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Religious Reasons and State Power

Against my better judgment--but since folks have been e-mailing me their comments in this debate--I'm going to say something about the rather unsatisfying discussion going on at several law-related blogs prompted by Geoffrey Stone's comments about President Bush's veto of funding for stem cell research.  Professor Stone wrote:

In vetoing the bill that would have funded stem-cell research, President Bush invoked what he termed a “conflict between science and ethics.” But what, exactly, is the “ethical” side of this conflict? Clearly, it derives from the belief that an embryo smaller than a period on this page is a “human life” – indeed, a human life that is as valuable as those of living, breathing, suffering children. And what, exactly, is the basis of this belief? Is it Science? Reason? Logic? Tradition? Morals? None-of-the Above?

What the President describes neutrally as “ethics” is simply his own, sectarian religious belief. Is this an ethical (or legitimate) basis on which a President should veto a law? Of course, Mr. Bush is entitled to his belief. He is entitled, for his own religious reasons, to choose not to donate an embryo he creates to try to save the lives of living, breathing children. More than that, he is entitled to protect the interests of others who do not want the embryos they create to be used in this manner. Thus, he could ethically veto a law that required all embryos to be destroyed in the name of scientific research, even over the religious objections of their creators. But in what sense is it “ethical” for Mr. Bush – acting as President of the United States -- to place his own sectarian, religious belief above the convictions of a majority of the American people and a substantial majority of both the House of Representatives and the Senate? In my judgment, this is no different from the President vetoing a law providing a subsidy to pork producers because eating pork offends his religious faith. Such a veto is an unethical and illegitimate usurpation of state authority designed to impose on all of society a particular religious faith.

Except for one ambiguity (about which more in a moment), this strikes me as a straightforward and plausible argument.  Let me reconstruct it a bit more formally, for purposes of bringing out how unsatisfactory and sometimes confused some of the blogospheric commentary on it has been:

1.  Government officials should only wield the power of the state (e.g., the power to fund or not fund certain activities) on the basis of non-religious reasons.

2.  There is no non-religious reason to veto funding of stem cell research.

3.  Therefore, President Bush acted unethically in imposing his sectarian view of stem cell research against the majority of the legislature and the populace.

The ambiguity pertains to the right way to interpret (1) 's requirement that state power be exercised only "on the basis of non-religious reasons."  This could mean (1a) the actual reasons on which state officials act must be non-religious, or (1b) the possible reasons which might justify the decisions of state officials must be non-religious.  On the second interpretation, it suffices to meet (1)'s requirement that there exist non-religious reasons for the exercise of state power, even if those reasons are not the reasons which motivate officials to act.  [There is actually a third possibility, a variation on (1a), according to which what is required is that state officials only act when they can identify reasons of the (1b) variety, even if those reasons don't motivate the state action.  I shall bracket that possibiltiy here.]  Professor Stone's argument in the posting in question appears to endorse (1a), but uses a variation of a (1b) argument to support the conclusion that Bush's motivation was sectarian:  namely, the truth of (2) (if it is true) supports the conclusion about Bush's actual religious motivation.

Both (1a) and (1b) strike me as defensible.  Some of Professor Stone's rhetoric suggests that he thinks there is a constitutional argument for (1), namely, from the Establishment Clause.   But other remarks suggest he thinks there is a moral argument for (1).  Perhaps, as Professor Solum usefully suggests, it is a Rawlsian argument that requires, "given the fact of reasonable pluralism," that official decisions about fundamental constitutional matters be based on public reasons acceptable to all reasonable people, where public reasons includes (to quote Professor Solum again) "common sense, the noncontroversial results of science, and public political values. Nonpublic reasons include the deep and controversial premises of particular moral and religious theorys; for example, the utilitarian idea that only consequences count would be a nonpublic reason."   Or perhaps if, as I have argued, there is no moral justification for singling out religion for special legal protections, related considerations would help explain why it is morally objectionable to exercise state power on exclusively religious grounds.  (Let me emphasize "related considerations":  the paper cited above does not make the latter argument, though I think a reader of that paper can see how it would go.)

