Can't Stop the Censorship Train

Two more entries on my recent fascination with free speech and the private sphere. Unfortunately, these are not exactly of the highest quality.

The first is an atypically bad post from Ken White, arguing against calls by Professor Thane Rosenbaum to take a more European (read: stricter) approach towards "hate speech". White takes significant issue with the famous Oliver Wendell Holmes quote that one may not falsely shout "fire" in a crowded theater. White is fair to note that this rhetoric was originally deployed not to defend a speech restriction which was responsive to such a clear and present danger, but rather to uphold considerably more authoritarian restrictions around World War I. Which, fair enough, and fair enough to note Holmes' later repudiation of those cases. But I don't think Holmes (or White, for that matter) ever disavowed the literal statement at issue -- free speech would not protect that false cry of fire in a crowded theater. Which is to say, we do prohibit certain types of speech in certain types of contexts. That doesn't answer the question of scope, but it does throw a crimp on simply relying on a mythical absolutist defense of speech. To say that by quoting that language " you're echoing the rhetoric of a tyranny-cheerleader whose logic was later abandoned by everyone, including himself" goes way, way too far.

Ultimately, White's conclusion -- that prohibitions on hate speech are more likely to oppress rather than defend minorities -- is the strongest point in favor his position. But he hardly needs to take the detours he does to get there.

Meanwhile, Jenny Jarvie has one of those annoying columns that comes so close to making an important point, only to swerve away into inanity. She writes about a local Atlanta magazine whose editor -- known to be a provocateur -- wrote a really offensive column about a recently deceased pillar of the community who happened to be widely beloved by most of the magazine's core readership. Backlash ensued, including many people boycotting the magazine, which now is at risk of going under.

Jarvie characterizes the question as boycotters wanting to "silence" the magazine. Which, well, no and yes. In the literal sense, nobody is being "silenced", they're just being ignored -- the problem being that a media outlet that's ignored is a media outlet that soon will go out of business. But at some level, the entire point of the market place of ideas is to replace bad ideas with better ones. In that sense we should hope that horrible, offensive comments are "silenced" -- silenced by the fact that they don't have an audience willing to pay for them or a constituency willing to stand by them. If the marketplace of ideas doesn't accomplish that, what's the point? It is frankly bizarre to act as if it is a bad thing when people, through naught but the power of private persuasion, are moved to refrain from airing horrible ideas and encouraged instead to voice better ones.

What Jarvie almost gets at but never quite goes into is the sense that the community wants to "punish" the editor for saying such horrible things, but does not want it to go so far as to destroy his entire magazine. Punishment is deserved, but proportionate punishment, and the worry is that the train has gotten out of control. And this is an interesting problem. The private sphere can regulate bad behavior, but only quite bluntly. Many of the persons boycotting the magazine would probably not, if given the power, decree that it should go bankrupt -- they view the punishment they're ordaining as symbolic criticism (appropriate and proportionate) rather than an economic death sentence (disproportionate). We don't have a way of controlling for the effects of aggregation, and that's a big problem. Ironically, government is far, far better at this -- by maintaining a monopoly on sanction, they can make punishments more precise and ultimately more just. Which isn't to say that the government should step in such cases -- as noted above, there are lots of good reasons why that's a bad idea -- but it might be a ledger mark in its favor.

Lessons in Hyphenation

Jon Chait on treating college athletics like a market:

the vast majority of college athletes have negative market value. A reform based on letting them capture their true market value is going to fail to protect the interests of the vast majority of college athletes. This includes not only every athlete in a sport other than football or men’s basketball (which of course includes all-female athletes), but also many of the players who participate in the most competitive football and basketball programs.

I'm no grammar maven, but I'm pretty sure that hyphen is misplaced.

This is How I Vacation

I'm taking my first vacation from work next week (week of February 10). I'm taking vacation now in part because its my birthday on February 11 (and who wants to celebrate in the office), and in part because I didn't take vacation over the holidays because I had volunteered to work on a bunch of cases with filings on or close to New Year's Day. In the immediate term, this means that I have a ton of work to do this week, since I'm trying to get it in under the wire. But nonetheless, it is very exciting -- I'm looking forward to having the week off.

People have asked me "where [I am] going" for my vacation, to which I have answered "my bed." I don't like traveling much to begin with, and in the context of a vacation I view it as basically sacrificing at least a half day if not more for no discernable benefit. I can sleep in and read books in my apartment just fine. Which leads to the second primary way I've prepared for my vacation: buying five books on deliberative democracy, which I will use to help write a new law review article I'm working on.

I haven't mentioned that part of the vacation plan at the office yet, but if I did I'm sure they'd look at me like I'm crazy. "You're taking a vacation from being a lawyer by doing a bunch of legal (or law-related) reading and writing?" This response makes superficial sense, but I honestly can't parse it. I understand why someone might not be interested in doing academic research and writing for fun, but they of all people should know that such work is a far cry from our day-to-day legal work. This is not a postman going for a walk on his day off.

I'm reminded of a story from when I was a summer associate at the firm. I was at some after-work event (I think it was basketball), and I had brought a book to read during the downtime -- a retrospective honoring the career of Iris Marion Young. A well-meaning associate saw me reading the book and said, concerned, "I hope you're not working tonight!" Now, of course, he was absolutely right that a summer associate should not have to be working through a Friday night after-work firm event -- that's the whole point of being a summer! And I told him no, this book was just for pleasure. But I wanted to say "buddy, if there's a practice group here where I might plausibly be reading books on contemporary feminist theory and democratic practice for work, by all means direct me to them right now because I need to get on that train."

In any event, writing is how I relax. Reading is how I relax. Firm life gives a lot of opportunities to read and write, of course, but not always in the forms and topics one might like. So for my vacation, I'm going to read what I want to read and write what I want to write, and I assure you I will enjoy the break thoroughly.

Nobody Calls Israel a Maoist State

At Tablet, Yair Rosenberg has an interesting retrospective on a 1961 debate between British historian Arnold Toynbee and Israeli diplomat Yaacov Herzog, regarding the legitimacy of the state of Israel. What is striking about the debate is how little the terms have shifted (particularly notable given that this was before Israel took over the West Bank and Gaza following the 1967 6-day war).

Toynbee was casually anti-Semitic (he considered Judaism to be a "fossil"), a sentiment that was hardly uncommon amongst elite Englishmen of the time period. And his main charge -- which prompted the debate challenge in the first place -- was his claim that Israel was morally equivalent to Nazis. Then, as now, this claim was trotted out without any sense of proportion: "Nazi" was little more than a stand-in for "person who did bad things"; because Israel had undoubtedly done bad things in the War of Independence, Israel was akin to a Nazi state. The problem, as Herzog observed, is two-fold.

First, "Nazi" is not in fact accurately used to describe an otherwise run-of-the-mill state that committed some wrongdoings. To diminish Nazism to such genericism is in effect a form of Holocaust denial -- it replaces the incredible magnitude and gravity of the Nazi Holocaust with a vague wave at condemnation. One sees this too with how some people treat racism -- stripping away the sheer sweep of centuries of ruthless murder, rape, terrorism, and enslavement; replacing it with some bromide about how for awhile we may not have quite lived up to our highest moral ideals. And if that's all racism ever was, then sure, every time President Obama suggests a policy proposal we find objectionable really is "just like slavery."

Second, if "Nazi" really does mean nothing more than "state which has committed a wrongdoing," then not just Israel is guilty. The UK is a Nazi state. America is a Nazi state. India is a Nazi state. Each of Israel's Arab adversaries is a Nazi state. Palestine will be a Nazi state. So why, then, should Israel be uniquely called out for being a Nazi state? If "Nazism" really is that mundane, it's almost not an observation worth making. But what's really happening is that Jews are being asked to meet an idealized standard of justice expected of nobody else, and when they inevitably fail to do so it is not seen as failing "normally", but rather as sharing space with the most monstrous of monsters.

But all of this, to me, raises another questions, which is "why Nazi?" If what we're really talking about is just a banal form of evil -- or hell, even if we're talking about much more serious, extreme evil -- Nazis are hardly the only choice we have. As offensive as the "apartheid" state analogy is, I will credit it as being less offensive than calling Israel and Jews Nazis. The reason people use Nazi this way -- divorced from the actual historical significance of the term, untethered from any proportionate sense of what the Nazis actually did -- is that it wounds Jews. That label appeals over all other ones because it has the unique capacity to hurt Jews on account of their Jewishness. It's akin to "criticizing" a Black person by calling him a plantation owner, or a lynch mob leader. It gains its power from a history of oppression, and when you are leverage historical oppression against the oppressed, that's prima facie evidence of racism or anti-Semitism no matter what your motives are.

Within all this, it is important to remember what the Holocaust actually "establishes" as relevant to contemporary discussions about Israel and Jews. Many people contend that Jews think the Holocaust has rendered them "perfect", unassailable, or immune from criticism. They seek to leverage the rhetoric of the Holocaust against Jews so as to remove this allegedly illicit gain, this wrongful bounty we illegitimately seized after being so lucky as to have been subjected to mass murder. But the Holocaust does not establish Jews are perfect -- it establishes that non-Jews aren't.

