Notes on: Kennedy, R (1989) Racial  critiques of Legal Academia. Harvard Law Review 192:  1745--1819 Dave Harris There are two interrelated theses in recent criticism: the exclusion thesis is the belief that the contributions of scholars of colour are wrongfully ignored or undervalued, as expressed by D Bell in arguing that white voices have dominated the minority admissions [to elite legal institutions] debate, or in Delgado who argued that minority scholars were excluded from civil rights scholarship, or when Matsuda talks of segregated scholarship. The central legal establishment has been attacked, but also the Critical Legal Studies [CLS] Movement, 'the major bulwark of leftism in legal academic culture' (1746). The second thesis is the 'racial distinctive thesis', the belief that minority scholars have experienced racial oppression, and that this causes them to view the world with a different perspective than their white colleagues, displayed in especially valuable ways in the work , in particular when interpreting the impact of racial discrimination on the law, or developing various views on race relations scholarship .Matsuda claims 'a special voice' by those who have experienced discrimination, 'distinctive normative insights' (1747). The two intersect in arguing that intellectual work by minority scholars is frequently unrecognised or underappreciated. There is an important historical context for this argument, however, and a kinship with various other intellectual traditions. They need to be assessed, however especially the writings by Bell, Delgado and Matsuda, which have placed new questions on scholarly agendas. Unlike earlier critics, proponents of racial criticisms offer 'an impatient demand that all areas of legal scholarship show an appreciation' of the far-reaching ways in which race relations have impinged on every aspect in perpetuating 'white racist hegemony' (1748), so that the race question becomes a substantial issue. There are however deficiencies, a tendency to avoid or suppress complications to support their claims, and to offer a form of argument and normative premises, especially that white academics should have less standing to participate in race relations law discourse, and that the very minority status of academics of colour 'should serve as a positive credential for purposes of evaluating their work' or that the 'responsibility for the current position of scholars of colour… [is due]… overwhelmingly to the influence of prejudiced decisions by white academics' (1749). Kennedy recognises that there is a danger that this actual article might be used against the cause of racial justice, however. Turning to the context first, the development was first described by Wirth three decades ago, when the criteria of proof have become subjects of dispute, and the validity of ideas have been distrusted together with the motives of those who assert them, so that the relationship between knowledge and power has become a central topic. This has been argued by Marxists, but racial critiques are 'primarily rooted in the history of American race relations' (1750) [copious references to Marxism, Mannheim and feminist analysis]. There has long been a charge that Negroes are intellectually inferior to whites, beginning with the age of slavery, and helping to rationalise the denial of educational resources to black people [again copious references, including some to Voltaire and Hume]. Exclusionary colour bars were found in 'every imaginable context'(1752), and even distinguished scholars found that there was no place in academia not even at predominantly negro universities [the case was particularly designed to deny 'an accomplished negro scholar of Greek and Latin'] Discrimination was actually authorised or compelled by government alongside invidious discrimination. The struggle was mostly against segregation in education, especially the desegregation of state law schools, even before the controversy about state schools. Covert colour bars have also long existed, with 'far more cruel' judgements involving the racial prejudice 'rationalised in terms of meritocratic standards' (1753) affecting many examples of intellectuals of colour. Understandably there is 'bone deep resentment and distrust that finds expression in the racial critique literature'. White academics also show the same racist attitudes in their intellectual work [with references to apologetic accounts of slavery, or of the Reconstruction, long celebrated as sound scholarship] and legal scholarship was affected as well: law reviews defended segregation until recently [lots of references again], 'and even condoned (albeit with qualifications) the practice of lynching' (1754) [the reference is to the actions of a US attorney general in 1899]. There must still be an effect on the 'governance and scholarship of legal academia'. There has long been an effort by intellectuals of colour to control the public image of minority groups and exercise leadership, for example an early black-owned newspaper designed to speak for black people themselves and establish an independent account of Afro-American history, from specially trained negro scholars. Black power activist in the 1970s objected to academia on the grounds that there were '"white standards"' that should be replaced, and black studies should be seen as a distinctive area of scholarship, taught exclusively or predominantly by black professors. (1755). The claim was that insiders in minority communities had unique insights into or information about racial issues, but white outsiders had 'little or nothing to contribute intellectually to black studies or the study of race relations and indeed pose a political danger insofar as their analyses, though flawed, are frequently used by politicians as the basis for public policy' [apparently Merton offered a critique of this insider/outsider argument as