The Enthusiasm of a Man Child

As I approach forty years old, it is natural to reflect on what one gains, and loses, by aging. It is, of course, cliche for a forty-something to look back longingly on their bygone youth, and I'm not immune to the impulse. Luckily, my nostalgia doesn't really take the form of wanting a fast car and or a ponytail. In general, I remain quite comfortable in my own skin.

But there is one thing recently that struck me as a genuine loss and that I genuinely mourn -- enthusiasm. Not having it, but how it is received.

I like liking things. And I like getting excited about things. It is fun to discover a new thing, and to be excited about it, and for people "in the know" on that thing to respond positively to that excitement. As a kid, if you're excited to -- to pick a random example -- learn about airplanes, and you project that excitement next to a pilot, they'll be delighted and they'll usually gladly take you aside and explain some neat facts or give you an opportunity to check out a cockpit. If you're excited about cooking, and you meet a chef, they might let you watch them in the kitchen or give you some pointers on how to prep a meal. Enthusiasm is met with enthusiasm. It's nice.

As an adult, unbridled enthusiasm isn't met the same way. It's not (usually) looked down upon. But it isn't (usually) met with the same reflection back. To be clear, I don't begrudge anyone for this. The sort of investment we might give a single child as a reward for their enthusiasm isn't scalable; we couldn't give it to everyone.

Nonetheless, I can say with full honesty that I genuinely miss this response, because I actually do still try to relate to things that excite me with a sort of unguarded, exuberant, childish enthusiasm. Why wouldn't I? It's joyous, and why would I want to train myself to feel less joy just because I'm older and greyer? But this sort of enthusiasm, from a middle-aged man, understandably isn't met with the same affective glee from those in its path as it did when I was a kid. And I miss that, because it would still be cool to get the equivalent of the tour of the cockpit, and for the most part the days of getting that just because I'm excited about something are pretty well behind me.

Again, this isn't a claim of injustice or a call for something in the world to change. It is just a reflection, thinking about my own personality and my own (I'm realizing this more and more) determination not to let go of the things and practices that bring me joy just because I've gotten older.

What Penalty For the Judicial Intern Who Used Generative AI?

The contagion of AI-generated hallucinations in law has reached the federal judiciary. Two district court judges have admitted that opinions released from their chambers have included cases hallucinated by generative AI. One of the two judges specifically said that a legal intern (i.e., a current law student working in his chambers) used ChatGPT "without authorization, without disclosure, and contrary to not only chambers policy but also the relevant law school policy."

A judge is ultimately responsible for anything that goes out from their chambers, and I don't want to be misread into thinking that the judges here shouldn't be held responsible for this egregious failure. But certainly the intern who used generative AI has to be held responsible too -- a supervisor's failure to oversee and catch an abuse like this is serious, but the person who actually did the thing remains the primary wrongdoer. And so I'm curious what people's intuitions are regarding what the sanction on the intern should be.

For me, I admit, my instincts here are extremely punitive -- punitive to an extent that's surprising myself. I'm normally a pretty tolerant guy, recognizing that people make mistakes, and that we should give wrongdoers (where they take responsibility and otherwise demonstrate a credible willingness to change course) the opportunity to grow and move forward.

Yet in this case -- boy howdy. My gut instinct thoughts were, right off the bat, that of course they get fired, immediately, from the internship, and get zero credit for it. But it didn't stop there. Should they also be expelled? I'd consider it. Should they be admitted to the bar if they do graduate? I'm not sure they should be. To be blunt, I kind of think this person's legal career should be over, period, full stop, after this.

Part of my reflected rage here is that the person who uses generative AI in this way isn't just hurting themselves, they're wrecking the reputation of someone else -- the judge, someone who gave them a rare and privileged opportunity by having them work in their chambers. How dare they? Nobody will know or remember who this intern is. But the damage to the judge's reputation will follow them forever. 

And the degree to which this falls upon the head of the judge, who trusted them and gave them this opportunity, doesn't really have a parallel in other domains of law. Even in the case of an attorney whose GenAI misconduct leads to sanctions that cripple their client's case, at least the client might be able to sue for malpractice. There's nothing the judge can do to recover from the intern.

I also fail to see any serious excuse or mitigation. I flatly do not believe any law student today does not know of the risk of AI hallucination, and in any event there was in this case a clear policy against AI use that the intern apparently flouted. Were they overworked? Did they panic? Well, what's going to happen the next time they're overworked and panicked? How can anyone trust them again? How can anyone imagine handing over a client to them?

One of stalwart beliefs about legal education, and why it must be rigorous and hold to high standards even where it's hard or stressful or puts a heavy load on students, is that bad lawyering destroys lives. Law being one's dream or passion or family expectation or ticket to financial stability is not as important as good representation of client interests, and someone who can't be relied upon to provide that should not be a lawyer, period.

But again, I'm surprised at how strong I'm feeling about this. So I invite comments that walk me off the ledge (or which vindicate my instincts).

The First Circuit's (Mostly) Correct Dismissal of the MIT Antisemitism Suit

Today, the First Circuit Court of Appeals handed down a decision affirming the dismissal of a Title VI lawsuit brought by Jewish students alleging an antisemitic hostile environment at MIT. The court concluded first that the incidents pleaded by the plaintiffs were by and large not instances of actionable discrimination but rather were protected speech, and that what pleaded incidents were plausibly antisemitic were too isolated to meet the "severe" and "pervasive" threshold necessary to assign legal liability. Second, it concluded that even if the first part of the analysis was untrue, the claim failed for the independent reason that MIT could not be demonstrated to have been deliberately indifferent to the antisemitism.

Overall, I think the opinion is strong and reached the correct result. I was particularly happy to see it acknowledge the extraordinarily difficult position academic administrators are in when trying to mediate between cross-cutting speech/discrimination complaints, as this of course reflects my own position in contrast to the many Monday-morning-quarterbacks who think that these questions are perfectly straightforward and the only reason it looks hard is because of instincts towards censorship and/or bigotry.

I also think this decision illustrates a danger in how many Jewish groups are treating law and litigation as a primary mechanism for policing allegedly antisemitic speech. The litigation approach, to my eyes, is very much tied to a broader misapprehension of the legal landscape regarding discrimination that believes, quite wrongly, that Every Group But the Jews gets immediate and unconditional legal protection the instant they feel a twinge of discomfort on campus or in the workforce. Back in 2020, when Bari Weiss resigned from the New York Times while alleging that the conditions she endured at the paper were tantamount to constructive discharge, I made the following observation (after observing that, in fact, the conduct she identified in her letter came nowhere close to that which would support a successful discrimination lawsuit):

Weiss' confusion is in line with something I've noticed from many conservative observers of anti-discrimination law. They wildly underestimate how high the barriers are to winning a discrimination claim -- probably because they're ideologically committed to the notion that minorities get their discrimination claims rubber-stamped (when the reality is such claims are overwhelmingly rejected by the courts, often before reaching a jury). So when they experience something that is in the family of discrimination, they assume that (a) it must be illegal ("if these whiny minorities are winning, surely my very real pain and trauma must present a winning case too!") and (b) if it isn't treated as illegal, that must be because of some latent anti-conservative(/white/male/whatever) bias, rather than the normal functioning of a legal system they generally endorse.

So too here. The misshapen "us too-ism" morphs what is objectively a very precarious strategy (legal discrimination claims are hard to win, especially when the conduct they are challenging is primarily speech!) into something that appears viable. Law very intentionally and in my very appropriately does not purport to capture everything that could be reasonably called antisemitic -- here, the court agrees that there are certain pleaded incidents which were (if the pleaded facts were true) antisemitic (they were just too isolated to support liability), and particularly in the speech domain there may be speech that can be called antisemitic (or at least debated as such) but which cannot have legal liability attached. But the headline that everyone reads when one files a suit and loses is "antisemitism claims found to be meritless," and there is little hope to then reignite the conversation in the more expansive and forgiving domain of discourse and dialogue.

