"California Jury Convicts 10 Muslim Students of Interrupting Campus Speech."

The Chronicle of Higher Education reports:

The students interrupted a February 2010 speech by Michael Oren, the Israeli ambassador to the United States, by taking turns standing up and shouting their objections to Israeli-government policies...

Both prosecutors and lawyers for the defendants said they were protecting the principle of freedom of speech. The prosecutors accused the students of deliberate censorship, while the students' lawyers argued that their clients were conducting a common campus protest and should not have been prevented from expressing their views....

The protest took place at the University of California at Irvine. Erwin Chemerinsky, the dean of the law school there said it was a "terrible mistake" to prosecute the students. But he's also written that it does not violate free speech rights to ban the disruption of a speech:

[T]here are now posters around campus referring to the unjust treatment of the "Irvine 11" and saying they were just engaging in speech themselves. However... [t]he government, including public universities, always can impose time, place and manner restrictions on speech. A person who comes into my classroom and shouts so that I cannot teach surely can be punished without offending the 1st Amendment. Likewise, those who yelled to keep the ambassador from being heard were not engaged in constitutionally protected behavior.

Freedom of speech, on campuses and elsewhere, is rendered meaningless if speakers can be shouted down by those who disagree. The law is well established that the government can act to prevent a heckler's veto -- to prevent the reaction of the audience from silencing the speaker. There is simply no 1st Amendment right to go into an auditorium and prevent a speaker from being heard, no matter who the speaker is or how strongly one disagrees with his or her message.

Do you think Dean Chemerinsky would be impressed by the argument that Oren was an outsider who made an antagonistic deliberate transgression on a community?

Prof. Chemerinsky says Justice Ginsburg "has in her power the ability to prevent a real shift in the balance of power on the court."

"On the other hand, there's the personal. How do you decide to leave the United States Supreme Court?"

Wow! How much of this kind of moral pressure is being applied to the venerable Justice?

Democrats and liberals have a nightmare vision of the Supreme Court's future: President Barack Obama is defeated for re-election next year and Justice Ruth Bader Ginsburg, at 78 the oldest justice, soon finds her health will not allow her to continue on the bench.

The new Republican president appoints Ginsburg's successor, cementing conservative domination of the court, and soon the justices roll back decisions in favor of abortion rights and affirmative action.

Abortion and affirmative action. Abortion and affirmative action. That's the fixed point in constitutional law for a lot of people: it must work out in favor of abortion and affirmative action.

[S]ome on the left say ... Ginsburg needs to put self-interest aside and act for the good of the issues they believe in, Harvard law professor Randall Kennedy wrote recently. Kennedy said 72-year-old Justice Stephen Breyer should leave, too....

Get out, you selfish oldies — say some on the left — Obama needs to appoint some liberal ideologues before its too late!

David Garrow, a Cambridge University historian who follows the court, said Ginsburg's situation points to an institutional problem for the court, "the arguably narcissistic attitude that longer is better."

Narcissist!

Justices sometimes look at electoral projections when considering retirement, he said, adding that Ginsburg probably still could decide to retire next summer if Obama's electoral prospects seem shaky.

The rest of the article is a history lesson about how waiting too long doesn't work. Earl Warren, LBJ, Richard Nixon, Warren Burger and all that. The message is clear. The liberal media want Ruth Bader Ginsburg out now.

I know that sounds mean, but it's not me saying it. I'm just paraphrasing for clarity.

They say that 20-foot cross that the ACLU objects to was a gift from Woody Allen.

What a funny world we live in!

The ACLU of New Jersey threatened legal action against the Neptune school district after an attendee at last year’s graduation ceremony took offense to the building’s religious symbols and Christian-based references -- among them a 20-foot white cross above the auditorium’s entrance. The ACLU asked the school to remove or cover up the cross and three other religious signs, arguing their visibility during a public school event is a First Amendment violation....

The Camp Association said it could not cover the cross, said to have been a gift from movie director Woody Allen, who used the auditorium during shooting for the 1980 film "Stardust Memories."

Interestingly, if this case goes to court, the key Supreme Court precedent will be Van Orden v. Perry, the case about the 10 Commandments monument on the Texas State Capitol grounds, and that monument supposedly originated as a promotion for the Cecil B. de Mille movie "The Ten Commandments." From the oral argument in Van Orden:

Justice O'Connor: How did this monument get there? Was it in... is it true that it was put in as a result of promoting a movie about the Ten Commandments?

