Many of you know the term "Livingstone Formulation". It refers to a manner of responding to an allegation of antisemitism by saying something like "For far too long the accusation of antisemitism has been used against anyone who is critical of the policies of the Israeli government, as I have been." Those were London Mayor Ken Livingstone's exact words, but the formulation applies to any such dismissal of antisemitism claim by contending that it is a slur directed against those "critical of Israel".
What many people don't realize is that the Livingstone Formulation can and is used against claims of antisemitism unrelated to Israel at all. Indeed, the original Livingstone Formulation came in just such a case -- Livingstone was accused of calling a Jewish reporter a "Nazi" during an altercation after a party (it had nothing to do with Israel), the reporter took offense, the mayor doubled-down. And yet even here, in this wholly non-Israel-related case, Livingstone said "I'm just being hounded for criticizing Israel."
Call this "the Full Livingstone". If the Livingstone Formulation is a contention that a claim of antisemitism is actually a means of suppressing criticism of Israel, the full Livingstone is the contention that a claim of antisemitism that isn't about Israel is still nonetheless a means of suppressing criticism of Israel.
Alice Walker, for example, just pulled a Full Livingstone. Saying the Talmud teaches the Jews to enslave the goyim (or that Jews are a major part of a lizard-people conspiracy of alien domination) is antisemitic for reasons wholly unrelated to one's views on Israel. And yet, Walker nonetheless contends, she is being targeted for censure because she "criticizes Israel". It's a Full Livingstone!
Saturday, December 22, 2018
Thursday, December 20, 2018
Almost Floridian Roundup
On Saturday, Jill and I depart for our annual holiday trip to Florida (her family winters in the panhandle, and mine has begun the traditional Jewish relocation to Boca Raton). We'll be there for about a week before heading up to Boston for New Year's.
* * *
Given the ongoing tensions between "Bernie Bros" and racial minorities, this article on the DSA's race problems is wholly unsurprising (I know some East Bay DSA folk, and they -- the organization, not the folks I know -- have a gender problem too).
Netanyahu is frantically trying to stop Trump from releasing his Mideast Peace plan (which sounds like it is basically ... the Clinton peace plan), worrying it will make him vulnerable to a right-wing challenge. This is torture for me, because normally a Bibi-Trump fight is a "root for injuries" situation, but here I actually have to be constructive and want whatever makes a just peace agreement most viable (and I honestly don't know if "releasing it now" or "later" is more likely).
I had been meaning to link to this outstanding meditation by Erika Dreifus on being a Jewish-American writer in 2018, and just never found the right moment. Well, no moment like the present.
This is an okay -- not great, not terrible -- article on how toxic masculinity intersects with Zionism. I think I did a better version, though.
Albania expels Iranian diplomat after alleged plot to attack an Israeli soccer match.
When I read that the Women's March was consulting with "Jewish groups" on the question of antisemitism, I just assumed it would be JVP-style groups. But I was wrong, and I'll give due credit: the NCJW, Bend the Arc, and JFREJ represent a fair spectrum of progressive Jewish organizations to give perspective on these matters.
* * *
Given the ongoing tensions between "Bernie Bros" and racial minorities, this article on the DSA's race problems is wholly unsurprising (I know some East Bay DSA folk, and they -- the organization, not the folks I know -- have a gender problem too).
Netanyahu is frantically trying to stop Trump from releasing his Mideast Peace plan (which sounds like it is basically ... the Clinton peace plan), worrying it will make him vulnerable to a right-wing challenge. This is torture for me, because normally a Bibi-Trump fight is a "root for injuries" situation, but here I actually have to be constructive and want whatever makes a just peace agreement most viable (and I honestly don't know if "releasing it now" or "later" is more likely).
I had been meaning to link to this outstanding meditation by Erika Dreifus on being a Jewish-American writer in 2018, and just never found the right moment. Well, no moment like the present.
This is an okay -- not great, not terrible -- article on how toxic masculinity intersects with Zionism. I think I did a better version, though.
Albania expels Iranian diplomat after alleged plot to attack an Israeli soccer match.
When I read that the Women's March was consulting with "Jewish groups" on the question of antisemitism, I just assumed it would be JVP-style groups. But I was wrong, and I'll give due credit: the NCJW, Bend the Arc, and JFREJ represent a fair spectrum of progressive Jewish organizations to give perspective on these matters.
