ABA Law Student Podcast
Erwin Chemerinsky: Litigator, Educator, Scholar
Intro: Welcome to the official ABA Law Student Podcast, where we talk about issues that affect law students and recent grads. From finals and graduation to the Bar exam and finding a job, this show is your trusted resource for the next big step.
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Jake Villarreal: Hello and welcome to another episode of the ABA Law Student Podcast. I am your host Jake Villarreal and I am a third year law student at Washington University School of Law in St. Louis. I am excited to be hosting today’s show because we are going to be talking with constitutional law scholar, prolific appellate litigator and Dean of the University of California Berkeley School of Law, Erwin Chemerinsky.
Welcome to the show Erwin.
Erwin Chemerinsky: My pleasure. Great to talk with you.
Jake Villarreal: Great to talk with you too. Thank you so much for coming. So Irwin, before we get started, could you please tell us some more about yourself, where you grew up, how you got started in law and what you are up to now in your career?
Erwin Chemerinsky: I grew up in Chicago, on the South Side. I grew up in a working class family. I am the first in my family to go to college, neither my parents, nor brother, sister went to college. I, if you were to talk to me through college, would have told you I wanted to be a high school teacher and took all of the courses to be a certified high school social studies teacher, did my student teaching at Highland Park High School in the Chicago area.
And really very late in college decided I want to go to law school because I wanted to be a civil rights lawyer. I think I took the LSAT on the last possible day for the next year’s law school class, was a lawyer in DC for a time, and then became a law professor and have taught at a number of different law schools. I started at DePaul in Chicago for three years, then spent 21 years on the faculty at the University of Southern California, then was at Duke as a professor for four years, was the founding dean at UC Irvine for nine years and I am now the Dean and Professor of Lat the University of California Berkeley.
Jake Villarreal: That’s amazing. That’s an incredibly prestigious career path.
Erwin Chemerinsky: I don’t know, it could also show I don’t hold a job very well.
Jake Villarreal: So you started off as a practitioner of civil rights law and that was your intention entering law school. At what point did you decide that you wanted to also be a professor and kind of enter the academic world?
Erwin Chemerinsky: When I went to law school I always had in the back of my mind that someday I would want to be a professor. I already knew by that point that I love teaching more than anything else, but I had no idea how or when you become a professor.
And so truly a series of coincidences I ended up teaching job at DePaul Law School, I was just in the right place at the right time. Somebody was unexpectedly going on leave and they needed somebody to teach constitutional law and I went home after teaching my first class in August of 1980, so almost 40 years ago and said to my wife, this is what I want to do forever.
And I still love teaching as much. I taught constitutional law yesterday, I am teaching it three days a week this semester and I can tell you I walk out of class each day and love it as much as I did when I started in 1980.
Jake Villarreal: That’s fantastic. And I know through your work producing treatises that you have also helped a lot of students who even you might not have had in your own classes including me and a lot of people here at WashULaw.
Erwin Chemerinsky: Thank you. I hope they are helpful.
Jake Villarreal: Incredibly. They saved my life.
Erwin Chemerinsky: Thank you.
Jake Villarreal: I was wondering how you got into that work and kind of the desire to produce these materials that could be published and helpful to other students in other schools?
Erwin Chemerinsky: One of the courses that I have taught since being a law professor is federal courts and I realized fairly early in teaching it that there wasn’t a good treatise on federal jurisdiction that fit what’s covered in federal courts classes today. There is Charles Alan Wright’s book on federal courts, but it is really much more what is covered in civil procedure today.
And it was a lot of, I think hutzpah is the right word, I thought well, maybe I could do this and I had been a teacher only about six years at that point and it was at least then and to some extent now all of the major law textbook companies have representatives go around and talk to the professors. And when the representative from what was then Little, Brown and it is now Wolters Kluwer with several transitions in the interim came through, I said, you know, there is not a federal jurisdiction treatise, might you be interested in one?
