Just Why Do We Have Employment Discrimination Laws?

A provision in President Obama's proposed American Jobs Act would prohibit employers from discriminating against prospective employees on the grounds that they are currently unemployed. This is in response to reports that some companies are limiting job openings by explicitly turning away job-seekers who are not currently employed elsewhere.

In the Washington Post, Charles Lane takes aim at the proposal, with a hearty concurrence from Jonathan Adler. While I don't have a strong opinion yet on the provision itself (having just learned of it), I have to say I find Lane and Adler to be very unpersuasive critics. Both, in my view, give a short-shrift to the purposes that underlie employment discrimination law -- narrowing its ambition in ways that would not just obviate the need for an "unemployment discrimination" provision, but many other anti-discrimination provisions they claim to support.

Lane makes the case that for some firms in some cases, it is perfectly rational to discriminate on basis of immediate past employment history. For example, a company might prefer a candidate who is up to date on current trends in the industry versus one who would need time to get up to speed. Consequently, we should be reluctant to "assign malicious intent without a lot more specific information", and trust the market to punish firms that do discriminate in an inefficient manner.

Lane's argument could be (and sometimes is) used against all employment discrimination laws (if it's really irrelevant, the market will solve, otherwise, it's rational market choice and should be left alone). Adler at least makes an effort to preserve some of them by analogizing to racial discrimination, where, for much of our nation's history, a company who attempt to hire in a non-discriminatory fashion would be beset by boycotts, intimidation, and violence. Even though racial discrimination is inefficient and race is not relevant to job qualifications, it would persist because no company could break from the status quo and hire racial minorities without incurring huge costs. Employment discrimination laws are justified in such cases to solve a first mover problem (and, notably, companies would prefer such a law to be in place for that very reason).

The first problem with this distinction is that it probably doesn't apply today -- it seems unlikely that in 2011 a company which did hire Blacks would face a coordinated campaign of violence and intimidation as a result -- which means it is hard for Adler to avoid arguing that employment discrimination law as a whole has passed its prime and should be repealed (which maybe he does think, I don't know). But in any event, the second, larger problem is that it doesn't even touch on a different rationale behind employment discrimination laws: that certain sorts of appraisals should be restricted even where they're arguably relevant, either because they're morally inappropriate or because we believe whatever efficiency gains might exist from a free market system are outweighed by the damage done to the discriminated-against group member and general American values of inclusion.

The obvious example on this front is discrimination on basis of disability. One clearly can think of many cases where disability is relevant in an employment decision; and far more where it is isn't so clearly irrelevant so as to demand an inference of "malicious intent". Nonetheless, we bar it anyhow, both because we think the harms it imposes upon the disabled outweigh whatever efficiency gains would manifest from an open market, and because we've made an assessment that such discrimination is morally suspect as a general rule. The ADA, of course, has not been an economic catastrophe -- whatever economic losses it has created by barring "efficient" discrimination we appear happy to absorb as a cost for a more inclusive American society.* Meanwhile, we don't have the ADA because we think employers are malicious -- this is the misleading strawman that tells us that for their to be discrimination, there must be some villain cackling about how much he hates minorities. Not at all -- we often have anti-discrimination laws not because there are evildoers who need to be warded off, but rather because there is a maldistribution of opportunity in our society that we view as unfair.

Now, one element of disability discrimination law (indeed, most employment discrimination provisions -- race is a notable exception) is that if an employer actually can prove that the disability is relevant to bona fide occupational qualification (BFOQ), then that is a valid affirmative defense. So we don't even ban this sort of "efficient discrimination", we just force employers to back it up. This defense apparently is incorporated into the proposed unemployment discrimination provision. Indeed, it appears that provision is stricter still -- barring such discrimination only when it was the sole rationale for the employer decision (thus giving a pass to "mixed motive" cases, where employment status was one reason among others for the employer's decision).

Lane recognizes these caveats but darkly warns that they'll be "endlessly litigated before settled case law emerged" and thus will act as a deterrent to company hiring (Adler concurs). This is unlikely: as noted, the provisions parallel already extant statutory rules in Title VII. Far from being a judicial blank slate, it overlays itself upon anti-discrimination rules that are quite settled and well-known to HR professionals -- they stand out only in that they track the weakest threads of contemporary anti-discrimination law. It would be difficult to imagine a new regulation that would be more easily absorbed by the business community. Adler's assumption that companies will simply avoid hiring people at all for fear of being sued under the new provision seems more than a little melodramatic.

