Tamika Mallory's Israel Rehabilitation Tour

When the controversy over antisemitism and Tamika Mallory first flared up, I noted that it had one very interesting characteristic: it wasn't about Israel. This is somewhat uncommon in left-of-center antisemitism disputes, and one could almost hear the gears grinding in Mallory's would-be defenders. So used to having "criticism of Israel isn't antisemitic" as their "get-out-of-talking-about-antisemitism-free" card, they were left almost dumbstruck.

Mallory has been notoriously resistant to any serious reckoning with antisemitic sentiment on her part. She views herself as the victim here, and so she's seemingly cast about for new avenues to antagonize her Jewish tormentors. First it was going after the ADL. Now, as part of a "fact-finding" trip to Israel, it's blaming Netanyahu for Trump's border wall and Muslim ban.

Be clear: Donald Trump’s wall + #muslimban + #deportation plan are all lines out of the #Netanyahu book of oppression. Trump has referenced this himself. We ought pay attention & not allow folks to label us + try to black list us in to silence. #JusticeDelegation (more 2 come)

— Tamika D. Mallory (@TamikaDMallory) May 7, 2018

In response to this tweet, Abe Silberstein articulated a common sense of Jewish dismay.

I dislike Bibi and Trump in equal measure, but our xenophobic politics precedes Israel's. I appreciate the fact that you visited the region, but I wish you had a better sense of your own reputation in the Jewish community before commenting like this https://t.co/V6bCi9CuPf

— Abe Silberstein (@abesilbe) May 7, 2018

But in some ways I think Silberstein is missing the point. Mallory isn't tweeting unaware of what Jews think about her. Rather, her goal in this Israel trip is precisely to rehabilitate her reputation -- albeit not amongst Jews.

Antisemitism, like racism, tends to take the path of least resistance down to the ground. As Paul Berman noted, while we

like to think of hatred of the Jews as a low, base sentiment that is entertained by nasty, ignorant people, wallowing in their own hatefulness. . . . normally it’s not like that. Hatred for the Jews has generally taken the form of a lofty sentiment, instead of a lowly one – a noble feeling embraced by people who believe they stand for the highest and most admirable of moral views.

If one dislikes Jews, there are many ways for that disdain to manifest. But among these diverse options, people with antisemitic views want to express those views in ways that will gain social approval -- at least in the communities they care about. Hence, we should expect that antisemitic sentiments will be systematically channeled in directions where their expression can expect to find validation and laudation. The content of those sentiments will vary from community to community. In some railing against "globalist financiers" will do the trick. In others speaking of those who "crucified Christ" will work. And of course, in still others, lambasting Zionist perfidy is the winning ticket.*

Note the argument is not that "criticism of Israel is inherently antisemitic", any more than I'm saying orthodox Christian beliefs are inherently antisemitic or opposing the political preferences of wealthy billionaires is. My argument is exactly what was stated above: that in certain communities positions of this ilk provide a convenient point of discharge for antisemitic sentiments that offer up the path of least resistance. Precisely because there are perfectly valid critiques of Israel that are, on face, wholly laudable from within a progressive paradigm, a speaker harboring antipathy towards Jews and looking for a socially-acceptable vector to express them will gravitate toward that issue. A conservative speaker with the same internal sense of grievance towards Jews might pick a different path to the ground. Put another way, we should expect that if someone with progressive-inclinations harbors antisemitic sentiments (consciously or not), they'd be most likely to express them in the idiom of anti-Israel speech. Why wouldn't they? Antisemitism will always be expressed in the dominant language of the place and the time, and it is entirely predictable that people will seek to express antisemitism in ways that enhance rather than detract from their social standing.

In Mallory's case, then, the shift from Farrakhan to the ADL to Israel is a move from forms of antisemitism that encountered great resistance to that which will (again, in the relevant communities) gain plaudits. It is a rehabilitation tour because it moves her sense of grievance towards Jews out of a context where even her allies would have trouble defending her, to an arena where people in her community are quite accustomed to dismissing Jewish complaints. Even though the sequence of events for Mallory offers compelling evidence that she's at least in part motivated by a sense of antipathy against Jews, because she's now expressing her disdain in terms of anti-Israel sentiment people will ironically view further complaints about her antisemitism as weaker rather than stronger.

Finally, I want to remark on the specific content of her tweet -- claiming that Trump's anti-immigrant and anti-Muslim policies are cases of him following the Israeli lead -- because I think it's also "rehabilitative" in its way, and it's worth articulating why that's so. As many people have noted, there is something more than a bit absurd about the contention that American conservatives need an Israeli example to enact racist and White supremacist policies. Moreover, it ends up acting as an indirect apologia for American racism -- asserting that it is not truly homegrown but rather is a foreign disease imported from Israel. Why would Tamika Mallory find that sort of claim attractive?

I discussed a similar move when Winona LaDuke made a putative critique of America's implication in colonialist and genocidal practices by saying "we are Israel". One would think that "Israel is us" would be the more accurate label, since "even if we thought that Israel was a valid case of colonialism ... surely it isn't the paradigm case."

But note the subtle shift of responsibility here -- our misdeeds are characterized as following another's evil example. Israel stands in for our own misdeeds -- it is the platonic ideal of our own wrongs. We are not intrinsically bad, we're only bad insofar as we're "Israel". Our absolution comes when we're no longer Israel. It offers a way to maintain a sense of moral growth and possibility by externalizing the source of the sins onto another body deemed irredeemably corrupt.

There is, I suggest, a perverse form of patriotism at work here. By suggesting that American misdeeds are actually instances of a foreign (Jewish) infection, the implication is that the American body itself is not the problem. The issue is outwards, not inwards. The fundamental appeal of "the Jews are our misfortune" is that it actually allows for a sort of redemptive American narrative to emerge, and for even those most critical of contemporary American policies to lay claim to it.

One thing that is often-forgotten when talking about antisemitism, or racism, or other systemic hatreds, is that they are productive ideologies. They build things, they engender alliances, they motivate actions. Reflexive claims that antisemitism "hurts our movement" always thus struck me as far too pat -- of course it depends on how one defines the goals of the movement, but more fundamentally it overlooks the way that antisemitism can represent a genuine and attractive tool of mobilization. Given the choice between arguing against American support for the Muslim ban by articulating how it reflects fundamental malformations that are deeply-rooted in our national character, versus arguing against it by saying we've been led astray by the Jews -- it's quite plausible that the second route might be more effective than the first.

And so again, we see a form of rehabilitation here. Any organization seeking to make the sort of wide-ranging and deep-cutting critique of discriminatory American practices that the Woman's March does is going to face the inevitable charge that it is "anti-American" in some way. It is hard to counter these accusations, even though they are deeply unfair, because it's always hard to demonstrate love for a place or institution while simultaneously leveling a radical critique (something Jews with sharp objections to many Israeli policies are quite painfully aware of). So the temptation will be to cheat: the problem isn't with America, you see; the problem is with those Jews over there ruining America. One need not reject America; one need only "de-Zionise" it.

People think that when Tamika Mallory blames Israel as the source of American anti-immigrant and Islamophobic policies, she's revealing herself to be more radical than ever before. In reality, though, it is a significant step back towards the mainstream. The radical critique -- the one that it is so hard for many Americans to latch onto -- is the claim that we, America, are our own problem. We are responsible for our own decisions; our hatreds, our injustices, our wrongdoings stem from nobody but ourselves. In Richard Rorty's trenchant words: "There is nothing deep down inside us except what we have put there ourselves." But to the extent that problem is not in ourselves, but rather came to us from Israel -- well much of that discomfort can go away and a radical critique instantly becomes far more digestible.

Plenty of people who'd resist mightily the notion that there is something fundamentally wrong with America are entirely happy to agree that there's something fundamentally wrong with outsiders, with aliens, with others, who've insidiously managed to infect our great nation. And so I suspect that Mallory will find many willing and eager recipients of this new message. After all, it is saying nothing more than what so many have long wished to hear.