He said I am not involved in acquisitions, I will put you in touch with the person who is, and he came through and he said well, write a proposal. And so I did my federal court’s treatise. I would have written it in the spring of 1988 and it came out in 1989.
And then at some point Aspen said to me why don’t you do this for constitutional law and I had a clear vision of how it was different than other constitutional law books and so did that.
And then the same editor at Aspen said why don’t you do a constitutional law casebook. And I said there are a lot of casebooks on the market, there isn’t a need for another constitutional law casebook. He said well, is there something you would do differently? And I said I would want to do a casebook and nobody else would want to use it that has no rhetorical questions for students, it has no notes, it’s just as straightforward and as student friendly as possible.
He said well, why don’t you write up a few chapters and we will send it out and see if anybody likes it. I did the few chapters and I stopped working on it because I was convinced nobody would want to use the book.
Well, the reviews came back positive and the book has just come out in the sixth edition.
And then they came to me and said how about a criminal procedure casebook and I did that with a dear friend Laurie Levinson.
Jake Villarreal: That’s fantastic. Those require such a depth of knowledge to produce a treatise or a casebook in that subject area. When you are taking on the monumental task of kind of doing a survey of that field of law, how do you get started?
Erwin Chemerinsky: Well, it’s important that — I had already been teaching for a number of years for federal courts, I have been teaching it for eight years. By the time I did the constitutional law treatise it was probably over 15 years. By the time I did the casebook it was over 20 years. So I don’t think it’s something that I would have been comfortable doing without that backdrop.
It’s also important to recognize it’s like emptying the ocean with a teaspoon, that it just — you do this piece and then this piece and then this piece and ultimately the pieces will add up.
The other thing about it that I found is I have a very strong vision of what I wanted to be and it makes it difficult to work with somebody else. So I was going to do the federal courts book with a good friend and we were on a long cab ride and from the time we got in the taxi to the time we got out we realized we disagreed about everything.
I was going to do the con law casebook with three friends and my impulse when I am a co-author is to say sure, anything you want, but here I had such strong feelings. And one advantage of doing those first three books myself is for better or worse, they are my vision and when Laurie and I were going to do the casebook together we agreed as to the vision and I write the first half on criminal procedure investigations, she does the second half on criminal procedure adjudications. So it’s one book with a unified whole, but again it’s animated by a central vision.
Jake Villarreal: Yeah, that sounds like a really effective way of approaching such a large task. I know that a lot of professors when they teach courses more than once have favorite parts of courses. Do you have any iconic cases within constitutional law that are kind of your favorite to talk about or to teach about?
Erwin Chemerinsky: I love teaching all the courses I do and I love teaching all of the parts of the courses I do. I teach basically in the public lot area. So last year at Berkeley I taught criminal procedure investigations in the fall and First Amendment in the spring. This year I have taught criminal procedure investigations in the fall and I am teaching constitutional law in the spring. Next year I will teach federal courts in the fall and constitutional in the spring. So those are all my courses. I don’t have any preference among them.
I always tell the associate dean ahead of the schedule, here is the classes I can teach, schedule me for what you most need and within the courses I don’t know that I necessarily have any favorite parts. I love teaching all of the parts of the course. I guess, as with anybody, there may be a day, like Brown v. Board of Education is a very special case to teach probably in any given class, because I say well, that case is a really special case to teach. But I love teaching all the parts of the courses.
Jake Villarreal: Yeah, your passion for teaching and for the material really shines through even in your written work and especially hearing you speak.
Erwin Chemerinsky: Thank you. Thank you.
Jake Villarreal: I was wondering for our Law Student listeners who might be interested in careers in academia one day, being a professor. What advice would you give them on either what to do in law school or how to approach their career as practitioners after graduating?
Erwin Chemerinsky: There is no single path to becoming a law professor and in so many ways I didn’t follow the right path to being a law professor. That said, it is much harder today to become a law professor than it was 40 years ago.
During law school, my advice would be try to write and get published if you can be on a law journal and get published, that really helps. Be a research assistant to a professor if that’s possible. Some of it will give you a better sense of what professors actually do, but also you will be developing the kind of personal relationship, that there will be somebody there to mentor you and hopefully push you into the job market.
