pageok
pageok
pageok
UC Irvine Law School Foolishly Rescinds Offer of Dean Position to Erwin Chemerinsky Because of Fear of Offending Conservatives:

Brian Leiter reports that the new University of California at Irvine Law School has rescinded its offer of the position of dean to Duke Professor Erwin Chemerinsky because they decided that the hiring of such a liberal dean would attract too much criticism from conservatives.

Although Leiter and I disagree on a great many things, I have to say that he is absolutely right to denounce this boneheaded decision. Chemerinsky is an extremely prominent and widely respected legal scholar. A brand new law school like Irvine was very fortunate that he was willing to become its dean. To be sure, I don't know much about Chemerinsky's administrative skills; some outstanding scholars are poor administrators (and vice versa). But lack of administrative talent on Chemerinsky's part doesn't seem to have been the reason for Irvine's reversal.

The Irvine decisionmakers were simply foolish to believe that Chemerinsky's hiring would produce a major backlash from conservatives that could harm the school. Many prominent law schools have deans significantly more left-wing than Chemerinsky. None of them has attracted a significant conservative backlash for their dean hiring decision, and certainly none has suffered any real harm from such conservative criticism as did occur. Chemerinsky is unquestionably a liberal, but his views on legal issues are actually quite typical of the overwhelmingly left of center legal academy. I can easily name plenty of prominent constitutional law scholars significantly further to the left than Chemerinsky is.

Those conservative and libertarian legal scholars who have commented on Irvine's decision have been uniformly critical. For example, an LA Times story linked by Leiter quotes prominent conservative law professor [and Chapman Law School dean] John Eastman as calling the Irvine decision "a serious misstep." Glenn Reynolds has also denounced it, as has Steve Bainbridge. Among leading American legal scholars (a generally left-liberal bunch, to be sure), Eastman is one of those furthest to the right. If he is against this decision, it's safe to say that Irvine hasn't won itself many conservative friends by rescinding the offer to Chemerinsky.

My own view is that political ideology should not influence the hiring of scholars, except in extraordinarily unusual instances. Administrators are a more complicated case, because they are responsible for overseeing policies with ideological implications and objectives, and because they are supposed to project a positive public image for the school. It may be reasonable to avoid hiring administrators whose ideological views are radically at odds with the policies they are expected to enforce or will seriously damage the school's image. Be that as it may, there is no reason to believe that Chemerinsky's political ideology would prevent him from discharging his duties as dean, or somehow damage Irvine's image. Indeed, UC Irvine's decision to rescind the offer is likely to do far more harm to the school's reputation than hiring him ever could have.

UPDATE: Much of the press coverage on this incident suggests that Irvine's decision was motivated by its desire to avoid offending one particularly important conservative donor. Even if this is true, the decision was still foolish. Satisfying one donor at the expense of damaging the school's reputation throughout the academic community is unlikely to advance Irvine's longterm interests.

Justin (mail):
UC-Irvine was probably more concerned about one particular conservative (the funding donor) than conservatives in general. My guess is that they had good reason to be that concerned - it was probably his reaction that spurred the about-face.
9.12.2007 6:33pm
Carolina:
Justin,

I read the same thing. They have one deep-pockets guy they are counting on and he didn't like this choice.

That doesn't make it any less reprehensible, though. If they are going to de facto offer this guy veto power over the choice for dean, they could have at least checked with the donor before making the job offer.

Or better still, they could have convinced their moneybags donor that Chemerinksy is a respected scholar and a very solid choice for dean.
9.12.2007 6:37pm
CrazyTrain (mail):
I note that I took Federal Courts with Chemerinsky, and although I am politically liberal, I have views similar to Scalia on federal jurisdictional issues (especially on justiciability issues where I think that a Scalia-esque view of standing, mootness, etc. is necessary to justify judicial review).

As anyone knows, Chemerinsky has very, very different views of federal jurisdiction -- much more to the left of anyone currently on the Supreme Court I would argue. I found him, however, to be a very good teacher who was able to articulate fairly positions with which he disagreed and to encourage intelligent class discussion of the issues. Indeed, when someone made arguments that were consistent with his views, he would effectively make the counter-arguments when necessary.

