Sunday, November 26, 2023

Swapping Strategies

Different minority groups often swap strategies for protection in the context of trying to overcome societal oppression, and an advance for one group often can lead to advances for others. In a recent interview I did with Lewis & Clark's alumni magazine, for instance, I talked about how the pathway used to ensure Jews receive Title VI protections (notwithstanding the fact that Title VI doesn't cover religion, only race, ethnicity, and nationality) was quickly adopted to also secure similar protections for Muslims. Security tips meant to keep synagogues safe are often used to help secure mosques as well. And so on.

Another example of this that's less remarked upon, though which is (depending on your vantage) more interesting, more amusing, or more grim, is how the legal arguments pro-Israel advocates have used to try to extend anti-discrimination protections to cover backlash against Jews-as-Zionists have increasingly been adapted by pro-Palestine advocates to try and create discrimination claims around backlash directed at Palestinians-as-anti-Zionists.

I think we're all familiar with the contours of these arguments, and the controversy surrounding them, in the context of the "anti-Zionism as antisemitism" play. A Jewish student says something "Zionist" and is targeted by adverse action as a result. The student's supporters say "this is antisemitism -- Zionism is an integral part of my Jewish identity, and so attacking me on the basis of 'Zionism' is tantamount to attacking me as a Jew." Opponents reply that Zionism is a political ideology and criticisms of that ideology -- whether ultimately well- or ill-taken -- cannot be deemed to be targeting persons on the basis of an ascriptive identity. Not all Jews are Zionists, and in any event there is a difference between an identity and an ideology many members of a given identity happen to believe in.

Yet increasingly, we're seeing similar arguments being raised to bolster claims of anti-Palestinian discrimination. Consider the civil rights complaint Palestine Legal filed on behalf of Ahmad Daraldik, who was removed from his position as head of the Florida State University in part due to speech characterized as anti-Israel, anti-Zionist, or antisemitic. This complaint followed shortly after a high-profile complaint filed against USC on behalf of a Rose Ritch, a Jewish student ousted from student government for being a "Zionist". There are more than a few similarities between how the cases are framed that may not be coincidental. While Ritch's case is not mentioned in Daraldik's complaint, there does seem to be something to the notion that Palestine Legal (which undoubtedly was aware of the Ritch case), thought something along the lines of "if the Zionists can make claims like this, than so can we."

To be sure, some of Daraldik's allegations are quite "traditional" cases of discrimination (e.g., social media messages directed at him containing racial slurs). But others very much seek to present Daraldik's anti-Zionist speech as integral to his identity as a Palestinian, such that backlash against the speech ought to be viewed as tantamount to attacking him as a Palestinian. For example, he characterizes the hostility he endured as resulting from his "speaking about my life as a Palestinian growing up under Israel’s violent system of apartheid". And his lawyers likewise argued that statements by the university president characterizing some of Daraldik's own speech as antisemitic (a social media post which referred to an IDF soldier as a "stupid Jew" was probably the most prominent) was said to "reinforc[e] the anti-Palestinian stereotype that Palestinians reacting to experiences of violence and oppression by the Israeli government/military are inspired by anti-Jewish animus, not their own oppression" -- what many wearing other shoes might characterize (favorably or derisively) a "trope-based" argument.

These arguments, too, try to present a political orientation vis-a-vis Israel and Zionism as an integral part of an ascriptive identity. In that respect, they parallel Ritch's efforts to make the same argument at USC, and they're vulnerable to the same objections: anti-Zionism, like Zionism, is a political ideology, and so we might also say that criticisms of that ideology -- whether ultimately well- or ill-taken -- cannot be deemed to be targeting persons on the basis of their Palestinian identity. But -- without taking a position on the substance of his complaint -- I have more sympathy for Daraldik's conceptual argument here than one might suspect (precisely because I have some sympathy for Ritch's iteration too). While it's true that "not all Palestinians" likely agree with what Daraldik said or believes (what is Bassem Eid doing these days?), that does not mean there is no connection between what Daraldik said (and the backlash to it) and his Palestinian identity. I can absolutely see how not being able to level criticisms of the Israeli government or its policies would be experienced as an oppressive blanket that functionally obstructs the ability of Palestinian students to participate as equals in educational spaces. And the belief that there is "pure" animus against outgroups that does not drape itself in the garb of reasons seems unrealistic to me; the problem of disentangling "political" speech from bigotry is assuredly difficult, but it's also unavoidable. These responses don't tell us, of course, how the law should handle cases like Daraldik's or Ritch's -- at most, they show why they present genuinely nettlesome problems. But the point is they present the same problems, and the strategies for trying to make Daraldik's claims legally legible are similar to those used to do the same for Ritch's -- an overlap which simply does not seem coincidental.

A few days ago, we saw another example of this overlap in Tannous v. Cabrini University, involving a Palestinian professor terminated from his position due to social media posts that were alleged to be antisemitic but which he insisted were actually anti-Zionist (among the offending messages was one reading: "zio controlled USGOV politicians promise to cancel 2T$ of student loan debt ... yet they sent that 2T$ to Ukraine, Nato, and Israel to arm NAZIs.... Israel and Ukraine are societal cancers and must be eradicated."). 