Clerkships are helpful in getting teaching, they are not essential. Now, and this has changed, such a large percentage of those that go into teaching either have a PhD or have done a visiting assistant professorship. The expectation now is that people have done substantial scholarship before ever being considered for teaching positions. And that’s hard to do if you are going straight from practice.
Jake Villarreal: Definitely, definitely. And in addition to teaching you still litigate cases at the appellate level. We talked earlier about how you select your clients and prefer to take on civil rights cases. How does your teaching inform your litigation or vice versa, how does your experience as a professor affect your experience as a litigator?
Erwin Chemerinsky: My experience as a litigator is very useful as a teacher. The fact that I am in court at least a couple of few times a year gives me a sense of litigation that I can bring to the classroom. And of course the cases that I am litigating give me a depth of understanding of that area of law that I can then bring into the classroom.
When I teach federal courts I can tell my students I can teach every part of this course by illustrating with a case that I argued and lost. And it’s true.
I also think it gives me a certain credibility with students and alums that I am involved in litigation. I think being a professor helps me as a litigator, but it’s a bit more indirect than that. I think that my style in oral argument is undoubtedly influenced by the fact that what I do professionally is teach. It’s not that I am being pedantic when I am talking to the judges that they wouldn’t go for, but I would say that my style of argument is very much influenced by my style of teaching.
Jake Villarreal: Excellent. I know you mentioned that you have litigated enough cases in federal courts to teach your course using examples of only cases you have lost. How do you choose which cases you are going to take when you are considering all of the possible cases you could be litigating?
Erwin Chemerinsky: Before I was a dean I did much more appellate litigation. Since becoming a dean I am very conscious of more limited time. So my general sense is I can handle a couple of cases on appeal a year, but I can’t do more than that. And so since most of — almost all that I do is pro bono, there is a tremendous demand for free legal services. I receive many, many more requests than I can possibly do.
I think it’s a sense of how much I care about the issue, how important the issue seems, whether this case is the right vehicle, but there is also cases. I argued a case in the Ninth Circuit last year because a former student of mine called and asked me to do it. I have taken more than one case because parents call and tell me a very moving story of what their child is going through. So there is no criteria, there is no screening procedure, it’s just, do I have time to handle it and is this what I want to spend my time doing.
Jake Villarreal: Definitely. And you have argued seven cases in front of the Supreme Court I believe?
Erwin Chemerinsky: I have.
Jake Villarreal: Amazing. Are there any Supreme Court cases coming up in the spring 2020 term that you are particularly looking forward to following?
Erwin Chemerinsky: There are so many cases that are in the docket this term that are likely important. Looking forward isn’t necessarily the words that I would choose, but in terms of just going through some of the things chronologically for this term.
In October they heard cases about whether discrimination on the basis of sex orientation or gender identity in employment violates Title VII. Zarda v. Altitude Express and Bostock v. Clayton County, Georgia and whether sex orientation discrimination is discrimination because of sex. In R.G. & G.R. Funeral Homes v. Equal Employment Opportunity Commission, whether discrimination against transgender individual is discrimination based on sex.
In November they heard the case about the Deferred Action for Childhood Arrivals Program (DACA), the Department of Homeland Security v. University of California, that’s where President Trump had the authority to rescind DACA.
The next day they heard oral arguments in Comcast v. National Association of African-American-Owned Media, a case that I argued, and it’s about the meaning of a very important Civil Rights Statute, 42 U.S. Code §1981, proves race discrimination in contracting. It was adopted as part of Civil Rights Act of 1866.
In December they heard oral arguments New York Gun & Rifle Association v. City of New York on whether a city can prohibit having guns or largely prohibit guns outside the home.
Next week, I think on January 22, they are hearing oral arguments in Espinoza v. Montana Department of Revenue, that involved a Montana Law that gave tax credits for parents to send their children to private school, whether parochial or secular and the Montana Supreme Courts had violated the Montana Constitution and the Supreme Court granted review.
