When Berkeley Law doesn’t understand law

Rather than discuss the recent Berkeley Law School controversy, which concerns a student protest at a dinner party hosted by the school dean, I’d like to generalize the issue at its institutional level, and ask whether it was even appropriate to have these students at the dean’s residence.  It raises a number of intriguing legal problems, including how Berkeley does not appear to understand key aspects of corporate law and confuses public and private claims.

If the students were invited to the dean’s residence, was this in his capacity as an employee of a publicly funded institution, or in his capacity as a private citizen?  Is the dean able to exchange one identity for another if the event is explicitly within official university business?  He invited Berkeley students.  Can he shed his public self in order to assert a private self in this context?

He was acting as a public university employee, and as an officer of a U.C. Berkeley corporation, which is a tax-exempt institution.  Is his residence a territoriality by his university agency, or was he falsely asserting a private territoriality to create a property claim against constitutional First Amendment law?

Moreover, who paid for this dinner?  Did the dean pay privately, from his public, taxpayer wages, or did he expense the cost back to the university?  In both cases, an implied property rental was created, which changes private property claims.

In addition, was this actually his property, in his name, or in a related entity or trust, or does the University of California provide this residence for him, as part of his employment contract?  Does he have an employment contract?  If so, how does it control for the extension of corporate business — and this was university business — onto any non-campus location?  He was still the “dean” and acting explicitly as the dean, which means all the duties and responsibilities of his office remained intact.

Moreover, what liabilities are assumed by the dean, or his employer, for a number of student risks such as accidents, and is the dean indemnified from these risks by inviting matriculated public students onto this property?  Is the property insured for all such risks as the university may be?  And what happens to the dean’s agency role by bringing students to this location?  To whom is he liable and responsible?  Whom is he representing — himself, the university, the faculty academy, the ABA, or all four? 

But most of all, why would a law school dean invite law school students to his residence?  Is this even appropriate behavior in the context of maintaining an arms-length relationship with a regulated industry training environment, that issues a regulated degree and prepares for state Bar exams?  Or is Mr. Chemerinsky just motivated enough to relax objectivity, institutional neutrality, the ABA Model Rules of Professional Conduct, and the American Association of Law School rules (the AALS, which interestingly, Chemerinsky chairs, in conflict of interest), in order to create even the semblance of a quid pro quo?  Was an implied ideological contract with the students created by this dinner favor, and with undue influence?

In politics, you never take government employees to dinner (or at least not where you can be seen), and you can’t provide certain gifts to them, like private jet flights or the use of your property like a second home, unless the congressman, for example, pays a formulae-based compensation, which is highly circumscribed.  Otherwise, it’s bribery.  Was the dean, and was U.C. Berkeley through him as its agent, seeking, even implicitly, to bribe the law students by creating the pretext for reciprocity?  What kind of reciprocity?

The Berkeley Law dean is known as a radical leftist — his op-eds filled the pages of the New York Times during the 2020 election cycle, where he used his public dean’s office as a private public relations and election center for the DNC.  He seemed to operate on behalf of private DNC donors, where his dean’s office was thought authoritative in its voicing of legal opinion concerning voting procedures.  This included all the fraudulent  COVID voting workarounds, which he explicitly championed.

So is this student dinner just another form of political public relations, to “soften” the students into accepting the dean’s ideological authority, and his radical jurisprudence?  If that is the case, what does this do to Berkeley’s tax-exempt status (the restriction of political campaign intervention by Section 501(c)(3) tax-exempt organizations), and what does it do to its ABA authority as a licensed law school? 

And what about RICO?  What sources of influence, including funding and donations that impact Berkeley—millions of dollars from hostile nations including China—could someone assert was finding an instrument through the law dean?

In the end, did the dean use his asserted stance as a property owner, in property and trespass law, to quash a First Amendment right in constitutional law that could not have been so challenged in an overt public format like the public campus?

Would it otherwise have been a more mature posture simply to have let the young student speak uninterrupted for a while (the “Chicago Principles” of free speech?) and then ask if anyone else would care to speak or object?  Would the dean’s awkward intemperance be something one would expect if this were on campus in a classroom?

The modern law school still trades on political “causes” because it has to compete for utility and purpose in order to attract students.  So, indeed, the dean reaped what he sowed.  But if he were more poised, he might have turned this disruption into a an extended law class, and with the kind of calm self-control, confidence, and maturity expected of a professional lawyer.  Instead, the students were presented with a live case of confused corporate character, mismanaged legal standards, and poor professional role-modeling.

Matthew G. Andersson is the author of the upcoming book Legally Blind concerning law education.  A corporation founder and former CEO, he has been featured in the Wall Street Journal, the Financial Times, the New York Times, the Washington Post, Time Magazine, the National Academy of Sciences, and the 2001 Pulitzer Prize report by the Chicago Tribune.  He received the Silver Anvil Award from the Public Relations Society of America and has testified before the U.S. Senate.  He attended the University of Chicago; Yale University; and the University of Texas at Austin, where he studied with White House national security adviser W.W. Rostow at the LBJ School of Public Affairs.

Image via Picryl.