The Lawless Dean of the UC Law School

 

Erwin Chemerinsky, dean of the law school at the University of California (Berkeley), has an opinion column in the L.A. Times today about the Supreme Court decision in Dobbs overruling Roe and Casey.

As far as I can determine, Chemerinsky rejects the very idea that there is such a thing as constitutional law, at least in any sense that is meaningful to me.  He seems to reject the existence of law altogether, except in the sense that “the law” might be defined as whatever the judiciary might decide it to be at a particular moment.  This seems a strange view to be held by the dean of one of the most prestigious law schools in the country.

I have an opinion, too.  I think that Chemerinsky is fundamentally lacking in integrity.  He purports to be engaging in legal scholarship while denying the very existence of law.  I submit that this makes him a fraud, even on his own terms.

The Dobbs decision, which you can read here, includes a carefully reasoned, 79-page majority opinion by Justice Alito, reviewing the history of abortion jurisprudence under the common law and in the American states during the 19th Century and early 20th Century.  It includes a detailed appendix of state laws, demonstrating that among the 37 states that were part of the Union at the adoption of the 14th Amendment in 1868:

  • Three quarters (28 out of 37) criminalized abortion by statute at the time of the adoption of the 14th Amendment.
  • All of the other 9 states of the Union as of 1868 subsequently criminalized abortion, with 8 of the 9 doing so before 1910.

Justice Alito’s opinion in Dobbs is an originalist argument, seeking to determine the original meaning of the Due Process Clause of the 14th Amendment, to determine whether that Clause recognized a right to an abortion.  The 14th Amendment, of course, like the rest of the Constitution, says absolutely nothing about abortion.  The word “abortion” never appears, nor does any similar term to describe this practice.

Chemerinsky has a different view.  I think that his view is fundamentally at odds with the very idea that the law exists.  Here is his principal argument about the Dobbs decision:

In Dobbs vs. Jackson Women’s Health Organization, the court overruled a half-century of decisions protecting a constitutional right of women to choose whether to end their pregnancies. The decision must be understood as entirely about the conservative desire to end abortion rights and not about constitutional principles or judicial methodology.

There is a desire to think that law exists apart from the identity and ideology of the justices. But that is a myth when it comes to the Supreme Court. Its decisions always have been and always will be a product of the identity of those on the bench. For example, from the 1890s until 1936, the court had a very conservative majority and declared unconstitutional over 200 federal, state, and local laws protecting workers and consumers. Only once in American history, during the Warren Court, from 1954-1969, and especially from 1962-1969, was there a liberal majority on the high court and its decisions were progressive in a way never otherwise seen in American history.

Roe vs. Wade was overruled not because of anything about its reasoning or any method of judicial interpretation but because Donald Trump won the presidency in 2016 and was able to appoint three justices to fulfill his promise to put on the court individuals who would end abortion rights.

If I understand those first two paragraphs correctly, Chemerinsky is arguing that the law does not exist apart from “the identity of those on the bench.”  I take this to mean that what we call “the law” is, in Chemerinsky’s view, nothing but the whim of the Supreme Court majority of the moment.  Legal analysis and historical reasoning are irrelevant, it seems.  At least to Chemerinsky, apparently.

They matter to me.

If this is his view, one does have to wonder what Chemerinsky is doing as dean of a prestigious law school.

It seems clear, from Chemerinsky’s rhetoric, that he has a view of constitutional law in which only the outcome matters.  He criticizes the Supreme Court in the early 20th Century for overturning “laws protecting workers and consumers.”  He praises the Warren Court for decisions that “were progressive in a way never otherwise seen in American history.”  He doesn’t seem to be concerned, in the slightest, about the legal reasoning of any of those decisions.  Just the outcome.

I wonder if Chemerinsky believes what he writes.  I suspect that he does not, but I can’t read his mind.  His own view is clear, I think.  Constitutional law, to Chemerinsky, is about nothing other than promoting his preferred agenda and policies.  He cares nothing, as far as I can tell, about our traditions and history.  He doesn’t even seem to care much about the meaning of words.  He comes across as quite post-modern, to me.