a sufficient basis for evaluating scholarly work as an issue in the sociology of knowledge in 1972 — AJS 9]. A race relations law course at Harvard taught by white civil servants was boycotted on the grounds that there were insufficient minority professors, and there was also involvement in a leading private organisation which did civil rights litigation, an example of 'archetypal white liberal[ism] who facilitates black advancement in society at large but retards it in his immediate environment' (1757). The course evidently failed to stress the special insight people of colour could offer. The boycott was criticised, but some academics supported or defended it including a Harvard professor and the legendary Prof D Bell who said the racial background could be considered a relevant credential because black people can provide a 'special and quite valuable perspective on life in law in this country' (1758), a classic 'proprietary claim over the study of race relations in the cultural history of minorities', and 'a perceived need' to react defensively to white people using racial privilege to exploit popular interest in these subjects — and there certainly were many examples of white commentary. Even in black music as a cultural accomplishment, a colour bar meant that 'white cultural entrepreneurs typically reached the largest commercial rewards' (1759) [references for this and the general tendency for blackness to be commercialised — looks really useful]. It's clear that legal academia could be tainted by the same sorts of biases. However this needs testing. So let's try and test it. If we look at Bell first, one of his most provocative contributions concerns an allegorical tale where he imagines how an elite predominantly white law school would react to the prospect of hiring a black candidate who, if hired, would increase the minority presence to 25%. Bell has created a white Dean who refuses to appoint this candidate because it would change the racial character of the school 'to an intolerable degree' and threaten white 'ideological hegemony' (1761) even though the candidate has 'impeccable credentials and is super qualified'. So even where black people satisfy standards they can still expect to face discrimination if they are too successful in inconvenient numbers. This is a fictional example but Bell thinks of it as realistic. In a nonfictional form he says that law school faculty consider their schools as white schools and would simply resist hiring qualified teachers of colour beyond a certain number. He says that despite the rhetoric of reform there are 'traditional fears and prejudices' which will keep the number of black professors small. He says it is like the policies in housing where whites will accept a certain small number of black neighbours but white flight occurs if blacks take on a larger presence. He alleges that elite institutions actually impose quota limits on Asian Americans. He suspects [?] that some white faculties are not applying customary standards evenhandedly. However the main problem is that 'this avoids a central issue'(1762) — 'that the paucity of black professors and the leading law schools is largely explained by the paucity of black candidates who are qualified by traditional standards for such posts'. By contrast 'considerable evidence suggests that at present, distressingly few black candidates attain the qualifications typically required for admission to elite law school facultiies', fictional candidates apart. Minority candidates with excellent conventional qualifications are actually the focus of veritable bidding wars. Bell substitutes poetic licence for analysis. The proposition can be tested by looking at actual hiring and promotion policies. He challenges the usefulness of criteria used to identify the pool of qualified candidates, and questions the value of grades in evaluating people who have actually been in active careers after graduating from law school. Other indicators of achievement and promise might be better in identifying the strengths of minority candidates. Standards are socially constructed and various body possess the power to impose their biases. However the legitimacy of a given standard cannot be determined just by looking at the consequences of its application in a simple way — 'such as disparities between the numbers of students of colour in law school and the number of professors of colour' (1763). Disparate results may indicate that the standard needs reform, or it may indicate that those who failed to satisfy the criteria 'are themselves in need of reform'. We will need more than statistics to interpret the statistics. If there were widespread disagreement on what this criterion meant, announcing the statistical outcome cannot be enough. There will be competing interpretations [and then an odd  bit saying that judges are more willing to take on face value criteria when they're considering low-level employment – maybe (1764). ][But what causes the lack of suitably qualified candidates of colour? At least Kennedy says it should be investigated not just asserted]. Bell does not really engage with arguments about the reasons for the small pool of candidates, and 'that is a mistake, assuming that he seeks to persuade people who are not already committed to his position' [but does he?]