A stupid decision, and query whether it raises 1st Amendment concerns -- the Chancellor admits that but for Chemerinsky's political views, he would have hired him (indeed, he did hire him, and only fired him for his politics).
9.12.2007 6:37pm
Oris (mail) (www):
Did they not notice he was so liberal before they asked him to be dean? I would think such vetting would normally occur before extending an offer.
9.12.2007 6:38pm
Blindgambit:
It seems odd that this particular "issue" wasn't caught during the interviewing process. I think the timing lends credence to Justin's suggestion that the pressure is coming from a deep-pocket donor who weighed in late in the process.

BTW, minor quibble but John Eastman is now a dean (at Chapman), not a lowly law professor.
9.12.2007 6:42pm
Ilya Somin:
BTW, minor quibble but John Eastman is now a dean (at Chapman), not a lowly law professor.

The 2 are not mutually exclusive. Eastman is both a dean AND a professor.
9.12.2007 6:45pm
Maxine (mail) (www):
That's how things are done in the OC !!! Besides, without Bren, they don't have a law school. Most big donations don't come from Alumnae. The big money comes from foundations, corporations, etc.. and because it's a start-up....they've got to answer to those providing the bankroll.

The public didn't want a new school. We are talking about a public school, yet 87% privately funded, before the first class even arrives. Obviously the private donors carry the most influence. Nothing shocking about that.
9.12.2007 6:50pm
Kent Scheidegger (mail) (www):
"My own view is that political ideology should not influence the hiring of scholars, except in extraordinarily unusual instances."

How about writing op-eds that make blatantly false assertions of fact? Should that influence the hiring of scholars?

Details here.
9.12.2007 6:52pm
Shelby (mail):
This looks terrible for Irvine as it tries to build a law school fromthe ground up. First, it strongly suggests that the school will be heavily beholden to one or a few outside interests whose view of the law is primarily partisan. Second, it indicates that their hiring policies are FUBAR from the get-go. Were I looking for a position as a law professor or law school administrator, I would run like hell from this situation.

Finally, because the law school doesn't yet exist, it has no reputation to help it ride out this problem. In fact, this situation will create its initial reputation. Were I considering going to law school there, I would take this into account.
9.12.2007 6:55pm
Dave N (mail):
As a conservative who posts fairly regularly, I find myself in the unique position of agreeing with both Justin and Crazy Train.

Yes, major donors are important; and yes, they can take their marbles and go home if they don't like things--but this was not Thomas Monaghan choosing a dean for a law school he founded. As the name suggests, University of California-Irvine is part of the University of California system. Its administration should be ashamed of itself for letting any outside donor pressure them like this.
9.12.2007 6:56pm
Nifonged:
Ignoring other issues, I would agree with Ilya, however Chemerinsky was particularly disappointing (vast understatement) in the case that spawned my moniker. He had a chance to make a stand for justice and civil rights and bowed to political correctness. The only Duke law professor qualified to be a Dean is Prof. Coleman. Chemerinsky is a t-shirt, a tv show of the week, not a serious scholar.
9.12.2007 6:56pm
Elliot123 (mail):
I agree that political views should not influence faculty and administrative hiring decisions. But, I note the academy is firmly rooted in the Left. Did it get that way absent such political filtering?
9.12.2007 6:56pm
tarheel:
This is appalling on a number of levels, and UCI deserves all the hits it will take.

That said, I must admit to a small degree of schadenfreude given how Chemerinsky handled himself in the aftermath of turning down the UNC deanship a few years ago. I thought going public with his criticisms of the school while the search went on showed questionable (at best) class.
9.12.2007 6:57pm
Dave N (mail):
I stand by my earlier post. That said, Kent Scheidegger makes a valid point about factual inaccuracies in Chemereinsky's LA Times op-ed.
9.12.2007 7:04pm
Tony Tutins (mail):
Why would Chemerinsky want to be the dean of a start-up law school in SoCal? That would not be consistent with ratcheting up the prestige ladder by moving from UCLA to Duke. His next stop should be somewhere like Chicago, his home town. I don't see him hiring faculty, picking out library furniture, or making sure the restrooms are supplied with toilet paper, all to the accompaniment of Skilsaws and nailguns. His expertise and prestige is all from his scholarship.

