Women & The Rise Of Code: Is Power A Moving Target?

Outside of a J.R.R. Tolkien novel, power does not reside in any one person, object, or place. But it does cluster. An enormous percentage of those “in power,” that is, in a position to make decisions of societal scope, are trained as lawyers. Nearly every judge has been to law school, as have the majority of legislators, many industry and non-profit leaders, and 26 out of the past 44 U.S. presidents.

It should come as no surprise, then, that much feminist scholarship focuses on the ongoing underrepresentation of women in the legal profession, particularly in its upper echelons. Yale first began formally admitting women to its law school in 1918. Ninety years later, only 17.3 percent of law firm partners are women. Eighteen of the 100 U.S. senators are women, and the federal bench remains about 80 percent male. An impressive body of scholarship seeks to demonstrate that this dearth of women (i) results from ongoing, systemic discrimination; (ii) means women have less input into making, applying, and interpreting law and policy; and (iii) ultimately translates into law that (subtly) discriminates against women or promotes masculine values.

A not untypical counter concedes that women have historically faced discrimination, but insists that there is now every reason to be hopeful. The number of women who serve in the state and federal executive, judicial, and legislative branches is on the rise. Women have in recent years been appointed to serve as chiefs of police and fire in major cities. Last year saw the first female four-star general. A woman was very nearly the Democratic nominee for president in 2008 (and is now the third female Secretary of State). Some argue that this trend will inevitably continue as the women who make up nearly 50 percent of current law students graduate into an ever-more enlightened legal workforce.

Whether women will attain equality within and under the law is an extremely important question. I want to suggest, however, that this debate cannot occupy feminists to the point that they fail to keep an eye on the movements of power itself. Precisely as women begin to make serious gains within the legal profession, it is becoming less and less clear that law will remain the primary repository of societal power.

Beginning a decade ago with the work of Lawrence Lessig, our eyes are opening to the incredible importance of “code” and other facets of information technology in shaping human possibilities. In predicting the ongoing relevance of the U.S. on the global stage, influential author and political scientist George Friedman cited to the fact that most programming codes are written in English. Computers have become an indispensible part of our everyday experience. More and more of our social, economic, and political activities are moving online. Cyberspace itself is leaving the plastic box of the desktop and intertwining with the world through mobile phones and networked objects (which explains the many recent references to an “Internet of Things”).

If Lessig, Friedman, Joel Reidenberg, Danielle Citron, and many others are correct, then power may be shifting. It may be moving out of the hands of lawyers and into the hands of those who create, program, and maintain the information technologies that mediate our lives.

It turns out that these people are not, by and large, women. In 2003, women made less than a quarter of computer engineers and scientists. Moreover, and in clear contrast to the legal profession, female representation in computer science is trending sharply downward. One study found that the proportion of undergraduate computer science degrees pursued by women declined 15% between 1985 and 2001 (from 37% to 22%). Another study found that female enrollment in computer science programs fell from 26.7% in 1996, to 22.2% in 2005. The Computer Research Association recently reported that between 2001 and 2007, the percentage of women in computer science slipped even further, to 11.8%. With the notable exception of pioneers like Dr. Cynthia Breazeal, the new head of MIT’s influential Media Lab, women have low and declining representation in precisely that clubhouse into which power appears to be sneaking.

Clearly the age of law soldiers on; the underrepresentation of women in the legal profession remains an extremely important topic for study and advocacy. But feminists should be wary also of power’s apparent migration. It is crucial for talented women to enter and lead the field of computing and information technology. Feminist legal scholars concerned with a male monopoly on power should link up with the many practitioners and scholars already studying disproportionality and discrimination in the sciences.