Friday, June 21, 2024

"I'm Not Owned! I'm Not Owned!" Originalists Continue To Insist as They Slowly Shrink and Transform into a Corn Cob

The Supreme Court today reversed the Fifth Circuit and upheld a federal statute prohibiting persons under domestic violence restraining orders from possessing firearms against a Second Amendment challenge. The case, United States v. Rahimi, had quickly become a tentpole example of the disaster show unleashed by the landmark Bruen decision, which tossed out the "heightened scrutiny" review uniformly used by lower courts to adjudicate Second Amendment challenges in favor of a "historical analogue" test that immediately proved almost entirely unworkable. The majority in Rahimi appears to have significantly retreated from Bruen, underscoring that Bruen does not demand a "clone" law but merely something "analogous" that existed at the time of the framing (here, the relevant analogy was "surety" laws, which required "individuals suspected of future misbehavior to post a bond").

The Court's decision was 8-1, with only Justice Thomas (the author of Bruen) dissenting. This isn't too surprising -- most legal observers thought after watching oral argument that the Fifth Circuit's opinion was destined to be reversed. The stance that the "cartoonishly violent" domestic abuser at the center of Rahimi had a Second Amendment right to remain armed and dangerous was predictably something that most of the Justices wanted to race away from as fast as possible.

But the real fun, for me, came in reading the concurring opinions. Two of them, authored by the liberal Justices Kagan and Jackson, are dedicated to making the obvious point that Bruen has been an absolute trainwreck. The conservative concurrences, by contrast, are a spectacle of chest-thumping paeons to originalism as the one true standard of constitutional jurisprudence, distinguished most essentially by the fact that it is not results-oriented and prevents judges from tailoring the outcome of cases to meet their ideological preferences.

Us legal progressives have to enjoy the small things these days, and if ever there have been clearer examples of protesting-too-much in a judicial opinion, I'm not sure I've seen it. It could not be clearer that the outcome in Rahimi dictated the reasoning. It could not be clearer that the contemporary social policy consequences are basically the entirety of what drives the otherwise arbitrary inquiry into how "analogous" is analogous enough (and, for what it's worth, such policy arguments also took center stage in the conservative arguments marshalled to strike down the law -- it's policy all the way down). The ferocity through which Justices Kavanaugh and Gorsuch in particular extol originalism's virtues in their opinions reek of desperation. Bruen was a classic instance of this Court taking a huge theoretical swing in service of an abstract political ideology and leaving the mess for later. Unfortunately for them, the mess piled up quicker than they anticipated, and now they're left in the humiliating position of having to act like the ensuing disaster wasn't one of their own making.

I will give some credit to Justice Barrett for grappling with a few of the critical questions here. She correctly notes that the historical test does not mean that contemporary legislatures are limited to "an updated model of a historical counterpart" in crafting gun legislation, because "historical regulations reveal a principle, not a mold." Within the general class of domains where there is historical evidence states were permitted to implement restrictions on the right to bear arms, the legislature should get significant deference in determining how it wants to instantiate those restrictions -- the flipside of Bruen's general admonition that policy judgments have no role to play in Second Amendment adjudication.

The other essential point Barrett makes is critiquing the assumption "that founding-era legislatures maximally exercised their power to regulate, thereby adopting a 'use it or lose it' view of legislative authority." We can group legislative action -- at the founding or at any other time -- into three broad buckets: (1) laws the legislature passed and which they believed  were constitutional (2) laws they did not pass because they thought they'd be unconstitutional, and (3) laws they did not pass, but not because they believed they were unconstitutional (one hopes the fourth category -- laws that were passed even though the legislature believed they were unconstitutional -- is close to a null set). The third category is an utterly mundane one: the legislature doesn't enact legislation for a whole host of reasons, the vast majority of which have nothing to do with any constitutional worries -- anything from "we think this is bad policy" to "we didn't consider this at all". 

Unless we think that founding-era Americans enacted every single possible gun law that they thought was constitutionally-permissible -- legislating to the utmost limits of their constitutional authority -- there will be entries in both the second and third categories. But to modern eyes, these two buckets will be largely observationally equivalent -- the lack of a historical precedent could mean that laws of this sort were thought to be unconstitutional, or they could mean they weren't passed for the myriad range of other reasons laws don't get passed. Bruen basically papers over this problem by pretending the last bucket doesn't exist, but in doing so it curb-stomps its own historical test. As for me, I don't have a good answer regarding how to disaggregate the two buckets, but doing so is essential to actually applying the historical test Bruen purports to impose. I'll give one cheer to Justice Barrett for at least recognizing the problem, but I suspect that this is yet another reason why Bruen's nebulous and vexing character is going to be intractable and will remain how it's begun: an incoherent mess of law office history cloaking bog-standard ideological policy judgments.