The professor sued under a variety of theories, including claiming racial discrimination (he was at one point represented by Palestine Legal, though I don't know if they remained his attorneys throughout the litigation). In general, the district court concluded that a belief that a plaintiff is racist -- even if "wrong" -- does not equate to showing that adverse action occurred due to unlawful prejudice. In other words, it's not discriminatory to (even wrongly) accuse people of antisemitism. The exception might be if there was evidence that the only reason why a person holding X views was deemed to be racist was because they were also a member of a given identity group (another person of a different identity, but holding otherwise similar views, wouldn't be targeted). And indeed, the professor did argue that "[d]ue to his status as a Palestinian American, [the university] presumed that his tweets critical of Israel were actually criticism of Jews." The court rejected this argument as conclusory (there was no evidence presented that the university wouldn't have been equally offended no matter who wrote these tweets) -- but again, the core claim being raised here is one relying on the existence of a "trope" that seeks to convert backlash against "tweets critical of Israel" into an ascriptive attack on his Palestinian identity.

Indeed, there's a part of me that read the Tannous case and wondered if there might be a bit of 10-dimensional chess going on. The main basis for the court's decision in Tannous was that even unfairly accusing someone of "racism" or "antisemitism" is not tantamount to discrimination on basis of a protected class. Tough luck for Professor Tannous. But also, maybe, tough luck for Rose Ritch, whose detractors also could say that they acted against her not because she was Jewish, but based on their belief that her ideology was racist. That belief might be wrongheaded, but under the logic of Tannous it is not antisemitism. Tannous might have lost the battle, but Palestine Legal may have won the war -- and in any event, one can see the logic of them pursuing the case as a win-win: if arguments like the one they made on behalf of Tannous are rejected, then these arguments aren't going to be available for Zionist Jews making similar claims of discrimination where the underlying facts suggest the antisemitism is cloaked in antisemitic garb; and by contrast if those arguments are in fact legal winners, then there's no reason why they shouldn't leverage them for their own clientele.

To be clear: there's nothing unsavory about what's going on here. Legal arguments and precedents travel, and it's entirely normal and ordinary that various groups will decry the outrageous, abusive advocacy tactics of their opponents in one moment and furiously crib off them in the next. Jewish groups do it too (witness the blinding oscillation between "DEI is the devil" and "let's use contemporary DEI language to explain antisemitism"). But it's still interesting/amusing/grim (take your pick) to witness the unacknowledged but almost certainly significant influence contemporary Zionist legal advocacy is having on developing the strategies of their anti-Zionist adversaries (and, probably, vice versa).

Saturday, November 25, 2023

Who Loves Prison Stabbings?

One of the sobering experiences of being a judicial clerk is the mountain of cases you see from prisoners alleging prison violence, abuse, and mistreatment. Even worse is the fate of most of these lawsuits, which is typically a swift and decisive dismissal. Earlier this year I alluded to one case that stood out to me out of the Eighth Circuit, Leonard v. St. Charles County Police Department, where a jailhouse nurse simply refused to give a mentally ill inmate his prescribed medication (despite the insistent efforts of the inmate's mother to ensure the medication was delivered). Instead of giving the man his medication, the nurse placed him under suicide observation -- the end result being jail staff "observing" the man claw out his own eyeball. This behavior, the Eighth Circuit held, carried no liability for the prison staff.

The Leonard case isn't an anomaly. If one is a clerk (or a judge, or an attorney who works on such matters), one sees allegations like this as a matter of course -- a terrible, unending drumbeat of abuse and neglect. Admittedly, these allegations are at the stage where we're talking about just allegations -- they aren't proven. But that it some ways makes it worse, because the procedural posture of the cases requires that judges assume the facts are true as the prisoner alleges them, and so it is those sets of facts which judges repeatedly conclude present no constitutional violation. There is no gainsaying that, as far as the dominant doctrine of constitutional law is concerned, the state is allowed to brutalize its prisoners in an unfathomable variety of sickening ways without any legal recourse whatsoever. 

Each time I read one of these cases, I'm horrified anew. They all have their horrible points that stick in your mind for different reasons. The sticker of the Leonard case was the role the plaintiff's mother played in the narrative. I don't know what Leonard did to be in jail; he may be a very bad man. But even if you feel no sympathy for him, the torment his mother must have been put through -- her desperate, impotent, and ultimately futile attempts to ensure her son would not be neglected in his moment of vulnerability -- is nothing short of horrifying. Him being incarcerated meant she was in a position of being completely at the mercy of the state as to whether her child would live or die, would be taken care of or would be cruelly and cavalierly abandoned. The state made the latter choice. There's nothing she could do about it, she ultimately could not protect him. And the law's reply to that choice and that impotence is to shrug its shoulders and say "fine by us".

The thing that gets me isn't (just) the cruelty itself. It's the option of it; the legalized indifference as to whether it happens or not. Another inmate is in an similar position perhaps, but the jailhouse nurse makes the humane choice -- she gives him his medication. Great, but as far as the law is concerned, that was nothing but a choice -- it's basically a matter of fortune she chose as she did. Being perpetually at the mercy of the arbitrary negligence of the state is a punishment, and is a cruel and unusual one at that. I don't make any claims as to whether a program of incarceration demands that sort of systematic indifference to human dignity. I will say that if this is what is necessary to make that program run, then the cost is too high. And that assessment in no way depends on any denial that the prisoners subjected to this system may in many cases legitimately be called bad people.