What Eight Great Teachers Taught Me About Teaching
Last night, I was reflecting on how lucky I was to have had so many great teachers in my life. From pre-K to post-12, I've been blessed to have had an overwhelmingly positive educational experience. My time as an official student isn't quite over yet, but it is winding down, and soon I will be a full-fledged member of the teacher's side of the podium. So I thought I'd share some of what I've learned about teaching from my very best teachers.
* * *
Ms. Curry: Elementary school is a pretty fuzzy memory at this stage, but I remember adoring my First Grade teacher Ms. Curry. She saw the very earliest flickerings of my political self when I did a report on Jackie Robinson, and mostly managed to keep a straight face when I sternly informed the class that "nobody should be aggravated on a bus!"
From Ms. Curry, I learned that both teaching and learning can be joyous, and that joy can be both very deliberate and very unintentional.
Ms. Skelton: By any objective measure, I was a good and well-behaved student in high school. Always got good grades, never once got a detention, never got called into the principal's office. Subjectively, and on reflection ... I was probably a handful to deal with for a lot of teachers. I had a contrarian streak a mile wide, and I had opinions about pedagogy -- to wit, if I didn't understand why something was useful to learn, I didn't want to learn it. And no class was the subject of this wrath more than English.
I believed then -- and to some extent believe now, though slightly less dogmatically -- that the only purpose of writing was to clearly communicate and persuasively justify ideas. Faced with English classes where we read a ton of literature that, to me, seemed like exercises in willful obtuseness justified because it uses "metaphor" or "connotative language", and I was effectively in open rebellion. In my first essay for Ms. Skelton in 11th grade, I wrote an extended diatribe about why most of the focus of the class -- "analyzing" the use of language rather than evaluating the content of the work -- was useless and pointless. I don't have a copy of it anymore, but with the benefit of hindsight I'm absolutely sure it was self-righteous and obnoxious (really, how could it not be?).
I'd written essays like this before -- and since I was a good writer, in spite of it all, I usually got a good grade with perfunctory comments. But Ms. Skelton did something none of my other teachers had ever done before:
She responded. She wrote extended comments on the paper, taking my position seriously and making her case for why I should, indeed, care about this material.
She didn't persuade me. But she did earn my undying loyalty that day. From Ms. Skelton, I learned that if you take your students seriously, and treat their contributions as worthy of respect, they'll be willing to explore nearly any horizon you place in front of them.
Kim Smith: There were three types of political science classes I took at Carleton. There were required courses. There were courses I took with visiting faculty. And there were courses I took with Kim Smith. This wasn't exactly intentional -- it's just that Kim Smith happened to teach pretty much every interesting class I wanted to take in the entire department. Constitutional Law and African-American Political Thought! Impossible combination to beat! I took four classes from her -- tied for the most of any Carleton professor.
I did well in her classes, but Kim was notoriously unsparing in her comments on essays submitted to her class. I have distinct memories of entire paragraphs circle or crossed out with "oh please" or "that's lame" written next to it. Some people were terrified of her, but I thought it was fabulous. And there's no doubt she made my writing better. And of all my college professors, she's the one with whom I have the closest friendship with to this day.
Kim once told me her teaching philosophy was "it's better to be feared than loved". That doesn't give her enough credit though; I would say that from her I learned instead that if you play your cards right, you don't actually need to choose.
Louis Newman: Louis Newman was one of the very first people I met at Carleton. Somehow, my dad found out about him -- in retrospect, that he found the head of Judaic Studies at Carleton is probably not coincidental -- and we were introduced before I even attended my first class. He actually persuaded me to drop my freshman seminar and instead enroll in his upper level Jewish Ethics class. Again, that actually might not have been the best advice in the abstract, but in my case it worked out great. He's the other professor I took four classes from; if Carleton had a Judaic Studies concentration, I would have done it.
Louis was distinctive in the degree to which he cared about his students as human beings, not just as students. He was a warm and paternal, but never paternalistic figure. From him I learned that the best teachers care about the whole student, not just their submitted work.