On that note, if there was one area of the opinion where I have a bit of hesitation, it was in how it treats the plaintiffs' arguments for how anti-Zionism is antisemitic (at least in some forms). The opinion somewhat oscillates between two positions here. Sometimes, it suggests that there remains open debate on the contours of when and whether anti-Zionism is antisemitism, and that our legal system "resolves through discourse, not judicial fiat" (30). "Plaintiffs are entitled to their own interpretive lens equating anti-Zionism (as they define it) and antisemitism. But it is another matter altogether to insist that others must be bound by plaintiffs' view" (28). This I think gets it right. But at other points, the opinion shifts away from the lens of "it is inappropriate for judges to resolve this contested ideological question" and instead delivers a flat judgment that the challenged conduct was simply not antisemitic ("The disruptive political protests sympathetic to Palestinian views of the conflict with Israel were not, by and large, antisemitic." (41)). This I think is unnecessary and flouts the prior, careful choice to abstain from making that judgment one way or another.

One last point: I think the way the First Circuit dispenses with the Jewish plaintiffs' sincere belief that anti-Zionism is antisemitic is at odds with the Second Circuit decision I flagged last month regarding a Christian school's stated belief that forcing its girls' basketball team to play against teams that fielded transgender athletes would violate its religion. In the latter case, the Second Circuit treated disagreement with the Christian school's own articulation of what its religious beliefs required as tantamount to religious animus. In this case, by contrast, the First Circuit had little trouble telling the Jewish plaintiffs that they were (at least as far as the law was concerned) incorrect about what sort of conduct does or doesn't target their religious values. To be clear: I think the First Circuit is closer to the mark here than the Second: disagreement with a religious person's views, so long as that disagreement is not itself motivated by religious hostility, should not suffice to make out a claim of religious discrimination. The Second Circuit's opinion was far too expansive and, if applied consistently, almost certainly unworkable. But it goes to illustrate, once again, that these expansive new religious liberty principles being introduced by the judiciary almost certainly are not going to extend to Jewish litigants -- in part because they have to have limits, and Jews are not part of the in-group meant to be protected but not bound.

If I Am Only For Myself, Who Will Be For Me?

The first two lines of Hillel's famous maxim read as follows:

If I am not for myself, who will be for me?

If I am only for myself, who am I?

It's obviously famous for a reason. The first line endorses some measure of self-regard or at least self-reliance -- we have to advocate for ourselves. The second cabins the first -- if we only care about our personal self-interest, who are we? As in so many things, the best path lies somewhere in the middle.

Hillel's line came to mind for me when I was reading reports of a prominent New York City Rabbi urging his congregants to oppose Zohran Mamdani for mayor. His call was framed in terms of urging Jews to "prioritize their Jewish selves" -- to self-consciously elevate "ahavat yisrael ... over other loves." They should not vote on "affordability, food instability, education, policing, sanitation, taxes – the everyday issues that shape our great city’s life." They must vote in a way that first and foremost "safeguards the Jewish people." Everything else is secondary.

I don't think Mamdani represents the sort of existential threat to the Jewish people that warrants this sort of reaction. This is not the same thing as saying Jews aren't allowed to have concerns over some part of his record. But sermons like this strike me as more than a little histrionic, except for the fact that to me they read like a desperate attempt to spur on a Jewish community which by and large is not reacting hysterically to Mamdani. Again, it isn't so much that Mamdani is being greeted with gushing support (the most recent polling shows that among Jews Cuomo is ahead of Mamdani, but just barely). They're just not converting their various concerns and misgivings into the all-out existential panic this Rabbi would like to see.

But leave all of that aside. My actual quarrel with the Rabbi's sermon is that, as a prescription for political action, it presents an incredibly short-sighted political vision for Jews. For if Jews can legitimately say to various other groups and communities "we hear your concerns (about affordability or policing or Islamophobia or what have you), but we ultimately have to look out for ourselves first"; well, those other communities are equally entitled to reply "and we hear your concerns (about antisemitism), but we ultimately have to look out for ourselves first." And even in New York City, there are a lot more of them than there are of us. So remind me how exactly this will redound to the benefit of Jews?

I raised this same argument six years ago in the context of British elections, where Jews were pleading with non-Jews to not vote for Jeremy Corbyn's Labour Party given Corbyn's rank antisemitism (and Corbyn, to be clear, is on his best day far more antisemitic than Mamdani is on his worst). Many of these Jewish figures harbored no illusions about the Tories, including that party's own sordid involvement in racism, xenophobia, and Islamophobia (and, for that matter, antisemitism). But, they argued, as terrible as Boris Johnson may be, "stopping Corbyn has to be the number one priority for British Jews. And a vote for anyone but the Tory candidates is, ultimately, a vote for Jeremy Corbyn."

Jewish voters who act under this logic, they would say, are by no means endorsing Brexit, which they detest, or xenophobia, which they abhor. They hate these things, genuinely and sincerely. But their hand has been forced. In this moment, they have to look out for Number One. 

I understand this logic. I understand why some Jews might believe that in this moment, we cannot spare the luxury of thinking of others.

I understand it. But it is, ultimately, spectacularly short-sighted. 

To begin, if we accept that British Jews are justified in voting Tory because we are justified looking out for our own existential self-preservation, then we have to accept that non-Jewish minorities are similarly justified in voting Labour in pursuit of their own communal security and safety. We cannot simultaneously say that our vote for the Tories cannot be construed as an endorsement of Conservative xenophobia but their vote for Labour represents tacit approval of Corbynista antisemitism. Maybe both groups feel their hands are tied; trapped between a bad option and a disastrous one. And so we get one letter from the Chief Rabbi, excoriating Jeremy Corbyn as an “unfit” leader, and another competing letter from the Muslim Council of Britain, bemoaning Conservatives open tolerance of Islamophobia. 

But if the Jews reluctantly vote Conservative “in our self-interest” and BAME citizens reluctantly vote Labour “in their self-interest”—well, there are a lot more BAME voters in Britain than there are Jewish voters. So the result would be a massive net gain for Labour. Some pursuit of self-interest. 

Meanwhile, those Brits who are neither Jewish nor members of any other minority group are given no guidance by this approach. There is no particular reason, after all, for why they should favor ameliorating Jewish fears of antisemitism over BAME fears of xenophobia. From their vantage point, these issues effectively cancel out, and they are freed to vote without regard to caring about either antisemitism or Islamophobia. At the very moment where these issues have been foregrounded in the British public imagination in an unprecedented way, insisting upon the primacy of pure self-interest would ensure that this attention would be squandered and rendered moot. 

Of course, all this does not even contemplate the horrible dilemma imposed upon those persons who are both Jewish and BAME—the Afro-Caribbean Jew, for instance. They are truly being torn asunder, told that no matter how they vote they will be betraying a part of their whole self.

And so too here. The argument from self-interest -- aside from ignoring those whose intersecting identities may make them acutely perceive a threat from both Mamdani and Cuomo -- ultimately licenses every other group to not care about Jewish concerns. After all, they have the same license to prioritize their own communal needs and values as we do.

So much of contemporary Jewish discourse is a plea for solidarity, against the pain of feeling dismissed or viewed as extraneous whenever a peer says something to effect of "I'm not happy with how he's alienating Jews, but X Y Z matters more to me." Yet here we see that exact same argument run, and it is a logic that effectively endorses (for the non-Jewish majority) ignoring Jewish concerns.

Indeed, I might daresay that Hillel was, if not wrong, then at least incomplete: If I am only for myself, who will be for me? Aside from me, nobody. And that is a very lonely place to be.

"Pro-Palestine" is a "They", Not An "It"

There is no doubt that one major development in American politics over Israel/Palestine over the last two years has been a dramatic expansion and mainstreaming of pro-Palestine political advocacy. It's no longer a given that all or nearly all politicians will ritualistically intone "I am pro-Israel." It's no longer the case that self-identified "pro-Palestine" actors are confined to a tiny fringe leafleting outside UC-Berkeley.