. He does a lot of assertion. Even if traditional standards are faulty they are still 'significant features of the social landscape that one must master' (1765). They might still be unmasked and reformed, but it's still important to investigate why they have disastrous consequences for minority candidates. Others have taken it further, and one in particular talks about black scholars being 'still free either to hone or waste their talents' (1766), which varied over the recent past. [Several examples of black historians are in fact cited to describe academic underachievement by black students and professors, their mediocrity]. Kennedy says these issues must be pursued as well as investigating the racial prejudice of legal academia. Bell has been treated in a very demeaning manner personally, apparently by having 'a remedial series of lectures to supplement his course on constitutional law' constructed by white students and professors at Stanford, an 'affront' (1767), and anecdotal reports suggest that scholars of colour 'constantly face race -related difficulties in routine encounters'. At the same time, there are 'strong formal and informal condemnations of racism' (1768) including profound apologies at Stanford and increased efforts to bring minority scholars in, commitments to pursue affirmative actions even though there is no legal obligation. Overall, this suggests that 'more than the prejudice of white professors accounts for the current scarcity of minority scholars at the highest levels of legal academia'. There might be other explanations for the scarcity of black professors for example that competition for entry into the top tier comes after a series of preparatory stages at which minorities find themselves disadvantaged [so law school deans can blame past discrimination especially the poor quality of inner-city schools]. There may also be earlier structural inequalities that produce poverty, poor schooling, crime and 'lifestyle decisions that affect aspirations and opportunities'. Other career paths may be more attractive, such as high salaries in the business world, and this may have a disproportionate effect on talented black people. Talented minority academics may experience greater demands and special burdens that produce stress as Bell says. There may also be 'self-limiting social psychological adaptations' (1769) including 'a remediable tendency to avoid intellectual engagement and competition' [very tricky — a study cited here], fears and self-doubts, itself a product of American racism and negative stereotypes. There may be strategies of avoidance, refusing to compete, not investing themselves in their careers, being prone to normal rationalisations that they are too busy and have too great demands on their time, experience unfairness and so on. Overall, Bell is wrong to 'give virtually exclusive attention to one explanation — the racial prejudice of white academics' (1770). Other impediments are likely to receive less consideration. Delgado's work, especially 'The Imperial Scholar…' notes that leading white commentators on race relations law have acted as a cadre of imperial scholars, affecting the central areas of civil rights scholarship, while minority academics have been excluded or minimised — courts rarely cite their work, and nor do legal scholars. The contributions of minority scholars in other fields have also been ignored. This assertion comes from reviewing 28 articles by white commentators, mostly written by men. The result is 'a closed intellectual universe' (1771) an inner circle of a dozen white male writers. This does not arise from malevolence or indifference, but is rather 'mainly unconscious'reflecting a desire to maintain control and prevent scholarly criticism. He addresses the sociology of citation and scholarly recognition, in footnotes for example. In 'elite race relations law scholarship, citation is distributed… On a racially discriminatory basis' (1772). To be fully justified, we have to accept that there are a number of eligible candidates for citation in the first place, and to look at the way in which choices are made. The meritocratic model assumes that scholars are indifferent to the personal identity of the person cited [a note agrees that the term merit itself is controversial and can be judged by achieved honour by some standard regardless of the social identity of the author]. Merton's ethos of modern science might be useful here specially with its emphasis on universalism where truth claims are subjected to '"preestablished in personal criteria"', and there is 'disinterestedness, a commitment to truth above partisan social allegiances' (1773). Often the personal identity of scholars is withheld in evaluating them. A contrary model is to be openly race conscious, and to prefer scholarship by academics of colour. Delgado seems to combine the two, arguing that racial background should matter, but also that scholarship of minorities is 'analytically superior' to the scholarship produced by white elitists. However, his efforts to substantiate this allegation is not persuasive for Kennedy. It would be better if he had 'identified scholarship that deserves to be recognised but that is unfairly overlooked'(1774) but he does not do so, unlike some critics of American historical studies [with substantial references in a note]. He pays little specific attention to the merits of the writings that have been ignored, and overstates them, and fails to acknowledge that white scholars have also seen and addressed problems addressed by minority writers. Some of the argument is carried by anecdote — he was impressed by an article written by a white colleague on equal personhood, but then disturbed because on reading the footnotes he noticed there were no cited black or minority scholars. He pointed out that some of the people cited probably had a little first-hand knowledge about poor self-concept and suggested that minority writers might be added — but this just presumes that the missing writers had had particularly relevant experiences just as a result of their status. Perhaps he believes that you do not need to argue on behalf of the merit of work done by scholars of colour, that they are self-evidently entitled to recognition. He says this actually is the case in social science, but this is an exaggeration, and there is no actual policy anywhere to institutionalise this. There is a particular problem with race relations law which 'necessarily