* It is also possible that there is a separate sort of first mover problem being solved here, where it was irrational for any one firm to recalibrate itself to be inclusive towards the disabled but a net utility boost could come once we unlocked the potential of a hitherto underutilized segment of our society. One thing that I think capitalism does very well is that it is adaptable to varying sets of constraints: when a new restriction is imposed, firms don't throw up their hands and give up, they look for new ways to create wealth and utility consistent with the new regime.

Has the Fever Broke?

The situation in Egypt with respect to Israel has badly deteriorated, with Israeli diplomatic staff forced to evacuate after the embassy was attacked by a mob. As distressing as that scene was -- and it was -- it also appears to be non-representative of either the current Egyptian government or the leaders of the protest movement. Indeed, six stranded embassy staffers were rescued by a team of Egyptian commandos, and the Egyptian government has promised to prosecute those responsible for the attack.

Meanwhile, Bibi went out of his way to praise President Obama for his leadership during the crisis:

Netanyahu praised the United States for intervening with Egypt in order to rescue the Israelis. “I would like to express my gratitude to the President of the United States, Barack Obama. I asked for his help. This was a decisive and fateful moment. He said, ‘I will do everything I can.’ And so he did. He used every considerable means and influence of the United States to help us. We owe him a special measure of gratitude,” Netanyahu said.

That's the sort of language that, to me, is designed to extend beyond the proximate events and heal deeper wounds. If so, it is a welcome development and worth noting.

UPDATE: Speaking of fevers breaking, Turkey is backing off earlier threats to send in its navy in escort of new flotillas. Baby steps, people.

Retaliatory Measures

The Israeli foreign ministry is contemplating various retaliatory measures against Turkey after the latter expelled the Israeli ambassador, cut military ties, and is threatening to provide military escort to any new flotilla seeking to break Israel's blockade of Gaza. It's typical Lieberman fare: pugnacious, probably counterproductive, and forcing the Prime Minister's office to distance itself. The main highlights are beginning cooperation with the PKK (a Kurdish terrorist organization working to establish an independent Kurdish state in Southeast Turkey), including potential weapons sales, and flooding the UN with complaints about Turkey's treatment of minorities (such as the Kurds).

I'm obviously not wild about supplying weapons to a recognized terrorist organization. But I will admit to finding ironically appealing sending a convey to southeast Turkey filled with Kurdish-language instruction books and other educational materials geared towards the Kurdish people. Totally non-violent "solidarity" measures, but I guarantee Turkey would flip out (Kurdish language and culture is heavily suppressed by the Turkish government). And hey, if we're talking about supporting national self-determination for local populations under the heel of another power, well, what's good for the goose....

As for the human rights complaints, both Israel and Turkey long have a habit of using such proclamations as proxies for diplomatic conflicts (see, e.g., declarations regarding the Armenia genocide). Still, it's not as if there aren't serious points of concern that deserve public airing: For example, the Turkish prime minister threatened to expel 100,000 undocumented ethnic Armenians if resolutions regarding said genocide were passed (ironic, no?).

On the other hand, there is no reason to think that UN human rights bodies will give Turkey anything but a clean bill of health no matter how serious its violations are. After all, countries in the UNHRC's good graces can get away with quite a bit: Sri Lanka earned laudations for its actions against the Tamils in the midst of killing up to 1,000 civilians a day. There is no reason to think that the UN holds any particular interest in holding Turkey accountable for wrongdoing, and it will be particularly resistant to doing so when it seen as acting on Israel's instigation, so it is not clear what any Israeli complaints would accomplish.

How It'll Go

My girlfriend told me that the early response to Obama's speech from various pundit-types was positive. She was optimistic. I, on the other hand, forwarded this account of what we could expect:

Day 1: Media tells us that Obama's speech was decent, relatively noncontroversial fare -- focusing on bipartisan solutions which have a history of support from both parties.

Day 2: Republicans claim that they've never heard anything more radical in their entire lives, and that basically we're witnessing the rebirth of Maoism combined with Nazism.

Day 3: "Is Obama's jobs plan fascist? The controversy brews!"

Cite as precedent: The individual mandate, "based on 1967 borders".

There's Always Someone

When various rabble-rousers in Egypt were agitating to annul the peace treaty with Israel, I remarked somewhat smugly that "reputation for rabid warmongering aside, there is no political constituency of note in Israel that has called for a repudiation of peace with Egypt. It seems that once Israel makes a final agreement with one of its neighbors, it is capable of keeping it with little fuss from its citizens' end." So of course I read an Israeli editorial in Ynet that proposes doing just that. Because Lord knows if Israel didn't have its share of morons it would just be too easy.