The fact of the Holocaust and other acts of anti-Semitism doesn't establish that Jews are unassailably virtuous. Why would it? There's nothing about oppression that purifies its victims -- imperfect people can be victims too. What it establishes is that non-Jews are not perfect; it destabilizes the hegemonic presence of non-Jewish voices and thus creates space for Jewish voices to be heard. To the casual observer that looks like a claim that Jews are "perfect", but that's only because Jews are claiming the right to speak on equal terms with a non-Jewish presence that had previously arrogated to itself a label of universal transcendence.

The frame that oppression makes the oppressed "perfect" is really more of a reactionary step. The framework sets up for Jews (and other minorities) a standard they can't possibly meet. And once they fail to meet it, it justifies stripping the label of "victim" and returning to the status quo where they can safely be ignored. It obviates the need to problematize the non-Jew in favor of providing a temporary elevation of the Jew to non-Jew status, contingent on the Jew maintaining a standard of conduct that nobody else can or is expected to meet.

(Original Tablet link via Daniel Goldberg)

Weekend Roundup: 1/31/14

Very busy at work right now. But I have a vacation coming up in a week. These two statements are not unrelated.

* * *

A fascinating peek at Utah's efforts to reform police raids.

The White House has announced it is looking to provide clemency to low-level drug offenders convicted in the days of overly-harsh mandatory minimums. Reason Magazine wonders if he's serious (both links via Radley Balko).

Maine Supreme Court rules that rules that banning a female transgender student from the girls' bathroom violates the state's anti-discrimination law.

Ken White at Popehat tackles people who compare critical speech to "lynch mobs", "the Holocaust", "witch hunts", and other like terms. Fair enough, but I again refer back to this post. "Bullying", for example, often includes physical intimidation, but just as regularly is "just" speech -- yet even Ken seems to recognize that this legitimately seriously harmful in a way that he dismisses in other contexts.

Meanwhile, Jon Chait tackles the ludicrous opinion of the Wall Street Journal that maybe rich people really are at risk of a Holocaust-style wave of terror. Kevin Drum takes a closer look at why -- against all evidence -- the rich "feel" besieged.

Breaking Madden

Who would have thought Madden 25 would have a kill screen?

Does that Star-Spangled Banner Yet Wave

Checking in on Sheriff Joe:

A diet of bread and water is the punishment for dozens of Arizona inmates who allegedly defaced American flags placed in their jail cells.

[...]

"These inmates have destroyed the American flag that was placed in their cells," Arpaio said. "Tearing them, writing on them, stepping on them, throwing them in the toilet, trash or wherever they feel. It's a disgrace ... this is government property that they are destroying, and we will take action against those who act this way."

The flags are part of a push for patriotism in county jail cells that includes listening to the "Star-Spangled Banner" every morning and "God Bless America" every night over the intercom system.

Piping in patriotic songs and hanging flags in a notoriously abusive prison and then punishing the inmates with bread and water when they don't show adequate appreciation. It'd be difficult to make-up a better Orwellian America mash-up.

Friendly Rivalry

Without a doubt, the most important thing about this story is that JDate and Christian Mingle collaborate on an annual survey.

Also, Jews are less likely to cheat. So that's good.

David Hirsh's 101 Lesson on Opposing BDS

David Hirsh, in a masterful post gets all the key points of the anti-racist and counter-anti-Semitic movement against the BDS in one place. This is a necessary resource (Engage is already a necessary resource, but this post is an absolutely invaluable compilation).

The Wheel Never Stops Turning

Ta-Nehisi Coates writes:

From time to time, someone will ask why I write so much about racism. The underlying charge is that a writer should cease to follow his curiosities. I might well retort that Paul Krugman should stop writing about the economy, or Jeff Goldberg should stop writing about the Middle East. The difference is that the world which racism made is seen as a niche issue, with no real import. "Gender" and "women's issues" are often regarded in the same way.

And I thought that was strange, because of course plenty of people do say Jeff Goldberg should stop writing about the Middle East -- less because it is viewed as a "niche" issue and more because Goldberg is viewed as a niche person. Specifically, it is often argued that -- as a Jew with substantial ties to Israel -- Goldberg is biased, that he should leave the discussion to neutral, non-partisan gentile hands.

I'm reminded of the post I wrote about Judge A. Leon Higginbotham's opinion declining to recuse himself in an employment discrimination suit (Local Union 542, Int'l Union of Operating Eng'rs, 388 F. Supp. 155 (E.D. Pa. 1974)). Judge Higginbotham was black and a known civil rights advocate, and therefore, according to the defendants, biased. One of the examples Judge Higginbotham cited in declining to recuse himself was his Jewish colleagues:

I am pleased to see that my distinguished colleagues on the bench who are Jewish serve on committees of the Jewish Community Relations Council, on the boards of Jewish publications, and are active in other affairs of the Jewish community. I respect them, for they recognize that the American experience has often been marred by pervasive anti-Semitism. I would think less of them if they felt that they had to repudiate their heritage in order to be impartial judges. (180)

My post, of course, turned the full circle -- in response to people who do say that Jews should not speak or should not be in positions of authority on matters relating to Jewish interests -- I used Judge Higginbotham's powerful opinion as a counterpoint. Higginbotham uses the example of Jews to help Blacks, I use the example of Blacks to help Jews. There's no jealousy, only an example that can help check a common foe.

And on the flipside, why do we see the same rhetorical tropes used to silence Jews and Blacks alike, in seemingly such different contexts? Well why wouldn't we? If a given tactic for maintaining a particular hierarchy has worked for one group, why wouldn't it be adopted and utilized by others trying to preserve different hierarchies? The issue here isn't that all oppressions are fundamentally the same, or any such trite nonsense. But oppression is, after all, ultimately about results. Racists take their cues on what has worked for anti-Semites, and vice versa. The prevalence of rhetoric that asserts Jews shouldn't speak on Jewish issues, versus that Blacks shouldn't speak on Black issues, depends primarily on (a) the relative well-being of the groups in question and (b) what community of speakers you're dealing with.

UNESCO Cancels(?) Jews in Israel Exhibit

Repeat after me: The UN is a neutral organization which is not remotely hostile to Jews qua Jews:

The Obama administration is “deeply disappointed” with a decision by UNESCO, the United Nation’s cultural arm, to cancel the opening of an exhibition on the Jewish presence in the land of Israel and is seeking its placement “as soon as possible.”

Complaints by Arab states led UNESCO to cancel the exhibition, organized by the Simon Wiesenthal Center along with the governments of Canada and Montenegro. It was scheduled to open Jan. 20 at the Paris headquarters of the United Nations Educational, Scientific and Cultural Organization.

“The United States is deeply disappointed and has engaged with senior levels at UNESCO to confirm that the action to postpone does not represent a cancellation and to underscore our interest in seeing the exhibit proceed as soon as possible,” a State Department official said, speaking on customary anonymity. “We trust that UNESCO will approach this issue fairly and in a manner consistent with the organization’s guidelines and past precedent.”

UNESCO director-general Irina Bokova said Wednesday in a letter to the Simon Wiesenthal Center that the exhibit, titled “The People, the Book, the Land — 3,500 years of ties between the Jewish people and the Land of Israel,” would be postponed indefinitely. She said the decision arose out of UNESCO’s support for peace talks between Israel and the Palestinian Authority.

One can almost see the crocodile from which the Arab League's tears emerge:

The cancellation followed a letter sent to Bokova on Jan. 14 by the Arab group at UNESCO. “The Arab group is deeply disturbed by the exhibition, which it condemns,” said the letter from the group’s president, Abdullah Elmealmi.

“This cause is championed by those who oppose peace efforts,” Elmealmi said. “The media campaign accompanying the exhibition will inevitably damage the peace talks, the incessant efforts of U.S. Secretary of State John Kerry and UNESCO’s neutrality.”

If peace talks are so fragile such that acknowledging Jews have a connection to Israel will damage them, surely we are doomed. Though I suppose that all depends on what terms one expects "peace" to occur on.

UPDATE: UNESCO's statement is here.

UPDATE 2x: It now appears that the exhibit will open in June after a six month delay.

... That Magical Time of Year When a Worker's Thoughts Turn To Love

Various permutations of this essay by Miya Tokumitsu, which attacks the concept of "Doing What You Love" (DWYL), has been making the blogospheric rounds to much applause. Allow me to dissent. Tokumitsu does not do nearly enough to demonstrate a causal link between the DWYL mentality and erasure of the lives of working class. Indeed, if anything DWYL is a valuable contributor to our understanding of "work", including for the "non-creative" working class.

Summarizing and simplifying, Tokumitsu observes that there only certain classes of jobs, typically held by certain classes of people, which are even candidates to be a job one might "love". The vast majority of jobs, including jobs necessary for the maintenance of "loved" jobs, are not going to be particularly fun or intellectually stimulating no matter what we do. Therefore, DWYL is inherently classist: "labor that is done out of motives or needs other than love--which is, in fact, most labor--is erased." Meanwhile, DWYL encourages exploitation -- it is basically a way to make workers content with getting less in the way of tangible proceeds in favor of nebulous emotional satisfaction.