One upshot of this growth is pluralism. As a movement gets larger, it encompasses a wider range of perspectives. Social movements, I've long argued, "moderate as they mainstream", and this moderation effect often frustrates the original "hardcore" of the movement, who may view the newcomers as engaging in coopting or even selling out. The moderates, for their part, may well view the old guard as hidebound, extremists, or simply unrealistic. It's a common pattern, and it's pretty clear it's being replicated here as well.

That said, there are a lot of people with strong incentives to downplay this pluralism and instead treat pro-Palestine as a monolithic thing.

Consider the reports that, in the wake of the ceasefire agreement in Gaza, Hamas has launched a bloody crackdown on dissidents and rivals, including public executions of those they are accusing of being "collaborators". Given that this by all appearances is an extra-legal terror campaign against Palestinian civilians, one would expect it to be condemned, and one need not search far to find various pro-Israel voices running lines to the effect of "now that Israel isn't involved, 'pro-Palestine' groups are silent -- or even support it!" On the latter point, they're not making things up: the National Students for Justice in Palestine organization, following these reports of Hamas' killings, called for "death to collaborators" in apparent endorsement. As awful as it is to see, it appears there are prominent, non-fringe elements of the pro-Palestinian movement who more or less support Hamas engaging in violent terror not just against Israel (we knew that) but against Palestinians as well.

Yet, on another level, the pro-Israel voices I mentioned above are making something up, because the NSJP is by no means the only "pro-Palestine" organization out there, and in fact it is not at all difficult to find pro-Palestinian voices who are horrified by Hamas' rampage of terror. The Palestinian Authority lambasted Hamas' killings as "heinous crimes"; a Palestinian human rights NGO similarly accused Hamas of "extrajudicial executions" which "constitute a legal and moral crime that requires immediate condemnation and accountability."

In the abstract, there isn't anything especially odd or complicated here. "Pro-Palestine" is a "they", not an "it"; it contains a wide range of different groups and outlooks. Under that broad umbrella, why would it be hard to grasp that there might be some people who flatly support Hamas and others who find them risible?

But it's also not hard to see why many players in this drama are so enthusiastic on sweeping that pluralism under the rug. The pro-Israel commentators want the NSJP's pro-murder posts to be the paradigm example of what the pro-Palestinian movement stands for. "This is what this movement really is." In doing so, they can discredit all of the other members -- including those who are rightfully horrified by Hamas' brutality -- by association. And on the other side, obviously groups like NSJP have an incentive to present themselves as the sole and authentic representation of what "pro-Palestine" means. They want the broad, inchoate energy behind "pro-Palestine" to be channeled through them. Groups which take a softer or moderate tone are not allies, they are threats. And with strength in numbers and in unity, there is a lot of tacit pressure to defer to the leadership of established organizations and not disturb their decrees regarding what views "count" as pro-Palestine and what do not -- even if those decrees are often based more on internal political considerations than any healthy respect for pluralism and disagreement.

Yet incentives aside, we would all do better not to indulge in this game. One theme I've been returning to over the past several months is that many pro-Palestinian activists are speedrunning a realization many pro-Israel activists have also had to start grappling with: the reality that many -- not all or even potentially most, but many -- of the people who march under your flag really are exactly as extreme and nasty and blood-thirsty as your worst enemies describe them as. We like to think of these attacks as smears, and often they are insofar as they present sweeping and general guilt across the whole movement. But on the pro-Israel side, it actually is the case that there are many non-negligible figures whose outlook towards Palestinians is one of simple, naked racism; who do not remotely "just want peace"; who absolutely openly endorse human rights violations of the most vicious kind in the name of "security" or "greater Israel". And likewise, on the pro-Palestine side, it actually is the case that there are many non-negligible figures whose outlooks towards Israelis and Jews is one of simple, naked antisemitism; who do not remotely "just want peace"; who absolutely endorse human rights violations of the most vicious kind in the name of "decolonization" or "freeing Palestine." I and many other Jews who identified with Israel had to work through that reality, and so too must the pro-Palestine community work through the reality that it is not a slur or a slander or a bad-faith attack: groups like the NSJP really are right now endorsing Hamas' murder spree targeting Palestinian civilians.

However, this realization is not an accuse to swing all the way in the other direction. Those who endorse Hamas' murder spree are not an inauthentic, fringe, or fake part of "pro-Palestine", but neither are they the authentic, true, or sole representative of it either. The notion that every person who sat at a pro-Palestine campus encampment is now elated to see Hamas executing Palestinians in the streets is simply not credible. Pro-Palestine is a they, not an it. It is irresponsible to deny the presence of this particular faction; it is equally irresponsible to cede it the status of being the only relevant faction.

Overcoming Hardship versus Flourishing with Support

One of the interesting things about "equality of opportunity", as a concept, is that while it's often used as a conservative talking point ("equality of opportunity, not equality of result"), if one actually takes it seriously, it would require a pretty radical reordering of our social structures from top to bottom. Do you know how hard it is to actually establish equality of opportunity? For example, one would have to either eliminate economic inequalities altogether or (this is no easier) eliminate their impact in terms of how they affect the starting positions of young people. Whatever world that looks like, it's very distant from our own.

In the meantime, though, those of us who do take "equality of opportunity" with a modicum of seriousness try to accommodate the actually extant inequalities with some imaginative guesswork. We see two candidates, one with perhaps slightly lower test scores but who has overcome significant adversity, the other with higher numbers but no such disadvantages, and try to ask ourselves the counterfactual: "How would the first candidate have performed had they started on equal footing with the second?" It's an imprecise art and that leaves a lot of room for subjectivity (and complaints), but it at least tries to answer the question nominally posed by "equality of opportunity" in a realistic manner.

Yet there's another dimension of equality of opportunity that I think sometimes gets overlooked, which is that even where starting points are equal, results may differ depending on what the starting point is. Let me explain:

Imagine we were trying to rank the "merit" of 100 people, and assume for sake of argument it is possible to do this in an objective way (we can rank everyone from 1 to 100). The equality of opportunity issue noted above concerns how we make "adjustments" to the ranking based on differences in starting points -- some faced significant hardships and adversity, others were provided substantial mentoring and support for them to flourish -- and the problem is that this is all counterfactual. 

But suppose we could do the social scientist's dream and send all 100 people to an alternate reality where they start off in exactly the same position -- they all face (the same) significant hardships and adversity which they need to overcome. If they all faced the same hardships, we might say that that the resulting 1 - 100 ranking was an objective determinant of merit.

However, now suppose we send those same 100 to a different alternate reality. Here, too, they all start off in exactly the same position. But this time, instead of all facing (the same) hardships and adversity, here they all are provided the same support and nurturing (they start of equivalently advantaged, rather than disadvantaged). Once again, at the end of the experiment we rank everyone 1 - 100. But my guess is that the rank order in Alternate Reality #1 would be different from that produced in Alternate Reality #2. The skillset that yields high performance under conditions of adversity is not the same as the skillset that yields high performance under conditions of support and nurturing.

All of this is a long-winded way of asking: which do we care about more? Again, note that this isn't the easy in theory/hard in practice question of comparing one candidate who faced adversity against another who was given support. In our hypothetical, all candidates are both equally supported and equally disadvantaged (in the two realities). So the question here is whether our vision for the "best" candidate -- the ideal we are trying to approximate via our guesswork adjustments -- is the person who thrives under conditions of adversity or the person who outperforms in ideal circumstances.

Of course, the actual answer is "it depends". Some jobs or social roles we know demand significant resilience in the face of hardship, and so we want the person who can perform best in those circumstances. More broadly, I think we find intuitively attractive the idea that this sort of scrapper is particularly praise-worthy compared to those who "had it easy". Yet there is another frame where we would want that everyone would get the support, resources, and nurturing that would best position them to thrive. We don't want to haze people for its own sake; we should hope to construct social roles in such a way that their occupants are not having to scrape and scrap for traction but are put in the best position for success. Yet the fact that different people would be (even under a genuine "equality of opportunity" ideal) the "best" performers under these two frames is interesting to me; it underscores how there is an inescapable element of normative choice even in the best case scenarios of what a meritocracy might be.