He concludes:

All of this will happen — not because of any constitutional principle — but because a majority of the justices have decided they have unbridled power to govern the lives of Americans as they choose.

I think that he is projecting.  The people who claimed “unbridled power to govern the lives of Americans as they choose” are the radical Leftists, like Chemerinsky and, sadly, a long line of Supreme Court Justices, who disregard the Constitutional text, history, tradition, and precedent.  The only precedents that they respect, as far as I can tell, are their own decisions exercising their “unbridled power” to conjure Constitutional protections out of thin air.

This is just my opinion.  Chemerinsky appears to be utterly without integrity or honor, a demagogue who will say anything to advance the policies that he favors.  When the Supreme Court presents a masterful 79-page opinion about our law, history, and traditions, Chemerinsky dismisses it as irrelevant.

This strikes me as disdain for the law, and contempt for the legal traditions and history of our country.

I find it difficult to have any respect for Chemerinsky.  I had heard of him before, but did not pay much attention to his views, which struck me as quite representative of the radical Leftists in the legal academy.

I want to return to another portion of Chemerinsky’s article, in which he contrasts the Dobbs ruling with the Second Amendment decision earlier this week.  He wrote:

Justice Samuel Alito’s majority opinion in Dobbs focuses on the need to leave the issue of abortion to the political process. But there was no deference to the political process earlier this week when the conservatives on the court declared unconstitutional a New York law limiting concealed weapons that had been on the books since 1911 or struck down a Maine law that limited financial aid to religious schools. This conservative court defers to the political process when it agrees with its results, as it does with laws prohibiting abortions, but the deference vanishes when the conservative justices dislike the states laws.

Again, I simply find it difficult to believe that Chemerinsky actually believes this nonsense.  In law school, we are taught to understand and argue both sides of a position.  I have trouble accepting the idea that Chemerinsky is simply not bright enough to understand the difference between, for example, the Dobbs decision, the Bruen decision (on the Second Amendment), and the Carson case (on the Maine law about education support).

In Dobbs, the Supreme Court found that the Constitution, which never uses the word “abortion,” doesn’t affect the law regarding abortion.  The Constitution is silent and so, unsurprisingly, the conservative Supreme Court Justices interpreting that Constitution found that it has nothing to say on the issue.

The originalist argument is a bit more complex than this, as recognized by Justice Alito’s opinion in Dobbs.  Constitutional silence does not necessarily mean that a claimed right is not part of the Constitution.  This principle is stated in the Ninth Amendment, which provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The long-standing test for recognition of such rights, quoted in Dobbs, is that such a claimed right must be “deeply rooted in our history and tradition.”  Abortion was not, as plainly demonstrated by Justice Alito’s opinion.  (Neither is homosexual sodomy, by the way, but that’s an issue for another day.)

In Bruen, the Supreme Court noticed that the Constitution has a clause about gun rights, stating that “the right of the people to keep and bear Arms, shall not be infringed.”  The Constitution is not silent and so, unsurprisingly, the conservative Supreme Court Justices interpreting the Constitution found that it meant what it said.  (There is a textual question about the Second Amendment, due to the prefatory clause about a “well regulated Militia,” which could give rise to reasonable arguments on both sides that the Court would have to resolve.  But the Constitution plainly addresses the issue of gun rights.)

In Carson, the Supreme Court noticed that the Constitution has a clause guaranteeing the “free exercise” of religion.  There was surprisingly little jurisprudence about this clause until the mid-20th Century, but at that time, one of the principles stated by the Court was that “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”  Thus, when the state offers a broad benefit to individuals or groups, like the high school tuition assistance at issue in the Carson case, it cannot withhold that benefit on the basis of religious affiliation.  On the law presented in Carson, the text of the Constitution, and prior precedent, was not silent and so, unsurprisingly, the conservative Supreme Court justices interpreting the Constitution found that it meant what it said, and applied it consistent with precedent.

