Appeal to Procedure

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

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

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

Two Tablets

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

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

Ronald Coase RIP

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

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

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

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

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

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

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

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

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

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

Greetings from (near) the District!

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

Go East, Young Man

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

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

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

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

UPDATE: Now includes real link!

Defeat from the Jaws of Victory

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

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

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

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

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

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

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

People I Don't Listen To

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

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

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

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

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

History's Top Shot

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

The Qualified Candidate

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

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

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

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

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

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

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

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

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

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

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

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

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

Book It for Later

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

"Nor Do They Have Any White Children"

Wait, what?:

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

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

The Obamas do not have any white dogs.

Not a parody. Just the Daily Caller.

... Die by the Group

Quote of the evening:

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

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

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

The Believer

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

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

Hebron as the Israel/Palestine Conflict

Marc Tracy visits Hebron and the neighboring settlement of Kiryat Arba. These are interesting places, because in a sense they represent a microcosm of the Israeli/Palestinian conflict, but with many tropes reversed.

Marc seized on a particular picture which encapsulates perhaps the center of this analogy:

The history here is more or less accurate. Hebron has had a Jewish community dating back to antiquity, but they were driven out following a 1929 pogrom. Many of the settlers there now assert the legitimacy of their claim by reference to those Jews who were forced to flee. In other words, basically a "right of return" assertion. This in spite of the fact that Hebron will assuredly be part of an eventual Palestinian state, its holy status to Judaism notwithstanding (it lies deep in the heart of the West Bank). It is also the case that the Hebron and Kiryat Arba settlers are among the most extreme in the entire West Bank, with parks and gardens dedicated to racists and terrorists.

What do we get from this? That a just resolution of the conflict means that not everybody gets to live on the precise parcel of land that they wish, even areas to which they have a valid historical claim, and that sometimes a true claim of historical dispossession can be paired with rabid, intolerable extremism today.

Poor Door

Well this is gross (via):

A luxury high-rise apartment in Manhattan’s Upper West Side is set to have a so-called “poor door” — a separate entrance for low-income residents receiving subsidized housing.
[...]
With this disparity between the million-dollar condos for purchase versus the units for rent at a phenomenally low price for Manhattan, the developer decided to design the building with separate entrances for those who own condos and those who rent at a price below market value. As one might expect, this “rich door,” “poor door” situation doesn’t sit well with some.

“This ‘separate but equal’ arrangement is abominable and has no place in the 21st century, let alone on the Upper West Side,” Assemblymember Linda Rosenthal, a Democrat, told the West Side Rag. “A mandatory affordable housing plan is not license to segregate lower-income tenants from those who are well-off. The developer must follow the spirit as well the letter of the law when building affordable housing, and this plan is clearly not what was intended by the community.”

There is a fair amount of evidence that one of the best ways of fighting entrenched poverty is economic integration (read the phenomenal Waiting for Gautreaux for some stark demonstrations). Lower-income persons who live in higher-income areas have much better life chances than persons surrounded by poverty. Part of this is simply access to better services and living conditions. But it also helps mitigate the effects of hypersegregation. A person who grows up in a middle-class (or higher) neighborhood, regardless of her own socio-economic status, is more likely to have successful role models, more likely to have friends from diverse backgrounds, more likely to have personal experience with a wider swath of life possibilities.

The "poor door" -- and the concurrent segregation of the low-income tenants -- flies in the face of these ambitions. As Rosenthal puts it, it manages to obey the letter of class integration while eviscerating the spirit.

The Problem with a Kitten is THAT

This post is not inherently interesting to me, seeing as it's fundamentally a debate over the best way to communicate that gay sex is contrary to God's plan. But it did give an interesting quotation from famed right-wing bioethicist Leon Kass:

Worst of all from this point of view are those more uncivilized forms of eating, like licking an ice cream cone—a catlike activity that has been made acceptable in informal America but that still offends those who know eating in public is offensive….

