The big muddy

Stanford Law Review

Volumn 57, Issue 6, 2005, Pages 1899-1914

  Dauber, Michele Landis ^a  

^a STANFORD UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 33645997343     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (112)

1. FRANK CLOSE, TOO HOT TO HANDLE: THE RACE FOR COLD FUSION 7 (1991).
2. Id. at 5.
3. Id. at 46-49.
4. Id. at 10.
5. Id. at 6;
6. JOHN HUIZENGA, COLD FUSION: THE SCIENTIFIC FIASCO OF THE CENTURY, at vii (1992).
7. HUIZENGA, supra note 5, at 41-58.
8. CLOSE, supra note 1, at 11-12, 23; HUIZENGA, supra note 5, at 220-21.
9. CLOSE, supra note 1, at 103.
10. Id. at 10.
11. Id. at 276-77.
12. Id. at 335.
13. Id. at 335. Los Alamos's denial that it had replicated Fleischmann and Pons's experiment was not publicized until nearly a month later. See id.
14. Id. at 1; see also HUIZENGA, supra note 5, at 23.
15. CLOSE, supra note 1, at 192-210, 283-87; HUIZENGA, supra note 5, at 30, 60-66.
16. CLOSE, supra note 1, at 146-47.
17. Id.
18. CLOSE, supra note 1, at 147; HUIZENGA, supra note 5, at 31-32.
19. CLOSE, supra note 1, at 334-35.
20. HUIZENGA, supra note 5, at 24.
21. CLOSE, supra note 1, at 153.
22. HUIZENGA, supra note 5, at 40.
23. CLOSE, supra note 1, at 345-46.
24. Id. at 301.
25. Id. at 291; HUIZENGA, supra note 5, at 28.
26. HUIZENGA, supra note 5, at 28 (citation omitted).
27. WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS (1998).
28. Richard O. Lempert et al., Michigan's Minority Graduates in Practice: The River Runs Through Law School, 25 LAW & SOC. INQUIRY 395 (2000).
29. David B. Wilkins, Rollin' on the River: Race, Elite Schools, and the Equality Paradox, 25 LAW & SOC. INQUIRY 527 (2000).
30. Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367 (2004).
31. Ian Ayres & Richard Brooks, Does Affirmative Action Reduce the Number of Black Lawyers?, 57 STAN. L. REV. 1807, 1823, 1824 tbl.2a (2005). Chambers et al. also conclude that Sander's analysis of bar passage rates is wrong.
32. David L. Chambers et al., The Real Impact of Eliminating Affirmative Action in American Law Schools: An Empirical Critique of Richard Sander's Study, 57 STAN. L. REV. 1855, 1868-72, 1882-88 (2005). As Ayres and Brooks note, the problem of unobserved characteristics that nonetheless affect bar passage rates introduces a note of caution into any analysis that assumes that any particular pair of students with the same academic credentials are fully comparable, varying only in the law school attended. For another recent statistical analysis which concludes that Sander's analysis of bar passage is fatally flawed due to incorrect and internally inconsistent assumptions,
33. see Daniel E. Ho, Comment, Why Affirmative Action Does Not Cause Black Students to Fail the Bar, 114 YALE L.J. (forthcoming 2005) (concluding that bar passage for similarly qualified students is invariant to the tier of the law school attended).