Constitutional law may be complex in a number of areas.  It should be pretty clear, though, that there is a coherent judicial philosophy at work in the DobbsBruen, and Carson decisions.  I don’t think that this is terribly difficult to understand.  It certainly should be fairly easy for even a mediocre law school student to follow this reasoning.

Which brings me back to Chemerinsky.

Faced with the alternatives, I conclude that Chemerinsky probably knows the legal doctrine underlying the DobbsBruen, and Carson decisions.  If not, then he is willfully blind, in my opinion.  He doesn’t have to agree with it, but he should be able to follow it.

Yet he denies that it exists, in an opinion article published in a major newspaper.  I find this deeply dishonest.

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  1. Hoyacon Member
    Hoyacon
    @Hoyacon

    Nice job, AP.

    There is a desire to think that law exists apart from the identity and ideology of the justices. But that is a myth when it comes to the Supreme Court.

    In recent years and off the top of my head, there is contrary evidence in major cases.  See Kennedy in Obergefell, Gorsuch in Bostock, and Roberts in two ACA cases.

    • #1
  2. Headedwest Coolidge
    Headedwest
    @Headedwest

    Chemerinsky used to play act as the “reasonable liberal” in some blogs and other online forums. But his actual decision making has always been hard left.

    • #2
  3. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Jerry Giordano (Arizona Patrio…: I think that he is projecting.

    That’s it, exactly. The Leftist Justices do precisely what he describes and the majority in this Roe vs Wade decision apply what they swore to do in their oath of office. I’m certain the result also fits what the majority believes is the right thing but that is not how they get to the decision.

    • #3
  4. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Liberals want to put as much as possible beyond the reach of the voters so they can be tyrants.

    • #4
  5. kedavis Coolidge
    kedavis
    @kedavis

    I’ve had a theory for a long time, going back to his early days on the Hugh Hewitt Show, that [E|I]rwins Are Wrong.

    • #5
  6. Paul Stinchfield Member
    Paul Stinchfield
    @PaulStinchfield

    kedavis (View Comment):

    I’ve had a theory for a long time, going back to his early days on the Hugh Hewitt Show, that [E|I]rwins Are Wrong.

    Schrödinger’s Cat agrees.

    • #6
  7. kedavis Coolidge
    kedavis
    @kedavis

    Paul Stinchfield (View Comment):

    kedavis (View Comment):

    I’ve had a theory for a long time, going back to his early days on the Hugh Hewitt Show, that [E|I]rwins Are Wrong.

    Schrödinger’s Cat agrees.

    On the Hugh Hewitt show, it was usually Chemerinsky vs John Eastman, who has recently fallen out of favor.  Eastman would explain the case and the law and why a decision made sense or not; Chemerinsky would basically try to explain how that didn’t matter, what mattered was that HE (Chemerinsky) didn’t like it.

    • #7
  8. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    Law used to mean what was written down and determined by a legislative process.  Modern day law is whatever the whim of the powerful determine it means, when they want it to mean it and nothing else matters.  Sad but I suspect that I am a better constitutional scholar than most lawyers.  

    • #8
  9. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    Fake John/Jane Galt (View Comment):

    Law used to mean what was written down and determined by a legislative process. Modern day law is whatever the whim of the powerful determine it means, when they want it to mean it and nothing else matters. Sad but I suspect that I am a better constitutional scholar than most lawyers.

    Partially, but not quite.  The common law tradition was very important to the law.  It still is, in most states.

    Much of the law in my practice in Arizona is not statutory, but common law.  This includes most contract law, negligence, fraud, and negligent misrepresentation.  There are exceptions — for example, contracts for the sale of goods are statutory, under the Uniform Commercial Code, Article 2.

    The older I get, the more wisdom I find in the common law.  It was principally based on Scripture, plus practical experience, with some Roman law influences.

    • #9
  10. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    Hoyacon (View Comment):

    Nice job, AP.

    There is a desire to think that law exists apart from the identity and ideology of the justices. But that is a myth when it comes to the Supreme Court.

