Misattribution plagues the practice of law in the United States. Seasoned practitioners and legislators alike will often claim full credit for joint work and, in some cases, for the entirety of a junior associate’s writing. The powerful over-credit themselves on legislation, opinions, and other legal works to the detriment of junior staff and associates. The ingrained and expected practice of leveraging junior attorneys as ghostwriters has been criticized in the literature as unethical. This practice presents a distinct concern that others have yet to interrogate: misattribution disparately impacts underrepresented members of the legal profession.
This Article fills that space by offering a quantitative and theoretical analysis of the gendered disparate impact of normative authorship omissions in law. Using patent practitioner signatures from patent applications and office action responses, which include a national identification number correlated to the time of patent bar admission, this work demonstrates how women’s names are disproportionately concealed from the record when the senior-most legal team member signs on behalf of the team. This work also suggests that, when women reach equivalent levels of seniority, they do not overexert their power to claim credit to the same extent as their male peers. This parallels sociological findings that competence-based perception, accent bias, and perceived status differentiation between male and female colleagues can manifest in adverse and disparate attribution for women. Under-attribution of female practitioners falsely implies that women do less work, are more junior, and do not deserve as much credit as their male colleagues.
Addressing the failure of current practices requires cultural changes and regulatory action to ensure proper and equitable attribution in scholarship and industry. Legal obligations to maintain the integrity of the legal profession must include these affirmative steps to remedy this discrimination.