The big muddy.

• Author: Dauber, Michele Landis
• Position: Response to Richard H. Sander, Stanford Law Review, vol. 57, p. 367, November 2004

1. HEAT II. LIGHT III. QUALITY CONTROL I. HEAT

   On March 23, 1989, Stanley Pons and Martin Fleischmann held a press conference at the University of Utah to announce to the world that they had sustained nuclear fusion in a beaker of water at room temperature. (1) All over the world, nuclear physicists, with the backing of governments and billions of dollars of research support, had been struggling for decades to create fusion--the power of the sun on earth--in high heat reactors. (2) Now two obscure chemists, unknown outside their immediate circle, claimed to have done what the world's most elite and expert physicists could not. (3) The immediate reaction to their announcement was bifurcated. The press conference, coming as it did hours after the crash of the Exxon Valdez, made the duo into instant celebrities. The public was riveted by the claims, which were presented by the media as established fact. Dan Rather called the study "a remarkable breakthrough" that night on CBS News. (4) Fleischmann and Pons appeared on television, and newspapers and magazines reported their stunning findings, which promised to transform the nation's protracted and contentious debate over energy policy. (5) Government leaders were briefed on their research, (6) and the two obscure chemists from Utah began to dream big dreams of wealth and honors, maybe even the Nobel Prize.

   The reaction of the scientific community was more measured. For one thing, the chemists' discovery of what became known as "cold fusion" was announced in the media, not in a peer-reviewed scientific journal. (7) The two had hurriedly submitted a paper to Nature in the days after the press conference, (8) but obviously there had been no time for the paper to be refereed as yet. Scientists, including the world's foremost experts on nuclear physics and electrochemistry, found out about Fleischmann and Pons's "remarkable breakthrough" the same way everyone else did: in newspapers and on television. (9) Even the physicists at the University of Utah were taken by surprise and had to walk across campus to try to track down the chemists to find out what was going on. (10) This lack of vetting of their findings increased skepticism of the pair's claims, but that of course did not mean that they were not on to something. The chemists told the press that they looked forward to the scrutiny of peer review and they invited others to verify their results. (11) Pons even told a reporter on March 27 that scientists at Los Alamos had already "repeated his experiments with success," a claim that later proved untrue. (12) Immediately, scientists all over the world dropped what they were doing and "changed research programmes literally overnight" in an attempt to replicate the Utah chemists' experiment. (13)

   A few labs, caught up perhaps in the excitement of the moment, quickly reported some support for the findings, though others, including influential groups of scholars from MIT and Caltech, were skeptical and suspected measurement error. (14) These more careful studies proceeded methodically and took considerably more time. Pons, the younger and less well established member of the pair, presented the paper at Indiana University two weeks after the press conference. Although he seemed competent at chemistry, he clearly did not understand nuclear physics and made numerous errors that concerned the audience. (15) Still, his manner was disarmingly open and easygoing. Scholars present found him "low key, honest. He didn't seem to be trying to sell anything and admitted that there were lots of open questions." (16) On April 12, 1989, Pons appeared for a victory lap at the American Chemical Society meeting and was "mobbed like a rock star" by chemists who were reveling in their disciplinary triumph over the higher-status physicists. (17) Pons doubtless felt gratified by the attention he was receiving, completely confident that his results were correct. (18)