    In recent years and off the top of my head, there is contrary evidence in major cases. See Kennedy in Obergefell, Gorsuch in Bostock, and Roberts in two ACA cases.

    Yeah.  It was a while back, but another example is the knock-and-announce rule, adopted by a unanimous court back in 1995, with Rehnquist, Scalia, Kennedy, O’Connor, and Thomas all agreeing.

    It is just about impossible to believe that Chemerinsky doesn’t know this stuff.  Thus, my personal conclusion that he lacks honor and integrity.

    He is evil, too, but that’s another issue.  Well, maybe.  Lies do seem to follow automatically when one is a servant of Satan.

    • #10
  11. Gary Robbins Member
    Gary Robbins
    @GaryRobbins

    Hi Jerry,

    I’d love to see you on the appellate courts.

    Gary

    • #11
  12. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    Chemerinsky has long lacked intellectual moorings other than his personal preferences in arguing positions. He is almost an avatar for the “living Constitution” concept that a document such as a constitution means whatever the powerful people decide they want it to mean regardless of what it meant at the time it was written. Mr. Chemerinski’s lack of a sound foundation in the law has been clear since at least before 2007, when he was appointed founding dean of the law school established at my undergraduate alma mater (University of California Irvine). Yet somehow it caught university administration by surprise that he was a controversial pick for the position. One of my early clear clues that university administrators are idiots. He also for a long time had a column in the then-existing California State Bar Journal purporting to analyze California Supreme Court decisions, but was more often just him spouting his personal opinions. 

    • #12
  13. Hoyacon Member
    Hoyacon
    @Hoyacon

    Something else that occurred to me is the number of SCOTUS cases in which there is agreement (or substantially agreement) either 9-0 or 8-1.  See, for example, the recent Trump case regarding documents to the Jan. 6 Committee.

    Explain to me again, Mr Dean, how this works:

    There is a desire to think that law exists apart from the identity and ideology of the justices. But that is a myth when it comes to the Supreme Court.

     

    • #13
  14. kedavis Coolidge
    kedavis
    @kedavis

    Hoyacon (View Comment):

    Something else that occurred to me is the number of SCOTUS cases in which there is agreement (or substantially agreement) either 9-0 or 8-1. See, for example, the recent Trump case regarding documents to the Jan. 6 Committee.

    Explain to me again, Mr Dean, how this works:

    There is a desire to think that law exists apart from the identity and ideology of the justices. But that is a myth when it comes to the Supreme Court.

     

    He knows that’s how he operates himself, and there’s good evidence that the lefty SCOTUS people do the same; and they all just assume that’s how everyone else does it too.

    • #14
  15. Skyler Coolidge
    Skyler
    @Skyler

    Chemerinski’s legal text books we used in law school were some of the best.  He is extremely intelligent and normally his examination of the law is brilliant.  

    But we do not live in normal times.  We are fractured and the marxists on the left have some strange mind bending hold on otherwise intelligent people, robbing them of logic and replacing it with feelings; i.e., racism isn’t an overt expression, it is displayed through unavoidable historical psychic damage where people don’t even know they are racist, which only shows that they are even more racist.  It’s a poisonous way of thinking and it affects the intelligentsia as strongly as the rabble.  We can no longer trust political opponents to think and debate rationally.

    A friend of mine mentioned Robert E. Lee today and said that there is no question that Lee supported slavery.  That is correct.  It is a debatable point whether Lee was motivated by slavery more or whether he was more motivated by states’ rights, but however the scale weighs it, slavery was certainly prominent in his values.

    However, when the war was lost and he was defeated, he was able to, both from his personal behavior and because society allowed it, to accept defeat and try to live with the new system, where he led a college with great integrity.  That, my friend pointed out, could never happen today.  Chemerinski and Maxine Waters, two people that normally I would never deign to compare, will not accept defeat and start working within the legal system for change.  I don’t suppose I know this as a fact about the professor, but the sentiment is so prevalent that it’s hard to not assign it to him.  

    For the past fifty years we have fought abortion within the legal and political system as allowed by law and have finally prevailed.  I don’t think the left will be so gracious.  They have learned that long hard slogs are not necessary when you have a mob.

