My Advice To Law Students: Become an RA!

Many law professors have been going around giving their advice to new law students, particularly those who don't come from a lawyering family and don't necessarily have a ton of familiarity with how law school operates. All the advice is useful, but here's one tip I haven't seen promoted before: become an RA (research assistant), preferably for a professor who does work you're interested in and whose class you either have already taken or plan to take. It almost certainly will not and should not be a full-time gig; ideally, it should be for just a few hours each week.

Now, as a law professor, obviously this advice seems to be a bit self-serving. And maybe it is (though I already have an RA, so it doesn't do me any good for more people to want to be RAs). But I think it's good for students too, for at least two non-obvious reasons:

(1) It gives you an advisor. I attended an undergraduate institution where every student was assigned a faculty advisor. When I got to law school, I just kind of assumed the same policy would be in place. Spoiler: it isn't. Nobody is your advisor, and there isn't any obvious opportunity to find someone to answer the generic advising questions that you'll have over the course of your law school career: "Should I do law review?" "If I work at a firm, am I stuck there forever?" "Is it bad if I take a class that sounds interesting but doesn't have any 'real world' applications?" Being an RA gives you ready-access to a professor and is easily converted into an advising relationship. In general, if you ask if you can run through some general questions in the ten minutes following your RA meeting, they'll be more than happy to oblige.

(2) It is of massive help in writing letters of recommendation. I will confess: it is very hard to write letters of recommendation for students whom I only "know" because of their presence in my doctrinal classes. Even if they perform well, I have basically two data points about them: (a) their exam performance, and (b) the one time they were cold called (which probably happened in the second week of term and has long since faded from my memory). It's really difficult to take that and write a letter that doesn't seem horribly rote and formulaic. By contrast, professors get to know their RAs personally and can speak about their capabilities in a much more specific and intimate fashion. It is very likely that the professor whom you RA for will become your strongest letter writer, even if they didn't give you your highest transcript grade.

All of this exists on top of the more obvious reasons to become an RA (enjoying research, being interested in the subject matter, resume line, etc.). But becoming an RA is the easiest and fastest way to develop a close relationship with one your professors, and that benefit is of incalculable worth as you move through law school.

Seeing an Israeli or Palestinian Flag is Not a License for a Tantrum

There's a picture circulating on social media of a Starbucks displaying a small chalk drawing of a Palestinian flag and the following message:

We've come a long way but there's still work to be done. We stand in solidarity as allies.

As far as messages go, that's pretty banal. And the flag is nothing more than a flag.

But boy are some people throwing a tantrum about this.

Moments like these I'm glad I can search through my archives and find my already-shared thoughts on how to respond to such a "controversy" involving the public display of Palestinian (or Israeli, for that matter) flags. Because, perhaps unsurprisingly, we've already had moments where people have alleged that the mere presence of an Israeli or Palestinian flag is unbearably "political", represents tacit endorsement of oppressive or hateful politics, has no place in a public setting that holds itself out as open to all, and can and should be justifiably extirpated for their comfort.

What did I say to people who pushed that view? Oh right: "Suck it up." 

When you treat the existence of symbols of Israel or Palestine as an offense, what you're doing is treating the existence of Israel or Palestine as an offense. Some people are at least forthright about that; they are open that when they object to a food truck because it has a Hebrew name and sells Israeli food, it's because they object to Israel existing, period. Good for them for being honest, I guess. But others do a song and dance about how that's not the problem, but this is political, it's politicizing, it's taking sides, they have no problem with Palestine or Palestinians or Israel or Israelis but this is just so gosh darn controversial and people will get upset!

Nobody is fooled. Nobody should be fooled. If you're sitting in North America and the mere sight of an Israeli or Palestinian flag sends you into paroxysms of anxiety and panic, you have not uncovered an objective political crisis, you have uncovered your own need to develop better self-soothing techniques. Period. If you see a store and there's a small chalk drawing of an Israeli or Palestinian flag and an anodyne message about how we're "allies" but there's more "work to be done", and you feel some sort of way about it, do us all a favor and sort yourself out privately and quietly. Stop making your neurosis our problem.

The fact is, nobody is helped by throwing a tantrum about this. Well, I take that back -- some people are helped: the people who promote a narrative where displaying even the most basic symbology of Israel or Palestine is tantamount to an act of war against the other, where public acknowledgment of -- the existence of -- Israel or Palestine alone is the front line of a maximalist, eliminationist battle. The people pushing that narrative are very aware of what they're doing when they set off the sirens. Sometimes their target is a barista in Canada, sometimes it's a food truck in Philly; sometimes it's a café in San Francisco, sometimes it's a camp in Washington. Every time one mans the barricades over this -- even (especially?) if it's because "well, that's what they're doing" -- that's the narrative one reinforces. And fear and antagonism get retrenched, and just co-existence gets a little further away.

Again, some people at least have the honesty to own their desires on that front. But don't pretend like it's doing anything else.

For the rest of us, we have another option: we can Just. Not. Do This. That's a choice! We can choose not to throw a tantrum! We're not obliged to! Really, we're free to just ignore this and move about our day! I cannot tell you how liberating it is to not feel the need to set off klaxons every time one sees anything that expresses affinity for Israel or Palestine in a manner that doesn't come attached to a six-paragraph essay assuring everyone that its overall political agenda is identical to one's own. And better still, the more one normalizes that the mere existence of an Israeli flag is not a tacit means of threatening Palestinians, or the mere existence of a Palestinian flag is not a tacit means of threatening Israelis, the easier it will be to get to a world where Israel and Palestine do exist, side-by-side, and the presence of one is not viewed as a threat to the other. If that's your goal, and not the maximalist eliminationism narrative above, then ceasing viewing basic Israeli or Palestinian political symbols as threats is a prerequisite for getting where you say you want to go.

In short: just behave like a normal, well-adjusted adult, and I assure you your life and the lives of everyone around you -- including the people you think you're "helping" -- will get so, so much better.

Academic BDS Comes to China

The Guardian has an interesting article about a scientific journal editor, David Curtis, who stepped down from his post after his attempt to implement a boycott of Chinese academics was rebuffed by his publishers. The direct precipitation of his resignation appears to be a mix of two things: first, that he was prevented from publishing an article he co-authored raising the specter of a China boycott, and second, that he had of his own accord begun implementing a policy of rejecting all submissions by Chinese academics due to "the complicity of the Chinese medical and scientific establishment in human rights abuses against the Uyghurs." (The latter decision was denounced by the journal higher-ups as a violation of policies forbidding national origin discrimination).

It is not clear whether the figures involved in the call to boycott Chinese academics are involved in the BDS campaign against Israel. I can imagine them being sympathetic; I can also imagine them being people who thought BDS against Israel was absurd precisely because we should be starting with more serious violators like China and decided to put their money where their mouth was (a quick google search didn't reveal any particular links between Curtis and BDS, whether favorable or critical).

I have been banging the drum about the likelihood that BDS (or BDS-style tactics) will at some point stop "singling out" Israel and make itself apparent as part of activists' toolkits addressing other countries and controversies. And indeed, this particular iteration seems highly reminiscent of the earliest days of anti-Israel BDS (not only because it is originating in the UK). The flat ban on submissions by Chinese academics is identical to how academic BDS began -- the earliest significant academic BDS "move" was a decision by a British journal editor to demand the resignation of Israeli colleagues from her editorial board because "I can no longer live with the idea of cooperating with Israelis as such." Nowadays the BDS movement has made gestures at moving away from pure nationality-based discrimination in favor of allegedly targeting only "institutions, not individuals"; I suspect if the China BDS movement gains legs it will begin making a similar pivot (though, as with the Israel case, I also suspect that the new standard will often be honored primarily in the breach).

But what does the potential emergence of a China academic BDS movement mean for the future of the Israel academic BDS campaign? The core personnel are going to be different -- partially because different people have different interests, partially because the Israel BDS movement has more than its share of tankies who think the entire Uighur issue is western imperialist claptrap. Nonetheless, there will likely be some overlap, and the fact that BDS is being promoted in other cases will do more to legitimize it as a legitimate option even as there may be disagreements about whether a BDS style campaign is properly applied to this or that case. So in that sense, any successful mainstreaming of the China BDS campaign will likely help bolster the Israel one even if the principal actors are different people.

