Wednesday, January 22, 2020

Technically, Any Number of Seconds Can Be Split Any Number of Times

Yesterday, in Chestnut v. Wallace,* the Eighth Circuit denied an officer qualified immunity. That itself is arguably worthy of noting, since the Eighth Circuit is not exactly predisposed to denying qualified immunity.

The case itself is straightforward: a man (Chestnut) quietly observed a St. Louis police officer perform a traffic stop from about 30 - 40 feet away, while leaning against a tree. The officer viewed this as suspicious, and called for backup. A new officer asked for Chestnut's name, birthday, and social security number; he refused to provide the last of these. The officer then frisked Chestnut for weapons, found none, and then proceeded to have Chestnut handcuffed. After about twenty minutes and a conversation with the officer's supervisor, Chestnut was released. Since observing the police does not provide reasonable suspicion of criminal activity, and since people are allowed to not answer questions from the police (such as providing their social security number), no reasonable officer could have had suspicion of criminal activity, and so there is no qualified immunity.

Judge Gruender dissented. This is considerably less noteworthy, since an officer could probably shove a handcuffed detainee off a six-story building and Judge Gruender would conclude he has qualified immunity.

I do want to flag one thing though, from the end of Judge Gruender's opinion. He writes that "police officers are not—and should not be—expected to parse fine distinctions between statutory and constitutional law in split-second decisions." This rhetoric of "split-second decisions" is increasingly common in judicial opinions that seek to insulate police officers from accountability, particularly in use-of-force cases. Maybe we have sympathy for it in that context, maybe we don't.

But it is interesting to see this rhetoric make a near-reflexive showing in this case, as nothing about the police's interaction with Chestnut involved anything like a "split-second decision". There were no sudden movements, no unpredictable reversals or unexpected flinches. Chestnut was far away from the action and was not an imminent threat to anyone. By the time he was placed in handcuffs, the police already knew he was unarmed. That Judge Gruender nonetheless characterizes this case as involving a "split-second" decision suggests that anything the police do deserves that label. But it's just not true. Not every decision a police officer makes in the field is a "split-second" one; the decision to detain Chestnut certainly was not. It was a decision taken after many seconds, under no particular pressures and with ample time to deliberate.

In that same paragraph, Judge Gruender hoarily remarks that police officers in the field are not "participating in a law school seminar." Indeed, they are not. They are taking real actions which have real consequences for real people. Kevin Chestnut was placed in handcuffs for having the temerity to look at the police in public. That's a terrible thing to have experienced; obscured though it might be behind rhetoric of "reasonable suspicion" and the fuzzy line between "detention" and "arrest". We should step out from the legalese fictions that justify qualified immunity, and start taking the reality of what the police do -- and who they are doing it to -- a lot more seriously.

* The opinion was authored by Judge Arnold, joined by Judge Grasz -- and I'll reiterate again what a pleasant surprise Judge Grasz has been on qualified immunity issues.

Monday, January 20, 2020

On the AMCHA "Bringing BDS into the Classroom" Study

The AMCHA Initiative has a new self-published study, which is gaining some attention in the Jewish Press, purporting to show that when teaching courses related to Israel, Palestine, or Zionism, (academic) BDS-backing faculty are more likely load up their syllabi with fellow BDS-supporters, as opposed to giving their students a balanced perspective. Their big takeaway findings are:

  • For academic BDS supporters, a median 78% of syllabi readings are by "BDS supporters", compared to a 17% for non-BDS supporters.
  • All academic BDS supporters have  at least a majority of readings from "BDS supporters", whereas only 6% of non-BDS supporters have a majority of readings from "BDS supporters".

I'd been hearing about this study for awhile, and I was finally prompted to look it over after reading this laudatory account from Daniel Gordon. Gordon argues that the AMCHA study proves that BDS supporters are sabotaging the values of balance and even-handedness in favor of a one-sided propagandistic approach in their classrooms -- so much so that he suggests that either academic administrators or "the public" at large might be justified in interfering with their content.