Professor Stone does not, needless to say, give an extended argument for (2), though it too strikes me as prima facie plausible.  Here, remember, is what Professor Stone does say:

What, exactly, is the “ethical” side of this conflict? Clearly, it derives from the belief that an embryo smaller than a period on this page is a “human life” – indeed, a human life that is as valuable as those of living, breathing, suffering children. And what, exactly, is the basis of this belief? Is it Science? Reason? Logic? Tradition? Morals? None-of-the Above?

Notice that there is a simple, sectarian, religious premise that would support this argument:  e.g., that all life is a gift from God, from whence its value derives, and that all life acquires this special value once God implants a soul; souls being non-material are present in embryos, even embryos smaller than a period on the page, and thus what is morally significant about "living, breathing, suffering children" is the same as what is morally significant about embryos, namely, that they have God-given souls.  (I am going to shift back and forth between speaking about embryos and [embryonic] stem cells, though it may well be that this difference would matter for the kinds of arguments that can be given against stem cell research, i.e., it may be the moral status of embryos is more robust that the moral status of embryonic stem cells.)

Now Professor Stone's challenge is to ask what non-sectarian (or perhaps "public") reason could support this conclusion?  On this particular point, I do not find Professor Solum's rejoinder very compelling:

If Stone means to assert that there are no reasonable nonreligious arguments for the belief as described, then he is...woefully ignorant of contemporary moral theory.

I admit to being woefully ignorant of many things, especially sports, but also a lot of work in bioethics (which I'm afraid I find too often to be a philosophically unsatisfying field), but I think we really need to hear more about the arguments that Professor Solum has in mind.  Might some (at least apparently) non-sectarian arguments against abortion be extended to the case of stem cell research?  Perhaps, I am not sure.  In the blogospheric discussion prompted by Professor Stone's posting, I have come across only one actual attempt to articulate an argument (despite lots of hand-waving about how easy it is to do), in a comment here.  This commenter also waves his hands, but then, to his credit, presents an argument:

[T]he secular argument against embryo-killing research is almost trivial to make. I believe it is that argument that President Bush cited in support of his veto, not any scripture. Namely: that a new-born child is a human being, protected from murder. A not-quite born child is physically the same, therefore also protected. The development of the unborn child from conception to birth is a continuous process; there is no point after conception at which one can say "this is now a human being; previously it was not". Therefore, the protection covers all human fetuses and embryos.

Not everything, unfortunately, that has the syntactic form of an argument constitutes a rational argument, i.e., one that would constitute a reason for doing something, like vetoing a law.  Unless critics of Professor Stone can do better than this commenter, however, then his premise (2) stands. 

The proposed argument, quoted above, has two rather obvious problems (dare I say "almost trival[ly]" obvious problems?).  First, it draws precisely the wrong conclusion from a form of argument associated with the so-called paradox of the heap (or, more generally, "the Sorites paradox").  One grain of sand is not a heap, nor are two grains of sand.  Fifty million grains of sand do make a heap.  But (to quote the preceding article):  "Given...that one grain of [sand] does not make a heap, it would seem to follow that two do not, thus three do not, and so on. In the end it would appear that no amount of [sand] can make a heap."  This is a paradox because the premises are apparently true, the form of reasoning valid, but the conclusion is false.  The argument doesn't show that there are no heaps; if it did, there would be no paradox!

Unfortunately, the proposed argument for protecting embryos, above, parallels the argument for the paradox of the heap, except it treats it as non-paradoxical because it treats the entailed conclusion as true!  That is, from the fact that there is no point at which we can say an embryo is a human invested with moral rights, it is supposed to follow that there is no difference in the moral status of embryos and humans.  But this is tantamount to saying that since there is no point at which grains of sand become a heap, there is no difference between a grain of sand and a heap, which is false (or, more precisely, there are no heaps).  The paradoxical character of vague predicates--namely, that there are cases where their application is indeterminate--simply doesn't show that they don't also have plenty of non-vague applications.

