He Said She Said

UC-Irvine Law Dean and noted constitutional law scholar Erwin Chemerinsky critiques originalism, and several prominent originalists including Ilya Somin, Michael Ramsey, and Mike Rappaport respond. The argument they are most disdainful of is Chemerinsky's assertion that the constitution's exclusive use of "he" to refer to the President and Vice President indicates that only men can hold those positions under the original meaning of the document. "Uncharacteristically weak," declares Somin, while Ramsey labels the claim "preposterous," an argument "so poor I wonder if someone else wrote it and attached his name to it." They both contend that until quite recently "he" was used as a gender-neutral pronoun, so it is impossible to infer that its usage in the constitution was meant to render the executive branch gender exclusive.

While they may ultimately be correct, I think Chemerinsky's argument has more heft to it than they admit. It was of course common practice to use "he" as a general pronoun, though whether that was because it was understood to include women or because it was understood that women were not relevant to the conversation is less obvious. "He" in relation to political positions could just as easily stem from a widely shared understanding that women were not political subjects. Ramsey musters some intertextual evidence to support his position -- that when Article II, Section 1 delineates the necessary qualifications for a President it speaks of a "person" rather than a "man." And that has some persuasive force, but the problem is that the same archaic convention which allowed "he" to stand in for men and women also allowed for "person" to refer only to men. There are plenty of occasions where dead white men spoke of humanity or people with the assumption and understanding that it was only men about which they spoke.

More broadly, while it may be true that "he" could at the time have been understood to include both men and women, it also certainly could be used to refer only to men (how else would one do it?). Whether or not it was taking the former meaning or the latter is an exercise in interpretation, and one that depends on context. "Men" was similarly generic in character to "he" at the dawn of our nation, yet it is hard seriously contend that the phrase "all men are created equal" was meant to include women. Would citizens during the framing era have understood "he", in the context of who the Constitution contemplated could be President, to be inclusive of men and women alike, or just men? I would wager the latter.

Now arguably this doesn't close the door on originalist analysis of the clause's meaning. Arguably, the popular belief that "he" in this context referred to men and men alone was only the original expected application of the clause, not its original semantic meaning. This is a distinction Jack Balkin draws, and not all originalists accept his typology. But working off it for a moment, it's unclear. Words and phrases often can have very different semantic meanings at the same time period (for example, "hot dog" can mean either a tubular meat or a show-off). Where multiple meanings exist at a given time, is a generally understood consensus that one particular definition attaches in a particular context a case of "expected application" or "semantics"? Not an easy question, in my view.

This is not to say that Chemerinsky is necessarily right and his critics wrong. I'm not an originalist, so I hesitate to make definitive pronouncement on what results originalism yields (in part because I think they're often more indeterminate than its proponents would care to admit). But I think his point has more gravity than its given credit for, and citing the linguistic convention that "he" could have been in that era a gender-neutral pronoun does not actually get us that far.

UPDATE: Relevant to this discussion is an interesting history of gendered pronouns in the English language. Apparently the use of "he" as a gender neutral pronoun was first proposed in 1745, so it was certainly accepted by the time of the Constitution's drafting and probably understood as a possible meaning in the abstract, though again not necessarily in the context of who could serve as president.

YOLO?

I have a question for my readers: Do you feel a sense of continuity in your life, or do you feel disconnected from your self of 5 or 10 or 15 years past? As for me, I don't feel any strong disconnect between my 15-year old self and my 27-year old self. I think I think the same way, I have many of the same interests, and similar shortcomings (whether that means I was a very mature 15-year old or am a very immature 27-year old I leave to others). It's not that nothing has changed at all, but it feels like change within a single continuity, not like the younger me was a different person at altogether.

But I often hear people talk about how they were "a totally different person at 15," how that apparently separate human was "such an idiot." Sometimes it comes in the form of supporting more paternalistic protections for younger persons -- "when I was 15, I thought I was an adult and in control, but I actually had no idea what I was doing." When I hear someone say that at 25, I always assume they will say the same thing about their 25 year old self at 35. Somewhere I imagine an eighty-year old woman telling others at a nursing home how at 70 she was such an ignorant little tart.

In any event, that's my vantage point, but I gather it's not the only one. So -- do you feel a sense of continuity with your younger self, or do you view him or her as a distinct and separate entity from who you are today?

More Than One Star

Governor Rick Perry (R-TX) has been doing a nationwide swing to promote the virtues of his policies in the Lone Star state. Maryland Governor Martin O'Malley (D) reminds him that being 49th in high school graduation rates and 50th in health insurance coverage is nothing to brag about.