* Racism almost certainly works in the same way. People don't just want to be racist, they want to be racist in ways that earn them validation and enhanced social standing. Hence, they will flock to argumentative pathways which allow them to express hostility or disdain for racial outgroups in ways that are socially legitimate. There's a reason why so much anti-Latino sentiment now gets channeled through language about "securing the border". The issue isn't that there are no valid arguments to be had about how permissive or restrictive our immigration policy should be. The issue is that, in context, these debates are simply the most convenient forum where persons already harboring anti-Latino sentiments can discharge their antipathy with minimum social resistance. One of the primary impacts of Trumpism has been to greatly increase the number of viable social pathways for expressing racist, antisemitic, Islamophobic, and other bigoted sentiments -- greatly multiplying their "paths to the ground" and hence dramatically magnifying their social reach.

The Train Has No Brakes: Hillel Station Approaches

A group of student organizations at Cal Poly demand increases in funding for all student clubs -- except the Zionist ones. This follows the University of California Press just publishing a book calling for the American academy to be "de-Zionised" -- a chilling phrase that I had to look up to see if David Duke hadn't gotten there first.

And if you think this branch of activism is going to stop short before it gets to Hillel -- you're wrong.

An SJP activist at Stony Brook University declares "We want Zionism off this campus, so we want Hillel off this campus" (a "proper Jewish organization" where Jews can, apparently, have Sabbath services and do little else, would be acceptable).

An English Professor says that "Hillel has as much place on university campuses as does the KKK."

OPIRG refused to work with University of Ottawa Hillel when it hosted a member of the African Jewish community who did work on interfaith sustainable development projects because "Zionist Ideology does not fit within OPIRG's mandate of human right's (sic), social justice." And at York University, a Professor sent a letter to the university president demanding Hillel be disbanded as an "agent" of a foreign government.

I've leveled my share of critiques at Hillel -- for being undemocratic, for applying its "partnership guidelines" in absurd and unjustifiable ways, for privileging perceived "pro-Israel" bona fides as taking precedence over any and all other Jewish values. And why shouldn't I? No organization is immune from challenge, and if you can't criticize, you can't optimize.

But perfection is not a standard I, or any of us, should demand out of campus groups -- Jewish or otherwise -- and the attempts to expel Hillel from campus life are in no way related to valid dissent regarding the proper structuring of the Jewish collegiate experience.

There is a train that says that any iteration of Zionism or association with Jews and Israel is intolerably toxic and must be expunged. It has no brakes, and it will sooner rather than later come after Hillel and the entirety of Jewish communal life on college campuses. It already happened decades ago in the UK, where there was a concerted campaign in the 1970s and 80s to bar Jewish Societies ("JSocs") from campus as intrinsically racist. And as that tide rushes in once again, it's incumbent upon Hillel's backers and its critics to unite against it. This cannot stand.

Maplewood, MO Bond Trap Case Moves Forward

One of the more arcane, but important, issues to gain renewed spotlight in the wake of Ferguson is how the deeply fragmented municipal structure of the greater St. Louis area encourages abusive policing practices. Basically, the area around St. Louis is divided into countless tiny independent municipalities, each which often has their own police force, governmental units, judicial system, and so on.

It's not really economical for each of these small towns to run their own mini-government, and so many of them have resorted to policing-for-profit. They squeeze out revenue from vulnerable community members (often people of color) by exceedingly aggressive traffic law enforcement, predatory bond practices, overpolicing of minor regulatory violations, and other like practices (The DOJ report on Ferguson highlighted these practices as part of its findings that the Ferguson PD routinely violated the law and operated with an eye towards revenue generation rather than serving its own community).

Right now, for example, there is a lawsuit against the city of Maplewood, Missouri (population: 8,046) alleging that it has a deliberate policy of trapping poor motorists facing traffic finds with bond payments that they can't afford to pay. The plaintiffs

assert the City automatically issues an arrest warrant whenever someone ticketed for violating its traffic and vehicle laws fails to pay a fine or appear in court. Once arrested, the motorist is allegedly presented with a Hobson's choice: Either pay a bond the amount of which was set in advance without any determination of his ability to pay it, or sit in jail possibly for days. The plaintiffs further contend that once a warrant has been issued, a motorist cannot avoid it by voluntarily returning to the municipal court or paying the outstanding fine, but must either submit to a custodial arrest or retain a lawyer to argue a motion before the municipal judge to vacate the warrant. If the court does not grant the motion, the motorist, whose presence in court the judge allegedly demands, will be arrested and jailed. Jail, the plaintiffs assert, is the means by which the City attempts to coerce the motorist into paying the bond to secure his release. The complaint indicates that the City's policy or custom involves additional steps that can ensnare motorists in repeated cycles of arrest, jailing, and pressure to pay a bond irrespective of their ability to do so. 

Today, the United States Court of Appeals for the Eighth Circuit allowed that claim to proceed, rejecting city arguments that it is immune from suit. This is a preliminary ruling completely detached from the substantive merits of the case (for technical reasons not worth going into, it's easier to sue cities compared to states for alleged constitutional violations); no doubt as the case proceeds there will be textured arguments about the specific nature of Maplewood's bond practices and any viable defenses that they can put forward.

Nonetheless, it is absolutely a good thing that this sort of behavior is being spotlighted and will now have to stand up to federal judicial scrutiny. This is a case worth keeping an eye on.

White Supremacist Found Guilty in Beating of Charlottesville Counterprotester

A jury has convicted Jacob Scott Goodwin of malicious wounding after he was caught on film beating DeAndre Harris while brandishing a large shield and wearing a tactical helmet.

The trial studiously avoided discussing race -- for example, the fact that Goodwin was wearing an "88" pin (alluding to Heil Hitler) and another with the insignia of a White nationalist party -- until the very end, where Goodwin's defense attorney told the jury "They want you to convict this man because he’s white, and DeAndre is a black man."

The argument -- as well as Goodwin's claim that he was acting in self-defense when he broke Harris' arm and injured his spine while kicking him repeatedly on the ground -- apparently didn't sway the jury, which recommended a 10 year prison sentence.

Pay No Mind To Door #3....

Gail Heriot is now a regular Volokh Conspiracy contributor, but I kind of wonder how long she'll last. All of her posts thus far are rather generic right-wing hobby horses of the "actually, civil rights activists are bad for minorities"/"actually, feminists are bad for women"/"actually, we should be putting more Black people in jail" sort. And while there are any number of publications that would be delighted to put those thoughts into print, it doesn't really work well in the blogging format because they're too generic. For blogging to be sustainable, it generally is responsive to contemporaneous events (if only someone else's post). In my experience, people who blog their general abstract political views tend to get bored pretty quickly.

I guess we'll see. Anyway, today's entry is "actually, feminists should oppose the Equal Rights Amendment." The argument is that feminists like certain identity-conscious programs (and hence have opposed, e.g., Proposition 209 which banned affirmative action in California), but the ERA's sex equality language would place programs of that sort in jeopardy where they operate to the benefit of women. Given this, Heriot suggests, there are two possibilities:

(1) Feminists secretly want the ERA to fail; or

(2) Feminists are willing to see sex-conscious policies struck down as unconstitutional.

Maybe. But might I suggest there might be something behind door #3?

(3) Proponents of the ERA don't understand the term "equality" in the ERA to ban the sorts of programs Heriot has in mind.

Put another way, perhaps the most straight-forward way of parsing "feminists support the ERA and support sex-conscious policies where they facilitate gender equality" is that "the prevailing public meaning of 'equality' in the ERA's text -- at least as understood by ERA backers -- does not preclude the passage and enforcement of sex-conscious policies that facilitate gender equality."

Now, to be sure, Heriot might not be wrong that the ERA, if ratified, "would very likely be interpreted to invalidate the many state-sponsored 'affirmative action' programs that currently give preferential treatment to women and women-owned businesses." The "colorblind turn" in Fourteenth Amendment jurisprudence has been notorious in not resting on even a purported attempt to discern the original understanding of the relevant constitutional text; a point of considerable embarrassment for the Court's originalists. So it strikes me as perfectly likely that the Court would give the ERA the same treatment -- ignoring powerful evidence of how what its backers and ratifiers understood themselves to be doing in favor of a particular, contested viewpoint of "equality" as sex-blindness. Still, it seems rather telling that even the prospect that an alternative view of "equality" is being appealed to here -- one that harmonizes the positions Heriot sees as inconsistent -- isn't even recognized as a possibility.