Mr. Chemerinsky: The record is unclear as to that. There are certainly many indications in the popular press that Cecil B. DeMille together with his movie, The Ten Commandments, worked with the Friends of Eagles to have these monuments put around the country. But there is nothing in the legislative history that links this particular monument to that.

And the cross is only said to be a gift from Woody Allen.

Where do all the religious stories come from? If there were movies back in Biblical times, what movie directors would be wandering around in those old Judeo-Christian stories? Anyway, I tried to find a YouTube clip showing the cross in "Stardust Memories," but I can't remember that movie well enough to know what scene it's in. I did run across this clip from Woody's "New York Stories" that has a little Larry David performance in it. And here's Larry David saying "Religion should be made fun of, it's quite ridiculous, isn't it?... If I really believed that stuff, I'd keep it to myself, lest somebody think I was out of my mind":

Chemerinsky's idea of "Enhancing Government."

Jonathan Adler points to Jon O. McGinnis's review of Erwin Chemerinsky's new book "Enhancing Government: Federalism for the 21st Century. The book sketches out the liberal position on the various federalism issues, and this is the position that — McGinnis aptly asserts — you can expect Obama-appointed Supreme Court Justices to take.

Chemerinsky argues (unsurprisingly) that the Constitution's enumerated powers in fact permit Congress to reach any matter it chooses to regulate. What is left to the states is what Congress deigns to leave to the states. On questions of federal court jurisdiction, Chemerinsky would give the party he would like to advantage — the civil plaintiffs and criminal defendants who assert federal rights — their preference whether to litigate in state or federal court. And Chemerinsky would make it hard for federal law to preempt state law, and this would preserve the regulation of business at dual levels of government, federal and state.

If voters think about Supreme Court appointments at all, they usually focus on the scope of individual constitutional rights (especially abortion). I wish people would pay attention to these federalism issues. As McGinnis writes, the liberal position on federalism is very widespread and elaborately worked out in the legal academy. The Burger and Rehnquist Courts were somewhat successful in keeping this thinking from migrating into the case law. Chemerinsky's idea of federalism is not simply expanding federal power at the expense of the states. It's more complicated (and more policy-oriented in its complication). Even though this approach allows Congress to regulate anything, it preserves state regulation where Congress has not expressly preempted it, and it preserves the power of state courts when a litigant with a federal law right prefers state court. So the liberal idea of "Enhancing Government" is about expansive federal regulatory power combined with enthusiasm for regulating business and enforcing federal rights.

Maybe you like that idea. I'm just saying: Think about it.

"Do not create a legal writing program, moot court competitions, student-edited law reviews, clinics, or any other co-curricular offerings."

Gordon Smith offers some surprising advice for Erwin Chemerinsky on how to structure the new law school at UC Irvine. The idea is to stress classroom teaching:

Allowing practicing lawyers to drive educational reforms is what got us into this mess. If you feel the need to teach "skills," develop an externship program, which will expose students to real legal problems and forge relationships between your school and potential employers.

That would shake things up. It steps on a lot of toes. But UC Irvine doesn't have toes yet.

Doubling Up Day.

Hey, I just noticed that after blogging about Erwin Chemerinsky, Sally Field, and Larry Craig this morning, I proceeded to put up posts about Erwin Chemerinsky and Larry Craig this afternoon. What's going on here today? There's only one way to set things right. Here you go:

UC Irvine unfires Chemerinsky.

Desperately trying to restore the reputation of the unborn law school.

Hey, you mediocre law students. You think you're worth Erwin Chemerinsky's "enormous talent and energy"?

Lawprof Michael Dorf is writing about the UC Irvine/Erwin Chemerinsky affair. (Via TaxProf.) He's saying that it wouldn't really have been worth it for Chemerinsky to devote his "enormous talent and energy" to transforming legal education at a school that wasn't already top tier:

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.

That first sentence is a strange conglomeration of ideas: 1. Students who don't win admission to top tier schools are "mediocre." 2. It's not worth much to transform legal education at one school unless you can affect "the course of legal education as a whole." 3. A top legal educator ought to want to develop new teaching methods on the students who would be the most effective learners under any teaching method. 4. A law professor ought to want to produce the "best lawyers," so, naturally, starting with the "best students" is preferable.