34. Sander, supra note 29, at 466.
35. Id. at 465.
36. See id. at 458 tbl.7.1, 460 tbl.7.2, 463 tbl.7.3, 464 tbl.7.4.
37. See, e.g., DAVID A. THOMAS & JOHN J. GABARRO, BREAKING THROUGH: THE MAKING OF MINORITY EXECUTIVES IN CORPORATE AMERICA 63-80 (1999) (documenting differing patterns of promotion and career trajectories for white and black executives);
38. Stéphane Baldi & Deborah Branch McBrier, Do the Determinants of Promotion Differ for Blacks and Whites? Evidence from the U.S. Labor Market, 24 WORK & OCCUPATIONS 478, 490 (1997) (showing that blacks and whites receive differential returns for endowments in promotion decisions);
39. Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, 94 AMER. ECON. REV. 991 (2004) (finding that blacks benefited less than whites from increased qualifications);
40. Jomills Henry Braddock II & James M. McPartland, How Minorities Continue to Be Excluded from Equal Employment Opportunities: Research on Labor Market and Institutional Barriers, 43 J. SOC. ISSUES 5 (1987) (finding that human capital credentials are weighed differently for blacks and whites and figure differently into occupational mobility);
41. Sharon M. Collins, Blacks on the Bubble: The Vulnerability of Black Executives in White Corporations, 34 SOC. Q. 429 (1993);
42. Sharon M. Collins, The Marginalization of Black Executives, 36 SOC. PROBS. 317 (1989) (finding that black managers were frequently shunted into race-specific roles that negatively affected their advancement);
43. Marta M. Elvira & Christopher D. Zatzick, Who's Displaced First? The Role of Race in Layoff Decisions, 41 INDUS. REL. 329, 353-54 (2002) (finding that blacks are more likely to be laid off than whites due to cognitive bias and lax monitoring of layoff procedures);
44. Eric Grodsky & Devah Pager, The Structure of Disadvantage: Individual and Occupational Determinants of the Black-White Wage Gap, 66 AMER. SOC. REV. 542, 561 (2001) (finding that lawyers have one of the largest unexplained racial gaps in earnings of any occupation);
45. Gail M. McGuire, Gender, Race, Ethnicity, and Networks: The Factors Affecting the Status of Employees ' Network Members, 27 WORK & OCCUPATIONS 501 (2000) (finding that women and minorities are disadvantaged by corporate structures that place them in lower status networks);
46. Gail M. McGuire & Barbara F. Reskin, Authority Hierarchies at Work: The Impacts of Race and Sex, 7 GENDER & SOC'Y 487 (1993) (finding that women of color receive fewer returns to authority from their credentials than other groups do);
47. Devah Pager, The Mark of a Criminal Record, 108 AM. J. SOC. 937 (2003) (finding that blacks are more severely penalized than whites for a criminal background);
48. Melvin E. Thomas, Race, Class, and Personal Income: An Empirical Test of the Declining Significance of Race Thesis, 1968-1988, 40 SOC. PROBS. 328 (1993) (indicating that blacks receive lower returns than whites for increased credentials, including postgraduate education, that these differences are significant, and that they are most severe for high-status, private sector occupations);
49. Wilkins, supra note 28, at 533-35 (suggesting on the basis of qualitative interviews that "blacks get more mileage out of their elite school credentials than comparable whites"); David B. Wilkins & G. Mitu Gulati, Why Are There So Few Black Lawyers in Corporate Law Firms? An Institutional Analysis, 84 CAL. L. REV. 493, 560-61 (1996) (suggesting that black credentials are treated more skeptically than those of whites in law firm hiring);
50. George Wilson et al., Reaching the Top: Racial Differences in Mobility Paths to Upper-Tier Occupations, 26 WORK & OCCUPATIONS 165, 175-76 (1999) (finding that key determinants of advancement differ significantly for blacks and whites and that blacks and whites receive significantly different returns to human capital endowments);
51. George Wilson, Pathways to Power: Racial Differences in the Determinants of Job Authority, 44 SOC. PROBS. 38 (1997) (finding that in the private sector, human capital endowments are significantly more important for blacks than whites, and informal networks are significantly more important for whites than blacks, in determining the attainment of positions with significant authority). Another part of the literature which might be relevant to Sander's analysis is that showing that women lawyers receive lower returns to human capital endowments than do men. Gender may also prove to be a relevant interaction with Sander's focal independent variables.
52. See Fiona M. Kay & John Hagan, Raising the Bar: The Gender Stratification of Law-Firm Capital, 63 AM. SOC. REV. 728 (1998);
53. Debra Branch McBrier, Gender and Career Dynamics Within a Segmented Professional Labor Market: The Case of Law Academia, 81 SOC. FORCES 1201 (2001) (finding that male and female law professors receive different returns for such variables as scholarly productivity). Based on this literature, Sander's assumption that black and white lawyers will experience precisely the same returns to their human capital endowments is highly implausible. It would certainly be a contribution to use the After the JD data as it emerges over the next decade to address these issues in a serious and sustained way, and we may hope that this data will be turned to that end.