[W]hile Perry likes to promote the job creation in Texas during his time in office, he leaves out a critical point: The jobs “miracle” he touts is driven by low-paying, non-sustainable jobs. This year, Texas — tied with Mississippi — leads the nation for the percentage of hourly paid workers earning equal to or less than the minimum wage. More than one in 10 workers nationwide earning at or below the minimum wage works in Texas.

The fallacies of his argument don’t end there. Even on Perry’s preferred metric for comparison — taxes — businesses fare quite well in Maryland. According to the Anderson Economic Group, Maryland’s businesses have the seventh-lowest business tax burden, while Texas ranks 17th. Additionally, both established firms and new investments do well in Maryland. The conservative Tax Foundation ranks Maryland as having the eighth-lowest tax burden on mature firms, while Texas ranks 12th. Ernst and Young ranks Maryland as having the 12th-lowest tax burden on new investment; Texas has the 20th-lowest burden.

My administration has made Maryland a better place to do business by focusing on middle-class and sustainable jobs. In addition to being No. 1 in median income, the median wage for hourly workers in Maryland is $14.17 vs. $12.00 in Texas, which lags the national median of $12.80. And while Texas leads the nation in minimum-wage workers, the U.S. Chamber of Commerce ranks Maryland first in the nation in innovation and entrepreneurship, second in concentration of science, technology, engineering and math jobs and third for its “talent pipeline.”

How did we make this possible? By investing in our schools, which Education Week has ranked No. 1 in the nation since 2007. Maryland did more than any other state to hold down rising college tuition costs. We modernized infrastructure and invested in growing sectors such as biotechnology and life science, green technology and clean energy, aerospace and advanced manufacturing.

These investments didn’t come without a price. First, my administration cut more in state spending than any governor in Maryland history. We also had to ask the wealthiest Marylanders to pay a bit more by making income taxes progressive for the first time in state history.

Even though I now live in Virginia, I'm still a Marylander at heart (and a product of those top-ranked public schools, to boot). Governor Perry might not want to be so eager to put his state side-by-side with mine. Some states deserve more than a single, lone star.

Song of Songs

I've often joked that the Cantor is my ultimate synagogue nemesis -- were it not for Cantors showing off, the service would end in half the time and I'd be that much closer to the delicious bagels at the reception. To be fair, I'm a tough critic to please -- were it up to me, every song would be sung exactly as it was when I was growing up, with no alterations whatsoever. This may run in the family -- at my old synagogue, I distinctly recall that anytime the Cantor experimented with a new melody, my dad would start loudly singing the old one in reprimand. It never caused the tune to be changed, but perhaps it served as a deterrent.

Whenever I go to a new synagogue, I'd always grouse about how I preferred the singing at my home congregation. As I grow older, even the tunes at my home synagogue grow more unfamiliar, which I don't like. Our new Aleinu sounds like a funeral dirge, for example. But hearing that new tune (and others) made me wonder -- just how old are the songs we sing? Not the words, but the music? Are they hundreds of years old, recognizable in the Shetls of Europe or the villages of the Middle East? Or are they all reinvented anew by each generation of Hazzans? Do we have any way of knowing? I doubt songs such as these were ever committed to a score. It seems like one of those mysteries that may be unknowable. But maybe not -- historians have sussed out stranger facts.

One More Fast

It has been a busy few weeks hasn't it? Packing for my move, driving from Minneapolis to DC, Rosh Hashanah, moving into the new apartment, trip to Vegas, unpacking boxes ... it goes on. Today was supposed to be cable and internet installation, but, you know, it's Comcast, so obviously that didn't happen (I'm using the internet in the resident lounge, which was its own special saga). Tomorrow is Kol Nidre and Yom Kippur is on Saturday. I'm hoping to duck out of the break fast to watch the Mayweather/Alvarez PPV -- I bet a total of $80 on that fight ($40 on Mayweather and $40 on it to go 12 rounds).

How was Vegas? Well, on the gambling side, let's just say that I'm suddenly very glad to be starting work at a big DC law firm. But the food was magnificent. In addition to Gordon Ramsay steak, we also ate at Central (I'd been to the one in DC and knew I liked it), Noodles (the penang fried kway teow needed some soy sauce and sriracha, but was fantasstic once I mixed those in), Gordon Ramsay's BurGR (delicious, even it did take me way too long to recognize the play on the spelling -- we're going to try to make our own devil dogs), Julian Serrano's Tapas (awesome), and D.O.C.G. (excellent homemade pasta).