embraces more than any single group' so it is hard to see that anyone racial identity will have particular expertise. It is also unwise to assume that just having membership of a group conveys expertise, as some kind of substitute for the 'discipline of study essential to achieving expertise'(1777): no one is born with expert knowledge. Kennedy is not exonerating legal academia. There are racial problems, but Delgado does not provide enough support for his allegations, and his argument needs much more detail to show that minority scholarship is substantively more deserving of merit in comparison with that produced by white people. Matsuda offers congruent criticisms to those above, arguing that there is an illicit racial hierarchy that favours whites over blacks, but she emphasises the theme of racial distinctiveness, and says that legal academia loses 'the sensibilities, insights, and ideas that are the products of racial oppression' (1778) which are particularly valuable and which will enrich legal academic discourse. Victims of racial oppression '"can speak most eloquently"' of these insights. Again the issue is what makes minority legal academics specially insightful here, and why is their work better than the work of white people? Matsuda argues that readers will delight in new insights gleaned from unknown writers, that new voices will emphasise difference, that outsider knowledge is concrete and personal and unusually challenging and realistic, yet she struggles to show such newness and difference. She refers to various forms of cultural expression — speeches, writings poetry, music essays and novels and the 'oral memoirs of Japanese Americans detained in American concentration camps during World War II' (1779). Legal academics of colour can also offer insights by people who have been oppressed. However there is little discussion of actual works of legal scholarship that will embody these qualities. If victimisation does breed certain intellectual and moral virtues, for example making black Americans '"quick to detect racism, to distrust official claims of necessity and to sense a threat to freedom"', this distinctiveness is not easily demonstrated. Some black Americans undoubtedly do display these virtues, but there are also significant counter tendencies. Some black Americans showed solidarity with Japanese Americans who were interned, but there was also 'passivity' with which most blacks and most whites responded to the internment — neither the NAACP nor any other black organisation challenged the policy. Experiencing racial oppression is no 'inoculation against complacency nor... prejudice and tyranny' (1780). Free blacks owned slave blacks, light-skinned Negroes shunned dark skinned ones, blacks subjugated other people of colour [example cited include black people in the military and in the Vietnam war]. Oppression sometimes breeds docility and acquiescence, as even Martin Luther King agreed. Matsuda was wrong to homogenise and minimise heterogeneity. She needs to focus on the actual experience of coloured scholars rather than just presuming that they will have been initiated into racial victimhood with the consequences she expects. She minimises 'other social determinants of thought and conduct' (1782) including class affiliation, which she says is less important than race, but racial groups are not monolithic, and class variables will produce different forms of racial victimisation, and did so even during slavery and subsequent segregation. Gender, region and other group affiliations will also produce differences [lots of references again]. There might be some sort of 'irreducible link of commonality in the experience of people of colour', some experience of being an outsider, but this does not necessarily lead to a similar way of conceptualising the world. Although she celebrates diversity, she 'slights the heterogeneity of people of colour' (1784). In interracial conflict for example she does acknowledge the reality more than some, say Delgado, who virtually ignores it, yet she understates it. The example is the relationship between Dubois and Booker Washington, [apparently over the policy of conciliation with white America over political equality in the case of the latter]. Apparently 'they had a respectful disagreement' according to Matsuda, whereas Kennedy sees it as 'a ferocious ideological struggle that degenerated into bitter personal enmity' (1785): both also had white reformer allies on different sides. We might also compare Derrick Bell and CLS writers [see above]. CLS scholarship is sometimes criticised for neglecting progressive activists using the rhetoric of rights, partly because they are white and this has led to abstraction in ivory towers. Scholars of colour by contrast are not reformist and experience directly the benefits of struggle. Bell however articulates the same positions and attitudes for which white CLS scholars sometimes criticised, particularly in his disdain for rights rhetoric, legal reforms and the capacity of racial minorities to affect the environment in which they live. White CLS scholars are fans. Yet Bell's work is not criticised even though it is similar. The trouble with all these CRT people is that they stereotype scholars, deny their particularity, overemphasise the characteristics of the racial group with which they are associated, a form of '"they all look alike to me"' (1787) and ironic repetition of the old negative images of coloured groups. These are much more positive stereotypes, but any stereotype can result in blindness to actual qualities and thus be a '"breeding ground for irrational treatment"' Turning now to argumentation, there are clear unintended consequences in the politics of argumentation across all arguments are political with varying degrees of self-consciousness. The intention is to evaluate arguments for racial standing, affirmatively