Should Law Faculties Speak Up?

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26 Responses

  1. I think the views of Harry Kalven at the University of Chicago Law School are quite interesting:

    [A] good university, like Socrates, will be upsetting. The instrument of dissent and criticism is the individual faculty member of the individual student. The university is the home and sponsor of critics; is not itself the critic. ….

    [The university] cannot take collective action on the issues of the day without endangering the conditions for its existence and effectiveness. There is no mechanism by which it can reach a collective position without inhibiting that full freedom of dissent on which it thrives. It cannot insist that all of its members favor a given view of social policy; if it takes collective action, therefore, it does so at the price of censuring any minority who do not agree with the view adopted. In brief, it is a community which cannot resort to majority vote to reach positions on public issues.

  2. Mark A. Edwards says:

    Hello William —

    Stanford professor Yamato Ichihashi, his wife Kei, a dozen other Japanese-Americans then at Stanford, and many alumni were rounded up and placed in internment camps. Professor Ichihashi languished in the camps for 3 years; his spirit was broken by the experience and he never resumed his scholarly career. http://news.stanford.edu/pr/96/961115ichihashi.html

    Should Stanford’s law faculty, as a faculty, have spoken out against the internment of Japanese-Americans? I don’t think it’s quite good enough to answer, as Professor Kalven might, that a university is a forum for debate but not a participant in it.

    First, a law faculty is not as university. Second, a law faculty can, as William Mitchell did, give dissent a voice by revealing the vote with regard to the adoption of a position.

    More importantly, a law faculty is a member of wider community with a unique role: a purported expertise in law. How can it be a contributing member of the community if it is silent with regard to issues that fundamentally affect law?

    Worse yet, silence is also communicative. Perhaps the Stanford law faculty’s silence communicated a message regarding the internment of Japanese-Americans. After all, a majority of the Supreme Court found it constitutional. It might have been helpful to know what Stanford’s law faculty, as a faculty, thought.

    There are no easy answers.

    Best wishes,
    Mark Edwards

  3. Mark,

    I’d be very curious to know what you think would be added by hearing from “Stanford’s law faculty, as a faculty,” as opposed to hearing from the individual scholars at Stanford “as individual scholars.” What is it that the collective faculty contributes that can’t be contributed by its individual members?

    Will

  4. Orin Kerr says:

    I’m with Harry Kalven. Kalven’s letter from 1967 that Will links to is a beautiful statement of the position, and I think he nailed it.

  5. Orin Kerr says:

    Mark Edwards writes:

    More importantly, a law faculty is a member of wider community with a unique role: a purported expertise in law. How can it be a contributing member of the community if it is silent with regard to issues that fundamentally affect law?

    Why is a law faculty a “member”? Why aren’t its actual members the “members”? And if a law faculty must take a position to contribute, then does that mean it must take positions on the all of the thousands of legal issues that are vitally important in our society? If not, how does it choose which ones to take positions on?

    Worse yet, silence is also communicative. Perhaps the Stanford law faculty’s silence communicated a message regarding the internment of Japanese-Americans. After all, a majority of the Supreme Court found it constitutional. Silence is not communicative if the entity is always silent regardless of the merits of the issue. It is only when the entity speaks collectively on some select issues that silence towards other issues becomes communicative.

  6. Orin Kerr says:

    Oops, my post above is missing an end blockquote tag. Mark wrote:

    Worse yet, silence is also communicative. Perhaps the Stanford law faculty’s silence communicated a message regarding the internment of Japanese-Americans. After all, a majority of the Supreme Court found it constitutional.

    To which I responded:

    Silence is not communicative if the entity is always silent regardless of the merits of the issue. It is only when the entity speaks collectively on some select issues that silence towards other issues becomes communicative.

  7. Daniel S. Kleinberger says:

    Here are few additional points of explanation about the resolution adopted by the faculty of William Mitchell.

    First, as to why this issue is not just like any other political issue, both the resolution and the supporting memo explain the basis for “jurisdiction.” We believe that the amendment threatens us intramurally – i.e., threatens our ability to recruit and retain the best available faculty, students, and staff. This issue is not merely theoretical to us. About one-fifth of our full-time faculty have self-identified as LGBT.