Still, I'm quite tired, and ready for all the chaos to end. We probably have to do some shopping on Sunday (our dresser didn't survive the move), but after that it's clear skies ... I hope.

Review: Gordon Ramsay Steak - Paris Las Vegas

In my life I have been to many nice steakhouses. The Palm, Morton's, the Prime Rib, the Capital Grill, Manny's, Chicago Chop House, Ray's the Steaks, BLT Steak, J & G Steakhouse, among many others. Back when Jill was a vegetarian, we actually used to go to steakhouses relatively regularly, since we discovered that steakhouses had the best vegetables. They'd invariably give you a massive baked potato and a forest of broccoli, making Jill a very happy camper. We even had an idea for a book where we would drive across the country visiting America's great steakhouses, where Jill would do an anthropological study from a vegetarian perspective (I'd provide comic relief as the dumb, carnivorous boyfriend). It was to be called Meat and Potatoes. Unfortunately, Jill is back on the meat train so the concept's gimmick is gone. But we still liked the idea.

Anyway, the point is that while I'm normally not much of a foodie, steakhouses are one area I do feel qualified to talk about.

We're in Las Vegas for my brother's 24th birthday, but Gordon Ramsay Steak was my dinner selection. Jill and I are huge fans of Chef Ramsay -- we religiously watch Hell's Kitchen and Masterchef, and have checked out his other shows too. Ramsay has three restaurants in Vegas: the Pub and Grill at Caesar's, Burgr at Planet Hollywood (where we're going for lunch today -- incidentally, it wasn't until the airport until I got the play on words), and Gordon Ramsay Steak at the Paris. The latter was the easy choice -- in addition to the aforementioned love of steak, the head chef is HK Season 10 winner Christina Wilson. Unfortunately, she's on vacation this week, so we didn't get the chance to meet her. But it was still neat to be in her restaurant.

GR Steak is right on the floor of the Paris casino. As we were walking up, a troupe of showgirls in tight football-inspired outfits came marching past blowing whistles and waving at the crowd. Though probably a coincidence, I choose to believe this is how they greet all incoming reservations. The restaurant is separated from the casino by a short tunnel (chunnel?) which represents the move from Paris to London. Thematically the decor is heavily based on red and black -- my two favorite colors -- so I already had warm feelings. The restaurant is two stories high -- a bottom floor which is wide open to the kitchen and very boldly designed, and a top floor which has a balcony and some more private, quieter rooms (we ate in the latter). The layout will be quite familiar to Hell's Kitchen fans.

On the way up, our hostess pointed out an art piece on the ceiling that she said "was inspired by the way Chef Ramsey moves his hands while creating his famous beef wellington". I thought the piece was pretty cool, but I couldn't begrudge my dining companions a bit of an eye roll. At first, this looked to be a running gag for the evening -- the folks at GR Steak were very anxious to highlight Chef Ramsay's personal involvement. There was Chef Ramsay's "personal" five course tasting menu, which was "personally designed" by Chef Ramsay, and if we got it we would get a photograph "personally signed" by Chef Ramsay. The times "Chef Ramsay" came within three words of "personally" rapidly started to reach a breaking point, and I couldn't decide if they were offensively trying to impress the rubes or defensively trying to assure us that Chef Ramsay lent more than his name to the establishment. I was actually mildly intrigued by the tasting menu, as it was clearly inspired by the Hell's Kitchen menu. Unfortunately, being unable to eat either a lobster risotto or scallops, it wasn't worth it. I'll have to get an autographed photo personally signed by Chef Ramsay some other way.

Now to the important part: the food. The opener was a variety of complimentary artisanal breads, which were all quite good. Appetizer-wise, I tried the ale onion soup and a caesar salad. The soup was, as my brother put it, very "beery" and thus more bitter than your typical onion soup. The caesar was delicious but simple, save for the included scotch egg. Overall, the appetizers were perfectly good, but did not distinguish themselves from any other nice steakhouse which does the same thing. I should also mention here the beer, wine, and cocktail list, which came on an iPad. We're not a big drinking family (and Jill hit her limit when we found a bar earlier that afternoon that offered BOGO cosmopolitans), so only my mom and my brother got drinks. My mom's Vodka Martini was a fine if normal example of the genre, but my brother confirms his red wine (I believe a Malbec) was superb.