Melvin Rogers: Melvin is my great "I knew him when" story -- I knew Melvin Rogers when he was a post-doc at Carleton, just starting out his career. Even then, everyone knew he was brilliant, and everyone knew he was going to be something special. Carleton basically hacked together a position just to offer it to him, and his job talk was something else. Most job talks have one, maybe two students in attendance, quietly listening in the back corner. Melvin's job talk was given to a packed room, with several of us literally holding a "We Love You Melvin Rogers!" banner against the back wall. It didn't work, he ended up going to UVA, and given how his career subsequently took off I can't say he made a mistake. But certainly we pulled out all the stops, and were right to do so.
Again, everyone knew he was a brilliant scholar. But he was also a brilliant teacher. Those two qualities aren't always associated together -- but I think that's a mistake in our profession, and one we should work harder to rectify. From Melvin Rogers I learned that brilliance in scholarship is wholly compatible with brilliance in teaching, and nobody should tell you that greatness in the one is an excuse to neglect the other.
Martha Nussbaum: Martha Nussbaum is a very famous, very important person. I am not a particularly famous, particularly important person. And while I was technically one of her "students", in practice I took two of her law school courses that each had at least 30 students enrolled. She had no ongoing obligations towards me, and certainly had and has enough on her plate not to bother with me. She would have been well within her rights never to have once thought of me after handing in my final grades.
And yet. Martha Nussbaum has written me letters of recommendation -- repeatedly, for several different types of positions. She's read drafts when I've sent them to her, she's met with me when I've returned to Chicago. She's even shot the breeze with me over email regarding our shared interest in Project Runway (she's worn Season 7 winner Seth Aaron Henderson). I was and am little, and she was and is big, and yet somehow she's made time to be a mentor for me -- for no other reason than that I took a couple of her classes and did well in them.
Martha Nussbaum is another example of someone whose brilliant scholarship pairs with brilliant teaching. But from her, I also learned that even the most successful, amazing, prominent figures still can find time to care about and mentor their students -- and if she can do it, we all can.
David Strauss: I once joked that there was a period where every idea I had for a law review article had already been written by David Strauss between 1985 and 1997. It was disappointing, in a way, but it was also a sign that I had good ideas, at the very least -- just a generation too late. He provided a model for me regarding what good scholarship was and what good teaching was. There's probably nobody on earth of whom I'm more clearly a "disciple" of than David Strauss.
And on top of that -- he was a great teacher, in a completely different way from Kim or Martha or Melvin. The fact is, I'm probably not and will never be as scary as Kim Smith. I'm much too goofy for that. But then again, so was David, and he commanded classroom attention just fine. From David Strauss, I learned that the best way to be the best teacher and scholar I could be, was to be me.
Sarah Song: And now we get to my current adviser, Sarah Song. When I was applying to law schools, I was admitted to Berkeley's Jurisprudence and Social Policy program, and had I enrolled Sarah would have been my Ph.D. adviser in that program. Six years, five cities, four jobs, and one degree later, and I end up in a Ph.D. program with Sarah Song as my adviser. For a Chicago grad, I'm not always efficient.
There is an academic adage I didn't learn from Sarah, but which very much applies to her: "Everyone in academia is smart. Distinguish yourself by being kind." Sarah Song is very smart, and very talented, and very everything one would want a great professor to be. But she is distinguished by being, without question, one of the most singularly kind people on the planet. From her I learned just how important that kindness is as part of being a great professor, mentor, and scholar. And I'm grateful to have it and her in my life every day.
* * *
Ms. Curry: Elementary school is a pretty fuzzy memory at this stage, but I remember adoring my First Grade teacher Ms. Curry. She saw the very earliest flickerings of my political self when I did a report on Jackie Robinson, and mostly managed to keep a straight face when I sternly informed the class that "nobody should be aggravated on a bus!"
From Ms. Curry, I learned that both teaching and learning can be joyous, and that joy can be both very deliberate and very unintentional.
Ms. Skelton: By any objective measure, I was a good and well-behaved student in high school. Always got good grades, never once got a detention, never got called into the principal's office. Subjectively, and on reflection ... I was probably a handful to deal with for a lot of teachers. I had a contrarian streak a mile wide, and I had opinions about pedagogy -- to wit, if I didn't understand why something was useful to learn, I didn't want to learn it. And no class was the subject of this wrath more than English.