This is related to the second flaw in the proposed argument:  it doesn't actually address what is at issue here, namely, the features of living things in virtue of which they have a moral right not to be killed.  Noting that murdering children is illegal is neither here nor there; the question is why children have moral value such that their murder ought to be prohibited.   Professor Solum fairly complains that Professor Stone has not given a systematic argument on this point, though the latter's comments suggest that he views sentience--the ability to suffer, to experience pleasure and pain--as morally significant, a feature which children have, and embryos don't.  (Notice that abortion would have to be treated differently under this approach than stem cells.)  But the burden, for now, is on those who would reject premise (2) of Professor Stone's argument to show that there really is no difference in the moral status of embryos and humans by explaining what is morally significant about killing humans.  I suspect the most promising response to Professor Stone would fare best by putting pressure on his premise (2).  Unfortunately, the blogospheric discussion has almost entirely neglected that central issue.

Now let us turn to some of the other responses to Professor Stone's comments.  Professor Horwitz starts off a bit snidely:

One often sees examples of laypeople expansively assuming that any religiously motivated action by a legislator or other public official is, in some way, an undermining of the "separation of church and state."  But such views are, it seems to me, increasingly rare in that sector of the legal academy that deals regularly with law and religion issues.

That this view is "increasingly rare" among academics--with Professor Stone being a pleasing exception--may tell us more about the corruption of scholarship on religious liberty by sectarian partisanship than about the law or ethics of the matter.  In any case, this is tangential to the crux of Professor Horwitz's substantive criticism, which is as follows:

Professor Stone suggests that the President erred by acting on his own "sectarian, religious belief[s]."  We do not know why he did what he did, however.  It is entirely possible that the President vetoed the bill not only or even primarily for religious reasons, but for political purposes -- shoring up the base and so forth.  Motivations for legislative action are often opaque; what of a legislator who (permissibly, according to Professor Stone) acts to protect religious objectors from having their embryos destroyed, not for any secular reasons, but strictly as a matter of her own religious faith?  So we should set motivation to one side and acknowledge that what Professor Stone is really asking is, under what circumstances is it ethical or legitimate for a public official to publicly offer religious reasons for some official action?

Although it may often be unwise to offer religious reasons, and no other reasons, for a public action, that does not make it illegitimate.  Ours is a republican democracy, but not a Rawlsian republic in which public officials or citizens deliberating publicly are obliged to speak in terms of universally accessible reasons, if such a language is even available. 

Motivations are plainly not as opaque as Professor Horwitz implies they are, and we, in fact, make warranted inferences about motivations based on accessible evidence all the time in both law and in ordinary life.  Professor Horwitz's own comments well-illustrate that practice, as he identifies one of the three possible motives for Bush's actions:  namely, to shore up political support among his "base" (call this "the political motivation").  The evidence for ascribing this motivation is apparent and hardly controversial, notwithstanding the purported opacity of motivations.

The other two possible motivations are, as Professor Stone suggests, that Bush acted on the basis of sectarian, religious reasons, or that he acted on the basis of non-sectarian, non-religious reasons.  If, as Professor Stone  believes, there exist no reasons of the latter kind, then there are really only two plausible motivations:  the "political motivation" and the "religious motivation."  (Contrary to Professor Horwitz, the issue of motivation and of reasons are the same in this context; why Professor Horwitz thinks the issue is "publically" stated reasons I am unsure.  Professor Stone's objection, rather clearly stated I thought, is that Bush's veto constituted an "unethical and illegitimate usurpation of state authority designed to impose on all of society a particular religious faith."  That objection stands whether the religious reason or motivation is publically articulated or not.)   For purposes of Professor Stone's argument, it isn't clear that the difference between the "political motivation" and "religious motivation" account matters:  both involve the "usurpation of state authority designed to impose on all of society a particular religious faith."

The claim in Professor Horwitz's second paragraph is a bit obscure, as Professor Solum helpfully brings out:

One interpretation is that there are several (or at least two) forms of republican government--"Rawlsian republics" and "republican democracy" and that ideals of public reason are relative to the form.  I can't quite imagine how this argument could possibly go--maybe Horwitz can explain it.