We all ordered steak (except my mom, who foraged off the rest of us): one filet (I got American prime beef, they also offered American Kobe), one beef wellington (Jill), and two ribeyes (my dad and brother -- dad got his Pittsburgh-style). But before I talk about the steaks, let's talk about sides. Typically, steakhouse sides are massive, but, with the exception of a loaded baked potato the size of a landmine, these weren't. Our other three sides: sauteed spinach, sauteed mushrooms, and potato puree, were all reasonably portioned, but definitely not "family style" (which is to say, they were perfectly able to be spread out amongst the whole family, because "family style" usually seems to assume the Duggars are dining out). The table consensus was that the baked potato and sauteed mushrooms were amazing, the spinach okay, and the potato puree good but a little difficult to eat given how gloopy it was. Again, judging on appetizers and sides, thus far GR Steak is well within the wheelhouse of a nice steakhouse, but doesn't distinguish itself.

But then we get to the steak. Oh, the steak. All four of our steaks were ordered medium rare. All four came out a perfect medium rare. Seriously, these were basically the platonic ideal of medium rare. It might not be an exaggeration to say this was the best cooked steak I've ever had. The filet had a peppery glaze on top which would not have been my personal choice (I'm very no-frills when it comes to my steak), but was nonetheless delicious. I also got to try the wellington and the ribeye, and both were exceptional. The ribeye, in particular, seemed to be somehow almost as tender as the filet, which is a remarkable accomplishment. All four of us easily polished off our entire plate. Literally our only complaint was the oddly-shaped steak knives (the handles are perpendicular to the blade), which were hard to hold (especially it seemed for lefties).

At that point myself, my brother, my dad, and Jill were all prepared to happily enter a food coma. My mother, however, had not gotten her own entree and thus was interested in dessert. Since we were nominally celebrating Jason's birthday, we acquiesced, and the waiter was quite emphatic that we get the the Sticky Toffee pudding, which is apparently their signature dessert. It was great -- I'm not usually a fan of toffee, and the "brown butter ice cream" served to look like a stick of butter initially raised an eyebrow, but everything came together beautifully and topped off a delicious meal.

So to sum up: For me, my top two steakhouses have always been The Palm and Manny's in Minneapolis. The question is whether GR Steak could topple these venerable institutions from their perch. And for me, it's too close to call. On the one hand, I definitely prefer the sides, soups, and salads at Manny's and the Palm (if GR steak showed off the platonic ideal of a medium rare, the Palm offers the platonic ideal of a caesar salad). And as noted with respect to the filet I'd rather have it without the pepper glaze. On the other hand, ribeye-for-ribeye I think GR Steak smokes anywhere else I've ever been. And again, each steak was cooked so absolutely perfectly I was left in awe.

But who needs to choose? Manny's is delicious, the Palm is delicious, and Gordon Ramsay Steak - Paris is delicious. Any one of them will leave you going home happy, and all of them should get a spot on your must-try list.

Ambience/Decor -- 9
Service -- 8.5
Appetizers -- 8.5
Sides -- 9
Steak -- 10
Dessert -- 9
Overall -- 9

Appeal to Procedure

Some of you may have heard that a Montana judge imposed a thirty-day sentence in a statutory rape case where s teacher slept with a 14 year old student. Some of you may have then read that the judge was planning to revisit that sentence. And then finally some of you may have read today's headline, which states that "Montana high court blocks hearing on resentencing rapist of girl". And you might have every right to be upset -- except this headline is misleading.

The ruling here does not necessarily mean that the original sentence will stand. Rather, it is a very mundane point of procedure: the trial court can't revisit the sentence at this stage; rather, the remedy is for the appellate courts to review the sentence. As both the prosecution and the defense argued, allowing the trial court to redo its sentencing would dramatically muddy the legal waters on appeal and make it far harder for the appellate courts to provide a full and fair review of the original (or revised) sentence.

So boo to misleading headlines, but everybody else take a deep breath. You may need to save your outrage for later, but at least keep it in the pocket for now.

Two Tablets

L'shana tova, everyone. Two article on Tablet caught my eye. The first is a joint review by David Mikics of two books on anti-Semitism: David Nirenberg's "Anti-Judaism: The Western Tradition" and Daniel Jonah Goldhagen's "The Devil That Never Dies." The former I have and am now even more inclined to read, the latter I do not own and now know I need not intend to. And that's what book reviews are for, are they not? Check it out.