As someone who has in the past few years done both a job that I loved (in the classic DWYL form), and a job that, we shall say, does not fit into that category, I feel well-positioned to discuss this issue. And given that the latter job paid triple the former (loved) one, I can even speak to the trade-off between tangible and intangible job benefits.

But let's not start with me; let's start instead with the claim that DWYL is class-divisive and "erases" workers whose jobs are not candidates to be loved. Put bluntly, I'm skeptical that the wealthy need the aid of a mantra to forget about the life and working conditions of the lower classes. That's really more of the default setting. The alternative to caring about how workers feel about their jobs emotionally is not necessarily caring about what workers get out of their jobs tangibly -- it can very easily be (and historically has been) caring about neither. A similar critique can be leveled at her claim that if someone does not obtain profit from pursuing their passion, DWYL implies that the fault must be in their enthusiasm. While I've never actually heard that assertion made, I admit I'm never surprised at the capacity of some people to attribute any deficiency in the lives of the working class to their own deficiencies. Suffice to say, this tendency predates DWYL, it is not caused by it.

What DWYL recognizes is that the tangible products of a job are not sufficient to provide for fulfilling lives. One can be tangibly provided for at market rates and still not have "enough". In other words, DWYL is in many respects a (admittedly inchoate) statement about a substantive entitlements -- that we are not owed just whatever dollar amount our employer puts in our pocket, but some level of happiness, dignity, and respect out of our job. Those values should be included in our calculus of what workers are provided.

Indeed, some of her treatment of improved intangible working conditions strikes me as almost incomprehensible. She quotes Marc Bousquet as saying that the "loved" academic job environment actually presents a model for corporations:

How to emulate the academic workplace and get people to work at a high level of intellectual and emotional intensity for fifty or sixty hours a week for bartenders’ wages or less? Is there any way we can get our employees to swoon over their desks, murmuring “I love what I do” in response to greater workloads and smaller paychecks? How can we get our workers to be like faculty and deny that they work at all? How can we adjust our corporate culture to resemble campus culture, so that our workforce will fall in love with their work too?

From this analysis, she concludes "Nothing makes exploitation go down easier than convincing workers that they are doing what they love."

Reading the above, one would think that the way a corporation makes people love what they do is by casting an incantation or spiking the cafeteria with hallucinogenic drugs. In reality, to make workers happy by means other than a pay raise, one has to do things that make workers happier with their jobs. Those are real benefits, not chimeras -- I'd take my less-paying but more loved job over my less-loved, better paying counterpart in a heartbeat. The trade-off isn't infinite, of course, but all that demonstrates is that neither the tangible nor intangible proceeds of work are sufficient for self-fulfillment.

Which cycles us back to those workers whose jobs are not and cannot be made loveable. We should say here that almost any job can be made, if not loveable, than at least more likeable -- by being treated fairly and with respect, for instance, or by having some security such that one isn't not in constant dread of being tossed on the street. But even to the extent these jobs lie beyond true DWYL, the concept still matters because it provides a contrast to the prevailing counternarrative -- "the value of a honest day's work." That mantra, which by my lights is far more likely to represent the real competitor to DWYL (as compared to some sort of cross-class solidarity pressing for higher salaries for everyone), cares neither whether the worker is happy or whether they getting significant tangible returns -- value comes from working whatever job the market provides at whatever rate the market pays. I'm reminded of the archetypical 50s parent who, upon hearing that his son isn't happy at work, bellows that "You hate your job? I hated my job too! That's the point of a job!"



DWYL recognizes, at the very least, that the emotional side is important -- and anytime the American cultural zeitgeist recognizes any form of substantive entitlement as necessary for a fulfilled life, I'm inclined to jump on it. And to the extent we do view DWYL as a form of substantive entitlement and we simultaneously reckon with the fact that certain people are not (and likely cannot get it), that does provide a fulcrum from which those people can leverage a claim for greater tangible benefits as compensation. Of course, I'm not saying it's a guarantee that thinking about DWYL will cause wealthier Americans to recognize the deprivations faced by their working class peers -- as I said, wealthy Americans hardly need any excuse to ignore others outside their class. But attribute the lack of cross-class consciousness to DWYL is difficult to justify.

The bottom line is that the notion that we can view work solely through the lens of the monetary returns workers get doesn't cohere to how people of any class actually view their work. We don't just want "fulfillment" or "respect", but we don't just want a dollar figure either. It's obviously true that if one is being paid little, the marginal value of each additional dollar is going to be higher compared to additional "respect" or whatnot. But that doesn't change the fact that thinking about work in a way that's helpful to workers requires a holistic approach. DWYL matters because it is a recognition about what workers are owed, and any sort of public understanding of the proceeds of work that starts from what workers deserve, rather than what the market deigns to give them, is in my book a good thing

Lesbian Filipina Caregiver wins Israel's "X-Factor"

Pinkwashing! Brownwashing! Poorwashing! Songwashing! Every form of washing imaginable:

Rose Fostanes, a diminutive 47-year-old Filipina caregiver, has emerged as the newest star of Israeli reality television, winning the singing competition “X-Factor Israel” on Tuesday and establishing herself as something of a national phenomenon.
"
In an upset victory, Fostanes beat out three other finalists by performing crowd-pleasing renditions of Frank Sinatra’s "My Way," Alicia Keys' "If I Ain't Got You," and "Sweet Dreams" by the Eurythmics.

Fostanes arrived in Israel six years ago to work as a caregiver so, like millions of other Filipino workers around the world, she could send money back home to her family and her girlfriend.

Obviously, I support anyone who picks "Sweet Dreams" as part of their finals run.

To Take a Totally Random Example

Say what you will about the D.C. Circuit's net neutrality decision, but I can't get too upset at any decision that illustrates how the internet works by referencing the hypothetical journey of "a video of a cat" from YouTube to the discerning internet consuemr ("who then views and hopefully enjoys the cat.").

Also quotable: "After all, even a federal agency is entitled to a little pride."

"I Decide"

Ta-Nehisi Coates quotes Frederick Douglass' wife:

It is easy to say, as has been carelessly said by some in commenting upon Mr. Douglass' life and career, that the intellectual power, the ambition, the talent which he displayed, were inheritances from his white father; that the colored strain disappeared except as it gave the hue to his skin; and that to all intents and purposes Frederick Douglass was a white man.

In parallel, he notes the ideology of German anti-Semites when encountering a Jew whom, for whatever reason, they liked: "I decide who is a Jew." Marcus Garvey made a similar observation, stating that "whenever Blacks do anything useful, they are no longer Blacks."

At the end of it all, as Coates says, these "isms" are about power. Power is rarely so directionless as to necessitate the slaughter or enslavement of every member of the outgroup. It can maintain its "good Jews" or its "model minorities". After all, even the most bigoted can Have Black Friends. Depending on what one wants to do, one can either define the favored Jew (or whomever) as an exceptional falsehood, or as the only authentic Jew. Though seemingly opposite, the two moves have much the same effect -- to announce that the bulk of the Jewish community is lesser and subhuman, worthy of the scorn and prejudice heaped among them. Those few, special few who are allowed to escape (in part) its grasp are not taken to disprove the prejudice but to confirm it.

The Ashkenazi Jewish Name Tree

A list of origins for prominent Ashkenazi Jewish names -- an interesting article indeed! My name is not on there (presumably because it is too obscure), but I happen to know that "Schraub" means "screw" in German. As in the hardware sense, not in the prostitution sense. So presumably somebody was in that line of work.

Also interesting that there is a name associated with Jews who descended from Khazars -- Kagan. This, to me, is particularly noteworthy given that the article contends most Jews didn't adopt last names until the 17th century or later. The Khazar empire died out in the 11th century -- some 600 years earlier -- and I wouldn't have thought that any Jews who did trace their lineage to Khazar converts would have maintained that connection as part of their familial history or lineage (such that they'd adopt it as a last name). It's just a shame Justice Kagan has already been seated on the Supreme Court -- she could have been asked about it at her confirmation hearings.

Update: Looks like that Kagan/Khazar thing is likely bogus. Oh well.

New Year's Resolutions: 2014

I nearly forgot one of this blog's most venerated traditions: New Year's resolutions! Unforgivable (except that I did, in fact, remember). Previous installments here, and, like we do every year, we start with last year's resolutions:

Met: 1, 3, 4, 10, 11, 12, 13 (amazingly enough! I didn't find the books until I moved to DC), 14 (I honestly feel like this is true).

Missed: 2, 7, 8 (I think -- I don't actually remember), 9.

Pick 'em: 5, 6.

Not bad, all told. I think we can consider the resolution-side of last year a success, if nothing else. But time marches on, and so to we move to this year's resolutions!

1) Publish an article, or have one accepted for publication (other than Academic Freedom versus Academic Legitimacy). (Met)

2) Keep the frequency of anxiety attacks to "sporadic". (Pick 'em)

3) Feel decently competent in an additional area of law beyond my current speciality. (Pick 'em)

4) Attend a Devils game (cheating -- Jill already got me tickets for my birthday). (Met)

5) Spend money while still being financially responsible. (Met)

6) Get the blog's average hits back over 100/day. (Missed)

7) Stay in contact with my law advisers. (Met)

8) Finish a book. (Met -- pulp Star Wars fiction counts!)

