Pre-Game Round-Up

What time is it? It's debating time!!!! I'm off to my first debate tournament of the term this weekend, leaving at 4:30 AM Friday morning. It's in Seward, Nebraska, which kind of sucks, but on the other hand our 6 hour drive takes us through scenic Iowa. I bet the time will fly.

In any event, I'm bringing my computer along (I have some editing I need to do), but I can't guarantee that they have the internet in Nebraska. So the blog may be on hiatus until Monday. But until that happy day, here is a variety of interesting stuff to tide you over.

Terra Nova is a blog exploring issues surrounding online multiplayer games. That may seem geeky to the extreme, and perhaps it is, but the contributors are all legitimate scholars or experts on the subject. Some of the posts are actually quite fascinating, and I speak as someone who has never partook in any sort of online gaming experience whatsoever (well, internet Reversi a few times, but that is IT).

Patrick Belton has a neato post on the upcoming elections in Palestine. Hamas, of course, is the X factor here:

Skulking about the strategic studies centres of their universities, the Israelis seem of two minds when it comes to Hamas's projected strong showing in the polls - either it won't be that bad, as they'll likely moderate and deal cleanly with administration and garbage collection, or it's an end to Oslo and the start of a good bit of jihad; there's also the possibility the lads in green might accidentally win outright, which no one seems to want, least of all possibly Hamas. ('Much easier to keep your virginity when you're not in power,' was how an analyst at the Jaffee Centre put it to me.)

As for me, I have a lot of trouble getting past the fact that the far-and-away most popular candidate in that election is currently serving life in prison for quintuple homicide. But I suppose that's just the cynic in me talking.

A pair of good posts are up over at PrawfsBlawg, one by Tun Ying about the difficulty in applying traditional international law metrics to the current war on terrorism (especially status-of-detainee questions), and another by Rick Garnett about a forthcoming article by two Ivy League Law Professors entitled "Christianity and the Modest Rule of Law." This strikes me as a topic for Mark Olsen to tackle.

Fortunately, I don't have too many flamers in comments, so I don't need to resort to this tactic to get rid of them (yet).

Ian Ayers delves into Alito's professed ignorance about the discriminatory policies of CAP, using it as a springboard to discuss "associational fraud." Ayers wants groups to be more transparent when they deviate from generally applicable anti-discrimination codes (such as the Boy Scouts' anti-gay discrimination). I've previously expressed concern over the proposal, though I'm certainly sympathetic. Also at Balkinzation, Professor Balkin himself gives the best analysis I've seen of the Supreme Court's Ayotte decision.

Daily Kos has a new election toy. It's fun--check it out!

Interesting analysis of Bin Laden's "truce" offer over at Restless Mania. See also Dan Drezner.

Crooked Timber gives UCLA Profs (of which I previously blogged about here) only 1/2 a McCarthy out of 5. How sad. But keep trying folks!

Hilzoy of Obsidian Wings has an absolute must-read post on the Medicare "reforms" and how it could affect her.

The more I read about Paul Hackett, the more I can't decide if he's crazy or a breath of fresh air. Lindsay Beyerstein has his latest foray to the media.

Dan Filler examines the Supermax prison.

Alright! Hopefully, I'll also post this weekend (or even later tonight), but if not, see you Monday!

The Radicals Exposing UCLA's "Radicals"

Now here is something vaguely disturbing. A segment of the blogosphere is racing on this story about "UCLA Profs", a website dedicated to "exposing UCLA's radical professors."

There are several things disturbing about the site. The most obvious is their policy of soliciting cash donations from students who provide information about so-called "radicals." UCLA Law Professor Jerry Kang (whom I've previously expressed admiration for) notes that this might be illegal.

But really, the big problem is the disconnect between the stated purpose of the site and what it actually does. As the "About" section makes clear, the site nominally is about preventing Professors from incorporating and proselytizing their "radicalness" in the classroom (at least where it isn't topical):

As a large number of the profiles also demonstrate, these professors are actively proselytizing their extreme views in the classroom, whether or not the commentary is relevant to the class topic.
[...]
Take a minute to skim several profiles. The need for an academic freedom movement that respects both the professor and the student should become clear.

We believe there is hope for depoliticizing the classroom and emphasizing professional behavior - provided we can count on your support.

By itself, this isn't too objectionable. The idea that professor should limit themselves to their topic area, and not be missionizers in the classroom, is at least a reasonable position to take. But yet, it doesn't seem like they are limiting themselves to that. Instead, they are just targeting professors who take positions in their scholarship which they dislike, or who take public political positions that aren't sufficiently conservative (John Cole predicted this without even reading a word on the site).

Take Professor Kang, who (rather surprisingly, to my eye) made their original list. Their justification is really nothing more than he has written defenses of affirmative action, while at the same time disapproves of racial profiling. I understand that conservatives may not like those positions, but in today's political climate they hardly qualify as radical. Worse is the persistent undertone in the piece that Kang is a traitor to his race. They ask

"Why would this Korean-American, who managed stunning educational achievements in spite of 1980's-era racial preferences, favor a system that so manifestly harms his own ethnic group?"

Later, they get on him for his writings on the grave injustice of the Japanese internment--again, implying that he shouldn't care because he's Korean-American:

[Kang] has internalized the historical tragedies of one group as though they were his own. Thus, we find Kang waving the bloody shirt of Japanese internment every chance he gets.
[...]
Kang's strange preoccupation with this historical footnote is in defiance of all reasonable history. Kang was born in South Korea, a country that (in its original undivided form) suffered for 50 years under a harsh imperial Japanese occupation. Moreover, South Korea was a country saved from Communist despotry by the United States not less than a decade after our brief use of Japanese internment camps.

Emphasis added. Of course, calling the Japanese internment a "historical footnote" might be the most radical thing I've read today. But more importantly, the implication that a "good" Korean should just laugh at American injustice toward other Americans (of Japanese descent) is both morally appalling, and gives lie to their self-proclaimed support for treating individuals as individuals, and not markers for their specific ethnic group.

In terms of how they deal with Kang's research, their grasp is laughable at best. They understate his findings, distort his positions, and most importantly don't understand the scholarly context in which it operates inside of--points which would answer many of their objections if they bothered to do the research. But really that's besides the point, because again at the end of the day all they're proving is that Kang disagrees with them, not that Kang is some blight on UCLA's campus. In fact, given their surprising admissions of Kang's rhetorical and argumentative skill, it seems most likely that this group simply wanted to tar an able advocate for progressive causes in California and across the country.

I just went through Kang's profile, because he was the scholar I recognized, but he doesn't seem to be the only one attacked solely for his academic or public positions. UCLA Corporate Law Professor Stephen Bainbridge adds another of his colleagues (see below), and Jennifer Mnookin, another UCLA Prawf (albeit one not on the list) claims that:

Also, while claiming that their concern is about bias in the classroom, when I skimmed through the profiles of a few of my colleagues who made the list, what I saw instead was nasty, vitriolic attacks on their scholarship, their political activities, and nary a word about alleged bias within the actual classroom. In both tone and vehemence, it seemed to me like familiar right-wing radio tactics brought home to the ivory tower, not a pretty sight.

I should note that the two conservative professors I know at UCLA, Stephen Bainbridge and Eugene Volokh, take exactly the right line on this. Bainbridge writes:

My major objection to the BAA project is that they're mixing apples and oranges. In some cases, such as my colleague Jonathan Zasloff, they don't offer a single shred of evidence of in-class bias or other abuses of position. Instead, they object to various political activies in which Zasloff has engaged outside the classroom and on his own time. If that's the standard, than people like me and Eugene Volokh should be on the list too, since our work for conservative causes differs but little from that of Zasloff for liberal causes.

If BAA is going to go forward, a question on which I am firmly agnostic, I should think...they also need to draw a distinction between in-class abuse of position and legitimate political expression outside of class. So far, it would seem, they are falling down on [that] score[].

And Professor Volokh similarly notes the shallowness of their critiques in his own post.