On the other hand, the development of "BDS" in the China context, precisely because it offers a comparator case and can falsify the "singling out" hypothesis, also is likely to generate new norms which will serve to modulate and regulate the Israel case as well. While Curtis' proposal is drastic -- no submissions from any Chinese academics, period -- it is supremely unlikely, given China's integration into global academia and knowledge-production, that a BDS movement of that form will gain any traction. Far more plausible is the implementation of considerably more narrow and targeted measures -- particular institutions or projects that are inextricably bound up in human rights abuses that directly (and not just by association) taint the specific academic work emanating therefrom. And particular will likely actually be particular -- it will not be tenable to use sweeping notions of complicity or culpability to drag in every single Chinese university or institution (the main mechanic by which "institutions, not individuals" reverts back to "individuals").

This is part of what I've been saying when I suggest that social movements, BDS including, "moderate as they mainstream." The more BDS becomes a general tool of social activism rather than an Israel-only one-off, the more it will adjust itself to adopt standards that actually can be plausibly generalized to a range of cases, and while extirpation of all Israelis from the global community is at least a conceivable social goal, extirpation of all Chinese nationals (or all nationals of all countries whose governments are implicated in significant human rights abuses) is not.

Put differently, to the extent people start thinking seriously about applying "BDS" to the China case in a manner that is plausible and scalable, the equilibrium that will be set will be one that likely will not countenance flat bars on academic participations by persons of a particular nationality, nor "institutional" proscriptions that amount to doing the same thing, but may accept narrowly-tailored measures targeted at specific wrongdoers. And -- insofar as China would be used as a comparator case to justify measures in other states as well (namely, Israel) -- there is a decent chance that these norms will translate over to the Israeli case as well. It won't happen without a fight, and you can be sure that the old-guard will continue to insist on the more fundamentalist version. But I do think that's the most likely trajectory.

Coming Soon: Abolishing Qualified Immunity for Everyone But Killer Cops

As "qualified immunity" has become a more prominent target for criminal justice reformers, it has been noted by many that Justice Thomas has regularly been issuing calls for the Court to reconsider the doctrine (one which, as he notes, has little historical or textual basis to it). But yesterday, writing on the denial of certiorari in a case called Hoggard v. Rhodes, Justice Thomas gave further color to how his revisiting qualified immunity might look -- and it doesn't exactly bode well:

[T]he one-size-fits-all doctrine [of qualified immunity] is also an odd fit for many cases because the same test applies to officers who exercise a wide range of responsibilities and functions.... why should university officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting? We have never offered a satisfactory explanation to this question.

In other words, Justice Thomas is suggesting a path where we keep something like qualified immunity for police officers using violent force, but abolish it for public university officials contending with the judiciary's rapidly evolving and often seemingly arbitrary campus free speech jurisprudence, because police officers have to make "split-second decisions" whereas campus deans have time to "calculate". If ever there was a way to get the new right-wing court onboard with getting rid of qualified immunity, holding out the possibility that one could open up politically targeted harassment suits of hoity-toity college administrators while preserving the authority of the police to maim with impunity is about as tantalizing as one could get.

On the point that police officers are differently situated because they have to make "split-second" choices, I'd note first that a separate distinguishing feature between the deans and police officers is that the alleged constitutional violations of deans typically don't involve killing anyone (and typically can be fully remedied by injunctive relief). I'd note second that judges sometimes have a propensity to describe any police misconduct as involving "split-second decisions" even in cases where they are absolutely making calculated choices under no especial pressure or time crunch.

Eight Good Deeds

As many of you no doubt have heard, a Rabbi by the name of Shlomo Noginski was stabbed the other day outside a Jewish community center near Boston. A suspect has been arrested and Rabbi Noginski is, thankfully, recovering.

At a rally in his support, one of the Rabbi Noginski's colleagues urged people to respond to this horrible attack with eight good deeds -- one for each time the Rabbi was stabbed. I thought it was a great sentiment (if admittedly just a touch macabre), and decided to donate, in Rabbi Noginski's honor,  to eight organizations pursuing justice in the United States and around the world.

Below are the organizations I donated to. I invite you to join me, whether with these organizations or others that pursue projects meaningful to you.

***

The Anti-Defamation League: Still without parallel as a force fighting extremist hate and bigotry around the world.

Hebrew Immigrant Aid Society: One of the premier immigrant rights organizations in America. Their slogan -- "We Used to Take Refugees Because They Were Jewish. Now We Take Them Because We're Jewish" -- makes me swell with pride.

NAACP Legal Defense Fund: With the Supreme Court dealing yet another blow to voting rights in America, the NAACP LDF's work could not be more urgent.

OneVoice: For years, they've been doing the hard, thankless work building grassroots support within both Israel and Palestine for peace and justice based on mutual respect for the rights and dignity of all persons in the region.

Be'chol Lashon: One of many great organizations supporting Jews of all hues and backgrounds, and which works tirelessly to ensure that the Jewish community is an equitable place for everyone in our community.

Harlem Lacrosse: A wrap-around support network for young people in five cities (including Boston) across America -- it's great (and not just because my wife helps run it!).

Operation Hope: The effort to provide economic opportunity to communities underserved by contemporary capitalism is the "silver rights movement" (and not just because my brother helps run it!).

Stop AAPI Hate: The attack on this Rabbi is one instance of a larger wave of racist violence which has afflicted many communities across the country, and we're stronger when we fight it together.

What is "All Lives Matter-ing"?

A trend I've noticed in Jewish discourse recently is an uptick in people complaining about folks allegedly "All Lives Matter-ing" antisemitism. Sometimes, the complaints strike at behavior that seems obviously dismissive or denigrating towards Jewish activism against antisemitism. Other times, they seem to target statements that seem utterly anodyne or even salutary in clearly addressing antisemitism. There doesn't, however, seem to be a clear unifying thread save that the targets usually are not talking just about antisemitism -- they're either talking about antisemitism alongside some other oppression(s), or they're speaking in general terms about "oppression" without mentioning antisemitism specifically.

Does that suffice to explain what it means to "All Lives Matter" something? And if not, what, exactly, does this complaint mean? What is the proper understanding of "All Lives Matter-ing"?

I should start by saying that I'm not wild about the appropriation of "All Lives Matter-ing" in this context at all, for reasons relayed in this post. It often seems used less to illuminate a problem and more as a sort of nyah-nyah gotcha predicated on the wrong and alienating view that well obviously you'd see this is wrong if it were Black people frame that I loathe so much. For the most part, rather than grabbing language from other social movements that may or may not fit our own situation, we'd be better served to develop our own vocabulary that is tailored to our own case.

But to the extent there is a useful "generic" account of what it means to "All Lives Matter" something, what is it? Here's my rough stab at it, which certainly is open to refinement:

To "All Lives Matter" something is to respond to a complaint of an injustice experienced by a particular community by suggesting the complaint is illegitimate or exclusionary unless it is reframed away from focusing on the particular community and instead presented in more universal language.

Under this account, "All Lives Matter" ALMed "Black Lives Matter" because it responded to the particular claim of injustice identified by the BLM slogan by suggesting that this claim, or the campaign around it, is illicit and exclusionary because it is particularly about Black lives and should instead speak of all lives.

The first important feature of my account is that ALMing is necessarily reactive. It responds to something; it chastises another statement or movement or campaign that is already on the table. If it isn't responsive, it isn't an ALM statement. Consider the following sentence:

"We should treat people of all backgrounds with courtesy and respect."

Is that sentence "All Lives Matter-ing"? Not on its own, no. People say sentences like that all the time, with no particular controversy or compunction. There is no general proscription against saying banal universalistic niceties.

However, if one has just heard an account of how, in one's organization, Black employees are consistently denigrated, viewed as inferior, have their views shut down, concluded with a plea that the organization needs to "treat our Black employees with courtesy and respect", responding

"We should treat people of all backgrounds with courtesy and respect,"

with an arched voice and a tone of reproach -- that's All Lives Matter-ing. It responds to a specific account of injustice faced by a particular group by suggesting it's illegitimate precisely because it speaks of a particular group rather than of the universal "all". That, of course, is the original relationship of "All Lives Matter" to "Black Lives Matter" -- the objection was not to any sentence that expresses universalist humanist sentiments, it was to a particular sentence uttered in a particular context where it was expressly presented as a retort to "Black Lives Matter." Absent that reactive character, such a sentence is not All Lives Matter-ing.

Second, "All Lives Matter-ing" does not encompass every situation where someone tries to link different forms of oppression or marginalization together. Again, this is very obvious once one looks at the original context of how ALM related to BLM. After all, say what you will about Black Lives Matter activists who posit links between police violence in Ferguson and Gaza, or Chicago and Colombia, it would be weird to claim that they're "All Lives Matter-ing" themselves. Clearly, the objection to "All Lives Matter" is not meant to encompass any effort at solidarity or inter-group alliance.