Another possibility is that Horwitz means to argue that checks and balances--"a host of vetogates"--somehow create conditions which change the content of the ideal of public reason that is appropriate.  Once again, however, I am puzzled.  How could this be the case?  Ideals of public reason can be justified in a variety of ways.  Rawls, for example, appeals to the liberal principle of legitimacy--the political value of offering justiications that can be accepted as reasonable given the fact of reasonable pluralism--the fact that citizens adhere to a variety of religious and moral doctrines.  Given the structure of Rawls's argument, the existence of vetogates does not seem relevant, at least not in any obvious way.

(In an update to his original post, Professor Horwitz, as I read it, effectively concedes the force of these criticisms, which is to his credit.)

Professor Volokh aligns himself with Professor Horwitz's implausible claims about motivations that we have already discussed, but then adds the following:

I suspect that for many deeply religious people, all their moral beliefs are faith-based, because they believe morality only comes from God. I'd wager that many religious pacifists, abolitionists, and others would take precisely this view. Yet I think that we surely shouldn't condemn either their cause or them for this.

Strictly speaking, this is irrelevant to the issue actually raised by Professor Stone's argument:  the question was whether the power of the state may be wielded based on religious reasons (and against the will of the majority), not whether the citizenry may have religious reasons for their actions.  Of course, if Rawlsians are right, it may be that we ought to "condemn" those of our fellow citizens who do act on the basis of sectarian reasons (at least when fundamental constitutional issues are at stake):  the warrant for Professor Volokh's "surely" is, in that regard, mysterious.  But we can bracket that question here.  Professor Volokh continues:

Your moral views may come from your understanding of human dignity; another's view may come from utilitarianism; another's may come from libertarianism; another's may come from fundamentalist Christianity. None of these bases are somehow provable; none is constitutionally superior to the others....Any other approach is itself deeply discriminatory — it suggests that atheists, agnostics, utilitarians, and the like are entitled to enact their moral views into law (because they don't rest on religion) while devout Catholics, Protestants, Jews, Muslims, and others are forbidden from enacting their moral views into law (because they do rest on religion). That's not mandated by the Constitution, it's not in my view compatible with our national traditions, and it's not right.

This paragraph, I am afraid, confuses a variety of issues, and, in consequence, fails to give any real argument on the crucial issue (about discrimination).  The second of the two general confusions is more significant than the first:

A.  Provability.  It is unclear precisely what Professor Volokh has in mind by "provability," and it is also unclear why this would be relevant on any of the possible interpretations.   Certain aspects of "fundamentalist Christianity," for example, are certainly disprovable in the familiar sense that, e.g., belief in the literal truth of the Bible is not rationally warranted given uncontroversial standards of inference and evidence that even fundamentalist Christians otherwise accept and apply in other contexts.  (This is related to one of the reasons I thought "insulation from reasons and evidence" had to be a distinguishing feature of religious faith.)   As to "provability," this immediately puts fundamentalist Christianity in a worse situation than, e.g., utilitarianism, none of whose tenets  are false in light of the robust results of biology and geology.

Now it might be said in reply that the false claims of fundamentalist Christianity (e.g., about the age of the earth) aren't really at issue in this context, since what matters is a distinctively moral view, namely, about the moral rights of embryos.  Recall the earlier, admittedly sectarian argument I suggested for rejecting stem cell research:

[A]ll life is a gift from God, from whence its value derives, and...all life acquires this special value once God implants a soul; souls being non-material are present in embryos, even embryos smaller than a period on the page, and thus what is morally significant about "living, breathing, suffering children" is the same as what is morally significant about embryos

Does Professor Volokh's concern with "provability" include considerations of epistemic warrant, of what we are reasonably justified in believing?  If so, then I still do not see that the views he considers are on equal epistemic footing, since the epistemic warrant for belief in immaterial souls is quite a bit shakier than the epistemic warrant for the main premises of utilitarianism or libertarianism.

But we do not need to belabor this point, since "provability," however we are to understand it, is irrelevant.  What is at stake in Professor Stone's argument is (to borrow Professor Solum's gloss on it) the need for "public reasons" in justifying the exercise of state power.  There are many kinds of public reasons unrelated to questions of "provability" or "epistemic warrant," and so we may put Professor Volokh's not very plausible claims about "provability" to the side.