The second article is by Yair Rosenberg, responding to Peter Beinart's recent essay on the Jewish cocoon. I don't dislike Peter Beinart per se, but I agree with Jon Chait that he tends to take good points a step to far. In particular, he is far to enamored with the idea that he is a solo Jeremiah who is the first (and thus far only) prophet to notice the doom approaching the Jewish people. In any event, Rosenberg notes that while it is perfectly true that many Jewish organizations have historically been closed off from Palestinian narratives, that is becoming less true every year. At the same time, the burgeoning "anti-normalization" wing of Palestinian solidarity politics means that Jewish/Palestinian dialogue can't occur even if Jews want it to, because such talks are considered to be endorsements of the basic legitimacy of Jewish national aspirations. Hence we see how the BDS movement has made organizations like One Voice its public enemy number one, precisely because such organizations could provide the momentum for a grassroots settlement that would respect Jewish and Palestinian rights alike -- the anti-thesis of the maximalizt position taken by the BDS campaigners. As Rosenberg stresses, this is not to denigrate the obligation of Jewish groups to engage in dialogue; it is merely to stress -- as it is regrettably often necessary to do -- that the reason such dialogue is not proceeding is not simply because of intransigence on the Jewish side.

Ronald Coase RIP

University of Chicago Law Professor and Nobel Laureate Ronald Coase died yesterday at age 102. Coase was hired by the University of Chicago in 1964, despite not having a law degree. While such hires are not uncommon today, this was basically unheard of at the time. It was definitely a risk that paid off, however, as Coase is credited with basically inventing the Law & Economics movement (a feat all the more impressive given that he did it in what was basically a throwaway paragraph in a piece otherwise about telecommunications law).

Coase's two best known works were "The Nature of the Firm," first published in 1937 (though based on a lecture he delivered in 1932), and "The Problem of Social Cost," published in 1960. The latter is the most-cited law review article of all time. He was awarded the Nobel Prize in 1991, in substantial part because of the massive impact of these articles. The delay in recognition was not lost on him. As he remarked at the time: "It is a strange experience to be praised in my eighties for work I did in my twenties." Speaking of bons mots, Coase is also credited with coining the popular statistics maxim: "If you torture the data long enough, it will confess."

The "Coase Theorem" (he didn't name it), derived from his body of work, is perhaps Coase's most enduring contribution. In a nutshell, the theory holds that if a right to avoid a harm is tradeable and there are zero transaction costs, the market process will result in an efficient allocation of rights regardless of their initial distribution. The Coase theorem is often described as one of the most misunderstood and misapplied concepts in law. Cognizant of these risks, I resolved to not try to apply it at all -- a bold decision for a University of Chicago law student. Nonetheless, based on my classroom recollections I think Wikipedia's illustration of the concept is solid:

For example, two property owners own land on a mountainside. Property Owner #1's land is upstream from Owner #2 and there is significant, damaging runoff from Owner #1's land to Owner #2's land. Four scenarios are considered:

(1) If a cause of action exists (i.e. #2 could sue #1 for damages and win) and the property damage equals $100 while the cost of building a wall to stop the runoff equals $50, the wall will probably exist. Owner #1 will build the wall, or pay Owner #2 between $1 and $50 to tolerate the runoff.

(2) If a cause of action exists and the damage equals $50 while the cost of a wall is $100, the wall will not exist. Owner #2 may sue, win the case and the court will order Owner #1 to pay #2 $50. This is cheaper than actually building the wall. Courts rarely order persons to do or not do actions: they prefer monetary awards.

(3) If a cause of action does not exist, and the damage equals $100 while the cost of the wall equals $50, the wall will exist. Even though #2 cannot win the lawsuit, he or she will still pay #1 some amount between $51 and $99 to build the wall.

(4) If a cause of action does not exist, and the damage equals $50 while the wall will cost $100, the wall will not exist. #2 cannot win the lawsuit and the economic realities of trying to get the wall built are prohibitive.

Importantly, the legal allocation of rights does affect the distribution of who has to pay how much.

Coase continued to write well past the century mark -- his last book, How China Became Capitalist, was published only last year. He was a giant in his field, a giant in academia in general, and his contributions will be missed. As a friend of mine said: "May there be no transaction costs in heaven."

Greetings from (near) the District!

Happy Labor Day! We're in DC (well, technically Bethesda), staying at my parents house for the next few days as the moving truck catches up. But soon we'll be moving into our DC (well, technically Arlington) apartment. This, of course, is the first time I've really "lived" in the DC area (not counting some stints of summer employment) since I left for college. I'm very excited.

Go East, Young Man

My nine-year midwestern sojourn is coming to an end, as I move from Minnesota back to the DC area today. "Today" is a slight misstatement, since we're driving -- we'll go Minnesota to Chicago tonight, Chicago to Pittsburgh tomorrow, and a short hop from Pittsburgh to Washington Sunday morning.