    Second, as to the risk of suppressing dissent: The resolution specifically notes: “Many people of good faith support The Anti-Marriage Amendment, including some co-workers, students, and alumni, and they have every right to do so.” The law school’s president (who is also dean of the faculty) made a separate statement noting that the institution itself has no taken no position on the matter and emphasizing freedom of conscience. Moreover, how does this resolution differ in effect from a decision to bar military recruiters from campus on account of the military’s now-defunct policy of discriminating against gays and lesbians?

    Third, further to the question of suppressing dissent and the assumption (correct, in my opinion) “that law faculties are generally perceived as left-leaning,” that perception and reality constitutes a far more significant threat to diversity of opinion that does this resolution. Consider for example, Wagner v. Jones, http://www.ca8.uscourts.gov/opndir/11/12/102588P.pdf at 3 (“The law school faculty at the University [of Iowa] is viewed as being liberal. Only one out of 50 professors is a registered Republican.”) (By the way, many conservatives oppose the amendment, among them one of the drafters of the faculty resolution.)

    Fourth, as to these concerns about practical consequences, raised for discussion by Professor Waldeck in her intial post:

    “[I]s the public likely to see that vote tally and just conclude that the William Mitchell faculty—like the state of Minnesota—is split on the merits of the proposed amendment? Assuming that law faculties are generally perceived as left-leaning, could the vote tally even have the unintended consequence of suggesting that there is something meritorious about the proposed amendment because 7 out of 31 law professors did not want the faculty to speak out against it?”

    I offer two practical responses: (i) Minnesotans United for All Families, the coalition organization opposing the amendment, was delighted with the resolution; and (ii) opponents of the amendment should be so lucky as to have anything like a 24-7 spread in public opinion.

  8. Dave Hoffman says:

    I’m with Kalven & Kerr (good company!) Temple’s faculty had such a vote last year on ABA Tenure stuff – I blogged it here: http://www.concurringopinions.com/archives/2011/04/innovation-in-law-school-education.html

  9. Mark A. Edwards says:

    Hi Will, Orin and Dave —

    I completely understand the argument, and have enormous respect for your opinions, but just to be clear, it does leave you in the postion of arguing that Stanford’s law faculty, as a faculty, should not have been heard on the internment of other faculty based on their ethnicity. That faculties at Southern law schools should not have been heard, as faculties, on the enslavement of human beings in their midst.

    That is one view of the role of the faculty as an actor within a community, but what a hobbled role. And, it seems to me, hobbled unnecessarily by being overly concerned that dissenting voices are being squashed, when the institution is insistent that dissenting voices be heard and announced publicly.

    As to Will’s question, in my opinion their is a critical difference between individual faculty members being heard, and the faculty as a faculty speaking. Because faculties take positions very infrequently, whereas individual faculty members take and advocate positions constantly, the very act of taking a position announces to the community in which the faculty sits that this is, in its opinion, a matter of tremendous importance with regard to fundamental rights. I think the difference becomes apparent if, for example, you imagine a state-wide referendum on a consitutional amendment that would prohibit the teaching of evolution in elementary schools. A message of opposition coming from the faculty — as a faculty — of a university has more import than than messages from individual faculty members.

    Best wishes,
    Mark

  10. To the extent that the issue is one that affects the school’s rights– as an institution– to pursue its own mission of free inquiry, Harry Kalven had this to say:

    From time to time instances will arise in which the society, or segments of it, threaten the very mission of the university and its values of free inquiry. In such a crisis, it becomes the obligation of the university as an institution to oppose such measures and actively to defend its interests and values. … These extraordinary instances apart, there emerges, as we see it, a heavy presumption against the university taking collective action or expressing opinions on the political and social issues of the day.

    At Chicago, anyway, the issue of military recruiting on campus was seen and justified under this “extraordinary” exception. Maybe rightly, maybe wrongly.