There's no big moral here, just another meditation on the complexities of equality.

First They Came For Tylenol, Now Circumcisions

The latest stop in the RFK/Trump team's conspiracy-addled rampage against science was an assertion that "circumcisions" may be a cause of autism. This drew an accusation from Rep. Jerry Nadler (D-NY) that RFK was trafficking in antisemitism (a small but vocal cadre of antisemitic activists have centered their hatred of Jews on circumcision, which they present as tantamount to child abuse).

What I find most interesting about this latest foray in RFK nuttiness, though, is how it in many ways diverges from the more typical linkage antisemites tend to draw when it comes to Jews and public health. In general, the conspiracy claim historically has been that some mainstream medical practice is actually dangerous, but Jews avoid the risks via some secret Jewish handshake. On vaccines, for instance, the antisemite I feature in my "Things People Blame the Jews For" series alleged the following:

Go to Wal-Mart and look at the children in the check out line.... They usually all have blank stares now .... Walk the check outs until you see a kid who is totally engaged with people, smiling, bright and acting intelligently. Ask the mom if she vaccinated her baby, and if hse says yes, ask if she is Jewish.... I never figured out the method, but I can definitely state that somehow, "they" do not get the same shots.

Vaccines are bad, except the Jewish vaccines, which are fine. RFK himself has tapped into similar logic when he contended that the COVID virus was "engineered" to not target Ashkenazi Jews -- again, Jews presented as getting some secret healthcare privilege denied to the victimized masses.

But the circumcision argument cuts in the opposite direction: Jews are far more likely to be circumcised, and so if circumcision causes autism (and again, I cannot stress enough that the medical evidence here is "no, it doesn't, you idiot"), then Jews would be disproportionate victims. How nice of RFK to be looking out for our wellbeing (/sarcasm)!

The Frog Prince

A few days ago, a viral video circulated of a neo-Nazi agitator interrupting a psychology class at the University of Washington ... and then being chased out of the room and across campus by basically all the students in the class (as well as the professor). At the end of the video the guy trips and is held down by some of the students (you can hear him pathetically mewling "I thought you were the party of peace!") until campus security arrived to arrest him; those students also prevented anyone from enacting any violence on the man.

On the reddits, I saw a lot of praise for the students' solidarity and discipline, and in particular their decisive action to assume that the Nazi scumbag they had on the ground was not physically attacked or injured. But I remember reading one commentator who was a bit confused by that angle of praise. Aren't we all fans of punching Nazis? Don't we understand that violence is sometimes necessary to defeat fascism? Why was everyone so insistent that this Nazi, who very clearly brought it upon himself, be left unharmed?

My response to that was simple: if you're not a pacifist, then yes, you accept that sometimes violence is necessary to achieve important political ends. But if you're at all a liberal, then violence should never be your preferred choice. If there is a nonviolent way to accomplish your goals, then that's what one should do -- violence is not a good for its own sake (in fact, it's quite bad "for its own sake"). In this circumstance, the students were able to neutralize the Nazi without resort to meaningful violence. Violence wasn't necessary, so it was good that they didn't resort to unnecessary violence.

I was thinking about this with respect to the anti-ICE protests in Portland, and in particular, the comical site of inflatable frogs, chickens, and other absurd animals that have taken center stage in these protests. This being Portland, the worry when Trump announced his invasion plan for our city was that some group of rabble-rousers or agents provocateurs would take it upon themselves to enact violence, which Trump would then use to bolster his lies about Portland being a wartorn hellscape. But instead, they've been met with these ridiculous animal outfits, which have been incredibly effective at making the fascists look ridiculous. Kristi Noem trying to play tough gal while overwatching an "army of antifa" comprised of about a dozen peaceful protesters, one in a chicken suit? Comedy gold. But also, political gold: it highlighted in brilliant and excruciating detail how profoundly unserious Noem and her gang of fascists are. They are playacting a crisis of their own creation so that they can present themselves as action stars; countering that absurdism with humor and whimsy and comedy does more to resist their agenda than any masked stone thrower could accomplish.

In saying this, I'm in no way downplaying the seriousness of the moment we are in. Nothing could be more serious than the specter of one's own government invading your city in order to enact an explicit agenda of ideological terror and suppression. But it is that very seriousness that compels serious thought about what would constitute the most effective countermeasure to that attempt.

The violent/non-violent protest debate, too often, is presented in ethical and philosophical terms -- (when) is violence justified? But this skips past the more immediately practical question of (when) is violence useful? Often times, one can (or should) leave aside the question of justification because the utility just isn't there. And often times, it seems like those who grimly intone the need for violent action because "power cedes nothing without a demand" or some such cliche are very self-evidently excited at the opportunity for violence. It is something they revel in, and desire for its own sake -- the move of first resort, not the last. As much as that instinct presents itself as rising to the demands of the moment -- "by any means necessary" -- it more often than not represents an abdication of the need to actually respond to the demands of the moment in favor of personal indulgence.

So once again, kudos to Portland for resisting that impulse. The point of activism is not to provide an outlet for one's personal rage (however warranted it may be). The point is to figure out effective strategies for undermining one's opposition, and seize on those weak points. Fascists are weak wherever the people show joy. The Portland protests, which show our city in all of its joyful weirdness, represent the best possible response to Trump's pathetic efforts to slander our city as something it isn't.

AI Über Adderall

Another day, another AI hallucination story -- this time involving mega-consulting firm Deloitte, which just refunded a big chunk of change to the Australian government after a report they did was found to contain inaccurate and likely hallucinated citations.

Every time I see one of these stories, I always am left asking "Why? Why did you do it?" The risks have to be well-known at this point. And getting caught seems like it's close to career suicide. What's happening?

404 Media did an interesting interview with attorneys who had been caught using AI (and who failed to catch AI hallucinations), and the general theme (aside from "a subordinate did it and I didn't check") was some variation on being overworked and under a ton of pressure.

Now, perhaps I'm overthinking this. But I am wondering if there's some interplay between the historic hard-charging atmosphere of the big consulting firms and use of AI. Companies like Deloitte have a bit of a reputation vis-a-vis their work culture, which basically boils down to "if you are willing to be worked to death, we'll make you richer than God." Younger hires, in particular, are hit with truly unfathomable workloads and time pressures (with sometimes predictably tragic consequences). The historic implicit expectation, if one was in such a situation, was basically to wink at "drink your coffee, take an Adderall, stay up all night, bang it out." I have to assume the work product generated in such circumstances was not always outstanding, but it was at least a human employee's substandard, bleary-eyed work product.

But imagine it's 2025 and you're in that impossible Kobayashi Maru situation. Instead of using Adderall as your crutch, doesn't AI feel a lot more attractive? If we throw out any sort of professional concern about putting out good work product -- and in the imagined situation, there's no way not to; actually performing to expectation is functionally impossible -- then why not roll the dice with AI? The work is going to be bad either way, but at least you can (literally) sleep at night. 

I don't know -- it's just a theory, and I have no evidence that this is going on. But it doesn't seem implausible, no? Maybe another sector AI is disrupting is the ability to "rely" on overcaffeinated and drugged up twenty-somethings to kill themselves on consulting assignments to squeeze a few more dollars out of the bottom line.

Perceiving the Hierarchy

As you may have seen, there was antisemitic stabbing/car ramming attack on a UK synagogue on Yom Kippur yesterday. Two Jews were killed (one, apparently, by the police in the course of their response); the attacker was also killed on site.

In the wake of the attack, the New York Times quoted a recently-released report by the Runnymede Trust on the subject of antisemitism in the UK, making the case that the "current approaches designed to tackle the problem [of antisemitism] are not working." Specifically, the report critiques how "The significant funding given by governments to protect Jewish people specifically makes Jewish communities feel safer in the short term but has given rise to perceptions that there is a hierarchy of racisms in the U.K.."