All of this is warmup to story you might have heard that Derek Chauvin, George Floyd's murderer, was stabbed in prison. This story has led to a lot of replies taking the form of "hope the knife is okay" and other witty posts of endorsement and cheer. Much of this, to be sure, stems from people who are not in any meaningful sense politically aware and active -- they view (correctly) Chauvin as a bad man, and so they cheer a bad thing happening to him. But I've seen plenty of people with more sophisticated political palates who've basically been taking the same line -- they're absolutely fine with Chauvin being subjected to violence and abuse in prison because he's a bad man who has it coming. Indeed, some of them are angry that some "liberals" have the temerity to say it's a bad thing that Chauvin was stabbed in prison. How dare the liberals not permit us to rejoice in Chauvin being subjected to a dose of state-supervised arbitrary violence?

There is, I'll agree, something to be said regarding a "Himpathy"-style critique here -- why, when this sort of violence is pervasive in the prison system, does it seem as if we suddenly find extra stocks of empathy when it's the Derek Chauvins of the world exposed to it? On the other hand, we might suspect that the persons appalled by Chauvin being stabbed are also appalled by other prisoners being stabbed, and the reason we haven't noticed it is because the world doesn't bother paying attention to their identical empathic responses except when it's the likes of Chauvin at issue. 

Leave that aside. I don't think resolving that debate changes the fact that it matters that a non-trivial chunk of the voices who present themselves as "abolitionists" are finding themselves unable to contain their joy at seeing Derek Chauvin stabbed in prison. Why? Because it reveals one of their core political promises to be a lie. A core differentiation between reformists and revolutionaries in this domain is that the latter purport to reject outright the leveraging of systemic, organized collective violence as a tool of social discipline and punishment. The former, by contrast, accept that organized, collective violence (which is what prison ultimately is) is sometimes justified as a tool of social regulation and are trying to constrain, ameliorate, or otherwise redirect it. The revolutionary appeal here is that supposedly it isn't just about reshuffling the deck of organized violence. It's a more fundamental alteration; which is why saying "but what about all the bad people who do bad things" isn't taken to be a knockout response. For the bad people too, we need to find an alternative to the leveraging of systematic, organized collective violence as a tool of social discipline and punishment.

But when the "revolutionaries" are seen cheering Chauvin being subjected to prison violence, it suggests that they, too, ultimately are just pursuing an agenda of redirecting these projects of collective violence towards more suitable targets. At that point, their only basis of appeal boils down to "we are better at identifying the true 'bad people' who are deserving of being subjected to collective violence as a means of social discipline, and better at channeling that violence to those people in appropriate dosages, than are the current powers-that-be." For my part, I don't see much basis for why they've earned that degree of trust (note, for what it's worth, that they're aligned with the current powers-that-be with respect to Chauvin -- both have demarcated him as among the "bads", and both are performatively fine with a system where he is at the arbitrary mercy of being stabbed), and it's certainly a far less ambitious proposition than how it's commonly framed. Ultimately, the most honest players of the game might be the relatively apolitical centrists: they never pretended to have a serious problem with "bad people" being subjected to unconstrained violence in prison, they view Chauvin as falling into the category of "bad people", and so they're perfectly happy to see him subjected to unconstrained violence in prison. Say what you will about it, but there's nothing inconsistent there.

One sees, I think, a similar dynamic manifest frequently in the discourse around a "one-state" solution to the Israel/Palestine conflict. In one moment, proponents declare their agenda to be a neutral, secular, "state-for-all-citizens" that is studiously equal in its orientation to Jews and Arabs alike and most certainly is not about institutionalizing a hierarchy of political dominance for their preferred faction. And who could oppose that? (Answer, we're told, is "only people who support hierarchies of ethnonationalist political domination"). But in the next moment, some of these same people can barely contain their ecstasy at witnessing "settlers fleeing the land", land that they are naught but foreign interlopers on to begin with, and also when they are fleeing to distant shores could anybody really blame the locals for organizing a light lynch mob to greet them, genocidal colonizing settlers that they are? The latter expression falsifies the sincerity of the former; the sort of person who believes that "Israelis are, to the man, thieving genocidal settler war criminals" obviously cannot be taken seriously when they portentously aver "and the political arrangement I hope to set up should welcome them as equals." It is beyond obvious that the people who oscillate between these two instincts are simply weaving a narrative that will support a reshuffling of political domination; that their ultimate pitch for why they should be backed is because they'll do a better job than the current powers-that-be at identifying who actually deserves to be on the top and who deserves to be on the bottom of the new state of affairs. And it's equally obvious that many of their backers lend their support to this political program for that exact reason -- they understand full well that this politics is a means to an end, not an end of harmonious equality, but an end of the bad people being thrown down, punished, made to be lessers, and getting the comeuppance they so richly deserve. Maybe they're right in their assessments -- but if they are, it isn't because they're representing some categorical break from what's come before or the politics they purport to reject. It really is a matter of whose ox gets gored.

To be honest, it really doesn't surprise me that, even in political movements that purport to represent rejection of arbitrary infliction of collective violence as a tool of social reform, or rejection of programs of ethnonationalist political domination, much of the practical "foot soldier" energy behind the causes really boils down to a desire to redirect the complained-of atrocities to new and better enemies. There's nothing especially new here (Angela Davis was infamously impassive regarding the mass imprisonment of political dissidents in Soviet bloc nations, for example). And the most cynical but not wholly-incorrect way of describing politics in general is that it is a series of debates regarding when, where, why, how, and to whom we should direct collective projects of violence as means of social regulation and punishment. In that sense, nobody is doing anything out of the ordinary. But that very ordinariness is what reveals the lie; the lie that there is something revolutionary at work here, and that those who don't trust this revolutionary impulse are suspicious only because they're addicted to the violence that their betters are trying to abjure. No -- it turns out, they're absolutely right to be suspicious and their suspicions are absolutely right. 

