In the early 1970s, the leading symphonies in the United States were composed almost entirely of men. In fact, only about five percent of the musicians comprising those symphonies were female. Of course, given the time period, such disparity is hardly surprising. After all, it was not until the late 1960s and early 1970s when the women’s rights movement began to really capture the attention of the American people and, perhaps most importantly, the American government. Nonetheless, in the 1980s—a time when people were much more concerned with gender discrimination—the percentage of female musicians was still abysmally low, with no major orchestra reporting a composition more than twelve percent female. Since the 1980s, however, the numbers have risen drastically. In 2014, for example, it was estimated that, on average, women made up about thirty-seven percent of the top twenty orchestras in the United States. If you are wondering what led to this huge increase in such a relatively short period of time, the answer might surprise you.
What happened was that, around the 1980s, orchestras changed the way they conducted auditions. The change was quite simple—people auditioned behind a screen such that they could be heard but not seen. Importantly, blind auditions were implemented not out of any concern that the prior practice was leading to gender discrimination, but because “it was suspected that selections might be biased in favor of the students of a relatively small group of renowned teachers.” Regardless, the impact this change had on female success at these auditions was unmistakable. The percentage of women in these orchestras grew rapidly, effectively doubling in only a short period of time. In fact, a recent study of this phenomenon found that “blind auditions increased the likelihood a female would be hired by 25 percent.”
Orchestra auditions, of course, are certainly not the only area in which people have realized that a blind process of assessment might provide the best results. Nonetheless, this particular example nicely illustrates the degree to which decision makers may not even be aware of the qualities that are influencing their judgment. In the orchestra example, they feared it was the identity of the auditionee’s teacher that might sway them but subsequently learned that gender seemed to be playing a rather large role as well. Thus, the evolution of orchestra auditions provides an excellent example of unconscious or implicit bias—a subject with which those of us in legal education have long been concerned. Even as far back as the late 1800s, Christopher Langdell, suspecting that law students from prestigious families were more likely to receive higher grades, instituted the now widespread practice of anonymous grading at Harvard Law School.
Many legal scholars have also pointed out the likelihood of similar bias in publication decisions by student law review editors. In fact, some have argued that we should institute blind submission (i.e., where the author’s name and affiliation are removed) to help neutralize the potential for such bias. Although such a solution may be wise, and perhaps even necessary, this Article has a broader aim. Specifically, its purpose is to discuss the article selection process, noting how the current process actively promotes decision making on the basis of implicit bias. This Article then discusses some of the specific forms of bias that are likely to (and seemingly do) arise in the selection process—the point being that, if we can recognize and acknowledge such potential, we can better hope to neutralize bias going forward. Just as the leading U.S. orchestras needed literal screens to blind them from certain implicit bias, perhaps law review editors need, if not literal, figurative screens of some variety to encourage publications that are more representative of the diversity of voices in the legal academy.
