Saturday, September 05, 2009

A Very Special WIP Post

I should note that I have another WIP summary post up on the Chicago Faculty Blog. This one is special: It's on Emily Buss' summer research regarding what child development research should (and shouldn't) tell the law, and was a large part of what I worked on as an RA this summer. Needless to say, it's fascinating and fabulous.

Friday, September 04, 2009

Franken Talks to Constituents



This is why it's good to have Al Franken (D-MN) in the Senate. Put simply, he's a wonk. This was a very wonky answer (series of answers, really). But it was a good one. He was calm, and treated constituents of all views (including the Tea Party woman who asked the first question) with respect -- by which I don't just mean politeness, but as fellow members of the democratic project who could be trusted to have a mature, reasonable discussion on the issue.

This is what democratic participation should be -- not howling about death panels and death books and God knows what else. Treating voters like adults, who understand and respect policy knowledge.

Squeaky Clean

The United Arab Emirates gets in on the expelling Palestinians action, topping Jordan, which merely stripped their citizenship. So they aren't totally similar, but they are in the sense that I imagine few will care.

Thursday, September 03, 2009

Jewish Schmucks Have Rights Too

I once read a story about Germany's remaining Jewish community in, I want to say, the late 1990s. Apparently, for whatever reason what few Jews remained in Germany were highly concentrated in certain ... less savory businesses (alcohol, nightclubs, strip clubs, etc.). A German citizen, while saying that anti-Semitism is always unjustified, asked why they had to go and make it hard on themselves by working in those professions. But of course, the answer is that no group is truly free unless some of its members are allowed to be schmucks.

Eugene Volokh points me to a recent decision handed down in New York, Incantalupo v. Lawrence Union Free School Dist. (E.D.N.Y. Aug. 24, 2009), rejecting an Establishment Clause challenge to actions taken by the local school board, a majority of which was Orthodox Jewish. Apparently, the school district experienced an influx of Orthodox Jews moving in, most of whom didn't send their kids to public schools (instead sending them to private Yeshivas). Not sending their kids to public schools, they did not want to pay the high taxes supporting Lawrence's previously excellent educational programs. So they mobilized to get taxes slashed, and eventually managed to win enough school board seats to cut programs further. The local community members who did have kids in public schools were, understandably, displeased. So they launched a suit alleging that board's action were an Establishment Clause violation because, they claimed, the board's tax cuts and spending slashes were motivated by a desire to transfer resources to the private, parochial Orthodox schools (by freeing up money that was being spent on taxes).

Like Volokh, I think the court was right to throw out the suit. And the judge's somewhat intemperate tone towards the plaintiffs was also warranted, as the lawsuit made a great many assumptions about the Orthodox Jewish community that were false, biased, prejudiced, or worse. As Judge Seybert said, it is not a valid legal argument to assert that Orthodox Jews are effectively "robots" under the control of their Rabbis. The complaint had a strongly conspiratorial tone that the Judge was right to take note of and reject, stridently.

That being said, I find the case interesting, for two reason. First, how it interacts with Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687 (1994), which dealt with (I think) very similar issues and came to an opposite conclusion. And second, I find this case interesting because the Orthodox Jews who were engaging in these political moves were, to not put a fine point on it, acting like dicks.

Let's take them in turn. I've written about Kiryas Joel and what it says about the prospect of Jewish political power at reasonable length, and so this case immediately raised a flag as well. The Incantalupo opinion, in my somewhat quick readthrough, does not mention Kiryas Joel once, which to my mind is an inexcusable omission, either by the judge, her clerks, or (especially) the plaintiff's attorney, who should have thrown it at the judges head. The judge in this case basically called the complaint frivolous -- Kiryas Joel, to my mind, makes this case actually a very close call.

Kiryas Joel, as I read it, stands for the proposition that even the facially secular provision of secular benefits nonetheless can arouse Establishment Clause concerns where they seem too tied to the desires of a sectarian religion community. I think that's an extremely dangerous precedent, which is why I think it is wrong and this decision is right, but lower courts shouldn't get in the habit of calling suits which are clear extensions of Supreme Court decisions nonsense. In Kiryas Joel, the court struck down the establishment of a secular school district to track the borders of a religious community (the village of Kiryas Joel), because it might appear as if the Satmar Hasidic control of the school board would lead to pervasive sectarianism. There is an argument that the behavior at here is in fact worse than what occurred in Kiryas. For the most part, the allegations in Kiryas Joel were speculative -- about what decisions the board might take or the appearance they might have. Here, by contrast, the plaintiffs had very specific and concrete decisions made by the board which, while facially neutral, they alleged were in fact motivated by and had the effect of endorsing religious concerns.