UC Irvine would be much better off hiring some associate Dean, or fourth-tier Dean, who wants to make his mark as an administrator.
9.12.2007 7:24pm
Edward A. Hoffman (mail):
Erwin was at USC (where I took three of his classes), not UCLA, and he didn't leave in order to "ratchet up the prestige ladder". He could easily get good offers from more prestigious schools than Duke if he wanted. He was happy at USC but he and his wife felt they could give their children a better upbringing in Durham than in L.A. If they feel they can do likewise in Orange County then there is no inconsistency in his wanting the UCI job.
9.12.2007 7:31pm
Tony Tutins (mail):
Erwin was at USC (where I took three of his classes), not UCLA

Sorry, my parochialism is showing. Why didn't he take the UNC deanship, if that area is such a good place to raise children?
9.12.2007 8:02pm
loki13 (mail):

Chemerinsky is a t-shirt, a tv show of the week, not a serious scholar.


Nifong,

While you may like or dislike the implications of his scholarship, or his view of the Constitution, you disqualify yourself from serious consideration with comments such as these.

I view this as roughly the same as a more liberal poster remarking that Posner is not a serious jurist. Or that Scalia is not a serious thinker.

As for the OP, I think it is a shame on many levels. The school should have vetted the name privately. As it stands, it is going to take a serious (and deserved) hit to its reputation. There are few scholars with a better *overall* reputation in terms of breadth in the field of ConLaw and FedCourts than Chemerinsky.
9.12.2007 8:03pm
Dilan Esper (mail) (www):
UC Irvine's decision is outrageous; it is also not suprising given who their donor base is. (See my comment here.)

But I would reply to a couple of people in this thread:

1. I have certainly spotted erroneous statements and bad arguments, on occasion, in Professor Chemerinsky's commentaries in the news media. But I don't think that Kent is correct that this disqualifies someone from being a Dean of a prestigious university. Not that I endorse such conduct, but it's endemic among people arguing a position, including prominent conservative law professors as well as liberals.

2. In my own experience, Erwin hasn't been the type of guy who leaves his politics at the door (not that he should, either!). Of course, I also think most people who know him know this and that UC Irvine certainly knew what it was getting.

3. If he wants to get a Deanship at a prestigious law school, I am sure he will get plenty of other offers. (His family is a complicating factor, actually; he is married to a law professor who-- and I do not mean this in a demeaning way at all-- has not become a scholarly and media "star" like he has. This can make location issues more complicated as there are two people who need to get jobs in the area and not one.)
9.12.2007 8:10pm
Dilan Esper (mail) (www):
Or that Scalia is not a serious thinker

He is certainly a serious thinker-- but he isn't as smart as he and the right think he is.
9.12.2007 8:12pm
CaDan (mail):
Erwin won the NDT and ran the Northwestern institute when I went there. This is a big loss for UCI.
9.12.2007 8:18pm
Kent Scheidegger (mail) (www):
Dilan,

I agree that a simple error would not necessarily be disqualifying, but this was more than that. It was an incendiary accusation that no responsible person would make without checking that it was true. He asserted that none of the states with capital punishment except Arizona provide state-paid counsel to death row inmates. "Everywhere but Arizona, death row inmates still have to pay for their attorneys (unlikely), get pro bono representation (difficult) or represent themselves (unwise)."

I find it close to impossible to believe that a person who lived in California and taught constitutional law here for years did not know that the state has, in fact, appointed habeas counsel from the beginning. Yet even if he didn't know that, to make that statement without checking if it is true (and it is very easy to check) and print it in a major newspaper is conduct unbecoming a scholar.
9.12.2007 8:24pm
Dilan Esper (mail) (www):
Kent:

I am not defending what Erwin said in that article; I will defer to your analysis that it is wrong. But I will tell you that I have read commentaries from John Eastman, Doug Kmiec, and John Yoo with similar advocacy driven factual errors over the years. As a lawyer, I am probably more inured to it than I should be, but when people are advocating a position, they sometimes say stuff that isn't true. And law professors do it too.