[W]hen the state and political parties put significant energy into combating antisemitic ideas but fail to act with similar force against Islamophobia or structural racism, it confirms the perception of a hierarchy of racism. While this type of state-led opposition to antisemitism can make many Jewish people feel safer in the short-term, it gives life to a competitive victimhood that further pulls apart the horizontal alliances and broad political coalitions required to confront all racisms.

A couple things about this formulation that jumped out at me, but the main one is the acceptance of the narrative that Jews are "anti-discrimination" winners -- winning so much, and so hard, that it's generating understandable resentment that fractures the possibility of cross-group solidarity. The reason this "jumped out" is that one of my earliest public writings on antisemitism specifically addressed this phenomenon in the context of the UK, pointing out that the public perception of Jews being very well- (perhaps over-)protected by anti-discrimination law coexisted with a reality that Jews weren't actually receiving much protection at all.

I won't claim to be an expert on the UK. But the Runnymede report, as far as I can see, does not actually provide much evidence that Jews in reality receive enhanced material support for their security compared to other groups. The only concrete example they provide is the proliferation of Holocaust memorials in contrast to the lack of such memorials for other atrocities suffered by other groups (including ones that the UK is more directly implicated in, like the slave trade). 

I do think there is something to be said about making Holocaust remembrance the be-all-end-all of what "reckoning with past racism looks like". But this has little to do with funding initiatives meant to provide security for Jewish institutions from violent attack.

In the United States, at least, funds meant to bolster security at religious institutions have been made available to applicants of all faiths. Jewish organizations have received a large chunk of the funds (perhaps because Jews are by far the most common targets of religious-based hate crimes), but it would be wrong to say there is a "hierarchy" here. But that doesn't seem to change the fact that there is a perception of a hierarchy; and where perception is not matching reality we need to interrogate more deeply what's driving the perception.

Put simply: it is a common feature of antisemitism to present Jews as "the outgroup that's in" -- the paradigm of protection (perhaps over-protection) to the point where they are seen as hoarding the bounty of public sympathy from groups who need it more. This perception is itself inextricably linked to antisemitic stereotypes of Jewish hyperpower and influence (obviously, Jews can't really be marginalized when it's so clear that they control Congress/the media/the banks/the world), and it is I think a category mistake to assume that the perception is substantially related to an actual, objective assessment of how much protection Jews are or are not receiving. 

Just like with fears of "voter fraud" or anti-vaxx conspiracies, where the underlying complaints about Jews being over-protected are grounded not in rationality but in resentment, a "rational" response will never assuage and the conspiracists will never be accommodated. Eventually, the only "move" in this politics is for Jews to self-abnegate -- to performatively lose, over and over again, even in circumstances where they are being genuinely wronged and deserved genuine protection under well-established and universally-applied principles, so as to "reassure" their neighbors that they aren't winning too much and aren't being given special favors. This is not sustainable, and it is not actually a productive strategy for fighting antisemitism.

I absolutely agree that -- whether in the UK or the US -- the government and other social actors need to take all forms of racism and discrimination with the seriousness they deserve, and direct concrete and tangible resources and proposals to combatting it. But I do not think reinforcing the narrative of "hierarchy" is helpful in this respect. I will keep on tapping the sign: they'd say it about Jews, they'd say it about other groups too. It is not the case that "only the Jews receive such solicitude", it is not the case that "everyone but the Jews receives such solicitude." We should reassess both narratives that assert a clear "hierarchy of racism" that likely is not present and which is itself built upon unhelpful and unproductive resentments.

Face Forward

It is another day of milestones for Nathaniel.

First of all, we put him in a front-facing stroller seat for the first time. I already miss being able to look at his adorable little face as we go out for walks, but I'm excited for him to get a better view of the great big world out there (admittedly, today the "great big world" was mostly Target and the mall. But we did walk a bit around Multnomah Village, so there was that).

Pictured: Two desperate civilians on the streets of war-torn Portland

Second, we purchased what we hope will be Nathaniel's "permanent" car seat, as he's almost too big for his baby car seat. It's got some lovely bells and whistles -- the 360 swivel to get him out is especially appreciated -- but once again it comes with cost: the baby car seat functioned as an easy-breezy carrier (it easily detached from the car seat dock and latched into the stroller, and it was also easy to just carry around), and once again it looks like those days are just about over. Now if we want to carry Nathaniel, we have to actually carry him. RIP my back.

And third and finally, tonight we are leaving Nathaniel for the first time with an actual babysitter, as Jill and I go out to see Dan Soder (aka Mafee from Billions) do standup comedy. To be clear, we've left Nathaniel with grandparents before. And we've had a non-relative babysitter play with Nathaniel while we were still in the house before. But this will be the first time we're combining both. Unfortunately, Nathaniel seems to be at a strong stranger-danger/separation anxiety phase, and so we can imagine there might be a lot of tears and screaming. Obviously he'll be fine, this is an important milestone, there will be no permanent damage, etc. -- but mostly, we're just trying not to think about it too hard.

And meanwhile, as all of this is happening, my own government is threatening to invade my city.

This feels reminiscent of the last post I wrote before Nathaniel was born -- the many, many ways that moment (just days before inauguration) felt like a "midpoint" in my life. Before child, after child. Before age, after age. Before autocracy, after autocracy.

And this feels similar. I am still, in the scheme of things, new to Portland. We've been here less than five years. But I can honestly say that I love this city. I love living here, I love working here, and I love the idea of raising a family here.

The stories that Trump and his lackeys tell of Portland are -- and I cannot stress this hard enough -- lies. They are lies. This city is not "war-torn". It is not some sort of anarchistic hellscape. We are not unsafe here -- we go downtown all the time to enjoy Portland's culture offerings. What would make us unsafe is the prospect of being literally subjected to an invasion because the man in charge of the most powerful army in the world has decided he hates my city and hates the people who live here -- which is to say he hates me, hates my wife, hates my baby, and hates all my friends and neighbors. Make no mistake: that's why this is happening. It is not for our benefit. It is not to make Portland safe. It is to make Portland suffer.

And we will suffer. How many people will avoid downtown because they don't want to get caught in the Stasi crosshairs? How many shops will lose business? How many families will be broken up, or even if they're not, have sleepless nights and days terrified that they will be broken up? That's the wages of this war, and they're not remotely accidental. The cruelty continues to be the point.

Grieving Choices Not Made

The big diplomatic news of the week is the rush of longtime Israel-supporting countries -- Canada,  France, Australia, and the UK among them -- announcing their formal recognition of Palestine as a state. Israel and its supporters have sought to discredit this move as "rewarding" Hamas for its 10/7 terror initiative. To that, my semi-sardonic response has been to say that it is indeed very important that initiatives like these not be presented as "rewarding Hamas" -- they must instead be framed as "punishing Israel". Punishing Israel for its intransigence, for its hyper-aggressiveness, and for its brazen acts of sabotage towards the possibility of a two-state solution.

In all seriousness, I think that is a more plausible description of what is going on. These countries have no interest in elevating Hamas -- indeed, they've presented their recognition as in explicit opposition to Hamas (and the PA, for admittedly self-centered reasons, affirms the same). What has motivated them to action is a complete (and completely justified) collapse in any faith that Israel is operating in good faith -- that it harbors any serious commitment to securing a just peace with the Palestinians, that its campaign in Gaza is remotely compatible with the laws of war or even is (at the point) significantly motivated by a desire to see the hostages return, and that the far-right racist extremists in Netanyahu's government aren't entirely running the show. This collapse in confidence is reflected here too -- a dramatic shift in public opinion against Israel, not just amongst Democrats but (younger) Republicans as well, that threatens to leave Israel as a super-Sparta Hermit Kingdom.

I think there are a lot of Jews who look at these developments, look at how they are the bitter harvest of Israel's own choices, and think "I wish they would have chosen differently." Why did they have to go down this route? Why did they have to choose the path of the most bloodshed, the most extremism, the most intransigence, the most of everything awful?