I have a few reactions: 1. Students who don't get into top tier schools don't deserve to be called "mediocre." 2. If you want to test the effectiveness of new methods, what can you prove if you start with students who will do well following any method? 3. If you are truly interested in teaching methodology, you should want to have the greatest effect on the students you reach, not simply to be able to point to successful graduates who began law school so far advanced that they would have done well even if they hadn't been taught anything. 4. Law professors ought to know when they have snobby, elitist opinions and to make some effort to hide it.

UPDATE: Dorf responds to my comments here. He says I "accuse[d him] of being an elitist snob." Well, now, I only insinuated that he might have "snobby, elitist opinions" (and not enough sense to hide it). But, okay, I guess that is basically accusing him of being an elitist snob. I was trying to be a little polite about about it. I believe Dorf concedes that he is elitist. He then addresses what he calls an "objection" of mine, which he restates as: "Why should someone have to have an impact on legal education as a whole rather than just one institution to want to lead that institution?" This wasn't so much an objection as an observation that he had made this point. So his response here isn't very interesting to me. Obviously, having a bigger impact is having a bigger impact. He says nothing about what I thought was the most interesting part of what I had to say:

[He assumed:] 3. A top legal educator ought to want to develop new teaching methods on the students who would be the most effective learners under any teaching method. 4. A law professor ought to want to produce the "best lawyers," so, naturally, starting with the "best students" is preferable....

[I observed:] 3. If you are truly interested in teaching methodology, you should want to have the greatest effect on the students you reach, not simply to be able to point to successful graduates who began law school so far advanced that they would have done well even if they hadn't been taught anything.

I'd like to see Dorf address that.

I should also note this exchange in the comments to his original post:

At 1:22 PM, Legal said…

Michael: I admire your willingness to stick to your guns here. But I think you'll have to yield on one point: it is not true that major academic movements all began at elite schools. How do you account for law and society, which began at -- Wisconsin?

At 2:26 PM, Michael C. Dorf said…

In response to "legal," I concede that law & society originated at Wisconsin. So if it counts as a "major" scholarly movement, then I concede the point, although I'd also note that Wisconsin is one of the country's top public universities.

Wisconsin is also the place of origin for Critical Legal Studies and Critical Race Theory. And let me register my irritation at "Wisconsin is one of the country's top public universities." I would like to see specific recognition of the University of Wisconsin Law School.

ADDED: I'm just focusing on "if it counts as a 'major' scholarly movement." If! Really! Explain "if."

The Erwin Chemerinsky mystery, part 2.

(Part 1 is here.)

Michael Drake speaks:

The decision was mine and mine alone. It was not based on pressure from donors, politicians or the University of California Board of Regents. It was a culmination of discussions -- with many people over a period of time -- that convinced me that Professor Chemerinsky and I would not be able to partner effectively to build a world-class law school at UC Irvine. That is my overarching priority.

My decision was absolutely not based on Professor Chemerinsky's place on the political spectrum, which is, in fact, quite similar to my own.

Nor was this a matter of academic freedom. UC Irvine -- and I personally -- staunchly support and defend freedom of speech and the expression of a wide range of viewpoints on our campus; nowhere is this more important than at a public university. There are individuals with political views far more liberal than Professor Chemerinsky's or mine who conduct research, teach and serve in senior administrative positions at UC Irvine....

I am confident that our search process will ultimately result in the appointment of a founding dean who will work with my colleagues and me to build the world-class law school that we envision for UC Irvine.

What bureaucratic drivel! Glad you're so convinced and confident about absolutely everything. We're not.

UPDATE: The L.A. Times reports on the furor at UCI:

The search for Chemerinsky took nine months before a formal agreement was reached, and search committee members said they would now probably start again from scratch...

Although Drake has denied that he took action under pressure from conservatives, [psychology professor Elizabeth F. ] Loftus said Thursday that the chancellor told the [dean search] committee during an emergency meeting Wednesday night that he was forced to make the decision by outside forces whom he did not name. A second member of the committee confirmed Loftus' account to The Times but asked to remain anonymous.

"I asked whether it was one or two voices or an avalanche, and the answer is that it was an avalanche," Loftus said. "But we are not supposed to capitulate to that in the world of academic freedom."

And here's lawprof Jack Balkin:

This is a disgraceful way to treat Erwin Chemerinsky, a very fine legal scholar. It is bad enough that Drake fired him in what can only be described as an act of cowardice. Now he must go on an extended public relations campaign lying about why he did so and further impugning Chemerinsky in the process. One suspects that the next person whose job is on the line will be Drake himself.

Can anyone explain why Drake should not resign? After nine months of searching for a dean and recruiting a man who is highly respected throughout the law school community, he turned around and fired him in a way that has undercut the whole project of founding a law school at UCI.

