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Thursday, April 26, 2012

When Should (Law) Faculties Speak Out Collectively?

At CoOp, Sarah Waldeck has an interesting post* asking "when—if ever—[ ]law faculties have a responsibility to take public positions on matters facing the electorate." It's occasioned by a vote of the William Mitchell faculty opposing a state constitutional initiative banning same-sex marriage. The resolution argues that: 1) the amendment is in conflict with the school's antidiscrimination policy and could have a negative impact on the school's ability to attract and retain members of its community; 2) the policy itself is discriminatory and wrong; and 3) limitations on state rights should not be constitutionally fixed.

The comments on Sarah's post are very interesting.

A number of individuals there--mostly the sorts of questionable characters I tend to agree with on such issues--champion a position taken on such issues by Harry Kalven:

[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; it 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. ....

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.

I am broadly sympathetic to those conclusions. I would put it in these terms. To the extent that a faculty, whether of a law school or a university in general, is going to take a public and collective position on any issues, it should do so only to the extent that it is speaking out of particular expertise and/or unique concerns. If I may offer up yet another in the series of quotes that will be held against me at my hypothetical judicial confirmation hearings, general questions of justice and morality are not among the issues on which university faculties as a collective body, including law faculties, have any special expertise. For such issues, civic and professional engagement should be on an individual basis.

If I may offer a couple of caveats and a personal example. It seems to me that if a university faculty believes that particular laws or public policies would interfere with its mission, that is an appropriate occasion for speaking out collectively; Kalven himself acknowledges this, although arguing for a presumption against doing so. That suggests to me, however, that the collective statement should be confined to those issues and reasons as to which it has particular expertise or concerns, as opposed to broader moral statements about the policy. This will of course generally deprive the statement of much of its emotional power, and of some of the personal satisfaction that some members of the institution might have taken in making a more sweeping statement (although a drier and more confined statement might also be more effective as a matter of persuasion). So be it.

Institutional pluralist that I am, I also acknowledge that some faculties, including but not limited to those of religiously affilliated schools, might craft a mission that takes broader positions on moral issues, and so might feel freer or more obliged to speak out on such issues. Although I don't share such a vision of the university's mission as a general rule, I can accept some variety on this point, provided that those faculties are willing to be judged for that mission and criticized for failing to live up to it--if, for instance, they continue gladly to receive funding from institutions they have collectively condemned.

Judged by that standard, and assuming that William Mitchell's mission is reasonably conventional in its basic points, I think it was entitled to make its first argument, about the effect of such a law on the school itself. I think the Kalvenesque position offered above suggests it should have refrained from a collective statement about arguments two and three, which addressed general questions of justice and public policy. Your mileage, of course, may vary.

I had some personal experience with this lately. I have been a public critic of Alabama's immigration law, the prior HB 56, currently undergoing revision. Last week, the University of Alabama's Faculty Senate, of which I'm a member, voted for a resolution criticizing the prior bill and urging significant changes during the revision process. In addition to making particular statements about how the bill had affected the university itself, it added some moral condemnations of the bill, including the statement that the prior bill "diminish[ed] the human dignity of all it [ ] intended to impact." I voted against the resolution. Granted that a faculty senate resolution and five dollars may get you a cup of coffee, but I don't think university faculties as a body have any special insight into human dignity, and I think they should refrain from speaking collectively on such matters unless and until they do. If the resolution had limited itself to criticisms of the bill for its effect on the university community and/or on academic freedom, I would likely have voted for it.

* Here's a link, with apologies for my wonky computer: http://www.concurringopinions.com/archives/2012/04/should-law-faculties-speak-up.html#comments

Posted by Paul Horwitz on April 26, 2012 at 02:40 PM in Paul Horwitz | Permalink


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Hello all --

I've been arguing about this over at Co-Op so I won't join here, except to ask you to consider a point I made there:

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?

William Mitchell's mission statement says “We serve the law. We teach it, study it, practice it, and work to make it just.” I think that we have both a participatory civic duty, and an institutional duty, to speak on those rare occasions when the community in which we sit faces grave questions on fundamental rights.

If you think it would have been inappropriate for Stanford's law faculty to participate, as a faculty, in the civic discussion about whether the internment of citizens in its community based on their race was consistent with the theory of fundamental rights -- regardless of whether it would have stated, as did the a majority of the Supreme Court, that it believed the internment lawful, or not -- then in my opinion you have an overly restrictive view of the appropriate role of a law faculty in its community.