Wednesday, June 19, 2024

Israel Threatens New Settlements in Retaliation for Palestine Recognition

CNN ran this story a few days ago, detailing statements from some Israeli government officials promising expansion of West Bank settlements in response to the decision by several European nations to recognize Palestine as a state.

Israel’s government says it is looking to “strengthen” Jewish settlements in the occupied West Bank after several countries unilaterally recognized a Palestinian state.

In a statement issued on Sunday, the Prime Minister’s Office said all of the proposals for strengthening settlements in what Israel biblically refers to as Judea and Samaria would be voted on at the next Security Cabinet meeting.

Norway, Ireland, Spain and Slovenia have each recognized an independent Palestinian state in recent weeks, a move motivated at least in part by Prime Minister Benjamin Netanyahu’s open refusal to commit to a two-state solution.


Israel’s far-right finance minister, Bezalel Smotrich, said in May that Israel should approve 10,000 settlements in the West Bank, establish a new settlement for every country that recognizes a state of Palestine, and cancel travel permits for Palestinian Authority officials.

At the top level, this is another data point for an already-complete illustration showing that the Israeli government has quite a few far-right expansionist extremists in positions of alarming power and influence. Not new, but still essential to flag.

But there is another point worth mentioning, which also is not especially novel but does need to be pointed out. It is common to argue that Israel's brutal, hyper-aggressive assault on Gaza is persisting because other nations (particularly, but not exclusively, the United States) haven't taken sufficient punitive action against Israel to punish it for its misdeeds. Diplomacy is a function of carrots and sticks, and we've left the "stick" part out of our repertoire for too long. Had we utilized sticks more robustly, then maybe much of the current crisis could have been averted or at least ameliorated.

Perhaps. But as the above story illuminates, it's not necessarily the case that diplomatic "sticks" always serve to bring their targets to heel, or even arrest their bad behavior. Sometimes, particularly over the short-term, they can instead accelerate it. For obvious reasons, states have a very strong incentive to not give the impression that hostile action (or actions they perceive as hostile) against them will yield positive results. To the extent Israel doesn't want other countries to recognize Palestine, it's very predictable that its next move in the game will be to take actions that suggest "doing this has led to X Y Z bad consequences you don't want to see repeated." Countries that feel isolated or as if they can only rely on themselves often are more aggressive or reckless than those enmeshed in thick webs of relation, precisely because they believe that even a single mistake or miscalculation could be their ruination. As awful as it can seem to feel complicit in another nation's bad behavior because one is seemingly continually coaxing and pleading and appeasing rather than just putting a foot down and saying "no", the latter approach often runs the risk of being triggering terrible backlash with devastating immediate consequences.

This isn't to say sticks are never warranted at all. Sometimes the stick-like action is important enough for its own sake to absorb the immediate negative reaction. More broadly, the stick-wielders also have good reasons to communicate that where a given actor crosses certain redlines, they'll endure consequences they won't enjoy.

All of which is to say that diplomacy is a delicate dance, and there are more moving parts than many would care to admit. Sometimes it's worth swallowing an immediate bad consequence to set a broader precedent or to secure a long-term goal. But sometimes there are good reasons to think that the stakes of the immediate backlash demand swallowing one's pride and continuing to take what to an outsider may seem to be a maddeningly light-touch approach. The fact is that in all diplomatic relationships there are multiple players in the game, and it is rare that anyone -- even a hegemon like the United States -- can simply fiat someone else into compliance (I thought this old post from Cheryl Rofer on the term "deterrence," and how the term purports to "transfers agency to the deterrer" while obscuring that the "deterred" has agency too and won't necessarily react how you want them to, raised similar points).

Am I saying recognizing Palestine is a circumstance where countries should have backed off to avoid the Israeli reaction? No -- in fact, I think there are some very good reasons why here it was reasonable for the countries in question to bite the cost and go through with recognition. Again, sometimes absorbing the immediate backlash is worth it. But we should be clear-eyed about the trade that may have been made: recognition of Palestine for increased and accelerated settlement activity in the West Bank.