   Meanwhile, other labs were having great difficulty validating the pair's

   results. Other scientists repeatedly asked Fleischmann and Pons for more information about their methodology. Physicists flatly rejected the claims of cold fusion as soon as the evidence was presented because it revealed obvious mistakes. One physicist said of their research, "If you got a paper like that from an undergraduate, you would give it an F." (19) More errors with the pair's methods and conclusions were reported by other labs. It turned out that they had been measuring not neutrons, which would have been a sign of nuclear fusion, but the temperature of the air in the room, (20) Labs that had initially offered support for the study issued retractions. (21) Despite the mounting evidence of elementary errors, Pons had tremendous difficulty admitting that any mistakes had been made; according to one observer, he had fallen under the sway of "the dream of every scientist that they will make a revolutionary discovery," and had made a psychological commitment to his results. (22) By April 23, 1989, just a month after the jubilant press conference, it was clear that there were problems with the study, and the Nature referees were making the same critiques that were emerging from labs around the world. (23) Under pressure from the referees and the journal's editor to disclose more details about their underlying data, experiments, and methods, the pair first withdrew some of their claims and then withdrew their paper from consideration. (24) One of Nature's editors told the press that the paper "was sufficiently flawed that it didn't pass peer review." (25) Within a few months, the furor had ended. The work of the obscure Utah chemists was found to be shoddy, and their reputations were ruined.

2. LIGHT

   In their landmark study of affirmative action in higher education, The Shape of the River, William Bowen and Derek Bok detailed the many longterm benefits for minority students of race-conscious college admissions. (26) Sociologist Richard Lempert and his coauthors expanded the empirical study of affirmative action in The River Runs Through Law School, in which they demonstrated the beneficial effects of desegregating law schools and the legal profession. (27) Then Harvard professor David Wilkins argued that the network effects of attending high-status law schools continued to advance the careers of black lawyers who were "rollin' on the river" of the prestige benefits of those institutions for many years after graduation. (28) Now Richard Sander claims to show the opposite, that African American lawyers would be better off without affirmative action in law school admissions. (29) Unfortunately, Sander has muddied rather than clarified the waters with a flawed and ultimately misleading contribution.

   Sander argues that black law students are catapulted by affirmative action into academic settings in which they are overmatched, and consequently they learn less and achieve lower grades than they would if they attended schools commensurate with their abilities. Unfortunately, according to Sander this is a Faustian bargain for black law students, because law school grades trump prestige in determining later career outcomes. The two specific outcomes on which Sander concentrates are bar passage rates and salary levels for beginning lawyers. As Ayres and Brooks persuasively show elsewhere in this issue, Sander's argument about bar passage rates is wrong, and in fact, reality is very likely precisely the opposite of what Sander claims. That is, black law students with similar academic credentials who attend higher-status schools do better, not worse, than comparable black students attending lower prestige schools in terms of bar passage rates. (30)

   In this Part, I examine Sander's parallel claims regarding the job market. Sander claims to find that, for black students, the positive effects on salary of attending a better law school never outweigh the stronger negative effects of doing poorly there. Even at the very best schools, Sander asserts that the tradeoff for blacks is, at best, a "wash." (31) According to Sander, for the vast majority of black students, any career benefits derived from attending an elite school are "dwarfed by the grade penalty." (32) He concludes that blacks would obtain better and higher-paying jobs if not for affirmative action. In what follows, I show that Sander has no evidence whatever for this finding due to elementary methodological errors in his modeling of the labor market.

   Sander's argument is about the labor market conditions faced by blacks; specifically, whether the prestige of the law school that they attend is more or less important in determining their post-law school salary than are their law school grades. The appropriate context for testing this argument is a sample of black lawyers. Curiously, most of Sander's analysis does not do this. Instead, Tables 7.1, 7.2, 7.3, and 7.4 are based on a pooled sample composed overwhelmingly of white lawyers. (33) Table 7.3, for example, reports an analysis of roughly 1800 white lawyers and 200 black lawyers in order to estimate a model using law school grades and prestige to predict salaries. Therefore, white lawyers have much more weight in his results than do black lawyers, even though Sander wants to apply his conclusions solely to black lawyers.

   In using whites as stand-ins for blacks, Sander is implicitly claiming that whites and blacks face exactly the same labor market opportunities. But this (unstated) assumption is contradicted by reams of empirical evidence, both quantitative and qualitative, including research on labor markets for lawyers and other high-status professionals. (34) For example, one recent study found that blacks benefited less from increased qualifications than did whites. (35) Moreover, these differences have been found to be more pronounced for high status jobs in the private, as opposed to public, sector. (36) Indeed, the fact that blacks face...