That's an aggressive claim, and one that requires equally strong proof. Yet the AMCHA study provides, at best, mixed evidence regarding who is actually being one-sided. Let me present AMCHA's data in a different way that might generate a different intuition (this is derived from "Figure 1" of the study):

  • 63% of "no BDS" faculty have at least 80% of their syllabus readings come from fellow "no BDS" authors. For 31%, that number rises to 90%.
  • By contrast, just 33% of academic BDS supporters have at least 80% of their syllabus readings come from fellow BDS supporters. And only 7% (aka, one syllabus) has over 90% of readings come from other BDS supporters.
Framed that way, one could argue that it's the BDS supporters who do a better job avoiding overwhelmingly one-sided syllabi. Two-thirds of them devote at least a non-trivial chunk of their syllabi to their ideological opponents. By contrast, BDS opponents are far more likely to completely or almost completely load their syllabi up exclusively with fellow BDS opponents. If the idea is, in Gordon's words, to present "competing narratives", it's far from clear that BDS opponents are doing their diligence in meaningfully presenting the "opposing side".

Now to be clear, I think one can very easily overinterpret this framing as well. Most notably, it doesn't take into account the base rate -- what percentage of authors active in Israel Studies qualify as "BDS supporters"? If it's only a marginal few, then the "no BDS" crowd might be giving their views proportionate weight even if they only occupy 10 - 20 % of the syllabus (and this would, similarly, suggest that BDS backers are significantly oversampling their side relative to its support levels). But base rate levels are very difficult to tease out, and almost certainly vary depending on the specific topic of the course. It's quite plausible that many more authors working on "Palestinian Literature of Resistance" support BDS compared to those working on "Israeli Constitutional Law", and so the fact that a class on the former contains many BDS-backers on the syllabus (or one on the latter contains few) does not necessarily reveal any especial bias on the part of the professor. And that doesn't even go into the over-simplified notion that "BDS support/opposition" necessarily mark out the relevant ideological "sides" for every class.  The difficulties in parsing these out in practice, when they're almost always going to be matters of interpretation, are just some of the many reasons why outside observers should be very leery about substituting their own judgments regarding "balance" and "even-handedness" for that of the professor.

The AMCHA study also raises another pertinent question: Who counts as a "BDS supporter"? Here, the study authors do something rather slick -- they change their answer for the independent versus the dependent variable. The result is to significantly inflate the level of same-side bias that exists on the side of the "BDS supporters".

Here's how it works: For the independent variable -- that is, the professors authoring the syllabi -- the study only includes supporters of academic BDS, specifically, as "BDS supporters". On the other side, "no BDS" professors are those who oppose BDS in all its forms (not just academic BDS but, say, settlement boycotts as well). Those who fit into neither group (people who support some forms of BDS, but not academic boycotts) are excluded.

But for the dependent variable -- that is, which syllabus readings are identified as being authored by "BDS supporters" -- that entire middle-ground category is grouped back into the pro-BDS crowd. Along this axis, "BDS supporter" includes not just academic boycotters, but also
  • Anyone who has supported, or signed a petition in favor of, any form of BDS (including settlement boycotts);
  • Anyone who has supported a boycott of "specific Israeli leaders"; 
  • For Israeli scholars, anyone who either has "challeng[ed] Israel’s right to exist as a sovereign Jewish state" or "call[ed] on Israelis to resist obligatory military service", regardless of whether they've endorsed any form of BDS or not.
And any reading that is even co-authored by anyone in this expansive category is coded as being by a "BDS supporter".

Putting these two different renditions of "BDS supporter" together, the study is measuring the homophily of what we think of as the hardest core of BDS supporters (those favoring academic boycotts) by asking how many of their syllabi readings are at least co-authored by anyone at least as left-wing as Peter Beinart. This is not, to say the least, an especially illuminating metric.

In short, the AMCHA study fails to demonstrate that pro-BDS faculty produce syllabi that are more one-sided than their anti-BDS peers. Indeed, it may instead offer some (albeit weak) evidence in the opposite direction. Not only does it almost certainly exaggerate the same-side bias of BDS supporters by contracting and then expanding the definition of "BDS supporters", but even on face the study findings seem to show that the most ideologically-lopsided syllabi -- in terms of giving significant attention to authors on the opposite side of the BDS ideological divide -- tend to come from BDS opponents.

