"As oft as reason is against a man, so oft will a man be against reason."
-- Thomas Hobbes, The Elements of Law Natural and Politic (J.C.A. Gaskin, ed., Oxford: Oxford UP 1994) (1650), p. 19.
I need to keep writing on motivated cognition so i can use this as an opening epigraph.
Saturday, October 03, 2015
Kuwait Airways' Refusal To Board Israeli Passenger Violates Anti-Discrimination Law
In an administrative decision, the Department of Transportation has decided that Kuwait Airways violated federal anti-discrimination laws when it refused to board an Israeli passenger traveling from New York to London. The airline was following policy set in accordance with the Arab League's boycott of Israel, which in Kuwait prohibits doing business with an Israeli national. The punishment for violating this law can include hard labor as well as a fine.
This strikes me as an important ruling (and the letter is well-reasoned). Airlines have a "common carrier" duty which generally obliges them to serve all comers, absent good reason for a refusal (I should note that this narrows the decision considerably, since most private entities are not common carriers and thus the presumption is not that they have to do business with any and all comers absent justification to the contrary). The Department, quite properly in my view, did not consider the airline's desire to adhere to Kuwaiti law as a valid ground for the discrimination because the law itself was "part of a discriminatory statutory scheme." It would defeat the purpose of the general aviation non-discrimination requirement if it could be circumvented by a foreign nation simply making the discrimination mandatory. This alone would probably have sufficed for to justify the DOT decision, but it also notes that this Kuwaiti law in particular -- part of its boycott of Israel -- is specifically contrary to U.S. policy, with several statutes and regulations passed which prohibit giving succor to the boycott in the American context.
Though it does not say directly what type of "discrimination" occurred (the relevant statute, 49 U.S.C. § 41310, prohibits "unreasonable discrimination" generally rather than breaking out specific protected categories), the letter strongly implies that refusal to serve an Israeli-qua-Israeli should be understood as a form of national origin discrimination (the Court explicitly analogized it to racial discrimination, long since outlawed on American carriers). That strikes me as obviously right (as I observed when the case was filed), and we're starting to see boycott moves analyzed under this framework.
While I am generally a fan of this move, I don't want to pretend it provides a clear answer to every case. After all, not every hostile action directed at an Israeli entity could properly be viewed as national origin discrimination anymore than someone boycotting (say) McDonalds for its labor practices could be said to be discriminating against "Americans". Moving forward, I suspect two factors will become essential to judicial analysis appraising the legitimacy of boycott efforts, with a third wild card. The first is their breadth. The Kuwait Airways case is an easy one because it banned Israelis tout court -- even if we can infer that Kuwait's reason for enacting its policy was in some way targeted at the Israeli state (for its policies? For existing? No matter.), by instantiating those objections in such an indiscriminate manner to target every single Israeli national it crosses over from targeted critique to unlawful bias. The second factor, which will be much more difficult to figure out in practice, goes to motive. Motive is the heart of contemporary discrimination analysis, and so in this context the question would be "are you boycotting X actor because it is Israeli, or for some other reason [e.g., because it allegedly violates human rights]." Many Jews suspect that the boycott movement really is motivated by anti-Israel (or often anti-Semitic) beliefs rather than a genuine and universal commitment to the supposed human rights practices publicly given as a justification. Hence, for example, the popularity of the "why don't you boycott so-and-so" response, where so-and-so is an entity in a different company that seems to be implicated in a similar network of abuses. This sort of "comparator" analysis is a valid way of establishing discriminatory motive, but in general motive is going to be difficult to prove. Were I to advise would-be boycotters (and that's a weird thing for me to write), I would suggest that (a) the boycotts must be narrowly tailored to particular alleged abusers, rather than sweeping up Israelis generally (so a campaign against Ahava is more likely to succeed than a general boycott of Israeli academics), and (b) to ensure that one does not only boycott Israeli entities but also maintains a diverse portfolio of boycotts so as to demonstrate that Israeli nationality is not the driving force behind the move.
The wild card is the applicability of America's anti-boycott statutes, which seek to prohibit American entities (including American offices of foreign actors) from boycotting certain foreign nationals at the behest of a boycotting state. This law was specifically passed in response to the Arab League boycott of Israel, although it has been enforced only sporadically. To the extent it is held to apply to the BDS movement generally (which presumably goes to the degree to which the movement is considered to be acting at the behest of a foreign state), all bets are off.
This strikes me as an important ruling (and the letter is well-reasoned). Airlines have a "common carrier" duty which generally obliges them to serve all comers, absent good reason for a refusal (I should note that this narrows the decision considerably, since most private entities are not common carriers and thus the presumption is not that they have to do business with any and all comers absent justification to the contrary). The Department, quite properly in my view, did not consider the airline's desire to adhere to Kuwaiti law as a valid ground for the discrimination because the law itself was "part of a discriminatory statutory scheme." It would defeat the purpose of the general aviation non-discrimination requirement if it could be circumvented by a foreign nation simply making the discrimination mandatory. This alone would probably have sufficed for to justify the DOT decision, but it also notes that this Kuwaiti law in particular -- part of its boycott of Israel -- is specifically contrary to U.S. policy, with several statutes and regulations passed which prohibit giving succor to the boycott in the American context.
Though it does not say directly what type of "discrimination" occurred (the relevant statute, 49 U.S.C. § 41310, prohibits "unreasonable discrimination" generally rather than breaking out specific protected categories), the letter strongly implies that refusal to serve an Israeli-qua-Israeli should be understood as a form of national origin discrimination (the Court explicitly analogized it to racial discrimination, long since outlawed on American carriers). That strikes me as obviously right (as I observed when the case was filed), and we're starting to see boycott moves analyzed under this framework.