    It is certainly true that a consequence of this position is that internment, segregation, and many other evils would be challenged only by individual scholars, with their individual scholarly reputations and moral authorities. I wonder how confident we are that law school faculties, as faculties, will always be on the right side of history.

  11. Orin Kerr says:

    Mark,

    Thanks for the response. Let’s play out the hypo and imagine that the Stanford Law faculty did in fact vote on the internment of the Japanese during WWII. Imagine that the Stanford Law faculty votes and endorses the internment of Japanese as a necessary security precaution by a vote of 24-7. The faculty resolution stresses that the internment is a very humane alternative to how the Japanese are treating Americans in Japan, and it emphasizes that the Stanford Law faculty supports President Roosevelt and is committed to winning the war. The resolution stresses that people in good faith (including 7 co-workers!) can disagree, but it strongly supports the internment.

    So how would that help matters?

    Now wait, you may be thinking: Surely the Stanford faculty would have voted the right way. Indeed, the whole case for the faculty position is premised on the idea that the law faculty will be right; the case for a faculty vote breaks down if the faculty might be wrong, but sure. But that’s the problem, I think. I don’t know if you fall into this camp, but in my limited experience the professors who want faculties to take public positions on controversial public issues tend to have four characteristics:

    1) They have very strong personal opinions about issues on which the public is divided,
    2) They know that their faculties are political outliers compared to the general public on the controversial issues,
    3) They know that they agree with the position held by the faculty, and
    4) They think a faculty position on the controversial issue might influence public opinion.

    Perhaps I am much to too cynical. But if I’m right about these conditions, I fear that the point of taking a formal faculty position is not to provide expertise, or to avoid people thinking that silence is taking a position. Rather, the point is to to influence public opinion on issues about which the faculty has strong personal opinions.

  12. Mark A. Edwards says:

    Hi Orin,

    I think your concerns are well placed, but I actually completely disagree with your premise.

    I do think it would be just as valuable for the Stanford faculty to be heard, regardless of their position.

    I think that is really the point: that faculties, as faculties, should shoulder the democratic responsibility of taking a position under extraordinary circumstances such as these.

    (and, for what it’s worth, I definitely don’t meet the four characteristics).

    Best,
    Mark

  13. Dave Hoffman says:

    Mark,

    Why wouldn’t a petition signed by individual members of the faculty permit the signers “the democratic responsibility of taking a position” without the risk that Orin identifies of amplifying the voices of people with particular axes to grind?

    The WWII hypothetical is, as you intended it, troubling. But having been on a faculty that has three times in the eight years I’ve been teaching put out position statements on less grave public issues, I wonder whether it’s a good idea to generalize from it.

  14. Orin Kerr says:

    Mark,

    My apoligies that I misunderstood your position. I’m curious, though, what is the value of the Stanford Law faculty endorsing internment? I guess I don’t see the point of a law faculty as a whole taking a group position on a public policy question, beyond influencing public opinion in the way the faculty likes. Law faculties hire teachers and specialist scholars: They do not and should not hire candidates for the soundness of their public policy views, even assuming such a measure could be taken.

  15. AYY says:

    I don’t want to repeat what others have already said, but as I see it the problem with these types of faculty resolutions are these:

    1, Whatever the law faculty might think of their own importance, the general public sees them as just another special interest group. People have already made up their minds about the amendment. They won’t care more about what the law professors think than what the used car salesmen think.

    2, When law professors go outside their specific areas of expertise they’re often hopeless. (Yeah. I know. Some wiseacre is going to point out a situation when a law prof was right about something, or point to some law prof who is a polymath. I’m just playing percentages here.)

    3, This is going to affect recruitment and retention? Isn’t that more the Dean’s concern than the faculty’s. Besides, what affects recruitment anywhere in Minnesota is the Minnesota winters. Anyway, there are plenty of well qualified law graduates who have loans to pay off who’d jump at the chance to teach at William Mitchell.

    Besides, the law school isn’t going to be affected any more than any other employer. Also,this is a constitutional amendment that is being proposed because the proponents think that the interests it serves outweigh whatever effect it has on a law school’s ability to retain and recruit. Whether you agree with the merits of the amendment, focusing on ability to retain and recruit misses the whole point.