If someone says "our experience with misogyny calls us to stand with victims of homophobia," they are not ALMing. If someone says "we oppose worker exploitation in San Juan, just as we oppose it in San Jose", they are not ALMing either. If someone says "we oppose racism, misogyny, antisemitism, and homophobia", they also aren't ALMing unless they're doing so in response to pressure which suggests a statement which solely focused on any one of those would be illegitimate for not mentioning the rest. But of course people are permitted to say, of their own accord, that they oppose multiple forms of oppression -- how weird would it be to argue otherwise? 

Again, attempts at coalition-building wouldn't satisfy the above definition of ALMing at least insofar as they are not done to delegitimize the initial claim of injustice, or to suggest that the initial, "unadorned" protest against it was illicit or improper. One can imagine circumstances where calls for coalition do take such a form, but the mere fact that someone is seeking to draw two cases of oppression together and forge an alliance among those fighting them is obviously not enough (how spectacularly self-defeating if it were!).

With this account in mind, how do the alleged cases of folks ALMing antisemitism fare? As one might guess, it depends.

On the one hand, consider a recent case where the diversity officer for the Society of Children's Book Writers and Illustrators was terminated one day after releasing a statement addressing antisemitism and hate crimes spikes against the Jewish community -- allegedly because releasing such a statement was disrespectful to Palestinians (the statement, for what it's worth, did not mention Israel, Palestine, or Zionism in any way). That case fits the ALM frame I promote above quite well -- the backlash was in response to a statement regarding the particular problem of antisemitism, which was presented as illegitimate insofar as its specific focus on Jews was interpreted as implicitly denigrating the status of other groups unnamed. Where the mere fact that a given organization is talking about antisemitism, specifically, is portrayed as exclusionary and thereby illegitimate, with the proposed correction "talk about all these other groups too" -- that's ALMing.

On the other hand, I recently had a conversation with a Jewish professional regarding how to mobilize against hate speech online, such as Cynthia McKinney's tweet about Zionists being responsible for 9/11, by working with other communities who also experience a glut of hateful and harassing speech on social media. In the course of explaining why I didn't like the (false and hurtful) frame that companies like Twitter "protect every group but the Jews", I proffered an alternative:

"Social media has a hate problem, of which McKinney's tweet is just the latest example. Jews know it, Muslims know it, women know it, people of color know it, the LGBT community knows it -- everyone seems to know it but Twitter."

For this, I was accused of promoting an "All Lives Matter" frame. Now, I'd have been entirely fine with just saying "Cynthia McKinney's tweet was antisemitic, and Twitter needs to show it takes antisemitism seriously." I have no issue with attacking her tweet as antisemitic, unadorned -- it doesn't have to come attached to discussion of any other form of hatred in order to be opposed. But it struck me as extremely weird -- bizarre even -- to tell me that even trying to present this issue in a way that presents a unified front with other groups is a form of ALM. Seriously?  If we ever try to make common cause with other groups (to say nothing of the members of our own community whose identities intersect with other groups), we're now out-of-bounds? That's not standing up for oneself, that's setting oneself up for political failure.

This is part of a worrisome pattern, where any time someone situates the fight against antisemitism as part of any larger struggle or campaign, they'll be accused of ALMing. Woe befall the statement condemning antisemitism that also mentions racism, or the social movement which tries to establish linkages between antisemitism and Islamophobia -- it's All Lives Matter-ing!

The kernel of legitimate worry here is the fear that fighting antisemitism "alone" will be viewed as illegitimate unless it is sanctified by association with these other, supposedly more prestigious, struggles. This worry, of course, is what actuates my own definition of ALMing above (a complaint about X specific oppression is delegitimated  as exclusionary unless it is folded into a larger and non-particular campaign). But when that worry causes one to lash out against any and all endeavors which locate the fight against antisemitism as existing alongside other struggles, all one ends up doing is obliterating the possibility of allyship and solidarity. That it is justifiable to fight against antisemitism alone does not mean it is preferable to fight against antisemitism alone. 

And indeed, while I think Jews are absolutely entitled to talk about antisemitism unadorned, we also should be free to decide that in certain situations it is better to talk about antisemitism as part of a network or relationship with other bigotries -- a larger practice of hate speech online, a larger system of White supremacy, a larger complex of discriminatory dismissal -- without being accused of treating antisemitism as "lesser" for doing so. It can be better because it's better tactics; it can be better because it builds relationships with other communities we care about (or, for some of us, are part of as well!). But the fundamentalist form of the ALM accusation undermines those efforts, and that's a problem. Particularly given how deeply much of our community thirsts for solidarity from other groups that we feel is not forthcoming, it is impossible to overstate how spectacularly self-sabotaging misapplication of the "All Lives Matter" charge can be.

I suspect the root of the problem, to circle all the way back to the beginning, is that often the "All Lives Matter" accusation really isn't about a thought-out analytical account of how to appropriately versus inappropriately talk about antisemitism. Its main motivator is the perception -- at best incompletely accurate, at worst absolutely misguided -- that "ALM" is an accusation people listen to, and so if we can invoke it (regardless of whether it makes sense to do so) people will listen to us too (or if they don't, we can bask in the satisfaction of knowing they're hypocrites). For Jews who feel like we can't get others to listen to us, that promise can be intoxicating -- even though when the "ALM" charge fails to compel others to listen we won't be uncovering a hypocrisy so much as we'll be experiencing the same failures others experience right alongside us.

Nonetheless, if ALM is going to become a generic charge (and again, my own reservations notwithstanding, perhaps that ship has sailed), we have a responsibility to get it right. Getting it right does not mean tossing it out like candy any time antisemitism is mentioned in the same breath as another oppression. It means opposing a very specific move, where people respond to entreaties about antisemitism by viewing them as illegitimate unless they universalize themselves. Does that happen? Absolutely it does, and it's repellant. Is that what's happening every time someone talking about antisemitism is accused of "All Lives Matter-ing"? No, and it's high time we learned to tell the difference.

A Letter to Fellow Jews on Open Discourse, Rigorous Inquiry, and Generosity of Spirit

A few weeks ago, Tema Smith and I began circulating a letter about how leaders in the Jewish community talk about "social justice" concepts -- things like Critical Race Theory, White supremacy, and intersectionality. We were concerned at how often prominent Jewish figures treated these terms in a strawmanned or caricatured fashion -- held out as boogeymen responsible for every stupid column some college sophomore penned at UC-Santa Cruz. This treatment did not reflect the values of open discourse, rigorous inquiry, or generosity of spirit that are essential to fair and productive dialogue (ironically, values that many of the offenders cited in cavalier dismissal of the relevant concepts).

The letter was delayed by the eruption of hostilities between Israel and Palestine in Gaza, but now has been publicly released. I am tremendously proud of the diverse set of prominent Jewish leaders who have signed on. To name just a few, we have:

• Esther Lederman of the URJ
• Rabbi Amy Eilberg, the first woman ordained by the Conservative Jewish movement
• Aaron Keyak, Joe Biden's director of Jewish engagement
• Eric Greene of the Jewish Multiracial Network

As Tema put it, reading the list of signatories makes me feel a part of very good company!

 

In addition, while our letter is not a direct response to the "Jewish Institute for Liberal Values" missive published last month, I will note that we also have several signatories from the original "Harper's Letter" onboard our piece as well, and I daresay that ours represents a more faithful manifestation of the values of that letter in terms of insisting on fair, rigorous, and generous readings of contested social phenomenon.

I reprint the content of the letter below. If you wish to add your name, we still are accepting signatures via this form.

***

A Letter to Fellow Jews on Open Discourse, Rigorous Inquiry, and Generosity of Spirit

We are Jews of a variety of political, religious, and ideological stripes. We hold diverse views but we unite in affirming the indispensable need for rigorous, open discourse in all aspects of Jewish communal life.

We write to note our concern that, in many key contexts and several critical moments, significant portions of our community have not successfully lived up to these values when assessing contemporary social justice movements. Too many Jewish public figures have engendered discussions of concepts like “intersectionality”, “critical race theory”, “white privilege” (or “white supremacy”), and other like terms where they are painted in simplistic, even glib, forms that bear little to no relationship to what proponents of these theories actually advocate. It is especially alarming that these bad faith critiques have accelerated alongside the growing recognition of the impacts of racism in America, including inside our Jewish community.

Unfortunately, we have regularly seen Jewish organizations, public figures, and media outlets level “critiques” of social justice concepts that are almost entirely unmoored from any engagement with their actual content. We have read with dismay too many articles that purport to speak authoritatively on social justice without ever citing or even referencing crucial primary source material, leading to a marked gap between what these concepts are alleged to assert about Jews (and others) compared to what they actually say. Nuance is swept aside to support uncharitable or outright hostile interpretations, and obvious absurdities are presented so that these concepts can be dismissed without further thought. The result is an impoverishment of Jewish communal discourse and a failure of our thought leaders to fulfill the basic obligations of an honest interlocutor.

