Chemerinsky-UC Irvine, Day 6

• FindLaw:  The Newly-Founded U.C. Irvine Law School's Firing of New Dean Erwin Chemerinsky: Why It Violates the Constitution, Destroys the School's Reputation, and Jeopardizes Its Accreditation, by Scott Moss (Colorado):

[I]t's remarkable that virtually all law professors, across the ideological spectrum, were united in outrage last week when the nascent U.C. Irvine Law School fired constitutional law guru Erwin Chemerinsky - just a week after reaching a contract with him to be the school's first Dean.

In this column, I'll start by recounting recent analyses of why the firing appears to have been unconstitutional under the U.S. and the California constitutions. I'll then proceed to discuss why the firing may not only tarnish U.C. Irvine's reputation, but also jeopardize its accreditation.

• Dorf on Law: Did Chemerinsky Dodge a Bullet?, by Michael Dorf (Columbia):

When I last saw Erwin Chemerinsky I asked him why he wanted to be the dean of a new law school. He was enthusiastic in response, talking about the opportunity to place his stamp on legal education as the founding dean of the UC Irvine Law School. I was skeptical and remain so. Chemerinsky has enormous talent and energy but I sincerely doubt that anyone could change legal education significantly without buy-in from the faculty of an already top law school.

Even solid but middling-ranked law schools can have at best a marginal impact on the course of legal education as a whole because no matter what they do to improve the actual outcomes for their students, they won't attract the very best students---and I doubt that, on average, an excellent innovative education for a mediocre student will produce better lawyers than a pretty good traditional education for excellent students. This explains why Yale Law grads---many of whom learn virtually no law at all while in law school---prove to be excellent lawyers; they have the credentials coming in.

• Althouse:  Hey, You Mediocre Law Students. You Think You're Worth Erwin Chemerinsky's "Enormous Talent and Energy"?, by Ann Althouse (Wisconsin):

Law professors ought to know when they have snobby, elitist opinions and to make some effort to hide it.

• Brian Leiter's Law School Reports:  L'Affaire Chemerinsky and Paranoia on the Right, by Brian Leiter (Texas):

From an objective perspective, one might have thought it relevant that from the actual McCarthy era to the present, those who have been fired from academic jobs in the U.S. do appear to be all on the left end of the political spectrum (though I hasten to add that L'Affaire Chemerinsky is far more mild than what happened during the McCarthy era, or what has happened more recently to Professor Finkelstein at DePaul--it tells us more about the venal politics of Orange County, and the spinelessness of the Irvine Admininstration, than it does about anything else).

Does anyone really doubt that if, say, a "Chemerinsky of the right" -- a high-profile, conservative constitutional law scholar at a top, if not super elite, law school (say, Steven Calabresi at Northwestern or Eugene Volokh at UCLA) -- were treated the same way as Professor Chemerinsky (offered a job, signed a contract, then had the offer rescinded because of political pressure from outside the university), that the reaction would not have been exactly the same? There is simply something creepy about the spectacle of anti-intellectual low lifes with power or money being able to undermine university appointments at the 11th hour, and it is that, more than anything else, to which I think everyone in the academy is reacting. ...

But what, it has been suggested, if Kenneth Starr, now Dean at Pepperdine, had been offered the Irvine job? That would have been peculiar for a whole variety of reasons. Pepperdine, unlike UC Irvine, has an explicit institutional identity as a conservative, religious school; Starr seems like a good fit. Obviously, no academically ambitious school would appoint Starr as Dean, since he is not a scholar, and has done no work of scholarly significance. The proposed Irvine Law School was to be part of an academically serious institution -- the University of California campus at Irvine -- and it was also, as I understand it, to have had a "public interest" focus. The choice of Chemerinsky makes good sense in this context: first, because he is an actual scholar with national standing, and second, becaues his ideological sympathies make him a quite credible leader for a school with a "public interest" orientation.

On the other hand, if after nine months of searching, UC Irvine had, for reasons unknown, chosen Kenneth Starr as the founding Dean, and had him sign a contract, then one would hope the decision would not be undone in similarly shabby fashion as has happened in the case of Professor Chemerinsky.

• National Law Journal:  New Law School Trips Before Classes Begin; Irvine's Recruiting Efforts May Be Hurt, by Amanda Bronstad:

Law professors and law school deans, particularly in California, said University of California, Irvine could have difficulty recruiting a new dean and professors after its chancellor abruptly rescinded his offer last week to Duke Law School Professor Erwin Chemerinsky to become the first dean of its law school.

• Legal Profession Blog:  UC Irvine Debacle -- Can We Follow the Money?, by Jeff Lipshaw:

ABA Standard 201(a) ... is about the money:  ... "The present and anticipated financial resources of a law school shall be adequate to sustain a sound program of legal education and accomplish its mission." ... No doubt the promoter of any school has to show pro forma financial statements, and part of that would have to be private sources of funding. And I have no doubt that UC Irvine, despite its public status, will need an endowment. ... As much or more than being a scholar or caring for the faculty, a dean, and particularly a dean of a startup school, needs to raise money. Was there a concern that a high profile liberal couldn't raise money (given that there are no alumni to tap) in conservative Orange County? Did someone who had already made a commitment threaten to pull money off the table? This is all speculation on my part, but that's what I'd suspect.

• Adjunct Law Prof Blog:  LA Times Article On Erwin Chemerinsky Firing Got It Wrong, by Mitchell H. Rubinstein:

[T]he comparison to the Chemerinsky firing to political appointed Deans is wrong. Chemerinsky was not terminated for anything he recently wrote or said. He was terminated, as I understand from what has been reported, for what he has previously wrote-notwithstanding the fact that the university hired him. Stated differently, a Dean who is fired because of scholarly positions he has taken in the past is different from a Dean who currently takes a position as a result of a political appointment. In Chemerinsky situation, it appears that he is entitled to greater constitutional protection. In both situations, the First Amendment protection of academic freedom that the Deans might be entitled to are probably materially less than that of a professor because they hold policy level positions. The Chemerinsky situation is also unique in that he was fired for scholarly positions he has taken in the past even though the university hired him.

• Huffington Post:  Los Angeles Co. Supervisor Works to Fire UC Irvine Law School Dean, in Orange Co!, by Steve Anderson:

I am appalled that [L.A. County] Supervisor Antonovich would not only get involved with Orange County business, but that he would say the following:

Making Chemerinsky the head of the law school "would be like appointing al-Qaida in charge of homeland security,'' Michael Antonovich, a longtime Republican member of the county Board of Supervisors, said in a voicemail left with The Associated Press.

This is a disgustingly partisan thing to say, and it indicates to me that Mr. Antonovich is no longer an advocate for citizens of his district, but has become a shill for the failed policies of the Bush Administration. I will work to defeat Mr. Antonovich in the 2008 election.

Prior TaxProf Blog coverage:

• Chemerinsky Mulls Return to UC-Irvine; L.A. Times Airs Debate on Role of Law School Deans as Advocates (9/16/07)
• L.A. Times:  UC-Irvine Trying to Rehire Chemerinsky (9/15/07)
• Chemerinsky-UC Irvine, Part III (9/14/07)
• More on Firing of Erwin Chemerinsky, UC-Irvine's Inaugural Dean (9/13/07)
• UC-Irvine Hires, Then Fires, Chemerinsky as Inaugural Dean (9/12/07)

Update:  Brian Leiter subsequently posted In Fairness to Pepperdine, Robert Pushaw's "apt rejoinder" to Brian's "off-hand remarks in the course of discussing the Starr-at-Pepperdine/Chemerinsky-at-Irvine comparison."