about it: How would you expect most v/omen to fare in a system like law and economics, dedicated to liberating the competitive energies of the strongest players?) However, to Manne's credit, she was apparently not punished for her rebellion! (Brinig has since departed for the friendlier University of Iowa.)
The law and economics types at George Mason probably wouldn't be surprised to learn that a substantial number of their student body go there for the economically rational reason that it's the only law school with cheap public school tuition close to Washington, D.C. As Ms. Strategist, a second-year student at George Mason told me, "Most are here because of the cheap instate tuition. As a matter of pure economics, if you're living in D.C., the outcome can be in excess of forty thousand dollars."
Ms. Strategist absolutely denied that the dominant conservative culture of law and economics affected her in any way. "The student body is not as conservative as the school's reputation," she asserted, and "most students are pragmatic-working-they go to school and leave. We're not afraid to tell them [conservatives] what we think-when they were discussing the VMI case [a recent Supreme Court decision holding the state of Virginia could not maintain a male-only military college], we were all over them." When asked about her own nonachievement of law review- and the proportional underrepresentation of women on law review-Strategist asserted that the older students and the women students weren't interested in law review. Why not? "Because I'm not going for a firm job. Jobs that come are oriented toward twenty-three-year-old law review types" whom she characterized as "anal retentive" such as "a guy I know who got all A's." Ms. Strategist, an architect and engineer by background, was hoping for a bureaucratic job with a corporation or a government agency. She hadn't looked for a summer job, planning to spend the summer moving into the new house she and her husband had just bought, but thought she'd spotted a couple of interesting- sounding long-term prospects on the Internet.
It's hard to feel sorry for Ms. Strategist-she's getting what she's paying for, a cheap notch on her resume and a possible escape from what she describes as the intolerably sexist world of big- ticket engineering. But it's hard to resist comparing her to ASU's Juliet, also trapped in a big city and also lured by the good bargain of a law degree for the price of in-state tuition. If the ASU analysis is right, George Mason's women should be overqualified and starring. But they're not. And our Strategist is certainly not getting what the "anal retentive all-A's" guys are getting. When asked for evidence of his law school's rise in the hierarchy and increased presence on the national scene of legal education a couple of years ago, Dean Manne didn't point to the legions of female bureaucrats desultorily working in government jobs. He said, "Call up any big law firm in Washington, D.C., and ask them if they're hiring my students."
The people at McGeorge School of Law of the University of the Pacific were really surprised when I apprised them that their women didn't score particularly well by the standard of making law review. (The percentage of women who made the national senior honor society, Order of the Coif, in 1995 at McGeorge was also extremely low, among the lowest in all the Coif chapters.) The law review has a "gender blind selection process," for second- year staffers, a professor told me, which works as follows: First, law review selects the top student in each of the three day sections and the top two students in the evening section and the top seven overall on grades alone (for a total of nine to eleven slots), with the remaining slots filled by a writing competition among students in the top 40 percent of the class.
Like George Mason, McGeorge was a freestanding law school. Affiliated with the Stockton-based University of the Pacific in 1966, McGeorge was accredited in 1969. For twenty-four years, until 1991, McGeorge was largely the product of the will and imagination of its longtime dean, Gordon Schaber, a successful Democratic politician and California state judge. The law library bears Schaber's name. Under Schaber's tutelage, McGeorge sought out a niche as a law school heavily oriented to training trial lawyers, featuring its technologically advanced "courtroom of the future." Schaber hired, a current faculty member told me, "his friends and people in firms, an Old Boy network, a WASP network." In the mid-1970s, he reported that "there were no Jews on the faculty." That began to change, as McGeorge entered the "scholarship" game in the seventies.
There were also few women on the faculty, but that remains the case; at 18 percent academic females, McGeorge has one of the least female faculties in the country. When asked about the lack of females, a faculty member informed me that "this is not a faculty that ardently favors affirmative action. There is no faculty-wide sense that gender is high on the list of factors. Race is considered a more serious concern, especially the presence of Hispanics."
Despite its association with a Democratic politician, my source continued, many people express the opinion that McGeorge is a conservative society. There is a little-noticed but substantial Mormon population in San Joaquin County, my faculty source told me, and way back, McGeorge was regarded as a Mormon pipeline school. If you couldn't get into Brigham Young, also last in its status category, McGeorge was a second choice.
Like the faculty members I interviewed, I was a little surprised at McGeorge's poor success rate for women. But with few women on the faculty, and no obvious programs like NYU's lawyering or ASU's emphasis on team-based moot court, and with a reputedly onerous required grading curve, perhaps I shouldn't have been surprised. The anonymous student survey in the Princeton Review's law school guide, 199 7 Best Law Schools, turned up two more hints of the situation at McGeorge: "gender bias" was explicitly included in the "misses" portion of the "Hits and Misses," and so was "lack of diversity among faculty." Perhaps things will be better for classes after the classes of '95, '96, and '97, which provided my data. After study by a faculty/student committee, McGeorge has revised its grading scale, and the law review adviser informs me he thinks the numbers for the class of 2000, which just became eligible for law review, are more like fifty-fifty.
Conclusion
In law school, as in other aspects of life, small distinctions can make big differences. If our closer look at some exemplary law schools is any example, it doesn't take much to empower women to compete with their male classmates. Change starts at the top: Is the dean a sympathetic character? If differences have value, valuing them reduces stereotype threat. Are there important aspects of the first-year curriculum that value carefully researched, patiently planned, collective presentations? Or is it mostly multiple choice tests or the equivalent, three-hour closed-book issue-spotting contests? Is the school a winner-take-all society with all the goodies going to the top 20 percent and the other 80 percent "licking their psychic wounds"? Or does P=JD? Ask these questions when you apply, when you interview, when you visit. And don't take my word for women's success. Many law schools have done internal studies. They just aren't passing them around. Maybe you could ask for a copy before you write that first big check.