    • #15
  16. RushBabe49 Thatcher
    RushBabe49
    @RushBabe49

    Ah, yes, you have discovered the principle at the basis of all politics in our country.  Leftists are Leftists First, and everything else later, including Jews, lawyers, judges, and law-school deans.  They see an entirely different reality from everyone else, and act on that reality.

    • #16
  17. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    Jerry Giordano (Arizona Patrio… (View Comment):

    Fake John/Jane Galt (View Comment):

    Law used to mean what was written down and determined by a legislative process. Modern day law is whatever the whim of the powerful determine it means, when they want it to mean it and nothing else matters. Sad but I suspect that I am a better constitutional scholar than most lawyers.

    Partially, but not quite. The common law tradition was very important to the law. It still is, in most states.

    Much of the law in my practice in Arizona is not statutory, but common law. This includes most contract law, negligence, fraud, and negligent misrepresentation. There are exceptions — for example, contracts for the sale of goods are statutory, under the Uniform Commercial Code, Article 2.

    The older I get, the more wisdom I find in the common law. It was principally based on Scripture, plus practical experience, with some Roman law influences.

    What common law wisdom?  Is that the common law that expands marriage to SSM and soon to polygamy?  or the common law that requires government sponsored and paid for abortion?  Or the common law that makes guns illegal to most in most countries?  Or the common law that make a male a woman or female a man if they “feel” like it and we all must bow to it?

    • #17
  18. Steven Seward Member
    Steven Seward
    @StevenSeward

    kedavis (View Comment):

    Paul Stinchfield (View Comment):

    kedavis (View Comment):

    I’ve had a theory for a long time, going back to his early days on the Hugh Hewitt Show, that [E|I]rwins Are Wrong.

    Schrödinger’s Cat agrees.

    On the Hugh Hewitt show, it was usually Chemerinsky vs John Eastman, who has recently fallen out of favor. Eastman would explain the case and the law and why a decision made sense or not; Chemerinsky would basically try to explain how that didn’t matter, what mattered was that HE (Chemerinsky) didn’t like it.

    I used to listen to those guys on the Hewitt show, too.  Hewitt respectfully referred to them as “The Smart Guys” but in Chemerinsky’s case I think he was being kind.  Chemerinsky never once made me feel like he was presenting a logical case for anything.  It was all pure hogwash.  I even thought Hewitt was being foolish for having him on.  I didn’t know (or wasn’t paying attention) that he was the head of a law school.  This is appalling.

    • #18
  19. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    Fake John/Jane Galt (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):

    Fake John/Jane Galt (View Comment):

    Law used to mean what was written down and determined by a legislative process. Modern day law is whatever the whim of the powerful determine it means, when they want it to mean it and nothing else matters. Sad but I suspect that I am a better constitutional scholar than most lawyers.

    Partially, but not quite. The common law tradition was very important to the law. It still is, in most states.

    Much of the law in my practice in Arizona is not statutory, but common law. This includes most contract law, negligence, fraud, and negligent misrepresentation. There are exceptions — for example, contracts for the sale of goods are statutory, under the Uniform Commercial Code, Article 2.

    The older I get, the more wisdom I find in the common law. It was principally based on Scripture, plus practical experience, with some Roman law influences.

    What common law wisdom? Is that the common law that expands marriage to SSM and soon to polygamy? or the common law that requires government sponsored and paid for abortion? Or the common law that makes guns illegal to most in most countries? Or the common law that make a male a woman or female a man if they “feel” like it and we all must bow to it?

    No, the common law as set forth in sources like Coke and Blackwell.  

    • #19
  20. kedavis Coolidge
    kedavis
    @kedavis

    Steven Seward (View Comment):

    kedavis (View Comment):

    Paul Stinchfield (View Comment):

    kedavis (View Comment):

    I’ve had a theory for a long time, going back to his early days on the Hugh Hewitt Show, that [E|I]rwins Are Wrong.

    Schrödinger’s Cat agrees.