NYTimes Endorses Warren and Klobuchar

The New York Times has officially endorsed not one, but two candidates in the 2020 Democratic primary: Senators Elizabeth Warren (MA) and Amy Klobuchar (MN). In essence, the Times' picked one candidate from the "moderate" lane and one candidate from the "progressive" lane, while suggesting that either one can and should be acceptable to any decent person seeking to defeat Trump.

The internet reaction, at least in my quarters of it, has been mostly disdainful. The NYT should have had the gumption to make an actual choice. Choosing two people was a cop out. Dismiss dismiss dismiss.

Most of this reaction has stemmed from more left-ward elements. And to be fair, on net the double-endorsement probably helps Klobuchar, who has struggled to gain traction, more than Warren. So it maybe isn't surprising that the left isn't wild about this choice, insofar as it probably does more to help an "establishment" candidate they dislike over a more progressive candidate they (well, some of "they") like or are at least fine with.

But I think there's another element in play here. Recent events notwithstanding, there remains some efforts on the left-side of the party to build a unified front along the axis of either Warren or Sanders, as against the "establishment" wing represented by Biden or Klobuchar. Key to their efforts is a strong distinction between these two wings, such that it is important to maintain progressive unity so we don't hand the nomination to a moderate because the left can't stop fighting amongst itself. This view is very much adverse to the sentiment, communicated by the Times, that all the Democrats (Klobuchar, Biden, Warren, Sanders ...) are fundamentally on the same side, so that we should all be content no matter which of them is picked. This aspect of the editorial is probably what got the most sustained mocking, at least in my feed.

It also is, as you probably know, a view I basically endorse, which is why the Times' double-endorsement didn't bother me all that much. I'm inclined to think that Warren is the best of the "progressive" wing, and Klobuchar probably the best of the "moderate" wing. There's a case to be made for nominating a progressive wing candidate, and a case for a moderate wing candidate, but if the nomination goes in the direction I disprefer I wouldn't view at as a betrayal. Either way, we'd still be getting a candidate who is more-or-less on my side.

Thursday, January 16, 2020

What's the Catch of Clickbait?

Harvard Law Professor Larry Lessig is suing the New York Times for defamation, stemming from a headline that read "A Harvard Professor Doubles Down: If You Take Epstein’s Money, Do It in Secret". The lede of the article, in turn, opens by saying "It is hard to defend soliciting donations from the convicted sex offender Jeffrey Epstein. But Lawrence Lessig, a Harvard Law professor, has been trying."

Lessig contends that this grotesquely misrepresents the position he was taking, which is to not condemn fundraisers when some of the donors they solicit turn out to be unsavory or disreputable. He also asserts that the Times refused to alter its headline or lede after Lessig complained, preferring a flashy and provocative (albeit misleading) title to one that more accurately (but dully) reflects Lessig's actual view. While the article does give a more balanced presentation of his argument later on, Lessig contends that many people never read past the headline and so will only come away with a false picture.

This is all very interesting to defamation scholars, I'm sure. But I want to focus on what has to be the least important aspect of Lessig's complaint: What does "click-bait" mean?
Defendant's actions here are part of a growing journalistic culture of click-baiting. . . . Defendants are fully aware that many, if not most, readers never read past the clickbait...The use of this tactic represents a uniquely troubling media practice as it relates to the harm to and destruction of the reputation of the target of the clickbait.
Here's my bone of contention: clearly there is an issue whereby readers see only a headline and read no further, rendering moot the presence of a more complex depiction in the body text.

But it strikes me as weird to use "clickbait" to characterize the phenomenon. "Clickbait" literally refers to the use of a provocative or flashy headline as means of prompting ("baiting") readers to access ("click") the whole article. The idea is that the title is so juicy and irresistible that the person who sees it on, say, Facebook cannot help but click the link and read the article.

Now to be sure, part of the function of click-bait is that the site owner only cares about the click, that is, that the reader accessed the page (and thereby juices the site's hit rate for ad revenue purposes). The site probably doesn't care if the reader actually ends up reading any of the article text, much less if she completes it. Indeed, it seems likely that many of the readers who are attracted by the title ("oh man, this I've got to see!") will drift away disappointed once they encountered the more prosaic story underneath.