Fortunately, it does seem like this guy is quite the marginal figure -- there remains "no political constituency of note" making this call that I've seen. And even in Egypt, the claim that there is some groundswell support for annulling the treaty is also badly overstated (the "million man march" that was planned to press for canceling the treaty drew terribly). But still, it's just so, so annoying.

Clarification: We're Dumb

I love it when newspapers issue "clarifications" regarding statements that were actually just flagrantly false. Here's USA Today, "clarifying" that a pay raise "could very well bump you into the next tax bracket, possibly leaving you with less money." As Jon Chait notes, there is no situation where a pay raise could leave you with less money due to increased taxes, because our tax system is graduated. Worse yet, the column was entitled "math tips". Come on, people -- even I can get this.

Spy Games

I remember being quite blase when a story broke about Israel spying on the US. I just didn't find it that shocking. Nations -- even friendly nations -- don't take each other at their word. They spy on each other. It didn't surprise me that Israel spies on us, and I'd be shocked if we don't spy on Israel.

And it turns out we do! Again, nothing shocking here. If anything, the most interesting twist is that the leaker was an Israeli Jew working for the FBI on contract, who was worried about what he perceived to be Israel's overly aggressive tendencies (he gave the info he intercepted to a left-wing Jewish blogger). It's such a delicious inversion of the trope that Jews can't be trusted to put American interests over Israeli ones.

Hell's Kitchen All-Stars: Heroes and Villains

Another episode of Hell's Kitchen, another day where Elise is still in the kitchen. Alas. But I did enjoy getting to see some of my old favorites make a return -- indeed, I'd have liked to hear more about where they are now. I admit to not being the biggest Trev fan, but I adore Jillian, Tennille, and even Van (Season 6 was the first one I saw, so it has a special place in my heart). And as for Ben, well, he was the recipient of one of the coldest Chef Ramsey remarks in the show's history (he pulled Ben aside and whispered in his ear "I want you out."), but I guess that didn't do any permanent damage.

Anyway, someone speculated that this episode was a dry run for a potential "Hell's Kitchen All-Stars". Which is an awesome idea on its own. But what would be even awesomer would be to make it into a "heroes versus villains" affair. Two teams of eight, one composed of fan favorites, the other, famous HK antagonists.

So below is my roster for Hell's Kitchen All-Stars: Heroes and Villains. All participants had to at least make the black jackets, but not win, in their respective seasons. Beyond that, it's a purely subjective assessment on my part. So, without further delay....

Heroes

Ralph (Season #1, Second Place)
Julia (Season #3, Fourth Place)
Petrozza (Season #4, Second Place)
Paula (Season #5, Second Place)
Ariel (Season #6, Third Place)
Tennille (Season #6, Fourth Place)
Jillian (Season #8, Third Place)
Will/Jennifer (Season #9, ??? Place -- obviously, one of them won't win, and while I'll be shocked if Will doesn't win this season, I can't just assume it).

Villains

Sara (Season #2, Fourth Place)
Jen (Season #3, Third Place)
Corey (Season #4, Third Place)
Suzanne (Season #6, Fifth Place)
Benjamin (Season #7, Third Place)
Russell (Season #8, Second Place)
Sabrina (Season #8, Sixth Place)
Elise (Season #9, ??? Place, but apparently she doesn't win).

What do you think?

Going Proactive?

In the Jerusalem Post, Dana Gordon makes the argument that Israel should get out in front of Palestine's statehood bid by submitting a statehood proposal of its own, with terms that include the necessary protections Israel needs as part of a final resolution of the conflict. This, Gordon argues, would be a "proactive" move by Israel that would allow it to recapture the terms of the debate and stem the international sentiment that it is the primary obstructionist towards peaceful resolution of the conflict.

I do think this is a decent idea, but I also think Gordon oversells it. First, Israel is not "strong now". Israel currently has a historically -- almost comically (were it not also so tragic) -- weak government that almost certainly could not launch a bold stroke like this on such a short timeframe. Second, Gordon is considerably more confident than I that a rejection by Palestinians and their allies would be considered a reflection upon them. Why? The counterargument is easy -- that Israeli demands were unreasonable or illegitimate, and that Palestinians had every right to reject them in favor of more favorable terms -- terms which would come up for a vote several weeks later when the Palestinian proposal came up. It might muddy the waters a bit, but to cast it as some sort of unstoppable move of moral jujitsu is wildly off the mark.

