Did Chemerinsky Dodge a Bullet?

When I last saw Erwin Chemerinsky I asked him why he wanted to be the dean of a new law school. He was enthusiastic in response, talking about the opportunity to place his stamp on legal education as the founding dean of the UC Irvine Law School. I was skeptical and remain so. Chemerinsky has enormous talent and energy but I sincerely doubt that anyone could change legal education significantly without buy-in from the faculty of an already top law school.

Even solid but middling-ranked law schools can have at best a marginal impact on the course of legal education as a whole because no matter what they do to improve the actual outcomes for their students, they won't attract the very best students---and I doubt that, on average, an excellent innovative education for a mediocre student will produce better lawyers than a pretty good traditional education for excellent students. This explains why Yale Law grads---many of whom learn virtually no law at all while in law school---prove to be excellent lawyers; they have the credentials coming in.

Thus, to have an impact on legal education as a whole (as opposed to in one's own school only), the founding dean of a new school must first create an excellent school, and that's not easy to do. Perhaps a top-flight university without a law school (Princeton is the obvious example) could create a new law school that would instantly be top-ranked. But to create an excellent law school at UC Irvine---or even one that would compete for students with Boalt, UCLA, Hastings, and UC Davis---requires, at a minimum, tons of money. A prospective student faced with a choice between UCLA and UC Irvine will undoubtedly choose UCLA unless lured to Irvine by the promise of reduced tuition, free room and board, etc. Thus to boost the numerical qualifications of students, and thus US News rankings, Irvine would need to "buy" students for a number of years until the trend became self-sustaining.

The same goes for faculty. Top faculty are not going to relocate to an unknown entity without the promise of something. A lot of money might be enough for some, but for others there will be other requirements, including such things as light teaching loads or the promise of the ability to teach courses they've taught in the past. The latter sort of promise would then work against curricular innovation.

I don't know exactly how much money it would take to establish UC Irvine as a top-flight law school, and thus one that could be a leader in legal education more broadly, but I suspect the university doesn't have enough. I also have real doubts about whether the strategy I have outlined would be the best use for a giant barrel of money in the UC system. In any event, we're especially unlikely to see progress on this front with Chemerinsky out of the picture. The adverse publicity from this episode will make it that much harder for UC Irvine to establish itself as a good law school, much less a national leader.