They Would Still Say It About Jews; They'd Still Say It About Others Too

The Army is investigating its own lead chaplains in the elite 101st Airborne Division after they summarily terminated (with no explanation) the division's longstanding Jewish lay leaders. The chaplains had refused to ever attend Jewish services despite multiple invitations, and at one point tried to block the Jewish leaders from hosting Passover services because they'd occur on the same day as Good Friday. At the moment, Jews at Fort Campbell, Kentucky are left without any Shabbat and High Holiday services for the first time in decades.

Meanwhile, the top-polling Republican candidate for the California Senate race (and second overall in the Golden State's frankly idiotic top-two "jungle primary") is a raging antisemite who's calling for a government "free from Jews" and running on a campaign of "counter-semitism".

I group these together because I think they're both examples of discrimination that many people would use as an example of the sort of thing "we'd never tolerate if it were happening to Jews." But they do happen, and they're happening now. They're also not unique to Jews -- other minority groups, such as Muslims and immigrants and Blacks, face their own iteration of such bigotry, in the public square, right now.

As Faulkner wrote: "The past is never dead. It isn't even past." These things we say nobody ever says, or believes, or does? They're still done. They're still done to Jews. They're still done to others too.

The Problem With Canaries

A group of pro-Israel, anti-BDS students at a variety of college campuses issued a statement harshly criticizing the Canary Mission for hindering their efforts on campus and unjustly maligning fellow students. They wrote:

Canary Mission is an anonymous site that blacklists individuals and professors across the country for their support of the BDS movement, presumed anti-Semitic remarks and hateful rhetoric against Israel and the United States. 

As a group of conscientious students on the front lines fighting BDS on our campuses, we are compelled to speak out against this website because it uses intimidation tactics, is antithetical to our democratic and Jewish values, is counterproductive to our efforts and is morally reprehensible. 

This blacklist aggregates public information about students across the country under the guise of combating anti-Semitism. It highlights their LinkedIn profiles, Facebook pictures, old tweets, quotes in newspapers and YouTube videos. The site chronicles each student’s involvement with pro-Palestinian causes and names other students and organizations with whom the given student may be affiliated. 

We view much of the rhetoric employed to villainize these individuals as hateful and, in some cases, Islamophobic and racist. In addition, Canary Mission’s wide scope wrongfully equates supporting a BDS resolution with some of the most virulent expressions of anti-Semitism and anti-Israel rhetoric and activity.

The ADL initially supported the students, referring to Canary as "Islamophobic & racist". Critics quickly contested what, exactly, Canary did that was "Islamophobic & racist", and a day later the ADL backed off, apologizing for "overly broad" language.

I want to talk through why I think objections to Canary as Islamophobic are potentially justified. But I want to do so in what I think is a more nuanced and specified way, because there really are interesting questions here regarding the ethics of counter-antisemitism (or counter-racism, or counter-Islamophobic) discourse that I think are being elided in the usual rush to back our friends and lambaste our enemies.

Let's stipulate for sake of argument that Canary doesn't use specifically Islamophobic rhetoric (in the form of racial slurs, conspiratorial claims about creeping Sharia, and the like), and that in general the factual claims they make about the targeted persons (that they did say X or join group Y) are factually accurate. I'm open to the possibility that they do use such rhetoric or that their claims aren't factual (in which case the argument that they're Islamophobic becomes trivially easy). But I make the stipulation because the case I'm going to make doesn't depend on any such behavior by Canary.

Instead, let's focus on what we might think of as Canary's strongest possible foundation: factual revelations of things the profiled individual has definitely said, or groups they have definitely joined, absent any additional commentary. Again, I'm not saying that this is, in fact, all or even most of what Canary does -- I'm saying that this sort of thing would presumably represents the formulation of Canary's mission that would be most resistant to a claim of Islamophobia.

So. First, I do not generally think it is a smear or otherwise wrongful to simply republish a terrible thing somebody has said (with appropriate caveats about not taking things out-of-context, omitting apologies, etc.). For example, the other day Seth Mandel accused me of a "smear" and a "lie" towards him in the context of my column on sexist responses to Natalie Portman not attending to the Genesis Prize. The irony of Mandel's complaint was that he was actually never mentioned in the column at all; he only appears in the context of two of his tweets being republished, verbatim, with no additional commentary or interpretation directed towards him whatsoever. If you can be "smeared" simply by quoting your own words back to you, then I suggest that the problem lies inward.

Moreover, I'd suggest that there actually is something important about revealing the prevalence of antisemitism that exists amidst certain social movements (on campus or not) -- if only because Jews are so frequently gaslit on this subject. Just this week, the Interfaith Center at Stony Brook University had to release a statement (cosigned by a wide range of campus Jewish, Christian, and Muslim groups) in solidarity with campus Hillel after a campus SJP member demanded that Hillel be expelled from campus and replaced with "a proper Jewish organization" (proper, the student confirmed, meaning anti-Zionist). This blog had already covered the Vassar College SJP chapter distributing literal (1940s-era) Nazi propaganda about Jews. These things happen, and there's something off-putting about claiming that it's a form of cheating or a smear to document it. Too many people think that naming and shaming antisemitism is by definition a witch-hunt. That cannot be right, and we should be very suspicious of political arguments which act as if it is right, or act as if the very act of accusing someone of antisemitism (or, for that matter, racism, or sexism, or Islamophobia) is dirty pool or foul play.

So what accounts for my unease? Well, for one it might be the sense that college students, in particular, often say dumb things they regret, and there shouldn't be an entire website dedicated to spotlighting them and inviting people to berate them for it. How much one sympathizes with that point would seemingly correspond to how much one dislikes "call-out culture"; if you're not a huge fan of it (especially when it comes to young people not otherwise in the public eye) then Canary would seem to be one manifestation of a generally malign social trend.

Another basis for objection might be the distinctively chad gadya character of many of Canary's entries. If one reads the site, very frequently a profiled individual is listed because he joined a group which hosts a speaker who supports an organization who bit the cat that ate the goat ... and so on. There's a very distinctive "guilt-by-association" character to what Canary does that I think is obviously objectionable, regardless of how you label it. And note how it resonates with the way blacklists are being deployed against Jews and Jewish groups right now (e.g., the announcement by several NYU student groups that they were boycotting a bevy of Jewish organizations -- including the ADL). Such calls very frequently proceed by similar logic: the group supports a program which hosts a speaker who said a thing ... so on and so forth. Such logic could be used  to ensnare essentially anyone who affiliates with anything -- which means in practice it must be deployed selectively to delegitimize certain groups and causes under the guise of neutral idealism. If that stunt makes us uncomfortable when it's deployed against Jewish groups, it should make us uncomfortable when it's deployed against Muslim groups.

And here is where I think the Islamophobia charge has legs. I don't want to say "imagine if this were done to Jews", because it is done to Jews (albeit perhaps not in quite as organized a form). But there absolutely are cases of blacklisting Jewish students simply because they've joined pro-Israel groups, without any claims that the student has said or done anything remotely racist or Islamophobic. And such behavior I think is rightfully thought of as deeply chilling, and striking too deep in terms of the way it polices to the letter Jewish political and communal participation. Many Canary entries seem to be based entirely on groups the individual has joined (everything from Students for Justice in Palestine to the Muslim Students Association -- the latter of which, it is worth noting, joined the letter in solidarity with Hillel at Stony Brook), rather than any specifically antisemitic things that the individual has said or done. That seems to be as dangerous as equivalent blacklist efforts targeting Jews who are part of Hillel, or Students Supporting Israel, or J Street (yes, J Street).

Indeed, I could go further. Let's take the case of the students who have, themselves, said antisemitic things -- they're on the record. Surely there could be nothing Islamophobic about including them in a database?