In February the Supreme Court will hear oral arguments in June Medical Center v. Gee, as to whether or not a Louisiana Law that requires that doctors have admitting privilege to hospital 30 miles violates woman’s right to abortion.
In March the Supreme Court will hear oral arguments in three cases concerning subpoenas of President Trump and whether as president he has immunity from them.
That’s an amazing array of cases for one term.
Jake Villarreal: That is an impressively large docket. It seems like a lot of — to put it colloquially, lawyers are having a moment and Supreme Court cases are getting a lot more coverage I think in the last few years in the news and being talked about more on social media. Do you think that there is something may be special or unique about the practice of law now in 2020 that may be wasn’t present or was different in the past decades?
Erwin Chemerinsky: I don’t think the Supreme Court is getting more attention now than it did before. I can certainly speak of the 40 years that I have been a law professor and when the Supreme Court has high-profile cases, it gets a huge amount of attention, and when there’s quieter terms it may get less attention.
Well, I even think before I went to law school in the Pentagon Papers case in 1971 and United States v. Nixon in 1974, the year I was a third-year law student, the Bakke case. So I think that attention to the Supreme Court is dependent on what’s on the docket in a particular year.
I do think it’s a very exciting time to be practicing law. I think that there is such remarkable technological changes, such great social changes, the effects of the policies of the current administration whether we are talking about immigration or environment or civil rights, makes this not only exciting but very important that I do practicing law.
Jake Villarreal: Definitely. What is some advice that you can give to law students who are interested in social change and how they can help as a lawyer, may be correct some of the inequalities in the world or advocate for justice in a very broad sense?
Erwin Chemerinsky: It’s presumptuous to give advice and I wouldn’t want to do that. What I tell my students is, it’s important to become involved in organizations that are working on the issues you care about, that rarely can we do things alone. There is no need to reinvent the wheel.
So if you really care about immigration issues, there are wonderful organizations if you care about. LGBT Rights, there is great organizations, get involved with those organizations whether it’s full-time or pro bono.
And then what I tell my students is I know that many ways for progressive students these are discouraging times and yet we really only have two choices. We give up or we fight harder, which means there is just one choice to fight harder and to fight better than we have read before.
Jake Villarreal: Thank you. And for progressive students who might see the recent shift in the courts towards more conservative direction due to appointments by President Trump specifically, do you have advice for entering practice especially as litigators who will be before these judges?
Erwin Chemerinsky: On one level the advice is we need to try to think of how to present arguments in a way that might appeal to conservatives. Perhaps making originalist arguments or otherwise we would have made different kinds of arguments.
The other is I think that the Trump appointees are not homogeneous. Some are certainly conservative reactionaries, some are much more moderate and so a lot comes down to analyzing who your judges would arguments might resonate with that or those judges.
Jake Villarreal: Definitely. For students who are following the Supreme Court cases or even non-law students who want to know what’s going on in the news with the Appellate Courts, do you have any advice for following these cases in a way to develop a deeper understanding of the issues?
Erwin Chemerinsky: This will sound like an ad and I don’t mean it to be. But I think SCOTUSblog is terrific in following the US Supreme Court. They give you previews of the cases that have been taken. They do previews before the oral arguments, they do summaries, the arguments, make the decisions the day they come down.
I’ve been teaching long enough that I remember before SCOTUSblog, but now I can’t imagine doing my job without SCOTUSblog. I don’t have anything comparable with regard to the Court of Appeals. I understand there are a lot of blogs out there. I just tend not to look them.
Jake Villarreal: Great. I will have to spend more time on SCOTUSblog. That was —
Erwin Chemerinsky: They say, I have no financial or other relationship with them, so it’s not for that reason but it does sound like a commercial.
Jake Villarreal: No — yeah, it’s definitely good to share resources. I highly appreciate that.
I was wondering if there is anything that you would have told yourself when you started practice that you’ve learned since then that you maybe wish somebody had told you when you started?
