September 23, 2007
YLJ "Pocket Part" Symposium on Internet Harassment
Anonymous threats of sexual violence and defamatory statements about female law students on the web site known as "Autoadmit"--about which we have written before--prompted a short symposium in the Yale Law Journal Pocket Part on legal responses to Internet harassment. Bradley Areheart, an attorney with Jenner & Block, makes the most sensible proposal:
Given its immediacy, anonymity, and accessibility, the Internet offers an unprecedented forum for defamation and harassment. The salient problem with such “cyberbullying” is that victims are typically left without adequate recourse. The government should provide recourse by curtailing the near absolute immunity Internet Service Providers (ISPs) currently enjoy under the Communications Decency Act (CDA) and implementing a notice and take-down scheme—similar to that for copyright infringement under the Digital Millennium Copyright Act (DMCA)—for certain torts.
Meanwhile, an amended complaint in the lawsuit against Anthony Ciolli and other Autoadmit posters is due in a few weeks, at which point we may start learning the identities of some of the infantile morons and misogynistic freaks responsible for the defamation and harassment of the plaintiffs.
September 20, 2007
Most Cited Scholars in Intellectual Property/Cyberlaw since 2000
Earlier this month, I posted the 2007 scholarly impact study of the top 35 law faculties. Using the same data, I'll post next month lists of most-cited scholars in various fields, as I did a nmber of years ago. Here's another preview: the "top ten" most cited list for Intellectual Property/Cyberlaw (broadly construed); after each name is the institutional affiliation, then the number of citations since 2000, and the scholar's age in 2007:
1. Mark Lemley (Stanford University): 2110 citations, age 41.
2. Robert Merges (University of California, Berkeley): 1280 citations, age 48.
3. Pamela Samuelson (University of California, Berkeley): 970 citations, age 59.
4. Jessica Litman (University of Michigan): 870 citations, age 54.
5. Dan Burk (University of Minnesota): 840 citations, age 45.
5. Jane Ginsburg (Columbia University): 840 citations, age 52.
7. Rochelle Dreyfuss (New York University): 790 citations, age 60.
8. Paul Goldstein (Stanford University): 790 citations, age 64.
9. Julie Cohen (Georgetown University): 740 citations, age 43.
10. Yochai Benkler (Harvard University): 730 citations, age 43.
Runners-up for the top ten: Rebecca Eisenberg (University of Michigan), 690 citations; Neil Netanel (University of California, Los Angeles), 640 citations; Wendy Gordon (Boston University), 610 citations.
Scholars with high citation counts across different fields, including IP/Cyberlaw: Lawrence Lessig (Stanford University), 2500 citations; William Landes (University of Chicago), 1550 citations; Margaret Jane Radin (University of Michigan), 1210 citations.
September 19, 2007
Ave Maria Law School Crisis Continues
While the new law school at the University of California at Irvine has pulled back from the brink of catastrophe, the young Ave Maria Law School in Ann Arbor, Michigan continues its downward spiral. The School's Alumni Association has now called for both the Dean, Bernard Dobranski, and Tom Monaghan, whose (bad) pizza fortune was used to established the school, to resign.
September 18, 2007
It turns out I'm not the only one to "break" national news stories anymore...
...since "the Dorf on Law" blog has just reported that "Chemerinsky to Serve As Prime Minister in Power-Sharing Accord With Musharraf." I bet Chancellor Drake brokered this one!
"Legal Philosophy: 5 Questions"
An update on the book.
In Fairness to Pepperdine
Robert Pushaw, a highly-regarded federal courts scholar in the law school at Pepperdine University, has written to take me to task for my off-hand remarks in the course of discussing the Starr-at-Pepperdine/Chemerinsky-at-Irvine comparison; he writes:
I was disappointed by your negative and factually incorrect comments about Pepperdine. First, you claim that Ken Starr was "a good fit" as dean because Pepperdine "has an explicit institutional identity as a conservative religious school." Although Pepperdine indeed has a religious foundation, it does not have an "explicit" conservative identity. Rather, Pepperdine welcomes faculty, students, and speakers from across the political and ideological spectrum.Second, you assert that Pepperdine is not "an academically ambitious school," whereas Irvine's Law School is "part of an academically serious institution." Admittedly, it's hard to take life too seriously when you're located next to the beach, it's always 75 degrees and sunny, and you keep running into Britney Spears and Pam Anderson. Nonetheless, the evidence suggests that few law schools are as academically ambitious as Pepperdine, which has recently made many impressive faculty appointments to add to our core group of scholars. For instance, this year we hired Grant Nelson, a distinguished professor at UCLA, and Robert Anderson, a gifted entry-level scholar who was being pursued by several "Top 15" law schools. The year before, we hired Ed Larson, the Pulitzer Prize-winning historian and prolific scholar from the University of Georgia, and Tom Stipanowich, a nationally renowned ADR scholar and practitioner. Our most recent distinguished visiting professors have been Akhil Amar of Yale, Tom Rowe of Duke, and Larry Waggoner of Michgan. Furthermore, Pepperdine has also had many prominent law professors give lectures and participate in symposia, with the most frequent guest being none other than Erwin Chemerinsky. Others who have graced us with their presence over the past academic year include Janet Alexander, Barry Cushman, Amitai Etzioni, Beth Garrett, Heather Gerken, John Gotanda, Ariela Gross, Neal Katyal, Doug Laycock, Mike Paulsen, Eric Posner, Eugene Volokh, John Yoo, and Kim Yuracko. They strike me as a pretty serious group of intellectuals.