While I am generally a fan of this move, I don't want to pretend it provides a clear answer to every case. After all, not every hostile action directed at an Israeli entity could properly be viewed as national origin discrimination anymore than someone boycotting (say) McDonalds for its labor practices could be said to be discriminating against "Americans". Moving forward, I suspect two factors will become essential to judicial analysis appraising the legitimacy of boycott efforts, with a third wild card. The first is their breadth. The Kuwait Airways case is an easy one because it banned Israelis tout court -- even if we can infer that Kuwait's reason for enacting its policy was in some way targeted at the Israeli state (for its policies? For existing? No matter.), by instantiating those objections in such an indiscriminate manner to target every single Israeli national it crosses over from targeted critique to unlawful bias. The second factor, which will be much more difficult to figure out in practice, goes to motive. Motive is the heart of contemporary discrimination analysis, and so in this context the question would be "are you boycotting X actor because it is Israeli, or for some other reason [e.g., because it allegedly violates human rights]." Many Jews suspect that the boycott movement really is motivated by anti-Israel (or often anti-Semitic) beliefs rather than a genuine and universal commitment to the supposed human rights practices publicly given as a justification. Hence, for example, the popularity of the "why don't you boycott so-and-so" response, where so-and-so is an entity in a different company that seems to be implicated in a similar network of abuses. This sort of "comparator" analysis is a valid way of establishing discriminatory motive, but in general motive is going to be difficult to prove. Were I to advise would-be boycotters (and that's a weird thing for me to write), I would suggest that (a) the boycotts must be narrowly tailored to particular alleged abusers, rather than sweeping up Israelis generally (so a campaign against Ahava is more likely to succeed than a general boycott of Israeli academics), and (b) to ensure that one does not only boycott Israeli entities but also maintains a diverse portfolio of boycotts so as to demonstrate that Israeli nationality is not the driving force behind the move.
The wild card is the applicability of America's anti-boycott statutes, which seek to prohibit American entities (including American offices of foreign actors) from boycotting certain foreign nationals at the behest of a boycotting state. This law was specifically passed in response to the Arab League boycott of Israel, although it has been enforced only sporadically. To the extent it is held to apply to the BDS movement generally (which presumably goes to the degree to which the movement is considered to be acting at the behest of a foreign state), all bets are off.
Thursday, October 01, 2015
Learning What Should Be Quiet and What Should Be Loud
House Republicans are not pleased with their Speaker-apparent, Rep. Kevin McCarthy (CA), who went on Hannity the other day and bragged about how the Benghazi investigation had "succeeded" by tarnishing the reputation of Democratic front-runner Hillary Clinton. Since, for obvious reasons, Republicans do not like publicly admitting the partisan nature of the record-setting Benghazi investigation, this was a major faux-pas. Which raises the question: How could an experienced operator like Rep. McCarthy make such an obvious blunder?
Some folks are chalking it up to inexperience at being under the microscope of the Speakership (or near-Speakership). But I doubt that -- while it is true that the scrutiny level has been turned up, McCarthy is not some obscure back-bencher unused to political realities. Rather, I think this was a failed attempt to positively signal the Tea Party sorts who were Boehner's bane. McCarthy, like Boehner, is more of an establishment sort of GOPer, and he's had a front row seat as the hard right savaged his boss straight into an early retirement. And what does the Tea Party like to do? It likes to attack! It doesn't cower before the lamestream media or pretend that politics is beanbag or seek to reason with the current socialist regime. They hated Boehner because they saw him as seeking to appease the Democrats rather than fight for conservative values. And so note how McCarthy's statement about Hillary's Benghazi-inspired poll drop concludes: "No one would have known any of that had happened had we not fought."
Poor McCarthy. He thought he was saying something the right had yearned to hear out loud for once, but it turned out that even the Tea Party knows to keep overt partisan political investigations on the quiet side of the ledger. Well, this is a learning process for all of us.
Some folks are chalking it up to inexperience at being under the microscope of the Speakership (or near-Speakership). But I doubt that -- while it is true that the scrutiny level has been turned up, McCarthy is not some obscure back-bencher unused to political realities. Rather, I think this was a failed attempt to positively signal the Tea Party sorts who were Boehner's bane. McCarthy, like Boehner, is more of an establishment sort of GOPer, and he's had a front row seat as the hard right savaged his boss straight into an early retirement. And what does the Tea Party like to do? It likes to attack! It doesn't cower before the lamestream media or pretend that politics is beanbag or seek to reason with the current socialist regime. They hated Boehner because they saw him as seeking to appease the Democrats rather than fight for conservative values. And so note how McCarthy's statement about Hillary's Benghazi-inspired poll drop concludes: "No one would have known any of that had happened had we not fought."
Poor McCarthy. He thought he was saying something the right had yearned to hear out loud for once, but it turned out that even the Tea Party knows to keep overt partisan political investigations on the quiet side of the ledger. Well, this is a learning process for all of us.
Sunday, September 27, 2015
Quote of the Day: Adorno on the Limits of "We're All Just People"
Today's quote comes from Theodor Adorno's Minima Moralia:
I should say that this quote applies, I think, with equal force in the race context. We can assert until we're blue in the face the biological truth that "race is a construct". That notwithstanding, the racists are fully aware whom they do and do not intend to oppress.
The familiar argument of tolerance, that all people and all races are equal, is a boomerang.... [P]roofs that the Jews are not a race will . . . scarcely alter the fact that totalitarians know full well whom they do and whom they do not intend to murder. (102)Adorno has recently been rising up my list of "theorists whose work I am relatively unfamiliar with, but know I should become more familiar with."
I should say that this quote applies, I think, with equal force in the race context. We can assert until we're blue in the face the biological truth that "race is a construct". That notwithstanding, the racists are fully aware whom they do and do not intend to oppress.
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