    On the Hugh Hewitt show, it was usually Chemerinsky vs John Eastman, who has recently fallen out of favor. Eastman would explain the case and the law and why a decision made sense or not; Chemerinsky would basically try to explain how that didn’t matter, what mattered was that HE (Chemerinsky) didn’t like it.

    I used to listen to those guys on the Hewitt show, too. Hewitt respectfully referred to them as “The Smart Guys” but in Chemerinsky’s case I think he was being kind. Chemerinsky never once made me feel like he was presenting a logical case for anything. It was all pure hogwash. I even thought Hewitt was being foolish for having him on. I didn’t know (or wasn’t paying attention) that he was the head of a law school. This is appalling.

    Well, Chemerinsky wasn’t heading a law school when Hugh was first having them on, that came later.  And as I recall, he was originally dean of the new law school at UC Irvine when it first opened; how he wound up at Berzerkely I didn’t hear, and don’t particularly care either.  Seems like a bad move for any law school really.

    Remember, [I|E]rwins Are Wrong!

    • #20
  21. RufusRJones Member
    RufusRJones
    @RufusRJones

    Bryan G. Stephens (View Comment):

    Liberals want to put as much as possible beyond the reach of the voters so they can be tyrants.

    Mark Levin was talking about this yesterday. The last two hours were pretty interesting. The left is pounding the public with confusing rhetoric that people with above average intelligence shouldn’t be using.

    • #21
  22. genferei Member
    genferei
    @genferei

    There is a desire to think that law exists apart from the identity and ideology of the justices. But that is a myth when it comes to the Supreme Court. Its decisions always have been and always will be a product of the identity of those on the bench.

    I am shocked that you are shocked by this. This is absolutely orthodox Legal Realism that has held sway in the upper reaches of the American legal academy for the better part of a century. (Well, the orthodox theory does not limit itself to the Supreme Court.)

    It’s wrong and dangerous, but it’s hardly new or unusual.

    • #22
  23. Caltory Lincoln
    Caltory
    @Caltory

    Chemerinsky begins:

    In Dobb’s vs. Jackson Women’s Health Organization, the court overruled a half-century of decisions protecting a constitutional right of women to choose whether to end their pregnancies. (Emphasis added.)

    If anyone wonders what begging the question is, there you have it.

    • #23
  24. RufusRJones Member
    RufusRJones
    @RufusRJones

    Caltory (View Comment):

    Chemerinsky begins:

    In Dobb’s vs. Jackson Women’s Health Organization, the court overruled a half-century of decisions protecting a constitutional right of women to choose whether to end their pregnancies. (Emphasis added.)

    If anyone wonders what begging the question is, there you have it.

    The media never forces anybody to clarify this.  People, TV talking heads, and lawyers are whipping out the word “right” like they are passing out candy. 

    I get it in the comparison between positive rights and negative rights. Positive rights aren’t really rights in this country. The South African constitution is full of positive rights and the country is a basket case. 

    In the micro, like a contract, I think I get it, like you get to exercise a right based on signing a contract. (etc.) In the macro, like this big social issue, it just looks like Soviet brainwashing and it’s working, but that’s just me.

     

    • #24
  25. Stina Member
    Stina
    @CM

    Jerry Giordano (Arizona Patrio… (View Comment):

    Fake John/Jane Galt (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):

    Fake John/Jane Galt (View Comment):

    Law used to mean what was written down and determined by a legislative process. Modern day law is whatever the whim of the powerful determine it means, when they want it to mean it and nothing else matters. Sad but I suspect that I am a better constitutional scholar than most lawyers.

    Partially, but not quite. The common law tradition was very important to the law. It still is, in most states.

    Much of the law in my practice in Arizona is not statutory, but common law. This includes most contract law, negligence, fraud, and negligent misrepresentation. There are exceptions — for example, contracts for the sale of goods are statutory, under the Uniform Commercial Code, Article 2.

    The older I get, the more wisdom I find in the common law. It was principally based on Scripture, plus practical experience, with some Roman law influences.