9) Finish my secret project for Judge Murphy. (Missed)

10) Find a new computer and/or console game I like. (Met)

11) Attend the Carleton Reunion (again)! (Met)

12) Stay in contact with the academic community. (Met)

13) Work frequently with people whom I like working with frequently. (Met)

14) Be in a position where I am looking forward to next year. (Pick 'em -- looking forward to it right up until about August, where things get very hazy).

Weekend Roundup: 01/04/13

Busy times at work, but yet I've actually been more productive as a blogger than normal. Weird. Anyway, clearing the browser windows a bit:

An exceptionally entertaining story about ex-Rep. Roscoe Bartlett (R-MD), who used to represent western Maryland before being gerrymandered out, and his efforts to go off the grid. "The oddest Congressman" indeed.

Hussein Ibish to people who try to leverage the story of Jesus to favor Israeli Jews or Arab Palestinians: Stop it. You're being stupid and you don't understand how history works. Just stop it.

Omar Khadr, convicted of throwing a grenade at American soldiers during a battle in Afghanistan, now is trying to get a normal education.

A fascinating blog about a recent law grad who (after being no-offered by his sumemr firm) is now selling perfume at a department store. Sometimes, when I reflect on my job, I think "that could be me" (mostly with relief, but admittedly occasionally with wistfulness).

Torturing: The Data

This is a great chart:

The x-axis shows the five years before and after a country ratified the CAT. Year 0 is the year that the country ratified the CAT. For example, year 0 for the United States was 1994, while year 0 for Nicaragua was 2005. The line shows the average torture score for countries during the five years leading up to ratification and the five years following ratification (where 0 refers to frequent torture and 2 refers to no torture). If the average country had reduced torture during this period, then the line would have sloped up.

You'll notice the line does not really slope at all. Anyone can sign a piece of paper, people.

Crime Control

Eugene Volokh comments on assault weapons bans which reference "pistol grips". The rationale for targeting such grips is that they make it easier to spray-fire while shooting from the hip. Volokh observes that spray-firing from the hip is far less accurate than aiming down one's sights, and therefore a criminal who fires in such a manner is less dangerous than one who does not.

In terms of what Volokh is "missing", I think it is that he is envisioning a different type of criminal than the enactors of the bill are. Volokh imagines a criminal who is specifically aiming to kill a particular person, in which case it is better for said criminal to be less accurate. When I think of spray-firing, though, I think of a criminal whose primary goal is to instill terror (as in a drive-by shooting, though I don't know how one fires a gun from a moving car). The primary objective is not to hit a particular target, and moreover to the extent there might be a specific target the shooter also probably doesn't care too much about collateral damage. As far as I'm concerned, I'm less frightened of a criminal trying to assassinate me specifically than I am about being in the wrong place at the wrong time when some thug is trying to "send a message" or whatever. I think there are fewer criminals interested in shooting me particularly than there are criminals who don't care who gets shot at all. Or to borrow from an old war saying: "Don't worry about the bullet with your name on it. Worry about the piece of shrapnel marked 'occupant.'"

In short, we target this grip because it seems most appealing to a particular type of criminal who is particularly unconcerned with human life. As Volokh notes, this may mean we are proportionately less concerned about criminals who are quite concerned about human life and are making a deliberate and conscious choice to end it. And this may even mean that we're not optimizing the number of murders we could be deterring, though this is less certain.

This, to me, is illustrative of a broader phenomenon: we want to control our criminals. Not just in the sense that we don't want them to commit crime -- though that too, of course -- but in that we want our crimes to occur in controlled, predictable, non-random manners. Far scarier than the aggregate statistics of being a crime victim is the prospect that being a crime victim might be entirely a manner of a caprice. Consider this interview with longtime defense attorney Sam Dalton:

Two men commit an armed robbery on the same night. The first man is a father of four. His family is about to be evicted. Or if you want to make him less sympathetic, let's say he's a drug addict who needs money to buy his next fix. He's nervous, he's sweaty. He's desperate, and he's panicky. He approaches his victim and roughly accosts him. He puts his gun to the victim's head. He's screaming profanities. He screams out for his victim's wallet, then screams louder and threatens the victim for moving too slowly. He takes his money and runs off. His victim is terribly frightened.

In the second scenario, our mugger is calm, cool, and methodical. He approaches his victim from the front, puts a light hand on the victim's back, and slowly and unemotionally explains that he has a gun in his coat pocket. He tells his victim that if he hands over his wallet, no one will get hurt, and they can both be on their way. The victim hands it over. The mugger walks off. The victim is angry at just having been robbed, but he isn't terrified. And he was never in real fear for his life.

Which of the two armed robbers is likely to get the longer sentence? Almost certainly the first one. Which of the two is the bigger threat to society? Unquestionably the second one. In fact, the second one is not only a likely career criminal, he's more likely to actually kill someone. The first one is scared because he knows he's doing something wrong. He feels some empathy for his victim. He's committing a crime of necessity. That isn't to say it excuses him. But his aggression comes from fear. The second mugger is incapable of empathy, or has learned to turn it off. He's cold-blooded.

So you see we impose punishment based on fear and a desire for retribution, not based on rational evaluations of what crimes and criminals are most dangerous.

This, I think, is a major motivator here. With the second mugger, or the "aim down the sights" criminal, we know the script. We know what we have to do to walk away (physically) unharmed. The first mugger, or the spray-from-the-hip gangbanger, doesn't allow us that luxury. It is scarier precisely because it is completely out of our control.

Does Dalton raise a good point that we should care more about harm than about what is scary? Sure. But it is not entirely unreasonable to target certain types of criminal activity -- and the devices that enable them -- because they make us feel more unsafe. After all, a large part of crime control isn't about actually playing the efficiency game and figuring out when the costs of crime control are justified based on tangible losses. A large part of it is based on creating the feeling of security and safety; so that stepping onto the street isn't itself a source of anxiety and panic. That's worthwhile in of itself. And where we can help create that feeling of safety at the minor cost of prohibiting a grip which, as Volokh's post observes, is apparently not particularly useful for legitimate social purposes -- that trade doesn't seem unwarranted.

This is Black Privilege

A list of all the privileges of being Black. Don't forget flying first class on Southwest!

Silent Night

War on Christmas? Somalia, show us how it's done!

A directive released on Tuesday by the Ministry of Justice and Religious Affairs stated that no Christian festivities could be held in Somalia….

“We alert fellow Muslims in Somalia that some festivities to mark Christian Days will take place around the world in this week,” said [the Director of the Religious Matters] during [a] press conference [to announce the ban], adding: “It is prohibited to celebrate those days in this country.”

[The Director General of the Ministry of Justice and Religious Affairs], on his part, stated that all security and law enforcement agencies had been instructed to counter any such celebrations….

The officials did not say anything on whether non-Muslim foreign workers or residents could celebrate or not.

It is the first time that a Somali government bans the celebrations since the last central government collapsed in 1991.

All I Want for Christmas

What I want for Christmas is better "best of Buffy [character]" videos on YouTube. Important note: If it's set to any sort of music -- any sort of music -- it doesn't count.

Have a happy holiday, everyone!

Free Speech and the Private Sphere

I've been thinking about the concept of "free speech" as applied to private criticism. This has come up most recently in the flap over Duck Dynasty star Phil Robertson's statements regarding gays and Blacks, and the resulting calls to boycott the show. Some people have responded by saying the critics are violating Robertson's free speech rights. Others have replied that no such thing is occurring, since we are not talking about government censorship but rather private counter-criticism -- free speech in its own right. Take Popehat, for example:

The phrase "the spirit of the First Amendment" often signals approaching nonsense. So, regrettably, does the phrase "free speech" when uncoupled from constitutional free speech principles. These terms often smuggle unprincipled and internally inconsistent concepts — like the doctrine of the Preferred+ First Speaker. The doctrine of the Preferred First Speaker holds that when Person A speaks, listeners B, C, and D should refrain from their full range of constitutionally protected expression to preserve the ability of Person A to speak without fear of non-governmental consequences that Person A doesn't like. The doctrine of the Preferred First Speaker applies different levels of scrutiny and judgment to the first person who speaks and the second person who reacts to them; it asks "why was it necessary for you to say that" or "what was your motive in saying that" or "did you consider how that would impact someone" to the second person and not the first. It's ultimately incoherent as a theory of freedom of expression.

These are good points, particularly the idea of the Preferred First Speaker. So the following isn't meant to be critical.

But what does it mean that so many people really seem to believe that private retaliation -- whether in tangible forms such as economic boycotts or firing someone from a job, or even intangible form such as overly vitriolic responses -- poses a threat to free speech on par with government censorship? Does that mean we have to maybe reevaluate the concept a bit?

After all, if the issue really is just a problem of "chilling", private actors can do that nearly as well as the government. Maybe not quite as efficiently -- the government's power to imprison you is difficult to top -- but most people would view the loss of their job or even the loss of fraternity as a sufficiently grave deterrent to avoid voicing certain opinions. And as everything from the continued worries over "cyberbullying" to my own "Criticism as Punishment" post indicate, people seem to perceive these sorts of private sanctions as punitive in nature.

