Hello, Reddit! My name is Erwin Chemerinsky, and I serve as dean of the UC Berkeley School of Law. Before coming to Berkeley, I helped establish UC Irvine's law school, and before that taught at Duke and USC.

In my forty year career I’ve argued before the Supreme Court, taught hundreds of budding lawyers, contributed to dozens of law reviews and media outlets, and written several books - the latest of which examines freedom of speech on college campuses. If you're interested, you can learn more about me here: https://www.law.berkeley.edu/our-faculty/faculty-profiles/erwin-chemerinsky/

Proof: https://imgur.com/a/JhfyzMW

I’m being assisted by /u/michaeldirda from Berkeley’s public affairs office, but will be responding to all of your questions myself. Please ask away!

EDIT: Hi folks - Mike here. Erwin had to take off for the evening, but he'll respond to a few more of the lingering questions in the morning. Thanks for tuning in!

Comments: 783 • Responses: 34  • Date: 

yrdsl133 karma

What is your opinion on the Fifth Circuit's ruling in Alvarez v. Brownsville that held that prosecuters do not have to disclose exculpatory evidence if the defendant takes a plea deal? I find the implications of that ruling very disturbing, but I'm not a lawyer so...

erwinchemerinsky230 karma

I also find this very disturbing. Brady v. Maryland (1963) held that prosecutors must disclose potentially exculpatory evidence. A plea deal should not eliminate this right. Sometimes innocent people plead guilty. The exculpatory evidence could be a basis for challenging the plea bargain.

LouisLittEsquire124 karma

Hello Erwin! My mother was a law student of yours and won a national moot court competition with you as their mentor. She always spoke very highly of you. I just wanted to say thank you for your fantastic Con-law supplement and ask you one question. What do you think is one thing that is not taught in most Con-law classes that should be?

erwinchemerinsky127 karma

Thanks for the kind words. I think we don't spend enough time on remedies in constitutional cases. For example, there are very significant limits on recovering money or even injunctions from government and government officials. These usually don't get covered in constitutional cases.

i0datamonster98 karma

How is civil asset forfeiture constitutional?

What can we citizens do to stop it?

erwinchemerinsky178 karma

The Supreme Court has generally upheld forfeitures, so long as there is due process. For example, the Court has held that the government may seize under a forfeiture law property used in illegal activity. There is a case before the Supreme Court this year, Timbs v. Indiana, as to whether the Eighth Amendment's excessive fines clause applies to the states. If so, it would provide a basis for challenging forfeitures that are disproportionate to the offense.

pussgurka93 karma

What would you change/add in the U.S. Constitution if you could?

erwinchemerinsky304 karma

To follow up on an earlier answer, I would eliminate the Electoral College. I would add an Equal Rights Amendment. I would add much more explicit protection for privacy.

poweroflegend87 karma

In your opinion, was the Senate’s stonewall of Merrick Garland’s nomination constitutional? If so, how do we prevent future nominations from being held hostage again by a hostile Senate in the future?

erwinchemerinsky2 karma

There is no way to force the Senate to hold hearings or a vote.  The Constitution often assumes that government officials will act in good faith.  Senate Republicans did not do that in refusing to hold a hearing or a vote on Chief Judge Garland.

MFAWG85 karma

Can the FBI even investigate a 40 year old allegation where both parties were minors?

erwinchemerinsky182 karma

Yes, the FBI can investigate the matter and collect information. It is impossible to know what it might learn. Interestingly, in 1991, when Anita Hill alleged sexual harassment by Clarence Thomas, Republicans urged an FBI investigation.

therealdarkcirc67 karma

Irrespective of urging, those events took place on federal property and were in the FBI's jurisdiction.

In this case, is there anything besides the request that puts the local event in the purview of the FBI as a criminal investigation? Do they have special powers if an accused is a federal employee after the time of accusation?

erwinchemerinsky96 karma

I don't think it would be a criminal investigation by the FBI. It would be an investigation to gather facts. The Montgomery County District Attorney could conduct a criminal investigation. But that is not really what this is about. It is trying to learn, as much and as best as possible, what happened.

jizwham59 karma

Which of this year's upcoming Supreme Court cases is the most important? Will the decision rest on whether Kavanaugh is sitting on the court?