[Eating] on the street—even when undertaken, say, because one is between appointments and has no other time to eat—displays in fact precisely such lack of self-control: It beckons enslavement to the belly. Hunger must be sated now; it cannot wait. Though the walking street eater still moves in the direction of his vision, he shows himself as a being led by his appetites. Lacking utensils for cutting and lifting to mouth, he will often be seen using his teeth for tearing off chewable portions, just like any animal. Eating on the run does not even allow the human way of enjoying one’s food, for it is more like simple fueling; it is hard to savor or even to know what one is eating when the main point is to hurriedly fill the belly, now running on empty. This doglike feeding, if one must engage in it, ought to be kept from public view, where, even if WE feel no shame, others are compelled to witness our shameful behavior.

I admit it never occurred to me to think that licking an ice cream cone, or noshing on a snack while walking around town, was a harbinger of social decay. This sort of massively overdetermined analysis is replete in Kass' school of thought, and I really just don't understand it at all.

(One might also wonder about the consistency on display here. After all, couldn't one as easily say that eating things with your teeth is the natural way of doing it, the way nature intends, and all this "utensil" nonsense is just amoral human artifice? Possibly, but I prefer to think that neither God nor the moral system really concerns itself with such mundane trivialities as what sharp object we use to dissect the food we eat.)

...And We're Back

Did you miss me?

It's been slightly more than one year after this blog went dark, and now, finally, my clerkship is over. Don't get me wrong, I had a wonderful time -- so many great stories, none of which you'll ever hear because confidentiality, duh. But I missed blogging, a lot, and I missed being part of the blogging community, a lot. I even started a tumblr, which may not have been precisely compatible with the rationale for taking a blogging hiatus in the first place (I refrained from discussing domestic political issues, so I think I'm in the clear).

The other thing you may notice is that, from behind the darkness of the password wall, I actually did a little bit of blogging over the course of the year. Not much, mind you -- about a hundred posts over the year. But if you're curious what things so galled me that I felt the need to literally scream into the void about them, check out the archives.

So that's that then -- the Debate Link's long-anticipated (by me, at least) relaunch is now official.

It's good to be back.

Criticizing Israel without it Seeming Anti-Semitic is Hard (and That's a Good Thing)

Some people think it is very, very hard to criticize Israel without being told it sounds anti-Semitic.

At one level, this is a ridiculous assertion. It is quite easy to criticize Israel without even giving the whiff of anti-Semitism. Allow me to demonstrate:

The traffic in Tel Aviv is terrible, and the buses come way too infrequently to make up for it.

Easy!

Of course, that type of criticism isn't exactly what the speakers have in mind. And I can play this game for awhile, with criticisms less mundane than traffic ails: "Israel should adopt civil marriage." "Israel should never have withdrawn from Gaza." "Putting settlements in the West Bank was a major strategic mistake." The point of the exercise is to demonstrate that no, not all criticism of Israel is out of bounds as "anti-Semitic." Particular criticisms phrased in particular ways in particular contexts are, or may be, and the way you figure it out is by looking into said particular criticism and assessing it individually.

And this is an important distinction, because it places the focus where it should be: on the particular criticism being leveled, not on a supposed massed Jewish communal psychopathy that claims anti-Semitism as a reflex. The latter position is of course anti-Semitic in of itself, as it takes as its premise that Jews regularly lie in pursuit of their political ambitions. And as David Hirsh notes, it's not altogether clear why it should matter even if it were true in an individual case -- the subjective motivations of the person claiming anti-Semitism only tangentially, if at all, impact whether the statement in question actually is anti-Semitic or not. Whether the claimant honestly believes what she is saying or is lying through her teeth, there's no reason not to go through the analysis. In reality, some criticisms of Israel are anti-Semitic and some are not, and the only way to distinguish between the two is to closely examine the individual criticism in question.

All that being said, I will cop to the following: There are critical positions about Israel, which touch on issues that are exceptionally important to matters of justice, equality, freedom, and other important social questions which require extensive debate and discussion, which are hard to present without them seeming anti-Semitic.

And that's a good thing.

Why?