B. Discrimination. Professor Stone's view simply does not "suggest[] that atheists, agnostics, utlitarians, and the like are entitled to enact their moral views into law...while devout Catholics, Protestants, Jews, Muslims and others are forbidden from enacting their moral views into law (because they rest on religion)" (as Professor Volokh claims).  It suggests, instead, that the power of the state may not be exercised when the only reasons for doing so are religious reasons or, more broadly, when they are non-public reasons.  The religious may enact their moral views into law all the time when there are public reasons supporting those views (even if the religious find the religious reasons far more compelling and motivating).  And the non-religious are equally restricted from enacting their moral views (whatever their source) when they lack public reasons in support of them.  (Recall Professor Solum's point about utilitarian reasons being, potentially, non-public in the Rawlsian sense.  But that is one of many possible examples.  Someone who, e.g., wanted to enact laws based on evolutionary psychology would equally well be thwarted by the non-public character of the reasons [on this issue, the discussion in the paper by Michael Weisberg and myself is pertinent].)

Now there is a weaker version of Professor Volokh's claim about discrimination, which does follow from Professor Stone's (and Rawls's and my own) view, namely, that state officials who have only religious reasons for acting (call them "the solely religious") are acting unethically and improperly.  (Those with only "public reasons" for acting, by contrast, do not act improperly.)   This does, indeed, discriminate between the solely religious public officials and other state actors.  As noted earlier, however, there may be both legal (Establishment Clause) and moral (Rawlsian arguments, or my own) reasons for thinking this discrimination is both legal and just.  (Viewpoint discrimination doctrine has so wrecked Establishment Clause jurisprudence that the legal argument may be harder to make these days; I'll leave that matter to the experts.)   So, yes, "the solely religious" are treated differently under Professor Stone's approach, but there is no argument in evidence as to why this is illegal or unethical.

Professor Garnett's comments are the briefest, but at least one aspect of his remarks warrants critical scrutiny.  He writes:

It seems to me that Professor Stone, like many others, assumes that an objection to public funding of research involving the destruction of human embryos is -- and could only be -- a "religious" or "sectarian" one. It is not the case, though, that the arguments against such funding require, or always involve, recourse to revelation. I am starting to think that *all* moral claims -- e.g., "it is wrong to deny equal protection of the laws on the basis of race" -- are, in the end, "religious" arguments, but put that aside. The claim that there is something about a human embryo such that its destruction for research purposes ought not to be funded by the government -- whether we are moved by it or not -- is not, it seems to me, any more "religious" than any other argument about how human persons ought to be treated.

I do not think it can be the mark of religious arguments that they are all based on "revelation," since I do not understand "revelation" to be a central feature of all traditions of religious ethics.  But putting that aside, Professor Garnett (perhaps like Professor Volokh) appears to misunderstand the argument against "the solely religious" public official.  "Public reasons" are, by hypothesis here, reasons that may properly ground legislation and exercises of state power.  The argument that religious reasons are not "public reasons" isn't that they lack a certain kind of foundation that genuine "public reasons" have (perhaps this is what Professor Volokh was after with the talk about "provability"); the argument is that they aren't public, i.e., that they aren't the kinds of reasons acceptable to all reasonable people in a pluralistic society.  Many "public reasons" in this sense may lack foundations of one kind or another, but that has no bearing on their public status.  To put it (a bit too) crudely, reasons are "public" largely in virtue of a head count, not in virtue of their having more robust epistemic foundations.  So, contra Professor Garnett, it is not apparent that the the foundations of the beliefs or reasons in question are at issue here.

This is a lot more philosophy and argument-parsing than I usually do on blogs.  No doubt there are mistakes in reasoning and infelicities of expression in the preceding.  But perhaps these remarks may stimulate a more focused discussion, and give some pause to the hasty skepticism many in the blogosphere have expressed about Professor Stone's position.