I'm not saying that nobody is principled here; in fact, I suspect there are plenty of people who are absolutely genuine in their commitments. But the number of persons for whom the high-minded rhetoric of abolition or secular equality or what have you is really just a thin veil for crafting a new narrative that can justify redirecting violence towards the "right" targets is, I think, far larger than anyone would care to admit. Cheer Chauvin's stabbing if you want. But don't expect anyone to then believe that the politics you propose is even in utopian concept about rejecting in principle the deployment of collective violence as a tool of social control.

Wednesday, November 22, 2023

Bruen Does Not Care About Your Due Process Rights

The landmark Bruen decision inaugurated a lot of chaos in the field of Second Amendment jurisprudence, but perhaps no follow-up case caught the public's eye quite like the 5th Circuit's ruling striking down prohibitions on persons under domestic violence restraining orders from possessing guns. I characterized that ruling (United States v. Rahimi) as "(a) insane and (b) absolutely defensible under the Supreme Court's Bruen decision," but I also flagged it as a potential candidate for Supreme Court reversal. The Supreme Court did grant cert in Rahimi, and the consensus amongst legal observers following oral argument is that the Fifth Circuit's opinion is toast.

One last ditch argument we're seeing by pro-gun zealots to try and avert this outcome is to frame Rahimi as a defendant's rights issue. Fifth Circuit Judge James Ho, in an opinion Chris Geidner characterized as a "judicial version of a post-argument supplemental filing," appealed to this principle -- citing a bevy of criminal law due process cases which protected the rights of even violent offenders and concluding that "if government must turn 'square corners' when it comes to the removal of illegal aliens, surely it must do the same when it comes to the basic rights of our own citizens." Josh Blackman made a similar argument, contending that it will be difficult to write an opinion in Rahimi that upholds the law in question that doesn't similarly pare back other rights of those accused of violent crimes.

Let's start by making one thing clear. Blackman states that "the reason why the Court may 'clarify' Bruen [in Rahimi] is because certain members of the Court don't like the results that it yields." I agree. As I wrote shortly after the Fifth Circuit's decision came down:

[I]f the Supreme Court reverses [Rahimi] -- and they might -- their reasoning will almost certainly purport to be based on some alternate assessment and reading of the historical sources. But this will be a naked smokescreen, and everyone will know it. If the Court reverses the Fifth Circuit here, it will be entirely and solely because the Court finds it too unreasonable and intolerable to permit domestic abusers free reign to carry arms -- a contemporary policy judgment anyway you look at it, no matter how much effort is or isn't expended to cloak it in some faux-historical garb. None of these judges abide by the rules they purport to lay out.

But while I agree that the results-tail will be wagging the doctrinal-dog, the "defendant's rights" argument is not a bulwark against the sort of reasoning. Rather, it is itself a form of results-oriented reasoning that Bruen -- if applied "faithfully" (and again, quotation marks because nobody is even trying to apply it "faithfully") -- expressly disclaims the legitimacy of. Put differently, to the extent Rahimi tries to present itself as faithful to Bruen, the "defendant's rights" argument is incredibly easy to dispense with. Blackman and Ho's position, by contrast, only works if one assumes Bruen does not mean what it says -- or, as I've put it, that Bruen is a one-way ratchet where social policy arguments in fact are permissible ... but only if they stand in support of a pro-gun position.

Let's review what the Bruen rule is. It's quite straightforward: where the "plain" language of the Second Amendment covers given conduct, government regulation of said conduct will only be upheld if it is consistent with the framing-era history of gun regulation. That's the alpha and the omega. No weighing of social policy consequences is permitted, period.

This approach generally has been conceptualized as a means of striking down even laws about guns that seem eminently sensible -- if they lack the relevant historical analogue, they're unconstitutional no matter how salutary they might seem. But in concept, what's good for the goose is good for the gander: a law about guns that seems arbitrary and unfair, but which does have relevant historical analogues, must be upheld no matter how ridiculous it might seem.

Suppose it turned out that there were in many states at the founding era laws that permitted anyone with a last name starting with "M" to be disarmed at the discretion of the state governor. For purposes of this hypothetical it doesn't matter why these laws were passed, and we can all agree that would be a tremendously silly and unfair law. Nonetheless, if a state today passed an identical law, under Bruen it should be upheld: the only question we're allowed to consider is "is there a historical analogue," and by stipulation there is one here. Engaging in the abstract moral theorizing about whether this law is "fair" -- no matter how obvious the answer might seem in this case -- is exactly what Bruen says courts are not allowed to do.

Similarly, suppose we had in Rahimi something that Justice Thomas in Bruen expressly denied was necessary: a "clone" law -- at the founding, there were regularly laws exactly like the federal law at issue in Rahimi throughout the states. In such a circumstance, even Ho and Blackman would have to concede (I think?) that Bruen would compel the federal law in Rahimi to be upheld, and that the "defendant's rights" argument would not enter into it. The law has a historical analogue, and so the discussion ends. That's what Bruen demands.