Yet even here, I'm conflicted -- and again, the mirror-case involving Jews perhaps reveals why. Imagine there was a website which cataloged people -- mostly, though not exclusively, Jews -- who were members of Zionist or Zionist-affiliated groups for the purpose of declaring to the world that they were racist and should not be worked with. Wouldn't we view that as being antisemitic in character? Suppose that it limited itself solely to those persons who had engaged in Islamophobic remarks -- with the goal of showing the degree to which Islamophobia and racism were prevalent in Zionist discourse, in a way that gave the impression that such views ran rampant amongst (Zionist) Jewish college students. Could that be viewed as antisemitic?

My instinct is yes. It is an instinct that is, admittedly, at war with my above acknowledgment that documenting the real and non-negligible existence of antisemitism that exists in pro-Palestinian movements is not a form of cheating (and I'd likewise agree that documenting the real and non-negligible existence of Islamophobia that exists in Zionist movements is likewise not wrongful). But in both cases it is a delicate thing, lest the impression be given that Jews Are The Problem or Muslims Are The Problem. It isn't wrong to demand that groups be attentive to that possibility and work proactively against it, and it isn't wrong to be suspicious of them when they seem indifferent to it.

What was it that Maajid Nawaz said? “Who compiles lists of individuals these days?" Of course, the answer is "many people and many groups," and maybe that's not per se wrong (or even avoidable). But certainly it is something that requires considerable care and concern, and Canary -- given its propensity for guilt-by-association, given its wide sweep, and given the range of individuals it includes under its ambit -- doesn't strike me as expressing said care and concern. Is that Islamophobic? Depends on how you define it, but I would suggest that there is a prima facie case of a sort of moral negligence directed at Muslim students. In other circumstances, that same sort of moral negligence impacts Jews. Either way, it's a wrong, and it's entirely fair to label it as such.

The Supreme Court's First Rule on Racism

Though it remains unclear, many Supreme Court observers predict that the high court will uphold President Trump's Muslim Ban, in spite of the obvious evidence that the ban was motivated by illicit animus against Muslims.

The thing is, in any other context this is a very straightforward case. If Tom is up for a promotion at work, and says in his interview that if he's promoted, he will fire "all the Black people" in his department, then when Tom proceeds to start firing Black people he and his company are going to be in serious legal jeopardy even if he puts "performance-reasons" in a memo somewhere.

Likewise, this case isn't hard if the guy making the hateful comments and then acting exactly as said hateful comments predicts is a small-town Mayor (Justice Kennedy did raise this hypothetical). If Smallsville, Anystate tried to pull a stunt like this -- announce a "complete ban on hiring Blacks," then implement a policy that the town won't hire anyone from a list of neighborhoods that happen to be overwhelmingly Black -- again, this would be a dunker.

So why is this case hard? The answer is: Because the guy who made the comments is the President of the United States.

But let's be clear about the reason that makes this case hard. It's not because the President should get some special solicitude under the Constitution. If anything, the Supreme Court's jurisprudence around race, ethnicity, and religion suggests that the Court should be applying the most rigorous scrutiny possible in cases like this.

No, the reason that it's "hard" is because a ruling that the President had engaged in unlawful discrimination means conceding that overt, intentional discrimination is present at the highest level of American government. It means saying, in a very real sense, that America is racist -- or at least, we were fine electing a racist. And I think this Supreme Court wants to resist that conclusion with all of its might.

In the gay marriage context, one the arguments conservative jurists made as to why gay marriage bans couldn't be motivated by unlawful animus was the fact that many people supported them -- and how outrageous, how rude, to accuse them all of being bigots! Animus, in this view, was by definition something uncommon. Hence, if a challenged law had widespread support and wasn't limited to a stray set of outcasts or an idiosyncratic township, it couldn't be unconstitutional.

When it comes to racism, the same rules apply. Conservatives may be willing to concede it exists in some nowhere county or scattered across a few corporate malcontents. But the core rule about racism in America is that it is aberrant. It is rare.* It is not who we are. And so any ruling or doctrine which interferes with that conclusion -- that racism has been isolated to a few obscure corners of America -- has got to go.

In a sense, this is what prompted the Supreme Court's doctrinal push towards making motivation the be-all-end-all of what counts as legal racism in America. If you make it so that the only way to prove racism is basically someone admitting "I am doing this because of race/ethnicity/religion" -- I mean, who is going to be dumb enough to do that (other than some podunk mayor or sheriff or other rando)? Well, guess what -- someone just called their bluff, because now the answer is the President of the United States of America. And I don't think the Court cares about the doctrinal niceties as much as they care about the underlying principle that Racism. Is. Rare. Hence, we're going to get some pretzel-logic about why words clearly establishing motive don't count in a doctrinal world where motive is supposedly all that counts.

So that's my prediction: The Supreme Court will uphold the travel ban, with language about how it is unreasonable or unfair or goes too far to ascribe animus to the order based solely on the fact that the President clearly and unambiguously communicated that animus was the reason for his decision.

And I'll make a further prediction: 15 years after the ruling, it will stop being cited. 30 years after the ruling, it will become part of the anti-canon. 45 years after the ruling, it will be beyond obvious that it was an embarrassment, but fortunately, the sort of embarrassment we as a nation have thankfully outgrown.

And 60 years after the ruling, we'll do it again -- or something very much like it.

* The exception is alleged racism against White people. In that case, they are entirely willing to adopt expansive interpretations of the Fourteenth Amendment and civil rights laws to capture wide swaths of public activity.

Term Limited Roundup

My last class meeting is on Wednesday. After that (and grading finals), I'm free of teaching obligations for the next two (two!) years. All I have to do in that time is write a dissertation. Should be easy-peasy!

* * *

I've been meaning to share this outstanding essay by C. Thi Nguyen on "echo chambers", and how we discount information from "the other side", for some time now. It's really, really good.

Several Labour MPs, including Luciana Berger, give heart-wrenching descriptions of the antisemitism they continue to face in British society. J.K. Rowling comes in with an assist (though the article doesn't link to her best moment).

Great conversation in Slate by several Black writers about being Black in White spaces in America. Starbucks, Waffle Houses, golf courses .....

J Street is the future of Democratic Party pro-Israel work. How do I know? Because on the one hand, Ben Cardin was welcome there, despite being a high-profile opponent of the Iran Deal and a backer of the Israel Anti-Boycott Act. And on the other hand, Ben Cardin's message at J Street was basically in line with the broader progressive Zionist camp. Those who want to keep excluding J Street from the pro-Israel camp do so at their own peril.

The L.A. Times has an interesting piece on Latinos joining the Border Patrol (note: Border Patrol and ICE are distinct agencies). The Border Patrol either is now or soon will be majority Latino in personnel.

You know you're spending too much time following American antisemitism when a new story breaks about an antisemitic professor at Knox College and you're like "I bet I know who!" (my guess was "the guy who said that Michael Twitty wants 'to be everything but [his] African sel[f]' because Twitty is a Black Jew". I guessed right).

Sarah Jones interviews Michael Kimmel on deradicalization and reintegration of former White Supremacists. Also apropos: San Francisco anti-racism trainings that are for White Men only. Good example of "owning your shit" and not demanding that POCs serve as educators, or bad example of White Fragility and refusal to tolerate discomfort? You decide.

Are the Koch-brothers (the famous right-libertarian billionaires pumping money into academia and think tanks) spearheading a new insertion of paleo-con anti-Israel ideology back into the political right?

Two interesting pieces on Mizrahi Jews and the ongoing failure to fully grapple with their differentiated history vis-a-vis European/Ashkenazi Jews. The first centers on the documentary series "The Ancestral Sin", regarding how Mizrahi Jews were systematically marginalized by bigoted (largely secular) bureaucrats in Israel's early days. The second is a call for Mizrahi Jews to be given an equal seat at the table in Jewish conversations today.

Don't Take My Word For It: Listen To Natalie Portman

I have a new column in Haaretz on Natalie Portman's refusal to share a platform with Bibi Netanyahu at the Genesis Prize ceremony, while simultaneously disavowing support for BDS.

The radical, cutting, never-before-heard thesis is that "We should listen to Natalie Portman when she says that her refusal to share a platform with Bibi Netanyahu does not mean she supports BDS."