But don't take my word for it, because I'm biased. Instead, why don't you come to Pepperdine and present a paper? Of course, you might have to speak slowly so that we can understand you. However, I'd say the worst that could happen is that you'd get an all-expense paid trip to Malibu, preferably in the dead of winter. Just give me a date, and I will make all the arrangements. I hope you will take me up on my offer, and at least mention in your blog some of Pepperdine's academic achievements.
September 17, 2007
Chemerinsky To Become Dean of the Law School at UC Irvine
A colleague of Professor Chemerinsky's has forwarded me the e-mail he sent to his colleagues about 10 mintues ago informing them of his decision to accept the renewed offer of the UC Irvine Deanship. He wrote, in relevant part:
It is with excitment and sadness that I am writing to tell you that I have accepted the position to be the founding dean of the Donald Bren School of Law at the University of California, Irvine. After meeting with Chancellor Michael Drake at length this weekend, I accepted his renewed offer. He provided me the greatest possible assurance of academic freedom for the dean and all faculty.
This was a wise move by Irvine and Chancellor Drake. They are fortunate that Professor Chemerinsky was still willing to take the job. Of course, it's a significant loss for Duke.
Posted at 12:23 pm CST.
UPDATE AT 12:31 PM CST: The Irvine announcement is here.
ANOTHER (12:39 PM CST): This is, by the way, presumably a double loss for Duke, since one assumes Professor Chemerinsky's spouse, Catherine Fisk, a labor and employment law scholar also on the Duke faculty, will be taking up a post at Irvine. It will be interesting to see whether the huge attention accorded this move will have any effect on Duke in the U.S. News reputational surveys which are going out soon. On the one hand, losing a school's most prominent faculty member seems a bad thing; on the other hand, with the entire nation singing Professor Chemerinsky's praises last week, some of that good feeling may well rub off on the "gestalt" sense of Duke that kicks in when people fill out the survey (since the survey just lists school names, nothing else).
Dorf v. Althouse on Chemerinsky, Irvine and What a New Law School Can Accomplish
Comments by Professor Dorf of Columbia Law School are here.
Comments by Professor Althouse of the University of Wisconsin Law School are here.
The exchange speaks for itself, though I will offer my opinion that Professor Althouse correctly identifies some peculiarities in Professor Dorf's assumptions. (UPDATE: But do see Professor Dorf's sensible remarks in the comments section.)
September 16, 2007
L'Affaire Chemerinsky and Paranoia on the Right
There is a rather curious (though amusing) "round-up" of commentary on L'Affaire Chemerinsky courtesy of the LA Times. It includes various right-wing bloggers congratulating themselves for being so much smarter and more knowledgeable about the law than Erwin Chemerinsky. (Oddly, none of these individuals seem to be on anyone's list for any real job of significance in the real world. Go figure?) It also includes examples of a peculiar paranoia that seems to affect some of those on the right when it comes to academia; the LA Times, perhaps as part of its ritual self-flaggelation, quotes a particularly extreme example in the person of someone named "Bill Quick," who offers this penetrating insight into the matter:
[Another blogger says] "I would certainly hope that left-leaning academics would support someone on the right who was treated similarly."
Yeah, except you and I and most everybody else knows damned well they wouldn’t, and so calls for the right to do what the left would never, ever dream of doing - that is, support the intellectual freedom of a conservative - end up ringing hollow. After a few decades of turning the other cheek and showing how high-minded you are, and getting kicked in the teeth for it, you begin to wonder why you bother. And even though, theoretically, you know you should because by your own standards it’s the right thing to do, doing the right thing tends to lose its attractiveness.
It is hard to know what ancient wound has doomed the inaptly named Mr. Quick to now stew for all eternity in the paranoid juices of his own mind. 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. (Here is a profile of one of those reported to be involved in torpedoing the Chemerinsky appointment. Who would want to be involved with a university where people like this can actually intimidate administrators?)
Of course everyone knows that politics figure in decisions about administrative appointments, since the position is often more political, than academic, in character. If, in fact, Professor Chemerinsky was not going to be able to effectively interact with the Southern California legal community because of his public profile, that would have been a pertinent consideration. But after nine months, no one had thought that was an issue: he was offered the job, negotiated about its terms for a couple of weeks, and then signed a contract. Within one week, naked political power was exercised to oust him. Any university that is so vulnerable to partisan political muscle is a university in bad shape.
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.
