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Obama and Me—A Commentary by Ian Ayres ’86

The following commentary was published in The New York Times on August 5, 2008.

Obama and Me
By Ian Ayres ’86

I have an unusual connection with Barack Obama. When he was president of the Harvard Law Review, the Review published a study of mine testing for race and gender discrimination in new car negotiations. (I rummaged through old files hoping to find an acceptance letter with Barack’s signature, but alas have failed to uncover that treasure).

My experience in publishing in Obama’s volume (104) has virtually no relevance to the current election. But three memories might have some interest to someone outside my genetic pool:

1. The Review took the unusual step of hiring a statistician to do an independent analysis of my econometrics. Back in 1991, it was unusual for law reviews to publish number crunching. At the time, I was slightly perturbed that I had to clear a hurdle that other authors did not.

But in retrospect, the hiring showed an admirable prudence. The law review suspected that my findings on discrimination would draw a lot of attention and they wanted to make sure that the results were solid. Obama probably took part in this decision.

2. Obama also probably took part in the Review’s decision to publish the article. (Again I’m not sure whether he participated. But given the timing of the acceptance and his position, it is likely). John Nann, an associate librarian at Yale Law School was nice enough to compile this list of articles published in Barack’s year and the number of citations:

*Citations to the articles and comments in 104 Harvard Law Review are from the ISI Web of Knowledge, Web of Science cited references search of the Science Citation Index Expanded, Social Sciences Citation Index, Arts & Humanities Citation Index, and from KeyCite (limited to “Law Reviews”).

A look back at these citations suggests that volume 104 was a pretty successful year. Many of the professors have gone on to have highly successful careers and the articles exhibit a diversity of subject matter, methodology, and view point.

The volume also distinguishes itself with its attention to real world problems. And here I’m thinking not just about car bargaining, but also the pieces on punishing addicts who are mothers and job testing.

But beauty is in the eye of the beholder and I’d be interested if editors of other volumes of Harvard or other reviews would come forward and make the case that they published a better group of articles. While Freakonomics regular, Fred Shapiro, has crunched the numbers on the most cited law review articles, I don’t know if there is much of a sense about what was the best law review volume ever published.

3. Finally, I thought about my experience publishing the article when I read the recent Freakonomics post estimating the cost of “sounding black.” My article contained a footnote (finally published as footnote 36) which described an ancillary telephone test of discrimination in which a “white male tester and a black female tester each called more than 100 dealerships and, following a uniform script, bargained for cars over the phone.”

My memory is that my excellent editor pushed me to consider whether race can be accurately “heard” over the phone lines. At the time, I probably wasn’t sufficiently attuned to the complexity of the question. It is a natural question to ask when Barack Obama is president of your review. The answer probably depends on a host of factors including the speaker, the speaker’s intent, as well as the listener. (My former colleague Kenji Yoshino has a wonderful book called Covering that deals with analogous issues.)

It would be interesting to know whether the average American could identify Obama’s race from listening in on a telephone conversation. One could imagine asking people to identify the race of a dozen different speakers (including Obama in the mix) and seeing how well people would do identifying Obama’s race.

But sadly, this is a test that is now difficult to run double blind in that many of us probably can identify Obama’s voice directly.