Both Volokh and Bainbridge also further note that as a general matter, fair public criticism professors is not something that is bad. It is a constitutional right, and some might say also a positive boon to our collective academic discourse. If public criticism acts as a deterrent to taking controversial views, Volokh asks, then why do professors have their tenure protections at all? And Bainbridge notes that in the internet age, criticism is something that the powerful are just going to have to have to suck up and accept:

Getting feedback from the proletariat is always unsettling for authority figures, even radical left authority figures who have devoted their lives to deconstructing all authority (except their own). The initial and, perhaps natural, reaction is to decry it as McCarthyism and a danger and so on....

Upon mature reflection, however, we have to realize that the world has changed. Those over whom we have authority now have at their disposal technology that gives them a very loud megaphone. Very public criticism has become the lot of all authority figures, including those within the ivory tower.

All of that is well and good. This sort of free debate is neither bad nor, in today's world anyway, possible to stop. Liberal professors should not be ashamed of their political beliefs or of their public revelation. But this particular site claims to be about revealing the "classroom politics" of the "radicals." And it's not. It's simply a poorly informed smear job performed that doesn't even meet it's own professed reason for existence. It conflates the two very separate issues of radical politics in scholarship or in the "public," and discrimination or missionary activity in the classroom. Play the game straight, or don't play it all. That's not too much to ask.

Quick update: I'm stunned that Devon Carbado didn't make their list. He's certainly a lefty, and an extraordinarily talented one to boot. If I were him, I'd be insulted he wasn't put on. But anyway, he also has an interesting post from an insiders-perspective.

Death Watch

The U.S. Supreme Court has just struck down a federal effort to stop legal assisted suicide in Oregon. Oregonians have twice approved the law for effect in their state, but then-Attorney General John Ashcroft tried to circumvent the law by interpreting that Controlled Substances Act in such a manner as to preclude the Oregon law. By a 6-3 vote, the Court held that this was beyond the scope of what was authorized by the CSA (Roberts, Scalia, and Thomas dissenting). The case was Gonzalez v. Oregon.

There are a couple points to be made here. The first is the most obvious: how this case is an arrow through the heart of conservative claims to support federalism--or strict constructionalism for that matter. Consider this nugget from Scalia's dissent:

The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But....[f]rom an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality....

You got that? Even though it is found nowhere in the constitution, and justified by nothing more than a vague reference to "public morality", and involves an area traditionally left to the states, it's still a perfectly permissible. Oh, and though Scalia says that we've done this "from an early time in our national history," the earliest case he cites is from 1903, a good 110 years beyond the drafting of the Interstate Commerce Clause, and well beyond the time when a good little originalist like Scalia normally considers to be an "early time" for a constitutional clause. Not only that, but as Legal Fiction notes, Scalia isn't even consistent with that formulation--his vote to strike down the Violence Against Women Act seems difficult to square with an opinion that says congress can use interstate commerce to regulate morality (unless, of course, beating women isn't a moral issue at all).

Robert Tsai gives the take-down of Justice Thomas' separate dissent.

An interesting question is why Oregon lost Justice Thomas, who is moved to write separately. Remember, Thomas dissented in Gonzalez v. Raich, in which the Court struck down California's medical marijuana law as interfering with the CSA's regime. The state had an extremely difficult argument because Congress has specifically enacted a law listing marijuana as a schedule I substance. By contrast, the Republican Congress had tried to ban assisted suicide and failed to muster enough votes before Ashcroft issued the interpretive rule.

There are three possible explanations for Justice Thomas' sudden coolness toward federalism. First, he really does believe that Raich decided every possible federal-state question that could arise involving the CSA. I think this is unlikely--not even Scalia would go that far in his devotion to stare decisis--and Justice Thomas has in other federalism cases shown a willingness to narrowly construe inconvenient precedent. Second, he does not particularly believe that life-ending decisions are the kinds of things that implicate core state powers. A third possibility is that he is personally opposed to suicide of any kind, and his willingness to permit the cultivation of national moral standards trumps his sympathy for state sovereignty. In my view, the answer involves some combination of explanations two and three.

Nothing more to add to that--it's the politics, baby.

That's all very interesting, but it's been said by every commentator under the sun. What I'm interested in is what it reveals about our new Chief Justice, John Roberts. His dissenting vote on this case is very interesting. It is difficult to imagine a state's rights advocate like William Rehnquist making this vote. So right there we have a major difference in opinion between the old Chief and the new one--one I don't think reflects well on Roberts.

Because while this case had federalism implications, at its very core, it was actually an executive power case. Did the Attorney General (a member of the Executive Branch), have the authority to interpret a federal statute in this manner, or did it need congressional authorization first? This may seem rather arcane, but look at how Orin Kerr excerpted from Justice Kennedy's majority opinion and you may see what I'm getting at.

[T]he Attorney General claims extraordinary authority. If the Attorney General's argument were correct, his power ... would be unrestrained. It would be anomalous for Congress to have so painstakingly described the Attorney General's limited authority ... but to have given him, just by implication, authority [over] an entire class of activity ....
[...]
The Government, in the end, maintains that the [statute] delegates to a single Executive officer the power to effect a radical shift of authority .... The text and structure of the [statute] show that Congress did not have this far-reaching intent to alter the [institutional] balance and the congressional role in maintaining it.

As Kerr notes, this is precisely the type of language one can imagine being used in the NSA wiretapping cases, in opposition to the broad and unrestrained federal power the President claims he has inherently under Article II. And by contrast, Roberts' dissent shows that he is quite comfortable with extraordinarily broad interpretations of executive power with little or no congressional authorization to back it up.

Finally, Professor Bainbridge is "confused" as to why "federal drug law does not preempt state law when it comes to doctors prescribing drugs so their patients can kill themselves, despite the long-standing moral and legal traditions against suicide. But federal drug law does preempt a state law that would allow doctors to alleviate suffering by prescribing a simple joint." The "hyper-technical" explanation you seek, Professor, is that congress authorized the latter but not the former. I don't think that Professor Bainbridge himself subscribes to this theory, but it really is a sad day in America where congressional approval of executive actions really is argued by some to be an irrelevant "hyper-technical."

See also: INDC Journal
John Cole
Baseball Crank
Kevin Drum
Rick Garnett

Another issue I want to hit briefly was a CNN report on a Massachusetts case involving removing an 11 year old girl who is in a permanent vegetative state from life support. Here's the twist: she's currently under the custody of the state. The person suing, and the closest thing she has to a legal guardian, is her step-father--who stands accused of committing the beating that put her in this state. The Court ruled that the state can take her off life support

This is a perfect manifestation of the axiom that "great cases and hard cases make bad law." I'm uncomfortable with giving the state authority to make this decision--but letting her abusive step-father do it seems, if anything worse. Anyway, just though I'd throw that one out there, because it's topical and timely.

UPDATE: So of all the folks accusing Scalia of hypocrisy, Baseball Crank (C/P'd at Redstate) plucks me out of the crowd to set an example with. It's a good post, but I don't come away convinced that Scalia is saved here.

The crux of the argument comes down to two things. The first is the whole nebulous "public morality" justification for legislation. Scalia thinks that this is "settled law," but it's hard to see how in the wake of Romer v. Evans and Lawrence v. Texas. Scalia was indeed apoplectic at how these cases eroded the government's power to make morality based legislation--it's hard for him to turn around two and a half years later and say it's still "settled."

The second is on enumerated "powers" versus enumerated "purposes." Congress must clearly stay within the former, the question is what it has to do with latter. And I think that's a complex issue. For the most part, I don't think congress has to stay within enumerated purposes when enacted legislation. However, there is a significant caveat to this. When we're dealing with areas normally delegated to the states (of which medicine is clearly one), we better be damn sure that congress actually intends to impinge on that authority. It can do it, perhaps, but we shouldn't assume it--the we being either the Courts or Executive Branch interpreters. Absent specific congressional language to the contrary, there is no good reason to assume that "legitimate medicinal purpose" should be removed from being traditionally defined by the states and transported to a federal issue. This seems like a reasonable, conservative way of interpreting statutes (at least in the post-Wickard v. Filburn era)--we should assume them to respect federalism unless they specifically decide not to. There is also a second caveat, that there are illegitimate purposes even granting Article I powers (such as expressing sheer malice), but that isn't pertinent here.