UPDATE: Attorney Steve Sanders writes: "We needn’t speculate: when Michael McConnell was nominated for the circuit bench and came under attack from the left, a group of law professors from across the spectrum – including many liberals in good standing – signed a NYT ad defending the nomination and pointing out that he’s an excellent thinker and scholar."
September 15, 2007
Irvine Law School Fiasco, Part IV: Will They Undo the Damage?
Perhaps (good thing they read this blog!)--and more details emerge confirming Professor Chemerinsky's account of what transpired:
UC Irvine officials on Friday were attempting to broker a deal to once again hire liberal scholar Erwin Chemerinsky as dean of its fledging law school, just three days after its chancellor set off a national furor by dumping him.
Prominent Orange County attorney Tom Malcolm, a participant in high-level university discussions, said: "I think we are satisfied that if [UCI Chancellor Michael V. Drake and Chemerinsky] have a meeting, they can come to some understanding, and [Chemerinsky] can become a good dean...."
An agreement would be an extraordinary development after Chemerinsky contended this week that Drake succumbed to political pressure from conservatives and sacked him because of his outspoken liberal positions. The flap threatened to derail the 2009 opening of the law school and prompted some calls for Drake's resignation.
Also Friday, details emerged about the criticism of Chemerinsky that the university received in the days before Drake rescinded the job offer, including from California Chief Justice Ronald M. George, who criticized Chemerinsky's grasp of death penalty appeals. Also, a group of prominent Orange County Republicans and Los Angeles County Supervisor Mike Antonovich wanted to derail the appointment....
Any deal would therefore require Chemerinsky to "successfully transition from being a very outspoken advocate on many causes to being a dean of the stature that we expect in a start-up law school," said Malcom, a prominent Orange County Republican who was going to be a member of Chemerinsky's advisory board....
Drake acknowledged that Chemerinsky had attracted significant opposition from conservatives, but he would not name the people who had contacted him. He said that their complaints were not the cause for his decision to terminate the dean.The criticism included a letter from the California Supreme Court criticizing a Chemerinsky opinion piece in The Times.
In an interview Friday, George said Chemerinsky made a "gross error" that was "very troubling" to the court in an Aug. 16 article that criticized U.S. Atty. Gen. Alberto R. Gonzales. Drake offered him the job that same day.
George, an appointee of Gov. Pete Wilson, said that Chemerinsky wrote incorrectly that only one state, Arizona, provided lawyers for death row inmates who want to file a constitutional challenge, known as a habeas corpus petition, to have their sentences or convictions overturned.
George said he was surprised Chemerinsky would make such a mistake. The court asked Court Clerk Frederick K. Ohlrich to write a letter to the editor to The Times to correct the piece.
"None of us could understand how somebody, let alone someone who is very bright and a fine legal scholar, could get that wrong," George said. "It had nothing to do with his philosophy. I certainly feel he is an outstanding legal scholar and a fine advocate."
The Times has no record of the letter being received as a letter to the editor or as a request for correction....
[Chemerinsky] stood by his article. "My op-ed was accurate in saying California does not comply with the federal standards for providing counsel to those on death row in their post-conviction proceedings, and Arizona is the only state deemed in federal district court to have met the federal standards."
Michael Schroeder, one of Orange County's most powerful GOP political players, said a group of 20 prominent Republicans organized against Chemerinsky in recent weeks, believing him to be a "longtime partisan gunslinger" and too "polarizing" for the job.
Another member of the group, who asked not to be identified, said Drake's cellphone number was distributed so the protesters could call the chancellor.
Antonovich said he too worked to derail the appointment by sending an e-mail to a small group of supporters and urging them to contact the university....
[N]ow [Chancellor] Drake is fighting for survival, which depends in large part on whether he can regain the confidence of the UCI faculty.
Part of Drake's problem is that he appears to have given conflicting reasons for his decision, at one point apparently attributing it to expected opposition by the UC Board of Regents when it was to meet next week.
Members of the board, however, said they were unaware of any opposition to Chemerinsky's hiring.
Given the facts that are now coming out--which make clear that the Chancellor (his increasingly incredible protestations to the contrary notwithstanding) caved into the most venal kind of political pressure from partisan hacks outside the university--it's getting hard to see why anyone would want this job.
UPDATE: Those who thought that brainless neanderthals were strictly a phenomenon of "fly over" territory ought to take note of the really remarkable performance by Michael Antonovich, the Los Angeles County Supervisor, who was one of those trying to derail the Chemerinsky appointment:
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.
He was not available for further comment on why he was getting involved in the situation at a campus located outside his jurisdiction in Orange County.
Antonovich's e-mail "expressed his dismay with the choice for the dean of the law school and suggested that this was the wrong decision and it should be changed," said Tony Bell, a spokesman for the supervisor.
Antonovich, a local GOP stalwart, was first elected in 1980. He is a staunch conservative who has supported crackdowns on illegal immigrants, and voted against tax increases and HIV-prevention programs that distribute free syringes.
He clashed with Chemerinsky in the past when the professor supported the removal of a cross from the county seal.