What the proposal does have in its favor is that, in its roundabout way, it effectively restores a situation of bilateral negotiations between Israel and Palestine. Israel and Palestine would both be putting their terms on the table, and would know where the other stands. The fact that both plans would be subjected to a UNGA vote would almost be a side theater. I care about as much what the U.N. General Assembly says about the Israeli/Palestinian conflict as I do what the Dixiecrat Party has to say about the NAACP. But ignore them. The idea of putting parameters on the table is meaningful, and in that sense I think it is important for Israel to become "proactive" again.

Turkey Ups the Ante Again

After expelling Israel's ambassador, now Turkey is apparently going to send naval escorts to ships trying to break the blockade of Gaza. This, of course, puts them on a military crash course with Israel.

Just so everyone is clear: as a matter of international law, one of the requirements for a blockade to be legal is that it has to be effective. That is to say, the blockade must actually work in stopping all or most shipping into the blockaded area. So, to the extent Israel wants to maintain its blockade, it has to stop all ships trying to breach it -- including those under Turkish military guard.

Meanwhile, Turkey also is promising to take the matter of Israel's blockade to the ICJ. If I were Turkey, and I was set on the course of escalation that they seem to be pursuing, this is exactly what I'd do too. Part of what makes the Palmer Report so notable is its rarity -- a relatively decisive victory for Israel in the international arena. It is a case of Turkey losing a bet where the odds were strongly in their favor. So if I'm them, why not return to the table? The ICJ has not been historically friendly territory for Israel (and in particular, like the UNHRC, it tends to play fast and loose with proportionality claims). If Turkey floods the zone with enough authoritative-sounding international legal opinions, the Palmer Report will become an anomaly and easily dismissed.

But of course, this sort of escalation is dangerous -- even Ban Ki-Moon can sense it. We're getting past the point where this is mere posturing. It is difficult to overstate just how wildly irresponsibly Turkey is behaving. You won't find a more fervent critic of the Israeli foreign ministry than I, but in this case they've made reasonable efforts at rapprochement that Turkey has rejected over and over again. The match is being held to the fuse, and Turkey seems bent on setting the whole region alight.

Sore Losers

In the wake of a comprehensive UN report which largely, though of course not entirely, vindicated Israel's conduct with respect to the Gaza blockade and the flotilla incident, Turkey has expelled the Israeli ambassador. It also announced that it considered the Palmer Report "null and void", which makes sense, as the report sided with Israel over Turkey on most of the key points and its recommendations for reconciliation (a statement of regret) were considerably closer in line with what Israel had offered than what Turkey had been willing to accept.

Turkey has a habit of being more than a little childish in the international arena, so I can't say I'm surprised that their response to a major defeat in the UN is to simply announce that they're ignoring it. Well, let me be a little more charitable: most UN states ignore UN recommendations that go against their interests or conduct, and I can hardly fault them for doing so given that the bodies in question generally lack basic credibility. What makes Turkey unique isn't that it is rejecting a report that went against them; what makes them unique is their utter unwillingness to negotiate in good faith. They weren't looking for a route towards rapprochement, they were looking for a path towards escalation. There were loads of ways Turkey could have indicated its dissatisfaction with the Palmer Report that didn't entail expelling the ambassador of a friendly nation. As is per usual, it isn't Israel who decided to up the diplomatic ante with its neighbors. Turkey made a conscious decision that it wanted to turn a fissure into a chasm, and it acted accordingly.

Palmer Report Largely Vindicates Blockade

The United Nation's long-awaited Palmer Report on the Gaza flotilla incident has now been released, and, from Israel's perspective it has to be seen as a major win. The committee firmly decides that the blockade is legal and notes that an essential element of a legal element is that it has to be enforced consistently (which means intercepting folks trying to breach it, and can entail forcibly boarding resisting vessels). It also notes that the the Israeli soldiers who boarded the Mavi Marmara did face violent resistance. The committee does believe that Israel used excessive force in boarding the vessel and in not pursuing more non-violent interception techniques prior to its forcible boarding action. Statements from the Israeli and Turkish representatives to the commission appended at the end are revealing: the Israeli representative quibbles with the excessive force findings, but the Turkish representative is forced to disassociate himself from virtually the entire document.

I think the committee report is generally solid. It's analysis on the overall legality of the blockade is unquestionably superior to that forwarded by the UNHRC's report, which (and this is true regardless of one's ultimate perspective on the conflict) was frankly an embarrassment to the legal profession (how one even tries to undertake a proportionality analysis without even mentioning the objective in question, see paras. 51-61, compare Palmer Report pp. 38-45, is a mystery). So that's good.