When John Eastman wrote a pretty factually challenged piece once on the citizenship clause of the Fourteenth Amendment, I wrote a response that ran in the same publication and corrected his errors. I didn't oppose his appointment as Dean of Chapman.
9.12.2007 8:31pm
Shelby (mail):
Kent,

It takes more than one egregious mistake* in an op-ed to disqualify someone with Chemerinsky's credentials. He really is one of the half-dozen "star" full-time law professors nationwide. Any law school in the country would be delighted to land him. If you show a clear pattern of misrepresentations, distortions, or similar behavior in his public writings, you might have something. But (speaking as someone who disagrees with him on both politics and legal questions) anything less than that is insufficient to meaningfully attack him.

*I take no position on whether, in context, it really was a mistake.
9.12.2007 8:32pm
CrazyTrain (mail):
I view this as roughly the same as a more liberal poster remarking that Posner is not a serious jurist.

As a liberal poster, let me note that Chemerinsky is not in the same league as Posner (few are). I would also say that Chemerinsky is not a top-notch scholar (on both the liberal and conservative side, there are many who are in another class -- Tribe, Van Alstyne, Volokh, etc.), he is a good scholar, but a top-notch teacher who has an encyclopedic knowledge of constitutional law.
9.12.2007 8:45pm
rarango (mail):
Once atain, what DaveN said--I am just going to stop posting and give DaveN my proxy. One's political ideology should not be a factor in selection for an academic position. Right, Center, or Left. This may play with one deep pockets donor, but when that donor is dead and gone, and the endowment funds the operation, what then? Bad decision, and bad precedent. And, is there one iota of evidence, that Professor C's political ideology would influence the policies of the school?
9.12.2007 8:46pm
Dilan Esper (mail) (www):
Erwin won the NDT

Yeah, my college debate coach was one of his victims.
9.12.2007 8:46pm
Tony Tutins (mail):
I would also say that Chemerinsky is not a top-notch scholar

Damn right. Guy begins his casebook mocking the idea that the Second Amendment acknowledges an individual right. Clearly, the individual rights scholars are operating at a higher level.
9.12.2007 8:49pm
Dilan Esper (mail) (www):
CrazyTrain:

I don't even think "top notch teacher" gets at what he is. He does have an encyclopaedic knowledge of constitutional law, and he is charismatic and very nice.

But as I get at in my other post, he's actually too easy as a teacher. He basically reads his outline (in debate style, with overt subpoints) and then solicits students' views regarding the cases. His class isn't rigorous; he doesn't ask students to think deeply or take their analysis to another level or challenge the opinions given by students in class.

If your definition of a great teacher is someone who is well organized, charismatic, and makes it easy for you to get a good grade on the final by being crystal clear and never hiding the ball, he's a great teacher. But he isn't the type of teacher who really makes you examine your beliefs or internalize the policy conflicts inherent in the important cases.
9.12.2007 8:50pm
Gaius Marius:
No public institution should be held hostage by some uppity donor.
9.12.2007 8:56pm
Edward A. Hoffman (mail):
Calling Erwin's knowledge of constitutional law encyclopedic is an understatement. An actual encyclopedia on Con Law wouldn't come close to containing everything he knows about the subject -- and probably wouldn't explain it half as well.
9.12.2007 9:17pm
Bombast:
Erwin has become a "star" by taking the left side in high profile cases, like the Rachel Corey suit against Caterpillar. He would not stop doing so just because he came to OC - he would be much more likely to expand his activity once he had an unlimited pool of student man-hours.

If you were Donald Bren, owner of The Irvine Company (Irvine Company, UC Irvine, get it?) and having pledged $20 million to the law school - would you want that Erwin waiting for the chance to sue you over any perceived wrong?
9.12.2007 10:28pm
sbron:
I think it is time to stop portraying the discomfort
many feel with Chemerinsky's views as a conservative
versus liberal issue. Prof. Chemerinsky strongly
opposed Proposition 209 in California, theoretically
(but far from actually) eliminating racial preferences.

There are many who consider themselves liberal who
find the idea of racial (and gender) preferences
abhorrent, such as Carl Cohen of U. Mich. or the
late California Justice Stanley Mosk. Such prefences have
completely warped the hiring and admissions process
at the University of California and work in a symbiotic
fashion with political preferences to maintain a
hard-left professoriate.


Furthermore, the racial preferences promoted by
Prof. Chemerinsky not only discriminate (in clear violation
of the 14th Amendment) against whites and Asians, but
have done absolutely nothing to improve the very poor
educational performance in K-12 among Latino and
Black students.