I believed then -- and to some extent believe now, though slightly less dogmatically -- that the only purpose of writing was to clearly communicate and persuasively justify ideas. Faced with English classes where we read a ton of literature that, to me, seemed like exercises in willful obtuseness justified because it uses "metaphor" or "connotative language", and I was effectively in open rebellion. In my first essay for Ms. Skelton in 11th grade, I wrote an extended diatribe about why most of the focus of the class -- "analyzing" the use of language rather than evaluating the content of the work -- was useless and pointless. I don't have a copy of it anymore, but with the benefit of hindsight I'm absolutely sure it was self-righteous and obnoxious (really, how could it not be?).
I'd written essays like this before -- and since I was a good writer, in spite of it all, I usually got a good grade with perfunctory comments. But Ms. Skelton did something none of my other teachers had ever done before:
She responded. She wrote extended comments on the paper, taking my position seriously and making her case for why I should, indeed, care about this material.
She didn't persuade me. But she did earn my undying loyalty that day. From Ms. Skelton, I learned that if you take your students seriously, and treat their contributions as worthy of respect, they'll be willing to explore nearly any horizon you place in front of them.
Kim Smith: There were three types of political science classes I took at Carleton. There were required courses. There were courses I took with visiting faculty. And there were courses I took with Kim Smith. This wasn't exactly intentional -- it's just that Kim Smith happened to teach pretty much every interesting class I wanted to take in the entire department. Constitutional Law and African-American Political Thought! Impossible combination to beat! I took four classes from her -- tied for the most of any Carleton professor.
I did well in her classes, but Kim was notoriously unsparing in her comments on essays submitted to her class. I have distinct memories of entire paragraphs circle or crossed out with "oh please" or "that's lame" written next to it. Some people were terrified of her, but I thought it was fabulous. And there's no doubt she made my writing better. And of all my college professors, she's the one with whom I have the closest friendship with to this day.
Kim once told me her teaching philosophy was "it's better to be feared than loved". That doesn't give her enough credit though; I would say that from her I learned instead that if you play your cards right, you don't actually need to choose.
Louis Newman: Louis Newman was one of the very first people I met at Carleton. Somehow, my dad found out about him -- in retrospect, that he found the head of Judaic Studies at Carleton is probably not coincidental -- and we were introduced before I even attended my first class. He actually persuaded me to drop my freshman seminar and instead enroll in his upper level Jewish Ethics class. Again, that actually might not have been the best advice in the abstract, but in my case it worked out great. He's the other professor I took four classes from; if Carleton had a Judaic Studies concentration, I would have done it.
Louis was distinctive in the degree to which he cared about his students as human beings, not just as students. He was a warm and paternal, but never paternalistic figure. From him I learned that the best teachers care about the whole student, not just their submitted work.
Melvin Rogers: Melvin is my great "I knew him when" story -- I knew Melvin Rogers when he was a post-doc at Carleton, just starting out his career. Even then, everyone knew he was brilliant, and everyone knew he was going to be something special. Carleton basically hacked together a position just to offer it to him, and his job talk was something else. Most job talks have one, maybe two students in attendance, quietly listening in the back corner. Melvin's job talk was given to a packed room, with several of us literally holding a "We Love You Melvin Rogers!" banner against the back wall. It didn't work, he ended up going to UVA, and given how his career subsequently took off I can't say he made a mistake. But certainly we pulled out all the stops, and were right to do so.
Again, everyone knew he was a brilliant scholar. But he was also a brilliant teacher. Those two qualities aren't always associated together -- but I think that's a mistake in our profession, and one we should work harder to rectify. From Melvin Rogers I learned that brilliance in scholarship is wholly compatible with brilliance in teaching, and nobody should tell you that greatness in the one is an excuse to neglect the other.
Martha Nussbaum: Martha Nussbaum is a very famous, very important person. I am not a particularly famous, particularly important person. And while I was technically one of her "students", in practice I took two of her law school courses that each had at least 30 students enrolled. She had no ongoing obligations towards me, and certainly had and has enough on her plate not to bother with me. She would have been well within her rights never to have once thought of me after handing in my final grades.
And yet. Martha Nussbaum has written me letters of recommendation -- repeatedly, for several different types of positions. She's read drafts when I've sent them to her, she's met with me when I've returned to Chicago. She's even shot the breeze with me over email regarding our shared interest in Project Runway (she's worn Season 7 winner Seth Aaron Henderson). I was and am little, and she was and is big, and yet somehow she's made time to be a mentor for me -- for no other reason than that I took a couple of her classes and did well in them.