I think a great analogy is to soon-to-be Justice Alito's defense of his opinion striking down a federal ban on Machine Guns. He didn't say that the federal government has no power to do it inherently, he just said if it's going to rely on the ISC clause, it better provide some actual findings to back it up. Scalia's opinion in Lopez also casts problems on his consistency--if the fact that guns usually cross state lines to reach schools doesn't implicate the commerce clause, how does medicinal drugs crossing state lines suddenly bring it back into play?

See also Protein Wisdom
INDC Journal
Political Spectrum

Guilty Parties

It turns out the one of the bigger bloggers on the net, Wizbang, has posted a response to my call for giving the foreign-born children of illegal immigrants who have spent the majority of their educational careers in the states the benefit of in-state tuition. I really wish these people would trackback to me specifically, rather than my pointer posts at TMV. Actually, that goes for comments too. But I digress.

The crux of my argument was that these people came over as children and thus should not be held responsible for "illegal" activities. Wizbang proclaims to "demolish" that argument through the following:

First, let's look at the "punishing the children for the sins of their parents" argument. This is quite easily demolished by pointing out that these "children" are, in nearly all cases, at least 18 years old -- legal adults and responsible for themselves and their actions and decisions. They can try to make right their status, or not -- but either way, they are liable for it.

Second, almost no college student these days pays their own way. It is the parents that scrape, save, and borrow up the skyrocketing costs of college. By giving the students access to the lower rate, that is a de facto benefit to the parents in many of those cases.

The first objection misses the point. If we agree that at age 12, or whenever, they can't be held responsible for being sent to America, then I think it's facile to expect them to deport themselves at age 18. The analysis remains the same as in my previous arguments--they don't have a home to go back to in most cases, they are for all they know Americans. The "they can try to make right their status" is a straw man--the likely result of that is that they'll be deported along with their families. Forcing these kids to play Russian Roulette with their whole families is just as bad as outright barring them from college. The point I'm making is that this whole process is unreasonable and wildly disproportionate to the gravity of the "offense" (which, at root, as that these kids had the temerity to buy into the American dream and the misfortune to be born into families who couldn't secure legal status).

The second point is also pretty far off. Given how poor these families are, I'm not sure that the parents will be paying either. Under most circumstances, these are the income levels whose educations would nearly entirely be paid by loans, grants, and work study. But as has been pointed out, illegal immigrants can't get tuition assistance, so that's out. So it's probably going to be the kid herself who scrapes the money together in all likelihood. But even where that isn't the case, I think it's a bit too glib to act as if the opportunity here is to get half-off on the tuition (which Wizbang says is going to the parents, not the kid). The benefit is that the kid gets to go to college--the financial issues we're dealing with are just instrumental to that end.

Then he proceeds to a series of arguments that argue that the difference in status between illegal immigrants and citizens or legal immigrants creates legal and material justifications beyond mean spiritness that justifies the disparate treatment. But again, this is circular. If we were giving illegal immigrants the right to, say, register for the selective service, and they refused to do it, that would be one thing. But to my knowledge illegal immigrants couldn't register even if they wanted to. At the point where we're barring them from filling a certain requirement on account of immigration status, then prohibiting them from receiving a benefit on account of not meeting that requirement, it's the same as banning them for being illegals. That not persuading you? Well here's a bold proposal: Legalize the status of any illegal immigrant who is admitted to four year college or university in the US. That would incentivize good behavior, insure that we keep our best-and-brightest in the states, stop the blatant waste of potential in the status quo, and would chop off the legality arguments all in one swoop. Wouldn't I love to see a politician with the cajones to pitch that one on the campaign trail.

The discrimination argument is just wrong--the immigrants have the same right as any other US citizen--to be given in-state tuition in the state he or she resides.

The first finite resources argument is absurd if one believes, and I do, that college admissions should be vaguely meritocratic and not some sort of neo-feudalist product of birthright. If they earned a spot at the university, I really don't care that a "red-blooded American" doesn't get in. The second one is operates on shaky assumptions--that the illegals who won't be going to college but would with half-tuition are being replaced by out-of-state, not in-state, students.

The next argument is the only one I find vaguely convincing--that legal residents pay some of the money through taxes and thus get a "rebate" (there isn't any reason to assume that illegal aliens who stay in-state for college are any more likely to leave for work than legals--assuming, that is, the government doesn't step in and deport them). Ultimately, this argument isn't persuasive to me because it seems to trivialize the nature of the program--I view it as assisting residents in pursuing something that will be a communal boon, he seems to see at as souped-up Discover Card bonus program (for every X dollars you spend, we'll throw in $1 of tuition money! It's what we do for loyal customers.). Funding college may be a burden on the state in the short term, it is true. But there's a reason why they do it--over the long run, a highly educated workforce is good for the state and the nation.

At the end, he falls back on the old "it insults people who do it legally." Again, since we aren't talking about adults but children, that argument just doesn't fly with me. I see the two situations as massively and qualitatively different.

Before I go, I just want to briefly address the all-too-common "it's illegal and that's all there is to it" argument. Aside from the fact that people like me would absolutely like these persons to be legalized (and it is the right that frothes up at the barest hint of an amnesty of sorts), again, I don't think the people we're talking about specifically can be held accountable for their law breaking. And in any event, I advocate changing the law, so don't lecture me about "upholding" it.

Update: I'd be remiss if I didn't link to this post by Dan Filler showing what happens when a city (in this case, Birmingham, Alabama), takes the "enforce the law" approach too far:

According to the Birmingham News , "any illegal immigrant who comes in contact with deputies - whether as an offender, a county jail inmate or even a victim - is fair game for the database." The data will be shared with the federal Bureau of Immigration and Customs Enforcement. (Local sheriffs apparently don't have jurisdiction to arrest individuals for violation of immigration laws.)

Notwithstanding the need to maintain border control, this expansive policy strikes me as troubling.

First, I worry that it will stifle crime reporting by undocumented crime victims. This is bad all around. The victims cannot rest safe because the culprits are still loose. And since some offenders repeat their crimes, the policy will leave these folks free to target others - documented and undocumented alike. The sheriff's office is apparently aware of this risk, but simply does not care. When asked about the danger of deterring crime reporting, a department spokesman said: "I hope that's not a byproduct of this, and if it is, it's unfortunate. However, we believe the greater good is having information on the people who are in our country illegally."

Chomskites and The Holocaust

My dear pal Ampersand writes a post defending Noam Chomsky and the architects of the Israel Academic boycott from my half-joking claims that they'd hop a plane to Tehran and provide Western legitimacy to the "Holocaust Conference" they plan on having.

Amp claims that it is unfair to group Chomsky with "real" Holocaust deniers like David Irving. To be fair, the evidence seems mixed--but really, is this an issue where there should even be mixed signals? The well-worn quote that he thinks that to even debate the Holocaust is to deny one's humanity appears to be one he no longer holds, if we are to judge from this quote:

I see no anti-Semitic implications in denial of the existence of gas chambers, or even denial of the holocaust. Nor would there be anti-Semitic implications, per se, in the claim that the holocaust (whether one believes it took place or not) is being exploited, viciously so, by apologists for Israeli repression and violence. I see no hint of anti-Semitic implications in Faurisson's work...

Paul Begala once said that George W. Bush didn't have an ounce of racial bigotry in him--but he sure seemed comfortable with those who did. Above all, it really doesn't matter if Chomsky himself denies the Holocaust, because he appears to be perfectly comfortable associating with, providing material support to, and providing intellectual succor to those who do. In fact, he seems more comfortable in those circles than he does with those academics who truly recognize and refuse to downplay the significance of the Shoah.