Anyway, I'll be mostly out of contact during this time, but when I emerge, I'll be an east coaster once more.

"I am happy about this participation in words of Torah"

I read about this speech when it occurred, but I never was able to find an English translation until now. The speaker is Ruth Calderon, MK from the Yesh Atid party and a secular Talmudic scholar. For her inaugural speech before the Knesset, she decided to deliver a lesson on Talmud. That Calderon, a secular woman, would deliver such a speech was bold enough (and it even included a brief interplay with the head of the ultra-Orthodox Shas faction). But the speech itself, it turns out, was also a thing of beauty. I highly encourage you to click through and read it for yourself.

UPDATE: Now includes real link!

Defeat from the Jaws of Victory

The township of Southampton, New York, recently denied a request by the local Jewish community to put up an Eruv. For those of you who don't know, an Eruv is an enclosure, generally made through wire or string, which permits Orthodox Jews to do certain activities on Shabbat that would otherwise be forbidden to them (the fiction is that within the Eruv one has one cohesive "space", so carrying objects is characterized as carrying them within the Eruv, rather than between, say, two houses). I generally support accommodations such as these -- they cost little, and signal respect and accommodation toward minority communities. At the same time, American law is generally does not require such accommodations -- it is generally a legislative prerogative as to whether to grant or withhold the accommodation, and don't need to give much of a reason why. While the federal government and some states (I don't know if New York is one) have heightened protections for religious minorities, the baseline is basically that so long as the motive itself isn't unconstitutional (such as hostility towards a particular faith) and isn't wholly arbitrary or capricious, a decision to deny even a relatively minor accommodation such as this would stand.

So basically, Southampton is playing the game on easy. Just give a reason that isn't utterly ludicrous and doesn't openly flout the Constitution. You can do it right?

The zoning board had ruled that the eruv — PVC poles on 15 of Southampton Township’s telephone poles — would “alter the essential character of the neighborhood.”

In addition, the board took theological issue with the concept of the eruv itself, calling it a “loophole” that is “motivated by the personal desire … to be freed from the proscriptions of Jewish law,” the New York Post reported.

The "change the character of the neighborhood" argument ... I dunno. It might fly, given the deference that "arbitrary and capricious" implies. But the second argument about an eruv being a theological "loophole" is a huge mistake by the city that may doom their defense strategy.

It's not that their theology is wrong per se -- I've often joked that Orthodox Jews devote half their creative energies to coming up with ever-more restrictive religious proscriptions, and the other half to inventing increasingly creative ways to circumvent them. The problem, rather, is that they were doing theology at all. And that is a huge First Amendment no-no. Perhaps the clearest and most obvious Establishment Clause violation is the state taking it upon themselves to decide what tenets are valid aspects of a religious faith and which ones are "loopholes."

Without that statement, I'd guess Southampton would have had a fighting chance in court. With it -- good luck.

People I Don't Listen To

I don't have strong feelings regarding what we should be doing regarding Syria. People who I trust are similarly ambivalent, which makes me feel more secure in my own uncertainty. But there are several classes of person who I definitely don't trust:

* People who are similarly unsure regarding what we should be doing in Syria, but are quite certain that Obama should be impeached over whatever we do (or don't do).

* People who support bombing Syria because their entire foreign policy could be summed up in a Michael Bay movie.

* People who aren't sure what's going on in Syria, but are absolutely sure that the Jews are behind it.

Fortunately, this significantly narrows down the class of persons whose opinions I need to consider.

History's Top Shot

Poor Chris Cerino. In addition to having a name that's its own elementary school nickname ("Chris Cerino ... the Chris-inator ... Chris-man...."), he was runner-up on Top Shot again. It was a little hard to watch, given that you could see he really wanted it a lot more than the younger, more laid-back Phil. But so it goes. Congratulations to Phil and all the competitors on a great season. Anyway, now that Top Shot may well have fired its own "last shot," I endorse this Slate post whole-heartedly, especially the part where it serves as an introduction a non-gun-owning liberal like me to healthy gun culture. It really is a great show and a ton of fun to watch. My full recommendation.