And "choose" is critical here. Anyone who has spent time in Zionist circles is familiar with the old complaint that the world acts if the Palestinians lack agency -- as if none of the current situation is the result of their decisions, it's all just thrust upon them by the big bad Israel. Yet right now, I think it is the Israel apologists who are refusing to reckon with the concept of agency -- they act as if there was nothing (or only the most marginal tweaks) that Israel could have done differently post-10/7: it had to fight Hamas this way, it had to use starvation as a weapon of war, it had to kowtow to settler extremists launching pogroms, it had to publicly announce that blocking the formation of a free Palestinian state was the government's raison d'etre.

No. It did not have to do anything of these things. It chose them, and what we are seeing is the consequence of choices that could have been made differently.

"Choose" critical here. The very first post I wrote after 10/7 was titled "Ghouls, Failure, Fatalism, and Responsibility." The "fatalism" portion of that post read as follows.

Finally, there is almost no chance that the fallout from this assault has any consequence other than catastrophe for innocent Israelis and Palestinians alike. And yet, we must resist the sort of fatalism about that seeming inevitability that leads to an abdication of responsibility. Too many voices I've seen today have, in one way or another, expressed sentiments to the effect that the events of today and/or those to come are the inevitable consequence of history's weave. How could you expect Hamas wouldn't seize an opportunity to massacre Israeli civilians en masse? How could you expect Israel won't respond with zero regard for Palestinian life?

No. There is agency here. The word of the day I'm already growing to hate is "(un)provoked", as in an emergent discourse which wants to be absolutely sure we all know that whatever hideous crime Hamas just committed or whatever overwhelming military incursion Israel may be about to launch, there is a reason behind it -- it didn't just happen out of air. Which -- no kidding. In the context of a conflict that's resulted in a half dozen international wars in the space of less than century, nothing is ever "unprovoked". But that doesn't absolve anyone of agency. Hamas made a choice to launch this attack -- a brutal, violent, targeted assault on a civilian population whose only tactical objective was the sowing of terror. They are not the passive receptacles of historical forces beyond their ken. And Israel's choices too (both those that preceded today's events and those that will follow) are choices -- they are not the inevitable consequence of some immutable historical arc.

And what I want to say right now is, it's okay to grieve the choices not made. One need not and one should not indulge in the fatalism of those who said that this was all inevitable -- a fatalism that is ultimately identical regardless of whether it speaks in critical or exculpatory language. In fact, I feel incandescent rage towards those who portray any of this as an inevitability -- that the bloodshed and the massacres and the abuses and the torture and the kidnappings had to happen. They did not have to happen, people chose for them to happen, and different choices could have and should have been made. It is okay to grieve the choices not made.

It is okay to grieve the choices not made. But one still has to acknowledge the choices that were made. Israel made choices that caused it to lose the confidence of erstwhile stalwart defenders, that made large swaths of Americans view it as foe rather than friend, that made not just the "usual suspect" critics but very sober observers take seriously the most serious and severe charges against it as a brutalizer, ethnic cleanser, even genocidaire. We can wish that it made different choices. But it didn't, and for all our grief we must still live in the world that was made by the choices that were made.

First Amendment Coronado-ism

We are right now living through one of the most significant rollbacks in First Amendment law since the 1950s. To name a few examples:

• University employees are being fired for speech deemed critical of Charlie Kirk, in circumstances where it is almost impossible to argue that the terminations satisfy the Pickering standard for speech on matters of public concern.
• Legal immigrants are facing deportation for speech that opposes the current foreign policy orthodoxy of the American government; 
• The Attorney General is suggesting, in defiance of decades of well-settled law, that there is a "hate speech" exception to the First Amendment.
• The President is extorting settlements from critical media outlets via utterly frivolous defamation lawsuits, even as more and more conservative judges seek to roll back the landmark defamation decision in New York Times v. Sullivan in order to make such extortions even easier to launch.

There is irony to this. Until very recently, the constitutional law zeitgeist had been to raise alarms over "First Amendment Lochner-ism" -- the use of "First Amendment" claims as a cudgel to block governmental regulations (think 303 Creative or NIFLA v. Becerra). In this telling, our problem is a First Amendment that has spiraled out of control, a hypertrophic commitment to "free speech" that swallows up anything and everything (since what law doesn't, at some level, regulate "expression"?). In a world of First Amendment Lochner-ism, "rollback" was the furthest thing from anyone's minds.

However troublesome or misguided the First Amendment Lochner cases might be, one might think that their saving grace is that their expansiveness offers a bulwark against the sort of First Amendment regression we're seeing today. Yet few -- and I include myself in this -- seem to actually have confidence that these First Amendment principles will in fact serve as a meaningful shield now in the face of these new conservative assaults. It turns out that we don't have a hyperexpansive First Amendment, we have a First Amendment that implacably guards against enforcement of liberal policy objectives while pliable to the point of contortionism in order to accommodate conservative bugaboos.

This, too, reflects the Lochner era. Lochner itself refers to the Supreme Court's finding of a "liberty of contract" implicit in the Fourteenth Amendment's due process clause, which significantly curtailed states' authority to pass economic regulation. But the Lochner era also encompasses a series of rulings that similarly hamstrung federal authority to pass economic regulation -- limits ironically justified by reference to state's rights and respect for federalism. So, for example, in United States v. E.C. Knight, the Supreme Court struck down application of the Sherman Antitrust Act to a sugar refining monopoly, concluding that manufacturing was not "commerce" and so the law impinged on an arena reserved to the states.

Already the heads-I-win-tails-you-lose logic is apparent here: the feds can't pass economic regulations because of states rights, and the states can't pass economic regulations because it violates federal constitutional limits. But the apex of this logic came in a little-known Lochner era case, Coronado Coal Co, v. United Mine Workers, where the Supreme Court considered applying the Sherman Antitrust Act's prohibition on restraints on trade against union activity targeting a coal mine. Again, E.C. Knight had already concluded that the Sherman Act was unconstitutional as applied to employers (and subsequent cases had explicitly held that mining was akin to manufacturing in not being "commerce"). As bitter a pill as that might have been to swallow for the emergent labor movement, at the very least one might think that this logic would equally prevent leveraging the Sherman Act against collective action by employees (via unions). But no -- in Coronado, the Court concluded that the Sherman Antitrust Act, though not constitutionally enforceable against mining companies or manufacturing concerns, could be enforced against labor unions. The hyperexpansive Lochner rules suddenly were quite pliable once a union tried to be their beneficiary.

So I will suggest that today we do not have a regime of First Amendment Lochner-ism. We actually have First Amendment Coronado-ism. If Lochner stands for judges blocking democratic actors via hyperexpansive interpretations of constitutional law; Coronado highlights judges dropping those barriers the instant they pose an obstacle to their own faction's policy objectives. Lochner is bad law; Coronado is simple lawlessness.

And on a professional level, it has to be said that it is nearly impossible to teach Constitutional Law in a such an environment, at least not without collapsing into complete cynicism. I can defend to my students the position that the First Amendment protects even hateful speech; I can't defend the position that the First Amendment protects hateful speech in all circumstances except quoting Charlie Kirk's own words verbatim. I can defend to my students different standards of proof for defamation cases, I can't defend a rule that says it's defamation for a newspaper to criticize a presidential candidate. These developments breed contempt in my students for the entire notion of "free speech" as it's currently operationalized, and frankly I can't blame them for it -- they see it as a sucker's bet, a check they'll never be able to cash. And as someone who does believe in many of the classic free speech shibboleths it breaks my heart to see it.

A few days ago, Justice Barrett defended herself from Justice Jackson's allegation that the Court's only governing principle was "this Administration always wins" by arguing that the Court's rulings are not about this president but all presidents, and "so the decisions that we make about executive power today are the same ones that will still be precedent three or four presidents from now." Even if they were for "all presidents", these decisions would be catastrophic. But there is ample reason to be skeptical that these decisions do in fact augur a general theory of judicial deference to the executive branch, at least when Democrats occupy the office (quoth Scott Lemieux: "don't google 'Biden v. Nebraska'!").