54. Bertrand & Mullainathan, supra note 34, at 11-13.
55. See Wilson, supra note 34, at 40 ("[S]tudies document a substantially greater similarity between African Americans and whites in the mobility process in upper-tier census occupational categories in the public as compared with the private employment sector."); Wilson & Sakura-Lemessy, supra note 34, at 180-81 (discussing how the effects of discrimination against blacks are "more pronounced in the private than public sector");
56. Monique R. Payne et al., Shifting Inequalities: Stratification by Race, Gender, and Ethnicity in an Urban Legal Profession, 1975-1995, at 26-28 (Aug. 1, 2003) (unpublished manuscript, on file with the author) (suggesting that black lawyers leave law firms for the public sector because they are less likely to experience discrimination there).
57. As Ayres and Brooks show, Sander's use of whites as a proxy for blacks is also a central part of his method in his bar passage argument, lending some credence to the possibility that he has for some reason chosen to disregard the empirical literature on this point. See Ayres & Brooks, supra note 30, at 1816-17.
58. PAUL W. HOLLAND, CAUSATION AND RACE 11-13 (Educ. Testing Serv., Research Report RR-03-03, 2003).
59. Wilkins expects, based on his qualitative research, that prestige is more important relative to grades for blacks than whites. David B. Wilkins, A Systematic Response to Systemic Disadvantage: A Response to Sander, 57 STAN. L. REV. 1913 (2005).
60. For an explanation of statistical power and sample size in linear regression, see HELENA CHMURA KRAEMER & SUE THIEMANN, HOW MANY SUBJECTS? STATISTICAL POWER ANALYSIS IN RESEARCH 59-65 (1987).
61. See generally JAMES JACCARD & ROBERT TURRISI, INTERACTION EFFECTS IN MULTIPLE REGRESSION (2d ed. 2003). Given a black sample of a fixed size, it would be easier to detect an interaction in a pooled model than to detect significant effects in a model run separately on a small sample of blacks, though the small sample could still preclude finding a significant interaction.
62. For an example of such a study, see Pager, supra note 34, at 959-60. In this careful audit study on the effects of race and criminal record on job market outcomes, Pager shows that the effect of a criminal record on an applicant's job prospects differed by race, then tested for statistical interaction. Her paper demonstrates the appropriate methodological approach to questions of whether labor market returns to credentials (in her case negative credentials) differ by race. In another example, Baldi and McBrier found significant interactions for race and various human capital and other variables used to predict promotion decisions. They concluded that "the determinants of promotion differ for blacks and whites and provide support for our argument that race-specific models of promotion exist in a cross-section of U.S. firms." Baldi & McBrier, supra note 34, at 490.
63. Of course, a test for an interaction between race and the independent variables in a properly specified equation would not test for systematic differences in unobserved variables between whites and blacks, and thus would not support the strong conclusion that Sander would need to demonstrate in order to estimate outcomes for blacks using whites: that all relevant variables operate the same for whites as blacks, not just those specified in his equation. Additionally, as noted in note 41 above, failing to find a statistically significant interaction could be a consequence of small sample size, rather than of an underlying similarity in the subgroups. Thus, estimating the model for blacks alone on a sample of sufficient size to permit the analysis is the most appropriate test.
64. Sander, supra note 29, at 466.
65. Id. at 467 tbl.7.5.
66. Id. at 467.
67. Id.
68. In a remarkable paragraph just before Sander turns to Table 7.5, Sander states that: There are other ways to explore empirically the trade-off of grades and prestige, and I have experimented with a number of them. My consistent finding is that the effect of racial preferences in law school admissions for black students upon their job market outcomes is overwhelmingly negative for blacks in middle- and lower-ranked schools. Id. at 466. But Sander provides no detail to support this supposed "finding," and the reader is left to his or her own imagination to fill in the blanks about his method. It is hard to avoid the conclusion that, in this instance and others, the editors of the Stanford Law Review were asleep at the switch in allowing Sander to bolster his case with data that is not only unavailable but undescribed. See infra note 50.
69. Chambers et al., supra note 30, at 1882-88; Ayres & Brooks, supra note 30, at 1823-27, 1837-38.
70. The AJD is a ten-year longitudinal study of the careers of lawyers conducted by a consortium of groups and scholars intended to shed light on the "factors-personal and professional - that account for the wide spectrum of legal careers and experiences." RONIT DINOVITZER ET AL., AFTER THE JD: FIRST RESULTS OF A NATIONAL STUDY OF LEGAL CAREERS 13 (2004). Chief among the factors that the AJD is interested in illuminating are those that have resulted in patterns of exclusion and inequality in the profession, such as sex and race. Id. It is based on a national sample of 3905 members of the class of 2000. The study is officially run by an Executive Coordinating Committee (ECC) that includes social scientists and law professors, including Sander. At the present time, only ECC members have access to the data for their own research. It is not clear when the data will be archived for public use. According to Sander, the data will not be available until December 2005; NSF rules would seem to dictate an earlier release - one year after the July 31, 2004, expiration of the grant that partially funded the study (NSF #0115521).