taking race into account in evaluating scholarship and identifying white legal academics as a primary impediment to a proper recognition of scholarship by academics of colour. In the first example Delgado asked if scholarship is written by members of the group to which it pertains. He thinks that in legal terms, a witness lacks good standing if they are trying to assert the rights of another party. White people might be ineffective advocates of the rights and interests of persons of scholar, may lack information or passion, will be misdirected, they may be sentimental, have a different agenda, pull their punches especially if there are uncomfortable consequences for themselves; they may have embedded stereotypes; they may intimidate members of minority groups. Delgado thinks these problems have actually arisen because white people have not actually suffered injuries that persons of colour have and so cannot see the world from the victim's perspective. They lack information and motivation. The term 'standing' in law refers to the party's status, the relationship 'to the injury prompting litigation'(1789) so Delgado is not just objecting to intellectual deficiencies but rather to the 'ascribed racial characteristics' of the authors of imperial scholarship. The notion of status based standing is in fact long and controversial. For some, white intellectuals have no standing whatsoever in black studies, while others have argued that they should avoid particular subjects, or not take a leading role [notes cover the parallels with feminism, and also draw out the conclusions with Nazis and Jews]. Delgado thinks that white scholars should not be banned altogether, but viewed as suspect and voluntarily leave the field. This would redistribute academic power 'jobs, promotions and prestige' (1791) and suggest in effect that '"whiteness" can appropriately serve as a proxy for these shortcomings'. So this protects the market position of scholars of colour and advances their interest. Delgado argues that there are different justifications for affirmative action — a type of reparation for scholars of colour, and notion of utility or distributive justice for white authors, and this arises from 'racially conditioned differences in perspective'. As the first one arises from people of colour it must be 'analytically superior' (1792). Mere redistribution lacks moral force, and overlooks the past, although inspection of the actual theories refutes that [his examples acknowledge the nation's history of racial oppression, and go on to suggest supplementary justifications for redistribution]. Delgado says white scholarship is preoccupied with procedure, over-scholarly, obsessed with antidiscrimination law or the competence of decision-makers. There is something in this, although of course there are underlying questions about jurisdiction, competence and judicial review [the notes seem to suggest that these procedural matters have been used in the past to deny racial minorities their rights, by finding some minor procedural problems] Delgado is on dubious grounds linking white scholars' racial background to the qualities in their work, though he does say some white scholars produce work that transcends the failings. There are, however a number of scholars of colour whose work shows the same features that Delgado doesn't like, so it's unclear about what exactly is white. If any commentator were to read articles by 28 scholars of colour and described their deficiencies and go on to conclude that manifestations of flaws were attributable to the race of the 28 authors there would erupt a flood of criticism. Some would concern accuracy — 'using race as a proxy would rightly be seen as both over- and under-inclusive' (1794). Using race as a classification would be as 'paradigmatically offensive' compared to many other classifications, particularly likely to be socially destructive, certainly not to be used casually, and not to be greeted uncritically. Delgado argues that outsiders must produce deficient race relations scholarship, but by the same token scholars of colour are outsiders to white communities and so cannot understand race relations law affecting them. Must outsiders be intellectually limited? It can even enhance opportunities for gathering information as even Patricia Collins has noticed — the stranger combines nearness and remoteness, concern and indifference and this can help them see patterns. There are lots of insightful outsiders, including certain black feminists on the margins. Of course not all outsiders are insightful. Distance or nearness to the social conditions provide opportunities but do not determine the quality of scholarly productions. Certainly widespread application of Delgado's notion of intellectual standing would be disastrous. It would undermine the reputation of legal scholarship about race relations, and it is already seen by some as intellectually soft. It would restrict the field on a racial basis, and by asking white scholars to leave it would produce 'a zone of limited intellectual competition' (1795) [a ghetto that would be very vulnerable to changes in market conditions in universities as we have seen with Black Studies]. It would be bad for minority scholars because it would be bad for all scholars. It is anti-intellectual, promoting racial status despite the content of the message one offers. Negative consequences are likely to fall with particular harshness on racial minorities. Fencing whites out of certain topics might lead to reciprocal fencing out, say in 'corporate finance or securities regulation' (1796) [a note points out stigmatising topics as black subjects can degenerate into group therapy or public relations]. There is also an issue about whether one judges the work itself or the writer, or whether one is likely to create a cultural ghetto, which will develop a kind of racial stereotyping again [quite a few pages on this]. There might even be virtue in claiming that one is not compelled by race to investigate racism, but does so through choice. The notion of race based standing 'replicates deeply traditional ideas about the naturalness, essentiality, and inescapability of race' (1801), even 'that race is destiny', that knowing a person's race can properly lead to assumptions or conclusions about the worthiness of that person or their capacities, in this case a particular scholarly voice that might be of value, an intellectual credential. This actually concludes with elite notions of meritocracy. The legacy of racial oppression becomes a source of intellectual authority — 'it makes minority academics a "chosen people"' (1802). Such ideas threaten the idea of a cosmopolitan intellectual community. The racial identity of the candidates becomes important for citation or promotion. Terms like '"the black perspective"' become common, and people are assumed to be able to voice them simply because they are black [a very interesting note describes an attempt to define blackness in terms of some residual race consciousness surviving in the blood, some residual Afrocentric aesthetic: it has been heavily criticised]. None of the above writers have tried a substantive definition of blackness, unsurprisingly. They stress commonality among scholars of colour, and differences between them and whites, but 'given the reality of intra-racial disagreement and interracial crossover, a substantive definition of blackness would give rise to a situation in which an appreciable number of white intellectuals would be deemed to espouse "black" points of view' (1803). That leaves the tautological conception. The substantive conception is better and does allow for the possibility of black scholars being able to think like whites and vice versa. It shows the complexity in contingency of the relationship between racial background and intellectual work. It describes the state of mind or set of beliefs that anyone regardless of race can adopt. It can be seen as an intellectual category, but then it makes no sense to keep the racial identification of it. A substantive description would do, without the rhetorical shortcut or the archaic racial category. Ellison has argued that anyone's experience can be translated into scholarship, and Dell and others are right that that can include instructive experience of oppression, but they are not right to assume that oppression is always intellectually enriching. Nor should work based on it be given special favour. In many cases we just don't know what sort of oppression other writers have suffered anyway, nor what scholars have experienced as well as their oppression, what books they've read, for example, what cultural life they've participated in, what intellectual merits they have achieved, regardless of the racial background they have been ascribed. Merit is achieved not inherited, although the term has often been 'a sham arrangement' typically manipulated to the advantage of affluent white men' (1806) which has discredited the whole idea. There have long been other dangers threatening it, including academic nepotism in citation, which might indicate racism, given the effects of patterns of friendship. Non-meritocratic factors will always play a part, so perhaps we will need race conscious affirmative action to compensate? This might produce, say a sufficient number of minority professors in a school which will start to redress past wrongs, but this should not be just assimilated into the notion of meritocracy. The meritocratic ideals should persist and all practices that subvert it should be eventually abjured Claims of racial exclusion are important in the racial critique literature. One facet addresses whites principally, and another minorities themselves. The first one attempts to arouse feelings of guilt to mobilise white academics, and here, the usual writers use rhetoric and imagery, 'colonial subjugation… apartheid' or stories of aggressive rejection and prejudice. Radical liberal white academics also become open to censure. Other persons or conditions are not acknowledged as relevant, perhaps because this would make practical consequences more difficult, perhaps expanding the complexity of the problem and bringing political paralysis, making those responsible less able to be confronted. It certainly reassures academics of colour and enhances their morale, and makes exclusion 'wholly unrelated to their performance' (1808). Claims of exclusion have been quite successful and have gained quite a bit of sympathetic attention even from centrists. They have also helped to energise sectors of the minority community and organised scholarship and practical politics. However other perhaps more significant barriers have been ignored in this 'deficient diagnosis' (1809) and knowledge here is limited. The exclusion thesis also looks empirically weak and inflated, and might lead to accusations that minority scholars are simply playing '"the race game"' exploiting a stigmatisation of racial bigotry, strategically using accusations of prejudice. This has received little scholarly attention so far, but it is a real stratagem and can bring 'considerable benefits' (1810) although it needs to increase cynicism and decreased sensitivity. It might explain partly the silence on the part of some whites and their refusal to participate, 'a loss to everyone' [some interesting notes refer to this reaction on the part of white people who refuse to attend sessions, feel bad about being subject to guilt tripping, and who resent being told incessantly that they are racist. There is also a story by a black person about what fun it is to express racial indignation at earnest liberals]. This article has been criticised, for example in terms of the effect it might have in the [pushback] against claims made by racial