Is it fair that this is a "trade"? No. But diplomacy isn't about what's fair. And the broader lesson is one that's important to remember -- regarding Israeli and Palestinian actors alike. Too often, too many of us are seduced by the notion that it is possible to simply bludgeon the bad guy into obedience. The reality is that often, the project of avoiding the worst outcomes means making nice and doing nice things to actors who are doing, have done, and will continue doing all sorts of unlovely activities. If you can't accept that, you might want to find a different field to commentate on.

Monday, June 17, 2024

Carleton Reunion Protest Report

I attended my college reunion this week (my 16th, my wife's 15th). It was, as always, a lot of fun to see old friends and old professors and old hangouts. 

Going in, I was curious about how much protest activity there might be (reunion is a huge event at Carleton, to the point that other schools send observers to see how we do it). Despite being on campus these past few months, I've actually been relatively insulated from major protest events: Lewis & Clark has been a lot quieter than other Portland campuses -- compare Portland State (where the library was absolutely trashed) or Reed (where a Jewish student was hit with a rock) -- and what protest activity has occurred centered on the undergraduate campus. I knew Carleton had an encampment at one point, but hadn't heard anything else about it, and my general rule of thumb on this subject has been "no headlines = good news."
Anyway, the answer to my question of how much protest activity would be found at reunion was "some, but not too much." There were a few alumni wearing pro-Palestine t-shirts -- I probably saw 3 or 4 over the course of the weekend. The major action item seemed to be a pledge to withhold donations "until divestment". I saw a handful of buttons to that effect, but it didn't seem to be very effective (relatively early in the weekend the reunion organizers announced that my wife's class had already blown past its fundraising target). On the last day, about a dozen alumni protested in front of a campus center, which to me just honestly looked boring -- standing in a line on a hot day chanting the same few phrases in unison? Subject matter aside, it's clear that protests just aren't for me. But it didn't really disrupt anything or cause any problems, so they can say what they want. And that was my general take on the whole weekend as well: there was a visible pro-Palestine presence, as was their right. It was a pretty small sliver of the overall attendance, and didn't materially impact the weekend. I won't go so far as to say one wouldn't even have noticed them without being on the lookout, but it was not some overwhelmingly or inescapable presence by any means.

As it happens, one my favorite professors at Carleton is an expert on protest politics, so it was fun to pick her brain as to what had happened on campus over the course of the year. Her take was that the student protesters, while "enthusiastic", were not especially good at protesting and lacked any robust theory of change. The encampment was mostly let alone and neither caused nor was subjected to significant trouble. The biggest "event" came when a group of about two dozen students decided to stage a sit-in inside a campus administrative building. The college responded to that by locking and evacuating the building, but a sympathetic faculty member arrived to ostentatiously unlock the building and allow the protesters inside. The administration set a deadline for the students to leave or face disciplinary action; about half left, half didn't, and the latter were put on disciplinary probation.

In terms of what the protesters were asking for, some of the major demands were (1) divestment and (2) termination of a scholarship program supporting students studying in Israel. The latter was never going to happen. The former was, in my professor's estimation, "ill-formed", mostly because Carleton has little, if any, direct investments in arms manufacturers of any sort and so the protesters were left trying to fit round pegs into square holes. As with most colleges, Carleton's endowment is primarily in funds with relatively opaque portfolios, so it's unknown who have holdings in, and it took some serious stretches to find problems with the known companies. For example, they found one company Carleton is invested in that sells, among other things, some form of air traffic management software that can have military applications and which has sales in the Middle East. The sales figures aren't further broken down by country, nor are civilian and military uses disaggregated, but by assuming that all the Middle East sales are to Israel and all the Israel sales are military, voila -- Carleton is killing kids. The level of attenuation made it hard for the college to take this seriously as an actual demand as opposed to a slogan, and so the divestment call also seems likely to be a non-starter.

I also read over how the Carleton administration had responded to campus protests over the course of the academic year. Again, the overall impression was that things were handled quite well -- there was no significant signs I saw of violence or aggressive police responses. One thing in particular that the college President did that I thought was extremely effective was that she maintained lines of open communication with the protesters, but was emphatic that these meetings and discussions were not some sort of "concession" to be extracted:
The reason I have made a point of offering meetings up front, before any sit-in or impasse, is to establish that I see communication as a given, not a negotiating tactic. I was, and am, willing to meet with you — not as a result of threats or demands, but because you are deeply committed Carleton students whose views are important to the institution and to me. 