The Qualified Candidate

Eugene Volokh points to an interesting LA Times piece about a Black student struggling at UC-Berkeley, saying it is a good illustration of Rick Sander's "mismatch" hypothesis (Volokh also links to Heather MacDonald's discussion of the piece, but I don't view MacDonald as a serious writer so I'll confine my discussion to Volokh). Volokh notes, correctly, that the plural of anecdote is not data, and that this story is merely an illustration of an alleged phenomena whose veracity is dependent on the legitimacy of Sander's arguments. And as a story, it is an interesting one -- but Volokh's read of it seems rather motivated to me, if I do say so.

The two main characters in the LA Times story are Kashawn Campbell and his best friend at Berkeley, Spencer Simpson. Campbell's struggles at Berkeley -- despite herculean efforts, he can't pass his Freshman writing course, and narrowly avoids flunking out entirely -- frame the piece and are said to exemplify the "mismatch" problem created by racial affirmative action programs. The mismatch hypothesis, stated broadly, is that allegedly non-meritocratic admissions programs end up hurting their supposed beneficiaries by placing them at institutions where they're destined to fail. In Campbell's case, for example, Volokh argues that he's clearly a bright, talented kid who would do great at Cal State but instead is almost failing out of Berkeley (I've discussed the mismatch hypothesis more generally here and here).

On closer examination, though, the analogy falters quite a bit. To begin, as the LA Times notes, Berkeley cannot actually use race-based affirmative action due to California's Proposition 209, which bans the practice. Instead, Berkeley has a program that seeks to admit students from "every California high school." This does have the effect of increasing racial diversity, due to substantial continued segregation in high schools. But it is not in itself a racial affirmative action program, and no student is advantaged on basis of race. Rather, it advantages students from impoverished, traditionally underperforming schools -- but this sort of "affirmative action", favoring students who are from bad neighborhoods and overcame rough backgrounds -- is often touted as the preferred and legitimate alternative to racial affirmative action (I don't know if Volokh approves of such alternatives to race-based affirmative action, and it's notable that Sander's mismatch arguments would seemingly apply just as strongly to such a program or other more explicitly "class-based" affirmative action initiatives, but I've never heard it used against such programs. Volokh does make reference to "white students who graduated from high school without the academic preparation needed to succeed at Berkeley" implying that they wouldn't benefit from this sort of program -- to the extent their lack of preparation was because they excelled at an underperforming school, as did Campbell, it's unclear why they wouldn't also be a valid candidate).

Moreover, even putting race aside, Campbell appears to be a conventionally attractive admissions candidate. Straight-A student, second in his high school class, impoverished background, overcame considerable adversity, (probably, given what his high school teachers said about him) superlative letters of recommendation. Volokh assumes that his SAT scores weren't that good -- only because they weren't mentioned -- but even stipulating that, unless we're going "SAT score or bust" (which nobody actually advocates) he still looks pretty good. That he's struggling is obviously unfortunate, but it seems less a product of affirmative action and more a problem of the normal indicators not telling the whole story. Indeed, from what we know it seems that Campbell's admissions profile is little different from that of Simpson, who is also Black and also grew up in an impoverished neighborhood, but is reportedly breezing through Berkeley. What distinguishes the two (other than Volokh's hypothesis about SAT scores) is that Simpson's family, despite being from a rough neighborhood, had considerably more cultural capital than did Campbell's -- something that's important, but doesn't show up on the average college application.

There are also hints in the story that more is going on here than Campbell being "unqualified." It is very evident that he's suffering from cultural shock. He feels pressure to emulate a particular style of writing he doesn't have a good grasp on, which exacerbates his general struggles with long essays. He has a very thin support structure. He's using his scholarship money to support his mother. And he reports that he doesn't feel welcome as a Black student on campus:

"Sometimes we feel like we're not wanted on campus," Kashawn said, surrounded at a dinner table by several of his dorm mates, all of them nodding in agreement. "It's usually subtle things, glances or not being invited to study groups. Little, constant aggressions."

I highlight the part I highlight because of they way Volokh responds to this claim:

I wish all the best for Campbell, who, as I said, sounds studious and excited about learning. But would you be more likely to invite to your study group (1) someone who is in danger of failing out because he’s academically unprepared for the classes he’s taking (and who might be signaling this lack of preparation based on his comments, in-class or outside), or (2) someone who you think is roughly at your level of skills or higher? I don’t think it’s exactly “aggression,” “little” or otherwise, for people to choose option 1.

This would be uncharitable even if were just Campbell making the claim. But it isn't -- it is a sentiment apparently widely shared amongst Black students at Berkeley, which makes it difficult to attribute to not wanting to study with a particular struggling student.