If that doesn't seem all that radical to you, you perhaps haven't encountered men on the internet when a woman expresses an opinion. Because it seems like everyone -- pro- and anti-BDS alike -- is racing to tell (Harvard-educated, deeply invested in Israel) Natalie Portman that she actually doesn't understand the content of her own political position.

Nuke Jersey! (In the Best Way)

I am a big booster of nuclear power. It's probably the single issue I've moved furthest on over the past five years (from "not caring about it one way or the other" to "big booster"). The reason is simple: nuclear power (which is carbon emission-free) is an essential part of moving to deep decarbonization in the electricity sector, and deep decarbonization in the electricity sector is essential to stopping global warming.

On this score, recent (good) news out of New Jersey provides a compelling illustration. A new energy package offers subsidies that will keep nuclear power plants operational for the foreseeable future, while also supporting new renewable power resources. Why does that matter? Well, consider the alternative we're witnessing in Ohio and Pennsylvania:

[T]here are four nuclear plants in Ohio and Pennsylvania that are slated to close prematurely. Last week, the research consultancy Brattle Group released a report analyzing the impact of those retirements, which are all taking place in the PJM regional energy market. 

The results are startling. Closing those four nuclear plants would wipe out the carbon emissions benefits of all the renewable energy installed in the PJM energy market in the past 25 years. 

Simply replacing the lost nuclear power with renewable energy would cost $2 billion a year, and that enormous investment would not replace or prevent any fossil fuel generation.

The emphasis is mine, but read it again. In terms of carbon emission cuts, losing nuclear power is equivalent to losing 25 years worth of renewable energy installation. Without these nuclear plants, just getting back to even (not replacing any new fossil fuel plants) would cost $2 billion/year.

If the nuclear plants in New Jersey closed, the same thing would happen. New renewable installations would simply be replacing lost nuclear energy -- which means no net reduction in carbon emissions. With the nuclear plants still operating, by contrast, new renewable resources will knock out natural gas plants -- providing a genuine reduction in carbon emissions.

As the linked article concedes, the New Jersey package isn't policy optimal (a carbon pricing scheme would be best). But given politically feasible options, it isn't bad. Importantly, when states treat nuclear power as a linchpin of deep decarbonization, that's a major net win for climate policy hawks.

So kudos, New Jersey. Nuke away.

Paul Ryan's Last Call

Paul Ryan only has a limited time left on Congress. If there are amends to be made, it's time for him to make them now. Priorities that haven't been passed? Time to push them through. And so what is foremost on Paul Ryan's mind right now? What does he envision as his congressional swan song?

House Speaker Paul D. Ryan (R-Wis.) aims to pass another massive tax cut this summer, which Republicans hope will rev up the GOP base and improve the standing of Republicans at the polls

Of course. A fitting end for a man who, above all else, favored gutting social programs in order to engage in massive upward redistribution of wealth to the most affluent Americans.

When Will Republicans Turn On Trump?

The answer is "never". Or at least, never so long as they're in the majority. But I still would just bank on "never".

Of course there will be exceptions. But when it comes to the main bodies of the Republican Party -- basically, elected politicians, party officials, and of course, Fox News -- I'll stand by that answer.

Every once in awhile, someone will post about the latest development of some Trump scandal and say "this is the beginning of the end of the Trump administration". What makes it different? It varies.

• It might be that the investigators leading the charge are unquestionably non-partisan, or even registered Republicans themselves;
• It might be that the scandal implicates some issue area allegedly near-and-dear to the GOP base (e.g., a sex scandal turning off religious conservatives);
• It might simply be that the findings are just too explosive to ignore.

So let me make it clear: It won't happen. There is no amount of Trump malfeasance that will cause Republicans to turn on him en masse. A murmured word of caution here, an "ill-chosen words" there, but that's it. That's the lesson of the past several years -- I have no idea where anyone gets misplaced optimism that something just has to change as things get worse.

If the investigators are Republican -- guess what? Now they're "the deep state"! If it seems to impact the GOP base's precious moral values -- forgiveness is limitless (if you think GOP conservatives actually care about family values in any context where it isn't smashing gay couples, I have a bridge to sell you). 

If it threatens basic notions of national security, electoral integrity, or core American values -- well, we're getting a crash course in just how little the Republican Party and its various apparatchiks care about those things. Which is to say -- virtually nil.

The only way this might change is if they're punished sufficiently at the ballot box (among the most disastrous consequences of the 2016 election was that it taught Republicans that limitless brinksmanship, conspiracy-peddling, and open racism would not be punished by the electorate). At which point it would be moot anyway. But I suspect even in the minority the GOP will continue backing Trump to the hilt -- investigations are witch-hunts, oversight is government propaganda, hearings are grandstanding.

Don't depend on the GOP to turn on Trump. They won't. They're his. And so right now, if you ride with the GOP, you ride with Trump.

If Only The Holocaust Weren't So Jewy

First, an employee at the Anne Frank Museum in Amsterdam was told to stop wearing a kippah -- on the grounds that it might violate the museum's "neutrality" policy (neutrality as to what? Between having Jews and not having them?).

Then, a Quebec parliamentarian attacked a Jewish colleague for wearing (you guessed it) a kippah ... on Holocaust Remembrance Day (did you guess that part, wise guy?). The aggrieved legislator complained (I swear I'm not making this up) that it was unfair for the Jewish man to wear a kippah in session when he wasn't allowed to wear his political party's lapel pin.

#AllAccessoriesMatter

A New Environment Roundup

We're closing the political theory term with a unit on ecologism/environmentalism. In honor of that, a roundup that includes nothing on that topic whatsoever:

* * *

C. Thi Nguyen explains how echo chambers are like cults. The problem isn't lack of competing information per se, the problem is that the echo chamber has built-in narratives for why alternative information sources aren't trustworthy and can be discounted.

Eric Ward is interviewed by Tikkun on the subject of identity politics.

We often talk about a "free speech crisis" on liberal college campuses. But there are a slew of avowedly right-wing (generally Christian) universities that barely pretend to allow for a diversity of opinions on campus.

ICE's Philadelphia office seems out of control.

Two British intellectuals (one whom served on the Chakrabarti inquiry, no less) give a history of antisemitism on the British left -- one that by no means starts with Jeremy Corbyn.

As teachers walk out in Kentucky in a push for higher wages, Governor Matt Bevin (R) blames them for exposing children to drugs, sexual assault, and violence. You'd think if teachers were that important -- not just responsible for educating youth, but also the sole bulwark against them being physically and sexually abused -- they'd be worth paying more.

Syrian Kids Are Still Good Enough To Kill For, Not Good Enough To Save

We continue to make that abundantly clear.

Military interventions in Syria are a complicated issue on which reasonable minds can disagree. But one cannot justify military strikes on Syria on the basis of the ghastly human rights atrocities being perpetrated there and then only admit less than a dozen Syrian refugees into the United States (thus far this year).

Our policies with respect to immigration and refugee rights continue to be complete and utter disgraces.

David's Personal Top Ten Video Games

This is something I've been wanting to do for a long time. It is a personal list, reflecting the games that have stuck with me the most over the years. I'm not enough of a gamer to claim it is anything comprehensive, and it has a strong bias to the sorts of genres that I like. Nonetheless, I'd stack these games against any that have been made in my lifetime.

Anyway, without further adieu ....

Honorable Mentions:

Portal 2: How can a game with virtually no “dialogue” (if that means conversations between two characters) have some of the best spoken lines in all video game history? I have both the original and a capella versions of the Turret Opera on my iTunes (yes, I have “Still Alive” as well).

Railroad Tycoon II: A brilliant simulator that makes you actually feel like a turn-of-the-century robber baron (by far, the game is most fun to play when set in the late 19^th century). If every man goes through his “trains!” phase, this was mine. As in real life, I am not good at playing the stock market.

Horizon: Zero Dawn: Robot dinosaurs! Incredibly, Horizon: Zero Dawn takes a core concept that sounds like word association from an over-caffeinated twelve-year boy and makes an entirely serious game about it—and it works. It works so well, in fact, that I loved it despite the fact that the plot and entire world-building background centers around my single greatest phobia (no, not that—being alive for the extinction of humanity).