71. See Nat'l Sci. Found., Social and Economic Sciences Data Archiving Policy, at www.nsf.gov/sbe/ses/common/archive.jsp (last visited May 2, 2005). The ECC says only that others will have access "in due course." DINOVITZER ET AL., supra, at 14 n.2.
72. See Sander, supra note 31, at 456-67.
73. See, e.g., Lee Epstein & Gary King, Empirical Research and the Goals of Legal Scholarship: The Rules of Inference, 69 U. CHI. L. REV. 1, 130-32 (2002).
74. U.S. CONST.
75. Epstein & King, supra note 52, at 130-31.
76. This mishandling of quantitative data is apparently not unique to Stanford. See Epstein & King, supra note 52, at 130-31 (discussing the failure of law review editors to enforce documentation rules for quantitative data and recommending that all data sets used by law journal authors be archived for public use).
77. For example, Sander claimed that "several researchers have now replicated my basic results without reporting data errors or methodological mistakes." Richard Sander, Polemics Without Data: A Response to the Chambers et al. Critique 2 (Jan. 14, 2005), available at http://www1.law.ucla.edu/~sander/Documents/CCKL%20Critique.pdf [hereinafter Sander, Polemics].
78. Similarly, he claimed on the Fox News Channel that "[s]everal people have replicated my study." Hannity & Colmes (Fox News Channel television broadcast, Jan. 5, 2005).
79. He evidently then told a reporter for the Weekly Standard that "other academics working from [his] data sets [were] reaching the same conclusions as he." Terry Eastland, The Mismatch Game: How Law School Race Preferences Harm Black Students, WKLY. STANDARD, Jan. 3, 2005, at 12.
80. He informed Tony Cox on NPR (National Public Radio) News that his study was being replicated by "[a]bout half a dozen social scientists" and none of them had found even "a single mistake." NPR News (National Public Radio radio broadcast, Jan. 4, 2005). At the Association of American Law Schools (AALS) meeting in January 2005, Sander told an audience of approximately 200 people that several social scientists had replicated and supported his study. In an e-mail exchange, Sander again reiterated that he was "not aware of any part of the study that hasn't been independently checked." E-mail from Richard Sander to Michele Dauber (Jan. 9, 2005) (on file with author). Sander only admitted that Part VII had never been tested by anyone else in response to my question at the AALS session. He later e-mailed me that he "imagine[d]" that David Chambers and Richard Lempert have "effective access" to the data because they have sometimes coauthored with Terry Adams, who is also a member of the ECC. E-mail from Richard Sander to Michele Dauber (Jan. 8, 2005) (on file with author). Neither Lempert nor his coauthors in this issue have ever had access to the AJD data. E-mail from Richard Lempert to Michele Dauber (Jan. 23, 2005) (on file with author); E-mail from Richard Lempert to Michele Dauber (Nov. 24, 2004) (on file with author). Sander subsequently confessed to some "ambiguity" and "lack of specific knowledge on Part VII replication," and admitted that no one had ever specifically told him that they had checked his results. E-mail from Richard Sander to Michele Dauber (Jan. 9, 2005) (on file with author).
81. Sander, Polemics, supra note 56, at 1.
82. This is apparently not the first time that Sander has muddied the waters of an important public policy debate by making claims that were declared by experts in the field to be without empirical basis and contrary to the relevant substantive and methodological literature. In 2000 Sander, adopting as in the present case the persona of the liberal reluctantly pushed to conservative conclusions, published an analysis of the effect of a proposed living wage ordinance in Santa Monica, California. Sander concluded that raising the minimum wage for workers in firms with more than $5 million in revenue would "[o]verwhelmingly" benefit "middle-income and upper-middle income households" and would actually harm lower-income workers. RICHARD H. SANDER ET AL., EMPLOYMENT POLICIES INST., THE ECONOMIC AND DISTRIBUTIONAL CONSEQUENCES OF THE SANTA MONICA LIVING WAGE ORDINANCE 2-3 (2002), available at http://www.epionline.org/studies/sander_10-2002.pdf (reiterating findings from the 2000 report). Other participants in the debate, including numerous leading labor economists, assailed Sander for misleading and unfounded statements of fact. For example, Robert Pollin and Mark Brenner concluded in 2002, in response to Sander's republication of his claims to counter another proposed Santa Monica ordinance, that on a consistent basis, the Sander study does not substantiate its empirical claims. Moreover, we have checked sources Sander himself cites against the claims presented in the Sander study, including on the central questions of number of firms covered and the costs of the ordinance to these firms. We have found that the sources Sander cites in fact contradict the claim in his study.