erwinchemerinsky142 karma

Only about half the docket is set for the term. The rest of the cases will be taken between this week and mid-January. There are no cases involving issues like abortion, affirmative action, gun rights, gay and lesbian rights. But some of the important cases include: Gamble v. United States, as to whether the Court should overrule the "separate sovereigns" doctrine which says that double jeopardy does not bar the federal government and a state government from separately prosecuting a person for the same crime; Gundy v. United States, as to whether a federal law -- the Sex Offender Registration and Notification Act -- is an unconstitutional excessive delegation of power; Frank v. Gaos, as to the power of a court to grant cy pres awards -- giving money to a non--profit when the funds from a class action aren't able to be given to recipients. And the case I am most interested in because I will be arguing it in January: Franchise Tax Board v. Hyatt, which involves whether the Court should overrule an earlier decision (Nevada v. Hall (1977)) that allows a state to be sued in another state's court.

orangejulius54 karma

In your view - what's the most important decision that's come down in the last 10 years?

erwinchemerinsky170 karma

I would pick a few: Citizens United v. Federal Election Commission (2010), which held that corporations can spend unlimited sums in election campaigns. I think it has had a dramatic effect on our political system. Shelby County v. Holder (2013), which struck down key provisions of the Voting Rights Act. And Obergefell v. Hodges (2015), which held that gays and lesbians have a right to marriage equality under the Constitution.

orangejulius51 karma

How do you feel about Alito mouthing "NOT TRUE" at Obama's state of the union address where he brought up some of the long-term problems with the Citizens United case?

erwinchemerinsky136 karma

I thought it was rude behavior and would have felt that way whether a liberal or a conservative acted that way during a president address.

pamiam121846 karma

My question is, what Constitutional barriers do you see to establishing a nationwide single-payer healthcare system? Would an Amendment be necessary?

On an unrelated note, I attended your Barbri lecture this summer and it was helpful. Thanks for helping me get ready for the Bar exam!

erwinchemerinsky112 karma

Congress unquestionably has the power to create a nationwide single-payer health system. The obstacle is entirely political, not legal.

I am glad that my bar review lecture was helpful.

orangejulius40 karma

In your view, can a sitting President be indicted?

erwinchemerinsky133 karma

There is no settled answer to that question. There is a Justice Department memo saying no. I'd say most law professors who have opined also would say no. But I would say yes. I believe that a fundamental aspect of the rule of law is that no one, including the president, is above the law.

pamiam121837 karma

Under the First Amendment, could a public college/university refuse to recognize student-organized chapters of hate groups like neo-nazis or the KKK? Or would they have to allow such groups to form and use campus resources under the same terms and conditions as any other student group?

erwinchemerinsky91 karma

The law is clear that a public university could not ban such hate groups. Every campus hate speech code to be considered by a court was declared unconstitutional. The campus must allow such groups to use campus resources under the same terms and conditions as any other student group.

Bigwooddeck35 karma

I heard you think the Electoral College is unconstitutional. Is this so, and if so what is your reasoning? Also, do you ever want to abandon academia, hang a shingle and rough it as a solo?

erwinchemerinsky61 karma

I think that the Electoral College is inconsistent with basic principles of democracy and equal protection. I apologize for the shameless plug, but I have a new book coming out in November -- We the People: A Progressive Reading for the Constitution for the 21st Century -- in which I explain why I believe the Electoral College is unconstitutional.

I have exactly the job I most want: dean of Berkeley Law.

fizzixs33 karma

Given that language drifts, what are some examples of writing in the constitution that doesn't match a modern interpretation of those words?

erwinchemerinsky86 karma

The Constitution refers to the President and Vice President as "he." The framers intended that these offices would be held by men. That clearly is unacceptable today.

Lebowskihateseagles27 karma

Why are corporations people, and why is money speech?

erwinchemerinsky78 karma

Corporations are sometimes regarded as persons (such as for due process and equal protection), but sometimes not (they don't have the privilege against self-incrimination). There are a couple of wonderful new books on this by Adam Winkler and Kent Greenfeld.

As for why spending money in election campaigns is treated as speech, it is because the Court said so in Buckley v. Valeo (1976). I think that the Court was wrong. Spending money is conduct that communicates a message, but not speech itself. I think the Court took the expression, "money talks" too literally.

splitterboiz27 karma

Do you have any tips for upcoming law school applicants who really want to go to Berkeley law?

erwinchemerinsky64 karma

I hope you will apply to Berkeley Law. The admissions process looks carefully at each application. They, of course, consider grades, test score, personal statement, letters of recommendation, and life experience. Be sure to write a strong personal statement. Make it as polished as you can. And get strong letters of recommendation from professors who can assess your analytical ability and your ability to succeed in law school.

maluminse26 karma

Judges often do not enforce Miranda or 4th Amendment rights. What is the solution?