The court's response to this, quite wise I think, was that applying this standard would effectively eviscerate Orthodox Jews' ability to participate in democratic politics. Everybody else can seek lower taxes in their communities because they'd rather spend their money elsewhere (on foreign charity donations, on yachts, on booze), and run for office on that pledge. Only Jews are disabled from this sort of democratic participation (if they want to spend the money on Yeshivas), because that would be an Establishment Clause violation. This would have the effect of constitutionalizing Jewish political impotence, which is pure discrimination. Jews, like everybody else, are allowed to pursue political goals, even if those goals are related to religious interests, so long as the government itself isn't establishing the religion. Lowering taxes doesn't breach that wall (nor, in my opinion, does running a secular school district).

The second point though, is that I think the Jews here were being assholes. I am a strong advocate of public schools. I think supporting the public school system is a social obligation we all share as members of a community, whether we have children in the system or not. I think states and localities have a political and moral obligation to provide children with free and superb public education, and that this obligation trumps the provincial desires of various private interests. Gutting a public school system -- for whatever reason -- is to my mind a grievous ethical sin, the sort that we should speak out against in general, and particularly when it is being orchestrated by a fellow member of my community. As a Jew and as a citizen, then, I find the behavior of the Orthodox Jewish community in Lawrence -- mobilizing to try and destroy the local schools to benefit their own private interests -- despicable.

But Orthodox Jews are hardly the only ones to make selfish choices. There are many school districts, nationwide, where a large and politically mobilized senior community effectively manages to block needed funding and bond issues because, hey, what do they care about schools? And that, to my mind, is democratically irresponsible and immoral behavior. California is effectively barred from raising taxes, period, putting who knows how many social programs in shambles, due to this private "I've got mine" mentality. And that's wrong too.

Jews have the same right to be jerks as seniors or Californian anti-tax zealots. There is no politics of respectability here -- I won't abandon the rights of the Jewish community simply because they're using them in anti-social ways. That's takes away the entire point of having a right.

But they're still jerks. And we should say so.

Domination

A new study indicates that women in supervisory positions are most likely to experience sexual harassment at work. This is counterintuitive to the popular view that sexual harassment is most often perpetuated against women who are in marginal positions, exploited by superiors who can dangle their livelihoods in front of them. Rather, as the study authors indicate:
“This study provides the strongest evidence to date supporting the theory that sexual harassment is less about sexual desire than about control and domination,”said Heather McLaughlin, a sociologist at the University of Minnesota and the study’s primary investigator. “Male co-workers, clients and supervisors seem to be using harassment as an equalizer against women in power.”

Via. Score one for the second-wave.

Wednesday, September 02, 2009

Let That Be a Lesson For You

#45 on the list of things not to do as an evil overlord reads as follows:
I will make sure I have a clear understanding of who is responsible for what in my organization. For example, if my general screws up I will not draw my weapon, point it at him, say "And here is the price for failure," then suddenly turn and kill some random underling.

I kind of got that feeling while reading this article about a Dutch prosecution of a Muslim group for hate speech. The Arab European League had published a cartoon on its website insinuating that the Holocaust was exaggerating. It did this, it claimed, not because it subscribes to Holocaust denial, but in order to draw attention to the dropping of charges against Dutch filmmaker Geert Wilders, whose film they claimed insulted Muhammad (the charges were dropped after authorities decided the film was targeted at Muhammad himself, not Muslims as a group).

There's a solid case to be made against hate speech laws in general because of line drawing problems like this. But as Ronny Naftaniel of the Center for Documentation on Israel, who filed the complaint, pointed out, engaging in counter-hate speech against Jews, even to "make a point", is not justifiable, particularly when Jews had nothing to do with the film you're protesting. Even if you are pissed that Jews seem to be getting protections that you're not (and don't we all love the crabs-in-a-bucket mentality that evinces), there is something deeply immoral about claiming that person A wronged me, so I'm going to abuse innocent group B over there in order to draw attention to the injustice of it all.

This is what happens when you're cast as history's scapegoats. Every situation, every context, every gripe, every misfortune -- the first thought of some people is to take a whack at the Jews. Forget the cartoon -- that's the real insult to Jews as a group.

Epitaph One

Great episode, but I couldn't sleep afterwards, so Jill and I had to put in an episode of Futurama (I have a phobia of being around at the end of the world). Amy Acker is such a great actress, and utterly rocks her part. Meanwhile, this show took a marked turn towards the dystopian. We'll see how it plays out in season two.