83. Robert Pollin & Mark D. Brenner, Evaluation of Richard Sander, E. Douglass Williams, and Joseph Doherty - The Economic and Distributional Consequences of the Santa Monica Living Wage Ordinance 3 (Political Econ. Research Inst., Research Report Number 5B, 2002), available at http://www.umass.edu/peri/pdfs/RR5B.pdf. Similarly, economists Jared Bernstein and Carol Zabin accused Sander of using a "made-up formula that has no basis in the literature" to estimate an enormous "ripple effect" of higher wages on workers not covered by the ordinance.
84. Jared Bernstein & Carol Zabin, Comments on Professor Richard Sander's Study of Santa Monica's Minimum Wage Ordinance, http://www.surfsantamonica.com/ssm_site/the_lookout/letters/Letters-2002/ OCTOBER_2002/10_ 22_02_OPINION_Comments_on_Sander_Study.htm (letter to the editors of Santa Monica's Lookout News, published Oct. 22, 2002). The unimpressive record racked up by Sander's involvement in the living wage and affirmative action debates suggests that it might be wise to subject any future policy interventions issuing from his research shop to a healthy degree of skepticism.
85. See, e.g., Vikram David Amar, Race-Based Affirmative Action Admissions: An Upcoming Law Review Article Rekindles a Controversial Issue, CNN.COM, at http://www.cnn.com/2005/LAW/01/07/amar.affirmative.action/index.html (Jan. 7, 2005); Eastland, supra note 56;
86. John Hechinger, Critics Assail Study of Race, Law Students, WALL ST. J., Nov. 5, 2004, at B1;
87. Adam Liptak, For Blacks in Law School, Can Less Be More?, N.Y. TIMES, Feb. 13, 2005, at WK 3;
88. Katherine Mangan, Affirmative Action and Military Recruiting Spur Heated Debate at Law-School Meeting, CHRON. HIGHER EDUC., Jan. 10, 2005, at 19;
89. Katherine Mangan, Affirmative Action Hurts Black Law Students, Study Finds, CHRON. HIGHER EDUC., Nov. 4, 2004, at 35;
90. Linda Seebach, Admitting the Facts About Law School Admissions, ROCKY MOUNTAIN NEWS (Denver, Colo.), Nov. 13, 2004, at 13C;
91. Stuart Silverstein, Professor Assails Anti-Bias Program, L.A. TIMES, Nov. 15, 2004, at B1;
92. Stuart Taylor, Jr., Pyrrhic Victory?: New Analysis Suggests that Racial Preferences Actually Produce Fewer Black Lawyers, LEGAL TIMES, Dec. 6, 2004, at 60;
93. Pat Wingert, Affirmative Action: Making the Grade?, NEWSWEEK, Jan. 31, 2005, at 7.
94. Hannity & Colmes, supra note 56; see also Richard Sander, House of Cards for Black Law Students, L. A. TIMES, Dec. 20, 2004, at B11.
95. Silverstein, supra note 59.
96. Michelle Locke, U.C. Dean, Professor Debate Merits of Affirmative Action, ASSOCIATED PRESS, Jan. 19, 2005, available at http://sfgate.com/cgi-bin/article.cgi? file=/news/archive/2005/01/19state2053EST01;
97. J. Douglas Allen-Taylor, Race Dominates Connerly's Last Regent's Meeting, BERKELEY DAILY PLANET (Berkeley, Cal.), Jan. 21, 2005, available at http://www.berkeleydaily.planet.com/article.cfm?archiveDate=01-21-05& storyID=20564;
98. Brian Chen, Regents to Review Master Plan and Diversity in Education, CAL. AGGIE, Jan. 18, 2005, available at http://californiaaggie.com/article/?id= 6989.