minorities. He has been advised not to publish because it might be put to bad use by enemies of racial justice [note describes a number of attempts to warn critics that white colonialists will only be encouraged]. He has been warned that he is affirming the status quo, blaming racial minority academics, holding them back by denying that race should be seen as a positive intellectual credential, and showing 'a special lack of political responsibility… Given my status as a black scholar' (1812). He accepts that in some circumstances it is correct to avoid publicising views, but there is also a consequence of remaining silent and letting analysis that is wrong and misleading proceed. We should not be accepting theories and styles of thought that are flawed, detrimental but still influential. One negative consequence of Bell on racial exclusion is the 'obfuscation of "the pool problem"' (1812), the frustratingly small number of qualified minority candidates ready for admission to elite positions — Bell will not acknowledge a potential weakness or failure on the part of minorities themselves, because he fears a hostile reaction, and the same defensive avoidance affects discourse relating to problems of crime family instability, or the disproportionate incidence of AIDS [all referenced]. This is understandable because problems have been used to stigmatise groups in the past, but it is self-defeating – these difficulties will come to public attention. And if there is no open discussion there will be 'a furtive discourse' that often only obscures issues, and can sometimes reappear 'in more ominous dimensions' (1813) [the note refers to liberal researchers being put off researching inner-city poverty and then discovering when they did return to it that the problems had been made so much worse that there seemed little chance of explaining them]. There is nothing 'necessarily conservative' about acknowledging the pool problem, or its nonracial elements. Acknowledging non-prejudicial bits deepens our understanding and avoids a narrow focus on white racism. Even if we are to focus on racism, we need to consider all the facts – does the professoriate shape the aspirations of minority students [downstream as it were, to get in a bit of Bourdieu where people cool themselves out] and is that related to racial bias? Should law schools take special steps to create a larger pool? You have to acknowledge that a pool problem exists in the first place. The same goes for the excessive focus in Delgado on racial exclusion. Its methodology is 'seriously marred' (1814) and cannot support the conclusions, even if they are correct. There is no evaluation of comparatively specific scholarship. This may be overdoing critique of what were intended to be thought pieces, but Delgado's writings are more than thought pieces — 'they make accusations against named individuals, often definite answers to the questions he propounds and propose concrete action… They are put forth as contributions to the scholarly investigation of legal academia' (1815). They also 'express and popularise a militarisation of academic discourse', academia as battleground, us and them, which encourages assuming the worst about everything is said and done by them, and defensive thinking, abandoning the chance of 'fruitful collegial exchange' and exacerbating hostilities 'via a self-fulfilling prophecy'. He is premature in his allegations of racial bias instead of being content to find racial bias. He encourages intellectuals to choose sides and display loyalty, sees disagreement as attack and dissent as betrayal 'hardly an atmosphere conducive to free intellectual discussion or self-critical reflection' this will only increase the sense of isolation felt by minority academics and make them feel even more the need for loyal conformity — hence the charge levelled against critics of disloyalty and lack of political responsibility. Matsuda legitimises 'ingrained habits of thought' that homogenise people of colour and separate them from main currents of American culture. Of course there are differences among the racial groups, of course racial generalizations are sometimes justifiable, as even lawyers know — 'Negroes are more likely than whites to oppose capital punishment' for example (1816) but they must be treated with caution. Matsuda is too casual and this leads her to avoid evidence that falls outside 'the confines of her tidy paradigm'. This is rather like the exaggerated moral and intellectual differences found in feminism talking about the woman's voice despite various theoretical challenges [sustained in a note summarising a lot of work], or in the 'transparently flimsy evidence' to support the view that there is 'a "black learning style"' (1817) [similarly lengthy research cited in a note, including amazing stereotypes like black families emphasising work and ambition, competitive sports, stressing emotion and rhythm, being more feeling oriented and so on. Some of those are not far beneath the surface in the stuff on warm indigenous communities – demand research, Kennedy says]. This sort of stuff tends to reinforce beliefs about natural divisions in culture generally [his example is the beliefs that are found in the business of adoption, where white people have been dissuaded from adopting black children on the grounds that it might be unnatural or lead to harm.] Others have urged him not to publish from things like fear of being branded as racist, or of being defensive and self-serving, or even of threatening interracial alliances within CLS. Sometimes observers do not have much confidence in the abilities or capacities of minority intellectuals, so they expect and demand less. There is a contempt behind the science. On the contrary, though, he believes that work produced by minority scholars 'warrant the investment in time and energy that close examination requires' (1819).