    4, This has the potential to be a political litmus test for faculty members going up for tenure.

  16. Mark A. Edwards says:

    Hi Orin and David,

    I think the answer to both of your questions is roughly the same: the faculty, as a faculty, can and on rare occasions should be a voice distinct from its individual members. The importance of that is not in what the message is, but in the obligation to participate as an institution in the democratic process of debate on issues that are particularly within its purview. That is why I think Stanford’s law faculty, for example (and I don’t mean to pick on Stanford, it’s just a ready example) should have been heard from when faculty and students were being rounded up and disappearing from campus. Shoulder the burden of participation as an institutional actor. You purport to have an institutional expertise in the study of fundamental rights; speak now as an institution and weigh in. There is, it seems to me, value in that beyond the voice of any one faculty member, or even all faculty members individually.

    AYY — I think you are wrong about points 1 through 3, and I know you are wrong about point 4.

    Best,
    Mark

  17. Daniel S. Kleinberger says:

    “At Chicago, anyway, the issue of military recruiting on campus was seen and justified under this ‘extraordinary’ exception. Maybe rightly, maybe wrongly”

    Wrongly, in my opinion. I don’t see how excluding from campus a recruiter that was following what was at the time applicable law constituted an “instance[] … in which the society, or segments of it, threaten the very mission of the university AND ITS VALUES OF FREE INQUIRY.” (Emphasis added.) When Columbia University invited Ahmadinejad to its campus, the University explained it did so in the spirit of free inquiry. http://www.columbia.edu/cu/news/07/09/lcbopeningremarks.html Yet that same spirit did not encompass inquiry by Chicago student into military careers. And then there is the irony of excluding from campus the organizations that protect all U.S. freedoms.

    I assert these points not to criticize Chicago’s decision but to dispute the applicability of the rationale and thereby assert that there is no meaningful distinction between that decision and the resolution in question.

    Also, some of us have come to like Minnesota winters ….

    Dan

  18. Paul Horwitz says:

    Daniel, I opposed the law schools’ position on military recruiters, but I don’t think your argument is as airtight as all that, unless it’s your general view that free inquiry requires a university to make all of its resources equally available under every circumstance, including those that are at one remove from the act of intellectual inquiry itself. Columbia invited Ahmadinejad to speak, but it does not invite the Iranian government to recruit for nuclear engineers on campus, as far as I know, and I’m not sure it would be obliged to even if it weren’t otherwise legally prohibited from doing so. Conversely, the schools that (wrongly, in my view) limited on-campus access to military recruiters did not prohibit military officials and supporters of the military from making their case on campus.

    Mark: I am curious about two aspects of your last comment. Do you distinguish between matters within the law school’s expertise and those within its “purview,” ie. between those subjects on which a law school is collectively expert (if any) regardless of their effect on the institution itself, and those matters that touch and concern it on an institutional level? And, assuming that law faculties collectively have or purport to have expertise on “the study of fundamental rights” (an assumption I admit I question), does that extend beyond the legal opinion voiced in WM’s statement — that it is unwise to limit individual rights in a state constitution — to include questions of the general morality of particular limitations on fundamental rights? Because I find it hard to see how any reasonable law faculty would purport to have any special expertise on the latter issue.

  19. AYY says:

    Mark, Heh. I noticed you don’t disagree with me on no. 2.

  20. Sarah Waldeck says:

    AYY,

    Take a closer look at Mark’s response to you. He did in fact say that he thought you were wrong about point 2.

    So, it appears that you two haven’t agreed about anything– at least not yet.

    Sarah

  21. AYY says:

    Sarah, Oops. You’re right. (Those electrons are always playing tricks on me.)

  22. Mark A. Edwards says:

    Hi Paul,

    Good, difficult questions, of course.