Of course, I remain exceptionally dubious of the utility of these reports or the international law frame at all. The Palmer Report had been delayed several times because everyone believed it would only hurt rapprochement efforts between Israel and Turkey (Turkey is hell-bent on a full apology and an end to the blockade, which Israel is far less likely to do now that a high-profile commission has deemed the blockade legal and vindicated many, albeit not all, of its actions). Folks opposed to Israel's actions will simply cite the UNHRC report instead. Israel knows that, which limits whatever benefits it might reap from citing the Palmer Report. The conflict is political, and will be resolved politically. Whatever formal authority the Palmer Report has (and I'm not sure it has much anyway), formalism is not and should not be the primary lens for examining the issues in this controversy.

UPDATE: This older post by Kevin Jon Heller offers a good foil for some of what I'm trying to say here. Unlike the UNHRC opinion, Professor Heller provides a solid, well-reasoned argument for why the blockade is illegal (which isn't to say I'm necessarily persuaded by it; indeed, Professor Heller is admirably forthright about his uncertainty on the question). Professor Heller's basic claim is that the conflict between Israel and Hamas is not of an international character, and that international law does not contemplate the use of blockades in non-international conflicts.

The Palmer Report considers and rejects that point, instead holding that the conflict between Israel and Gaza is, for all intents and purposes, "international" for the purpose of the law governing blockades:

The Panel now turns to consider whether the other components of a lawful blockade under international law are met. Traditionally, naval blockades have most commonly been imposed in situations where there is an international armed conflict. While it is uncontested that there has been protracted violence taking the form of armed conflict between Israel and armed groups in Hamas-controlled Gaza, the characterization of this conflict as international is disputed. The conclusion of the Panel in this regard rests upon the facts as they exist on the ground. The specific circumstances of Gaza are unique and are not replicated anywhere in the world. Nor are they likely to be. Gaza and Israel are both distinct territorial and political areas. Hamas is the de facto political and administrative authority in Gaza and to a large extent has control over events on the ground there. It is Hamas that is firing the projectiles in Israel or is permitting others to do so. The Panel considers the conflict should be treated as an international one for the purposes of the law of blockade. This takes foremost into account Israel’s right to self-defence against armed attacks from outside territory. In this context, the debate on Gaza's status, in particular its relationship to Israel, should not obscure the realities. The law does not operate in a political vacuum and it is implausible to deny that the nature of the armed violence between Israel and Hamas goes beyond purely domestic matters. In fact, it has all the trappings of an international armed conflict. This conclusion goes no further than is necessary for the Panel to carry out its mandate. What other implications may or may not flow from it are not before us, even though the Panel is mindful that under the law of armed conflict a State can hardly rely on some of its provisions but not pay heed to others. (p. 41, para. 73)

This sort of analysis appeals to my legal pragmatist streak generally. And specifically with it is hard to argue against the Palmer Report's conclusion that the conflict bears the "trappings" of an international one in terms of actually describing the hostilities between Israel and Gaza. Even to the extent he's right, Professor Heller's analysis is another example of formalism and categories triumphing over descriptive and normative realities. That's not a strike against Professor Heller -- he's doing what lawyers do. And perhaps in a world where international law was a stronger force and it didn't seem like all aspects of the Israeli/Palestinian conflict were treated as sui generis anyway, it might be more important to rely on staid legalisms (though I'm not sure why participants in non-international conflicts should never be allowed to resort to blockades anyway. Their omission seems more a function of the rarity of situations where one would make sense -- Israel/Palestine really being "unique" in this regard -- than the result of some normatively sensible distinction). But that isn't our world, and in the world we live in, the Palmer approach seems far, far more reasonable.

It's the Traditional Jewish Pronunciation

Mitt Romney thinks the reason Michele Bachmann is outpacing him amongst GOP Jewish donors is that they believe Bachmann is Jewish. Right. Because while many would be fooled by her constant invocations of evangelical Christianity, true Jews know that the "ch" in "chutzpah" is pronounced as in "chutney".

Are Liberals Slanted Towards the Media?

The Volokh Conspiracy currently is hosting Timothy Groseclose, author of a book purporting to quantify liberal bias in the media. Basically, what he does is attempt to measure by "objective" (I'm going to problematize that below) criteria, how liberal or conservative a given media outlet is, then compare it to a perfectly "centrist" position. The upshot is that the media, under Groseclose's analysis, leans left -- excepting some niche conservative publications (like The Washington Times).

Groseclose provides three different metrics by which one could "objectively" measure the relative bias of media outlets. The first is with reference to think tanks, the second talks about "loaded phrases" (like "death tax" versus "estate tax"), and the third looks at the mention of "equally true facts", one liberal-leaning, one conservative-leaning. The media "scores" on this are then compared to a normalized ranking of Senators and Congressmen, so, we could say, the way The New York Times uses these think tanks, phrases, and facts, is most closely akin to that of Sen. Joe Lieberman (I-CT).