Of course, there was not a "clone" law at the framing to the federal prohibition on gun possession by persons under domestic violence restraining orders. So the nominal question in Rahimi is whether the laws that did exist are sufficiently analogically comparable to the federal law at issue so as to validate the latter. But that analysis, too, is completely unconcerned with any alleged unfairness to prospective criminal defendants. Either the historical analogues are sufficiently comparable, or they're not. If they are, then it doesn't matter that the results might seem unfair to potential criminal defendants any more than it matters if the results (pointing the other way) might seem unfair to domestic violence victims, or for that matter if the results seem unfair to persons whose last names start with "M". In all cases, Bruen demand we be studiously indifferent to this unfairness.

Bruen, in short, does not care about due process rights. Or put slightly differently, Bruen says that the only process anyone disarmed by the government is "due" is a determination about whether the disarmament is sufficiently analogous to practices that existed at the founding. If it is, then you can be disarmed. If it isn't, then you can't. No other consideration of "fairness" comes into play. 

It is in fact a misapprehension to say that the reason Rahimi could be disarmed consistent with Bruen is because "we're willing to reduce constitutional protections for prospective criminal defendants." If Rahimi can be disarmed, it isn't because he's a prospective criminal defendant, it's because he falls into a category of persons sufficiently analogous to persons who were deemed to be disarmable at the time of the framing. For this reason, a reversal in Rahimi poses no threat to other criminal defendant rights precedents, because in no other domain are constitutional rights treated in this absurdly reductive fashion (here we really see the lie that Bruen was about treating the Second Amendment "the same as" other constitutional rights; no other constitutional domain has a doctrine that's anything close to what Bruen proposes).

In short, all an opinion reversing the Fifth Circuit in Rahimi has to do to "contain" its ruling is state its conclusions in the terms Bruen prescribes: that the historical analogues to the challenged federal law are sufficiently comparable so as to render the latter constitutional. Once it does that, it need not and under Bruen should and cannot say a word about whether this outcome is "fair" or not to people who could prospectively be charged with a crime.

To be clear one more time: even if this is the approach the Supreme Court takes in reversing the Fifth Circuit, it will be a lie. We'll all know that the actual reason behind the Court's decision will be policy squeamishness towards the outcome. But we also know -- already knew, but Ho and Blackman helpfully confirmed it -- that a contrary ruling (or a dissent) will also be driven in part by social policy considerations and abstract arguments about fairness. Even Bruen's putative defenders don't actually take its strictures seriously, which is one more reason why the decision deserves nothing but scorn.

Monday, November 20, 2023

The Fluid Dynamics of Pill Popping

This is a very silly question that I've been obsessing about for weeks. It's possible I've even written about it before, though I can't find any trace of that. It's a question that simultaneously feels so basic that science has to have an idea about it, but also I can't think of a single practical application that would prompt anyone to study it.

Let me lay out the scene.

I have a bottle of pills, from which I take one pill each day. To do this, I tilt the pill bottle and "pour" one pill out onto my hand, then return the bottle upright and place it back on the shelf. Other than this, I don't shake or mix the pill bottle in any way.

When the pill bottle is close to -- but not quite -- empty, I get a new bottle. At this point, I pour the remaining pills from the old bottle into the new bottle (again, without otherwise mixing or shaking). So if I had 10 pills left from the old bottle, and 90 pills in the new bottle, the new bottle now has 100 pills (including the 10 "old" pills poured over the top). Then I start the cycle again of taking one pill a day.

Here's my question: on average, how long do we predict it would take me to consume all of the "old" pills (assuming I don't vary my routine)?

One answer is that the order of the pills being poured out is essentially random (I have an equal chance of "selecting" any given pill), and so the answer of how long it will take me to pour out the ten old pills is the same as the answer for any randomly selected ten pills. But it seems wrong to suggest that the order is in fact random -- the fact that these pills were specifically placed on the top of the pile of pills should mean that they have a higher likelihood of being poured out first (right?).

So another answer at the opposite end of the spectrum would be that since the old pills are at the top of the pill bottle, they should be the first ten pills that I consume (or close to it). Something like that is the intention of pouring them onto the top of the pile. But this also strikes me as unlikely -- intuitively, I feel like the act of pouring does not necessarily result in the "top" pills necessarily being poured out first. It does some mixing on its own. More broadly, when I imagine the physical act of the pile of pills cascading down the side of the pill bottle into my hand, it's very easy for me to imagine pills that were not on top skipping ahead and getting into my hand first.

In short, I suspect that I should pour the "old" pills more quickly than the new ones by some indeterminate factor -- more quickly than random selection, less quickly than "they'll be the first ten". It's a question, in essence, about the "fluid dynamics" of pills, which is a concept that tickles me for some reason.

This actually would be pretty easy to measure in concept: give each pill a number, instruct research subjects on my routine, and then have them mark down the number of the pill they pour out each day. But has anyone actually investigated this? On the one hand, it feels like utterly pointless knowledge. On the other hand, scientists love finding out about the properties of random subjects!

Anyway, for anyone working in a germane field, this is a free research proposal for you. Have at it.