Erwin Chemerinsky: It’s a long career and there is the opportunity to do so many different things. I agonized so much over where I should go to work right out of law school and undoubtedly the first job matters, but it’s just that a first job.
And as I look back at my career and I graduated law school in 1978, how important it was to be open to opportunities when they developed and how difficult it is to plan a career? Some of the things that had been most exciting in my career, I could have never imagined any chance to do.
In 1997 Los Angeles City Council woman, Jackie Goldberg, called me and said, Los “Angeles is writing a new charter, we’re electing a commission to do it. Would you run for election to the Charter Commission?” And my initial response was, “No, I have a full-time job.” I was actually President of the Academic Senate at the University of Southern California at the time, and so I said, “I don’t think I am interested.” She said, “Well, this is like a Constitution for the city. The Charter in California is very much like a Constitution, it creates the institutions of city government, it allocates power among the branches, and it can provide more rights than the U.S. Constitution.
Los Angeles Charter had been written in 1925 and had been amended 400 times and there was a need to do this, and to make a long story short, there was going to be an election and one person be elected from each of the 15 Los Angeles City Council Districts and she said, “We want you to be the Union’s candidate.” So I agreed to run, and amazingly I got elected, and I then got chosen by my colleagues to be the Chair of the Commission and it was a very intense two-year process. It really was writing a Constitution and the voters approved it, and so the governing document of the City of Los Angeles is the Charter. I could have never imagined that I would do that. I couldn’t have imagined if you talk to me when I graduated law school, some day I would be a Law School Dean. Let alone that I would be the Founding Dean of a law school which was an amazing experience.
So I think a lot of it is just being open to the opportunities and as I said, it’s a long career and there is a chance to do so many different things.
Jake Villarreal: Yeah, thank you. That’s a really incredible journey. What was that experience like writing the Los Angeles Charter and being able to put into practice a lot of your ideas about constitutions and how they could be structured?
Erwin Chemerinsky: As I said, there were 15 members of the Charter Commission. Each was elected. Almost all of us saw this as a stepping stone for another elective office. I did not. I was not looking to run for anything else and did not have run for anything else, but three of my colleagues became members of the City Council, two became members of the California Legislature, one is on the County Board of Supervisors now, one was in Congress. So that was a — it certainly shaved what was happening.
There was no consensus on any issue. On every issue the Mayor had his views, Members of City Council had theirs, the Homeowners Association had theirs, so everything in the Los Angeles City Charter was a compromise. So is that true I realize of the U.S. Constitution that it was all a compromise.
It was a wonderful experience, and for me a development of many skills to sort of shepherd that process of trying to take 15 very strong-willed elected officials and to get us to produce a document but then went before the voters, in June of 1999 it was approved.
Jake Villarreal: Yeah.
Erwin Chemerinsky: So, it was one of the best experiences and it helped me in much else that I did.
Jake Villarreal: Yeah, was it enlightening to see how the sausage gets made and then go back to the scholarship and teaching?
Erwin Chemerinsky: Yeah, I was teaching what was going on, so it was not instead of, but yes, it was very much how the sausage was made. It was a very, very intense process. It was intense from the beginning. It became more so all the way up until June of ’99. It was a two-year process. It’s a tremendous tribute to my wife, there will be managers stay married through that process. She had a baby in the middle of it.
Jake Villarreal: And you have traveled around the country a lot and you practiced in lots of different Courts of Appeals, how has that experience impacted you?
Erwin Chemerinsky: I really love being a lawyer and one of the great joys of being an academic is I don’t need to practice law to earn a living, and the reason I say that as it means that I can pick and choose the cases that I don’t want to get involved in and I don’t expect to and generally don’t earn any money from them. I get paid my salary by the University of California, Berkeley, and of course I’m very conscious of outcomes in the kinds of cases I argue about so much depend on who are the judges in the panel, and so, a great deal of arguing is, trying to figure out what can I say that might appeal to these judges often have never read different ideology than my own.