Ironically, while those who criticize these social justice terms (and their associated political movements) often level their concerns in language of free speech and liberal discourse, they frequently do not display the generosity of spirit and commitment to fair, impartial, and rigorous reading that makes genuine inquiry and debate possible.

Just as Jews can reasonably insist that those who speak about, e.g., Zionism, antisemitism, Orthodoxy, “chosenness”, or other weighted terms avoid strawman caricatures of such concepts, basic respect should compel Jewish speakers to seek out genuine knowledge of social justice theories grounded in actual, reputable primary source texts. Sweeping statements that such theories (for example) make crude divisions of the world into “oppressor” and “oppressed” classes, or explicitly identify Jews as White supremacist dominators, must be supported with evidence, not simply stated as if fact. Indeed, it seems apparent that the purpose of framing social justice concepts in such obviously farcical fashion is to avoid a reasoned discourse which might have to engage seriously with the significant normative, analytical, and observational insights such concepts bring to bear on crucial issues of equity. Such evasion is fundamentally incompatible with principles of open inquiry and fearless engagement that characterize Jewish communal discourse in its most robust and authentic form.

The signatories to this letter may take differing views as to the degree to which concepts like intersectionality and critical race theory aid in improving our understanding of Jewish experience. But we agree that any discussion about these concepts must take them seriously and read them fairly, and we are concerned that the attempt by some in the Jewish community to present such theories as inherently offensive, dangerous, or (paradoxically) censorial is in effect demanding the suppression or dismissal of important conversations the Jewish community should be having.

Many inside and outside of the Jewish community, including but not limited to Jews of Color, have been intimately involved in the creation, development, and application of social justice concepts — to the Jewish case and beyond. We urge that the Jewish community commit to including these voices as part of developing our collective understanding of what these concepts actually mean; and avoid speaking on these subjects based on rumor, innuendo, or hyperbolic sentiment. A commitment to such inclusion and to fair readings does not compel any particular conclusion; it does not demand either blind acceptance or knee-jerk criticism. Rather, it is the indispensable foundation on which any informed position on these matters must rest.

We, again, reiterate our view that liberal deliberative values are absolutely essential to the health and vitality of the Jewish community — values which include openness to challenging ideas and refusal to indulge in strawmanning, hyperbole, or other tools of dismissal. Precisely because we commit to these values, we are insistent that we live these values out in all contexts — including when engaging with theories of social justice that may be discomforting or controversial. We are confident that a recommitment to these values in the social justice context will help promote free, sophisticated, generous, and charitable engagement with all those who care about securing an equitable world.

We invite you to sign onto this open letter to add your voice to this call for open discourse, rigorous inquiry and generosity of spirit.

[Signatories]

Antisemitism vs. Illegitimate Anti-Israel(i) Discrimination

One thing I noticed come up a few times in the Moshava Philly saga was folks who (a) agreed that the conduct in question represented illegitimate discrimination against Israelis on the basis of nationality but (b) denied it was antisemitic. That is, they agreed it was wrong, just a different wrong from antisemitism.

I confess I haven't put a ton of thought into making this differentiation myself, particularly in cases (as here) where it seems that the "anti-Israeli" discrimination is inextricably bound up with the fact that the targets are Jewish Israelis, specifically (it is dubious that an Israeli Arab food truck would have faced the sort of pushback Moshava Philly experienced). In concept, it is obviously possibly for someone to have a prejudice against Israelis that has absolutely nothing to do with Jewishness -- it is even-handed hatred towards Israelis of all backgrounds and faiths. In practice, there are very few cases of illegitimate anti-Israel biases which are not linked in some way to its Jewishness (even if, on occasion, the link is that the non-Jewish Israelis are tied too closely with the Jewiness of it all).

But my own views notwithstanding, this got me to wondering: What are the stakes of insisting on this distinction between antisemitism and concededly illegitimate anti-Israeli discrimination? And if we do make the distinction what short-form name should we give to illegitimate anti-Israeli discrimination?

On the latter, the lack of a pithy title is inconvenient to say the least. I've heard "Ziophobia" used a few times, but let's just say not by the people who I'd expect to be invested in rigorously policing the difference between antisemitism and anti-Israeli discrimination. But I'm not sure a better term currently exists out there. Suggestions welcome.

On the former, certainly one often hears people emphatically distinguish between "antisemitism" and "legitimate criticism of Israel" -- an important distinction, to be sure. But this is different, since by stipulation the persons I'm talking about concede the "criticism" in question is not legitimate -- and, in particular, is not legitimate in a discriminatory and thereby morally wrongful fashion (there are plenty of cases where a criticism may be technically "wrong" but does not morally wrong anyone -- free speech must allow for some play in the joints where people are free to be mistaken -- but these cases go further and entail circumstances where by concession the bad behavior generates a valid claim of injustice). Given that, what are the consequences of being sure to say "this is wrong, and discriminatory, and should be opposed -- but we shouldn't call it antisemitic"?

My instinct is that it is part of a broader campaign to disassociate discourse about Israel in any form -- even concededly illegitimate forms -- from claims of antisemitism. In that way, it is an adjunct to the "legitimate criticism of Israel is not antisemitism" contention, albeit different in content. Holding fast to this distinction even in the cases of illegitimate criticism helps build the firewall which blocks accusations of antisemitism in the cases of legitimate criticism (or, perhaps more importantly, in the arguable cases).

And a side-effect -- perhaps desired, perhaps not -- is to prevent this form of discriminatory from accessing the particular moral punch of "antisemitism" as a concept. While nominally there's no reason why "antisemitic" discrimination has to be worse than "national origin discrimination against Israelis", practically speaking it represents a retreat -- it's bad, but not antisemitic bad. 

Part of what the disassociation campaign is doing, after all, is trying to split off discourse about Israel from the broader histories and structures of antisemitism that accentuate its dangers -- tying certain discourses into extreme manifestations of violence and oppression. The goal, in some ways, isn't just about protecting "legitimate" criticism but also about degrading the dangers of "illegitimate" criticism. There are all sorts of cases where we might think someone is being kind of extreme or ridiculous or unfair to, I dunno, Canada, and so we might "oppose" it insofar as we generally oppose extreme unfair ridiculousness, but we also don't view it as a four-alarm moral fire. The goal is to do the same thing when faced with unfairness towards Israel or Israelis -- not so much justify as make it mundane, make it small-potatoes, isolate it from any broader pattern or practice of systemic wrongdoing.

Chauvin Sentenced to 22.5 Years

Former Minneapolis police officer Derek Chauvin has been sentenced to 22.5 years in prison for the murder of George Floyd.

No sentence can bring George Floyd back to life, and hence no sentence can in itself create justice. Moreover, no sentence of Derek Chauvin can, in itself, reform the structures of policing that enabled George Floyd's murder. A single sentence, after the fact, does not change anything.

Nonetheless, the criminal sentence is important -- it is important for providing some measure of closure to Floyd's family, it is important as a signal of the seriousness with which we take crimes of this nature, and it is important as a means of communicating to other officers that this sort of behavior will be met with significant consequences. Chauvin faced a maximum of forty years; he asked for probation. The guidelines for an offender without a previous record would have been 12-15 years, but as the sentencing judge noted there were aggravating factors in this case.

Paul Butler said that taking all of that into account, an 18 year sentence struck him as appropriate. Twenty-two and a half years is more than that, but in the same ballpark. It strikes me as appropriate, proportional, and -- as far as can be achieved in unjust circumstances -- just. But my opinion is not especially important, so my main hope is that Floyd's family and community feel the same.

The Coda to the Israeli-American Food Truck Fiasco

(Previous posts here and here)

Eat Up the Borders, which ignited a firestorm of criticism after uninviting an Israeli-American immigrant food truck from its festival, has issued an apology.

It is, I think, a good apology. It provides relevant context, while making absolutely clear that they own their mistake and affirming their absolute intention to keep working with Moshava Philly in the future. While the apology is primarily -- an appropriately -- directed at Moshava and the Jewish community, it also at one point extends its apology to "the Jewish and Palestinian communities." I've seen some people push on this -- why the apology to Palestinians? -- but I don't have any particular problem. Eat Up the Borders made its own mistake, and yet Palestinians are having it imputed to them. To the extent Eat Up the Borders dragged them into a mess of their own creation, it's fine to apologize for that.