    Let me start by responding to the assumption you question –that law faculties purport to have institutional expertise in the study of fundamental rights. We certainly market ourselves to students as having such expertise. I think law students would be shocked to hear, after we’ve taken their money, that we don’t claim to have any such expertise. Morever, our conduct certainly suggests we have it. Alabama, for example, makes Constitutional law a mandatory part of its curriculum. If students are lucky enough they might get you to teach it to them, but I suspect that Alabama would not alter its curriculum even if it was unsure who would be teaching the course next year — that seems to me to be the very definition of purported institutional expertise. I know that Alabama also sponsors the Alabama Civil Rights and Civil Liberties Law Review year to year, and presumably would continue to do so even if it was unsure which individual faculty member would serve as advisor in the future — again, to me that suggests purported institutional expertise in the study of the theory of fundamental rights.

    I find your first question — whether faculties should be heard only on issues that touch and concern the law school itself, or on a broader set of issues on which it purports to be collectively expert regardless of their effect on the law school — very difficult. I think there is no doubt that law faculties should be heard on the former, and I suspect that on rare occasions they should be heard on the latter as well, but the obvious problem is the search for the limiting principle, to borrow from Justice Kennedy’s recent question.

    Again, let me use Alabama as an example. When George Wallace blocked the door to the registration of black students at the University, should the law faculty, as a faculty, have been heard? Segregation certainly touched and concerned the law school itself, so even under the narrower standard discussed above, I think it probably should have been. But even if we remove the effect of that confrontation on the operation of the law school, it was a momentous, historic moment that touched directly upon the purported expertise of the faculty as a body — the balance between state and federal power, between the power of the judiciary versus legislative and executive authority, the meaning of the fundamental right to equal protection. It was an issue of enormous importance to the community in which the law faculty existed, directly touching upon its expertise. Was there not some obligation on the faculty, as a faculty, to speak?

    Again the question is the ‘limiting principle’ — if the faculty is obliged to speak on this, why not on every issue? I think the limit is in the importance of the issue to the community and in the degree to which it touches upon the purported expertise of a law faculty. Only the most rare, basic, and direct issues should call forth a response. But perhaps that is not very helpful. I can only say that I am equally concerned about a limiting principle that is so limiting that it prevents the faculty from fulfilling its civic duty to make itself heard on rare occasion. At William Mitchell, for example, our mission statement says “We serve the law. We teach it, study it, practice it, and work to make it just.” A limiting principle that prevented us from speaking, such that we could not fulfill that mission, would undermine both our particpatory civic duty and our institutional duty.

    You may ask why the faculty needs to speak as a faculty, as opposed to individual members of the faculty speaking. I’m sure you know that your former colleague Al Brophy prevailed upon the University faculty senate to apologize for the University’s use of slavery on campus. Would it have been the same if instead, individual members of the faculty apologized? I doubt many would think so.

    As to your second question, I too doubt that a law faculty should or could speak with any purported expertise on questions of general morality. It’s not like we are a priesthood with our ear to some source of natural law.

    I think I’ve taken up enough of the oxygen on this thread already. But one last example: you may have noticed that no one from outside William Mitchell has agreed with me on this comment thread. What are we to make of this silence? Nothing, of course. But, honestly, isn’t there at least the wisp of an implication that for some readers, the issue isn’t compelling enough to them that they feel the need to make themselves heard? Of course, that opinion is perfectly legitimate, but we are left with the wisp of an implication rather than an understanding of the position of the silent. On a thread like this, of course, that’s of no import. But on much rarer and more important matters that touch directly upon the concern and expertise of law facutlies and the communities in which they exist, I think there is a civic duty to be heard.

    Best,
    Mark

  23. Paul Horwitz says:

    Mark, I very much appreciate your thoughtful answer, and also your reasonable wish not to extend the conversation ad infinitum. I’ll stop with this addendum. As I wrote on Prawfs, I think there was at least a perfectly reasonable argument that the faculty was entitled to speak out collectively on some aspects of or reasons to oppose the law–particularly those ways in which the law might trench on the mission of the school. To the extent that the school takes seriously the last two sentences of the mission statement that you offer, and I see no reason to think it doesn’t, that could give it felt grounds to speak out more broadly. Not everyone agrees that law schools properly have such a mission, of course, or what such a mission should be interpreted to mean; I don’t take a position on that here. I have written that the broader the mission, the greater the occasions for both public and self-criticism of that institution should be with respect to how it lives up to it, but that’s neither here nor there for now.