10. Sid Meier’s Gettysburg: I find it odd that very few games have sought to replicate Gettysburg’s spin on an RTS—focusing combat around regiments rather than individual units and prioritizing morale over raw numbers. But the thing I like best about Gettysburg—and sadly it’s mostly unique too—is in how it concentrates on controlling territory (and terrain). Many RTS games, for me, might as well have a blank screen over 80% of the map between my base and my opponent’s base. You build up your force, and then try to swarm your opponent before he or she swarms you. But in Gettysburg, the goal of missions is not “wipe out your opposition”. It’s to capture and hold a ridge, or dig in and hold an exposed farmhouse.

My only critiques are that I want this game to be bigger. I want it to encompass dozens of maps spanning the entirety of the Civil War. I want to be able memorize even more obscure Union and Confederate generals and wonder if they really were “mediocre” or if that was just a game balance decision. The random battle generator is okay, but this game screams for user-created expansions which I’ve never been able to find.

9. Crimson Skies: A pulpy fun flight simulator taking place in an alternate history 1930s where America has fractured and Zeppelin travel rules the day. The game doesn’t hesitate to lean into its concept (phrases like “broad” and “floozy” abound), and it does a great job world-building in a relatively short period of time. Somehow, I could meet an enemy “ace” for the first time in the middle of a mission and yet still feel like we had a history of epic dogfights together of which this was only the latest. Meanwhile, each of the locations the game takes you to (Hawaii, the Pacific Northwest, Hollywood, the Rocky Mountains, and New York City) are a blast and a half.

A sequel, High Road to Revenge, was released on Xbox and leaned a little too hard into the arcade-y elements (power-ups, automatic evasive maneuvers with the press of a button, and so on). But the original PC game was just right—planes flew exactly like how someone who knows nothing about planes thinks planes fly, which is just perfect. You felt like an ace pilot because of your skill (even though behind the hood the game is really holding your hand). Piloting a gyrocopter through half-built New York City skyscrapers, or a prototype single-engine through the Hollywood "O", is great. Doing it to evade local security, then doing a loop and turning both guns on them -- well, that's the cat's meow.

8. Mass Effect (Trilogy and Andromeda): As far as I’m concerned, the definitive space opera (even muscling out Halo). Fabulous voice acting (listening to Martin Sheen play evil Jed Bartlett is one of the great joys of my life) and memorable plot lines pair with a morality system that at least inches away from “basically decent person or utter asshole.” The universe feels genuinely alive, like there’s an ecosystem and civilization that you’re very much a part of, but also moves in your absence.

I can’t really separate out the core trilogy games from one another (each sequel seemed to simultaneously step slightly forward and back), which is not I think an uncommon position. What may be more uncommon is that I think Andromeda stands right in there with the core series. Yes, it was disappointing that it took us to a brand new galaxy and only gave us two new species (while eliminating many of the more backgrounded Milky Way aliens). But I was much more disappointed that there will be no DLC or sequels to continue the story and tie up loose ends.

7. N and N++: There can’t be any serious controversy that N is the greatest Flash game ever made. While Flash demands simplicity, N is not so much simple as it is elegant. It is the perfect balance of speed and control, thoughtfulness and twitch-trigger reflexes, serene relaxation and butt-clenching tension. Once you master the floaty physics and the unique enemy styles, you will truly feel like a ninja—stripped to its core essence and deprived of all the usual but unnecessary bells and whistles. A virtually unlimited supply of levels guarantees you endless gameplay.

And so it is unsurprising that N was one of the rare flash games that made a successful jump to a full true game (in the form of N++), one that has a strong claim on being the greatest platformer ever made. The developers were wise not to disturb the basic formula: run, jump, and slide around a level, dodge obstacles and traps that will kill you instantly, reach the exit. Repeat ad infinitum. But N++ adds just a splash of additional flavors and spices into the mix. A perfect trip-trance soundtrack that sets the mood perfectly (and may single-handedly stave off keyboard-smashing frustration). A few new enemy types that deepen the game without ruining its austere grace. And perhaps most importantly, it adds a bunch of extra, semi-secret challenges (which can be used to unlock still more levels) waiting for the very best-of-best players.

Of all the games on this list, I might be in absolute terms “best” at N++ (there are a non-trivial number of levels in the game where I have a top 100 or even top 10 score on the global leaderboards). And yet there is not the slightest chance that I will ever perfect this game, or even come close to it. Nor is there any chance I will become permanently sick of it. A simple concept, executed brilliantly. The perfect N++ level is also the perfect description of the game.

6. Final Fantasy IX: The question was never whether a Final Fantasy game would make this list, only which one. I’ve long had a soft-spot for FFIX, which I feel is often overlooked inside the series (in part because even on release it seemed players were already looking ahead to the Playstation 2). Yet it’s hard to find fault in Final Fantasy IX as an emblem of a straight-forward JRPG. It has a moving story, fun gameplay, beautiful music, loads of quests to do and places to explore, a fabulous supporting cast (Vivi might be my favorite Final Fantasy character ever written), and a lead character you don’t want to punch (*cough* Final Fantasy X).

Final Fantasy IX is often described as “nostalgic”, and despite the fact that it was only the second game in the series I had ever played, I got that feeling instantly. Try listening to the soundtrack for “Frontier Village Dali” without feeling a little melancholic. You don’t even have to have played. But I recommend that you do.

For the record, my ranking of Final Fantasy games that I’ve played goes: IX, VII, XII, XV, X, XIII.

5. Assassin’s Creed: Brotherhood: One difficulty in judging games within a series is how to compare an earlier game which still had some rough edges but represented a quantum leap forward versus a later game which didn’t do anything super-novel but tweaked the formula to perfection. That, in a nutshell, is the difference between Assassin’s Creed II and Assassin’s Creed: Brotherhood. Now, for me, this is an easy call for idiosyncratic reasons—I played AC:B before AC II, and so I experienced the former as both the perfected model and the quantum leap forward as compared to the original game. But I respect that for those who played the series in order, this is a harder call.

What should be easy for anyone is to agree that together, Assassin’s Creed II and Assassin’s Creed: Brotherhood represented the AC series reaching its full potential. Ezio continues to be the best protagonist the series has seen to date. Renaissance Italy likewise is the ideal setting for both AC’s vertical and horizontal platforming elements and its shadowy-conspiracy/secret-history plotline. As a franchise, Assassin’s Creed really launched the parkour/open-world exploration genre, and Brotherhood was the first game where every single element of what that genre could be came together. Other more recent games have been tons of fun (Black Flag and Syndicate are I think highlights), but these two games are the reason this series is so iconic.

4. Might and Magic VI: The same problem posed by AC2 versus Brotherhood emerges with Might and Magic VI and VII—except here, I did play them in order. Like the previous entry, I do think that VII ultimately improves upon the formula set out in Might and Magic VI. It’s more versatile, has more replay value, a touch more balanced (and that’s not getting into ArcoMage) … all in all, probably a better technical game.

But Might and Magic VI is for me iconic—it may well be the first RPG I’ve ever truly loved (and given the way this list is stacked in that direction, that’s saying a lot). Virtually all the things that characterize what I love in games today, it had in at least skeletal form. Open world exploration? Check: It was the first game where I felt like I was a true pathfinder—meticulously crawling over every corner of the map to find each obscure bandit’s cave and goblin fortress. To this day I still have the lay of the land in Enroth basically memorized. Overly detailed worldbuilding text to read? Absolutely: my obsessive-streak came out in reading every single artifact description, conversational option, and quest backgrounder (it is canon that Enroth, and the entire planet it resides upon, was blown up in a magical explosion—a fact I’m still resentful towards 3DO for long after it disappeared into bankruptcy). Slight genre-bending? The splash of Sci-Fi onto the fantasy setting was delightful to discover for someone who had never played any of the prior entries in the series. And some of the music—well, the White Cap theme is a thing of beauty, and on my computer “Adagio in G Minor for Strings and Organ” is still listed as “Church Dungeon Music.”