More broadly: apologies are important, and we should be encouraging Eat Up the Borders for doing so here. It's hard to apologize, and harder still when you know that many won't accept the apology and many others will be furious that one deigned to apologize at all. Sometimes it's paradoxically more comfortable sitting with obvious, outright antisemitism -- there is a weird sense of relief in finding a situation where everyone knows this was not okay, and there is the temptation to continue sitting in that comfortable position of righteous anger than to transition to the far more precarious, vulnerable, and uncertain posture of trying to grow forward. 

This is a temptation that must be resisted. If we want people to apologize and work to do better, one needs to respond favorably when they earnestly try to do so. Positive reinforcement is good! And this, I'd note, has been the consistent tone taken by Moshava Philly, which has been emphatic that it likes Eat Up the Borders, thinks they do good work, wants to continue working with them, and thinks this was a mistake they'll learn and grow from. If one refuses to allow for that possibility, one cannot hold oneself out as an ally to Moshava Philly.

In other thoughts: It was notable that, once this story broke into the mainstream, one spotted very few defenders of the decision to expel Moshava Philly. Obviously, they exist and one could find them if one looked, but the usual suspects remained pretty quiet and the slightly-less usual suspects tended to use this as a case of "here's an example of where a 'boycott' goes too far." So that's notable. 

Those who did come out in defense of the expulsion -- JVP's Swarthmore branch was probably the highest-profile case I saw -- really did a sterling job of demonstrating how BDS, at least for that camp of fundamentalist, is about objecting to Israelis existing in any form or capacity. Eater Philadelphia got a quote -- one of the first I've seen -- from one of the persons who initially put pressure on the festival to cut ties with Moshava Philly based on the view that its food was "appropriated Palestinian food that they’re marketing as Israeli food" and therefore "contributes to the marginalization and erasure of Palestinian culture" (as Ron Kampeas notes, when it comes to the food in question, this is both historically illiterate and erasive of Middle Eastern Jewish history).

But the flailing effort to find something -- anything -- that supposedly rendeered their targeting of Moshava Philly something more than just naked national origin discrimination made them look more ridiculous than righteous. A popular move was to claim that "moshava" means "settlement" (it means something like "small village", which, yes, most thesauruses would say is a synonym for "settlement", but not in the sense referred to here). Others poured over social media to find basic statements of pride in being Israeli or love of their country to present as mortal sins (Manny's in San Francisco endured a similar strategy). One "collective", for example, made the shocking discovery that a product that Moshava Philly sold had its origin in a farm which the proprietor began working on "illegally" in 1993 (the intended implication being that it was from an illegal West Bank settlement). Even that six-degrees-of-Kevin-Bacon tag fell apart when it was discovered that the farm in question was in pre-48 Israel (who knew that BDSers had so much respect for Israeli property law!), at which point they showed their whole self by declaring flatly that "It’s all a settlement: Tel Aviv is a settlement just like Havot Ma’on, or Kiryat Arba." So yeah, that's who we're dealing with.

Ultimately, this story ends on an optimistic note. The festival apologized. The promise to keep working with Moshava Philly was secured, and it appears neither grudging nor coerced. Moshava Philly has been very vocal about how humbled they've been from the outpouring of support they've received. Few, if any, mainstream actors did anything but say "this was wrong". Those are all good things. We can be happy about those good things, and work to build on them -- and it looks like both Moshava Philly and Eat Up the Borders are committed to doing so.

A Buffalo Socialist in the Heart of America

In a significant upset, self-described socialist candidate India Walton has dethroned incumbent Buffalo mayor Byron Brown in the Democratic primary, which makes her almost a shoo-in for the mayor's seat next election. The victory would make Walton the first socialist mayor of a major American city in sixty years.

Occurring on the same election day where Eric Adams looks likely to win the Democratic primary for mayor of New York City, this will certainly spark some chatter about where the future of left-wing politics lies in America. Upstate New York -- the old rust belt -- is a Democratic Socialist's fantasy of where they most want to be competitive, but historically haven't made much inroads compared to their success in upscale, wealthy areas like suburban Maryland. The dissonance between where they were winning and where their ideology says they should be winning was taking a toll, so this probably feels really good for them. It does mean the rest of us probably need to brace for another flurry of "socialist policies can win in the heartland" takes -- but listen, as skeptical as I remain, the one thing which can give that old tune new life is actually winning elections. So they've earned the right to drop another nickel into the jukebox.

In more immediate terms, I know virtually nothing about Walton, or Brown, or Buffalo. But in my uninformed opinion -- and what is the internet for if not uninformed opinions? -- Buffalo is the perfect place to try out a socialist as a mayor. It's a big enough city that one actually has to govern it and engage with diverse stakeholders rather than just grandstand, and it's far enough from the glare of national attention that Walton should be able to do her job more or less as a normal mayor without constant spotlight. That isn't to say she won't face opposition or pushback from various constituencies and power-brokers -- that's part of local politics, and navigating those shoals is part of what it means to be a success at local politics. But it's a good test case. Laboratories of democracy and all that.

So congratulations to Ms. Walton -- I look forward to seeing what you accomplish in your tenure!

What the Israeli-American Food Truck Fiasco Tells Us About (Some) BDSers

Briefly following up on the saga of the Israel-American food truck, and in particular JVP Swarthmore's position that expelling the truck from an immigrant food festival is a righteous example of BDS in action, I want to return to something I wrote a few years back about none other than Natalie Portman. In 2018, Portman refuses to travel to accept her award of the Genesis Prize in Israel because doing so would involve sharing a platform with Bibi Netanyahu. At the same time, she emphatically rejected that she was endorsing BDS, and affirmed her commitment to continue engaging with other Israeli voices and institutions.

Many pro-BDS persons nonetheless insisted that Portman -- her own avowals notwithstanding -- was in fact engaging in BDS. So (part of) my column was trying to explain why it mattered that Portman was so insistent that she was not doing so. Here's what I wrote:

It is one thing to say that a particular politician or a specific company stands beyond the pale, such that they cannot be productively engaged with until they alter their behavior. But when it is every politician, every company, every university, every artist, every film - at that point the message communicated becomes something different. 

The (well, a) problem with BDS, as a movement, is not that there is something intrinsically objectionable to not wanting to share a stage with Bibi or not purchasing a Sodastream. 

The problem is that BDS does not just cover Bibi or Sodastream. It covers the Anti-Defamation League and Jerusalem Open House and A Wider Bridge. It covers Moshe Halbertal and David Grossman and Ami Ayalon. It covers Tel Aviv University and it covers random middle schoolers who have questions about horses. 

It covers every Israeli company and every company that does business in Israel; it covers every Israeli movie, every Israeli actor, and every Israeli theater production.

(I didn't include perhaps the most incredible example I've seen in this ilk: complaints that a newspaper quiz that had a question about Israel's national bird was in breach of the BDS: "This includes any reference to their wildlife." But I digress.) 

Time and again BDS has shown itself to be a train that has no brakes. Vagaries about targeting "institutions, not individuals" - often only honored in the breach regardless - serve as no limit when any every institution is found guilty and any affiliation is implicating. 

Crossed with cousins like "anti-normalization" and "pinkwashing," BDS becomes a systemic and inescapable net ensnaring and excluding Israelis indiscriminately. Too often, it stretches even further and simply serves to exclude Jews-qua-Jews - anywhere, everywhere, in toto.

What's striking about the Moshava Philly fiasco is how it gives lie to so many of the purported limiting constructions of BDS that are meant to explain how it isn't simple antisemitism, xenophobia, or national origin discrimination.

• Some argue that BDS doesn't target Israelis-qua-Israelis, only organizations which have specific ties to problematic Israeli policies and are personally implicated in wrongdoing. But nobody is arguing that Moshava Philly has such ties -- its sin is simply that it serves the food of its own proprietors.

• Some argue that BDS is justified against all Israeli firms insofar as, by being in Israel, they are inherently acting as occupiers of Palestinian land. But Moshava Philly is, as the name suggests, in Philadelphia -- in turns out that even when Israeli Jews come to the, ahem, "real promised land" the taint still follows. It is its Israeli origin, not where it sits or does business in, that generates the contagion.

• Some argue that BDS doesn't object to Jewish presence in modern-day Israel per se, only that which is attributable to the "Zionist invasion" (see PLO charter Art. 6). Yet the term "Moshava" refers to villages the earliest of which were established prior to the First Aliyah by a mix of immigrants and persons who were already living in the Old Yishuv. This makes it all the more striking to witness the word "Moshava", literally "village",  being re-translated to mean "settlement" or "colony" in order to present Moshava Philly as some avatar of colonization -- an ordinary word made sinister by judicious leveraging of its exotic foreignness (we've seen this before). It turns out that when push comes to shove, the projects of pre-Zionist Jews in Eretz Yisrael are going to be portrayed as foreign, colonial impositions too -- because it's Jewish existence, not policy or practice, that ultimately is sufficient to earn the label of invasion.