Saturday, November 18, 2023

The Settler's War and the Biden Response

While the world's eyes are primarily on the war between Israel and Hamas in the Gaza Strip, another spate of violence has erupted in the West Bank, where Israeli settler violence has surged to unprecedented levels. A few weeks ago, I observed that while what's "going on in Gaza is more eye-catching ... the [West Bank] situation is in some ways even worse because there isn't even a colorable claim of self-defense -- it's pure unconstrained terror inflicted by settler extremists on the Palestinian population for the express purpose of subjugation." (Matt Yglesias made a similar point). The Gaza operation can at least in the abstract be defended as a necessary response to Hamas' violence. The violence inflicted upon Palestinians in the West Bank defies even theoretical justification. In terms of familial resemblance, West Bank "price tag" settler terrorists differ from the perpetrators of October 7 only in degree, not kind.

Today, the Biden administration announced it would begin pursuing sanctions (such as visa bans) on settlers who engage in or promote violence against Palestinians. It's an overdue step, and I've urged considerably harsher measures than that (last week I suggested identifying violent settler organizations and placing them on the State Department's list of Designated Terrorist Organizations). Nonetheless, it is a welcome one. Extremist violence emanating from West Bank settlers is one of the primary drivers of the current conflict and an existential (and very much intentional) threat to the viability of a two-state (or one-state, for that matter) solution. The fact that these malign actors carry significant support in the highest echelons of the Israeli government is not a reason for the United States to stay its hand. Indeed, their substantial influence and clout makes it more imperative that America decisively intervene to isolate them.

This step by the Biden administration will not neuter the criticism it is getting from the left for how it has handled the past month's events (indeed, I first heard about the anti-settler sanctions from at least three social media accounts who flagged it in the course of derisively dismissing the notion that it meant anything at all). But that's the way it goes -- our policy towards Israel and Palestine should be humane and intelligent regardless of whether that earns brownie points with the online activist crowd. This proposal is a good proposal. I hope it is followed up on, and I hope it prompts other pro-Israel Democrats to think more proactively and creatively about what steps America can take to sap the strength of the settler-terror movement.

The other big almost-news of the day is the prospect of a ceasefire negotiated by the Biden administration. Initially this was reported as a "tentative deal" having been struck, now the reporting has backed off a little to saying the deal is "close". The details, as they're being reported, would see both sides cease hostilities for five days, the release by Hamas of approximately 50 hostages (approximately 20% of the total number they're estimated to be holding), and the transport into Gaza of significant quantities of humanitarian aid. All I'll say on this is that I'm familiar with the arguments for why Israel's military operation is necessary, and I'm aware that a ceasefire is still part of the middle, not the end. But I'll never be dismayed at the prospect that people suffering tremendously in a warzone will, for some time at least, suffer less. And I'll likewise only feel joy at the prospect that some kidnapped captives will be redeemed to their families.

Sunday, November 12, 2023

How Many Genocides Are Occurring in the World Right Now?

A few weeks ago, I asked on BlueSky an admittedly morbid question: "approximately how many genocides does a given person think are currently in progress around the world right now?" I didn't get much in the way of responses, so now I'll ask again here and elaborate a bit on why I think it's a question worth asking.

I was inspired to return to this question based in part on an online conversation I had with a Palestinian friend a few days ago, after she characterized Israel's current campaign in the Gaza Strip as "genocide". Knowing she was a fierce opponent of Hamas, I was curious if she also thought that Hamas' 10/7 attacks were acts of "genocide" as well. She responded that in her view, they clearly were -- indeed, given what Hamas did combined with how Hamas leaders characterized their ambitions, she thought the case for calling it genocidal was almost beyond argument.

For my part, my instinct is that Hamas' attacks -- abhorrent as they were -- are not properly called "genocide" (nor is the Israeli response). I couldn't help but observe the resulting incongruity vis-a-vis Hamas, though -- the Palestinian anti-Zionist thought that Hamas had clearly committed acts of genocide; the Jewish Zionist thought that this allegation was a mischaracterization and misapplication of the term. Or, as I put it, "today, you're the Hasbarist shill and I'm the Hamas terrorist apologist." How the world turns.

But what accounts for our incongruous divergence?

Consider what I think is a reasonably popular, though not necessarily universally held, "folk" understanding of genocide where it refers solely to generational calamities. The Holocaust, for instance, saw the extermination of two-thirds of Europe's Jewish population. The Cambodian genocide witnessed the murder of one-third of Cambodia's entire population. The Rwandan genocide killed off somewhere around three-quarters of the Tutsi population. The Armenian genocide was responsible for the death of between 50 and 80% of the Armenian population. That's a hefty weight class to be in. And while I don't want to say percentage death toll is the absolute be-all-end-all of what qualifies as a "genocide", it seems fair to say that most human rights abuses, even most incidents of mass atrocity, will not come near that threshold. These are, again, once-in-a-generation sorts of events. 

Given that understanding, my sense that neither Israel nor Hamas' recent conduct qualifies as "genocide" is not based on any illusions that either party hasn't committed grave (and violent) injustices against the other. But amongst currently active conflicts, the cumulative death toll of the Israel/Palestine wars doesn't even break into the top 20, and that's including all deaths (military and civilian) by all parties across all incidents from 1948 to present. It is, again, just not in the same weight class as the paradigm cases above. The differences between what's happening in Israel and in Gaza, compared to what happened in, say, Rwanda, is a difference in kind and not just degree.