This, to me, is exactly correct. On the one hand, it is a very bad thing when college decisions are made simply by reference to whomever is yelling the loudest. At other schools where encampments and protests had been successfully "de-escalated" by promises that the college would hear and listen to various pro-Palestine pitches, there was some measure of frustration by Jewish students who did not feel like they were given the solicitude and avenues of access and basically wondered whether the only way they could get a hearing would be to occupy a building. That's a toxic dynamic. At the same time, it is part of the Carleton President's job to listen to and be attentive to student concerns. The President should hear what the protesters are saying not because she is forced to, but because that's part of her job description. The submission is not, or should not be, the point.

The final thought that pinged around my head related to the "no donations until divestment" campaign.  Again, it does not seem like this is making a material dent in Carleton's donations. Nonetheless, we are of course seeing many cases of donors publicly withdrawing contributions to various colleges and universities unless and until they adopt or alter this or that campus policy -- consider Bill Ackman and Harvard as an especially high-profile example. These initiatives I find a bit difficult. At one level, donors of course aren't obligated to give anybody money; if something about Harvard or Carleton or wherever renders it a place they're not comfortable supporting, that's their business. On the other hand, amongst academics it is generally viewed as a very bad thing when a university does in fact alter a policy or practice due to donor demands -- they shouldn't bow to outside pressure (and I think that this belief in institutional independence is at least somewhat severable from underlying opinions about the substantive merits of the underlying demands). So we're left in this weird space where we all agree that donors are absolutely entitled to withdraw their contributions in protest, but we also think that said protests should systematically fail.

In any event, on the whole I was pleased with how things played out at Carleton, and I'm glad that most stakeholders for the most part have comported themselves in a manner that allowed for that happy and peaceable outcome.

Tuesday, June 11, 2024

From Scarsdale To Dearborn, Enough with the Dogwhistles Already

Incumbent Rep. Jamaal Bowman (D-NY) is facing a tough primary challenge from fellow Democrat George Latimer. Much of the heat in the primary has centered around Israel (Bowman is a harsh critic; Latimer has AIPAC backing), and in that context Latimer claimed in a public debate that Bowman's constituency is not the local residents of New York, but rather "Dearborn, Michigan" (and "San Francisco, California"). Dearborn is well-known for its large Arab and Muslim population, and so Bowman quickly called him out for the racist "dog-whistle".

I, of course, immediately harkened back to not-so-fond memories of Antone Melton-Meaux's 2020 primary challenge to Ilhan Omar,* where Omar's campaign sent out a mailer highlighting her challenger's donor support, singling out one from the heavily Jewish suburb of "Scarsdale, New York" (all of the named donors in Omar's mailer were also Jewish). This, too, was pounced on by Omar's opponents and said to be an antisemitic dog-whistle.

Latimer's defenders say he was merely highlighting Bowman's lack of local support. Omar's defenders likewise contended she was being unjustly smeared as a critic of Israel.

So, is this sort of attack a dog-whistle? Quick -- everybody switch sides!

In all seriousness, if you condemned the Omar campaign for its "Scarsdale mailer" you don't get to give Latimer a pass on this. And likewise, if you poo-pooed the Scarsdale mailer as a ginned up controversy over nothing you can sit right down in your high dudgeon over the Dearborn remark.

(My answer: Both instances were shady and both politicians deserved to be called out on it.)

* I'm bemused to rediscover that my blogpost on this controversy was titled "I Have To Talk About Omar and Melton-Meaux, Don't I?", which really captures a certain mood, doesn't it?

Saturday, June 08, 2024

The Redemption of Noa Argamani

The Israeli military announced today that it had successfully rescued four hostages from Hamas captivity, including Noa Argamani. Argamani was a particularly high-profile hostage because video of her abduction was one of the first pieces of footage Hamas released after October 7, showing her pleading with her captors "don't kill me!" as she was taken from the Nova music festival massacre and separated from her boyfriend (whose whereabouts remain unknown).

The Israeli operation which freed Argamani and her compatriots also reportedly killed approximately two hundred Palestinians, according to Hamas figures. These, as always, do not distinguish between civilian and military casualties; we can safely assume there is plenty of both (it is apparent that there was a significant military presence guarding the hostages).