Monday, August 31, 2009

Cherry Poppin' Limes

These candy wrappers are nothing short of amazing.

Cite-checking Quote of the Day

The only good thing about looking for a pincite in a 78 page article is that sometimes you come across fun passages:
The nondelegation doctrine, however, is the Energizer Bunny of constitutional law: No matter how many times it gets broken, beaten, or buried, it just keeps on going and going....the combined vote in the Supreme Court on nondelegation issues from Mistretta through American Trucking was 53-0.

[Yet] Modern scholars have been no more willing than have litigants or lower court judges to give up on the nondelegation doctrine....the Court's decision in Loving v. United States, which unanimously rejected a nondelegation challenge in the context of the death penalty, spawned an entire academic conference on the nondelegation doctrine with the imposing title, "The Phoenix Rises Again."

And the footnote to that last sentence is where it gets really fun:
The published proceedings of the conference can be found at Symposium, The Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Policy Perspectives, 20 Cardozo L. Rev. 731 (1999). I do not want to be misunderstood as in any way criticizing this outstanding conference. The conference brought together a truly amazing collection of talent, and the published works amply justify the enterprise. My point is only that it is difficult to read the Court's remarks in Loving as signaling the rebirth of the nondelegation doctrine. The most that one can say is that Loving did not casually dismiss the plaintiff's nondelegation argument as a near-sanctionable waste of time. That is a thin reed on which to balance one's hopes for the rise of the phoenix.

Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 330-32 & n. 22 (2002).

Rumor: Sweden Will Condemn Blood Libel Article?

Ha'aretz reports that Sweden is preparing to present a resolution condemning anti-Semitism to the EU, which will include a specific denunciation of an article published in Aftonbladet claiming -- with virtually no evidence -- that Israelis kill Palestinians and harvest their organs. The article, however, is second-hand -- it's quoting an Italian official who apparently has been working with Sweden to resolve the crisis, but there isn't any official word out of the latter country.

Israeli officials respond:
"Every initiative against anti-Semitism is welcome," said Yigal Palmor, that ministry's spokesman. "But if the declaration is general and does not specifically relate to the article in Aftonbladet, it will not resolve anything.

"We did not ask for an apology, or for measures against the newspaper or the journalist," he added. "All we asked of Sweden and the Swedes is that they reject and decry the content of the report. And our position has not changed."

We'll see if this controversy can finally be put to rest.

UPDATE: Well, damn.

Sunday, August 30, 2009

Abort/Retry/Fail Roundup

I didn't blog much over OCI. But now OCI's over, and I can roundup some of the the accumulated stuff on my browser! The real question, though, is whether law review have the same effect on me. Stay tuned!

* * *

The National Review thinks its segregationist predecessors had a point.

Depression makes you smarter. Anecdotally, I'm not surprised, but it still seems weird.

Iraq has an air force! Unfortunately, it's being stored in Serbia. If those MiG's have nuke payloads, that'll be two mysteries solved!

Will Wilkinson talks sense about masculinity.

A question as dumb as "Does God tweet" deserves an answer like this.

Ha'aretz thinks the new Japanese government might be more hostile to Israel than its predecessors (as part of a broader program of asserting independence from the US).

Hamas is furious that the UNRWA might teach Gaza kids about the Holocaust (which it says is a "lie"). The UNRWA isn't commenting on the "allegations" (in a world that was serious about treating Jews as equals, it would tell Hamas to suck it up and deal, but that won't ever, ever happen).

The "Yoo effect" strikes again!

Generally, it's considered a good thing when people are deterred from breaking the law. Generally.

And finally, a very sad note from a nostalgia perspective: Reading Rainbow is going off the air. The Education Department apparently thought it focused too much on making kids want to read, as opposed to phonics or something. I'll tell you what: there are plenty of folks my generation who have fond memories of Reading Rainbow. I've yet to meet anybody who looks back wistfully at Hooked on Phonics.

Here's a Lesson For You

It is difficult to find more offensive tropes packed into one statement than was accomplished by Desmond Tutu. First, he lectures Jews on what the Holocaust means:
“The lesson that Israel must learn from the Holocaust is that it can never get security through fences, walls and guns,” Archbishop Emeritus Desmond Tutu of South Africa told Haaretz Thursday.