3. Heroes of Might and Magic III: If comparing earlier, more revolutionary games against newer more polished ones presents a problem in the Assassin’s Creed and Might and Magic series, it presents no trouble at all in Heroes of Might & Magic. That’s because the third installation in the series both represented a huge jump forward from what came before and is unquestionably the best entry in the overall sequence.

Sure, some of the expansions are a bit goofy, but they still work—sharpshooters and enchanters are massively overpowered, but they’re generally used in missions that would otherwise be impossible. But the main campaign is fabulous—a surprisingly intricate and interwoven plot that bridges Might and Magic VI and VII compliments outstanding strategy gameplay. And that doesn’t even get into the acre of standalone maps provided, plus countless more available on the web thanks to a map editor so intuitive, even I can use it (I’m terrible with map editors).

As a result of all of this, Heroes III is maybe the only game on this list that can compete with N++ regarding infinite replayability. This is fortunate, because—given the fact that Heroes III was a full-budget release and was not supposed to be “simple”—it ages incredibly well. Even the graphics hold up (no need for that remastered remake—which doesn’t even include the expansions!).

2. Witcher III: As you may have noticed, this list has a strong bias towards RPGs. My preference is toward “Western” RPGs (which have a go-anywhere/do-anything exploration mentality) compared to “Japanese” RPGs (which are more linear and story-driven), but Witcher III does an incredible job of synthesizing the best of both. It has a huge open world to explore, one that feels alive and dynamic—but there is also an incredibly rich story filled with deep, well-written characters (of which Geralt—the player character—is but one).

Gameplay-wise, Witcher III really hits the perfect balance. I simultaneously felt like the biggest bad-ass in the room, but also like a single slip in concentration or bit of overconfidence and my corpse would unceremoniously end up at the bottom of whatever cave I was in. But Witcher III particularly stands out in how it subverts certain common RPG tropes. You are a hero, but you’re not particularly well-liked. You’re a powerful warrior, but you’re still ultimately treated as a pawn in larger political machinations. Your interventions do not always save the day, and sometimes don’t even make things better. If a mission starts with a villager worrying that their beloved has gone missing, nine times out of ten that person has been devoured by a monster well before you ever get there. While many games claim to place the hero in difficult moral dilemmas, Witcher III is a rare case of following through (some games might give you the choice to let a trio of witches eat a group of kids whom you recently played hide-and-seek with, but few make it so that might actually be the more moral of the options in front of you). There’s even a quest where you help a knight rescue a lady in distress from a curse, then lecture him that he’s not entitled to her romantic attention as a reward (talk about a timely intervention in the video game genre!). Over and over again, the game reinforces the message that being really powerful and doing “the right thing” isn’t enough to fix a fundamentally broken system.

Most impressive is the emotional impact that Witcher III dishes out. Sometimes this is a result of rich character development that pays off over the course of the entire game (as in “The Last Wish” quest). But sometimes it shows up in even relatively minor sidequests—the epilogue of the “Black Pearl” quest was one of the more brutal emotional gut-punches I’ve experienced in a video game. Ultimately, this was a game where one always felt like each character was a person—they were imperfect, they had their own interests, hopes, dreams, strengths and foibles, and while you were a little better with a sword and gifted with some preternatural abilities, you were still only one player in a much bigger narrative. As a result, Witcher III might well be, in my estimation, the perfect RPG.

Oh, and Gwent is ludicrously addictive. Let’s not forget that.

1. TIE Fighter: I don’t think this list has a particularly “modern” bias. Still, there’s something impressive about the number one game on this list also being the oldest by some measure. TIE Fighter originally came out in 1994, and the definitive Collector’s Edition was released in 1995. It is, to this day, one of the best games ever made. And that’s not a retrospective assessment. Star Wars: Tie Fighter holds up even played right now.

For starters, it is one of the few elements of the Star Wars universe to get the Empire right. I’m not saying that the Empire is the real protagonist of the series. I am saying that they wouldn’t view themselves as evil—as much as naming spacecraft “Executor” and “Death Star” might suggest otherwise. TIE Fighter is quite self-assured in presenting you as being a force for law and order in the galaxy, battling not just seditious rebels but pirates, smugglers, and other anarchic forces that threaten to tear civilized life apart.

Let’s start with something often overlooked in TIE Fighter: the music. It’s probably the only context that the phrase “kick-ass MIDI soundtrack” makes sense. But that’s not even the half of it. The iMuse system dynamically and seamlessly arranges the musical cues to reflect what’s going on around you in the mission—you can literally follow important mission updates (e.g., a wingman being shot down, or reinforcements arriving) simply by the way the melody shifts. I’m not sure I’ve ever encountered anything quite like it since. To this day, the number that accompanies an incoming enemy capital ship fills me with exhilarated dread.

Gameplay-wise, TIE Fighter is almost shockingly rich. The core mission requirements are challenging, but by no means out of reach. But embedded in each level are a series of secondary and secret bonus objectives. These unlock a parallel plot of the Emperor’s Secret Order—but always present a brutal risk/reward calculus. That’s not unrelated to the fact that you’re often flying, well, TIE fighters (not noted for their durability)—but the challenge extends well beyond physical peril. TIE Fighter actually gives you an “invincibility” option if you want it, and yet even with it on some of the later missions and bonus objectives will strain every piloting skill you’ve ever developed.

Most importantly, the secret objectives usually are more involved than “blow up everything in sight.” They reward initiative and exploration. Maybe your primary mission objective is to destroy a rebel space station. But just before it goes down, you spot an escape shuttle fleeing the station. Take it out? Maybe—but maybe the occupants are VIPs best taken alive. So you switch to ion cannons and disable it for capture. Yet that extra time you just spent has given the rebels enough breathing room to summon reinforcements—now an enemy cruiser is bearing down on you. Take out its missile launchers and clear path for bombers while praying that your own Star Destroyer will arrive soon to back you up. All on the fly. All while dogfighting starfighters, dodging mines, giving your wingmen orders … it’s insanely, beautifully chaotic.

Did I mention this is all happening in 1995? 90% of games released today don’t have that kind of depth or spontaneity. In terms of playability, replayability, and just plain fun, TIE Fighter stands alone, and unchallenged.

Preemptive Strikes in Antidiscrimination Law (Or: Why You Need a Union!)

Last week, the Eighth Circuit Court of Appeals decided the case of Hales v. Casey's Marketing.

Lauren Hales was an eighteen year old employee working the graveyard shift at Casey's General Store. At 1:45 AM, a customer came in and starting making sexually suggestive comments towards her. In an attempt to avoid the man, Hales stepped outside to take a cigarette break. The man followed her, blocked the entrance to the store, and continued making sexual remarks.

Hales, who had previously been sexual assaulted, told the guy to "back off". The customer replied "what are you going to do about it?", at which point Hales extended her cigarette to ward him off. Instead, the customer stepped towards Hales, burning his arm on her cigarette in the process.

The next day, the customer complained to a Casey's manager that Hales had burned his arm. The next time Hales reported to work, a manager asked her if "anything out of the ordinary" happened on her previous shift. She forthrightly reported the cigarette incident, but said she had done it in self-defense.

Hales was then terminated.

She sued, alleging sexual harassment and retaliation -- and the Eighth Circuit just rejected both of those claims. The harassment claim failed because the customer's conduct wasn't "severe or pervasive" enough to constitute sexual harassment as a matter of law (the Eighth Circuit apparently hasn't decided whether a company can be held liable for harassment done by a customer, but it assumed for sake of argument that it could). The retaliation claim was rejected because it was filed too late, but apparently the district court had also indicated it should fail because Hales was not engaged in protected activity under Title VII.

Here's the thing: I'm not sure this decision is wrong as a matter of (current) law. The "severe and pervasive" threshold necessary to make out a harassment claim is extremely (I'd say ludicrously) high, and I know of no case law which addresses self-defense steps as a form of "opposing" harassment in the workplace.*

But even if the case "rightfully" lost, all that demonstrates is that antidiscrimination law -- even when "correctly" applied -- isn't sufficient to protect vulnerable workers (even from discrimination).