Nonetheless, it strikes me as a weird to say that "readers never read past the clickbait", because the whole purpose of the clickbait is to drive them to the site with the full article. If they only read the clickbait, then the clickbait has failed, because the actual "clickbait" is the content that one can see without ever clicking through to the site. If the New York Times runs a headline like this, the last thing they want is for me to see that headline on Facebook and then read nothing more. They want the bait to catch me -- for me to click the link and actually head over to the NYT site (where I will, presumably, read at least a little more of the article before realizing I've been, well, baited).

Wednesday, January 15, 2020

Delaware GOP Ousts Official Over Antisemitic Remarks

Nelly Jordan, Vice-Chairwoman of the Sussex County (Delaware) GOP, has been ousted from her position after she blamed "Jews" for orchestrating Trump's impeachment and said that they were "going against God's will". Quick thoughts:

  • It's good they did this. I've noted before that the GOP has proven incredibly resistant to implementing any accountability for antisemitism in its party, and this is a welcome break from that trend.
  • That said, the vote was apparently razor-thin, with large numbers of people showing up to back Jordan and rail against "political correctness" and in support of "free speech". So there was significant division in the ranks on this.
  • Quoth one local Republican: "If we were to throw everybody out here who made a racial/ethnic remark, this place would be totally empty." Hey, you said it, not me!
  • Jordan did apologize for her remarks, and -- in what I consider to be an unbelievable upset -- she did not say "I am a strong supporter of Israel". Not once! I wish I wasn't shocked, but I was. Well done, Ms. Jordan!
In other Delaware news, a different GOP official, New Castle GOP Chairman Chris Rowe, resigned after referring to ideological opponents as "faggots" in a social media post. Though he resigned, he wants you to know that:
The Disgrace was not mine, but displayed how weak & timid society has devolved by allowing itself to be injured & offended by viewing a printed word. The words uttered by the Left are words employed by the mentally weak to push shame upon those with which they disagree. They assume because they would be offended, so would their targeted individual or group. Then again, being mentally strong, I do not get offended by words as is your aim.
Kudos to Rowe for showing how mentally strong he is (he proceeded to text the local newspaper and inform them that "The Cancel Culture are now attacking me and causing me hurt.")

Sunday, January 12, 2020

One More Reason Why Black Voters Back Biden

Joe Biden's status as front-runner, right now, rests almost entirely on the fact that he is far and away the top choice of African-American voters. There are many explanations for why Black voters like Biden, but I'll add one more, rather simple explanation, to the fray:

As a group, Black voters are more liberal than the average American. But they're not so much more liberal so as to explain voting upwards of 90% for Democratic candidates. You only reach those august heights when a good chunk of Black voters who might otherwise be Republicans are Democrats solely because the the Republican Party is unacceptably racist. Indeed, there are plenty of Black voters who identify as conservative -- they just don't identify as Republicans. What that means is that there is a good chunk of relatively conservative Black voters who are Democrats. A full 30% of Black Democrats identify as having "conservative" political views (compared to 8% of White Democrats).

So given that there are actually plenty of Black conservatives, a large proportion -- maybe even a majority! -- of whom nonetheless identify as Democrats, it's maybe not that surprising that one sees a cluster of support among Black voters for one of the more high-profile moderates in the race.

And, for what it's worth, this also helps explain why Bernie Sanders -- who has the second-highest level of Black support (Biden is at 48%, Sanders at 20%) -- wins among Black voters under 35. Voters under 35, across all races, represent a more liberal demographic. The corollary to "more conservative Blacks back candidates like Biden" is "more liberal Blacks back candidates like Sanders". That might sound obvious, and in many ways it is -- what obscures it is that we mentally sharply underestimate levels of conservativism (or even moderation) among Black voters because of their overwhelming partisan lean towards Democrats.

Tuesday, January 07, 2020

Why Do White Jews Analogize to the Black Experience (and Vice Versa)?

The latest drama on Jewish Twitter comes from a column from the AJC's Seffi Kogen, speaking on how Orthodox Jews cannot practically avoid antisemitism that targets them as visible Jews. Seeking to illustrate this point, Kogen wrote (in a section that was intentionally highlighted as the pull quote by the AJC):
Without betraying who they are, none of these Jews can hide the fact that they are Jewish any more than people of color could step out of their skin to avoid racism.
A great many Black Jews did not appreciate this comparison. Kogen, for his part, was not exactly defiant, but wasn't particularly contrite either. He did not apologize, nor did he withdraw the comparison. He's sticking by it, and demanding that everyone respect his good intentions.