    I do tend to think that the university’s collective statements on even morally grave matters should be limited–or, to put it differently, that it’s not the moral gravity that’s relevant but the connection to the university’s more specific mission (and segregation is relevant to a university’s conventional mission of free inquiry and open admission) or its own conduct (and the slavery statement had to do with the university’s own conduct). To the extent that I am willing to suggest WM spoke on a matter outside its bailiwick, it had to do with only one aspect of its statement, which directly addressed the morality of the law as opposed to more specific matters of the law or of its effect on the university.

    Finally, while I appreciate your first full paragraph, I respectfully am not sure we’re on the same page here. Alabama markets itself as having expertise in the study of fundamental rights, but it does not market itself as having *collective* expertise on that issue. I’m not sure the faculty as a whole would have much basis to speak expertly and collectively on that issue, just as I would probably not take part in a statement of the faculty on matters of tax law despite the expertise of some of my colleagues.

    Having said this, and despite my suggestion that the WM statement was overbroad, I do appreciate the extent to which the whole thing was done transparently and I have enjoyed your comments.

  24. Mark A. Edwards says:

    OK I lied — one last quick note — thanks for the response Paul and thanks for mentioning the Prawfs post — I had missed that entirely.

    Best,
    Mark

  25. Orin Kerr says:

    Mark Edwards writes:

    Let me start by responding to the assumption you question –that law faculties purport to have institutional expertise in the study of fundamental rights. We certainly market ourselves to students as having such expertise. I think law students would be shocked to hear, after we’ve taken their money, that we don’t claim to have any such expertise. Morever, our conduct certainly suggests we have it. Alabama, for example, makes Constitutional law a mandatory part of its curriculum. If students are lucky enough they might get you to teach it to them, but I suspect that Alabama would not alter its curriculum even if it was unsure who would be teaching the course next year — that seems to me to be the very definition of purported institutional expertise. I know that Alabama also sponsors the Alabama Civil Rights and Civil Liberties Law Review year to year, and presumably would continue to do so even if it was unsure which individual faculty member would serve as advisor in the future — again, to me that suggests purported institutional expertise in the study of the theory of fundamental rights.

    Mark, the issue is not whether faculties have legal expertise: It is whether they exercise any legal expertise when they take positions on public issues. I think the evidence suggests that they don’t. Take the most obvious example of law schools voting as faculties to take public positions — when 36 law schools banded together to challenge the Solomon Amendment. These schools took the position that the Solomon Amendment violated their First Amendment rights. But the Justices thought that was a quite silly argument, and rejected it 9-0. Indeed, it seems unlikely that the faculties that joined the lawsuit thought their argument had much actual legal merit. My own faculty voted to join the lawsuit. While I was on leave when the faculty vote occurred, my understanding from those who attended is that my colleagues who knew the relevant caselaw recognized that they were endorsing an untenable legal argument, but that endorsed an unable legal position because they thought it was in pursuit of a just political cause. If that example is illustrative, then the fact that law faculties may have academic expertise on a question does not mean they rely on that expertise when they take positions on major public issues.

  26. Mark A. Edwards says:

    I shouldn’t have said I wouldn’t take up more oxygen on this thread, since apparently I didn’t mean it. Apologies.

    Orin, you write that “the issue is not whether faculties have legal expertise . . .”

    My thoughts on that topic, which you quote above, were in response to Paul’s comment #18, in which he said, “assuming that law faculties collectively have or purport to have expertise on “the study of fundamental rights” (an assumption I admit I question) . . .” So I think for purposes of responding to just that piece of Paul’s question, it was the issue, although I agree with you that it is certainly not the central issue in this debate.

    As for your broader point, that “the fact that law faculties may have academic expertise on a question does not mean they rely on that expertise when they take positions on major public issues”: that is undoubtedly true. But I would hope that they would.

    Best regards,
    Mark