Well let's approach it from the opposite angle. Why would it be a bad thing? The answer, it seems to be, is that it is generally unfair to be accused of anti-Semitism (or forwarding an anti-Semitic position, or being insufficiently attentive of anti-Semitism). There is a perceived entitlement of people to not have to deal with it unless the case is exceptionally egregious. Consider Joseph Levine's controversial article On Questioning the Jewish State. Levine claimed their was an inherent conflict between the concept of a "Jewish" and a "democratic" state. And he concluded by saying that at the very least, the question had to be discussed "openly on its merits, without the charge of anti-Semitism hovering in the background." This, to me, is a bizarre assertion, for the simple reason that whether or not a position is or is not anti-Semitic seems rather clearly to represent part of its "merits." To say "forget anti-Semitism -- is this a valid moral position or not" is nonsense. One would hope that the validity of a moral position depends quite significantly on whether it is or isn't anti-Semitic!

I honestly do not understand the foundation for this entitlement. Why is this something that people are owed? Why is there any right to be free from the vicinity of an anti-Semitism claim? At best, one could say that it stems from an obligation of presumed good faith -- we should not assume our interlocutors' positions stem from evil motives. There are three problems with this argument, though: (1) It's internally contradictory, since the objection to being called anti-Semitic inevitably takes the form of claiming the accuser made the charge in bad faith, (2) It isn't altogether clear why Jews should be forced to assume good faith of non-Jews with respect to matters of Jewish equality, given that historically such trust has not exactly been earned, and (3) It relies on a particular (and particularly narrow) conception of anti-Semitism wherein it only exists if it is the product of conscious and overt antipathy towards Jews. This definition of anti-Semitism is debatable at best, and in the context of the instant discussion seems to serve more as a way of shielding a wider-ranging discussion of the subject by transforming it from a systematic discussion of what Jews are owed as equal global citizens into an investigation of the personal character of the individual.

Consequently, I reject the notion that there is any special entitlement to not have anti-Semitism raised as an issue when Israel is discussed. Indeed, as the title of the post indicates, I consider it a qualitatively good thing. The existence of anti-Semitism limits and circumscribes what arguments and claims one can validly make against Jews. Claims against Jews are constrained by the rights Jews possess -- hopefully that isn't controversial -- and the history of oppression against Jews and the ensuing power dynamics Jews experience vis-a-vis gentiles have a significant impact on what those rights are vis-a-vis the non-Jewish majority. This doesn't mean that Jews are immune from criticism, of course; rather it means that the past and present nature of anti-Semitism is a significant input into the calculus that governs what sorts of criticism are valid or not.

Anti-Semitism is an extremely important facet of any discussion regarding Israel. Any discussion of Israel is a discussion, in part, about what Jews are at liberty to do, how the political institutions that govern them can justly be structured, the sort of self-determination they are entitled to, and the epistemic status of Jewish versus non-Jewish perceptions of Jewish behavior and moral claims, among other things. In all of these discussions, matters of anti-Semitism should affect our analysis considerably. These are not the only things that matter, of course, but they do matter, and if you talk about Israel without having these considerations foregrounded in your mind, you're talking about Israel poorly.

The norm whereby anti-Semitism is always at the forefront of discussion is good because it forces people to treat it with the requisite degree of seriousness in forming their policy positions (lest they be accused of anti-Semitism). When having discussions about Israel, we want to be sure that people (and particularly critics) are thinking really hard about anti-Semitism when formulating their opinions, and the prospect that one's position will be labeled "anti-Semitic" is an excellent motivator to do just that. A reasonable position on Israel will invariably require one to seriously grapple with the ways in which historical and present anti-Semitism implicate the positions that you hold and how your arguments account for the actual facts of Jewish existence and what they need to exercise their individual and collective rights as a people.