Two days after October 7, I quoted Noa's father Jacob saying the following:

Let us make peace with our neighbors, in any way possible. I want there to be peace; I want my daughter to come back. Enough with the wars. They too have casualties, they too have captives, and they have mothers who weep. We are two peoples to one Father. Let’s make real peace.

That quote came at the bottom of a post titled "What Will You Say 'No' To?" It was a warning to Israel supporters that they needed to decide, then and there, what sort of response or retaliation would not be justified in the wake of Hamas' attack, citing specifically Yoav Gallant's threat to starve out Gaza's population. There's plenty that Israel justifiably could do in response to Hamas' attack, but what would we not support Israel doing? What is too far? What must be taken off the table?

Was it not unfair to level that demand mere days after October 7? Maybe it was, though if Jacob Argamani could think along the above lines, then I'd argue so could anyone. Unfair or not, however, I said that we had to think about those questions then, because 

we just witnessed in real-time a catastrophic failure to grapple seriously with this question on the part of those who've pledge to stand with Palestinians and Palestine. Suddenly forced to decide whether, in the wake of occupation and besiegement, a Palestinian response of "a systemic campaign of house-to-house kidnappings, rapes, and executions" is a valid one, we saw far, far too many individuals unable to say "no" (or at least, say it with any level of decisiveness). This failure stems directly from the tempting broth that assures us that, if the provocation is severe enough and the injury severe enough, no amount of "response" could ever be disproportionate. And so we see that, if you refuse to let yourself think that anything could be "too far", there's no end to the depths of hell you may find yourself apologizing for.

Eight months later, that post is deeply embittering to read. None of this had to happen. Most obviously, October 7 didn't have to happen and the hostages didn't need to be taken. Yet even now, writers like Adam Shatz cannot help themselves in describing the "exuberance" over October 7 as a "prison breakout," "a daring assault on Israeli bases that devolved into hideous massacres" (it did not "devolve" into anything; the sowing of terror and death amongst Israel's civilian population was the primary tactical goal of the operation -- there is essentially no evidence that the primary or even significant targets of Hamas' operation were military bases). Likewise, the warnings to the Israelis that their righteous fury over October 7 did not license the imposition of an indiscriminate siege and turning the entire Gaza Strip into a free-fire zone fell on deaf ears, and now the entire nation is on trial for genocide.

Nobody paid heed, and nobody has seemed to have learned anything. In the months that followed October 7, there were innumerable opportunities to turn off this path, with plenty of blame to go around for why we didn't, but the main culprit is simple: both Israel and Hamas want this war to keep going. Obviously there are some conditions where they'll accept peace; but those conditions are quite far apart, and so for the most part they're both happy to keep the war going rather than deal with the fallout of an actual deal

So now tens of thousands of people are dead, and for what? Noa Argamani is home, but Noa Argamani started at home! Noa Argamani being home was the world on October 6! We're back to where we began, except with unfathomable death and destruction and trauma for uncountable numbers of people.

I'm happy and relieved and overjoyed that Noa Argamani has returned home -- the redemption of Noa Argamani is an unqualified and unadulterated good. But that joy is tempered by the fact that none of this had to happen at all. We could have lived in a different world.

Wednesday, June 05, 2024

A Jewish Studies Purge at UC-Irvine?

There's a brewing controversy bubbling up at UC-Irvine, where Jewish students are protesting the decision to terminate the contract of a popular lecturer who had been teaching a class on Jewish Texts under the auspices of the campus' Center for Jewish Studies. The lecturer, Daniel Levine, is a Rabbi affiliated with the campus Hillel chapter. There are two open letters currently circulating in support of Levine and condemning his termination, you can read them here and here.

There are a lot of moving parts here, and situations like this almost always have lots of little nooks and nuances that can be hard for an outsider like myself to spot. But here's my best attempt to summarize what appears to be going on.

The Center for Jewish Studies is not an independent department at Irvine. It is run as a minor out of Irvine's humanities division and is specifically overseen by the Department of History. Levine is not a permanent member of the faculty, but he was by all accounts a popular teacher who was well-liked and respected by the campus' Jewish community. The official rationale for his non-renewal is that two new tenure-track hires with interests in Jewish Studies mean that his course can be taken over by permanent faculty members, offered every other year. The Jewish students counter that the new faculty members' specific subject-matter expertise does not seem tailored to the Jewish Texts course; further, they believe that Rabbi Levine would have been able to maintain teaching the class on a yearly (rather than biannual) basis.