The easiest move for Kogen would have been to just let the analogy go. His argument doesn't depend on the analogy, it would not collapse if it were removed. It seems to be a cost-free concession to a groundswell of hurt from fellow Jews -- in some cases (as in Black Orthodox Jews) the Jews best positioned to assess the validity of the comparison! -- who are telling him that phenomenologically the comparison does not carry.

Yet he didn't do that. He clearly wants to defend the legitimacy of the analogy, and putting aside his specific case these analogies keep on being made by Jews even in full knowledge of their reception. And I think a lot of us are kind of at a loss as to why.  What makes this analogy so important, that it must be stuck to no matter the reaction from the African-American community (including African-American Jews)? Why do Jews -- and Kogen is by no means alone here -- insist on couching their anti-antisemitism appeals via analogy to the Black experience? What makes that move so popular? What drives it?

I think I can answer these related questions. The reason this analogy is so popular comes at the confluence of two beliefs that are deeply-held in many portions of the Jewish community -- one which is reasonable and understandable, the other which is fictive and toxic.

The reasonable belief is the fear that articulating the rights of Jews-qua-Jews will not suffice to persuade non-Jewish listeners that those rights ought to be defended. That is, even if it were effectively communicated to the listener how important these religious symbols and practices are to observant Orthodox Jews, many would still be at best indifferent to the argument because they do not take protecting Jews to be a sufficiently important motivation in of itself. The fear is that, upon hearing "(Orthodox) Jews are marginalized in X way", the response will be a shrug (or worse): "So what? What do I care about what happens to Jews?"

In response to this vulnerability, the natural response is to look for a broader principle to appeal to by analogy. "You care about X in Y case, so you should care about it in the Jewish case too." And in selecting the "Y" analogous case, the more accepted it is the better. It does no good to pick a "Y" that would also be met with a shrug. The "Y" needs to stand as an impregnable, knockdown case that everyone would accept -- a sure-fire bet to prop up the otherwise precarious Jewish example.

And so we get to the fictive and toxic belief: the belief that anti-Black racism is that "Y". It is the case everyone agrees on, we are absolutely convinced that while people might shrug off hurting the Jews, they would never countenance anything that marginalizes African-Americans. I cannot count the instances where I've seen Jews make arguments premised on this logic: "We would never tolerate this were it said about Black people...." The analogy is made as a means of accessing this imagined power held in the hands of the Black community. Black people are assumed to possess a bounty Jews only wish we could have.

But again: it's a fiction, and it's fictiveness is part of the reason why it is received so poorly. For the reality is that people do countenance marginalizing African-Americans, and do so regularly, and so there is something quite insulting about seeking to conscript -- dare I say "appropriate" -- Black experience to bolster our own position on the premise that they have such an overabundance of social capital that who could object to the less fortunate seizing a piece? The premise is that racism is, in essence, a universally agreed-upon "bad", and so we are justified in diverting some of its surplus power to those cases where such agreement does not existence. That diversion is far less innocent when the premise isn't accepted.

One sees, incidentally, this same dynamic apply in the reverse, for I think similar reasons and I think yielding the same negative reaction from the appropriated party. One sometimes sees various social tragedies referred to as "holocausts" -- for example, the slave trade called the "African holocaust" or other genocides referred to as "holocausts" (a generic term). But why are they taking that term? Well, one reason is presumably the belief that describing the atrocity in its own, organic terms won't sufficiently motivate people to care about it (often a reasonable fear). And another reason is the sense that if it's acknowledged as a holocaust, if it's treated the way we treat a holocaust, why then nobody would think to question the full extent of its horrors. It is assumed that the Holocaust -- that is, antisemitic oppression -- represents the apex of what nobody today would ever countenance or question or shrug off. And at that point, it becomes viewed almost as a hoarded resource -- how dare the Jews keep such a bounty to ourselves? Why not share it with the less fortunate? Whereas we Jews know that "Holocaust" does not actually accord us this impregnability or universal deference, and so reasonably react poorly to efforts to divert it away from a Jewish case that is by no means a won argument.