Again, none of this is to say that we should actually treat hostile private reactions to speech as on par with government censorship of speech. A functioning public sphere requires that we be able to criticize, sometimes harshly, and requires that we be able to react negatively towards the speech of others, even stridently. But again, the fact that there is such a large popular consensus that is a real and genuine problem does counsel that this is a problem that requires deeper thoughts than just drawing a line between public and private and leaving it at that.

Off My Game

Sen. Rand Paul (R-KY) and Rep. Peter King (R-NY) square off over surveillance programs. That's no surprise.

Paul, a Kentucky Republican with strong tea party-backing, and King are both considered likely GOP presidential candidates in 2016.

Paul I knew about. But King? I hadn't heard anything suggesting King was a presidential candidate. Now, I'm not as plugged into this world as I used to be, but I would have thought I'd hear some rumblings. But no, it turns out I just missed the memo.

In any event, I think King is too "iconoclastic" (if you will) to be a likely 2016 standard-bearer. But I have to think that the 2016 GOP primary will be one of the more bizarre in recent memory anyway, so who knows?

"Publish It Already" Roundup

I have an article coming out very soon in the Florida International University Law Review that is, I think, quite pertinent to some ... high-profile issues ... that have recently come up. But "very soon" isn't soon enough. Argh.

Some things taking up browser space:

* * *

A white former(?) prosecutor gets himself arrested, both to see what the criminal justice system is like from the other side and, inadvertently, to discover just how hard it is to get arrested if you're a white guy in a suit.

David Hirsh writes an open letter to Claire Potter, who famously opposed-then-supported the ASA BDS resolution. Potter responds here. I'd greatly appreciate if Hirsh continued this conversation; his energy to do such things vastly exceeds my own, and Potter's response was not just unconvincing, but worrisome in how seemingly little thought she's given to the application of her radical politics to the Jewish context. Anti-Semitism, for her, seems to be a slur that impedes open discussion, rather than a central point of analysis anytime largely non-Jewish institutions act upon their Jewish counterparts.

Walter Russell Mead has a stellar essay on the ASA boycott. I would quibble slightly at where he draws the line regarding anti-Semitism, but it's mostly semantic -- I don't think anti-Semitism necessarily requires conscious or even unconscious malign intent. Though I might set that threshold for saying a person is anti-Semitic, it is not a necessary condition for an action to be. If an action is taken without due regard and consideration for Jewish rights and equality, that's anti-Semitic regardless of the intention of the actor (the corollary being, one can say or do something anti-Semitic without being anti-Semitic). There is no right to opine on marginalized minorities without knowing about them.

In just a few days, two universities (Brandeis and Penn State - Harrisburg) have pulled out of the ASA.

Finally, on a happier note, my congratulatiosn to Mais Ali-Saleh, valedictorian at Israel's Technion University (Israel's premier tech university). Ali-Saleh is a Muslim Arab woman, and I have no doubt that she's faced considerable discrimination. But that makes her perseverance and accomplishments more laudable. Incidentally, if Ms. Ali-Saleh did ask to speak at an ASA invent (and, we'll say, in her "official capacity" as Technion's valedictorian), would she be boycotted? If the answer is yes, it seems to run counter to the movement's supposed goals of solidarity. If it is no, then the boycott is overtly discriminating against Jews. A tough call, and a question I've long wondered how BDSers would answer.

Facing Race

This is a truly fascinating study:

Harvard business professor Michael Norton describes a study testing people’s willingness to talk about race. He made volunteers play a simple game. One picked a face from a field of 12 and the other asked yes/no questions in order to guess who they had in mind. Among the field of faces, six were white and six were black.

Even though asking if a person was black or white would eliminate half of the contenders, 43% of people did not mention race. If the other volunteer was African American, they were even less likely to mention it. In that scenario, 79% didn’t ask if the face they had in mind was white or black.

They reproduced the experiment with children and found that, while little kids would ask about race, by nine or ten, they’d stopped. The little kids often beat the older kids at the game, given that race was a pretty good way to eliminate faces.

Interestingly, the people who didn’t mention race were probably trying to appear not racist, but their decision had the opposite effect. The partners of people who didn’t mention race rated them as more racist than the partners of people who did. Bringing up race was, in fact, a way to signal comfort with racial difference.

Very, very interesting.

Thus Proving His Point

Sayeth Rich Santorum:

Free health care is just that, free health care, until you get sick. Then, if you get sick and you don’t get health care, you die and you don’t vote. It’s actually a pretty clever system. Take care of the people who can vote and people who can’t vote, get rid of them as quickly as possible by not giving them care so they can’t vote against you. That’s how it works.

Kevin Drum is confused:

WTF? I recognize that sometimes extemporaneous witticisms go astray, and God knows that Santorum is probably more vulnerable to that than most. But even for him this is inscrutable. I wonder if he knows that every American over the age of 65 has been receiving government health care for the past half century?

Yes, every American over 65 has received government health care for the past half-century, and most of them are dead! Coincidence? I think not!

If Babies Had Guns....

Taking a stupid idea way too seriously.

So I haven't remarked on the Rep. Steve Stockman (R-TX) bumper sticker "If babies had guns they wouldn't be aborted", primarily because I refused to believe it wasn't a parody. But for some reason, I felt like actually taking the idea seriously. If babies had guns, would they be less likely to be aborted? I doubt it -- in fact, I think the abortion rate would increase.

We'll analyze the hypothetical under two conditions. Under the first, "more realistic", scenario, the baby lacks the cognitive capacity to understand what a gun is or how to fire it. Under the second scenario, the baby is fully aware of the nature of a gun and how to use it, and of the prospect that the mother could potentially abort it.

Under the first scenario, abortion would become far more attractive. You have floating in your uterus an entity constantly and unknowingly interacting with an active firearm. This is not a comforting thought. I'd be inclined to abort that sucker before it gives a kick and accidentally blows my small intestines out my belly button.

The second scenario is far more interesting. The baby has a gun, the mother has the ability to abort the fetus. Both know of the other's capacity to use lethal force, but neither can know (until it's too late) if such force is actually going to be deployed. And we'll stipulate that each party will survive the use of lethal force against the other (the woman survives the abortion, the fetus can blast its way to freedom).

This scenario is probably one of those modified prisoner's dilemmas (stag hunt, chicken ... I'm too lazy to check which). But think of it this way: you and a partner are locked in separate rooms, without the ability to monitor the other. Each room contains a button which, if pressed, immediately (a) detonates the other room and (b) releases you. If neither of you presses the button for nine months, you'll both be released without harm.

It is possible, to be sure, that both parties will exercise tremendous willpower and not press the button. But the temptation would be very strong. Applied to the abortion context, it probably will just lead to more deaths on one side or the other -- whoever's nerves break first.

So there you ago. If babies had guns, the abortion rate would probably stay the same or go up. Thank you for your patience as I take a stupid idea and take it way too seriously.

Things People Blame the Jews For, Volume X: Pearl Harbor

It is a date that will live in infamy (which I missed by a week. I was busy, okay?). The day that the Jews finally succeeded in getting the Japanese to attack the United States at Pearl Harbor, which in turn brought the United States into World War II to fight against Hitler. [http://incogman.net/2012/12/roosevelt-wanted-the-japs-to-attack-pearl-harbor/]

ONE OF THE big questions of history is whether or not Roosevelt knew the Japs were going to bomb Pearl Harbor on December 7, 1941. You know, “The Day of Infamy” and all that jazz. Well, I’m here to tell you that not only did FDR know the Japs were coming, he purposefully worked at goading them to do just that for over a year!

Finding a way to get Americans in a fighting mood for his fat cat International Jew buds became FDR’s secret lust after getting re-elected for his second term. He really wanted America to get at Der Fuehrer man, the Jew’s worst enemy at the time (and still going strong to this day). The deal was to make the Japs attack us first and get Americans riled-up enough to deflect into killing the enemies of the Globalist Jews — the Nazi Germans (White people). The Japs stabbing us in the back would be just the ticket. Pretty much the same thing happened with 9/11 and Iraq, when you think it all out.

Did we give up when the Jews bombed Pearl Harbor!?!?!

Ahem. Anyway, have the Japanese attack America to ensure that we go into Europe and save the Jews almost a decade after Hitler came to power. The misdirect bankshot is indeed a favored tactic of my people. As the author well knows:

DR even admitted a “Europe first” effort from day-one (because of logistics he couldn’t hide it). Most of America didn’t want to go fight in another European war overseas (88% were against it in a poll at the time). However, the fools sucked-down FDR’s bold-faced lie about keeping them out of war and re-elected the squirrelly bastard to another term (or the election was stolen). That sealed the deal for 2,500 dead at Pearl Harbor and another 418,000 dead American Goyim (virtually all White Gentile men) over the next four years, to say nothing of tens of millions of other people in the world.

“So, what’s all this got to do with me, in this day and age?” You might be asking.