But the real thing here is to remember what Iran's goal is here. It isn't necessarily to debunk the Holocaust (though I'm sure they wouldn't mind that). The overriding goal is to justify their fanatical quest to obliterate Israel. And that's where Chomsky becomes useful. One can very easily imagine them passing this off as a "both sides agree" deal. They'll put up some David Irving type fellow to say that the Holocaust never happened and thus, Israel has no reason to exist. And then they'll bring up a Chomsky, who will say that yes, the Holocaust happened, but Israel still shouldn't have a right to exist. How fair! And they'll nod their heads and acknowledge the "scholarly controversy" (snort), but note that either way, Israel is an abomination to all mankind and should be annihilated. So I find it perfectly plausible that he'd show up for that project, given that he appears to have no problem with either Israel going bye-bye, or playing intellectual peek-a-boo with real deniers, I'm not sure where he'd lodge his objection ('cause we know it isn't in a moral opposition to supporting oppressive regimes).

There isn't much to say with regards to the British Israel boycott. I am mildly amused that Amp quotes Ilan Pappe to support the view that one can support the boycott without being anti-Semitic or anti-Israel, given that Professor Pappe, does, actually, believe that Israel should cease to exist as a Jewish state. Whoops. Given that Pappe does not buy into the "baseline" of what most people would consider being "pro-Israel" or "pro-Jew", I don't think he's a credible source as to whether the boycott is commensurate with either of those ideals. Pappe and Chomsky are each, in their own way, the Jewish equivalents of a Clarence Thomas or Ward Connerly. I don't really mean it as a slur, though I suspect that both of them would take it as such. Both take positions with regard to Jewish national identity and cultural survival which are wildly at odds with the community at large. Thomas and Connerly operate in a similar fashion with regards to the opinions of the Black community on race and racial discrimination issues. That doesn't mean that they don't have the right to express their opinions, or that they should be expelled from the Jewish/Black community, I advocate neither. But it does mean that if we, as progressives, are going to address anti-semitism in the same manner as we do racism, as a structural matter deeply ingrained in the fabric of global society, then we can't be side-tracked simply because a few reactionaries have decided to join forces with those who'd deny or minimize the presence/importance of these ills in the modern world.

Like with racism, our society is both pervasively and structurally anti-Semitic. 60 years after the Holocaust, one would think this wouldn't need to be established. But yet, there is almost no literature analyzing anti-Semitism as a structural phenomena, as opposed to a particularly long-running aberration or a mere "me too" example to go along with other forms of ethnic hatred. What it means to be "anti-Semitic" from a social or ideological sense is severely under-examined, meaning that anti-Semitism gets defined only as its most extreme manifestations, rabid hate and/or violence. To be fair, there are many such events to choose from. But this doesn't excuse the dearth of scholarship looking at anti-Semitism in more insidious forms. Why, for example, only the Jewish national state is seen as prima facia illegitimate, when no such claims are made of the French state, or the Russian state, or (God forbid) the Palestinian state could very easily be examined through such anti-Semitic constructs like "the Mark of Cain", by which Jews were forever consigned to live in miserable exile for their collective national sins. Progressive scholars jump all over this sort of thing when it comes to every other minority group--with Jews, such analysis is limited, obscure, and hard to find.

I understand the frustration of leftist scholars who believe they have legitimate (if not morally imperative) critiques of Israel who feel like even a whisper will expose them to reflexive attacks of "anti-Semitism." And maybe in some cases it is. More often, however, these complaints ring eerily of conservative scholars who complain of "reflexive" responses of sexism, racism, et al. Anti-semitism is going to be heard often with regards to anti-Israel critics because in the current global schema of anti-Semitism, Israel is the central point of revelation. In Affirmative Action debates, racism will be alleged because the central problem is racism. With regards to Israel, anti-Semitism is alleged because anti-Semitism is the central issue in the Israel/Palestine debate. Anti-Israel speakers know, on the deepest (perhaps sub-conscious) level, that this is the case, which is why they battle so ferociously to keep it out of the discussion. A truly critical examination of how anti-Israel policies are informed, motivated, supported, and legitimated by anti-Semitism would force the left to entirely re-evaluate the entire foundation upon which their critique rests--not to mention undermining the credibility of a whole generation of scholars whose academic currency rests entirely on being able to step outside such ancient oppressions and valiantly assail the oppressive cornerstones we build our life upon. If they themselves are indicted, who is safe? But ultimately, if the left isn't going to examine its own blindspot here, then the movement has no currency. It is a mirage, a facade of a post-modern uprising that is in actuality following very well trodden footsteps--calling for revolution on the backs of the Jews.

If you survived to the end of this post, congratulations! You might also want to read my article, "Jews in Space", published in the inaugural issue of The Lens.

Proving What Exactly?

Jim Lindgren has a very interesting post out on how democracy is likely to play out in the Middle East. Quoting an Egyptian blogger, the thesis is that at this stage, Muslims nations are likely to spend at least some time under Islamist rule, "get it out of their system" so to speak, before making the jump to democracy. I say "mak[e] the jump" as if it's inevitable, but it isn't--as we've seen in Iran, a country can go Islamist, lose the support of its entire population, and stay Islamist anyway off sheer governmental force alone. That, alas, is what good authoritarian states do.

The question is, what does this mean for Iraq? On the one hand, it could buttress support for the US invasion over the long haul, even if the short-term result is an Islamist democracy. If one buys what Lindgren is saying, then such a move is the first step in the democratization process--once the people lose faith in religious theocracy, they'll turn toward liberal democracy. By showing that democracy remains feasible even if the short-term looks bleak, it forces us to look at longer-term metrics of causality. On the other hand, it is far from clear that the transition from oppressive rule is easier when the move is theocracy to democracy as when it is secular dictatorship to democracy. The experiences of Iran and Algeria are not positive here--while Turkey, Indonesia, and the Philippines have all had relatively successful transformations from secular dictatorship to democracy. So perhaps then the US intervention, if it leads to a theocracy (and to be fair, that's far from the clear result), will make liberal democracy less likely. Of course, turning the hand back again, secular dictatorships amongst the Arab world at least have seemed to be far more adept at entrenching themselves than their non-Arab Muslim peers, so perhaps the analogy to the countries I've mentioned (all non-Arab) isn't proper.

Anyway, food for thought.

This Can't Be Good

Oh yippee. Iran is hosting a conference on the Holocaust. Recall, just for review's sake, that this is the country whose president called the Holocaust a "myth" and thinks it was concocted by Jews and Europeans to justify the creation of Israel. So you know that this thing is going to be a fair, comprehensive, and impartial review of the subject.

It doesn't take an oracle to guess that whatever goes down at the event, it will be a mind-bogglingly horrible blend of anti-Semitic lies and Israel-bashing. So my only question is this: which Westerners are going to show up and support one of the world's most despicable ideologies on its home turf? Will we say David Irving? Noam Chomsky? The architects of Great Britain's boycott of Israeli universities? The mind races to know who will place the neon sign over their head: "I'm evil!"

Historical Revival

Andrew Sullivan gives a Malkin Award nomination to Mark Levin for arguing that Ted Kennedy is worse than Joe McCarthy:

From Clement Haynsworth, William Rehnquist, Bob Bork, and Clarence Thomas, to Jeff Sessions, Bill Pryor, Charles Pickering, and Sam Alito -- and scores of others -- Kennedy has played the role of McCarthy for 40 years, and always to a fawning press. He's a greater menace than McCarthy ever was.

Okay, the crazy points are obvious--no need to rehash them. But I just want to ask one thing: Clement Haynsworth? I mean, are we still talking about him? Or did Levin just want to complete his 4-4 parallel structure? I guess it could be worse--he could have brought up Harold Carswell.

Children of Immigrants

UC-Davis Law Professor Kevin Johnson excerpts from a stellar article on the subject. The kids in question are people who came to America, illegally, as minors. They have no papers, are at constant risk for deportation to a "home" they cannot even remember, and face tremendous challenges in trying to succeed in America.

Consider this:

Fermin was born at the height of El Salvador's civil war 17 years ago. When he was 11, his mother finally saved enough money to bring him to Los Angeles, where she had lived since he was 4 years old.