Best regards,

Posted by: Mark A. Edwards | Apr 28, 2012 1:26:57 PM


You might want to consider Gandhian satyagraha campaigns, acts of collective disobedience, and similar social and political phenomena (e.g., some of what falls under the heading of 'engaged Buddhism'). I don't accept the idea that "a collective action isn't rooted in consciousness/conscience in the same way as an individual one," so long as it is understood that individuals in question are each motivated by moral judgments or conscience and then acting in concert. We can obviously distinguish the individual from collective cases and I can see how it is easier for an individual to more readily or "purely" translate the dictates of conscience into action, but I seen no compelling reason to deny the fact that groups of similarly motivated individuals acting in concert cannot do the same. A judgment, as a thought process, can precede a commitment for an individual and/or a group of individuals who come to act in a joint manner. Individuals make moral judgements, have a conscience, singular intentions, and so forth, but there coming to together to act need not significantly diminish, alter, or transmute such judgments, moral convicitons, or intentions, indeed, it may accord them a power and difference in the world they might otherwise have lacked. (I'll leave it that for now.)

Posted by: Patrick S. O'Donnell | Apr 27, 2012 3:59:39 PM

Patrick, my noun ship is passing your adjective ship in the night. My distinction goes to judgment vs. doing. The former is a mental thing, an aspect of conscience (my footnote not included mentions Arendt's linguistic equation of "conscience" and conscious"). Actions taken in respect of conscience are meaningful as such, but a collective action isn't rooted in consciousness/conscience in the same way as an individual one. Another Patrick raised this same issue with me (this is all from the Venn Diagram article) and I addressed it this way in another footnote:

"In a discussion of this point, my colleague Pat Shin directed me to the “plural subject theory” developed by the philosopher Margaret Gilbert. See, e.g., MARGARET GILBERT, SOCIALITY AND RESPONSIBILITY: NEW ESSAYS IN PLURAL SUBJECT THEORY (Rowman & Littlefield 1999). Her central thesis is that a joint commitment is fundamentally different than an individual intention and 'cannot be analyzed [solely as] . . . the sum or aggregate of the individual commitments' or intentions. Id. at 3. I have not thought this through in detail, although I suspect it may be fruitful in considering contract theory. My initial reaction, however, is that a commitment, whether individual or joint, is a doing, even though it involves the minds of the committers; whereas, judgment is a thought process that precedes commitment, whether individual or joint."

Posted by: Jeff Lipshaw | Apr 27, 2012 3:07:15 PM


I well understood that the collective bodies weren't making moral judgments, but the aggregation of such judgments is a moral undertaking no less and that's the point, is it not? What use is a moral judgment if it is confined to one's mind? Few votes such as this are ever wholly unanimous, hence the role of principled dissent and individual conscience (which in no way means the individual dissenter is necessarily right: her judgment may be mistaken). We might speak of a "collective judgment" as a term of art, a manner of speaking, not intended literally but to communicate the aggregation of individual judgments. I too happen to believe moral judgment is an individual undertaking (going back to Socrates and through Godwin in the modern period), but what seems important in our case or similar cases revolves around the role of individual moral judgments in group situations. Because not everyone agrees on a moral judgment hardly means we should rest content to leave all such judgments without practical effect(s), in effect letting the moral judgments of an individual or less-than-majority of individuals trump the moral judgments of the majority. I'm not so interested in the case at hand but rather the role of moral judgments generally. Again, I would ask you to consider how or why the aggregation of moral judgments is more "political" than, say, an individual or group of individuals in disagreement with or dissent from a collective decision. Their disagreement and dissent is no less political, as is abstention or indifference. The consensequences of moral judgments are necessarily and unavoidably political, at least on my construal of what counts as "political."

Posted by: Patrick S. O'Donnell | Apr 27, 2012 2:31:57 PM

Collective bodies might take moral actions, but they aren't moral JUDGMENTS. They are political acts. A collective body has no mind or consciousness by which to make a judgment. (Understand that as a contract theorist I also cringe at the concept of the "meeting of the minds.") The key thing here is that I'm not distinguishing it on the basis of the adjective "moral."

And the point here is that the vote isn't unanimous. Making it even more of a political act.

Posted by: Jeff Lipshaw | Apr 27, 2012 2:11:15 PM

errratum (last para.): (...myriad effects on us as individuals).