UPDATE:  I have fixed several typos and reformulated a couple of points in the hour or so since this was posted.  I also meant to open comments; non-anonymous comments only.  I will only approve those that make a substantive contribution to the discussion and reflect an actual engagement with the arguments laid out here.

ONE MORE:  I have also now corrected a line in the discussion about vague predicates, which Trevor Morrison correctly pointed out was missing a necessary negation.

USC's Dudziak Wins ACLS Fellowship

The legal historian Mary Dudziak at the University of Southern California Law School was the only law professor to win a Fellowship from the American Council of Learned Societies for 2006.  The ACLS will support her project on "Exporting American Dreams:  Thurgood Marshall and the Constitution of Kenya."

Alito Clerks for 2006 Term?

I know that Justice Alito has at least two clerks for the 2006 term lined up:  Mike Lee (BYU '97) and Chris Paolella (Harvard '99).  Does anyone know who his other two clerks are, and where they went to law school?  You can either e-mail me or post that information below (preferably with a source).  Thanks.  (I am hoping to post updated Supreme Court clerkship rankings just for the period 1996-2006.)

Some Realism about the U.S. Supreme Court

Nicely put by Judge Posner:

The supreme court is a political court. The discretion that the justices exercise can fairly be described as legislative in character, but the conditions under which this "legislature" operates are different from those of Congress. Lacking electoral legitimacy, yet wielding Zeus's thunderbolt in the form of the power to invalidate actions of the other branches of government as unconstitutional, the justices, to be effective, have to accept certain limitations on their  legislative discretion. They are confined, in Holmes's words, from     molar to molecular motions. And even at the molecular level the justices have to be able to offer reasoned justifications for departing from their previous decisions, and to accord a decent respect to public opinion, and to allow room for social experimentation, and to formulate doctrines that will provide guidance to lower courts, and to comply with the expectations of the legal profession concerning the judicial craft. They have to be seen to be doing law rather than doing politics.

Some New Law Blogs

Everything you wanted to know about credit and bankruptcy here.

Everything you wanted to  know about "the interplay between legal responses to exogenous change and the law's own endogenous capacity for adaptation" here.

Is There a Correlation Between Scholarly and Teaching Success?

No.  Of course, there are questions (to put it mildly) about the measure of teaching success.  But this is an interesting piece of work.

Sextonism Watch: Wake Forest University

At least this bit of wild hyperbole was internal puffery, but here it is (thanks to an anonymous informant):

Robert K. Walsh, dean of the Wake Forest University School of Law, announced recently that he plans to retire as dean next summer. Walsh, who will complete 18 years as dean in 2007, will remain at the School of Law as a full-time professor of law starting with the 2007-2008 academic year....

He has seen the School of Law through a major transition in faculty, with more than half of the current faculty joining the school during his tenure.

"I've been privileged to participate in developing the best law faculty in America," Walsh said.

This one tops UCLA's ludicrous claim to be "emerging as the strongest law faculty in America"!  Of course, we should allow a retiring Dean some over-the-top hyperbole, and acknowledge that during Dean Walsh's tenure the school's faculty was significantly strengthened, with strong additions like Michael Green (torts, products liability) from the University of Iowa, Mark Hall (health law) from Arizona State University (who was then retained in the face of an offer from Penn), Steve Nickles (commercial law) from the University of Minnesota, and Sidney Shapiro (administrative law) from the University of Kansas.  One of Dean Walsh's biggest coups was the recruitment of Michael Perry (constitutional law) from Northwestern University, though he has since left for a prestigious chair at Emory.  So kudos to Dean Walsh for significantly strenghtening the Wake Forest faculty, even if it is not the "best" in America.

Osgoode's McCamus Elected to Royal Society of Canada

John McCamus, an internationally recognized authority on the law of restitution at Osgoode Hall School of Law of York University, Toronto, was the only legal scholar elected to the Royal Society of Canada this year.  Details here. 

Faculty Uprising at Michigan State

Moving to the front from Sunday:  see the latest update, below.

They want the Dean out (and more details here).