This sort of empirical analysis isn't really my area, but even I spotted some problems (actually, while running a google search for this post, I discovered I spotted some problems with the book's predecessor article in the first month of this blog. Ah, the memories). First, there are some question design aspects that worried me when I took my own "PQ" quiz (it labeled me as liberal -- which is absolutely accurate -- but I have no idea why the questions informed me how Democrats and Republicans voted except to push the data to extremes). Second, I don't think the metric disaggregates enough: my own line is that the media is socially liberal, economically moderate, and hawkish on foreign policy, and that hypothesis isn't really examined.

But the most gaping one is that it doesn't tell us who is leaning towards whom. A relative affinity between what think tanks the media cites, and what think tanks a Democratic Senator cites, may show the media is biased towards liberals. But it could equally show that liberals are more likely to cite independent, dependable think tanks of the sort relied upon by the media. In other words, we can use politicians as independent variables and use them to judge the media. Or we can use the media as an independent variable and use it to judge the politicians. Groseclose's methodology doesn't have us distinguish.

And there's a solid case to be made that the latter is a better explanation. Take Groseclose's own example on the "loaded phrases" front: "death tax" versus "estate tax". Republicans tend to use the former, Democrats the latter. Hence, under Groseclose's methodology, if the media tends to use the latter, it is exhibiting liberal bias. But another explanation is simply that "estate tax" is considered the more neutral, explanatory term, which is why the media uses it. "Estate tax" is, in fact, not loaded in the way that "death tax" is (or something like "plutocrat tax" would be). Practitioners don't talk about the "death tax", they talk about the estate tax. "Estate tax" is the name of the term in U.S. tax code dating back to 1916, "death taxes" refer to something else entirely. The term "death tax" didn't gain any mainstream traction until the Gingrich speakership, when it was part of a specific effort to muster up voter anger against the "estate tax".

Given all that, it makes perfect sense for the media to favor "estate tax" over "death tax". Groseclose's methodology would have us adopt the absurd conclusion that, because both the media and liberals (but not conservatives) refer to the estate tax by its historical and official name, that's a problem with the media's objectivity. One could hardly impoverish the meaning of "media objectivity" more if one tried.

What is most weird about Groseclose's methodology is that, for all its protestations of scientific rigor, it is really dependent on a very blunt sort of relativism. The methods he use only make sense if one effectively believes there is no way of determining which think tanks or more reliable or less reliable, which phrases are neutral and which ones are inciting, which facts are salient and which are irrelevant. Why not? Well, probably because the most obvious way of measuring that would be with reference to how a supposedly neutral arbiter, like the media, and then instead of concluding that there exists a liberal media bias, we instead conclude that, as the saying goes, "reality has a well-known liberal bias."

But if we dispense with the notion that we can evaluate the neutrality of various phrases or researchers on their merits, then it's all politics -- liberal ideas and conservative ideas, liberal phrases and conservative phrases, liberal facts and conservative facts. And the media tends to align itself with the liberals. If there's no truth behind it, then that's no strike against the right. It just marks the media as an adversary.

Again with the Formalist Worries

The forthcoming UN General Assembly vote on admitting Palestine as a state is perhaps the highest profile example of the Netanyahu administration's catastrophic failure at managing both Israel's perception abroad and crafting any sort of progress on resolving the Israeli/Palestinian conflict at home. To be sure, at this stage in the game, there is little any Israeli government could do to stop the vote (though the American threat to slash aid to Palestine might). But this is not something that came up out of nowhere -- it is the upshot of months of blunders and unforced errors by the Keystone Cops which comprise the current Israeli cabinet. I cannot think of an Israeli government in my lifetime which has done more damage to the state of Israel than this one.

But anyway. One of the more 7-dimensional chess worries to emerge from the statehood vote was claims by Palestinian legal adviser Guy Goodwin Gil that the statehood vote could imperil various claims made by Palestinians who do not currently reside in the West Bank or Gaza (the "diaspora", so to speak). In essence, the current state of affairs has the PLO as the recognized representative of the Palestinian people (wherever they live). "Palestine", as a state, would take over that role in the United Nations. The problem, though, is that the state of Palestine has little basis for claiming the right to represent Palestinians who aren't inside its borders (and, to the extent it wants to push for a "right of return" to Israel proper, Palestinians who have no desire to move inside its borders).

