Erwin Chemerinsky (2017)

I think it is so important to separate a discussion of what the law currently is from a conversation about what the law should be. Hateful speech IS protected by the First Amendment. But we certainly can and should debate whether this is desirable. john powell and I agree as to the current law, but disagree on what the law should be.

I think that this is an area where the law has not caught up with the technology. In Riley, the Supreme Court held that police cannot search a cell phone without a warrant (unless there are emergency circumstances). I think this must mean that police cannot force people to give a password or a fingerprint to open the cell phone. I believe the law will catch up to technology here.

I would overrule San Antonio Board of Education v. Rodriguez (1973) and hold that education is a fundamental right and that discrimination against the poor should receive heightened scrutiny.
I would add an explicit right of privacy and autonomy to the Constitution.

Embarrassed.

I do not believe that corporations should have the same rights as individuals. For example, in areas of conscience -- like religious freedom -- corporations cannot have a conscience. Their owners, of course, can; but the law draws a clear distinction between a corporation and its owners.

I believe that justices and judges should avoid the appearance of impropriety. After all, that is a core requirement under the Judicial Code of Ethics. Also, judges are prohibited from appearing at political events.
However, remember the Judicial Code of Ethics does NOT apply to Supreme Court justices. I think that should be changed.

There never is a problem with a search if there is a valid warrant -- whether it is a cellphone or a car or a person's house.

Thanks for your kind words about my lecture. I am glad that was helpful.

I think that there is a difference between a presidential pardon for violating a federal statute as opposed to a presidential pardon for violating a court order. The latter interferes with and undermines the functioning of another branch of government. I also think that there is a difference in terms of the language and intent of Article II of the Constitution (concerning the pardon power.)
I have no prediction as to what Judge Bolton will do, but I thought it important that the issue be raised.

The Supreme Court repeatedly has made it clear that hate speech generally is speech protected by the Constitution.

"Rational basis with bite" is a phrase created by law professors, not the Supreme Court. I think it is descriptive of the fact that there is a huge difference between the traditional deferential rational basis test and that used in cases like Romer v. Evans, Moreno v. U.S. Department of Agriculture, and Cleburne Living Center v. City of Cleburne. I think the underlying reality is that it is not three tiers of scrutiny by really a continuum.

One of the great joys of teaching constitutional law is that it is constantly changing. One of the frustrations of being an author of a casebook and treatise on constitutional law is that it is constantly changing. To answer your question, I follow the Supreme Court very closely. I follow the cert grants and often read the briefs and transcripts of oral arguments. I watch for the decisions. I prepare a supplement each year and a new edition of the book every four years. I don't know if that answers your question. I guess the bottom line is that I follow the Court closely and try and have the changes in the law reflected in my books.

Thanks for the kind words about my Bar/Bri lecture.

I certainly agree with Attorney General Sessions that free speech on campus is crucial and that all views should be expressed at colleges and universities. I do not agree, though, that there is a serious problem with regard to speech not being allowed. There are a number of high profile incidents, but they are the exception. I also think that Attorney General Sessions ignored some of the hard issues that campuses now face concerning freedom of speech.

California has the second most restrictive "cut score" of any state in the country. I favor lowering it. If the cut score is lowered a reasonable amount, it will mean that people who pass the bar on the second try will make it on the first. That won't really affect the legal market, but it will improve a lot of people's lives.

Thanks for the kind words.

There have been proposals for years to eliminate or significantly reduce diversity jurisdiction. I don't see any significant movement in this direction. And federal district courts vary greatly as to whether they are overburdened.

Like all the questions, I wish I had so much more time to answer.
As for the number of law schools, I think there is no magic right number of how many should operate. I think the market is the best way to handle this. If there are not a sufficient number of qualified students, some law schools will close.
As for cost, I am very troubled. For public universities, like mine, it is because no longer is the state subsidizing. We have the obligation to provide financial aid, loan forgiveness, and all of the help we can provide our students.
Is it worth it to go to a law school out of the top 30-50. Of course, it is! If someone wants to be a lawyer, there are wonderful schools out of this range to get a law degree and be a terrific lawyer.
I do not favor two year JD programs and do not foresee them. Employers want students who are more practice ready. It is not possible to do that in two-thirds of the time.
I hope that the next 10-20 years will see more emphasis on experiential education, especially live client clinics.

This is a larger subject than I can quickly address here...but it so happens that my column in the Sacramento Bee today is on this very topic. Take a look: http://www.sacbee.com/opinion/california-forum/article176680106.html

Thank you! I am thrilled to be the new dean at Berkeley Law. It is a terrific school and I look forward to building on its excellence. I hope to continue to hire great faculty and recruit outstanding students and have superb clinics and centers. For better or worse, I have looked very closely at US News rankings and see a path to our improving in all areas.
As for a Supreme Court clinic, I do not think there is a need for another. If we are going to have an appellate clinic, I'd prefer a 9th Circuit clinic where students can brief and argue cases themselves. But I have not yet approached our clinical faculty about that possibility.+

Of course, there is no law concerning the 25th Amendment.
I may be in a minority, but I believe that a sitting President can be indicted. I think the most basic teaching of Marbury v. Madison is that no one -- not even the President -- is above the law. Your point about the 25th Amendment is a good one: if defending a criminal suit would interfere with the President carrying out the duties of the office, he or she could temporarily relinquish the office under the 25th Amendment.