But there's a bigger issue lurking. Among the demands of UC-Irvine pro-Palestine protesters has been for the university to cut ties with "Zionist" organizations and individuals. The chair of Irvine's history department, Susan Morrissey, is part of the Faculty for Justice in Palestine group which has endorsed these demands. The suspicion amongst the Jewish students is that Rabbi Levine was ousted from his position as a backdoor means of instantiating these demands. This fear is amplified by the fact that both of the new hires appear to be, at the very least, very sharp critics of Israel -- one was a leader of Jewish Voice for Peace at UCLA, and both are signatories to a letter written three weeks after the October 7 attack demanding (among other things) "the end of all U.S. funding to Israel immediately." In essence, the students believe that Morrissey effectively instituted a purge -- replacing a Jewish Studies lecturer who was embedded in the campus Jewish community but (or perhaps, and therefore) was tainted by his association with Hillel and "Zionism" with alternatives who would be less effective in serving the Jewish community (and the community of students interested in the Jewish Studies minor) but were more ideologically congenial and aligned with the political demands of Prof. Morrissey and the pro-Palestine protesters.

None of the above is incontestable. The public explanations from the powers-that-be at Irvine might be entirely on the level. It is far from uncommon that the sorts of considerations that drive faculty hiring and teaching assignments (particularly at a large research university) do not align with what undergraduates believe or expect should motivate who ends up in the classroom. Other than the tidbits identified above, I have no specific knowledge regarding either of the two new tenure-track hires at Irvine; they may be able to cover Levine's class with aplomb. And certainly, there is nothing intrinsically odd about replacing an external part-time lecturer with a tenure-line faculty where possible.

Nonetheless, it is abundantly clear that the Jewish Studies contingent at Irvine has ample reason for both mistrust and discontent. From their vantage, they're losing a great teacher and community member with inadequate replacement, for reasons that seem inscrutable, in a context where their very discipline and their broader standing in the Irvine community seem to be threatened by powerful forces, including the very campus leaders who made the decision at issue here. When a powerful university actor says they support doing a thing (here, cutting ties with the "Zionists"), and then that actor does something that is to say the least compatible with that thing (terminating Levine's appointment), observers are entitled to infer that the thing happened for the reasons that the actor publicly articulated. That isn't dispositive, but its certainly probative, and nobody can or should fault the students for not buying that Morrissey is acting for neutral and purely professional reasons.

In essence, Morrissey put herself in a position where she lost the presumption of trust that might normally accord to decisionmakers in her role. No matter what the "truth" is (which may be unknowable), we have a situation where deep damage has been done to the Jewish Studies minor and the relationship between its overseers and the community it purports to serve. It is clear that, to say the least, the Jewish Studies community does not feel as if the powers-that-be who made the decision to terminate Levine and who are guiding the new direction of the Jewish Studies minor are receptive and responsive to the views of the most-affected stakeholders (maybe if they occupied someone's office? But alas, the hypocrisy trap....).

In any event, at minimum, the Jewish Studies students and the broader Jewish community at Irvine are entitled to more receptivity from Professor Morrissey; to believe that her orientation towards them is not one of hostility and that she views them as a stakeholder to be engaged with, not an obstacle to be overcome. If she cannot restore that relationship of trust, then it may indeed be better if the Center for Jewish Studies be moved into a different portfolio, with leadership that can do the job that she cannot.

Tuesday, June 04, 2024

The Exceptions Aren't Exceptional, They're Just Bad

Today, the Columbia Law Review website is down, reportedly due to the publication of an article by a Palestinian legal scholar on the "Nakba" that occurred in the wake of and as part of Israel's war of independence and its establishment as an independent state. We're still getting details, but the word is that the law review's board of directors (comprised of faculty and alumni) sought to overrule student editors who wished to publish the piece and, failing to do so, took down the website.