Martha Nussbaum is another example of someone whose brilliant scholarship pairs with brilliant teaching. But from her, I also learned that even the most successful, amazing, prominent figures still can find time to care about and mentor their students -- and if she can do it, we all can.
David Strauss: I once joked that there was a period where every idea I had for a law review article had already been written by David Strauss between 1985 and 1997. It was disappointing, in a way, but it was also a sign that I had good ideas, at the very least -- just a generation too late. He provided a model for me regarding what good scholarship was and what good teaching was. There's probably nobody on earth of whom I'm more clearly a "disciple" of than David Strauss.
And on top of that -- he was a great teacher, in a completely different way from Kim or Martha or Melvin. The fact is, I'm probably not and will never be as scary as Kim Smith. I'm much too goofy for that. But then again, so was David, and he commanded classroom attention just fine. From David Strauss, I learned that the best way to be the best teacher and scholar I could be, was to be me.
Sarah Song: And now we get to my current adviser, Sarah Song. When I was applying to law schools, I was admitted to Berkeley's Jurisprudence and Social Policy program, and had I enrolled Sarah would have been my Ph.D. adviser in that program. Six years, five cities, four jobs, and one degree later, and I end up in a Ph.D. program with Sarah Song as my adviser. For a Chicago grad, I'm not always efficient.
There is an academic adage I didn't learn from Sarah, but which very much applies to her: "Everyone in academia is smart. Distinguish yourself by being kind." Sarah Song is very smart, and very talented, and very everything one would want a great professor to be. But she is distinguished by being, without question, one of the most singularly kind people on the planet. From her I learned just how important that kindness is as part of being a great professor, mentor, and scholar. And I'm grateful to have it and her in my life every day.
Big Media David: In JTA on State Anti-BDS Laws
I'm in JTA with an article on the debacle that are the state anti-BDS laws. As written, they tend to be both PR and constitutional trainwrecks. And that might be a good reason not to write them! But, if you insist, I offer some helpful advice on how to draft them to avoid the obvious pitfalls, including:
- Don't single out Israel, and
- Don't regulate private conduct, but only demand that the contractor not discriminate in the course of fulfilling the contract.
If you pay close attention, adding these two hints together yields something like ... a generic anti-discrimination pledge, rather than a specifically "anti-BDS" law. This is not a coincidence.
Wednesday, December 19, 2018
George Soros is the Financial Times "Person of the Year"
The Financial Times named George Soros its "person of the year".
This is a bit striking, since the Financial Times is a relatively centrist paper, and Soros of course has a reputation as a hard leftist -- primarily because over the past few years he's become the right's favorite bogeyman.
But maybe this a good moment to reflect on where that reputation comes from. Soros' political reputation was initially built on his efforts to promote democratization and liberal values in states emerging from Soviet dominion at the end of the cold war. His priorities -- open markets, open expression, and open media -- were not particularly controversial, at least in the west, and were in fact widely lauded across the political spectrum. It fit well within the broad post-Cold War political consensus of the 1990s, when globalization was still viewed as an unadulterated positive and the fall of Communism had presumptively left liberal democracy as the only ideological game in town.
What's changed? With respect to Soros' politics, the answer is very little. His agenda is still that of an Open Society, and his political work continues to center on relatively run-of-the-mill promotion of basic democratic and liberal values across the world.
What's changed is simply that today's conservatives increasingly reject those values. They don't care about democracy, or a free press, or free speech, or open societies. In fact that are increasingly hostile to all of these things. And no matter your political agenda, it never hurts to be able to cast your opposition as the project of a sneaky wealthy Jew pulling the strings to nefarious agenda. So Soros, unsurprisingly, becomes an object of conspiratorial hatred on the right.
But we shouldn't forget the roots. George Soros is in reality not all that radical. His projects are important, but also workaday -- they don't really ask for anything more than the basic ambitions of a free liberal society. The assumption that he's some sort of fringe figure who wants to bring a wave of globalist communism(?) crashing over old-fashioned American values is groundless.