• Some argue that "Israel" doesn't have a right to exist because only people, not states, have a right to exist. But here we see the view that the entire existence of an Israeli peoplehood -- even purely as culture -- is viewed as corrupt, tainted thievery, hence why the mere existence of "Israeli" food is presented as an affront. The problem, it turns out, is Israelis existing -- anywhere, anyhow, in any context. (I think even JDA would consider this antisemitic, though as always the question is whether any of its backers will actually stand up and apply the document to the case).

One thing I've said before about BDS is that, like other social movements, it will moderate as it mainstreams. People who endorse some forms of boycotts, divestments, or sanctions are a diverse group, and not all of them have any interest in these fundamentalist applications. It is wrong to say that anyone who says they won't buy wine from a West Bank settlement also necessarily endorses barring Israeli immigrant food trucks.

But we should be clear that there is a contingent -- and not a trivial one either -- that does intend to ride the train all the way to the end. For them, the train really has no brakes. And for them, their vision of BDS really is one that is incompatible with Jewish equality -- whether in Israel or abroad. We should be clear-eyed about who they are, and what they represent.

"Safety in Solidarity" and the Israeli-American Food Truck

Yesterday, Jewish social media was roiled by the story of a Israeli-American food truck, Moshava Philly, was expelled from the "Eat Up the Borders" immigrant food truck event after reported community pressure and threats. It was a depressing story, obviously, and a story about antisemitism, also obviously. But I have a few slightly-less (I think) obvious thoughts as well.

It is, right now, unclear whether the event organizers made their decision to remove Moshava Philly because they agreed with and/or where sympathetic to those objecting to Moshava Philly's presence, or whether they regretted the decision but felt their hands were tied due to credible threats that could endanger the entire event. The evidence is mixed, but for purposes of this post I'm going to assume the latter -- partially because that seems to be Moshava Philly's interpretation, and partially because if it's the former then there isn't really much interesting-non-obvious commentary to add.

It is a depressing reality that one has to assume that an organization like Eat Up the Borders, dedicated to promoting immigrant businesses in America, has experienced or at least contemplated what would happen if there was a racist backlash to its practices. This is not an unforeseeable development, at least in broad strokes. One has to think they had an idea of what they'd do in a case like this. So the question is whether this -- removing the targeted truck -- is in accord with that idea. People are saying that Eat Up the Borders would not have reacted in the same way had the racist backlash targeted a Mexican-American truck or an Iraqi-American truck or a Chinese-American truck.

Normally, I hate that "imagine if it were X group" argument, in part because is it often acts as if it is inconceivable that there would be a backlash against any other group. To the contrary, I can absolutely imagine a scenario where a racist backlash targeted the food truck of another community; I can even imagine a situation where the backlash got so dangerous and threatening that the event organizers felt no choice but to remove them from the event. It's not implausible.

But. I do think there is something different happening here. If Eat Up the Borders was facing a racist backlash, I think under normal circumstances they would not hesitate to vocally name it as a racist backlash. It might be a backlash that temporarily defeated them, it might be one that forced them to make a decision they'd rather not make. Racists can be powerful that way. But by naming it, they would lay the foundation for a counterattack: leverage the community to rally against the racists and provide the necessary support, resources, and security to ensure that all are welcome at the event and that the racists would not win in the end.

"Safety in solidarity". That's the motto we hear -- that threats like this don't need more police, they need a community response that unifies in support to keep everyone safe and included.

Something about this case, though, apparently made turning to that idea feel untenable to Eat Up the Borders. For whatever reason, they did not have the confidence that naming this as a racist backlash would generate the sort of outpouring of solidarity that might yield safety. The core "idea" wouldn't work here. People, Jews and non-Jews alike, sense that the foundations for such solidarity have not yet entrenched themselves, at least for Jews. For Jews, there still are hang-ups and excuses and rationalizations for why solidarity can be withheld -- they're powerful, they're appropriating, they're colonizers ... the list goes on. And they know, too, that to some extent the calls for racist exclusion against Jews are coming from inside the house -- opposing this form of racist backlash isn't about standing tall against big bad bigots "out there", but involves standing up and saying no to people on the inside.

At the end of the day, Jews know that "safety in solidarity" is not, at least right now, a check we're entitled to cash. It might be different if the people who loudly promoted "safety in solidarity" as the proper Jewish response to antisemitism got loud about instances like this. If they put out the call for solidarity and got a response, that could prove otherwise -- a powerful rallying and mobilizing on behalf of Moshava Philly that would blow away the assumption that solidarity would not be forthcoming. 

But they don't. Maybe because they themselves have mixed feelings about the presence of Israeli-American immigrants -- even as those "mixed feelings", at root, cannot be disaggregated from simple antisemitism and xenophobia. If one has a problem with immigrants because of the policies of the nation they immigrated from, or because they do not express outright hatred and contempt for their home, or because one views the entire culture of that nation as irrevocably tainted and grotesque -- that's xenophobia, full stop. If nothing else, Moshava Philly represents a very clean case where all of the supposed guardrails that distinguish "anti-Israel" from "antisemitism" -- from "it's about the government, not the people" to "it's about institutions, not individuals" -- have fallen away.

But mixed feelings is not the only problem here. Even if there is no such ambivalence, even if the "safety in solidarity" crew knows without a doubt that this is hate, I suspect they're quiet because, deep down, they harbor the same doubts as everyone else about what the response to their call would be.  Even if they know this is hate, they don't know that everyone else knows it too. They know the foundation isn't there yet.

It is worth noting that the entity in this sad affair that seems most invested in actually building this foundation is ... Moshava Philly. They've committed to staying invested in this community, of reaching out to Eat Up the Borders and doing the work. I wish I could say with confidence they'll succeed. It's not guaranteed. But it's worth trying, and they deserve our support as they try to use this terrible moment to build up rather than tear down.

UPDATE: NBC Philadelphia reports two new developments I hadn't heard before. The first is that now event organizers are claiming it had a policy of only allowing an Israeli food truck if a Palestinian one was present as well (and vice versa); this time the Palestinian food truck couldn't make it so they removed the Israeli one. That's a profoundly stupid reason, and also very different from what folks on both sides had been saying yesterday.

Second, it appears now the entire festival has been canceled.

UPDATE 2x: That JVP Swarthmore -- which has "safety through solidarity" in its bio -- is enthusiastically backing the expulsion of the Israeli-American immigrant vendor as a righteous example of BDS is almost too on-brand and makes for the perfect coda to this post.

Democrats for More Democrats

One of my favorite social campaign slogans of all time is "Neighbors for more neighbors" -- the mantra of supporters of upzoning in Minneapolis-St. Paul. And to co-opt it, Democrats should support policies that create more Democrats.

At one level, that's obvious; at another, it's obscure. What does it mean for a policy to "create" more Democrats? It'd be nice if "good policy that makes people's lives better" had a direct connection to getting more votes, but I'm dubious. Typically, the process through which people become members of a political party is a little less straightforward -- working through cultural affinity and other group dynamics as much if not more so than policy preferences. And on the other side, we should not support a policy that's objectively unethical just because it might redound to the transient political advantage of the Democratic Party. All politics is, in a sense, a trade-off between what's right and what's expedient, but the very best political moves -- the true no-brainers -- are those which are both right and expedient. What we'd want, then, are policies that are both (a) objectively good and (b) are likely to inject more Democratic voters into the polity. 

Statehood for DC (and the other colonies) is an obvious one -- it rectifies a clear injustice of areas under permanent American jurisdiction which lack political representation, and most of the relevant places are strongly blue-leaning (at "worst", places like Puerto Rico are swingy) and so would add more Democrats into American politics.

Immigration reform is, potentially, another. Again, it is correct on the ethics, but it also is likely that many (not all) of the immigrant populations will be inclined to vote blue -- particularly if Republicans insist on declaring loudly and consistently that the immigrants aren't welcome here. Accelerating paths to citizenship -- basically, creating a fatter spigot of naturalized U.S. citizens -- will likely yield more Democratic voters.

A less obvious play is policies which enhance college accessibility ("free college" or related programs), resulting in more Americans getting college-educated. The big story in American voter behavior over the past decade is that partisanship is now sorted almost entirely along the dimension of education -- higher-education cohorts voting blue, lower-education cohorts voting red (this holds even accounting for differences in wealth -- high-ed/low-income voters are still blue, high-income/low-ed voters are still red). 