It is time for truly new ides to address the really
nasty ethnic/racial conflicts in California, and
Prof. Chemerinsky's adherence to preference ideology
is stale and just not useful.

The Professor's role in the Rachel Corrie suit against
Caterpillar was news to me, but would also explain
the reason UCI rescinded its offer. Again, this is
not a conservative versus liberal thing. Many
true liberals found Corrie's and the ISM's campaign opposing Israel's self defense against suicide attacks appalling. UCI has come under
severe criticism from both conservatives and liberals
for anti-Semitism among its Muslim
students (one such student even held a workshop titled
"Israel, the Fourth Reich".) Having a Dean who represented
someone sympathetic to the International Solidarity
Movement and associated with Replacement Theology
would only add to concerns about anti-Semitism.

I agree it was outrageous to rescind the offer once
made, but UCI should have chosen a Dean who believed in
equal rights for everyone, even if they are white males.
9.12.2007 10:47pm
Dilan Esper (mail) (www):
Bombast:

Erwin has never sued university donors to my knowledge. The Rachel Corrie suit is one of many suits that have been pursued by public interest lawyers trying to hold corporations liable for human rights abuses that they arguably have caused, permitted, or assisted. (Full disclosure: I have worked on a couple of these.) Erwin works on these cases because he believes in the principle, as do I.

In other words, he isn't an ambulance chaser, and Donald Bren had nothing to worry about.
9.12.2007 10:48pm
Dilan Esper (mail) (www):
sbron:

If you think opposition to affirmative action should be a litmus test for a dean, good luck finding very many candidates in academia.
9.12.2007 10:49pm
Lede (www):
credit to UC Irving for realizing what many fail to grasp here: interpreting law is political. And rightly so. Two well meaning people can disagree over the intent of say the incorporation clause or what the word "happiness" implies in the Declaration of Independence. By making sure that the seek out a fair, impartial ground on which to pursue to development of the University they will truly be more open to new legal thought/development that many of the thoroughly entrenched liberal law schools out there.
9.12.2007 11:24pm
Kazinski:
Obviously the real issue is the money. And the Chancelor may just be making the best of a bad situation, if his choices were going ahead with the hire and then announcing the law school has been scrapped, or finding another candidate in order to preserve the funding, that would have been even more embarrassing.
9.13.2007 12:31am
Thorley Winston (mail) (www):
I agree it was outrageous to rescind the offer once made, but UCI should have chosen a Dean who believed in equal rights for everyone, even if they are white males.


Well actually the majority ethnic group at UC Irvine (at least for undergraduates) is Asian/Pacific Islander although they're usually just as discriminated against by racial preferences and setasides. That doesn't necessarily mean the same demographics would be true for the law school but your point that they ought to be able to find a dean who isn't a racist is a good one.
9.13.2007 12:33am
frankcross (mail):
I'm sure there are reasons not to select Chem for your Dean. But they miss the mark here. It would clearly have been a coup for Irvine in setting up a new school. But people would not have criticized the school if it would have selected a different candidate. The problem is that they chose him, on the merits, and then caved. That's a terrible way to start a law school.

He turned down the UNC Deanship, I understand, because the Administration made misrepresentations to him about the resources they would commit to the law school.
9.13.2007 12:35am
Bombast:
Dilan -

I agree, Erwin is not an ambulance chaser. Like Gloria Allred, he's a microphone chaser. He's not looking for a contingency fee, he's looking for airtime.

He had ample opportunity to do the right thing at Duke. He never said a word - because he wouldn't have been in the spotlight. He signs onto these cases when he can take center stage.

UCI needs a Dean that will promote the school - not one that will use the school to promote himself.

Just imagine how much publicity he'd get as Dean of Irvine's Law School, suing Irvine Corp. It would be irresistible. It wouldn't matter what the cause was - environmental probably - the media would eat it up.
9.13.2007 12:47am
TyWebb:
Lede:

credit to UC Irving for realizing what many fail to grasp here: interpreting law is political.