Consider as a parallel discussions about affirmative action, which also suffer from the oft-heard claim that "one should be able to oppose affirmative action without being 'racist.'" Now, I'm a strong supporter of affirmative action. Nonetheless, I recognize that there are important debates to be had about the propriety and legitimacy of affirmative action programs, and critical positions can be held by persons who have perfectly egalitarian views towards racial minorities. It is important to have these debates, and we should have these debates. But it would something else entirely to say that we could even have an intelligible, let alone productive, discussion about affirmative action without the issue of racism entering into the picture at all. Yet as with anti-Semitism, people seem to feel they have an entitlement to talk about affirmative action without having their particular position's compatibility with racial equality called into question. The "debate" they want to have about affirmative action -- one where one is not permitted to consider the impact and continuing salience of racism or assess the validity of particular positions against the metric of racial justice -- is no debate at all; it would be incomprehensible gibberish. Keeping "racism" at the forefront of affirmative action debates ensures that an important element of the conversation which people very much would rather ignore stays at the center of the analysis. That's a very good thing.

There is no right to forward a position regarding Israel and have people ignore how it impacts and is impacted by contemporary and historical anti-Semitism. The best way to not have a position called anti-Semitic is to take anti-Semitism seriously and take a hard look at how one's beliefs and positions are responsive to anti-Semitism's existence and salience. Engaging in that deep, searching analysis will undoubtedly weed out certain types of "criticisms" which cannot be reconciled with an opposition to anti-Semitism -- and that's a good thing. And by the same token, in my experience people who do that can take a variety of positions on Israel without being called anti-Semitic -- and that's a good thing too.

Waving While Black

I'm linking to something via Jamelle Bouie, who titled the story "waving while Black." But first I want to tell a story of my own.

I grew up in the DC suburbs, in a nice house with a huge front and back yard. It had lots of trees, hills, and other assorted terrain features that made it ideal for capture the flag, tag, water gun fights, and things of that nature.

One night when I was about 15 or so, some friends and I decided to play hide-and-go-seek in the dark. It was fall and the leaves were down, and my hiding spot of choice was kneeling behind the leaf pile stacked right up against the street abutting our front yard.

It was a good hiding spot, and nobody saw me. Until I noticed a bright light shining against my back. I looked behind me and a cop car had pulled up right behind me, with an officer staring intently at me flashlight in hand.

I was pretty much a goody two shoes (never even got a detention), and even I knew how bad this looked. It was the dark of night. I was crouched behind a leaf pile, trying not to be seen, in front of a very nice house in the suburbs. I had a dark hoodie pulled tight over my head, which as we all learned from the Trayvon Martin saga is a sure sign I was trouble. So given the circumstances, gut instinct took over.

I shot to my feet, whirled around, and waved at the officer, smiling as brightly as I could.

And he looked at me curiously, and then kept driving.

I won’t say “and that’s the day I realized I had white privilege.” Putting the pieces together came much later. But looking back, it is one of the clearest examples of it I’ve experienced in my lifetime. And every time I read a story like this, I reflect on that moment, and remember just how lucky I am.

He said it happened as he was riding north on Weinbach approaching the four-way stop at Riverside Drive and the police officers were southbound.

Madison admitted that he was not going to stop at the intersection but said the officer startled him by making a sudden left turn in front of him.

“He did it real fast,” he said. “I thought it was one of the guys (police) I knew.”

At that point, Madison said he raised his hands to wave.

Madison said he has met many police officers through his job and his participation boxing in the annual Guns-N-Hoses charity fundraiser. But he said he did not know the officers who stopped him.

“The officer jumped out and says, ‘What are you doing throwing your hands up at us?’” Madison said. “He is talking to me as he is coming toward me. I tried to explain, but I couldn’t get a word in edgewise.”

He said the officer’s angry attitude made him feel angry and alone.

“It was like everything had disappeared, and I was there alone and I got scared,” he said.

Madison said he knew Bolin from their community involvements and began to call him on his cellphone hoping to diffuse the situation.

However, the officer told him to put the phone down. Madison said that when he hesitated, the officer grabbed his arm holding the phone, causing Madison to flinch.

Before he knew it, Madison said, the officer had his stun device out.

“It was literally maybe inches from my face,” he said. “I immediately threw my hands in the air. What he asked me to do I was more than willing to do. I said ‘Please don’t hurt me.’ The next thing I know I’m laying down the ground and they cuffed me.”