When Justice Barrett pretends that she's enforcing a principle accessible to all, nobody believes her, and nobody should believe her. And just as I predicted the hyperexpansive religious liberty protections would suddenly find their limits when liberal Jews try to access them, so too do I strongly suspect we're going to see a significant rollback of supposed First Amendment Lochner-ism now that it stands in the way of letting conservatives crush speech they do not like.

The Legend No One Knew

At the start of Terence Crawford's history-making bout against Canelo Alvarez, Max Kellerman remarked that he'd never seen a fight with as dramatic stakes for one man's legacy as this match did for Crawford. If Crawford won, he'd cement himself as his generation's greatest fighter. If he lost, he'd be written off as a guy who couldn't quite reach greatness in his biggest fight.

The downside I thought was a bit harsh. But the upside was right, as was the overall tenor: A Crawford victory would rocket him to the top of the all-time greats list; a loss and he'd be viewed as a very good fighter but not one making any major historical mark.

Whatever dispute I and Kellerman might have is moot, of course. Crawford soundly outboxed Canelo, winning a unanimous decision and instantly making his status as one of the greatest to ever lace up gloves inarguable.

It is amazing, when one thinks about it, how Crawford got to this point while essentially -- as far as the wider world is concerned -- being an unknown. Terence Crawford is not a household name. I don't think I've ever seen him in a beer commercial or doing a cameo Hollywood appearance. But he has quietly, decisively, been a dominant force in the sport for over a decade.

This fight against Alvarez reportedly marked the first time Crawford had been a betting underdog since his 2013 match against Breidis Prescott. Though not the most scintillating performance, that fight was a coming out party for Bud. He came in on short notice as, more-or-less. a nobody -- a decent amateur pedigree but not from a boxing hotbed (Omaha, Nebraska) and without much hype behind him. Boxing fans, frankly, are familiar with this archetype -- glossy record but Podunk background equals soft-touch for a bigger name still riding off his Amir Khan upset. Instead, Crawford cruised to an easy victory, soundly outboxing his Columbian opponent -- but not in a way that instantly suggested "a star is born."

Yet from then on out, Crawford was nothing but dominant. He dropped down to lightweight to win a title against Ricky Burns, and from that point forward never left the upper echelons of the sport. If Prescott was the last time that Crawford was a betting underdog, we could also ask when was the last time Crawford seemed to be truly challenged in a fight. For me, that was the very early rounds against Yuriorkis Gamboa -- but Crawford turned that fight around with a vengeance, dropping Gamboa four times from the fifth round forward en route to a ninth round stoppage. And after that, can one remember a point where Crawford genuinely, seriously seemed to be in trouble in the ring? It is no disrespect to Canelo to say it didn't happen last night -- not that Crawford dominated Alvarez, but he always seemed in control, always seemed just a little bit better.

How can one be so dominant, for so long, and have nobody outside the sport's insiders really know you? Part of it was temperament -- as noted, he never seemed interested in making himself into a celebrity. But even in the ring, Crawford's was a deceiving appearances sort of domination. He was never viewed as a knockout artist, even though he had plenty of fighters. He wasn't seen as a search-and-destroy punisher, but he was a ferocious finisher. 

What he had was a preternatural sense of control, coupled with one of the meanest streaks I've ever seen in the ring. Crawford liked to beat people up. And he was very good at it.

Look at the cast of characters whose careers Crawford essentially ended, at least at the upper echelon of the sport. On his way to unifying the junior welterweight division, Crawford demolished both Viktor Postol and Julius Indongo; both were undefeated, both became essential non-entities in boxing going forward. Felix Diaz had one more win after Crawford beat him in 2017; Jeff Horn only won twice. Jose Benavidez was never the same after Crawford was through with him. Amir Khan and Kell Brook were basically sent into a swan song against each other after Crawford violently dispatched both. He sent Shawn Porter into retirement; he may have done the same to Errol Spence. These are very, very good fighters. Crawford didn't just beat them. He wrecked them.

And yet even then, many thought this fight against Canelo was a gimmick. Crawford had unified at 147, and then he did what a lot of folks did in pursuing a vanity title at 154 pounds. This is no disrespect to Crawford; it's a career move we've seen from many of the greats around his size. Floyd Mayweather did it; Oscar de la Hoya did it, Manny Pacquiao did it. And I don't think we're disrespecting Israil Madrimov to point out this his name isn't quite in the same class as Errol Spence or Shawn Porter or Kell Brook. But jumping up another two weight classes on top of that? To face the biggest star in the sport and a man who was still one of the pound-for-pound elites? It seemed absurd. It seemed like a cash grab.

It was neither. It was greatness.

At the end of the fight, Crawford dedicated his win to the nobodies. For so long, despite all of his accomplishments, Terence Crawford was one of those nobodies. Now, through sheer talent and force of will, he has made himself into somebody the sport will never forget.

On Hostility to Religious Views (for Non-Religious Reasons)

The other day, the Second Circuit in Mid Vermont Christian School v. Saunders ruled in favor of a Christian private school in Vermont which had been suspended from state extracurricular competitions after it refuses to allow its girls basketball team to play against a team with a transgender athlete. The school averred that playing such a game would force it to affirm that transgender girls are girls; the relevant Vermont agency decided this was discriminatory and expelled the school. The court, in turn, concluded that Vermont's actions evinced hostility to the school's religious views and thereby violated the First Amendment.

There are some complex factual issues in this case. But there are aspects of the court's opinion that I think have to be wrong, in terms of how it treats the question of "hostility toward the school’s religious beliefs." To put the matter bluntly: people (and the government) are allowed to have hostility towards a school's (or anybody's) "religious beliefs", and such hostility cannot itself be a First Amendment violation. What they cannot do is have hostility to these beliefs because they're religious, or hostility specifically tied to them being held by a particular religious group. But it cannot be the case that hostility to a given belief, where that hostility has nothing to do with religion and extends to any holder of the belief (religious or not), becomes unconstitutional religious hostility just because this particular holder of the belief believes it for religious reasons.

The court recognized that a "neutral" law or policy of "general applicability" does not become unconstitutional because it happens to impinge upon (even a sincere) religious belief. But it said, following Masterpiece Cakeshop, that a neutral law can still fail if it is not applied "in a manner neutral toward and tolerant of . . . religious beliefs." Fine, as far as it goes. But the way the court identifies what it means to be "intolerant" towards religious beliefs at times verges on suggesting that anytime one defends (as a general, neutral principle) a position that is (in the particular case at hand) antagonistic to a proffered religious belief, one is displaying unconstitutional "hostility" -- and if that's true, then it is functionally impossible for there to be a "neutral" law in the first place.

Let's take some examples. Suppose someone asks for a Kosher meal at a school event to substitute for the planned ham and cheese sandwich. The chef is derisive: "I can understand ethical objections to eating meat or other foods, but I'm not going to cook up a new meal just because your fantasy Sky God says so." That's hostility to religious belief -- the same (basic) belief is viewed disdainfully because it emanates from religion.

Compare a situation where someone explains "at our college, we prohibit interracial dating." You respond and say that is racist and discriminatory. They then say, "it's our religious belief." You respond "I don't care -- it's still racist and discriminatory." At one level, you are of course expressing "hostility toward the school's religious belief." At another level, your hostility has nothing to do with it being a religious belief; an it's a hostility you are entirely entitled to hold. The First Amendment simply cannot mean that this sort of "hostility" is constitutionally problematic. If it were, then it would be impossible to defend a neutral and generally applicable rule against racial discrimination in any circumstance where someone wanted to racially discriminate for religious reasons, since the very act of explaining why the rule against racial discrimination is important would be reclassified as anti-religious antagonism.