Completely misses the point, as does UC Irvine's decision. At its heart, a law school (especially one like this, that is new and without a reputation) should focus on bestowing degrees on women and men that stand a substantial likelihood of becoming successful attorneys. The definition of "successful" changes depending on the law school (a place like Pittsburgh or American might focus more on turning out practitioners in civil litigation and other basic, hard-nosed lawyering specialties, where Yale and Stanford focus on appellate litigation, scholarship, and high level transactional work). Nevertheless, to accomplish this focus, the school needs to attract intelligent and motivated students to its school, who will graduate and promptly find gainful employment in the field. These alumni will, in turn, remember their alma mater when interviewing candidates from the school and give them the same chance they were given--which in turn raises the statistics for the school, raising its visibility and prestige, and ultimately attracting more top-flight students.

Unfortunately, for too many law students, this isn't the reality. Far too many law schools simply do not perform well enough at this mission. They continue to exist because hundreds of young women and men are deluded into thinking that everyone has a chance at clerking for the Supreme Court or working at Wachtell. What results is hundreds of JDs either unemployed, or taking jobs that will not suffice to pay their six-figure debt.

UC Irvine, by signing Prof. Chemerinsky to the deanship, had the chance to raise its visibility as a new law school just enough to attract a few of those intelligent, motivated students right off the bat. Instead, it will attract mostly people who couldn't get in anywhere else. These people will graduate without well paying jobs and with a large student debt. It should be noted, moreover, that the contemplated loss of conservative donors at the outset cannot exceed the potential loss of dedicated earmarked donations to the law school from more successful graduates. Regardless, contributing to the nations' glut of law schools by throwing away the one chance at visibility they had is not about politics. It's about bad administration.
9.13.2007 1:00am
Dilan Esper (mail) (www):
He had ample opportunity to do the right thing at Duke. He never said a word - because he wouldn't have been in the spotlight. He signs onto these cases when he can take center stage.

This is completely false. I have been involved in cases where he was also a member of the litigation team, and he is often NOT the media spokesman on the team. Many times he simply contributes ideas to the briefs or edits pleadings. Sometimes he is a spokesman, but often not. He certainly has afforded many other lawyers in the California civil rights community the opportunity to take center stage and receive credit for advocacy efforts.

I am sure that Erwin, like many people, likes the attention of the media calls. But he's not a publicity hound and has never been one.
9.13.2007 1:14am
Anderson (mail):
your point that they ought to be able to find a dean who isn't a racist is a good one.

If Mr. Winston is NOT saying EC's a racist, clarification seems in order.
9.13.2007 1:28am
Q the Enchanter (mail) (www):
Mr. Scheidegger above may "have a point" in his advertised rebuttal to Chemerinsky's op-ed, but only if his facts are correct and on-point. I have my doubts.

His leading claim, for example, is in response to Chemerinsky's claim that "[a]lmost no states provide counsel" habeas proceedings for death penalty petitioners. Scheidegger responds by quoting Justice Stevens' Murray dissent:
Of the 37 States authorizing capital punishment, at least 18 automatically provide their indigent death row inmates counsel to help them initiate state collateral proceedings. Thirteen of the 37 States have created governmentally funded resource centers to assist counsel in litigating capital cases. Virginia is among as few as five States that fall into neither group and have no system for appointing counsel for condemned prisoners before a postconviction petition is filed.
Now, maybe Scheidegger's correct about the state of play, but this excerpt is clearly inadequate to show it: Providing "help" to "initiate" collateral review is not ""providing counsel"; "assistance to counsel" is not "providing counsel"; and the last sentence merely states that VA is among the remainder of states that do neither. Obviously, none of this is relevant to assessing Chemerinsky's claim.

I don't mean to clutter up the thread with matters off-topic, but the issue appears effectively to have been incorporated into the discussion, so I thought I should address it.
9.13.2007 1:41am
Dave N (mail):
As a habeas practitioner (in death penalty litigation, no less), Kent Scheidegger is quite right and Professor Chermerinsky's editorial is more than a bit misleading.
9.13.2007 2:49am
Dave N (mail):
Second time in two posts I have misspelled Professor Chemerinsky's name. My apologies. Neither was intentinal.
9.13.2007 2:54am
tarheel:

He turned down the UNC Deanship, I understand, because the Administration made misrepresentations to him about the resources they would commit to the law school.