But the above "folk" understanding isn't the only way to understand genocide. I was at an academic conference this weekend, and at dinner I shared a table with a colleague that worked in the field of peace studies. She mentioned the genocide of native peoples in Canada relating to the "residential schools" program, and then added off-hand that the genocide was "ongoing" to this day. This is, I think it's clear, a broader understanding of genocide than the folk understanding. And based on analogous principles, it seems that the number of analogous state behaviors towards minorities that are "at least as bad" as Canada's current treatment of indigenous persons would be quite substantial. Of course, one sometimes hears similar claims made regarding ongoing genocides of indigenous persons in the United States, or for that matter ongoing genocide of African-Americans in the United States. But there are many other candidates around the world, from the Dominican Republic's treatment of Haitians, to Morocco's treatment of Sahrawi, to Brazil's treatment of its own indigenous population, to India's treatment of Muslims, to Iran's treatment of the Ba'hai (and that is a very non-exhaustive list).

Indeed, based on that threshold -- where "genocide" includes treatment of a national minority either as badly as or worse than Canada currently treats indigenous peoples -- I wondered how many active incidents of genocide currently occurred around the world. Dozens? Hundreds? I don't expect anyone to have a precise figure. But I'm curious as to answers even within an order of magnitude, because I think it can help illuminate what people actually mean by a word that unfortunately is starting to develop blurry and divergent meanings. When people speak of "genocide", are they talking about a concept that they imagine as generally occurring in zero or one place around the world -- maybe two if things are dire? Or are they talking about something occurring in dozens or hundreds of different places simultaneously? If one person says "genocide" and envisions the latter, to a hearer who imagines the former, it's small wonder they'll often feel as if they're talking past one another. More broadly, the person whose position is "there is one genocide currently going on anywhere in the world, and it is in Gaza" can, I think, fairly be accused of making an unreasonable and biased assessment (again, check that top-20 list). But the person who says "there are dozens of genocides currently going on across the world, from Canada to Brazil to India to Iran to Morocco to China to the Dominican Republic -- and Gaza is one of them" can't be criticized in quite the same way (though potentially they can be queried as to why, with so many genocides occurring simultaneously, this one has so decisively grabbed their attention).

And for what it's worth, I want to be clear that the possibility that a given understanding of "genocide" would yield a far higher number of incidents than the folk understanding does not mean that understanding is wrong or implausible. As I tell my students, a sad fact is not the same thing as a false fact, and the world might be a sad or horrible enough place that there are innumerable incidents of "genocide" occurring all at once at any given moment. Nonetheless, I think there are implications of defining genocide in this more expansive fashion that are worth thinking through. Among them:

  1. The more expansive definition necessarily changes how the international community can relate to ongoing "genocide". Where genocide is generational, it is at least plausible to demand that a case of "genocide" be a sort of drop-everything, all-eyes-on-this emergency demanding otherwise impermissible forms of intervention (e.g., "Responsibility to Protect" doctrine). This orientation is neither feasible nor tractable in circumstances where there may be hundreds of "genocides" occurring simultaneously.
  2. The broader definition significantly raises the likelihood of there being cases of "cross-genocides"; two populations simultaneously enacting (or attempting to enact) genocidal policies upon the other. While in concept it isn't impossible for there to be a "cross-genocide" case under the folk definition, practically speaking it's hard to imagine. By contrast, a "dueling genocides" situation is the consequence of, for example, my friend's conclusion that both Israel and Hamas were engaging in acts of genocide -- both the government of Israel, and the (de facto) Palestinian government in Gaza, are simultaneously "genocidal states". This possibility, in turn, rests quite uneasily with a host of intuitions many of us hold about what genocide is, how to respond to it,  and what ought to be the geopolitical position of the "genocidal" state, nearly all of which imagine clear delineations between perpetrator and victim groups. What does it mean to intervene on behalf of a group to protect it from genocide under circumstances where, by stipulation, that group is also attempting to instantiate its own genocide?
And these reasons don't get into the possibility of linguistic exploitation: relying on popular understandings of genocide predicated on the folk view (of generational rarity) to direct attention and resources to an incident whose viability as a "genocide" is only plausible under a more expansive, revisionist account.

For my part, one reason I tend to prefer the "folk" understanding is that I think it preserves a more fine-grained taxonomy for speaking about human rights abuses and atrocities. We don't lack for language to describe incidents of mass atrocity, war crimes, indiscriminate bombings, occupation, wars of aggression, and so on. Hence, it makes sense to me to reserve "genocide" for the class of cases that are incidents of full-scale, widespread, intentional targeted extermination qua extermination, which are a tiny subset of even incidents of substantial civilian suffering and death. The Holocaust, the Rwandan genocide, the Armenian genocide, the Cambodian genocide -- events such as these strike me as sufficiently different in kind from other incidents of even mass atrocity and widespread death and destruction that it's better to retain a unique term to describe them. This is particularly so given that we don't lack for a rich vocabulary to describe other forms of mass violence and atrocity such that we need to press genocide into more expansive service. 

But that assessment aside, I do think we can learn a lot by demystifying what people mean when they say "genocide", and in particular the degree to which they are intending to signify some sort of singular, once-in-a-generation evil versus something that is (sadly, horrifyingly) a more general feature of political repression and ethnic subjugation that is common around the world.