So in the present case, the critical question ultimately should be whether the state's antagonism towards the anti-trans beliefs of Mid Vermont are due to those beliefs being religious, or whether the state is equally "intolerant" of those beliefs no matter who holds them, with the fact that Mid Vermont happened to be a religious believer being wholly incidental and irrelevant. As alluded to, there is some evidence in this case that points in the former direction (I think it's weak, but Masterpiece Cakeshop made a mountain out of a molehill of weak evidence of religious hostility that other minorities wish they could access). But my main problem with this opinion is that it strongly suggests that the First Amendment problem would be the same even if we were unambiguously in the latter camp.

Consider one of the critical excerpts, from how the Vermont agency explained why it did not find compelling Mid Vermont's complaint that playing with transgender athletes would "endorse" beliefs about gender it wished to reject:

Participating in an athletic contest does not signify a common belief with the opponent. Brigham Young University athletes do not compromise their Mormon faith—or endorse Catholicism—when they play Notre Dame. The act of playing together on a basketball court does not imply any approval of the values or beliefs of the opponent.

The court analyzed that passage thusly:

That statement did not just question Mid Vermont’s religious sincerity. It also attacked the validity of Mid Vermont’s objection. But “[a]n individual claiming violation of free exercise rights need only demonstrate that the beliefs professed are sincerely held and in the individual’s own scheme of things, religious.” That is because “courts should not inquire into the centrality of a litigant’s religious beliefs.” .... Put simply, the VPA may not impose discipline based on its view that Mid Vermont's religious objection was "wrong."

This is, I'm sorry to say, deeply confused analysis. The sincerity/validity divide goes to whether or not Mid Vermont's claim is actually a religious one, and it's absolutely correct that the state has no business telling Mid Vermont that it's claim is a "wrong" understanding of Christianity. But that's not what the state was doing. The state isn't saying that Mid Vermont's logic is wrong as a religious proposition, it's saying it's wrong as a general proposition. In that circumstance, of course the state is entitled to "impose discipline" because it thinks the objection was wrong. Vermont has a policy, Mid Vermont thinks that policy is wrong, Vermont thinks Mid Vermont's objection doesn't hold water and so continues to apply the policy. That's completely anodyne, and it doesn't change because Mid Vermont's objection stems from its sincere religious beliefs. Under the Court's logic, any time any actor raises any sincere religious objection to any policy, they must win automatically because the act of rejecting the objection would suggest the religious objection was "wrong". Again -- I can't stress this enough -- religious objections can be wrong, so long as the reasons the adjudicating body thinks they're wrong are not themselves based on religion or religious hostility.

One last note: there may be circumstances where a policy is genuinely neutral and generally applicable, and not motivated or applied with religious hostility, but should still contain exceptions for religious objectors. I won't comment on whether this case is one of them. I'll only say that such cases are not, for the most part, religious hostility cases, and the problem in those cases is not one of a lack of neutrality. The outcome of Mid Vermont can, I think, be debated, but the logic of it I think is severely misguided (and, it must be said, I think is primarily traceable to courts giving super-protected status to anti-LGBTQ ideologies in a manner they've very consciously rejected in the racial discrimination context).

Who's Talking About Including Political Diversity on Campus?

Many people hate DEI (no news there). Many of those same people also are emphatic that universities must do more to prioritize intellectual and political diversity on campus. And in the overlapping diagram, it is taken for granted that the DEI apparatus is apathetic if not antagonistic to the project of promoting political diversity. It's not even something argued for; it is a presupposition that forms part of the foundation explaining why DEI is unjust.

And yet, in my experience, the academic site where one is most likely to see discussion about and concern over political diversity is ... in the DEI space.

We had our first faculty meeting of the year yesterday, which included the various faculty committees getting our formal charges. I'm chairing the law school's DEI committee (we're still allowed to have one, I guess). One thing last year's committee did was commission a "campus climate" survey, and the questions (on feelings of inclusion, prevalence of harassment, etc.) included ones keyed to political differences. The questions regarding how to facilitate a campus environment that's inclusive political diversity emanated primarily out of the DEI committee.

That's not because the rest of the faculty is apathetic to the issue. Rather, most issues in academia -- including important issues, including issues which predominantly occupy the public's attention when they deign to think about academia -- don't get thought of that much by most professors, most of the time, for the simple reason that we only have so much time and there is a lot to think about. So we delegate and we divide labor, and the result is that many important issues are reliant on being "picked up" by a specified office or committee within an academic space. And in my experience, the space that "picks up" the issue of intellectual diversity in general and potential feelings of alienation experience by political minorities in particular are the DEI offices and officers -- a role that is entirely overlooked given the near-universally believed dogma that DEI officers are implacably opposed to intellectual diversity in general and conservatives in particular. 

We saw a version of this in the fallout of the Kyle Duncan incident at Stanford, where DEI Dean Tirien Steinbach took the fall for how she managed student protests at a Federalist Society event. Almost entirely occluded in the hatefest Steinbach endured as a supposed ideological commissar of DEI wokeness was the fact that the Federalist Society had identify Steinbach as one of its few allies on campus; a figure who stood out precisely because she was invested in ensuring that FedSoc could participate fully and equally in campus life. It is hard to imagine a clear illustration of this paradox -- the assumption that DEI is the enemy of political diversity and inclusivity; the reality that the DEI official was one of the most active proponents of political diversity and inclusivity -- than this.

Now, to be sure, the political form of "inclusion" isn't straightforward -- and in particular, it doesn't map on especially well to how we think about "inclusion" vis-a-vis ascriptive identities like race or religion. Ascriptive identities are not typically thought of as being appropriately subjected to normative criticism. A place where significant members of the population took positions of the form "I think it is illegitimate/immoral/wrong/incorrect to be Black" would be failing to be inclusive of racial difference in an obvious way. I imagine virtually all would think the same regarding religion ("It's wrong to be Jewish"); I'd say the same thing about sexual and gender identity (though here of course many conservatives would disagree, and very much want to defend the legitimacy of those who assert "it is wrong to be gay or trans").

By contrast, ideological orientations are defined by content that by definition is properly the subject of ongoing normative contestation. To be conservative (or liberal, or Marxist, or MAGA) is to endorse a cluster of normative positions which others will inevitably judge as right or wrong, correct or incorrect, or legitimate or illegitimate. A university could not function at the most basic level if members are not allowed to make those judgments (what would it even mean to say that the law school's mission is thwarted when its members make normative appraisals of ideological positions?). Unlike "I think it is wrong to be Jewish", statements of the form "I think it is wrong to oppose gay marriage" or "I think it is wrong to abolish qualified immunity" cannot be viewed as inherently problematic in a university space -- those are exactly the sorts of statements we expect to see, and there is no intrinsic foul just because one's peers think you've taken the wrong side of an ideological controversy.

This doesn't mean there isn't any space to consider how persons who take ideologically dissident positions in a given space can or should be "included". One thing we can (and I think should) say is that healthy respect for intellectual pluralism means we should be tolerant of a wide range of positions on publicly contested issues, even those we disagree with, and generally relate to such positions via the "normal" processes of respectful dialogue, debate, and consideration. Some think we shouldn't abolish qualified immunity, others we should, but even if "abolish qualified immunity" is the consensus position on campus, we should still be willing to think about the issue critically and debate it in a manner that respects the divergent views. Cultivating that sort of respect for ideological plurality seems very healthy, and hopefully can alleviate some feelings of exclusion conservative students might face. But notice that this isn't how I think we envision what "inclusion" looks like for ascriptive identities -- I do not think our goal with respect to antisemitism should be "some people think Jews are okay, and some don't, but the important thing is that we make sure that persons with all range of views on 'are Jews okay' are able to openly debate and discuss the issue." The sorts of interventions that make sense along the axis of ideological orientation are ill-equipped to address racial or religious (or, I think, sex/gender) identity.

So the issue is not straightforward, and the people who act like it is are selling you a bill of goods. The issue of inclusivity towards political diversity on campus is a complex one and one that requires serious thought. But overwhelmingly, the people who are thinking about it in a serious and systematic way -- not as rabble-rousers, not as part of a bad-faith gotcha game trying to sabotage the university -- are found in DEI offices. And I wish they got more credit for the hard work they're putting in.