How exactly could they be misrepresentations if he never actually stuck around to see what they would commit? He might have preemptively assumed they would not follow through, but that is hardly a misrepresentation on their part. In any case, it's hard to justify his decision to go public with that concern while the search was ongoing. A lot of people at UNC supported his candidacy strongly, and he knifed them all in the back, in my view. Of course, as you might guess, I have a somewhat parochial view of this incident.
9.13.2007 9:02am
Kent Scheidegger (mail) (www):
The Enchanter's comment is puzzling. Chemerinsky says "Almost no states provide counsel in" state capital habeas. I quote Justice Stevens saying way back in 1989 that 18 states, about half of those with capital punishment, did. (More do now.) By no stretch of the imagination can half be reconciled with "almost no." The passage proves Chemerinsky's statement was false, and that the contrary facts were well known long ago. "The Enchanter" says "this excerpt is clearly inadequate to show it." Then he goes off on the irrelevant portion of the Stevens quote regarding what 13 other states do. I suppose I might have deleted this portion of the quote and replaced it with an ellipsis, but I don't like to do that when it is not necessary. An ellipsis leaves the reader wondering what you cut out. Better to leave it in so everyone can see it doesn't change the meaning of the part you are relying on.

So, Enchanter, what fact do you think I do not have straight? Do you contend that 18 states is "almost no states"?

Back on the main point, there is nothing wrong with a scholar having strong political opinions. But to be worthy of the name, a scholar must be dedicated to truth first, and politics must be subordinate. When someone prints a patent falsehood to advance a political agenda and does so with "actual malice" in the NYT v. Sullivan sense, "with knowledge that it was false or with reckless disregard of whether it is false or not," the claims that he is a great scholar are doubtful, to say the least.
9.13.2007 1:10pm
Thorley Winston (mail) (www):
How exactly could they be misrepresentations if he never actually stuck around to see what they would commit? He might have preemptively assumed they would not follow through, but that is hardly a misrepresentation on their part. In any case, it's hard to justify his decision to go public with that concern while the search was ongoing. A lot of people at UNC supported his candidacy strongly, and he knifed them all in the back, in my view. Of course, as you might guess, I have a somewhat parochial view of this incident.


Eugene just posted an update that apparently the issue wasn't that the regents or the donors objected to Erwin Chemerinsky but that when he was originally hired he was asked specifically to focus less on writing op ed pieces and more on developing legal education. You know the sort of thing that a dean at a law school is expected to do.

Chemerinsky apparently went back on the agreement by jumping into the death penalty case before he was even approved by the Regents and chancellor who offered the job, apparently without regard to the content of the op ed, saw this as a preview of things to come and rescinded the offer. If he couldn't even control himself until he had the job for sure (which doesn't happen until the Regents approve it), how could they expect him to start behaving when the job was secure?

Basically they knew he was a liberal and didn't care that he was a liberal. What they did care about was that he apparently didn't realize that when you take on the additional responsibility of being a dean and serving as the public face of an institution rather than just a professor, you're expected to carry yourself a certain way rather than freely jump into whatever cause strikes your fancy.

IMO these two incidents suggest that Erwin Chemerinsky may be a decent professor and a respected academic but that doesn't mean he has the skills and temperament to serve as the leader of a law school.
9.13.2007 2:28pm
Dilan Esper (mail) (www):
I am starting to piece this together. Erwin says the opposition to him started after the LA Times ran an article saying he was the frontrunner for the job (after he had been offered it). And the Chancellor said the habeas article (which was written and published before the job offer) was a key factor in the reversal. Perhaps Kent-- whose organization opposes Erwin's positions on habeas issues-- or someone Kent knows, was one of the people who put pressure on UCI not to hire him?

How about it Kent? Were you involved?

(And by the way, you really haven't answered my point that lots of conservative scholars have said factually challenged things in the newspapers too.)
9.13.2007 3:05pm
Kent Scheidegger (mail) (www):
The post on my blog denouncing the article on the merits is the extent of my "involvement" prior to the decision. I did not put any "pressure" on anyone not to hire him.