Another Palestinian legal adviser, my Illinois colleague (though we have not yet met) Francis Boyle, argues that these worries will not come to pass. His reasons are a little vague, but no matter -- I suspect he is correct. But the reasons why have nothing to do with "all the legal and constitutional technicalities that were originally built into the Palestinian Declaration of Independence," or, for that matter, technicalities in international law.

For starters, it is hardly unknown for states to maintain concern about the status and rights of people -- even non-citizens -- outside their borders that the state nonetheless possesses an affinity towards. Mexico, for example, cares quite a bit about the rights of Chicana/os in the United States -- including those who are United States citizens. That is part and parcel of having nation-states in the first place where, in addition to (hopefully) promising some sort of open, liberal political order, states also hold themselves out as the homeland of Mexicans or the Irish or Jews or Palestinians.

But more importantly, the entire debate relies on formal notions of the structure of international law and the effect international legal machinations of which I'm dubious exert any strong force. Relying on formal rules of international law to exert any constraining force on what international law is said to be in politically "hot" conflicts is almost invariably a mistake. To the contrary, the international legal system is overwhelmingly results-oriented, and in particularly it fervently desires results that redound to the benefit of Palestinians (and to the disadvantage of Israelis). To the extent there might be precedents which seem to imperil a given Palestinian interest, they'll be modified accordingly or cast aside. In the worst case, an entirely sui generis regime will be carved out to accommodate the dissonance (see, e.g., the UNRWA).

To be honest, though, in a sense this is how it should be. Not the part about international law being entirely results-oriented (though honestly, I'm mostly an international law skeptic even conceptually at this point -- it is not a system I think presents a particularly prime candidate for meaningful reform, so I prefer not to try). But the various claims of Israelis and Palestinians shouldn't be extinguished by technocratic reshuffling of categories, and it bothers me how often people try to play this game. One sees it with respect to Jews when folks alternatively label them a "religion", "race", or "ethnicity" depending on which one best defeats any particular Jewish political claim. The idea that the category system might not map onto the territory -- might simply be inadequate to encompass the Jewish experience and respond to just Jewish political claims -- is pushed aside as Jews are forced into a legalistic game whose rules, at best, we didn't write and at worst were written precisely to maintain Jewish subjugation.

And that's silly. I'm no fan of a Palestinian right of return, and everybody knows that it will not be a part of any final peace agreement except perhaps as some limited symbolism. But that end is and should flow out of a negotiated settlement -- it should not be the result of some legalistic trap.

Some Million

While understanding why Israelis might justifiably be nervous about the new government in Cairo, I've always been dubious that Egypt actually was going to repudiate its peace treaty with Israel. First, the minds of most Egyptians are primarily on other things right now. Second, one generally doesn't repudiate a peace treaty unless one is willing to go to war (otherwise, what's the point?), and I don't think the Egyptian people are in any mood for an actual full-blown armed conflict, nor do I imagine the Egyptian military is currently prepared to engage in such hostilities even if the populace were. Finally, and not insignificantly, there is massive international pressure against Egypt repudiating its peace agreement with Israel -- meaning that the Egyptian government won't take that step without some very strong reason (be it irresistible domestic pressure or provocation or what have you).

But one always can worry (and I do think it is notable that, reputation for rabid warmongering aside, there is no political constituency of note in Israel that has called for a repudiation of peace with Egypt. It seems that once Israel makes a final agreement with one of its neighbors, it is capable of keeping it with little fuss from its citizens' end). So I was gratified to find out that the planned "million man march" in Cairo calling for an end to peace with Israel apparently only attracted a few bare hundreds. This doesn't surprise me -- while I imagine the Egyptian street is probably rather cool towards Israel, I also, to reiterate, think they're mostly concerned about other issues right now, and are not keen on reverting back to old patterns where mad gesticulations towards Israel are used to distract them from necessary reforms at home. There, now, that playbook isn't going to fly.

The Difference Between Winning and Not Losing

Caroline Glick has a whiny column up blaming the Israeli media for sabotaging "American media superstar" Glenn Beck's trip through Israel. Her breathless account of Beck's boundless influence ("His calls for action are answered by hundreds of thousands of people. His statements are a guidepost for millions of Americans. Aside from radio host Rush Limbaugh, no media personality in the US has such influence.") manages to omit the fact that he got himself axed from Fox for being just too crazy. But whatever -- Glick is of the persuasion that the vast majority of Israel's "friends" are really enemies, and that the only friends worth having are the one's that cheer alongside whatever policy Avigdor Lieberman bumbles into next (Tzipi Livni, in Glick's telling, is clearly not among Israel's friends). What Israel needs, she said, is for folks to "empower it to defeat its enemies and to stand up to an increasingly hostile world."