No, Mr. Archbishop, that is not the lesson of the Holocaust. Indeed, that is a lesson that could be drawn only by someone who either knows nothing about the Holocaust, or someone who is perfectly willing to contort it into a political cudgel at the expense of the actual lived experience of the Jews who were victimized by it. The Jews who perished in the Holocaust did not do so in spite of their many fences, walls, and guns. They were slaughtered, at least in part, because they lacked these things. There are other historical events which demonstrate that guns alone do not guarantee security. But the lesson of the Holocaust, for Jews at least, is that depending on the goodwill and magnanimity of the Gentile world alone will never give Jews security either.

Human rights are essential to security, I agree, and there will never be security in the Middle East as long as the human rights of any party is threatened. But human rights need to be defended -- so security is likewise essential to human rights. Jews simply aren't and never have been in a position where they can afford to stake their security on abstract appeals to human rights. To be perfectly blunt, the lesson of the Holocaust is that this discussion will only be viable when Jews have some big fucking tanks backing them up.

His next statement is also Holocaust related, lamenting that the Palestinians are the ones now paying the price for a European sin. Not only is the implied equivalency ("Germany is guilty of two wrongs. One was what they did to the Jews. And now the suffering of the Palestinians.") appalling, but it also ignores the fact that the entire world, including Palestinians, were complicit in this massive crime against humanity -- and many non-Europeans, including Palestinians, actively helped enable it. I bow to nobody in demanding that Europe face up to its anti-Semitic legacy. But I absolutely refuse to let revisionists try and minimize the scope and gravity of the Holocaust by pretending like it was a provincial European affair. It is a sin that stained us all.

After that, Tutu makes the cliched complaint about how the big bad Jews are silencing him, then pivots to the classic "I'm a better Jew than the Jews are" claim:
He also slammed Jewish organizations in the United States, saying they intimidate anyone who criticizes the occupation and rush to accuse these critics of anti-Semitism. Tutu recalled how such organizations pressured U.S. universities to cancel his appearances on their campuses.

“That is unfortunate, because my own positions are actually derived from the Torah. You know God created you in God’s image. And we have a God who is always biased in favor of the oppressed.”

Now, regardless of how we should react to it (e.g., irrespective of whether we should press to cancel Tutu's speeches), I think it is beyond clear that Archbishop Tutu does not hold egalitarian views towards Jews. That isn't to say that he consciously harbors hate in his heart for them. It does mean that he is completely blind to the notion of gentile privilege, is completely disinterested in viewing things from a Jewish perspective or taking our voice and experience seriously as something as valuable, and views it as an affront if anyone calls him on it or attempts to inform him that his views are not unimpeachable on the subject. This, of course, is an extremely common conceit and perhaps the heart of gentile privilege as it is now expressed -- an insistence that I am fair to the Jews, coupled with an absolute refusal to listen when Jews say that might not be true and a shrill insistence that any Jew who has the temerity to make the claim is the real bad guy in the equation. In other words, talking about anti-Semitism in the same sentence as Archbishop Tutu is perfectly justified. And what Tutu is depending on to deflect that accusation -- the knowledge that the "anti-Semitism card card" is a perfect trump in a world that fundamentally views Jewish claims with disdain -- is itself a manifestation of the disease.

Moving forward, Tutu expresses sympathy with the BDS campaign. I've already explained why this is likely to make the situation worse. I'll only note here that Tutu's expressive justification for sanctions ("[I]t gave hope to our people that the world cared. You know. That this was a form of identification.") puts at a strong risk of devolving into moral hatred -- something we're beginning to see already.

And finally, Tutu is asked about the Petah Tikva controversy, where several private Orthodox academies have refused to enroll Ethiopian children. Tutu merely said "I hope that your society will evolve." Justified words, if there was any indication that this was reflective of Israeli society writ large. But the contrary: while the behavior of these schools is flagrantly and unambiguously racist, the response of the Israeli government has been equally unambiguous condemnation: stripping the schools of all their funding and (per Prime Minister Netanyahu) decrying their behavior as "an attack on our morals, contradicting our ethos as a country, as a society, as Jews and as Israelis."

And So It Begins

Scene from last nights law review orientation dinner.

Characters:
Editor
Book Review Editor
Myself


Editor: You're David Schraub right? You did some work for me earlier this summer!

Me: That's right -- for Strauss' online piece. But now I'm cite checking the book review from hell.

Editor: Haha ... book reviews aren't that bad. Trust me, it gets a lot worse.

Me: Really?

Editor: Yeah. Book reviews are generally pretty short compared to articles, and...

Me: [interrupting] Mine's 66 pages and 450 footnotes.

Editor: [pause] What the hell kind of book review is that?

Book Review Editor: This was not my decision!

Exeunt