Academic Tenure and “White Male” Standards: Some Lessons from the Patent Law

Abstract

At a conference not long ago, I met a professor from another law school who writes, as I sometimes do, about the efforts of the legal system to mediate the conflicts that arise between religion and society. Like me, she is a critic of the way the law currently deals with these conflicts, fearing, as I do, that the legal culture tends to trivialize and denigrate religious devotion. So one might have thought we would have a lot in common. So did I, and I anticipated a fruitful discussion of our shared scholarly interest—until the conversation took a disturbing turn. My new acquaintance told me that she was familiar with two of my articles touching on religion and society. But only one of them, she told me, was clearly written by someone who is black. Had she known that I was black, she said, she would have gotten so much more out of the other one. Puzzled, I asked why this should be so. She seemed surprised at the question. It would, she said, have placed the argument in its proper perspective. This answer, however, only increased my bewilderment. Why, I asked, could she not simply take the argument as it was, evaluating it without regard to the color of my skin? Because, she explained patiently, she needed a context in which to evaluate the argument. Only then, she added gently, might we have a real conversation.