Does this mean that, if more Americans go to college, they'll come out Democrats? Not necessarily -- it could be that "people who are Democrats are more inclined to go to college" rather than "going to college makes people more inclined to become a Democrat" -- if that's the case, then adding new college attendees won't change the underlying partisan composition of the electorate. But I'm inclined to think that the causal arrow does flow in the direction of "college attendance --> Democrat" rather than vice versa. One hint that this is right is that we're seeing a big shift in voting patterns from college-educated voters who are long-since removed from college, which seems more compatible with college attendance --> Democrat than Democrat --> college attendance.

But what makes the pattern work? It's not because lefty professors are successfully indoctrinating students (as we often remark, we can't even get them to read the syllabus!). In part, it may be that college exposes students to people from a wider range of backgrounds and experiences than might otherwise be the case; that horizon-broadening experience fits better with political progressivism. But right now, I think the larger answer is simply a form of cultural affinity (or, to be a little cruder, tribalism): college-educated persons now are far more likely to be liberals than not, and that very consensus makes it more likely that each marginal member of the college-educated cohort will also be liberal (the same is true for non-college educated voters, but in reverse). People tend to adopt the politics of their surrounding community; if their community is fellow college-educated persons, they'll trend towards the predominant views of that set.

What this means is that if Democrats make a big push to increase the number of Americans who get college degrees, it is likely that the result will be more Democratic voters. It's not going to be everyone, of course. But I suspect if one randomly assigned a sample of Americans who were not planning to attend college into two groups -- one sent to college, one not -- the former would in four years have more Democratic voters than the latter.

It's good to give representation to places under American sovereignty. It's good to welcome immigrants who want to make their home here into the fabric of America. And it's good to increase college accessibility and affordability for Americans of all backgrounds. But each of these policies, in addition to their moral goods, may have the additional happy consequence of creating more Democratic voters. Democrats for more Democrats, please.

Blogging Queen, Young and Sweet, Only Seventeen

Happy birthday to this blog, which just turned seventeen years old today!

In that time, I have ...

• earned four degrees (B.A., J.D., M.A., Ph.D.)
• lived in eight cities (and ten different apartment buildings, not including dorms)
• taught at three universities (Illinois, Berkeley, and DePaul) in two different departments (law and political science)
• held two non-academic full-time jobs and three non-academic summer jobs
• had one girlfriend/wife (yup -- while I had some high school girlfriends, she's the only person I dated from the time this blog started to present)

And after so much flux and turmoil ... I have just officially begun as an assistant professor at Lewis & Clark Law School! So following a move to one last city, this list should stabilize significantly over (knock on wood) the next seventeen years.

Bad Clients Make Shaky Law on National Origin Discrimination

I just saw an interesting new decision out of New York, Bibliotechnical Athenaeum v. American University of Beirut, concluding that "national origin" anti-discrimination protections do not encompass discrimination against a company for its place of incorporation. The short version of the facts: BA is incorporated in Israel with it's principle place of business in New York, it sought to participate in AUB's online job fair, when it told AUB it was an Israeli company, AUB locked it out of the fair, BA sues alleging national origin discrimination.

It is well-established that a corporation can be subjected to "discrimination" under federal law (on account of race, ethnicity, national origin, or other protected characteristics). But that right is derivative of the identities of members of the corporation -- its shareholders, officers, employees, etc. -- and so merely noting that a company has incorporated in Israel does not demonstrate that any of its human beings are of Israeli national origin. For example, sometimes a company incorporates in a given state purely for tax purposes, but none of its officers or employees have any particular connection to the company. BA, for its part, did not plead any facts demonstrating a connection to Israel beyond the fact that it was incorporated there, and so the court concluded that if that was its only link to Israel, discrimination based on that fact is not actually "national origin" discrimination.

Precedents like this make me nervous. I get the example of how weird it would be for a company which incorporates in some random country for tax purposes being imputed as having the "national origin" of that country for discrimination law claims. At the same time, any time one opens a hole like this -- "national origin discrimination is forbidden, but this thing that's one step adjacent to national origin discrimination and could be used to effectively do the same thing as national origin discrimination is a-ok" -- one does serious damage to the vitality of anti-discrimination law. Exempting from "national origin discrimination" "discrimination on basis of place of incorporation or place of business" is an exception that could easily swallow the rule.

What's going on here? The name "Bibliotechnical Athenaeum" rang a bell -- I had heard of litigation they launched a few years ago against the National Lawyers Guild when the latter refused to accept an ad from them listing their (West Bank) address as in "Israel". But I didn't know anything else about who they were, so this time around I did some research.

Or tried to, anyway. It's virtually impossible to find anything about Bibliotechnical Athenaeum aside from coverage of lawsuits like this (which it appears to launch in collaboration with the Lawfare Project). Indeed, my strong suspicion is that they only exist to launch lawsuits like this: go up to a target they suspect does BDS-like activity, say "we're Israeli and we want to participate", then sue the organization when it locks them out. But aside from that, they don't do any substantive work (the above link on the NLG litigation says that "Bibliotechnical is not an operational, commercial business enterprise."). They are a vehicle for launching lawsuits, nothing more.

Judges tend not to look favorably on this sort of concocted litigation. The most noble example one could find is the "testers" sometimes employed by the Fair Housing Authority, to see if apartments are treating Black and White applicants alike. These are usually state employees, though, engaging in a specific enforcement mission. For better or for worse, more recent efforts by people to fly solo in this endeavor are less warmly received. I recall a series of cases from the Eighth Circuit in the past few years where a guy in a wheelchair would drive hours away from his house to random restaurants looking for technical violations of the ADA, take some pictures, and then sue the business. He didn't have any actual interest in dining at the establishments -- he was just looking for the settlement. The Eighth Circuit started rejecting these "drive-by" cases on standing grounds, saying the plaintiff was not actually injured.

I suspect that the judge in this case perceived this litigation as of a similar sort -- an ideological "drive-by" from an entity that did not actually have any real interest in working with AUB or hiring at its job fair. The fact that BA couldn't plead a tangible connection to Israel other than incorporating there (and, one surmises, it incorporated there solely so it could claim to be "Israeli" when launching litigation like this) further underscored the sense that it was engaging in abusive gamesmanship. And so the court took the path of least resistance in getting rid of the claim, which was to leverage the relatively meager connections between BA and Israel (at least as the case was pled) in order to say that it does not qualify as national origin discrimination under the statute.

However -- cases launched by bad clients still establish governing law. When Bibliotechnical (and Lawfare) launch a case like this and lose, they establish precedents that make life harder for entities with actual, non-concocted legal claims. One can easily imagine an actual company that does actual business and is actually harmed by being excluded from a job fair or whatnot suing for national origin discrimination, and the defense pointing to this case and saying "no no -- we're not excluding you because of national origin, we're excluding you because of the nation you're incorporated in, and that's totally fine!"

Ideally, the cases could be distinguished -- there is language in this opinion which suggests things would be different if BA plead connections to Israel that went beyond place-of-incorporation. But there's also language that is more sweeping in suggesting that, so long as the discriminator is targeting the company for its place of incorporation, no national origin discrimination can be found, period. The former, I think, is the better read; but the latter is absolutely available. And so a bad client makes, at best, very shaky law. Way to ruin it, guys.

Condemning Antisemitism Alone

The Senate just passed S. Res. 252, "A resolution unequivocally condemning the recent rise in antisemitic violence and harassment targeting Jewish Americans, and standing in solidarity with those affected by antisemitism." The resolution, spearheaded by Sen. Jacky Rosen (D-NV), was broadly bipartisan and passed by voice vote.

I've heard very little about this resolution -- in particular, I've heard much less than I've heard complaints over the last few years that politicians don't condemn antisemitism or don't condemn antisemitism "alone" because they link it to condemnations of Islamophobia, racism, or other forms of oppression. I don't find the latter move as offensive as some do, but in any case this resolution is exclusively about antisemitism -- no "and all forms of racism" language here. I hope that the quietude around the resolution is not because certain persons prefer complaining about Jews allegedly being left to fend for ourselves around antisemitism than they do acknowledging when America's political institutions do, in fact, come to support us in the face of antisemitism.

In terms of specifics, the resolution expressly ties the recent surge in antisemitism to the surge in hostilities between Israel and Hamas in Gaza. It also notes a Department of Homeland Security report that concludes that White Supremacist terrorists "will remain the most persistent and lethal threat" to domestic security. It cites instances of antisemitism by prominent politicians in Turkey and Pakistan relating to Israel, as well as the spread of COVID-19 related conspiracy theories, Holocaust denial and distortion, and hate crime spikes. There could be more. There always could be more. But objectively speaking, this is a comprehensive condemnation of antisemitism as it manifests across the political and ideological spectrum.