I've really found valuable and thoughtful Paul Horwitz's comments on cases like this, and so too here. In particular, I agree with him that it's not right to refer to the Columbia incident as part of a Palestine "exception" to free speech or academic freedom, not because it isn't a breach of academic freedom norms (it certainly seems to be), but because it isn't especially exceptional -- whether we're focused narrowly on Israel and Palestine (as the Minnesota case, above, illustrates) or more broadly on "controversial" topics and issue areas.
I am certainly disturbed by the action of the CLR leadership in simply eliminating the entire article, along with the website, even if it is eventually published. The notion that there is a unique "Palestinian exception" to free speech norms or academic freedom is absurd, in light of numerous other occasions on which writers, editors, publishers, and others have engaged in censorship and self-censorship on numerous hot-button subjects over the years. But I am hardly comforted by the possibility that it is one more exception. And it would be no more comforting if the exception were better seen as a general "controversial subject" exception.

It is quite clear that speech that is harshly critical of Israel quite regularly faces sanction and obstruction that does not comport with free speech or academic freedom norms. But that's not an exception, that's an instantiation of a larger part that free speech and academic freedom norms have many fair-weather friends and so find themselves under serious pressure on the regular. This isn't to say that they don't do important work -- they do, and a lot of speech that probably would be suppressed ends up being permitted because these free speech principles do carry a lot of weight. But the notion that they are impenetrable juggernauts who only rarely and idiosyncratically find themselves challenged is just not true. One reason I try to defend these norms so vigorously is precisely because I recognize that their fragility is the norm, not the exception.

In general, I think I have a more positive outlook towards student-edited law journals than Paul does, and so generally take a dim view of any sort of faculty or administrative meddling in journal affairs (the notion that a faculty or alumni-comprised committee has any role beyond, perhaps, the most soft-touch advisory capacity, in determining what articles the Columbia Law Review does or doesn't publish is absurd to me). So it should come as no surprise that I also strongly agree with Paul that even if there were reasons to think that the student editors acted in a fashion that departed from their own normal rules or processes in accepting this article (which may or may not be true), any interventions that hypothetically might have been justified cannot take the form of an ad hoc, last minute decision to pull the piece from publication altogether.

Indeed, assuming that this article is slated to be part of CLR's print volume, I'm not sure what the board of director's end game is here -- are they going to pulp the entire issue? Even if the article is bad, wrong-headed, offensive (and I haven't read it, so it may be none or all of these things), I see no reason why any of those (for better or worse not especially exceptional) sins cannot be addressed via the normal mechanisms of academic inquiry and response. Prior restraint is not the right move. And if the Columbia board did what it is alleged to have done here, it is shameful and outrageous -- no less so if it is not "exceptional".

UPDATE: The Columbia Law Review board has issued a statement explaining why it took down the website. On my read, nothing they say justifies the decision. The only thing that's potentially eyebrow-raising is the claim that the piece was not selected via the normal article-selection process. But this probably (though not certainly) has less than meets the eye: it is hardly unheard of for a law review to solicit a piece outside the normal article-selection channels, which easily could be (but really shouldn't be) called a departure from the "usual processes of review or selection." For example, when I was a law review editor most pieces went through the articles committee (which I was on), but our book review editor had essentially carte blanche authority to solicit book reviews on his or her own initiative. While there might be some valid basis for complaint if this article was unusually sequestered from (actual, extant) norms and practices of how articles move through the CLR process, such problems do not to my mind justify the extraordinary remedy of taking down the website. The short version is that even if (and this not clear) there are valid process-based objections to what (some members) of the Columbia Law Review did here, that does not mean that taking down the website is an appropriate remedy. As Alexandra Lahav wrote in a thoughtful thread, sometimes events transpire such that there just isn't a way to "preserve the status quo ex ante."

One thing that hasn't been mentioned but which I think may be lurking in the background here is the recently announced boycott of Columbia University graduates by a suite of right-wing judges who've made very clear their intention to inflict collective punishment on the Columbia community for (real or perceived) bad behavior by particular actors. Threats like this understandably could make members of the Columbia Law Review who were not part of (and were not given the opportunity to be part of) the publication decision especially sensitive -- they have reasonable basis to fear they will be held responsible and retaliated against for choices they did not make and might not have even been aware of. I'm sympathetic to those students, but ultimately, the people who have put them in that position are the judges and other actors who have decided to endorse indiscriminate academic blackballing as a political tactic. As much as these students are being put in an unfair position -- and they are -- the board should not have cowered in the face of this blackmail. The principles of academic freedom are too important to be allowed to yield even in the face of a credible threat of external retaliation -- this is true when the boycotters are right-wingers furious about pro-Palestinian advocacy, and it's true when the boycotters are left-wingers livid about Israeli inclusion.