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Chemerinsky & co.: time to apologize to Judge Jacobs

Dean Erwin Chemerinsky of the newly founded UC Irvine school of (ideologically charged) law seems to fancy himself the conscience of legal academia. But it's looking very much as if he -- along with some bloggers and legal publications who should know better -- owe an abject apology to Chief Judge Dennis Jacobs of the Second Circuit U.S. Court of Appeals.

The affair began when the New York Daily Record, a Rochester, N.Y. legal publication, reported on a speech Judge Jacobs gave to a Federalist Society gathering in that upstate city. As soon summarized on several blogs and publications, Judge Jacobs supposedly dismissed pro bono work by lawyers -- all of it, in its enormous variety from high to low, humble to headline-driving, plain-vanilla to goofily cutting-edge -- as at least "primarily", if not entirely, driven by "anti-social" and self-seeking impulses. As criticism mushroomed, it was pointed out that Judge Jacobs had himself been quite involved with efforts to promote pro bono work among lawyers. Rather than cause the writers to question whether the Rochester report accurately summarized Jacobs' views, this circumstance was seized on as evidence that the judge was being hypocritical, or inconsistent, or something else bad.

Like, I suspect, a great many other readers, I knew from the very first reports that there was something very "off" about the story as it was being retailed. It wouldn't surprise me to hear someone in Judge Jacobs' position call some pro bono efforts by lawyers socially destructive, self-indulgent or ideologically charged -- indeed, most of us with eyes to see would agree with this humdrum observation. At the same time, I've never met a critic of pro bono excesses who spoke as if most pro bono work (which mainly consists of the handling of fairly routine legal matters for poorer persons) were anything to be deplored. In short, I clicked past the story figuring that a correction would soon be forthcoming, and more than a little surprised that those spreading it didn't seem to regard the reporting as suspect.

But it was the reaction of Erwin Chemerinsky that will long be remembered. Without, it seems, waiting for any further clarification from Judge Jacobs of exactly what he had or hadn't said, Chemerinsky mounted the highest horse available and rushed into the pages of the National Law Journal with a piece unsubtly titled "Shame on Dennis Jacobs". Jacobs "should be ashamed of himself," the speech was "a slap in the face", "I hope that he is widely denounced for his misguided views", and so forth. All of which happened to rest, readers may have noticed, on a wobbly little phrase in Chemerinsky's second sentence, namely "it was reported that".

Can you hear the "oops" coming?

When the WSJ law blog turned to the story yesterday, it too at first seemed to take it at face value. But later in the day, it added the following:

UPDATE: Through a spokesman, Judge Jacobs conveyed the following message to the Law Blog: "Dean Chemerinsky's article was evidently based on a newspaper article of my talk that grossly misstates what I said and think. Neither the National Law Journal nor Dean Chemerinsky have contacted me. I support, endorse and solicit pro bono work, and my talk said just that. The talk identifies abuses."

As was perfectly clear to many of us all along.

We're long overdue for a debate over the extraordinary things that some lawyers have managed to get away with in litigation labeled pro bono. When we have that debate, it won't constitute an "attack on pro bono", any more than criticism of misbehaving charities constitutes an attack on charity, or criticism of the giving of money to harebrained causes constitutes an attack on philanthropy, or criticism of the doings of overly politicized churches constitutes an attack on religion. That someone in Chemerinsky's position would pre-emptively react with personal attacks on a judge who has kicked off such a debate suggests he knows that the advocates of politicized pro bono will have much to be defensive about.

P.S.: Welcome Glenn Reynolds, Ron Coleman, and John Steele/Legal Ethics Forum readers. And as Prof. Obbie at Syracuse points out, the story is likely to unfold further; the Daily Record hasn't yet responded to the judge's criticism, and other attendees at the event might be heard from as well (aside from the possibility that a prepared or recorded copy of the judge's remarks will turn up).

Further P.S.: The national Federalist Society has now posted a text of Jacobs' speech here, which confirms the misreporting conjecture. Much more here.

Update Friday 1:45 p.m. EDT: Incredibly, in correspondence with the WSJ law blog, Chemerinsky is digging in. He claims that on reading the speech itself he finds the Rochester paper's account accurate enough, goes on to extensively misdescribe the contents of Jacobs' speech (easy to check here), and refuses to apologize. As I say, incredible.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.