Let’s just say you live in a pissant little town somewhere in middle America, minding your own business, trying to make a buck. Now, imagine some hook-nosed, greedy Khazar bastard someplace (maybe even Tel Aviv), who wants to stir-up war hysteria against Iran by faking a terror attack on America. At this very moment Mr. Chubby Neocohen has just spun himself around in a little circle with a blindfold on and jabbed his fat, freckled finger on a map — right where your White ass lives. Guess what? Sayonara, sucker!

And the best part is that it totally fits with the aggressive steps FDR was taking to save Jewish refugees at the time!

Two Sides to the Coin

In response to the controversy regarding Swarthmore Hillel's flouting of Hillel guidelines by permitting anti-Zionist speakers and organizations, Hillel has stood firm but insisted that its guidelines will be "applied across the political spectrum."

Will the guidelines, which insist that partners and speakers accept “the right of Israel to exist as a Jewish and democratic state,” be used to bar far-right speakers who promote the deportation of Palestinians or argue that it is more important that Israel be Jewish than that it be democratic? Fingerhut answered that the guidelines will be “applied across the political spectrum and has been applied,” but he declined to discuss specifics.

This would be good news if I believed it, although I'm not sure that I do. If they threaten to expel a group for hosting the Zionist Organization of America, then we'll talk.

Hillel's (potential) hypocrisy aside, I'm not sure the Swarthmore kids come out looking much better. Their rhetoric about "open Hillel" and "free discussion" sounds good until you think about it for more than seven seconds and remember that it's complete nonsense (and rightfully so). Presumably the Swarthmore Hillel still will not be inviting David Duke or Gilad Atzmon; they still do have some boundaries on what speakers are or are not acceptable. So all Swarthmore Hillel is doing is adjusting the boundaries. Now, it may well be that Hillel's guidelines are too restrictive, but the point is the validity of Swarthmore's decision depends on how we assess their particular decision regarding borders -- not some abstract and fictive view that they are eliminating them altogether.

Apology Acc--Wait, What?

A Norwegian Christian delegation to Israel has apologized for Norway's history of anti-Semitism. Sounds great, right? Norway is seeing increased levels of anti-Semitic activity; perhaps this is a step in the right direction?

Doug Aoibind Juliussen, chair of the International Christian Embassy in Norway, said, “We Christian leaders in Norway, want to apologize and ask for forgiveness from the Jewish people for Norway’s attitude toward you from the Holocaust through Oslo Accords and until this day.”

That's, um, quite a range there. The Holocaust on one hand, and a historic peace agreement between Israel and Palestine on the other. Even if there was a consensus in the Jewish community in opposition to Oslo (as opposed to that position being a small but vocal minority), one still might see it as offensive to see it grouped in with the Holocaust. I mean, seriously.

So, yeah. C- for effort. Circle back and try again.

Preponderance!

James Taranto accuses the Obama administration of waging a "war on men" through its efforts to ensure colleges take a harder line on sexual assault on campus. His evidence is an anecdote of an Auburn student who he contends was falsely accused of sexual assault but was nonetheless expelled from campus. I've talked before about my fear of being falsely accused of something, so I should be a sympathetic audience. I am not, because even assuming that the student in question did not commit any wrongdoing at all (and of course, Taranto is a polemicist with an interest in recounting the facts in his favor), he still fails to actually make an argument about what is supposedly systematically wrong with how colleges -- post-Obama administration pressure -- handle rape allegations such that it represents a "war on men".

To begin, it is important to remember (since Tarento apparently does not) that we are not dealing with a criminal proceeding, or even a civil proceeding (though it is closer to the latter). There is no risk of prison time here. There isn't even the risk of monetary damages. The student here wasn't sent to jail, he was sent to the University of South Carolina Upstate.

All Auburn, a private actor, can do is decline to continue its private relationship with one of its students. One can put varying value on just how important it is that persons be "protected" in that circumstance (more on that below), and indeed I may well think it is deserving of considerable protection. But at the outset, the default rules should be those in a private, quasi-judicial proceeding that does not carry with it criminal penalties or even significant civil penalties. The question is whether or not Auburn's processes match up with the degree of "process" required in those circumstances.

With that prelude, let's address Tarento. He basically has three objections:

First, he is upset that the tribunal credited the victim over the accused. Taranto doesn't think that the victim was persuasive, and he particularly doesn't think that the testimony of the sexual assault experts was probative in making her more credible. But in any adjudicative proceeding credibility assessments are going to be somewhat arbitrary -- based on gut feelings and assessments of he-said-she-said claims. That's unavoidable, and Taranto provides no way of avoiding nor any reason why it is more distressing in this context than in other "civil" (or private) tort claims.

Second, Taranto doesn't think the proceedings were sufficiently professional or legalistic. Again, it is doubtful that Taranto thinks every private institution needs to have a full-blown judicial hearing in front of a federal judge every time it wants to discipline someone. Indeed, compared to the due process I'd get if, say, my employer fired me tomorrow based on whatever rationale (which is to say, none at all), Auburn still comes out far ahead (perhaps I am not giving Taranto enough credit, and he is actually a major union booster and critic of the at-will employment doctrine). Even in the university context, I doubt he believes such process is necessary in the majority of discipline cases(if someone was being expelled for vandalism, say, or cheating).

Finally, Taranto complains about the burden of proof requirement -- a "preponderance of the evidence" standard. It is interesting that, given his frame of an Obama administration "war on men", he quietly admits that this is the only element of Auburn's process that is actually attributable to the Obama administration. In any event, a preponderance of the evidence standard -- which basically means "more likely than not", is apparently outrageous, but once again Taranto doesn't give any reason why. The preponderance of the evidence standard, after all, is the default legal standard in non-criminal cases. If private party A tries to enlist the levers of the judiciary to deprive private party B of a property interest in a non-criminal matter, generally the case will be adjudicated under the preponderance of the evidence standard.

Should there be a different standard of proof for private adjudications of sexual assault claims, making it harder for victims to win their cases in the university context? Maybe! But Taranto doesn't provide one. He basically yells that colleges provide the same basic adjudicatory standards in sexual assault cases as they do in other analogous contexts (which is to say, far more than private employers provide), as if that is self-evidently outrageous, and that in a particular case in Auburn it might have led to a person losing a property interest that he shouldn't have. Even if he is right about this case (and again, he is no more reliable a narrator than anyone else), it doesn't show any defect in the procedures -- even very good systems make mistakes, and the anecdote is not a substitute for data. And while an argument for more stringent standards could certainly be made, such an argument would need to be both more vigorously argued and (more importantly) generalized to a broader commitment to the rights of persons who have a functional liberty and property interest that derives from a contractual arrangement with a private entity. If Taranto wants to go down that road, he's welcome to it, but he can't demand a privileged position only for accused rapists.

Israel, Palestine, and Jordan Sign Historic Agreement

Over how to replenish the Dead Sea using water from the Red Sea.

But in this climate, any agreement is worth celebrating. And in the Middle East water is no joke. I'm sure this took some doing to hammer out, so my congratulations to all involved parties.

The Status of German Anti-Semitism

The Central Council of German Jews gets a lot of anti-Semitic mail, as one might expect. Recently, some researchers dived into the cesspool and tried to discern some patterns. Their findings were fascinating:

Many would view the stream of vitriol, sent to German Jewry’s central communal organization between 2002 and 2012, as little more than raw sewage. But Monika Schwarz-Friesel, a professor of linguistics at the Technical University of Berlin, saw it as raw data. Together with Jehuda Reinharz, the American historian and former president of Brandeis University, Schwarz-Friesel has recently published a study of these letters. And their findings reaffirm one of the enduring, if still surprising truths about anti-Semitism in Germany and elsewhere.

More than 60% of the hate mail came from well-educated Germans, including university professors, according to their study, “The Language of Hostility Towards Jews in the 21st Century,” released earlier this year. Only 3% came from right-wing extremists.

The researchers know this partly from analyzing the language of the letter writers — but also because many of the authors of the emails in their sample gave their names, addresses and professions. “We checked some of them, [and] the information [was] valid,” said Schwarz-Friesel in an email to the Forward. She and her research partner were amazed that the writers were so brazen. “I don’t think they would have identified themselves 20 or 30 years ago,” said Reinharz.

“We found that there is hardly any difference in the semantics of highly educated anti-Semites and vulgar extremists and neo-Nazis,” said Schwarz-Friezel. “The difference lies only in style and formal rhetoric, but the concepts are the same.”

One of the research pair’s other main findings was that hatred for Israel has become the main vehicle for German anti-Semitism. More than 80% of the 14,000 emails focused on Israel as their central theme.

Schwarz-Friesel and Reinharz say they strove hard to distinguish emails that were critical of Israel — even those that expressed anger toward it — from those that were anti-Semitic.

“Only those letters were classified as anti-Semitic that clearly [saw] German Jews as non-Germans and collectively abused German Jews to be responsible for crimes in Israel!” she explained.

First, I would love to see this research replicated in the United States. I'd be curious to know if the distribution here was similar or not.

More substantively, that anti-Semitic abuse (a) comes from the highly-educated and (b) is overwhelmingly tied to "criticism of Israel" reminds me of a thesis I started to develop in two posts regarding anti-Semitism as status-production.

