Mind the Gap: Gender Pay Disparities in the Legal Academy

Mind the Gap: Gender Pay Disparities in the Legal

Academy

CHRISTOPHER J. RYAN, JR. AND MEGHAN DAWE*

ABSTRACT

Differences in pay between women and men in the same jobs have captured the

public’s attention in recent years. However, public interest in and press coverage

of salary differences on the basis of gender—or any other ascriptive class—in the

learned professions are wanting. Moreover, few studies have spoken directly on

the gender pay disparities in the legal academy, despite emerging evidence of its

existence at multiple law schools. In this Article, we use a unique dataset, drawn

from the only nationally representative survey to date of tenured law professors in

the United States, to track how gender and race are tied to salary outcomes. But

we look beyond the raw differences in salary, probing the mechanisms that under-

gird gendered pay inequities.

Part I of this Article introduces the concepts of human capital and social cap-

ital as important factors underpinning inequalities in outcomes for the legal

profession. We then provide an overview of how career outcomes in law—and

particularly in the legal academy—are shaped by access to social capital and

returns to human capital. In Part II, we introduce the After Tenure survey, from

which our data originate. Next, we describe our analytical approach, examining

the demography of the legal academy and the legal profession more broadly to

discuss the ways in which law professors’ job experiences diverge along lines

* CJ Ryan, JD, PhD, is an Assistant Professor of Law at the University of Louisville Louis D. Brandeis

School of Law and an Aff‌iliated Scholar at the American Bar Foundation. Meghan Dawe, PhD, is a Research

Social Scientist at the American Bar Foundation. First and foremost, we thank the After Tenure Study at the

American Bar Foundation, led by Elizabeth Mertz, with current co-PI Katherine Barnes, for sharing data from

the quantitative part of the study for purposes of examining pay among tenured U.S. law professors. The After

Tenure Study received its primary funding from the American Bar Foundation, with an additional grant from

the Law School Admission Council (E. Mertz PI). We thank Elizabeth Mertz, Katherine Barnes, and After

Tenure Study Project Manager Frances Tung for their generosity with their time and expertise in using the

After Tenure Study data and their guiding hand in producing this study, for which we are immeasurably grate-

ful. We thank Bob Nelson for his invaluable feedback and support, and the UC Irvine Center for Empirical

Research on the Legal Profession for the opportunity to present this paper in July 2020, as well as those who

attended and contributed meaningful suggestions to improve this Article, including Rick Abel, Tinu Adediran,

Swethaa Ballakrishnen, Elizabeth Chambliss, Meera Deo, Bryant Garth, Irene Joe, Rachel Moran, Joyce

Sterling, Ann Southworth, Nina Varsava, and David Wilkins. Additionally, we thank Emily Sack, who pro-

vided us with insightful feedback, and Troy Lange and Jake Rogers for their research assistance on earlier ver-

sions of this Article. Finally, we wrote this article before the passing of Justice Ruth Bader Ginsberg, but we

would like to dedicate it to her life’s work as a champion of justice and equal protection under the law. © 2021,

Christopher J. Ryan, Jr. & Meghan Dawe.

567

of gender and race. In Part III, we provide evidence of gendered earnings dis-

parities among tenured law professors that are particularly acute for women of

color. We conclude by demonstrating how these disparities stem from the differ-

ential valuation of human capital.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 569

I. THE LAY OF THE LAND: HUMAN CAPITAL, SOCIAL CAPITAL,

AND PROFESSIONAL STRATIFICATION. . . . . . . . . . . . . . . . . . . . 573

A. EFFECTS OF HUMAN CAPITAL AND SOCIAL CAPITAL ON

EARNINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573

B. THE LEGAL ACADEMY: AN ELITE SEGMENT OF AN ELITE

PROFESSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576

II. STRATIFICATION IN THE LEGAL ACADEMY . . . . . . . . . . . . . . . 578

A. THE AFTER TENURE SURVEY . . . . . . . . . . . . . . . . . . . . . . 578

B. A DEMOGRAPHY OF THE LEGAL PROFESSION AND THE

LEGAL ACADEMY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 580

C. A CLOSER LOOK AT TENURED WOMEN LAW PROFESSORS

AND THEIR CAREER EXPERIENCES. . . . . . . . . . . . . . . . . . 585

1. INTERNAL PROMOTION AND EXTERNAL INTEREST . . . . . . . . . 586

2. SOCIAL NETWORKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 588

3. LAW PROFESSORS AND JOB SATISFACTION . . . . . . . . . . . . . . 590

4. DISSATISFACTION WITH COMPENSATION . . . . . . . . . . . . . . . 591

III. GENDER PAY DISPARITY IN THE LEGAL ACADEMY . . . . . . . . . 594

A. EXPLANATIONS OF PAY DIFFERENCES BETWEEN LAW

PROFESSORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 594

B. DATA AND METHODS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 596

C. RESULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 611

568 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:567

INTRODUCTION

Differences in pay for women and men performing the same jobs have cap-

tured the public’s attention in recent years. For their work in the 2018 f‌ilm All the

Money in the World, Mark Wahlberg earned eight times what Michelle Williams

earned for her starring role, drawing public criticism.