"She wanted me to have more educational opportunities," Fermin says. "It's the only way out of being low-income."

Fermin has taken advantage of those opportunities. He will graduate from high school this spring at the top of his class. After that, things get more complicated. Along with 65,000 other new graduates nationwide, Fermin will leave high school with a diploma, but without citizenship papers.
[...]
For Fermin, it means taking four city buses each day to get to school and back -- as an undocumented immigrant, he can't get a driver's license. When Fermin entered the American public school system six years ago, he did not know a word of English. Today, he is preparing for the California Academic Decathlon. He hopes his team will do well -- but even if they do, he won't be joining them at the state competition in Sacramento. Fermin fears that if he travels without papers he could be detained or deported.

While the majority of undocumented students will give up on school, Fermin is determined to go to college. But his immigration status complicates that prospect.
[...]
First, Fermin must come up with application fees as high as $250 per school. His family income is low enough to qualify him for a waiver, but his immigration status makes him ineligible. He's also ineligible for state or federal financial aid.

"Everyone tells them, 'Go to school, get good grades,'" says Jessica Quintana, director of Centro Community Hispanic Association in Long Beach. "Then the reality hits. It's so easy just to give up at that point."
[...]
Jessica, 18, received a standing ovation at her high school graduation in honor of 13 years of perfect attendance. But the applause couldn't make up for the letter she'd received earlier that year from the design school she dreamed of attending. It told her not to bother applying unless she could produce proof of citizenship.

"I had everything -- the grades, the desire to learn," says Jessica, 18. "It put a stop to all my hope when I realized I was limited."

The infuriating part of this is that these are exactly the kids we'd be salivating over putting in the American workforce--if they were White Europeans (or potentially East Asians). America's immigration policy is heavily slanted in favor of highly educated foreign nationals (most of whom come from those two regions), and stacked against the mostly brown and black "huddled masses" fleeing third world poverty and anarchy. One can make the argument that this is the way it should be--but there is no excuse for denying opportunities to kids who have worked hard facing hurdles we could never dream of to reach the pinnacles of academic excellence. And reading a story like this makes me what to slap all the smug conservative pundits who have destroyed entire forests with self-assured paeans to the power of "hard work," "good grades," and "staying out of trouble."

Far from "rewarding illegal immigration" as some allege (I'm looking at you, Mitt Romney), putting these children on a level playing field is the embodiment of the American dream. These children had no control over the decision to come to America. There isn't some conspiracy amongst Nicaraguan 12 year olds to overwhelm the American work-force with cheap labor. And for the kids we're talking about, it's amazing that "taking American jobs" even comes up as an argument. This is literally the only debate in American politics where some of the world's brightest and most hardworking youth are assumed to be a future drag on the national economy. Give me a break.

There is legislation in congress right now (I believe it's called the DREAM Act?) that would be the first step toward rectifying this injustice. I urge everyone to pressure their representatives to pass the bill and restore the dormant American dream.

Got To Love The VC

Watch how they shift from funny-sad (lawsuit by the family of a man killed after a patented Benihana "flip the Shrimp into the mouth" maneuver went horribly wrong) to funny-angry (Russian Politician Vladimir Zhirinovsky going 14th century on his views of Condi Rice). Best shot by Volokh:

Zhirinovsky, it turns out, also writes: "The civilized world should think and decide whether unmarried political leaders should be forbidden from coming to power. Now in the Soviet system this was all developed to an A+ level. Leading positions were open only to family people, free from inferiority complexes." And a lovely bunch of family people they were.

At the moment, the link to the article in question isn't working for me, but Ann Althouse has a good excerpt.

Just a brief word on Dr. Rice, by the way. It is impressive how she is one of the few remaining Bush administration officials to have a relatively positive public image (in America at least). Compared to Donald Rumsfeld, Alberto Gonzalez, or Dick Cheney, she's far and away the only one who isn't politically radioactive at the moment. Perhaps "most popular Bush official" is a bit of a backhanded compliment. But her disavowals not withstanding, it does make her a legitimate threat should she try for the 2008 presidency.

"Hecklers Shouted 'American'"

Where did a political candidate encounter this? Iran? Saudi Arabia? Venezuela? Okay, at worst, it's France.

Nope--it's Canada, where Harvard Professor Michael Ignatieff is running for parliament. Ignatieff, a Canada native, was director of the Carr Center for Human Rights prior to his political leap. He's running on a platform calling for greater Canadian involvement in foreign affairs.

"Nothing in Canadian foreign policy seems absolutely essential or necessary," Ignatieff said in an October lecture at McGill University. "We have no coherent system of triage. We do not have a way to distinguish the vital and essential from the merely important or fashionable. We do a little development. Not enough. We do a little governance promotion, [but] not enough to be a serious competitor of the Scandinavians. We promote U.N. reform, half-heartedly, knowing that we cannot hope for much, since we are not on the Security Council and the Americans don't much care for reform in any event."

For Ignatieff, Canada is stuck in a transitional phase, where the relationships that drove it during the Cold War (NATO and the United Nations, for example) are fading from importance. What is needed now, he believes, is not lightly armed Canadian peacekeepers in Cyprus, but well-equipped and trained combat-ready troops enforcing peace in Afghanistan. Canada's economy is still heavily dependent on trade with the United States and increasingly relies on exports of natural resources such as wood, minerals, and natural gas. "I don't want us to be the Saudi Arabia of the north," says Ignatieff. "We have a kind of Canadian standard of excellence, the question now is 'Are you a global standard?' If you're not at a global standard, you've got five years [to catch up]."

I actually like the idea of Canada increasing its role in global affairs. Anything to take the burden off American shoulders, basically, is fine by me, as long as the country is relatively friendly and democratic. So I guess I'm rooting for Ignatieff.

But what have we come to when "American" is a slur in Canada? Maybe our global standing has fallen a bit too far.

With a tip of the hat to Daniel Drezner.

Judges Gone Wild!

Is it just me, or are conservative justices going insane? I know, I know--some of you think they've always been insane. And for some judges, I'd be inclined to agree. But seriously, there have been a few judicial moves recently that are off-the-charts nuts.

First, we had Alabama Supreme Court Justice Tom Parker assaulting his colleagues for not ignoring Supreme Court precedent in Roper v. Simmons. I noted then that Parker's unrepentant call for inferior court judges to just ignore the Supreme Court was wrong and dangerous. But at least it was confined to one guy (in a case he'd recused himself from, no less).

But now, we have an even more extreme case. Talk Left directs us to a Michigan judge who is refusing to give poor defendants attorneys during the appellate process. What should have been a slam-dunk anyway under the 1963 case of Gideon v. Wainwright was nonetheless decided explicitly by the Supreme Court last June in Halbert v. Michigan, striking down as unconstitutional a Michigan law that...barred judges from giving poor defendants attorneys during the appellate process. The judge has expressed the opinion that the Court's decision was wrong, so he won't follow it. How simple.

Now, these cases are bad enough from a rule of law perspective. But look at where conservatives are picking this battle. Roper, on execution of juveniles. Gideon, on giving people the right to counsel, for Christ's sake. What's next? A judge eliminating the jury trial?

You cannot be a serious legal commentator and not tell me that these moves are not infinitely more dangerous than whatever "activism" is going on in the federal courts.

Rape From The Perspective Of Its Victims

Feministe directs me to a very interesting (and very disturbing) post regarding rape victims who don't seem to regard what happened to them as rape. Here is one of three examples given (the women writing here was a prosecutor in the jurisdiction this case came through):

Victim's male acquaintance breaks into her apartment and grabs her. He is in a rage because she had refused to go out with him. He roughs her up a bit, including belting her across the face and throttling her. He then forces her at gunpoint to drive him to his house, where he keeps her overnight. He specifically tells her that he will shoot her if she tries to escape. He is distraught and talks repeatedly about how much he loves her. He talks about wanting to live with her in Mexico. Her survival strategy was to pretend to go along with his plans. She wanted to gain his trust. When he had sex with her that night, she "went along with it" in order to survive.