We don't often think about the "causes" of anti-Semitism or other "isms", in part because such an inquiry often can be mistaken for justifying it. But people wouldn't be anti-Semitic unless they derived some utility from it. The most common "rationale" for popular anti-Semitism may be that anti-Semitism offers an explanation for unfairness or injustice that otherwise would feel entirely unexplainable. The factors that explain why any given person is poor or unemployed or in inadequate housing or what have you are complex and impersonal, they can't be lashed out against. "It's the Jews fault" creates a concrete target and holds out the possibility, if not realistic than at least conceptually-conceivable, of change -- were it not for those people I wouldn't be in this situation.

This explanation undoubtedly carries weight. But it is incomplete. For starters, it focuses primarily on anti-Semitism amongst the downtrodden, but as this study confirms anti-Jewish attitudes are well-represented amongst society's elite. Second, it doesn't explain why anti-Israel rhetoric is the vehicle of choice: if I wanted to blame the Jews for my unemployment, I have access to plenty stereotypes and slurs which more directly play on the theme ("Take that Shylock!").

The status-production rationale fills this gap. All persons crave status. We want to feel valued and important in society; like we are making a contribution. One way of doing this is to join a movement, feeling like one is part of something larger than oneself, and is making a positive difference in the world. White supremacy, for instance was beneficial even to those who it did not seem to materially benefit (e.g., poorer Whites) in part because it located them within a broader narrative of social relations where they were told they were valuable and important. Even if it doesn't pay the rent or give a raise, White supremacy conferred status upon poor Whites -- and for folks who had very little status otherwise, that was enough.

But of course, the desire for status is not unique to the currently-marginalized -- everyone, elites included, desires to be valued and important by our peers. Hence, to the extent that participating in White Supremacy was status-raising activity, it was in the interest of Whites of all classes to partake in it -- and, more importantly, partake in it through the means that conferred status. Not every racist action was status-conferring. By the 1930s, for example, elite Southern Whites had become highly embarrassed by lynchings, which they thought made them look backwards and lawless. The decline in lynchings through this time (there were 130 lynchings in 1901 against only 3 in 1939) does not reflect substantial liberalization in the views of Southern Whites (lynchings were mostly replaced with show trials, after all), but it did reflect an alteration in the sort of behavior which was viewed as status-producing.

The status-production theory suggests that anti-Semitic attitudes will be both created and channeled to arenas in which there exists a status-conferring narrative (that is, a network of high-status individuals who view a particular sort of anti-Semitic activity -- or anti-Semitic activity taken in the course of other objectives -- as worthy of conferring status). Anti-Semitism can be created by status-production because it gives an independent incentive to be anti-Semitic in ways that confer status (status-raising is its own reward); anti-Semitism is channeled by status-production because it lowers the cost of expressing pre-existing anti-Semitic attitudes (instead of being roundly condemned, one finds oneself praised and lauded in some circles).

Anti-Israel anti-Semitism is status-producing. Anti-Israel statements -- whether anti-Semitic or not -- come wrapped in the language of human rights, universal justice, anti-imperialism, and like terms; rhetoric which people like associating themselves with and are status-raising compared to people who are allegedly opposed or indifferent to such things. Unlike anti-Semitism that is expressed solely in economic terms ("Jews are moneygrubbers"), which is viewed as at least jejune if not utterly condemnable, to be "anti-Israel" makes one a bold truthsayer, a crusader for justice, a brave rebel against the forces of darkness. Of course it doesn't have this effect in all circles, but it doesn't have to -- so long as some circle of privileged persons create a system where such views are considered salutary and laudable, some people (especially those whose personal networks are closely entwined with the particular actors conferring status on this ground) will be attracted to attaining that status. Hence, we should expect anti-Semitism to come primarily in the form of anti-Israel rhetoric -- why wouldn't it? To do so is the best way of minimizing the backlash and maximizing the status that the statement elicits. In short, anti-Semitism is expressed in the idiom of the dominant narratives of its time. If it the narrative is Christianity, Jews will be attacked for being non-Christian, if it is nationalist, Jews will be attacked for being foreign, and if it is human rights, than Jews will be attacked as oppressors.

Where does this leave the Israel critic, and, in particular, does it mean that "all criticism of Israel is anti-Semitic [status production]"? First, we must state clearly that "Israel critic" is an incredibly broad term that probably encompasses every single person who has ever had an opinion on the subject -- including Israel's defenders. I am a defender of Israel, I am also a critic of Israel. Caring about something means having opinions about it, it would be a remarkable coincidence if my opinions about Israel (or any other country, or institution, or person) perfectly tracked Israel's actions. ZOA is a critic of Israel, as it has every right to be. The point being, first and foremost, that those who adopt the mantle "critic of Israel" are in reality a narrow and provincial subset of the class, who should not be allowed to insist that the vast majority of Jews are mindless zombies "incapable of criticism of Israel." Viewed in this way, it is clear that the vast majority of criticisms of Israel pose no serious threat of engendering anti-Semitism. We are talking about particular forms of criticism whose position seems considerably more fraught.

But speaking to that subset in particular, and stipulating arguendo that they do not want their views to enhance the status of anti-Semites, there are two things that must be said. First, one has to engage in the conversation -- if one isn't willing to consider as even potentially legitimate Jewish criticisms that one's statements are or engender anti-Semitism, one can't act surprised if they don't give your own criticisms much weight or attribute them to hostility. After all, it seems quite likely that a person whose immediate response to Jewish objections is "as usual, Jews are lying/suppressing free inquiry/insane" is someone who in fact does harbor inegalitarian views towards Jews. Privilege -- gentile or otherwise -- means that one can always choose to maintain the primacy of one's own perspective on matters affecting the marginalized group. A very large part of anti-oppression analysis is about convincing the privileged to at least suspend that outlook and recognize that it is possible -- maybe even likely -- that the marginalized person is epistemically more credible on the subject, and that our own view -- even if honestly arrived at, even if fervently held -- may be suspect after all. Persons consistently unwilling to engage in that "quietude" towards Jewish voices cannot claim any presumption of egalitarian views vis-a-vis Jews.

Second, even if one's own heart is beyond reproach, speaking and acting in a political and social system permeated by prejudice means that it isn't all about you. Persons can be held accountable not just for their intent, but also for their predictable effects -- concern for justice means becoming attuned to how one's behavior plays out systematically and working to mitigate its malign consequences. Where particular modes of speaking or activism carries a high risk of reinforcing systems of violence and oppression, heightened obligations are triggered. As I wrote earlier.

[I]ntention is not a necessary component to creating this effect, nor does lack of intention necessarily absolve moral culpability. I believe criticism of a state can be detached from criticism of that state’s citizens; I am less optimistic that criticism of a state can be detached from that state’s supporters. Placed, willingly or nor, in a morally salient relationship with supporters (particularly Jewish supporters) of Israel, the critics have an obligation to be mindful of the known and predictable effects. When they are reckless with the lives affected by their speech, they bear some measure of responsibility for the consequences.

Again, there may be no intention to “green light” anti-Semitic violence. But because the perpetrators have already received the message that they are engaged in a morally righteous struggle, the muted reaction against their behavior — and the unabated continuance of the messages which led them to believe that their acts were heroic to begin with — is easily interpreted as consent or support. Focusing nearly exclusively on defending their words, policies, and procedures from the possibility that they are anti-Semitic, or might produce, ratify, legitimate, or sustain it, the purveyors of criticism as moral hatred unintentionally but dramatically weaken the ability for committed anti-racists to break the connection between criticism of Israel and anti-Semitic activity. Focusing on intent, they are blind to effects. And by refusing to allow even the barest interrogation into the connections between what they are saying and doing, and the historical and current manifestations of anti-Semitism worldwide, it is impossible to create a competitive counternarrative based on principles of justice, fairness, or progressivism; as these terms are all monopolized by the very actors who are unwittingly undermining them. In this world, the only space for a counterstory is on the right, and that is a world I refuse to accede to.

This is one of the many reasons why I am so fervent in speaking up on behalf of those who in good faith speak out against anti-Semitism on the left. Until it is affirmed that interrogating the potential anti-Semitism (in intent and in effect) of progressive speakers (on Israel and on other topics) is a fundamentally legitimate activity for progressives to engage in, it will be impossible to battle against the wave of anti-Semitic violence which seeks status through a perverted pursuit of justice.

I characterized this as a duty to mitigate, not refrain, and that is an important qualification: particular ideas cannot be off-limits only because uncontrolled third parties with terrible views claim status from them. But it is fair to impose an obligation to be mindful of these effects and work to mitigate them, in part because doing so sharpens and clarifies the actual content of the critique, but in part becuase it is generally good that people operating in fraught moral terrain be obligated to think constantly and critically about how their views relate to and are impacted by important moral questions. After all, if we can't figure out how (or can't motivate ourselves) to draw clear conceptual distinctions between our own views and those we purportedly condemn, then maybe the views themselves need reassessing.

The Zionist Space Conspiracy Continues, Part III

Here is the logo for the National Reconnaissance Office's latest surveillance satellite (via):

Jesus, really? A giant octopus whose tentacles encircle the Earth, with the motto "nothing is beyond our reach"? It looks like the back cover of Der Sturmer.