erwinchemerinsky59 karma

I am teaching Criminal Procedure this semester. I see a larger problem with police lying -- there's even a name for it, "testilying." They so easily can lie about whether Miranda warnings were given or whether there was consent to a search. The vast majority of police officers are honest and tell the truth. But there is a widely noted problem of false police testimony.

iamfromjobland25 karma

What is your view on Students for Fair Admissions v. Harvard? How is favoring one race (under represented minority) over another constitutional?

erwinchemerinsky49 karma

The United States Supreme Court repeatedly has held that colleges and universities have a compelling interest in having a diverse student body and that they may use race as one factor in admissions decisions to enhance diversity and benefit minorities. These cases have involved public universities. But the Supreme Court also has said that the same rules apply to private universities that receive federal funds because of Title VI of the 1964 Civil Rights Act, which prohibits recipients of federal funds from discriminating based on race.

UndecidedVoter202019 karma

What do you think of Justice O'connor's statement in Grutter v. Bollinger (2003) that states that universities had a compelling interest at that time, but she doubts it would be necessary in 25 years? Does this act as an unofficial expiration date for Affirmative Action, or if any current justices may see it that way?

erwinchemerinsky2 karma

I think Justice O’Connor’s statement is dicta.  I think a conservative majority will end affirmative action sooner and if there ever is a liberal majority and affirmative action is still necessary, it will be continued longer.

iamfromjobland8 karma

Thank you so much for your reply Professor!

Follow up question: How come California’s Prop 209 not conflict with the Bakke case? Are professional schools exempt from prop 209? It seems like UC undergrad conforms to Prop209 whereas their professional schools dont.

erwinchemerinsky30 karma

Bakke -- and subsequent cases like Grutter v. Bollinger and Fisher v. University of Texas -- hold that states MAY use race as a factor in admissions decisions to benefit minorities and enhance diversity. It does not say they must do so. States can choose not to engage in affirmative action. Proposition 209 does that by forbidding discrimination or preferences based on race or gender in education, contracting, or employment.

frankenshark24 karma

May the Senate convict and remove a Justice of the Supreme Court after the House of Representatives has impeached that Justice for matter that was explicitly investigated and deliberated upon by the Senate during that Justice's confirmation process?

erwinchemerinsky47 karma

Yes. The House may impeach for "treason, bribery, and high crimes or misdemeanors." It takes a majority vote of the House. The Senate then may remove the person by a 2/3 vote. There is no limit on this -- there can be impeachment and removal even for matters considered by the Senate in its confirmation process.

GoBear198524 karma

Can the President commit obstruction of justice while exercising his Article II powers if he does so for a corrupt purpose? (e.g., firing the Director of the FBI for refusing to curtail an investigation of the President's associates, offering a pardon to a witness who may cooperate against him etc.)

erwinchemerinsky59 karma

Yes, I believe that president can commit obstruction of justice even while using Article II powers. Imagine a president orders the Justice Department, including the FBI, not to investigate a crime by the president's spouse or child. The president would be exercising Article II powers, but that would be obstruction of justice.

oscar_the_couch22 karma

Is prosecution of federal crimes an exclusively executive branch function, or can Congress prosecute some or all federal crimes?

For example, can Congress appoint a prosecutor to pursue someone for lying to Congress or for contempt of Congress?

erwinchemerinsky59 karma

Only the executive branch can prosecute federal crimes. But Congress, by statute, can provide for the appointment of a special prosecutor. Congress did this in the Ethics in Government Act, which has since expired. It provided for the appointment of an independent counsel when there were allegations of serious wrong-doing by the president or high level executive officials. In Morrison v. Olson, 1988, the Court upheld the constitutionality of this by a 7-1 margin.

Kam_yee19 karma

In this era of a highly polarized court and strings of 5-4 decisions overturning decades of precedent, is stare decisis effectively dead?

erwinchemerinsky49 karma

There are books and long articles written about stare decisis and they always come to the same conclusion: precedent should be followed except when it should be overruled. All justices believe in the importance of precedent. But all also are willing to overrule precedents that they disagree with. Last term, the Court twice overruled long-standing precedents. Liberals and conservatives alike do this. They just disagree as to which precedents to follow and which to overrule.

orangejulius19 karma

Do you think Kavanaugh is going to make it to SCOTUS?

If he does, how do you think that will affect the balance on the court?

erwinchemerinsky44 karma

I think it depends on the testimony on Thursday and how the Senators perceive the credibility of Judge Kavanaugh and Dr. Ford. It would be foolhardy to make a guess before the hearing.