After finally escaping, she went to the police. She expected that he would prosecuted for kidnapping, assault and threatening. She was, however, shocked when I brought a rape charge against him. She didn't feel that she had been raped because she had "gone along" with the sex. When I questioned her, however, she said that she had "gone along" with it because she thought (quite reasonably under the circumstances) that he would blow her brains out otherwise. But, to my shock, in her mind, she herself felt that it was not a rape because she had not resisted in any way. (Under the law in my jurisdiction, sex that occurs during the course of a kidnapping is rape, and even if that were not so, I think the physical threat against her was sufficient to make this a rape.)

I think the majority of us would not hesitate to say that this event was a "rape." But I wonder specifically about why the woman here isn't one of them. And more generally, I'm frightened by an admittedly anecdotal trend that I'm observing where men--or at least younger men--are more likely to unambiguously call something a rape than women are.

In my Philosophy of Law class last term, we discussed a Maryland rape case called State v. Rusk (289 Md. 230, 424 A.2d 720 (1981)). Here are the facts of that case, as reported by the Maryland Court of Appeals:

At the trial, the 21-year-old prosecuting witness, Pat, testified that on the evening of September 21, 1977, she attended a high school alumnae meeting where she met a girl friend, Terry. After the meeting, Terry and Pat agreed to drive in their respective cars to Fells Point to have a few drinks. On the way, Pat stopped to telephone her mother, who was baby sitting for Pat's two-year-old son; she told her mother that she was going with Terry to Fells Point and would not be late in arriving home.

The women arrived in Fells Point about 9:45 p.m. They went to a bar where each had one drink. After staying approximately one hour, Pat and Terry walked several blocks to a second bar, where each of them had another drink. After about thirty minutes, they walked two blocks to a third bar known as E. J. Buggs. The bar was crowded and a band was playing in the back. Pat ordered another drink and as she and Terry were leaning against the wall, Rusk approached and said "hello" to Terry. Terry, who was then conversing with another individual, momentarily interrupted her conversation and said "Hi, Eddie." Rusk then began talking with Pat and during their conversation both of them acknowledged being separated from their respective spouses and having a child. Pat told Rusk that she had to go home because it was a week-night and she had to wake up with her baby early in the morning.

Rusk asked Pat the direction in which she was driving and after she responded, Rusk requested a ride to his apartment. Although Pat did not know Rusk, she thought that Terry knew him. She thereafter agreed to give him a ride. Pat cautioned Rusk on the way to the car that "'I'm just giving a ride home, you know, as a friend, not anything to be, you know, thought of other than a ride;'" and he said, "'Oh, okay.'" They left the bar between 12:00 and 12:20 a.m.

Pat testified that on the way to Rusk's apartment, they continued the general conversation that they had started in the bar. After a twenty-minute drive, they arrived at Rusk's apartment in the 3100 block of Guilford Avenue. Pat testified that she was totally unfamiliar with the neighborhood. She parked the car at the curb on the opposite side of the street from Rusk's apartment but left the engine running. Rusk asked Pat to come in, but she refused. He invited her again, and she again declined. She told Rusk that she could not go into his apartment even if she wanted to because she was separated from her husband and a detective could be observing her movements. Pat said that Rusk was fully aware that she did not want to accompany him to his room. Notwithstanding her repeated refusals, Pat testified that Rusk reached over and turned off the ignition to her car and took her car keys. He got out of the car, walked over to her side, opened the door and said, "'Now, will you come up?'" Pat explained her subsequent actions:

"At that point, because I was scared, because he had my car keys. I didn't know what to do. I was someplace I didn't even know where I was. It was in the city. I didn't know whether to run. I really didn't think, at that point, what to do.

"Now, I know that I should have blown the horn. I should have run. There were a million things I could have done. I was scared, at that point, and I didn't do any of them."

Pat testified that at this moment she feared that Rusk would rape her. She said: "[I]t was the way he looked at me, and said 'Come on up, come on up;' and when he took the keys, I knew that was wrong."

It was then about 1 a.m. Pat accompanied Rusk across the street into a totally dark house. She followed him up two flights of stairs. She neither saw nor heard anyone in the building. Once they ascended the stairs, Rusk unlocked the door to his one-room apartment, and turned on the light. According to Pat, he told her to sit down. She sat in a chair beside the bed. Rusk sat on the bed. After Rusk talked for a few minutes, he left the room for about one to five minutes. Pat remained seated in the chair. She made no noise and did not attempt to leave. She said that she did not notice a telephone in the room. When Rusk returned, he turned off the light and sat down on the bed. Pat asked if she could leave; she told him that she wanted to go home and "didn't want to come up." She said, "'Now, [that] I came up, can I go?'" Rusk, who was still in possession of her car keys, said he wanted her to stay.

Rusk then asked Pat to get on the bed with him. He pulled her by the arms to the bed and began to undress her, removing her blouse and bra. He unzipped her slacks and she took them off after he told her to do so. Pat removed the rest of her clothing, and then removed Rusk's pants because "he asked me to do it." After they were both undressed Rusk started kissing Pat as she was lying on her back. Pat explained what happened next:

"I was still begging him to please let, you know, let me leave. I said, 'you can get a lot of other girls down there, for what you want,' and he just kept saying, 'no'; and then I was really scared, because I can't describe, you know, what was said. It was more the look in his eyes; and I said, at that point -- I didn't know what to say; and I said, 'If I do what you want, will you let me go without killing me?' Because I didn't know, at that point, what he was going to do; and I started to cry; and when I did, he put his hands on my throat, and started lightly to choke me; and I said, 'If I do what you want, will you let me go?' And he said, yes, and at that time, I proceeded to do what he wanted me to."

Pat testified that Rusk made her perform oral sex and then vaginal intercourse.

Immediately after the intercourse, Pat asked if she could leave. She testified that Rusk said, "'Yes,'" after which she got up and got dressed and Rusk returned her car keys. She said that Rusk then "walked me to my car, and asked if he could see me again; and I said, 'Yes;' and he asked me for my telephone number; and I said, 'No, I'll see you down Fells Point sometime,' just so I could leave." Pat testified that she "had no intention of meeting him again." She asked him for directions out of the neighborhood and left.

The trial court convicted Rusk, the Court of Special Appeals reversed the conviction by a vote of 8-5, but the Court of Appeals reinstated it by a vote of 4-3.

In class, we discussed whether or not Rusk should have been convicted based on these facts. All the men in the class said yes, absolutely. The women, however were split. They offered many of the same explanations that the woman in the first case presented--she didn't actually resist, she could have done other things, and in this case that being "scared" wasn't enough to make it rape. Again, I find this to be a relatively clear cut case. But why was it that the primary dissents came from the women in the classroom?

This pattern flies in the face of most recent feminist scholarship. They tell us that letting women tell their stories and privileging their perspectives will provide insights into criminal law that currently are missing. Classically, feminism posits that it is men that generally "don't get" rape, or minimize it, or restrict applying it to only the most extreme cases. I don't dispute that as a general matter, but these recent observations do seem to throw a wrench into the equation. Part of it may be that a male student at a progressive liberal arts college feels compelled to assure his peers that he is "tough on rape", much like a Democrat has to go to great lengths to be "tough on crime." No man wants to be that creepy guy defending Rusk here. Even if privately some might defend or rationalize him (and there is no real way to determine who is genuinely appalled and who is performing), there are significant social costs that are incurred when a man steps out to defend him normatively. That may explain part of the problem, but I don't think it answers everything. While it may tell why the male opinion is so uniformly condemning, it doesn't explain the deep rift amongst female students. At some level, there has been a divergence from the classic thought on the matter. Women are denying that rape happened even as the men around them are adamant that it occurred.