The Erwin Chemerinsky mystery.

LA Times columnist Dana Parsons says:

... I'm not going to pretend to have penetrated in the last 24 hours the mystery of why UC Irvine Chancellor Michael Drake tore up the contract Tuesday that he offered Duke University law professor Erwin Chemerinsky a month ago to become the first dean of UCI's law school.

But make no mistake: There is a mystery to be solved. And the answer goes far, far beyond Drake's statement Wednesday that he has "come to the very difficult conclusion that Professor Chemerinsky is not the right fit for the dean's position at UC Irvine at this time."

Who got to Drake, who's been chancellor since mid-2005, and told him that Chemerinsky, a well-known constitutional scholar and acknowledged liberal commentator, isn't the guy for UCI?...

Did a deep-pocketed cadre of conservative donors put the heat on Drake to rescind the offer?

Or did the impetus for the Dump Chemerinsky movement originate with the UC system's Board of Regents, which would have to approve the contract?...

You may think I'm avoiding the obvious, but I'm not: Yes, I know conservative Orange County businessman Donald Bren has pledged $20 million to the new law school and will have his name on it....

Could be, but it's almost inconceivable to me that UCI would offer Chemerinsky -- or anyone -- the job without, if only as a courtesy, telling the man the school is named after....

With a mystery to be solved, the bad press for the nascent law school will rage on and on.

And there is another mystery. The school had a huge interest in an amicable separation with Chemerinsky. Could those who are acting for the school have failed to perceive that there would be devastating bad press? The school has trumpeted its ambitions to become a top tier school. I have to assume they tried to avoid an ugly public breakup. Unless they are shockingly incompetent, there must have been an attempt to reach an agreement with Chemerinsky to create a public appearance that would flatter both him and the new law school. They could have papered over the discord with a nice statement that Chemerinsky wished UCI well but had come to appreciate the depth of family's attachment to Duke and that UCI regretfully accepted that decision and remains convinced that he would have made a wonderful dean. So why did the nastiness boil over where we could see it?

I mean, look at the original press report, based on Chemerinsky's version of the events:

In a showdown over academic freedom, a prominent legal scholar said Wednesday that the University of California, Irvine's chancellor had succumbed to conservative political pressure in rescinding his contract to head the university's new law school, a charge the chancellor vehemently denied.

Erwin Chemerinsky, a well-known liberal expert on constitutional law, said he had signed a contract Sept. 4, only to be told Tuesday by Chancellor Michael V. Drake that he was voiding their deal because Chemerinsky was too liberal and the university had underestimated "conservatives out to get me."

Chemerinsky came away from the experience ready to attack. Why? Is it possible that Drake wanted this? Notice it's not the "conservatives" -- whoever they are -- who are saying political things about Chemerinsky. It's Drake, making assertions about unnamed individuals who are interfering with Drake's preferences. I feel sure that Chemerinsky would not misquote Drake. If there were nothing more from Drake, I would suspect that he and Chemerinsky were working together for a more independent UCI law school.

But:

Later Wednesday, however, Drake said there had been no outside pressure and that he had decided to reject Chemerinsky, now of Duke University and formerly of the University of Southern California, because he felt the law professor's commentaries were "polarizing" and would not serve the interests of California's first new public law school in 40 years....

Drake said he worried that the controversy had the potential to harm the university's reputation. "It was the most difficult decision of my career," he said in an emotional interview, his voice at times quivering.

He sounds quite pathetic.

Chemerinsky and Drake agreed the new dean's dismissal was motivated in part by an Aug. 16 opinion article in the Los Angeles Times, the same day the job offer was made. In it, Chemerinsky asserted that Attorney General Alberto Gonzales was "about to adopt an unnecessary and mean-spirited regulation that will make it harder for those on death row to have their cases reviewed in federal court."

But Drake and Chemerinsky split sharply on what role the article played in the decision to fire the incoming dean and whether academic freedom was at stake.

"Shouldn't we as academics be able to stand up for people on death row?" Chemerinsky said.

Drake said "we had talked to him in June about writing op-ed pieces and that he would have to focus on things like legal education in this new role, and then here comes another political piece. It wasn't the subject, it was its existence. What he said doesn't matter."

Another political piece! The procedures leading up to the imposition of the death penalty are a quintessential legal issue. "What he said doesn't matter." Who believes that?

About the Irvine law school.

Not ready for prime time!