99. This mismatch was brought home to me in a curious episode that occurred at the January 2005 meeting of the AALS. When I asked Sander, in a public session, who had validated his results, he mentioned among others an editor of the Stanford Law Review, whom Sander described to the gathering as a trained "econometrician." When I contacted the editor in question, he informed me that in fact he had been a math and economics major in college but was in no sense an econometrician and had never claimed to be. Sander also cited as supporting his results Ian Ayres and Richard Brooks, a claim that seems inconsistent with their views as expressed elsewhere in this issue. See supra note 30.
100. On this point, see David L. Chambers et al., The Real Impact of Eliminating Affirmative Action in American Law Schools: An Empirical Critique of Richard Sander's Study, available at http://www1.law.ucla.edu/~Sander/Documents/CCKLCritique.pdf (draft dated Nov. 9, 2004).
101. See Robert C. Ellickson, Trends in Legal Scholarship: A Statistical Study, 29 J. LEGAL STUD. 517 (2000);
102. Richard A. Posner, The Future of the Student-Edited Law Review, 47 STAN. L. REV. 1131, 1133 (1995).
103. Epstein and King suggest a modified form of peer review utilizing faculty reviewers and editorial boards overseeing student editors such that no article would be accepted for publication without at least one blind peer review and the approval of the faculty board. Epstein & King, supra note 52, at 127-29. Numerous other scholars have made similar proposals, often following an embarrassing episode like this one in which the flaws of the student-selection process are made manifest to observers outside the legal academy. See, e.g., Richard A. Epstein, Faculty-Edited Law Journals, 70 CHI-KENT L. REV. 87, 90-91 (1994) (arguing that faculty editors would better implement a system of peer review because they have greater access to referees through networks, are better able to understand how to interpret reviews, and are better situated to enforce the norm of confidentiality of reviewers' identities);
104. Posner, supra note 65, at 1136-37 (proposing that law reviews severely limit student-selected publication to doctrinal articles, and that all nondoctrinal articles be subjected to anonymous peer review); David M. Richardson, Improving the Law Review Model: A Case in Point, 44 J. LEGAL EDUC. 6, 9 (1994) (advocating faculty-edited journals utilizing peer review for article section).
105. Martin J. Tobin, Rigor of Peer Review and the Standing of a Journal, 166 AM. J. RESPIRATORY & CRITICAL CARE MED. 1013 (2002) (noting that exacting standards of peer review are required for academic credibility);
106. Harriet Zuckerman & Robert K. Merton, Patterns of Evaluation in Science: Institutionalisation, Structure and Functions of the Referee System, 9 MINERVA 66, 99 (1971).
107. Arthur D. Austin, The "Custom of Vetting" as a Substitute for Peer Review, 32 ARIZ. L. REV. 1, 4 ("The use of student edited journals . . . is an embarrassing situation deserving the smirks of disdain it gets from colleagues in the sciences and humanities.");
108. Lawrence M. Friedman, Law Reviews and Legal Scholarship: Some Comments, 75 DENV. U. L. REV. 661, 661 (1998) (noting that scholars in other fields find the lack of peer review in legal scholarship "[c]ompletely loco"). Some scholars in other disciplines, such as political historian Garry Wills, have already become openly contemptuous of legal scholarship due to its lack of peer review.
109. See Garry Wills, To Keep and Bear Arms, N. Y. REV. BOOKS, Sept. 21, 1995, at 71;
110. see also Gerald N. Rosenberg, Across the Great Divide (Between Law & Political Science), 3 GREEN BAG 2D 267, 272 (noting that political scientists view law schools as "where arrogance meets ignorance" due, in large measure, to the lack of peer review in legal scholarship).
111. Epstein & King, supra note 52, at 6-9, passim. Although the reputational damage to the legal academy within the larger scholarly world due to the lack of peer review in legal journals was not the authors' point, they specifically called out this risk. Id. at 125-26. Moreover, they noted that journals electing to implement a modified form of peer review would enhance the reputation and status of the journal (and its associated law school) relative to other departments in the larger university as well as relative to other law schools. Id. at 130. Status differentiation among law journals in favor of those which are peer reviewed would provide in law, as in other disciplines, a way to differentiate the quality of scholarship published in the field by the locus of publication, thus conferring reputational benefits on scholars who chose to submit their work to the rigors of peer review.
112. 539 U.S. 306 (2003).