UPDATE:  An informed observer from another law school suggests to me that the "uprising" may have more to do with senior faculty from the Detroit College of Law days resisting the academic turn of the law school now that the old Detroit College of Law is part of Michigan State University; the current Dean has, I am told, aggressively led that move. 

AND ONE MORE:  A member of the law faculty at Michigan State (not one of those mentioned in the articles, above) has written to me directly and given me permission to post the following:

As someone on the ground here, I can tell you that it is false--demonstrably false--to say that the "uprising" against the Dean at Michigan State is about "resisting the academic turn of the law school." Everyone I have talked to about this is infuriated to see such a large portion of the faculty described that way.

The academic turn that the school has taken since becoming part of MSU had been nothing short of spectacular--between 2000 and 2003, we had twelve tenure-system hires from the meat market (four of whom have since left). We also landed two laterals, and a superlative new library director. All of these people have contributed to making this a more research-oriented law school. There had been some old guard versus new guard tension in the early years, but the simple fact is that we succeeded in hiring a lot of active scholars. In 2002 and 2003, we made nine offers and had eight acceptances.

From 2004 to 2006, by contrast, we've struggled. As noted above, several people have left. But we have still been making lots of offers to good scholars in the meat market. The problem has been that those offers are no longer being accepted. The last two years, we completely struck out in the meat market, which was a disappointing slip after going 8 for 9. We have lucked into some non-meat market hires*great people who happened to fall into our laps--but with the departures, we are barely treading water. Some people say we have just been aiming too high, while others blame the Dean. In any case, though, the faculty has clearly wanted to keep expanding and improving, and has tried.

Susan Bitensky, one of the Dean's staunchest opponents (she is quoted in the letters in the articles you linked to), is one of our most prominent scholars. The idea that she has opposed the 'academic turn of the law school' is a tremendous insult. The same goes for many, many other serious scholars, both junior and senior, who have supported hiring more serious scholars, but who currently oppose the Dean.

In April, the tenured faculty totaled 22. Subtracting the Dean and another professor (who was on his way out and so out of the loop) leaves 20. Out of that 20, 14 signed on to the petition. Of the remaining 6 (average age 63), only 3 are active scholars, and only 1 of those 3 has really spoken up for Dean Blackburn.

The 14 opponents include everyone else (average age 48). There are 4 non-scholars in the group, but the other 10 are all productive scholars*a sad number of whom are talking about leaving if they'll have to put up with this mess much longer.

The 2/3 of the tenured faculty that signed the no-confidence petition left the untenureds out of the process to protect them (they didn't want them to be pressured to try to choose the right side at the peril of their jobs). Nevertheless, one of the Dean's backers, a very senior professor, called and polled the untenured (inappropriately, I'd say). They were reportedly either noncommittal (in reply to the inquisitor, anyway) or negative. The untenured don't seem to support the Dean any more than the tenured do.

So if your commenter was off-base, what is the "uprising" about? Part of the concern does indeed deal with the integration with MSU, but not anything connected to academic issues. There was a lengthy process in which the law faculty worked hard on policy integration only to have its work torn up by the previous university president, who independently worked out a deal with the president of the law school's board of trustees--a deal that contained a lot of poorly-considered and poorly-drafted provisions. The faculty was mightily ticked off by this, and many perceived that the Dean had done nothing to fight for the faculty, and in some cases had acted in ways that further undermined it (I won't get into the mind-numbing details; suffice it to say that there are a lot of facets to this, and that people are irked).

More broadly, there are allegations of mismanagement and serious conflicts of interest (the Dean denies these, but has suggested to a couple of people that he would support having an independent investigator come in). There are also a rash of interpersonal conflicts that have euphemistically been called "communication issues," but basically amount to the fact that the concerned faculty have lost confidence in the Dean, and are very skeptical of his ability to deliver any purported fixes. The bottom line: They think he's doing a bad job and has done some bad things, they can't trust him, and they want him out.

The Dean's response so far has been a non-response, other than to note that the trustees and the university support him. By all appearances, he is trying to brazen it out. There has been some noise recently about the Dean being more responsive soon, but this will almost certainly be too little, too late to satisfy the opposition. (Did I mention that our ABA site visit is this Fall?)