(Prior semi-related posts here and here).

Things People (Don't) Blame the Jews for, Volume IX: "Knockout"

I've already posted once about how "knockout" -- a supposed game where teenagers randomly attack innocent pedestrians in the hope of scoring a knockout in a single blow -- is almost assuredly not a real thing, at least in terms of it being some sort of "trend". Accordingly, this week's "Things People Blame the Jews for" is slightly different -- here, it is someone who I think is being unfairly characterized as "blaming the Jews" for something when, read fairly, she is doing nothing of the sort.

The alleged perpetrator is incoming NYC councilwoman Laura Cumbo. She released a statement on her Facebook page about the knockout game which tied the attacks to reportedly rising Jewish/Black tensions in Crown Heights (where she represents). I initially heard about her statement from an article in the Jewish Press titled "NYC Councilwoman-Elect: ‘Knockout’ Triggered by Jewish Success." This article, incidentally, is not the best example of the unfair attack on Councilwoman Cumbo I'm about to detail -- it's title is misleading and the start of the story isn't great, but it gets into the nuance later on -- this article from the Examiner is more on (which is to say, off) the mark.

In her discussion, Cumbo talks at length about supposedly worsening tensions between Jews and Blacks in Crown Heights. She mentions that, in meeting with Black (particularly Afro-Caribbean) members of the community she encountered concerns that they would be "pushed out" by Jewish families and Jewish landlords. She also spoke of the "resentment" in portions of that community regarding "Jewish success", which they do not view as also "their success."

I was all prepared to make this a straightforward entrant in my next "Things People Blame the Jews for" post. But upon reading her entire post, I decided that wasn't fair. I don't think, fairly read, Cumbo was placing any of the blame for attacks on Jews, on Jews. She is quite clear these attacks are unjustified. More importantly, she at no point says or implies that Jews have actually done anything to provoke these attacks -- she is reporting on sentiments that exist in the community, not endorsing them, and I think that is abundantly clear from the text and context of the message. If we are to talk about anti-Semitism obviously that includes talking about who holds anti-Semitic beliefs and by what means and narratives they are expressed. Else the entire project of combating anti-Semitism because impossible on its terms. Cumbo is crystal clear that the wrongdoers need to be punished, and equally clear that we need to make a concerted effort to understand where these attitudes stem from and how to counteract them.

Let me be clear -- if I thought Councilwoman Cumbo was playing the "well sure these attacks are unjustified, but maybe Jews should stop rubbing their success in everyone's face" gambit, then I would not be defending her. That sort of move is bullshit and would be right in the wheelhouse of a non-ironic post in this series. But I don't see her post as saying that, and I think it is unfair to imply that she is.

In any event, I replicate her entire post below for your perusal. Draw your own conclusion:

The recent epidemic of the “Knock Out Game” in the Crown Heights section of Brooklyn and throughout the Nation has forced me to make some early decisions as to what type of elected official I want to be as I prepare to take office in January. It is a most challenging time to assume office, as the elderly and our children have become targets of violence, undermining the very foundation of community. I was very pleased on November 19th, 2013 that Rabbi Chanina Sperlin organized a community forum of religious leaders, school principals, elected officials, community leaders, and law enforcement to address this issue in order to prevent it from spiraling out of control both in our neighborhood and beyond.

Many thoughts emerged from that meeting, including a recognition that the African American/Caribbean/Jewish community had come a long way since the Crown Heights Riots over twenty years ago. Others expressed sentiments that while there has been much progress, it was unfortunate that it took a tragedy in the community to bring the leadership together once again. Some demanded justice and swift legal action, while others stressed the importance of educational programs that would teach our youth about one another’s cultures. Today, most young people are not even aware that the Crown Heights Riots even happened.

At the forum, there was a great deal of confusion about why this epidemic had begun in the first place, and whether or not it should be viewed as a series of hate crimes. My comments regarding my thoughts on the origin of the “Knock Out Game” came from a place of wanting to get to the heart of the matter, as uncomfortable as that might be for many. As I campaigned throughout the primary season, I knocked on the doors of thousands of Jewish and African American/Caribbean residents in Crown Heights. Through those interactions, it was brought to my attention by many of the African American/Caribbean residents that perhaps the relationship between the two communities is not as great as it is currently perceived to be by the leadership. At the meeting, I shared that many African American/Caribbean residents expressed a genuine concern that as the Jewish community continues to grow, they would be pushed out by their Jewish landlords or by Jewish families looking to purchase homes. I relayed these sentiments at the forum not as an insult to the Jewish community, but rather to offer possible insight as to how young African American/Caribbean teens could conceivably commit a “hate crime” against a community that they know very little about.

I admire the Jewish community immensely. I am particularly inspired by the fact that the Jewish community has not assimilated to the dominant American culture, and has preserved their religious and cultural values while remaining true to themselves. I respect and appreciate the Jewish community’s family values and unity that has led to strong political, economic and cultural gains. While I personally regard this level of tenacity, I also recognize that for others, the accomplishments of the Jewish community triggers feelings of resentment, and a sense that Jewish success is not also their success.

I believe that it is critical for our communities, and especially for our young people, to gain a greater understanding of one another so that we can learn more about each other’s challenges and triumphs despite religious and cultural differences. I believe it is possible for us to create real friendships across cultural boundaries that transcend mere tolerance, but rather strive for mutual respect and admiration. I know that there is so very much that can be gained by learning from one another. When I assume office in January, I will be working with local leaders to plan a series of events that will bring our young people together. It is crucial that we do the hard work to truly create one community, and I am looking for your full support and participation.

I fully recognize the severity of these recent crimes and I, along with City, State and Federal elected officials are calling for a detailed investigation, which I am confident will lead to arrests and legal action. It is imperative that we send a zero-tolerance message to the individuals who are responsible for these attacks. Let me make it abundantly clear, notwithstanding my eagerness to build bridges between diverse peoples and communities, any crime committed by one individual against another is a crime and must be viewed and treated as such. If one person attacks another, regardless of the motivation, there is no justification for such an action. We should never blame a victim, or try to explain away any wrongdoing. The issue of race or religion is but a red-herring one when it comes to crime. As a civilized people we must hold every felon accountable for his or her felony. Yet, since the issue of race has been unfortunately been introduced into the conversation about the current epidemic, I pray that I can assist in bringing my Jewish and African-American/Caribbean constituents to a far better relationship and understanding than the ones that exists today.

As an African American woman, this is challenging, because I recognize that it is Black children and not Jewish children that are playing the “Knock Out Game.” Why is this? In many ways governmental neglect, outside uncontrolled influences and failed leadership have led to the breakdown that so many young people of color are currently facing. I feel torn because I feel apart of the very system that has caused the destructive path that so many young people have decided to take while I am simultaneously demanding that they be arrested by that same system.

I am concerned that the media attention around the “Knock Out Game” is divisive and will erode the real progress that has been made over decades. The recent November 26th article published in The Jewish Week, paints African American teens in a dangerous light, and could cause the vast majority of innocent young people of color to be seen as criminals in the Crown Heights community as a result of the actions of a dangerous small minority. At the same time, there are some people in the African-American/Caribbean community who foster stereotypical views of Jewish people, which is why it is important that we create a more open dialogue. –

http://www.thejewishweek.com/news/new-york-news/knockout-comes-crown-heights

As the Rebbe once said “There aren’t two communities living in Crown Heights. It is one community.” As the media has recently focused our attention on the “Knock Out Game,” I am challenged with the reality that a 66 year old grandfather was shot and killed earlier this week while dropping off money in Fort Greene’s Walt Whitman Houses to help a family pay for Thanksgiving dinner. There was no public outcry or calls for swift legal action for this loss of life or for the dozens of others that were killed in the public housing developments this year in the District. I want us to move forward as a community and recognize that we must all come together across religious and racial lines anytime someone in our community is attacked. I want to realize the Rebbe’s life long pursuit to "make the world a better place, and to eliminate suffering”. It is only when we all come together and see one another as human beings instead of through the lens of racial, cultural or ethnic categories that we will be able to make our communities ONE.

Friendly Reminders

I'm not sure how I feel about this:

Sounds like Israeli Prime Minister Benjamin Netanyahu had a lovely meeting with Pope Francis.

They talked for about a half-hour, focused on peace talks and touched on Iran. Netanyahu’s wife, Sara, encouraged Francis to visit Israel. And Netanyahu gave the pope a book with the inscription, “To his Holiness Pope Franciscus, a great shepherd of our common heritage.”

The one slightly uncomfortable part may have been that the book was about one of the worst things the Catholic Church has ever done to the Jews.

Awkward!

The book was “The Origins of the Inquisition in Fifteenth Century Spain,” the scholarly magnum opus written by the prime minister’s late father, Benzion. The in-depth tome on the Spanish Inquisition describes how the church persecuted, and often executed, masses of Jewish converts to Catholicism who were accused of secretly practicing Judaism.

Pope Francis strikes me as the sort who would not take offense. But it's not like Bibi is exactly Mr. Deft Touch when it comes to diplomacy.