Another question on emoluments! In Havens Realty v. Coleman, the Supreme Court held that public interest organization could sue to challenge illegal practices that changed its priority and use of resources. That is true of CREW in the emoluments clause suit. Also, an amended complaint was filed that includes competitor hotels and their employees.

Gill v. Whitford was argued today. I have not yet read the transcript of the oral argument. I think it will come down to Justice Kennedy's vote (doesn't it always in high profile cases?) I think his joining Justice Ginsburg's opinion in Arizona State Legislature v. Arizona Redistricting Commission -- which condemned partisan gerrymandering -- could be quite important. As for a standard, I think the issue will be whether Justice Kennedy is persuaded that the "efficiency gap" is a workable approach.

I feel your pain on this.
I wish we did a better job of civics education in this country. I look for any opportunity to participate in teacher training programs and to speak in middle schools and high schools about the Constitution.
I often try to explain to people that there is an important difference between what the law is and what we think it should be.

Neil Gorsuch is 49 years old. If he remains on the Court until he is 90, the age at which Justice John Paul Stevens retired, Gorsuch will be on the Court for 41 years. He is very conservative. After being sworn in on April 8, he voted together with Clarence Thomas 100% of the time.

Thank you for your kind words!
I share your view about partisan gerrymandering. We all learned that voters are supposed to choose elected officials; partisan gerrymandering means that elected officials choose their voters.
The case was argued today. I think it will be 5-4 with Justice Kennedy in the majority. Which way? Well, he jointed Justice Ginsburg's opinion in Arizona State Legislature v. Arizona Redistricting Commission. That gives me hope that he will join Justices Ginsburg, Breyer, Sotomayor, and Kagan and say it is not a political question and is unconstitutional.

The University of California is very committed to ensuring that speakers of all views -- conservative and liberal -- can speak on campus. The campus went to great expense to ensure that Ben Shapiro and Milo Yiannopoulos could speak on campus without disruption. Chancellor Carol Christ expressed her commitment to free speech, while protecting safety of students, staff, and faculty. She did a superb job in this regard.

The right to assemble and protest is very much protected by the First Amendment. These rights are essential for a democracy to work. Sometimes they might silence dissenting voices, but preventing them would even more silence dissenting voices.

There are two constitutional provisions that are relevant that use the word "emoluments." Article I, section 9 says that the President cannot receive presents or emoluments from a foreign government. Article II, section 1 says that the President can receive emoluments from the federal government other than the salary for the office. I think until recently most people thought emoluments were skin creams. Emoluments means benefits. President Trump is receiving benefits from foreign governments and from the United States (other than his salary) literally every day. This is unconstitutional. It is why I am co-counsel in a lawsuit against him for violating the emoluments clause.

Since becoming dean, I do not do many amicus briefs simply for reasons of time. I still want to handle some appellate work on a pro bono basis and prefer to spend my time on that. Occasionally, though, I'll be part of an amicus brief where it seems very important and I think that I have something to add.

The Constitution is written in broad, open-ended language. What is cruel and unusual punishment? Moreover, constitutional rights are not absolute; there almost always is balancing of competing interests. What is a compelling or an important or a legitimate government interest? There is no way to answer that except by a value choice of the judge or justice. There is no such thing as value neutral judging and there never has been. I don't think that makes it a partisan battle, though it does make it an ideological one.

This is an enormously difficult question. I believe that above all the First Amendment means that all views and ideas can be expressed, including defending genocide or terrorism. The First Amendment is founded on a faith that such tolerance will not lead to policies of intolerance and genocide. I share that faith.

Laurie Levenson is wonderful and a joy to work with.
I have expressed my thoughts on Gill v. Whitford in answering some of the other questions.
As for Carpenter -- whether the police must get a warrant before accessing cell tower location information -- I am unsure. Every Circuit to rule has said that no warrant is required. But the Roberts Court has been protective of electronic information (like in Riley and Jones). I am hoping the latter.

I do not believe that the primary problem is the Second Amendment; it is political. So far, the Supreme Court has held only that the Second Amendment protects a right to have firearms in the home for the sake of security. There is NO Second Amendment limit on the ability to require gun registration, limit the number of guns purchases, prohibit automatic and semi-automatic weapons, or forbid large capacity magazines. The problem is that the NRA and pro-gun lobbyists have great influence and block even quite modest gun regulations.

There is no right to publicly say something that is factually false that injures someone's reputation. There is no right to engage in false or deceptive ads. But generally there is a right to say false things. It is not for the government to determine what is truth and punish the rest.