I thank Senator Rosen for her leadership on this issue, and be grateful that it passed the Senate with seemingly little consternation or conflict. And hopefully, the next time we are tempted by the thought that America turns a blind eye to antisemitism or refuses to condemn it or refuses to condemn it "alone", we remember this resolution.

Between "One-Sided" and "Equating", and Other Curmudgeonly Thoughts

So there's another Ilhan Omar thing in the news. I'm in Portland, and having a very nice trip thank you very much, and most certainly do not have time to give this any real attention even though it is pushing all my curmudgeonly buttons.

The short version: Referring to a discussion she had with Secretary of State Anthony Blinken regarding ICC investigations in war crimes which included inquiries into cases involving the U.S., Israel, Hamas, Afghanistan, and the Taliban, Omar tweeted that:

We must have the same level of accountability and justice for all victims of crimes against humanity. … We have seen unthinkable atrocities committed by the U.S., Hamas, Israel, Afghanistan, and the Taliban.”

This generated a public response from 12 Jewish Democrats who asked Omar to "clarify" her remarks:

Equating the United States and Israel to Hamas and the Taliban is as offensive as it is misguided. Ignoring the differences between democracies governed by the rule of law and contemptible organizations that engage in terrorism at best discredits one’s intended argument and at worst reflects deep-seated prejudice.

The United States and Israel are imperfect and, like all democracies, at times deserving of critique, but false equivalencies give cover to terrorist groups. We urge Congresswoman Omar to clarify her words placing the US and Israel in the same category as Hamas and the Taliban.

And in turn, Rep. Omar provided said clarification:

On Monday, I asked Secretary of State Antony Blinken about ongoing International Criminal Court investigations. To be clear: the conversation was about accountability for specific incidents regarding those ICC cases, not a moral comparison between Hamas and the Taliban and the U.S. and Israel. I was in no way equating terrorist organizations with democratic countries with well-established judicial system.

Framed that way, I might have ventured that this was a success story. Rep. Omar issued a perhaps awkwardly worded tweet; she was asked to "clarify" her views; she did so. Huzzah!

But of course, life is never so simple, and so in the midst of this we had people making claims of antisemitism and Islamophobia and silencing and double-standards. This Is The Bad Place.

So -- a few thoughts:

Thought #1: A common refrain I've heard many times from pro-Israel sorts is that they're fine with criticizing Israel, of course they're fine with criticizing Israel, it's slanderous to say they're not fine with criticizing Israel; but the criticism can't be one-sided criticism, it needs to be clear that Hamas commits wrongs worth criticizing too. Which, sure, that makes sense. Except that it often seems that if one does criticize both sides, then the fact of criticizing both sides will itself be indicted -- this time for "equating" the two (this is the mirror image of those who assert that any mention of Hamas misdeeds represents an illegitimate blurring of the "power dynamics" between Israel and Palestine, acting as if there are "two sides" to the conflict).  Such persons don't really object to "one-sidedness" -- they love one-sidedness, they just want the one-side to be the other side.

Indeed, the cynic might wonder whether the only time criticism of Israel is legitimate is when it's one-sided, because only then do we get the litany of affirmations agreeing that "criticism" is legitimate so long as it's not "one-sided". If one comes out of the gate with the "two-sided" criticism, those invocations go mysteriously mute in favor of complaints about "equation". That inconsistency is a problem.

Thought #2: A lot of people have been sharing a Mehdi Hasan tweet where he compares what Omar said to Trump's infamous "You think our country's so innocent?" retort to condemnations of Russian human rights atrocities. As far as Republicans go, that's a fine hypocrisy argument; but as with all hypocrisy arguments it cuts both ways -- the standard Democratic view of Trump's statement was not to say "hey, when he's right he's right" but rather to condemn an alarming failure of perspective. And to Hasan's credit, he cops to this and says forthrightly that "once you take out all the nakedly partisan pointscoring and thinskinned patriotic chestbeating, Trump's point is right." But folks who aren't willing to go down that road should think more carefully about their arguments.

Thought #3: Someone suggested on Twitter that Omar, insofar as she calls out human rights violations from sources that would normally be taboo in American politics (such as, say, American violations), stands out for being consistent in a way other politicians aren't. But I'm not sure that's quite right. It's true that Omar calls out violations in places many other politicians don't, but its also true that Omar can be weirdly reticent to call out human rights violations in places many other politicians wouldn't hesitate (see: her "present" vote on the Armenian genocide resolution). So perhaps it's fairer to say she's inconsistent in an atypical way -- albeit an atypicality that is very much aligned with a particular style of leftist politics associated with her base.

Thought #4: We saw a lot of claims from Omar's defenders that the criticism of her on this issue was itself a case of racism, Islamophobia, misogyny, or these all in combination -- a double-standard where women who look like her and have her background are jumped on by mobs baying for blood whilst other politicians of different identities are given infinite benefit of the doubt. I have more sympathy for this argument than one might expect. But, having read the Jerusalem Declaration on Antisemitism I now know that both claimed double-standards and seemingly excessive vitriol and attention devoted to members of or entities associated with marginalized groups are not valid signifiers of bigotry, even if one disagrees with them on the merits, and that asserting otherwise is itself an attempt to silence free speech. It's nice to have that cleared up.

Thought #5: I said I'm a curmudgeon above, but I'm a curmudgeon with a heart of gold, and what that means in practice is that what I'm most curmudgeonly about is what I see as unnecessary fighting. So my main takeaway is this: Omar's original point was not unreasonable. The Jewish Democrats letter asking for clarification was also not unreasonable. And Omar's response to that letter was also, also not unreasonable. Neither "side" did anything that was worth me spending a millisecond thinking about any of this during my first "trip" in a year and a half.

So, to everyone else, I'll quote a sadly disgraced former jurist who nonetheless was good with the bon mot: "The parties are advised to chill." And let me enjoy my Portland trip in peace, dammit!

We're Going To Die in Portland!

Tomorrow, Jill and I are headed off to Portland. This time it's just an onboarding/apartment hunting trip -- we're returning to Chicago on Sunday, and not actually moving until August. But by the end of this trip, I'll be officially started as an assistant professor at Lewis & Clark!

"We're Going To Die in Portland" refers to something Jill said shortly after I accepted the job at Lewis & Clark. We've been extremely mobile in our relationship, including one period where we lived in five cities in five years. That's because every single job I've had since graduating Carleton has been temporary -- either explicitly (as in a fixed term clerkship), or implicitly (as in my stint at Covington when I knew I would leave when an academic opportunity emerged). This job, by contrast, is of indefinite duration -- there is a very real chance we'll be spending the rest of our lives in Portland. And Jill expressed that realization by saying, in a voice of pure wonderment tinged even with a little excitement: "I'm going to die in Portland!"

The Trump Post-Election Play Comes to Israel

While by all appearances Bibi has lost control of the Prime Minister's post, it ain't over until someone else's butt is physically in the chair. And until that moment happens, Netanyahu is taking a page from Trump's book on how to lose an election: raging incitement, spurious claims of fraud, and ramping up violence.

Israeli Prime Minister Benjamin Netanyahu condemned violent rhetoric on “every side” of the political spectrum Sunday but also claimed that Israel’s incoming government, which will replace him, is the result of “the greatest electoral fraud in the history of the country.”

Netanyahu’s speech came as the head of Israel’s Shin Bet security service warned of a rise in rhetoric that encourages violence. A pro-Netanyahu lawmaker compared two of his rivals to “terrorists” facing a “death sentence,” and members of the incoming coalition have received death threats in recent days.

At least one American Middle East analyst compared Netanyahu’s words to former President Donald Trump’s rhetoric ahead of Jan. 6. 

One of Netanyahu's allies, Itamar Ben-Gvir (you may remember him for having a portrait of the terrorist Baruch Goldstein hanging in his house) is promising to lead a march of right-wing extremists through Arab neighborhoods in Jerusalem in the obvious hopes of provoking another spate of inter-ethnic violence that might derail the new government. The march has already been deemed illegal, but Ben-Gvir says he's going to exploit his parliamentary immunity (thanks, Bibi, for shepherding him into the Knesset) to lead it anyway.

Why is Bibi doing this? Well, obviously, he's desperate to hang on to power by any means necessary -- that's been clear for awhile. But the reason he's adopting these tactics is because Trump demonstrated that they could work. They didn't, in Trump's case, and they probably won't in Bibi's either. But they came far closer to working than anyone should be comfortable with -- close enough so that Bibi's willing to give them a shot, consequences be damned.