One reason we know the premise is false is because of the ferocity with which the analogy is clung to. Were it the case that people immediately and unquestionably shrink away from anything that marginalizes the Black community, then the fact that the Black community so clearly disdains this analogy would cause us to immediately drop it. We don't because the fantastical image of a universally-rejected "anti-Blackness" is in fact far stronger than the actual reality of popular commitment to avoiding anti-Blackness.

And so I hope my efforts to explain this phenomenon are not taken to justify it. The analogy generates needless antagonism, and that should suffice to abandon it. And I think the case of Orthodox Jews can be argued fully effectively without it. I've regularly used the case of religion as an example of why "choice", taken literally, doesn't matter -- one can "choose" one's religion or religious practice but do we really want to say that therefore any amount of religious discrimination is justified (because one could always opt out)? The question isn't whether Orthodox Jews are literally, existentially capable of not wearing identifiable Jewish garb, the question is whether it is justifiable to ask them to make such a choice or to impose consequences upon them for choosing wrongly.

This is, indeed, a different question from that faced Black persons who have no way of peeling off their skin -- a true lack of choice. But so what? We should be able to make the argument on its own terms. We should have the confidence to defend Jewish rights in our own language, without the need to appropriate from others.

Saturday, January 04, 2020

Karlie Kloss is not her Brother-in-Law

*Project Runway spoilers*

For the past few years, my nickel description of Karlie Kloss -- Heidi Klum's replacement on Project Runway -- has been "she's a supermodel who married one of the good Kushners". Karlie's husband is Joshua Kushner, brother of Jared Kushner, son-in-law to you-know-who. But unlike her brother, Joshua is a public-and-proud Democrat, and Karlie too has not been shy about her progressive values. And Jared and his father were apparently real assholes to Karlie when she started dated Josh (I know, who would have guessed?).

This all shifted from "interesting trivia" to "very relevant" last night thanks to a comment by one designer on the most recent episode of Project Runway.

The challenge was to design a look for Karlie Kloss to wear to a fashion gala in Paris. Designer Tyler created a look that was ... not that. It looked old -- not "classic", just out-of-date. When it walked the runway, Jill and I remarked that it was not for Paris ... but maybe for the Kushners ("it looks like something Ivanka would wear", Jill said, not intending it as a compliment).

We thought we were being very snarky. But when Tyler ended up on the bottom and listened to the judges berating him that Karlie wouldn't wear this to Paris or Martha's Vineyard or anywhere else, he couldn't help himself. "Not even to dinner with the Kushners?", he said with a smirk.

Now, Jill and I did basically say exactly that too -- but we meant it to underscore how badly Tyler missed the mark in the challenge (which was not "dress Karlie Kloss to look like her obnoxious in-laws"). But Tyler clearly meant it, not quite as a defense, but as a jab -- a defensive clapback at Karlie for having the temerity to (fairly) criticize his look. It was a jaw-dropping moment, and after getting over the initial shock Kloss handled it with professionalism (which is to say, she proceeded to explain in exquisite and cutting detail why Tyler's look was garbage). Tyler ended up being eliminated, and for the record it was entirely deserved based solely on the merits. His look was terrible, he had struggled all season-long, and this wasn't the first time his mouth seemed to outpace his skills.

Tyler did apologize at the end of the episode. But there is a very popular take around the internet that he said nothing wrong. This reaction is typical:
The idea is that Tyler was actually a bold truth-sayer, holding Karlie to account for ... what exactly? Her brother-in-law's politics? Why? She doesn't share them. She's never defended them. She's never given the slightest hint she's sympathetic to them. She's her own woman, with her own views (as, for that matter, is Joshua Kushner, who is of course not his brother either). Yet of course, that doesn't matter in the slightest, because misogyny. And it sickens me to see how many people seem to think they're boldly speaking truth-to-power when they reduce a woman to her male relatives.

Karlie Kloss is not her in-laws. She is her own person. If she herself has done wrong, call her out for that. But who her relatives are is not her wrong, and if you think smugly reminding Karlie Kloss that she's related to the Trump family as some sort of gotcha is anything other than a dick move you're telling on yourself far more than you are on her.