Hierarchy, Race, and Gender in Legal Scholarly Networks.

• Author: Nunna, Keerthana

Abstract. A potent myth of legal academic scholarship is that it is mostly meritocratic and mostly solitary. Reality is more complicated. In this Article, we plumb the networks of knowledge co-production in legal academia by analyzing the star footnotes that appear at the beginning of most law review articles. Acknowledgments paint a rich picture of both the currency of scholarly credit and the relationships among scholars. Building on others' prior work characterizing the potent impact of hierarchy, race, and gender in legal academia more generally, we examine the patterns of scholarly networks and probe the effects of those factors. The landscape we illustrate is depressingly unsurprising in basic contours but awash in details. Hierarchy, race, and gender all have substantial effects on who gets acknowledged and how, what networks of knowledge co-production get formed, and who is helped on their path through the legal academic world.

Table of Contents Introduction I. Background A. Hierarchy, Race, and Gender in Legal Academia B. Biographical Footnotes in Legal Academia C. Social Network Analysis and Academia 1. Social network analysis in general 2. Insights from non-legal academia 3. Networks and legal scholarship II. Basic Methodology A. Article/Footnote Sample Selection B. Footnote Text Processing 1. Academic affiliation and ranking 2. Race and gender 3. Academic subfield (at least, tech/IP) C. Network Analysis III. Results A. Basic Results B. Hierarchy C. Race D. Gender E. Intersectionality F. School Rank and Race/Gender G. Patterns in the Tech/IP Law Subcommunity IV. Discussion and Concluding Thoughts Appendix A. Statistical Gender Scoring: Detailed Methods B. Summary Statistics & Regressions Introduction

The traditional myth of legal scholarship is that it is largely meritocratic and largely solitary. (1) 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. (2) 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 footnotes 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. Footnotes provide small, partial portraits of the author's professional and social networks. Taken in the aggregate, these footnotes 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 footnotes 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. (3) 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. (4) We find that men are acknowledged more than women and nonbinary scholars, (5) and white scholars more than scholars of color. (6) We examine intersectional effects, which are complex--read on to find out more. (7) One bright spot here: Networks of scholars of color appear to be particularly robust. (8)

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). (9) Surprisingly, nearly half of acknowledgments by tech/IP scholars are to scholars outside the field. (10) 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. (11)

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. (12) 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). (13) 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.

1. Background

   1. Hierarchy, Race, and Gender in Legal Academia

      We are far from the first to describe the problematic effects of hierarchy, race, and gender in legal academia. There isn't space here, of course, to comprehensively survey that rich literature. And so we mention just some of it to give some context as to why we are looking at demographics-informed acknowledgment networks.

      First: hierarchy. Legal academia is obnoxiously hierarchical. (14) Everything is ranked to death. Privilege begets privilege--it's certainly not controversial to surmise that a connection to a fancy name brokers influence. (15) Daniel Katz and colleagues took a network-oriented look (more on that later) at the legal academy, looking specifically at the influence of particular institutions. (16) The result? An "extremely skewed distribution of social authority." (17) Certain schools place graduates in law-teaching positions at more prestigious schools (that is, in schools themselves more likely to have influence), and those graduates influence future graduates. (18) Katz et al., applying a computational model for information diffusion, further showed how the "structural position" of "historically elite institutions ... allows such schools to become intellectual super-spreaders." (19) That skew, they argue, matters to individuals, to institutions, and to the development of the law. (20) In our view, Katz's model also suggests that institutional prestige and network structure have a role in legal hierarchy and legal academic culture. Our own previous work supports this view, too--we found that some law review editors look to authorial institutional prestige in vetting articles. (21) Some authors, too, craft their acknowledgment footnotes with prestige in mind. (22) We also found that articles with more people thanked (perhaps signaling a larger academic circle) placed higher. On hierarchy, it also turns out that higher-ranking law reviews tend to publish their own faculty more, regardless of article quality. (23) Indeed, Minna Kotkin has observed that top journals "publish virtually no authors who do not teach at top 25 schools." (24) Lucille Jewel argues that "the myth of merit mirrors and reinforces the way that our common law tradition uses themes of equality and objectivity to foster the idea that social outcomes are the fair result of neutral processes rather than the result of pre-existing inequalities." (25) And if hierarchy affects other measures of success, it's not a stretch to hypothesize that hierarchy would also affect the acceptance of legal scholarship.

      And hierarchy stretches beyond institutional prestige: For example, certain authors are more famous than others, seniority within a department is hierarchical, tenure-track research professorships are viewed as more prestigious than legal writing or clinical positions, (26) large white-shoe law firms are viewed as more prestigious than smaller firms, and federal positions are often viewed with more acclaim than state ones.

      Next, race. As Meera Deo has noted, only 7% of law professors are women of color, and 8% are men of color. (27) In addition to being a small minority at their law schools, these faculty are expected to do much above and beyond the work that gets them authorship credit and purchase with tenure-and-promotion committees. Deo has documented, for instance, the "extra service burdens many women of color carry both professionally and personally" compared with their white colleagues. (28) And faculty of color may face other obstacles to their scholarship, such as "alienation among their colleagues, hostility from students, and a lack of support for their research." (29) As Deo remarks, "research and personal narratives have also documented how the presumption of incompetence works against women of color faculty." (30) To the extent that the professorial social structure differs for faculty of color in a way that affects scholarship, that matters: Perceptions of scholarly success affect tenure, a key career inflection point. (31) Robert Chang writes, "The voices of minority scholars will not be heard if we do not have the opportunity to write." (32) In that sense, academic context and connections...