Posted by: Patrick S. O'Donnell | Apr 27, 2012 11:13:33 AM


Your account strikes me as assuming an arguable division between what counts as moral and what counts as political. If a collective body comes to identical or largely similar moral conclusions and expresses them with a united voice, what makes that collective decision somehow less moral than the one arrived at by the individuals alone before acting in concert? One may believe that a moral judgment, as a process, is an individual affair, but the moral decision or conclusion that is the end result of that process can be endorsed by others who likewise have engaged in the process for themselves. A collective decision to endorse the result of aggregating the individual moral decisions may be described as "political," but it is no less moral for all that, indeed, if individual moral judgments are to have effects or significant consequences in the real world, if they inform us of our moral responsibilities, duties, and the like, then it may very well be possible if not likely that the collective decision that is the sum total of those moral judgments is more efficient, more effective, more practical when it comes to realizing the sundry duties or responsibilities individually arrived at but shared on a collective level. That a collective body acts on the some total of individual moral judgments does not somehow diminish the moral scope, nature, or salience of those individual judgments: "the political" in this instance is merely and virtuously coextensive with "the moral," indeed, it may mean that our moral judgments can have real world consequences in a way that they may not if viewed in purely "individualistic" terms. Moral or ethical judgments bereft of any practical determinations or effects are solipsistic, otiose, meaningless.

There are other ways to talk about some of these topics, relying on such notions as "shared responsibility" (Larry May, among others) and "collective responsibility" (Robert E. Goodin, among others), and these are not in any way divorced from individual responsibility. And given the ubiquitous nature and power of organized and unorganized groups of various sizes in our world, our individual moral and political responsibilities are heightened and quickened both by virtue of our membership in such groups and because our actions are in the context of the moral and political consequences of the actions of these collective bodies (both those to which we belong to or associate with in one degree or another and those which have myriad effects on us in us as individuals).

Posted by: Patrick S. O'Donnell | Apr 27, 2012 11:08:25 AM

I think the question is an odd one if you unpeel it a little. It's certainly not surprising that it gets posed this way, but "responsibility" imputes moral judgment, and I don't think collective bodies make moral judgments. Each individual within the body may make a moral judgment, but the action of the body is a political one, no more, no less.

Indeed, I don't think judgment can ever really be a collective matter. I wrote about it once (drawing on a similar circumstance) as follows:

"It is hard to resist the idea that judgment is not a collective undertaking; for example, in a faculty vote on a pressing issue or in the vote by which a law firm partnership admits new partners. The judgment occurs in the mind of the decider. Our faculty recently decided to take a vote expressing the sense of the faculty on an issue facing the university. The individual decision of the faculty member proposing the resolution was an act of conscience. Each individual decision to speak at the meeting, and even the decision to attend the meeting, was an act of conscience, as was each instance of casting a vote. The collective expression resulting from the vote, however, was a political act, not an act of conscience. Indeed, as Hannah Arendt suggested, conscience, in the sense of the ethical judgment one makes as in the faculty vote, is a mental activity closely linked to consciousness in the sense of inner awareness described above. Thinking, she observed, is the soundless dialogue we have with ourselves; it is like a wind that sweeps away 'the implications of unexamined opinions and thereby destroys them' and manifests itself in judgment. She further observed that judgment is 'the faculty to judge particulars without subsuming them under those general rules which can be taught and learned until they grow into habits that can be replaced by other habits and rules.' Whether the judgments are ethical, as opposed to merely practical, they occur in our minds, are privileged to us, and are beyond influence, authority, external truth-justifications, and power, regardless of whether we accede, knowingly or unconsciously, in the solitude of our own minds, to influence, authority, justifications, and power."

Posted by: Jeff Lipshaw | Apr 27, 2012 7:50:40 AM

I concur with Prof. Horwitz. Part of this may be the tendency of lawyers and law professors to think they know it all and are experts in everything. We have seen this in the ABA's tendency over the years to adopt resolutions in favor of one side or the other of highly contested issues of public policy. It's not surprising that a law school faculty should fall victim to the same sense of hubris.

Posted by: Douglas Levene | Apr 27, 2012 1:51:54 AM

I recently voted against some resolution proposed in our University Academic Senate, where I agreed with the resolution on the merits, for the same reason. It's good to know I'm not the only one making a stand for staying within institutional expertise. A quixotic stand, I suppose I should add, since I think there were like 3 votes against.

Posted by: Bruce Boyden | Apr 26, 2012 4:46:03 PM

Yes, these are all issues on which a law faculty could arguably speak collectively as well as individually. Thanks for your comment.

Posted by: Paul Horwitz | Apr 26, 2012 2:56:02 PM

Yes, I agree, the faculty should limit itself to speaking out collectively on only those issues for which it has specific expertise or involvement.

How about voting to get rid of tenure?

How about advocating abolishing the legal monopoly in all its ugly manifestations: LSAT, JDs, Bar Exams, state certification?

Posted by: Jimbino | Apr 26, 2012 2:53:27 PM

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