Yes, in fact, I have answered your point about other factual mistakes by other scholars. See 9.12.2007 7:24pm. Unless you have some information that the others are of the same magnitude, there is nothing more to say.
9.13.2007 5:07pm
Dilan Esper (mail) (www):
Kent:

Thanks for clarifying. To be clear, I was not accusing you of having any involvement; I simply noticed that you were pointing to the same article as the Chancellor and Erwin's story indicates that there may have been some organized conservative pressure after the LA Times floated his name, so I had a natural question. I certainly take your denial at face value.

But I don't think you answered my question about conservative scholars, except by saying that what Erwin did was really that bad. We'll have to agree to disagree about that one, but I do think that even if one accepts your view as to the seriousness of the offense, you are eliding an important distinction between Erwin's scholarship and his role as a public intellectual. It would be a lot different if there were a serious misrepresentation in a law review article or his constitutional law treatise.
9.13.2007 6:01pm
The General:
think real hard about whether it was liberals or conservatives who placed a person's ideology/political views squarely into what ought to be considered in hiring and firing in academia. Now it has come back to bite one of their own, fairly or not. It's a shame, but liberals created this monster and have to live with it.
9.14.2007 3:42pm
Edward A. Hoffman (mail):
The opinion piece which supposedly so upset Chancellor Drake had already been written and submitted to the newspaper when he offered Erwin the deanship. How can Erwin's commitment to the job be undermined by something he wrote *before* the job was even offered to him?
9.14.2007 4:24pm
slee (mail):
To be sure, I don't know much about Chemerinsky's administrative skills; some outstanding scholars are poor administrators (and vice versa). But lack of administrative talent on Chemerinsky's part doesn't seem to have been the reason for Irvine's reversal.

The reason that we don't know much about Professor Chemerinsky's skills as an administrator is because his CV does not indicate any experience as an administrator, to the best of my knowledge.

Last night, on Which Way LA, 89.9 in Los Angeles, Chemerinsky indicated he still would have made the statements in his Op Ed piece were he the dean at UCI. To me, this is an indication of Chemerinsky's naivete as a future administrator and indicates that lack of administrative skill was, contrary to the statement above, a factor considered in the Irvine reversal.

As a lead administrator of an academic institution, one owes a duty to the institution to do what is best for the institution. Part of that duty includes engaging all factions and constituents of the institution, regardless of their politics. It does not mean that you forsake expressing your own political views period, but that you, as Dean Eastman of Chapman Law School stated on Which Way LA, walk a fine line between expressing your own personal views and expressing the official views of the institution.

If Chemerinsky conveyed to UCI law school that as dean, he would still have made the statements in his Op Ed piece, it would risk too much controversy for a school still trying to attract donors of all political persuasions. Would his statements be rightly construed as the views of the institution or would he need to tack on a disclaimer stating it was not the official view of the institution?

Making such statements as the Op Ed piece after becoming dean would put at risk the process of establishing law school identity and core values. It would indicate, to me, a lack of political skill and administrative know-how that is required to develop strong relationships with all constituents of an institution.

The selection of a more politically astute candidate and one with more experience as an administrator, then, might be more suitable for a new law school in the making. The founding dean of any academic institution would have to be one, INHO (in my humble opinion), that had years if not decades of experience as an administrator.

This does not excuse the ridiculous manner in which UCI handled the situation or diminish my respect for Erwin Chemerinsky as a legal scholar. UCI should have developed a more solid set of criteria in selecting a candidate and not renegged on an offer after having the candidate sign on the dotted line.
9.14.2007 6:32pm
Sonja (mail):
I see the hand of the lobby in this - i.e. the same lobby that cost Finkelstein his job, and Walt and Mearsheimer their reputations. i.e. the lobby that is waging a war on academic freedom.
9.14.2007 10:03pm
ReasonableD:
On another blog just now, I read "...it [UC Irvine] will be hard-pressed to hire any Dean for the new law school at this point. (As one of my colleagues put it, what self-respecting law professor, let alone one with any scholarly stature, wants to go be an apparatchik answering to unknown political and/or monied interests behind the scenes?)"
The obvious answer is Alberto Gonzales, someone who will be heartily welcomed by the conservatives of Orange County who have created such an extreme (in both ways)noise about the appointment of Erwin Chemerinsky, characterized by Supervisor Antonovitch's use of the "al Qaida" fear image to rouse the rabble even further.
9.15.2007 10:40pm