As for the remaining culture shock problems, they are undoubtedly issues that retard the progress of students from nontraditional backgrounds. But they're not an issue of qualifications, and unless the solution here is "elite universities should only admit students from elite prep schools and suburban public high schools", it's a problem that top universities are going to have to address.

Finally, let's turn to Volokh's suggestion that Campbell would be a better "fit" at Cal State because that school "is more likely to spend more time remedying the gaps in Campbell’s education." But if Campbell isn't the average UC-Berkeley student, he isn't the prototypical Cal State student either. Cal State-Los Angeles admits over two-thirds of its applicants, who have an average GPA of 3.14 and an average SAT (math plus critical reading) of 880. Campbell had a GPA of 4.06 in high school and graduated second in his class. With all due respect to CSLA, the remedial education programs at that school are designed to turn bad students into passable ones. Campbell is not a bad student -- by all accounts he is bright, intellectually curious, and exceptionally hard-working. The "gaps" in his education are not the same as those typically remedied by CSLA. And CSLA certainly can't provide the job opportunities, alumni networking, or intellectual stimulation that Berkeley can. The "mismatch" problem, it seems to me, is that there aren't schools "matched" to someone fitting Campbell's profile -- someone who I bet could in terms of natural talent keep up with his Berkeley peers were it not for the deficits he incurred from his background and from being such a clear cultural outlier at his university. The solution to shunt all people like Campbell into the Cal State system is not a solution at all.

I've often remarked that we don't think in mismatch terms in any context except affirmative action. Nobody ever warns the wealthy suburban kid straining to get into his "reach" school that he may be setting himself up for failure. In general, we believe that more rigorous schools are better and that its a benefit rather than a curse to be academically challenged. Campbell, of course, could no doubt transfer to Cal State if he thought it would be a better fit for him. Clearly, though, he sees value in his experience at Berkeley. And what's more, I've seen people at Carleton who were similarly situated to Campbell -- bright, talented individuals from low-performing schools who came in for a huge shock when they got to Northfield. These people had something in common -- they tended to get hammered their freshman year. And then often they had something else in common: the same talent, and fortitude, and will and skill that got them to Carleton caused them to claw back. They might not have graduated summa, but they learned and grew and became strong, successful students. Campbell, who managed to scratch out an A- when he took a course he felt comfortable in, strikes me as the sort of person who can follow a similar trajectory.

What we have in Keshawn Campbell, it seems to me, is an exceptionally bright, talented, hard-working individual who due to his background has obstacles in his path that other otherwise similarly situated students don't have. To the extent that Berkeley is supposed to identify outstanding young people and serve as a signal and pipeline to their entry into leadership roles in our society, he's exactly the right sort of candidate for admission. That it requires more intensive work on Berkeley's part to assist him doesn't strike me as a failing of the system on Berkeley's part (though perhaps of the educational system that got him there), but rather a necessary corollary to their meritocratic ambition of identify future leaders from all walks of life, proverbial "diamonds in the rough" included.

Book It for Later

As a Carleton graduate, I of course harbor a soft spot for fellow alum Rep. Rush Holt (D-NJ). That said, I never got the recent spate of liberal antipathy towards Cory Booker, whose alleged sins seem to be little different from other young ambitious politicians.

"Nor Do They Have Any White Children"

Wait, what?:

"A Portuguese Water Dog can range in cost wildly. On average, one will pay between $1,400 and $2,000. President Barack Obama has this breed of animal," according to an answer on Ask.com.

With the addition of Sunny, the Obamas now have two black Portuguese water dogs.

The Obamas do not have any white dogs.

Not a parody. Just the Daily Caller.

... Die by the Group

Quote of the evening:

In the eyes of the law the Jews do not exist as a group. They may be murdered as a group, but they may not complain about it as a group. They can be defamed as a sinister gathering of the Elders of Zion, or as ritual murderers, but there is no effective remedy against their defamation as a group.

Law and Social Action: Selected Essays of Alexander H. Pekelis 188 (Milton R. Konvitz ed., 1950).

The law, I should add, is not the only entity whose eyes have a problem.

The Believer

Newsweek has a superb profile of Israeli politician Tzipi Livni, head of the Hatnuah Party and the point person for Israeli-Palestinian peace negotiations. It's a must-read for any looking for hope in the latest round of peace talks.

For the past several years, if someone asked me who I'd vote for in the Israeli elections (keeping in mind that I'm not an Israeli, and thus have only a partial view), my answer boils down to two choices. The first is Meretz. And the second is whatever party boasts Tzipi Livni. She may just be Israeli's best hope for surviving and thriving as a Jewish, democratic, Zionist state.