Friday, November 10, 2023

When Good Slogans Go Bad (Or, Legitimate Slogans as Taunt)

A friend forwarded me an interesting story about an incident at an Evanston, Illinois high school where two school employees (one a teacher) wore a "free Palestine" t-shirt on October 8 -- one day after Hamas' horrendous massacre of Israelis on October 7.

To me, this is obviously deeply troublesome behavior. One reason, which I want to bracket for now, is that it was overt political expression by authority figures in a school setting -- in the story, the aggrieved parents state that they think similar shirts would be equally problematic if they said "MAGA" or "re-elect Biden" or, for that matter, "I support the IDF".

But leave the issue of authority and power out of it for now. Why is "free Palestine" problematic in this context?

This sometimes gets debated as a matter of whether "free Palestine" is "inherently" antisemitic, that is, antisemitic in all contexts. To that I think the answer is clearly no. But, it seems equally clearly, there are circumstances where "free Palestine" is antisemitic -- for example, if it is graffitied on the wall of a synagogue. That's antisemitic, and antisemitic in a way that goes beyond the possibility that any graffiti on a synagogue ("Go Bears!") is antisemitic insofar as it palpably disrespects a Jewish house of worship. In context, "free Palestine" on a synagogue wall is distinctly targeted at the synagogue as a Jewish institution in a way "Go Bears" isn't.

Mostly, when I make both of the above points, I get agreement. Not always -- some argue that "free Palestine" is always antisemitic; some argue that "free Palestine" on the synagogue is not antisemitic (it's criticism of Israel -- just like a firebomb!). But mostly. So why do I view the Evanston incident as more like the graffiti than the "bare" slogan?

My intuitive answer is that wearing a shirt with that slogan on October 8, one day after the Hamas massacres, will be perceived and will reasonably be perceived by Jewish students as taunting -- if not an outright expression of support for the murder of Jews, than at the very least an intentionally defiant stance of opposition to caring about the murder of Jews. The best analogy I can think of would be wearing, the day after the George Floyd murder, a t-shirt saying "I support our Boys in Blue." Is that sentiment inherently racist? No. Is it racist in that particular context, where it is almost certainly meant to stand in defiant opposition to caring about a murder carried out at the hands of the police? Yes, it is.

In the above example, I also thought about using a "Thin Blue Line" flag as the illustration. The reason I didn't is because many people would say that this symbol is inherently racist (whether the day after George Floyd or any other day). But it's worth dwelling on why. The semantic meaning of "Thin Blue Line" may simply be another variation of "I support our police." But in context, that slogan was developed solely as a reactive response to Black Lives Matter; its adaptation is systematically meant to serve as a taunting refusal to care about minorities murdered by police. For that reason, it is different-in-kind from "I support our Boys in Blue" -- but only because it was designed in all cases to carry the context that "I support our Boys in Blue" only contingently does. I don't think "Free Palestine" is like "Thin Blue Line" in that it was designed solely to be used as taunt. Unlike "Thin Blue Line" (but like "I support our Boys in Blue", it has legitimate uses where it's communicating "normal", in-bounds politics. But in the situations where it is being used as a taunt; as a way of defiantly saying "your pain and marginalization mean nothing to me," then it's antisemitic in the same exact way and for the same reasons that "Thin Blue Line" is racist.

The other example that came to mind was the time when a Texas Republican legislator responded to a planned day of political lobbying by Muslim constituents by conspicuously placing Israeli flags in her office. Is displaying an Israeli flag "inherently" Islamophobic? No, it isn't. But to reduce the legislator's bigotry to the question of whether there's something inherently wrong with ever displaying an Israeli flag is to badly miss the point. In context, the flag was displayed as an intentional taunt -- a way of signaling "you're not welcome here."

In the Texas situation, I wrote about the terrible semiotic spiral that can result when people use otherwise valid symbols and slogans this way -- the more they're used as means of signaling exclusion, the more that bigoted and offensive meaning overtakes and displaces the valid political signification that others may still want to use, but now are obstructed from doing. That is, the more often in a given context or space an Israeli flag is displayed, or "free Palestine" is uttered, as a way of trying to taunt outsiders and send the message they're unwanted, the harder it is for people who want to wave Israeli flags or assert "free Palestine" in a "legitimate" fashion to successfully do so (since, in many cases, the taunting and legitimate usages will be observationally equivalent).

The sheer pettiness of the action -- as if an Israeli flag scatters Muslims like Vampires and the cross -- masked a deeper evil: the politician, by using the Israeli flag in this way, was constructing a meaning of the flag where one of its uses is to signal "I don't want Muslims to be comfortable here". That's terrible.

Likewise, when people expressly respond to, say, Jewish presence or trauma or marginalization by becoming more likely to say "free Palestine" or wave a Palestinian flag, it similarly accelerates this semiotic decay. 

What we saw in Evanston, in other words, while most obviously a terrible injury inflicted on Jewish students, was also in a more roundabout way an act of disrespect to all those who say "Free Palestine" and do not at all mean it to be a taunt, or a way of degrading or diminishing Jews, or a way of signaling to Jews that they're lesser. Both of these are tragedies. And pointing out that tragedy does not depend on, and is not obviated by falsifying, the contention that "free Palestine" is inherently antisemitic.

UPDATE: As Benjamin Lewis pointed out in the comments, October 8 was Sunday, so it is likely the shirts were worn October 9 (Monday). Given the time differences and all, that still is functionally one day after the massacres, and I don't think it makes a substantive difference in the analysis, but I do want to be accurate.