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Wednesday, September 12, 2007

Could This Be True???

Just last week it appeared that UC Irvine had scored the amazing coup of landing Erwin Chemerinsky as the founding dean of its law school.  For a brand new school to land such a well-known scholar (who had turned down a first-tier deanship only a year ago) seemed almost too good to be believed.

Now Brian Leiter is reporting on his blog that Chemerinsky has already been hired and fired from that post.  This would be devastating for UC Irvine.  As Leiter quite rightly points out:  If this is true, who in their right mind would take the job?

UPDATE: The WSJ online has picked up the story now, confirming the facts with Chemerinsky himself.  The WSJ quotes Chemerinsky as saying that he was told that he was fired because his  political views would make him "a target for conservatives, a lightning rod."  That's really, really bad for UCI.  First, Erwin's views, while on the left, are pretty solidly within the mainstream.  Second, did they not know his politics before they hired him? No one thought to Google him?  Third, if you open your law school by making it clear that you will allow your donors to dictate the political views of your dean, good luck finding qualified candidates of any political stripe willing to take the job.

UPDATED AGAIN:  My MoneyLaw colleague Belle Lettre has posted her promised "massive link roundup/post" on her Law and Letters Blog.  Surf over there for a definitive look back on the week that was.

Posted by Sam Kamin on September 12, 2007 at 01:09 PM | Permalink


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Here's what Irvine did to Derrida: http://chronicle.com/free/v53/i46/46a00801.htm

Posted by: x | Sep 14, 2007 1:30:03 AM

Just to address a few of the comments here:

(1) There are already a few law schools that were expressly conservative at inception. Those are the infamous Regent University, lesser known Ave Maria and then George Mason. There are an additional number of law schools that are outwardly rather conservative. Those would include Pepperdine University and the University of Chicago. One of the commonalities among these conservative schools is that outside Chicago, the rest have poor reputations for scholarship and education.

(2) The "public interest" component of the legal education that UC Regents were using as a justification for the law school is actually a common component of all law school curriculums. They are called clinics. All law schools have them and every law school I am aware of has clinics that provide legal services to the indigent. There is nothing special about what they are planning at Irvine. It is just a positive for the community that there will be clinical services offered. That has nothing to do with conservative/liberal. Furthermore, one of the foundational aspects of the profession is the 6th Amendment right to legal counsel.

Posted by: Bubba | Sep 14, 2007 12:11:25 AM

Adam: I don't get your point at all: Aren't law schools representing the poor in small claims clinics, securities arbitration clinics, social security disability clinics, etc., doing exactly the sort of private charity work you're praising? Say what you want about abortion, but few or no law students in clinics, and very few public interest lawyers, actually work on abortion. That's a silly straw man.

Patrick: don't forget about (1) how private charity is doing such a great job of providing health care to all, and (2) how law firm pro bono totally fill in the gap when governments underfund legal services.

Posted by: Scott Moss | Sep 13, 2007 12:41:13 PM

"The old Elks Lodge, American Legion, and Shriners organizations that were responsible for the general welfare in the past have been pushed out by governmental welfare programs."

Pardon my purple prose, but that's bullshit plain and simple. And in my town these and similar groups still perform charitable and welfare activity. In any case, the Welfare State arose precisely because private charity was NOT capable of taking care of the general welfare. Now you can explain to us how private charity saved us from the Great Depression.

Posted by: Patrick S. O'Donnell | Sep 12, 2007 11:51:29 PM

Public interest law is mainly a leftist/liberal activity. However, volunteerism and charity are higher among conservatives. That may be a function of what is considered "public interest." Working for the ACLU to keep abortion as a Constitutional right is considered public interest according to most law schools.

If we were just talking about doing legal work for the poor and underserved, the amount of public interest work done by the left and right would probably be different from the current data.

Much of conservatism is based on communities helping one another instead of the government. The old Elks Lodge, American Legion, and Shriners organizations that were responsible for the general welfare in the past have been pushed out by governmental welfare programs.

If public interest law was not so much a sham for leftist political activism (i.e. death penalty, abortion groups, criminal defense), it would probably attract more people from a full ideological spectrum.

Posted by: Adam C | Sep 12, 2007 11:37:44 PM

Does the notion of "public interest" fit within the conceptual scheme of libertarian conservatism? It won't do to say that many private interests expressed in economic markets add up to one big public one....