Put another way: the right doesn't hate George Soros because it hates "the left". Twenty years ago, George Soros' "left" politics would have been little more than the broad American consensus about how formerly authoritarian states should transition into freedom.
The right hates George Soros because it now hates the very idea of a free society where markets, the press, the university, and opportunities are open and accessible to all. And it hates George Soros, in particular and with such particular vigor, because as a Jew with a lot of money and a financial background, he represents the perfect avatar for conjoining their reactionary politics to the power of antisemitic conspiracy theorizing.
This is a bit striking, since the Financial Times is a relatively centrist paper, and Soros of course has a reputation as a hard leftist -- primarily because over the past few years he's become the right's favorite bogeyman.
But maybe this a good moment to reflect on where that reputation comes from. Soros' political reputation was initially built on his efforts to promote democratization and liberal values in states emerging from Soviet dominion at the end of the cold war. His priorities -- open markets, open expression, and open media -- were not particularly controversial, at least in the west, and were in fact widely lauded across the political spectrum. It fit well within the broad post-Cold War political consensus of the 1990s, when globalization was still viewed as an unadulterated positive and the fall of Communism had presumptively left liberal democracy as the only ideological game in town.
What's changed? With respect to Soros' politics, the answer is very little. His agenda is still that of an Open Society, and his political work continues to center on relatively run-of-the-mill promotion of basic democratic and liberal values across the world.
What's changed is simply that today's conservatives increasingly reject those values. They don't care about democracy, or a free press, or free speech, or open societies. In fact that are increasingly hostile to all of these things. And no matter your political agenda, it never hurts to be able to cast your opposition as the project of a sneaky wealthy Jew pulling the strings to nefarious agenda. So Soros, unsurprisingly, becomes an object of conspiratorial hatred on the right.
But we shouldn't forget the roots. George Soros is in reality not all that radical. His projects are important, but also workaday -- they don't really ask for anything more than the basic ambitions of a free liberal society. The assumption that he's some sort of fringe figure who wants to bring a wave of globalist communism(?) crashing over old-fashioned American values is groundless.
Put another way: the right doesn't hate George Soros because it hates "the left". Twenty years ago, George Soros' "left" politics would have been little more than the broad American consensus about how formerly authoritarian states should transition into freedom.
The right hates George Soros because it now hates the very idea of a free society where markets, the press, the university, and opportunities are open and accessible to all. And it hates George Soros, in particular and with such particular vigor, because as a Jew with a lot of money and a financial background, he represents the perfect avatar for conjoining their reactionary politics to the power of antisemitic conspiracy theorizing.
Tuesday, December 18, 2018
Three Ways of "Banning" BDS Contractors
I've been a skeptic of state anti-BDS laws. The short version of my view is that (a) such laws, if they are to pass First Amendment muster, must be drafted and implemented very carefully, and (b) such laws will almost certainly neither be drafted nor implemented very carefully, resulting in (c) the regular, expected, and consistent flow of cases which will at the very least be PR disasters.
The latest case comes from Texas, where a speech pathologist lost her job for refusing to sign a stipulation that she does not and would not boycott Israel for the duration of the contract. Texas law requires that state contractors -- including sole proprietorshops -- refrain from boycotting Israel in order to be eligible for state contracts. This requirement was quickly cast on the internet as a "pro-Israel oath" and then an "oath of loyalty", because this is the internet and we can't talk about Jewish things without exaggerating in the most antisemitic way possible.
The sole proprietorship case is obviously the most troublesome, since it seems to prevent individuals-as-individuals from exercising their conscientious right to boycott insofar as they also transact with the state.
But on that score, it struck me that there are two different sorts of ways these laws could be written, with very different constitutional and free speech implications:
The latest case comes from Texas, where a speech pathologist lost her job for refusing to sign a stipulation that she does not and would not boycott Israel for the duration of the contract. Texas law requires that state contractors -- including sole proprietorshops -- refrain from boycotting Israel in order to be eligible for state contracts. This requirement was quickly cast on the internet as a "pro-Israel oath" and then an "oath of loyalty", because this is the internet and we can't talk about Jewish things without exaggerating in the most antisemitic way possible.
The sole proprietorship case is obviously the most troublesome, since it seems to prevent individuals-as-individuals from exercising their conscientious right to boycott insofar as they also transact with the state.