Jake Villarreal: And when you bring a case, or are litigating a case that does not succeed the way that you wanted to come out, do you find that there are impacts of the case that move beyond the life of the litigation that it maybe gets talked about in the news or that the organizations involved kind of use it in other ways?
Erwin Chemerinsky: Of course. Especially at the Supreme Court level but it’s also due to Court of Appeals’ level, the decisions are precedents and if they come out against me they are going to be precedents for results that I dislike. That’s part of the nature of litigation and I certainly lost much more than I won, not just in the Supreme Court but in the Court of Appeals, and part of being a Civil Rights lawyer, certainly at this point in history is getting used to losing and how you deal with that aspect of it, and it’s hard.
Jake Villarreal: How do you deal with that aspect of it?
Erwin Chemerinsky: It’s hard and some cases are harder than others. I would say the hardest for me for obvious reasons I lost. I argued a couple of death penalty cases that I lost. The first case I argued in the Supreme Court was a man who had been sentenced to life in prison, with no possibility of parole for 50 years for stealing $153 worth of videotapes.
And you see in this sense even though we had no violent crimes. You see in this sense even though that prior to California’s Three Strikes law no one in the history of the country had ever received a life sentence for shoplifting and I won in the Ninth Circuit and I lost in the Supreme Court five-to-four and that then looked like — I mean at the time that you will be in prison for another 40 years, it was an eligible parole to the year 2047 when you will be 96-years-old, and it was very hard, you have to communicate to him and his family, very hard to deal with the huge dimension of laws.
Now subsequently California changed the Three Strikes law so that he was eligible for release and did get released, but it certainly couldn’t know that then it took 10 years for the additional change to happen.
I don’t have any words that can make losing a case you care about easier, but again I go back to what I said, you just either give up or you go on and fight harder in the next one, that doesn’t mean that there’s still not pain and scars. I think the activist — I was saying in the classroom this morning one of the hardest case to me as I represented a man who I believe was truly innocent and I filed a Habeas Corpus Petition for him and the Judge sat on it for a year-and-a-half, all the while he was in prison and came up to me and said, I voted against you, I don’t think I could give you relief under the 00:27:08, but I gave you a Certificate to Appealability, but I have real doubts as to whether he’s guilty.
And then I went to the Court of Appeals and I lost two-to-one and the Supreme Court denied served, and there is something very difficult when you believe your client is innocent and he then served another decade in prison and he is now out.
Jake Villarreal: I think it’s a very empowering way that you articulated that, to say that there really are two choices in that. When things maybe don’t go your way it’s important to realize that there is the option to keep going and there is the option to stop, I highly appreciate that.
It looks like we’re almost out of time here but I was wondering if you have any final remarks to our law student listeners about either the moment that we are living in or becoming law practitioners in this era and how to approach that I guess as current law students and soon-to-be lawyers?
Erwin Chemerinsky: It almost 00:28:11 what a unique moment it is. It is only the third time since 1787 that the president has been impeached that makes it close to unique. Our country is more polarized, I think it’s been since the time of the Civil War. I think that technological and social changes are raising so many difficult legal issues.
So I think it is an incredibly exciting time to be a lawyer and the only advice I would give to anyone to be a lawyer and I have a son who is a lawyer and a son who is in law school is to follow your passions, and I say this to all my kids, find a job you love, and if the first job isn’t that then take another job. You work too hard to get here, we spend too much of our lives at work to settle. Find something what you really love doing it and follow your passions.
Jake Villarreal: Alright. Thank you so much for that. It was a pleasure talking to you, Erwin.
Erwin Chemerinsky: My great pleasure. Thank you.
Jake Villarreal: Well, we hope you enjoyed this episode of the ABA Law Student Podcast.
I would like to invite you to subscribe to the ABA Law Student Podcast on iTunes, Google Podcasts or your favorite podcasting app. You can reach us on Facebook at ABA for Law Students and @abalsd on Twitter.
Signing off, I am Jake Villarreal. Thank you for listening.
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