In fact, the structure of antidiscrimination law in many ways encourages employers like Casey's to act in precisely this fashion -- terminating employees who are the victims of sexual harassment (whether by customers or coworkers) as a "preemptive strike" before they're able to put together a legally cognizable claim of discrimination. Even if one doesn't think that antidiscrimination law should expand to create liability for a single case of customer harassment, there's surely something perverse about it allowing (or even encouraging!) a young woman to be fired because she refused to tolerate a customer harassing her.

When I read this case, it reminded me of one of the very first employment discrimination cases I read which got me hot under the collar -- Jordan v. Alternative Resources Corp. In that case, Jordan -- in accordance with company policy -- reported a coworker who, while watching news coverage that two Black criminals had been arrested, exclaimed "[t]hey should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them."  His supervisor took decisive action ... against Jordan: changing his work hours to less desirable times, making derogatory comments towards Jordan, and then -- within a month of the initial complaint -- firing Jordan. Jordan sued, claiming his termination was retaliation for filing his complaint.

Title VII only protects against retaliation if you're opposing an act covered under Title VII. In Jordan, the Fourth Circuit concluded that the single racist remark Jordan reported could not alone have sufficed to create legally actionable harassment (again, not being "severe or pervasive" enough to qualify), which means he was not "opposing" covered conduct, which means that his company was not retaliating against him as a matter of law (even though, again, company policy required that Jordan file his complaint).

Jordan argued that his complaint should have been protected because it covered action that, if left unabated, would have eventually ripened into unlawful harassment. The court refused to make the extension, and the result is an obvious Catch-22: Jordan has to report conduct that is not "yet" harassment in order to obey company policy (and preserve a potential future harassment claim), but he can be retaliated against for filing the reports.

But there's a deeper problem in the incentive structure this rule creates: As soon as an employer begins to observe incipient harassing conduct that has not (yet) risen to be legally actionable, it probably should terminate the victim before a sufficient record of wrongful conduct accumulates.** If the employee is reporting the bad conduct, then so much the worse for them -- they're showing themselves to be the sorts who stand up for themselves and so may be more likely to file a discrimination complaint.

Consider how this dynamic might have played out in Hales' case. Suppose the manager knew that one instance of customer harassment of this sort against Hales would likely not be enough to create any legal liability for Casey's. But if it happened again to Hales, or multiple times, then Casey's may well be on the hook. What are the options? Well, one is to take concrete steps to protect Hales from this predatory customer (e.g., banning him from the store) and harassment more generally. But that's difficult, and maybe expensive, and it alienates a customer! So option two is just to fire Hales. If you fire her now, the legal case is nipped in the bud. Problem solved.

And make no mistake: this set of perverse incentives will fall heaviest on the most vulnerable employees. It is entirely predictable that the employees most likely to be subjected to repeat instances of sexually aggressive, harassing conduct are young, those working overnight shifts, racial minorities, gender-nonconforming, and the like (Hales met at least the first two of these). Hence, it is these employees who are most likely to be -- and be perceived as -- potential "repeat victims". And that means they are the most likely to encounter "preemptive strike" discrimination -- a form of employment discrimination that does not just avoid legal accountability, but in many ways is the product of the (exceptions to) antidiscrimination law itself.

So the obvious reform is to make clear that Title VII retaliation protections extend to cases of opposition to sexual or racial misconduct even where the practices would not themselves (yet) rise to being independently legally actionable.

But it's also the more straightforward case that what Hales really needed here was a union. It is very difficult to craft legal rules which do not create some sets of bad incentives or which a clever employer cannot game to their advantage. Given who writes laws (political elites) and who interprets them (legal elites), these unanticipated consequences are unlikely to be randomly distributed -- they will track the usual lines of social power and advantage.

Hence, what Hales really needs is someone whose job it is to be in her corner, a body which can protect her from such arbitrary employer action in the particular case even when the general law couldn't shield her. In other words, she needs a union.

* Retaliation jurisprudence generally envisions "opposition" to mean something like reporting the conduct to company officials or public authority officials. Nonetheless, I'd be inclined to say that physically resisting harassment in the workplace should qualify as "opposing" that conduct. But there remains the separate problem illuminated by the Jordan case: where the conduct "opposed" does not alone suffice to create a "severe and pervasive" hostile work environment (as it almost never will in the first instance), then no action by the employee -- whether it's filing a report or physical resisting her harasser -- would be covered under anti-retaliation protections.

** A similar dynamic sometimes emerges in the labor law context, where employees are protected insofar as they engage in "concerted action". On face, this gives employers who see the potential for emergent concerted labor action an incentive to fire the source employee before any organization can begin. But unlike in the discrimination-retaliation context, both courts and the NLRB have concluded that such "preemptive strikes" also violate labor law, even where they come before any conduct that itself would qualify as "concerted action" and even where they successfully preclude any such action from later manifesting.

You Don't Need Hyperbole When The Truth Works Fine

International Law Professor Yuval Shany has an outstanding post working through the legal use-of-force issues surrounding the Gaza protests at the Israel/Palestine border. The reason that it's outstanding is that it takes seriously the fact that some of the protesters may be violent and may be trying to breach the border -- it isn't just people randomly waving flags. Many pro-Israel commentators have made this observation and acted as if that were that -- a dismissal made easier when pro-Palestinian voices have acted as if there was no component of armed violence in the equation at all.

Yet my instinct was that, even if there were actual attempts to cross the border or even some use of violent force (e.g., stone throwing), this wouldn't necessarily suffice to justify the use of lethal force by IDF. Shany's post explains why in detail, fully attentive to the actual security concerns faced by Israel, and that makes it far more powerful as a critique of the IDF's conduct -- conduct that seems very likely to have violated international law -- than the median post which treats those concerns as non-existent.

Of course, it may seem silly to go into a fine-grained, nuanced explanation of why IDF use-of-force practices on the Gaza border have been unlawful when Avigdor Liberman is explicitly saying that every single human being in Gaza is a valid target for lethal force.

"It has to be understood that there are no innocent [naive] people in Gaza," Liberman added. "Everyone is affiliated with Hamas, they are all paid by Hamas, and all the activists trying to challenge us and breach the border are operatives of its military wing."

The strike-out is there because Liberman claims he's been mistranslated in the use of the word tamim. But I don't think it materially alters the point he was making, which more-or-less explicitly labels the entire Gaza population as members of a hostile military force who are therefore valid targets for lethal force.

More and more, it seems that the IDF prefers calling itself "the most moral army in the world" to actually acting like "the most moral army in the world." The way you become and then stay a "moral" army is via discipline, and discipline means actually investigating and punishing potential violations of the rules of armed conflict. But Liberman refuses to even countenance an investigation -- well, unless it's of human rights groups asking that soldiers not shoot unarmed civilians across the border. A culture of impunity will yield a culture of violation -- there is nothing in the Israeli or Jewish soul that renders us immune from the general rules of human behavior.

A Tale of Two Harassers

Jill Filopovic points out the key differences between Democrats and Republicans on sexual harassment and misconduct within their ranks.

It isn't that Republicans perpetuate it and Democrats don't. Both parties have their share of wrongdoers.

The difference is that Democrats -- slowly, fitfully, imperfectly -- are beginning to hold their abusers to account. While Republicans, by and large, continue to shield the predators in their ranks (starting with the one in the Oval Office). There's a reason, Filopovic notes, why Republicans still point to Chappaquiddick and the Bill Clinton affairs -- rounding past 20 years ago at this point -- as their preferred form of whataboutery. In the more recent major cases, Democrats have been much stronger, while Republicans still prefer to protect the boys club.

We saw a great example of this recently in Colorado: A Democrat and a Republican in the state legislature were accused of sexual harassment (the former was a member of the state house, the latter of the state senate). In both cases, an independent investigator substantiated the allegation. The Democrat was expelled, after refusing calls from his own party leaders to resign. Indeed, every single Democratic member of the house voting to do so (Republicans split 16-9 in favor of expulsion).

The Republican? He enjoyed the firm support of his caucus leader, and when Democrats forced a vote on the issue, he kept his job -- with all but one Republican backing him against a motion to expel.