If Kavanaugh is confirmed, he will make the Court more conservative. It is likely that he will be more conservative than Justice Kennedy on key issues like abortion, affirmative action, and gay and lesbian rights.

orangejulius19 karma

Has any other administration contemplated using the 25th Amendment that you're aware of?

Why do you think the founders included the 25th Amendment?

e: I'm an idiot. I meant framers of the 25th. not the founders.

erwinchemerinsky48 karma

Parts of the 25th Amendment -- such as for appointment of a vice president when there is a vacancy in that office and for temporary incapacity of a president -- have been used. But there never has been use of Section 4, which allows for the Vice President and the Cabinet to deem a President unfit.

Interestingly, this does not come from the framers. But from concerns raised through American history culminating in its adoption in the 1960s.

jizwham18 karma

What are your own thoughts on the renaming of Boalt?

erwinchemerinsky49 karma

After learning of John Boalt's racist statements, I convened a committee to study the issue and make recommendations. I sent a copy of the committee report to all faculty, staff, students, and alumni on September 10. I have asked for their comments on the committee's report by October 31. I will wait to make up my mind about what to do until I have had the chance to hear from all who want to share their views.

DeuxRaccoons18 karma

Is First Amendment doctrine, for a lack of a better word, broken and how should it be fixed?

erwinchemerinsky63 karma

Yes, I think it is broken in that it fails to account for the dramatic wealth disparities and how they affect expression. I believe that Citizens United was wrongly decided because it failed to recognize the compelling government interest in equalizing influence in the political process and avoiding the appearance of corruption. I believe Justice Kagan was right in Janus v. American Federation in saying that the conservative majority has "weaponized" the First Amendment in using it to strike down laws to protect employees and consumers.

Lawquark16 karma

As a first year, big city public defender who’s also very interested in the 1A, how do you suggest I strengthen my understanding of speech issues? Should I try to join a clinic somewhere as a volunteer fellow? I’ve argued a few speech related cases in my first year, but of course it’s rare. Also, where do you see my career going? Are there people who practice in both crim defense and 1A lit? If so, who?

Thanks very much and go Bears!

erwinchemerinsky27 karma

I think that there are some excellent books on free speech law to help gain understanding in the area. Also, if your position allows it, doing work at a First Amendment clinic would be useful. There are lawyers in private practice who do both criminal cases and First Amendment cases (of course, sometimes First Amendment issues arise in the criminal context).

Lawquark20 karma

Thanks for your answer. Can you recall any cases that explicitly say it’s constitutional to yell, well, expletives at the police if they approach you?

erwinchemerinsky39 karma

Houston v. Hill

tbjnl14 karma

If you were an entering law student at a school like Berkeley today, and you were concerned only with using your law degree to do social good, where would you choose to work and/or what issues would you address? (If relevant, ignoring salary and assuming center-left politics)

erwinchemerinsky33 karma

There are so many wonderful public interest organizations. It all depends on your area of interest. Environmental law? Civil liberties? Women's rights? Gay and lesbian rights? Disability rights? Rights for racial minorities? Native American rights? Consumer rights? And so on. I would pick the area you are interested in and work for an organization in that area.

[deleted]8 karma

Do you think the broader legal community would support a bill that each president can appoint one scotus judge per term? My understanding is this can be done legislatively and does not require a constitutional amendment, as removing lifetime appointments would, while still neutralizing the effect of the lifetime appointments. It also seems better than simply increasing the size of the court, as some democrats have suggested.

If not , what other reforms to scotus could you see being realistic? After two elections in 20 years where the popular vote and electoral winner differed (and the resulting impact on scotus) and the politicization of the court, isn’t it just a matter of time until reform is necessary?

erwinchemerinsky13 karma

You are correct: Congress can increase the size of the Supreme Court by statute. Allowing a president to appoint one justice per term has problems. If there is no vacancy, it would expand the Court. What would be the limit? If there is more than one vacancy, it would decrease the size of the Court if a president only could appoint one per term.

I wish the Electoral College could be eliminated. No country has anything like that. It is inconsistent with basic notions of democracy to have the loser of the popular vote chosen as president. But such a constitutional amendment seems impossible to pass. Too many states benefit from the Electoral College. At the very least, I hope that "winner take all" be declared unconstitutional. There is such a suit pending in federal court.

freshoutofgravitas1 karma

When and how did the civil law courts become merged with the fiscal law federal courts, and more importantly , why?

erwinchemerinsky10 karma

I am not sure what you mean by "fiscal law federal courts." Article III of the Constitution authorizes Congress to create lower federal courts. Congress did so in the Judiciary Act of 1789. It creates federal district courts that can hear both civil and criminal cases.