Feministe quotes a male attorney who is playing the role of "creepy guy" defending the rapist. And I don't dispute that such men exist. I'd even agree that they represent a "mainstream" viewpoint, tragic as that is. His argument that the views of these women shows that the above actions don't constitute rape is BS, and the Feministe gals are right to shoot it down. But in doing so, they also dodge an issue that does have to be addressed. Community standards shouldn't act as rape shields. But where it is true that the community of women don't view naked sexual violence against them as "rape," that poses deep problems for the feminist enterprise as a whole. And where men are actually more aggressive in pointing out and pursuing the act than are women, that suggests that our anti-rape and women's rights strategies as a whole are coming at this from the wrong way, or at least are incomplete.

The question is: what social signals are we sending to women that are causing this misperception? And of course, how can we correct them? But it is also: what has caused men to re-evaluate rape in manner more consistent with the feminist enterprise? And how can we harness that power to bring about broader change?

My thesis on gender issues (and I make similar claims on race) is that there exists a cadre of men who, to some extent, buy what the feminists are saying about rape and other issues and who are willing to lend their support to progressive remedies to the problem. However, the growing focus on standpoint theory and feminism solely from the perspective of women ("the victims") has alternatively discouraged, disoriented, and/or disempowered these men from feminist political movements. They simply don't know what their "place" is in the fight. And with the stakes so high, and the knowledge that one mis-step will blow their progressive bona fides like a landmine, they find it safer to cheer passively from the sidelines rather than take a frontline position in the battle. I don't question the massive benefits that standpoint theory and perspective-based feminism has brought to the philosophical table--indeed, I'd credit many of their breakthroughs with enabling the sort of feminist-friendly consciousness one sees in many progressive males today. It is a sad irony, not an inevitable consequence, that such theories are now drinking from their own skulls and hampering the very type of political coalitions they so desperately need.

As such, I call for men everywhere to examine what they can do as men to end sexist oppression, in rape and in other issues. This isn't designed to compete with female efforts to do the same, but compliment them. In a patriarchal society, men possess most of the power--which may be bad holistically, but gives us disproportionate ability to affect change in the short-term. If rape is an area where we can do more than our female peers, then we have an obligation to advocate on rape. This makes sense from a feminist perspective anyway--the end goal always has been (or should be) to be our brother and sister's keeper, not to push each other away. An independent effort by men to strike out in favor of women is a critical step toward realizing that dream.

Stringing Me Along

In legal (and, I presume, other academic) literature, there is a form of footnote known as a "string cite." A string cite lists a bevy of articles and authorities in support of a given proposition. It often serves as an overview for a particular field. For example, I might write in an article:

Critical Race Theory emerged in the late-80s and early-90s as a powerful new force on the progressive legal scene.[n1]

I might then put in that footnote:

[n1] For an sampling of some of the early works in the CRT movement, see, e.g., Derrick Bell, The Supreme Court, 1984 Term--Foreword: The Civil Rights Chronicles, 99 HARV. L. REV. 4 (1985); Derrick Bell, Racial Realism, 24 CONN. L. REV. 363 (1992); Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. PA. L. REV. 561 (1984); Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411 (1989); Barbara J. Flagg, "Was Blind But Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953 (1993); Neil Gotanda, A Critique of "Our Constitution is Color-Blind", 44 STAN. L. REV. 1 (1991); Ian F. Haney Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707 (1993); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987); Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987).

At some level such footnotes are mere exercises in form. They show that the author has read the relevant literature, knows what s/he is talking about, and provides a jumping off point by which a relative novice could learn more about the field.

But string-cites can also be a major boost to a young author. Obviously, there were many more articles on CRT written in the time frame I outlined. By picking these particular articles, I am implicitly saying that they are the key or crucial "must-reads" on the topic--the cream of the crop if you will. Sometimes this isn't the case--Richard Delgado has talked about "aren't I hip" citations to trendy scholars that serve only to shield hidebound professors from charges that the field has passed them by. But by and large, it is an incredible honor to find oneself in a string cite surrounded by the luminaries in ones field.

In blogs, we have a rough equivalent in "round-up posts." A blogger, commenting on a "hot topic", will first provide a string of links to the other major posts on the subject. Sometimes this isn't a big deal--especially one there are only a few posts out there to choose from. But if your teeny little blog makes it into a list populated by giants, it feels like a major coup.

All this leads up to this post by Illinois Law Professor Lawrence Solum on the link between blogging and legal scholarship. He starts with a round-up that includes my post Blogging as Scholarship as Struggle. That post was the only one listed by a non-legal academic. My fellow citees? Law Professors Paul Caron (Cincinnati), Christine Hurt (Marquette), Orin S. Kerr (GWU), Dan Markel (FSU), Larry Ribstein (Illinois), and Dan Solove (GWU).

It is an honor to be placed in such illustrious company. I only wish I had more insightful or thought-provoking comments to place on the post!

Today in Anti-Semitism

From Andrew Sullivan's Quote of the Day II an anti-American and anti-Israel rally:

Crowd: Israel is the enemy of Allah.

Man: May the hands of the infidels be chopped off.
[...]
Man: All together now: Death to America! Death to Israel!

Crowd: Death to America! Death to Israel! Death to America! Death to Israel! Death to America! Death to Israel! Death to America! Death to Israel!

[...]

Speaker: Today, the impure world Zionism, in the modern Age of ignorance, has emerged with the same (polytheistic) ideology, but with new methods. It wants to take over the fields of economy, of culture, and politics, as well as the military, throughout the world.
[...]
We, the pilgrims who have come to the house of God, condemn the plots and the measures taken by the international Zionism - the deceitful Satan who spreads heresy, polytheism, and idolatry, enslaving human beings with a new method. It abuses the divine religion of Moses. It takes Satanic measures, and arouses the world's hatred towards this divine religion, and its true followers. We denounce these criminal acts. We call upon the world of Islam and the free peoples to take significant measures to thwart the Satanic policy of this camp.

Crowd: Allah Akbar. Allah Akbar. Allah Akbar.

Via The Moderate Voice, the latest anti-Semitic upsurge in Russia comes in the form of synagogue stabbings.

A man armed with a knife stabbed and wounded 11 people, including three Israelis, in a Chabad synagogue in downtown Moscow on Wednesday.

A spokesman for the Jewish community in Russia said that four of the wounded were seriously injured in the attack, which occurred around 5:30 P.M. (1430 GMT). The spokesman said that the wounded were taken to hospital, and that some of them were undergoing surgery.

Polyakova Synagogue Rabbi Yitzhak Kogan, who is also an Israeli citizen, was among the injured. A witness said Kogan and several security guards wrestled the attacker to the ground and held him until police arrived.
[...]
An initial investigation revealed that a skinhead wearing a leather jacket told the guards at the entrance to the synagogue "I will kill people. I will kill Jews," before bursting into the synagogue.

Ha'aretz also gives a chronology of the latest anti-Semitic acts in Russia.

In Venezuela, Hugo Chavez:

"The world has enough for all, but it turned out that some minorities, descendants of those who crucified Christ, descendants of those who threw Bolivar out of here and also crucified him in their own way in Santa Marta, there in Colombia. A minority took the world's riches for themselves,"

Some people have defended that last one by saying that the Jews didn't fight Bolivar, so he must be talking about someone else. The argument proceeds to note that since mainstream scholars no longer subscribe to the view that the Jews killed Christ, he must be talking about the Romans. Of course, the Romans didn't fight Bolivar either, so this is somewhat inconsistent. I think that the plain meaning of the statement is as an anti-Semitic slur.

In Canada, Anti-Zionist and anti-Semitic actions are on the rise in major universities:

Speakers from the student club Zionists at McMaster shared their frustration over anti-Israel literature on campus. The group was formed three years ago in response to anti-Zionist activity on campus by the group Solidarity for Palestinian Human Rights.

As well, Betar-Tagar's director of campus affairs, Jonathan Jaffit, showed photos from Israel Apartheid Week at the University of Toronto earlier this year.

Signs displayed on campus at the time included, "Globalize the Intifada," "JNF out of Canada" and "Zionism = Racism."

Flyers displayed and distributed included the logo of the Fatah-affiliated Al Aqsa Martyrs' Brigade militia, which has been named by the Canadian government as a terrorist organization.