But on that score, it struck me that there are two different sorts of ways these laws could be written, with very different constitutional and free speech implications:
1. They could prohibit contracting with entities who boycott Israel "on their own time"; or
2. They could prohibit contracting with entities who boycott Israel in the course of fulfilling the contract.
The first type of law covers contractors who, just on a day-to-day basis, refuse to buy Israeli products for some presumably ideological (non-business related) reason. The Texas woman, for example, says that she out of personal ideological conviction refuses to buy Israeli products as part of Palestinian solidarity (she is an American citizen of Palestinian descent). That certainly seems to raise very real free speech hackles. It is designed to punish someone for engaging in conduct unrelated to their job because one dislikes the ideological message behind that conduct.
The second type of law only covers and proscribes boycotting Israel in the course of fulfilling the contract. So it would be indifferent to what the Texas woman does or doesn't purchase on her own time, but would tell her that she couldn't -- say -- refuse on ideological grounds to use an Israeli software program that was the best fit for her occupational needs, or decline to serve an Israeli student while serving as a school pathologist. That seems much closer to run-of-the-mill state regulation of its employees' on-the-job conduct, and is much more permissible. The state has a valid interest in ensuring that its contractors-qua-contractors refrain from discrimination and accomplish their tasks in the most efficient manner possible.
There's also a third permutation which David Bernstein alerted me to, which is particularly germane in the sole proprietorship case:
The difference between a Type 1 and Type 3 law is a distinction between what our speech pathologist does as a private citizen and what she does as a business. This is one of those seemingly fictitious distinctions that is nonetheless exceedingly important in business law: "you" are not the same as "the business which happens to be solely comprised of 'you'". So: does her speech pathology business boycott Israel (again, return to the "would she work with an Israeli exchange student" question), or is her boycotting something she does as a private actor? Is she not buying Ahava cosmetics for her bathroom, or is she not purchasing Israeli software for her practice? These distinctions are arguably relevant.
Or arguably not: one might say that she has the right to run her "company", as much as her private life, in line with her ideological scruples, and so either way there is a threat to free expression. The circumstances where a company can independently claim to possess ideological, moral, or religious interests are controversial (remember Hobby Lobby?), and I don't want to wade into the morass now.
For me, I think that Type 2 laws might be justifiable (though I'd prefer they simply be worded as general non-discrimination provisions than anything Israel specific). Type 1 laws definitely stretch too far, and Type 3 laws probably do too, at least as applied to solo operations.
But then we return back to the thesis of my article: these laws will almost always be written loosely and interpreted poorly, and those facts will inevitably swamp even any valid gains that they may secure. Better to just have general anti-discrimination laws, and make it clear they'll be enforced.
3. The laws could prohibit contracting with entities who boycott Israel in their capacity as a contractor.The difference between a Type 2 and Type 3 law is that in the former the contractor would be free to boycott Israel in all respects save matters related to the contract; whereas in the latter the contractor would have to refrain from boycotting Israel even in its operations that had nothing to do with the state contract.
The difference between a Type 1 and Type 3 law is a distinction between what our speech pathologist does as a private citizen and what she does as a business. This is one of those seemingly fictitious distinctions that is nonetheless exceedingly important in business law: "you" are not the same as "the business which happens to be solely comprised of 'you'". So: does her speech pathology business boycott Israel (again, return to the "would she work with an Israeli exchange student" question), or is her boycotting something she does as a private actor? Is she not buying Ahava cosmetics for her bathroom, or is she not purchasing Israeli software for her practice? These distinctions are arguably relevant.
Or arguably not: one might say that she has the right to run her "company", as much as her private life, in line with her ideological scruples, and so either way there is a threat to free expression. The circumstances where a company can independently claim to possess ideological, moral, or religious interests are controversial (remember Hobby Lobby?), and I don't want to wade into the morass now.
For me, I think that Type 2 laws might be justifiable (though I'd prefer they simply be worded as general non-discrimination provisions than anything Israel specific). Type 1 laws definitely stretch too far, and Type 3 laws probably do too, at least as applied to solo operations.
But then we return back to the thesis of my article: these laws will almost always be written loosely and interpreted poorly, and those facts will inevitably swamp even any valid gains that they may secure. Better to just have general anti-discrimination laws, and make it clear they'll be enforced.
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