Empirically speaking, I would hazard the guess that public interest lawyering is overwhelmingly practiced by those of a liberal/left orientation, which of course hardly rules out the possibility that a public interest lawyer may, peculiarly, idiosyncratically, happen to be a conservative. Conservative ideology by its very nature does not appear to motivate legal practitioners toward public interest law. I'd be happy, however, to consider evidence to the contrary. Not without reason did one of the foremost apologists for the New Right in America, Russell Kirk, proclaim with some vigor: "When a man is both a professor and an intellectual, he is loathsome; when he is professor and intellectual and ideologist rolled into one, he is unbearable." This would seem to put public interest lawyering beyond the pale of New Right conservatism. Public interest lawyering is predicated upon a robust (I know, there's one of those buzzwords) conception of the common good that is anathema to many conservatives, based as it is on social theorizing of the sort conservatives by nature are constitutionally ill-disposed towards. Contemporary Gradgrinds and Malthusian Social Darwinists worshipping at the Temple of the Mammon Market and singing the virtues of the anti-democratic corporation cannot be counted on to recruit individuals into public interest lawyering, the very practice of which does not demand absolute fealty to the economic tenets of late-, casino, or turbo-capitalism. These are generalizations of course, so they will admit of exceptions...to the rule.

Posted by: Patrick S. O'Donnell | Sep 12, 2007 7:27:08 PM

I am not sure that conservative lawyers or law students and public interest work are mutually exclusive. Couldn't a school be conservative and promote public interest work? I don't think that the liberals are the only ones helping the underprivileged.

Also, law school clinics are a great way to learn practical skills, and the underprivileged are the most likely ones to have students represent them. (I don't see Skilling going to a law school clinic.) Therefore, liberal or conservative, public interest work is a good way to train students to be lawyers.

Posted by: Marianna Moss | Sep 12, 2007 6:06:23 PM

Howard, I agree with you: There very well might be a niche for an explicitly conservative law school. However, as Scott pointed out in his post, that's sure not how UCI pitched themselves: http://today.uci.edu/news/release_detail.asp?key=1544 (excerpt: "As part of their training, UCI law students will provide legal services to people who are unable to afford counsel. They also will be encouraged to pursue public interest law through programs focusing on underserved communities.") Dave's point is a good one, too. Was Orange County really the place for the UC Regents to put their public interest law school?

None of this is to excuse the administration at UCI. They've done incalculable damage to their unborn institution. Pun intended.

Posted by: Sam Kamin | Sep 12, 2007 4:38:21 PM

Perhaps it would be interesting if a school were to establish itself as an unabashedly politically conservative institution, dedicated to to spreading those ideas through teaching and scholarship. Such a school only would hire (and likely only would attract) faculty who share that political viewpoint and that mission. I have no idea if that is what UCI is doing, silently. But any attempt to set up such a school would have to made quite explicit. Otherwise, things like this debacle occur and the school ends up looking like it does not know what it is doing.

Posted by: Howard Wasserman | Sep 12, 2007 4:08:32 PM

Wow. If this is true, it's yet another tricky chapter in the very difficult birth of this law school (which was proposed and rejected in the state legislature a few times before finally getting approval to go forward). Orange County is well known as a bastion of political conservatism, but on the other hand one of the reasons publicly given for the establishment of a UCI law school was to produce more public interest lawyers for the area, suggesting that the school wouldn't necessarily track the politics of the region.

Another twist is that the influential Irvine Company is reported to have either pledged or already given $20m toward the law school's endowment. The school might be thinking that a known left-leaning dean like Chem might make that or other donations from politically conservative real estate developers (who own much of the land and control the local politics in Orange County) more difficult to acquire. The latter point doesn't do anything to assuage concerns about academic freedom of course, but may provide some understanding about what's going on behind the scenes.

Posted by: Dave | Sep 12, 2007 3:35:21 PM

I'd go further than "who would agree to this deanship": I'd be verrrry wary of becoming a faculty member there. Granted, there's a difference between choosing a dean and pressuring a faculty member not to publish certain views, but (1) once a law school breaches the politics/academic firewall, I wouldn't put anything past them (cf. DOJ), and (2) don't underestimate the chilling effect on untenured faculty (e.g., junior con law scholar at UC Irvine: "Hm, I could write my next article on this cutting-edge idea I have about gay rights... Or on the dormant commerce clause... yeah, that sounds safer....").

I don't envy the "next" UC Irvine Dean any more than I envy the next U.S. Attorney General. Once it's clear your superiors have no qualms about letting politics interfere....

Posted by: Scott Moss | Sep 12, 2007 2:09:50 PM

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