1

In the summer of 2020,

members of the soccer world champion U.S. Women’s National Team sued their

parent organization, the U.S. Soccer Federation, for pay equal to their counter-

parts on the far-less-successful U.S. Men’s National Team.

2

However, public in-

terest in and press coverage of salary differences on the basis of gender—or any

other ascriptive class—in the learned professions are wanting.

Yet, a gendered pay gap is well established in research on the earnings of law-

yers.

3

On average, male partners in the top U.S. law f‌irms earn nearly $1 million

annually, while women in the same jobs earn less than two-thirds of this f‌igure.

4

This pay gap is nothing new, nor is it unique to the legal profession.

5

Although

the demographic prof‌ile of the legal profession has gradually edged toward gen-

der parity, the pay gap between men and women lawyers has existed since wom-

en’s entry into the profession.

6

For example, before becoming Columbia Law

School’s f‌irst tenured female professor in 1972, then-professor Ruth Bader

1. See Roberto Pedace, Discrimination Plays a Role in Hollywood Salaries, and Women Lose, FAST

COMPANY (Dec. 22, 2019), https://www.fastcompany.com/90446804/discrimination-plays-a-role-in-hollywood-

salaries-and-women-lose [https://perma.cc/PFJ6-NE6D].

2. ESPN Staff, USWNT Lawsuit Versus U.S. Soccer Explained: Def‌ining the Pay Gaps, What’s at Stake for

Both Sides, ESPN (June 3, 2020), https://www.espn.com/soccer/united-states-usaw/story/4071258/uswnt-

lawsuit-versus-us-soccer-explained-def‌ining-the-pay-gapswhats-at-stake-for-both-sides [https://perma.cc/X4GQ-

NTPA].

3. See, e.g., Debra Cassens Weiss, Full-time Female Lawyers Earn 77 Percent of Male Lawyer Pay, A.B.A.

J. (Mar. 17, 2016), https://www.abajournal.com/news/article/pay_gap_is_greatest_in_legal_occupations [https://

perma.cc/RE53-SLJP] (citing U.S. Census Bureau data from 2014).

4. See Debra Cassens Weiss, Pay Gap Widened for Male and Female Partners in Larger Law Firms, New

Report Says, A.B.A. J. (Sept. 15, 2020), https://www.abajournal.com/news/article/pay-gap-has-widened-for-

male-and-female-partners-in-larger-law-f‌irms-report-says [https://perma.cc/2YFN-29J3] (citing the latest

survey conducted by Major, Lindsey & Africa); Ellen Wulfhorst, Gender Pay Gap is Dramatic Among Top

U.S. Lawyers, Survey Finds, REUTERS (Dec. 6, 2018), https://www.reuters.com/article/us-usa-women-pay/

gender-pay-gap-is-dramatic-among-top-u-s-lawyers-survey-f‌inds-idUSKBN1O52JL [https://perma.cc/DYB4-

LVE7] (citing an earlier survey conducted by Major, Lindsey & Africa).

5. See, e.g., Colleen Flaherty, Big Gender Gaps in Medical Faculty Pay, INSIDE HIGHER ED (Feb. 7, 2020),

https://www.insidehighered.com/quicktakes/2020/02/07/big-gender-gaps-medical-faculty-pay [https://perma.

cc/T68E-5V9Z] (citing a study by the Association of American Medical Colleges that quantif‌ies the substantial

pay gap between women and men—at every faculty rank and status—in the medical academy).

6. See, e.g., Ronit Dinovitzer, Nancy Reichman & Joyce Sterling, The Differential Valuation of Women’s

Work: A New Look at the Gender Gap in Lawyer’s Income, 88 SOC. FORCES , 819, 819–64 (2009) (examining

the pay gap among attorneys captured in the After the JD Survey data); Mary C. Noonan, Mary E. Corcoran &

Paul N. Courant, Pay Differences Among the Highly Trained: Cohort Differences in the Sex Gap in Lawyer’s

Earnings, 84 SOC. FORCES 853, 853–72 (2005) (studying pay differences among graduates of the University of

Michigan Law School); Robert G. Wood, Mary E. Corcoran & Paul N. Courant, Pay Differences among the

Highly Paid: The Male-Female Earning Gap in Lawyers’ Salaries, 11 J. LABOR ECON. 417, 417–41 (1993)

(using the same underlying data—survey results of graduates of the University of Michigan Law School—as

the above referenced study).

2021] MIND THE GAP 569