Independent documentary filmmaker Igal Hecht presented a documentary about anti-Israel vitriol at York University. The film, Protest, which aired on Vision TV in 2003, showed confrontations between Arab and Jewish students that went from verbal to physical.

In the film, one student warns that Jewish students should be cautious on York's campus, while another doesn't recommend the campus to Jewish students.

Uri Nachim, Betar-Tagar's co-president at York, remembers how in his first year, discussions between Arab and Jewish groups centered on how Israel and Palestine could peacefully coexist. Now, he said, the debate is about whether Israel should exist at all.

Dina Glatter, a York student, recalled an event organized to honour the Israel Defence Forces that was stormed by protesters, and signs saying, "IDF = Gestapo" remained in a central campus location for a week before being removed.

I am particularly curious about the call to "globalize the Intifada". How would one go about doing that? Who would one suicide bomb in Canada, or France, or America? Is there any plausible answer to that besides "the Jews"?

In Paris, 3 Jews are assaulted by African and Arab men.

So I open the floor. What do we do about it? What's sustaining the rabid anti-Semitism that continues the world over, and how do we combat it?

Books At My Doorstep

Or across campus, in my case. My latest Amazon binge just arrived in the mail today. Unfortunately, since the campus post office is on the other side of Carleton, I had to pick up the books between classes--which meant adding three very heavy books to my already bulging backpack. Ouch.

Anyway, the three additions to my happy bookshelf are Assassin's Gate by George Packer, Critical Race Theory: The Cutting Edge, edited by Richard Delgado and Jean Stefancic, and And We Are Not Saved by Derrick Bell. The first of these is very exciting, because I have heard universal raves about this book from virtually everyone who has read it, and it seems to be the most through explication of many of the suspicions I've had about the Iraq over the past several years.

The last of these books, by contrast, is particularly tragic. Derrick Bell, as you may well know, is the founder of the Critical Race Theory movement--a philosophy of which I am somewhat enamored with. And not only that, he is coming to Carleton College to speak at our convocation next friday. And where will I be on that auspicious day? Driving to Seward, Nebraska for my first debate tournament of the term. Oh cruel world--why do you toy with me so?

Blogroll Updates

Apropos my last post on law blog rankings, Pepperdine Law Professor Roger Alford asks the obvious question--why are so few of those blogs on the blogroll of a law geek like myself?

Having no good answer, I resolved to update the list. And so, I welcome ACSBlog, Conglomerate, Ideoblog, Mirror of Justice, Opinio Juris, Sentencing Law and Policy, and TaxProf Blog to my prestigious roll. Try to contain your enthusiasm.

Do The Math

Opinio Juris and Tax Prof Blog have both issued lists of the most popular law blogs (in the latter case, law professor blogs). They compiled their list by looking at the Ecosystem Traffic Rankings, and listed in order any blogs found in the top 2,500. Just to massage my ego, I decided to see where I'd fall (this blog almost definitely doesn't qualify as a pure "law" blog, but humor me).

My rank is 2,036, which would put me last in the group (but still would make the cut). That's pretty cool. I should also note that this is coming off one of the weakest blogging months I had in quite some time--when I blog full strength, I average closer to 200 hits a day (rather than 178 currently). So if anything, my position at the moment is understated.

But I was curious to note that my traffic ranking was considerably better than my link ranking (4,042). But upon further inspection, my blog actually had one of the smaller variances. The two blogs bookending me, for example, had link ranks of 5,726 and 1,266, but the blog with a traffic rank of 2,038 had a link rank of 35,796--way out in the hinterlands. What gives here?

Going by link count ranking instead of traffic reshuffles the deck--but perhaps not as much as one might expect. Here's the original list using traffic counts (with my blog added) from Opinio Juris:

1. The Volokh Conspiracy (#46)
2. How Appealing (#146)
3. Balkinization (#189)
4. Professor Bainbridge (#192)
5. Sentencing Law and Policy (#367)
6. TaxProf Blog (#371)
7. Discourse.net (#420)
8. Conglomerate (#448)
9. PrawfsBlawg (#475)
10. Concurring Opinions (#524)
11. ACSBlog (#762)
12. Leiter's Law School Rankings (#765)
13. Appellate Law and Practice (#1083)
14. Southern California Law Blog (#1084)
15. Opinio Juris (#1183)
16. Ideoblog (#1194)
17. ContractsProf Blog (#1225)
18. CrimLaw (#1378)
19. Business Law Prof Blog (#1820)
20. The Debate Link (#2036)

Here's the list via link rankings:

1. The Volokh Conspiracy (#10)
2. Professor Bainbridge (#61)
3. Balkinization (#164)
4. How Appealing (#245)
5. Discourse.net (#823)
6. Conglomerate (#1248)
7. Concurring Opinions (#1337)
8. Southern California Law Blog (#1155)
9.PrawfsBlawg (#1564)
10.CrimLaw (#2059)
11.ACSBlog (#2130)
12. TaxProf Blog (#2175)
13. Sentencing Law and Policy (#2726)
14. Opinio Juris (#3326)
15. Ideoblog (#3866)
16. The Debate Link (#4042)
17. Appellate Law and Practice (#4628)
18. Leiter's Law School Rankings (#9050)
19. ContractsProf Blog (#10479)
20. Business Law Prof Blog (#12577)

I'm not saying that link-counts are a better barometer of a blog's worth than daily hits. In fact, I'd probably lean toward hits as the best measuring tool, though both have their uses. It is interesting to see, though, which blogs are linked disproportionate to their hit-counts, and which ones are read more than linked.

It's interesting to see that the majority of these blogs fall into the latter category. With the exception of the top-most blogs (Volokh, Bainbridge, Balkin), every blog on the list has a better traffic ranking than link ranking. Somebody must be filling that space--there must be blogs that get better link rankings than traffic rankings. Are these just blogs with inflated counts due to game-like "link swapping" and blogring membership? Or is something else at work here?

I Like It

Mark Schmidt wants to reframe the "lobbying scandal." Step one: Don't call it a "lobbying scandal"

That's the other side's frame. This is not a lobbying scandal. It's a betrayal-of-public-trust scandal. Lobbyists have no power, no influence, until a public servant gives them power. That's what DeLay and the K Street Project was all about. What they did was to set up a system by which lobbyists who proved their loyalty in various ways, such as taking DeLay and Ney on golf trips to Scotland, could be transformed from supplicants to full partners in government.

"Betrayal-of-the-public-trust scandal" doesn't exactly roll off the tongue. But the sentiment is right. Abramoff is a very sleazy guy, no question. But he only got to where he was because members of congress--people who are elected to serve the people--let them in the back door, front door, side door, and open windows. At the end of the day, this isn't about lobbyists. Lobbying is not even all that bad, intrinsically (as has been noted before, it's even a constitutionally guaranteed right). It's about congressmen abusing their position of power to get enriched by said lobbyists. It's the congressmen who need to go down. The lobbyists are just prosecution witnesses.

Link via Kevin Drum.

The Missing Blog Women

The lonely Christine Hurt of Marquette University tackles the subject (H/T: Volokh). An excerpt:

Blogging requires little capital, education, or skills. So, even if women were being denied access to capital or to educational opportunities, women could still blog. Women would not have to petition a dean for money or go to a bank or even ask the dean for research support. Some blogging platforms are free, and most are cheap. The barriers to entry of blogging are as close to zero as one can imagine. The questioners at the panel referred to time, and free time could be seen as a barrier to entry to blogging. However, I have come to believe that we all make time-based choices and we can make time for new activities if we want to do so. I don't piddle; I don't drink coffee or do the NYT crossword except on airplanes. I don't watch TV now that Rome is over and I exercise just enough not to die. This leaves me some time to blog.

I too exercise just enough not to die. Or so I think--at 19 your body can propel itself on Grilled Cheese, Blue Powerade, and the occasional Apple indefinitely.

For those interested in the particular stats, Dan Solove has them. 25% of law bloggers are women. 34% of all law professors are women, but only 25% of tenured ones are. The trend line looks good though--45% of newly hired academics are women.