Glick's ideological blinders are doing more than deluding her into thinking that Glenn Beck is anything but a deranged nutjob. It also is causing her to seriously misappraise Israel's security situation. Israel can't win its battle by military force. It can lose it that way, to be sure. And that's important to remember. Losing is bad, and the sort of losing we're talking about -- where the state gets wiped off the map and Jewish communal self-determination is extinguished -- would be exceptionally bad. That's why you won't see me get behind notions of throwing up an arms boycott against Israel. We're talking about a country that has been at war a half dozen times in barely 60 years of existence, that is still technically in a state of war with two of its immediate neighbors, that has another regional power promisng to "eradicate" it ... I could go on. Given that, I fully subscribe to the notion that Israel needs an armed forces able to, paraphrasing Sergeant Johnson, "blow up any son-of-a-bitch dumb enough" to try and mess them up.

But that's simply a case of "not losing". Successfully not being destroyed is certainly important, but it's not the end goal. The end goal is for Israel to not have to fight such wars. It's for Israel to be a recognized part of the region, stable and secure as a Jewish, democratic state. And that's something that force can't accomplish. Force can defend against hostile action, but it can't stop hostile sentiment. Force can respond to military incursions, but it can't stop demographic realities. Force can defend democratic institutions, but it can't create universal suffrage. All of these things have to be resolved with political courage, not military might.

These political reforms and negotiations and compromises -- jumping into an unknown future in the hopes that former enemies can become peaceful neighbors -- can be frightening. They are risks. Luckily, Glick and Beck are correct that there exists against many Israelis an incredible reserve of courage that often has been called upon to make these deals. It is just a shame that Glick and Beck seem not to have kept any for themselves.

Criticize This!

A St. Andrews University student was expelled, and convicted under a racial abuse statute, after placing his hands in his trousers, grabbing his genitals, then rubbing it over an Israeli flag a fellow student had in his own room. The student also allegedly made remarks to the effect that Jews had no claim on the state of Israel and that the student was a "terrorist". Another student was acquitted of the criminal charges, but an internal university investigation suspended him for a year.

O'Malley Renews the Push

After Maryland came tantalizing close to instituting marriage equality this past year, Governor Martin O'Malley (D) is gearing up for a renewed push.

It's unclear how, if at all, the political dynamic has changed in Annapolis. O'Malley has some boilerplate about how the trendlines are in our favor (and they are), but there's no word on movement by any particular state legislator. Of course, the bill really just failed to pass last time, so even assuming no change we're still in toss-up territory.

I have to add my kudos to Governor O'Malley, who is starting to demonstrate real leadership on the issue. It isn't just "if it passes, I'm willing to sign it" -- he's made it known that he completely and unambiguously supports the legislation, and thinks it should pass. So good for him. And hopefully, this time Maryland will indeed do the right thing.

A War They Can Get Onboard With

Lauren Booth is a journalist for Iran's Press TV and a pro-Palestinian activist (in much the same way that the Kach Party consists of "pro-Israel activists"). She's mostly known for being the half-sister-in-law of Tony Blair. Like many folks of her particular political bent, she is affiliated with various putatively "anti-war" groups: Stop the War Coalition, Media Workers Against the War, etc..

But let it never be said she's not a pragmatist about it. For Lauren Booth appears to have found a war she can support: Urging Israel's Arab neighbors to attack it (again):

It is time, Brothers and Sisters, for Al Quds to be liberated. For Islam and people of the world who wish to pray there to the one God. And we say here today to you Israel, we see your crimes and we loathe your crimes. And to us your nation does not exist, because it is a criminal injustice against humanity. We want to see Lebanon, Jordan and Egypt go to the borders and stop this now. Liberate Al Quds! March to Al Quds!

If asking Lebanon, Jordan, and Egypt to "march to [Jerusalem]" (Al Quds is the Arabic name for Jerusalem) isn't simply a pro-war rallying cry, I don't know what is. Other speakers clarified that, yes, they were talking about sending in the army:

You can’t take an army, which is a nation’s army, a terrorist nation’s army, and defeat it with sincere small fighters. It needs some of those states around to release their armies to burn that land and then that region will see peace like it had in the past. Because the only time that land has seen peace between Muslim, Christian and Jew living side by side was when sincere Islamic rulers ruled with justice.

The point is that the "anti-war" commitments of folks like Booth extend precisely as far as their realization that sometimes war has the salutary impact of killing Israeli Jews.