    What common law wisdom? Is that the common law that expands marriage to SSM and soon to polygamy? or the common law that requires government sponsored and paid for abortion? Or the common law that makes guns illegal to most in most countries? Or the common law that make a male a woman or female a man if they “feel” like it and we all must bow to it?

    No, the common law as set forth in sources like Coke and Blackwell.

    Is self defense common law? It seems that would be widely recognizable. What isn’t is defending self against government…

    • #25
  26. Skyler Coolidge
    Skyler
    @Skyler

    Stina (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):

    Fake John/Jane Galt (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):

    Fake John/Jane Galt (View Comment):

    Law used to mean what was written down and determined by a legislative process. Modern day law is whatever the whim of the powerful determine it means, when they want it to mean it and nothing else matters. Sad but I suspect that I am a better constitutional scholar than most lawyers.

    Partially, but not quite. The common law tradition was very important to the law. It still is, in most states.

    Much of the law in my practice in Arizona is not statutory, but common law. This includes most contract law, negligence, fraud, and negligent misrepresentation. There are exceptions — for example, contracts for the sale of goods are statutory, under the Uniform Commercial Code, Article 2.

    The older I get, the more wisdom I find in the common law. It was principally based on Scripture, plus practical experience, with some Roman law influences.

    What common law wisdom? Is that the common law that expands marriage to SSM and soon to polygamy? or the common law that requires government sponsored and paid for abortion? Or the common law that makes guns illegal to most in most countries? Or the common law that make a male a woman or female a man if they “feel” like it and we all must bow to it?

    No, the common law as set forth in sources like Coke and Blackwell.

    Is self defense common law? It seems that would be widely recognizable. What isn’t is defending self against government…

    Yes, the common law has nearly always supported self-defense, though a very late addition was a duty to retreat which was quite popular in the US for about half a century I think.

    • #26
  27. Justin Other Lawyer Coolidge
    Justin Other Lawyer
    @DouglasMyers

    Headedwest (View Comment):

    Chemerinsky used to play act as the “reasonable liberal” in some blogs and other online forums. But his actual decision making has always been hard left.

    IIRC, he was the featured Con Law expert in my bar exam review course. I don’t remember much about that part of the course except that Chemerinsky came across as pretty creepy. 

    • #27
  28. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    kedavis (View Comment):

    . . .

    Well, Chemerinsky wasn’t heading a law school when Hugh was first having them on, that came later. And as I recall, he was originally dean of the new law school at UC Irvine when it first opened; how he wound up at Berzerkely I didn’t hear, and don’t particularly care either. Seems like a bad move for any law school really.

    Remember, [I|E]rwins Are Wrong!

    I just want to chime in and say how much I like the word “Berzerkely” in this comment.

    Did you come up with this?  Extra kudos if you did, but even if you didn’t, good use of the term.  :)

    • #28
  29. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    genferei (View Comment):

    There is a desire to think that law exists apart from the identity and ideology of the justices. But that is a myth when it comes to the Supreme Court. Its decisions always have been and always will be a product of the identity of those on the bench.

    I am shocked that you are shocked by this. This is absolutely orthodox Legal Realism that has held sway in the upper reaches of the American legal academy for the better part of a century. (Well, the orthodox theory does not limit itself to the Supreme Court.)

    It’s wrong and dangerous, but it’s hardly new or unusual.

    Sorry if I gave the impression that I was “shocked,” in the sense of “surprised.”  I am well versed on the history of legal realism.  I am a bit shocked that anyone, past or present, accepted the doctrine.

    Though not too shocked.  It’s not as if a lack of integrity or honor is unusual either.  Just disappointing, particularly in someone holding a prestigious position in the legal acadamy.

    • #29
  30. RushBabe49 Thatcher
    RushBabe49
    @RushBabe49

    If I’m not mistaken, the term “Berzerkely” might have been coined by Michael Medved.  He went there, and was one of those leftists “mugged by reality” to become conservative.  Unfortunately, he seems to have lapsed back into leftism in his old age.

    • #30
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