Monday, March 11, 2019
Two weeks ago I posted about moot court season. Across the country students are competing in these mock appellate exercises. And, while the exercises have great benefits for students and lawyers alike, they also have a downsides. One of these downsides is the role that implicit bias and gender stereotypes play in how the competitions are judged and how the competitors perform.
My colleague, Prof. Susie Salmon, has written on this topic. Her article, Reconstructing the Voice of Authority, looks at the way moot court programs may "reinforc[e] longstanding and exclusionary stereotypes regarding the traits that make an effective lawyer" and, in the process, "inadvertently help cement the implicit bias that impedes greater diversity and equality of access in the legal profession."
For those who may doubt the inequality women face in the legal profession, Prof. Salmon cites statistics about women in the legal field, including the fact that, as of 2012, only 27.1% of state and federal judges were women. And the fact that "[o]f the 66 lawyers most likely to have their clients' cases heard by SCOTUS--dubbed the 'elite' lawyers in a recent Reuters investigation--only eight are women."
As Prof. Salmon notes, law schools have contributed to the problem of gender bias in the legal profession. One of the ways that some schools have contributed to the problem is teaching oral advocacy in a way that relates back to Classical rhetoric and the notion of the "military leader or warrior" as being the one who "carries the most credibility and persuasive power." Advice about vocal tone, stance, and even seeming unassuming or invisible--all relating back to Classical rhetoric--promote the male warrior ideal.
While I enjoyed the entire article, I was especially astounded by the real examples of feedback that women advocates have received. Prof. Salmon emailed several professional listservs asking for examples of moot court judging or coaching "feedback that reinforced the male paradigm." Perhaps most appalling to me was the example on the top of page 163, where a female advocate was chastised for smiling at a judge. He accused her of trying to sway his opinion with her "sex appeal." Good grief.
Prof. Salmon's article ends with some thoughtful recommendations for moot court coaches and competition administrators on how best to address this problem. Of particular interest to me was her recommendation that competitions create a webinar to inform judges on the substance of the problem to ensure that judging focuses more on substance and less on delivery. For the last two years we have used this approach at the University of Arizona James E. Rogers College of Law for our intramural moot court competition. Judges have uniformly praised the video as being incredibly helpful. While it does put more work on faculty running the competition, the payoff is well worth it.
I commend Prof. Salmon's article to anyone who coaches moot court, administers a competition, or judges in moot court competition.