Two Federal Rulings on Campus Protests

This week saw two federal district court decisions against Harvard and UCLA, respectively, regarding their failure to protect their Jewish and Israeli students from antisemitic discrimination, which you can read in their entirety here and here. Both complaints have a run-through of the upsetting facts we saw at play in many college campuses last year. I’ve already seen some coverage of the decisions and, as expected, it is understandably politically inflamed (as is some of the language in the briefs and the decisions.) What I hope to contribute to the discussion is a concise run-through of the legal arguments made by the plaintiffs and the defendants, which may illuminate the issues that are likely to come up in future litigation on this topic in the fall.

The Harvard case is a ruling on a motion by Harvard University to strike a complaint, based on the Civil Rights Act, by Students Against Antisemitism (SAA), against the university for its failure to rein in antisemitic behaviors and actions that targeted Jewish and Israeli students. The court dismissed in part and granted in part. The Title VI case based on a deliberate indifference claim will go through, whereas the case based on direct discrimination will not.

Harvard raised two preliminary hurdles to the SAA lawsuit, the first of which involved SAA’s standing to bring it forth. There are three conditions for granting standing to an association: at least one member of the association must have standing to sue individually (members of SAA were affected and targeted by the litany of antisemitic events described in the lawsuit), the interests involved in the lawsuit are germane to the org’s purpose (in this case, fighting antisemitism), and the claims and types of relief sought do not require the participation of individual plaintiffs (which SAA can represent).

The second issue was that the lawsuit was unripe: Harvard argued that it was still in the process of formulating its response to antisemitism on campus. The court, however, rejected this argument, asserting its authority to rule on incidents that already happened. The lawsuit would examine whether actions Harvard had taken before the lawsuit was filed had been adequate and whether they will be adequate going forward.

On the merits, the court acknowledged that SAA brings a valid Title VI case on the basis of deliberate indifference. It has provided a prima facie showing that (1) SAA members suffered harm that (2) hindered their educational opportunities, (3) that the school knew of these deprivations, (4) that the deprivations were related to school programs and activities, and (5) that the school exhibited deliberate indifference toward the denial of these opportunities. Harvard argued that some steps to remedy the situation had been taken, but the court disagreed, characterizing the university response as “indecisive, vacillating, and at times internally contradictory.”

By contrast, the court did not find that SAA’s direct discrimination claim was valid. When arguing that discrimination has taken place, plaintiffs have to offer the right comparators: X is discriminated against while Y is not. The examples offered by SAA were diffuse and insufficient to show discrimination: they argued that Harvard canceled speakers who were trans-exclusionary radical feminists (TERFs) but not antisemitic speakers. In the broader context of the culture wars, if one is hell-bent on viewing all political questions as lying on a right-to-left axis, this argument might make sense: it shows a progressive bias in speaker invitations. But I think the court was right in discouraging this way of thinking about things, because it is crucially important to disaggregate how people think about various questions of social, political, and economic interest. Take a look, for example, at this interesting story in the Stanford Review. Overall, yes, there’s a proliferation of leftiness on campus, but when one digs into the nuances of student opinions, one finds rich diversity on questions of foreign policy, domestic civil rights, and fiscal policy. Students and faculty who are deprived of a say in the invitation of speakers on Israel/Gaza/Hamas/Palestine might not be deprived of a say in gender policies. I also think that the association of “rightthink” on gender matters and “rightthink” on the Middle East is misguided at best and poisonous at worst, for reasons that should be obvious to any thinking person on either side of both issues. I like that the court decided not to conflate this stuff.

The UCLA case that resulted in a preliminary injunction revolved around the university’s failure to dismantle an encampment at the Royce Quad, which barred students for entering for failing to dismantle an encampment. The injunction prohibits UCLA from offering any educational programming to which Jewish students do not have access, and from colluding in preventing Jewish students from attending programs on campus in the future where other students can do so.

The plaintiffs in this case, by contrast to the Harvard case, were three Jewish students, who argued that they were prevented from accessing the Royce Quad, including the library, because of an encampment whose members would confront them about their opinions about Israel. Despite the fact that the plaintiffs were directly affected, UCLA argued lack of standing, making the point that there was no proof that such hindrances would be in place in the future. The court, clearly incensed about the antisemitic incidents at UCLA, rejected this logic, expressing concerns about how the fall semester would unfold given the university’s paltry response to the spring encampment.

Another argument brought about by UCLA was lack of causation, which I think is best understood as a “wrong defendant” argument. The protestors, it is claimed, were private students and entities, and the university itself did not contribute to what happened with the encampments. The court swiftly did away with this arguments as well, finding that UCLA continues to offer educational opportunities knowing that the Jewish students cannot avail themselves of these opportunities (including physical access to campus areas and buildings).

There are three conditions for obtaining a preliminary injunction: (1) likelihood of success, (2) irreparable harm to the plaintiffs should the injunction not be granted, and (3) a balance of equities. It looks like the federal judge thought that this lawsuit would eventually succeed, that the students’ education would be hampered were the injunction not to be granted, and that the discomfort, such as it is, to UCLA in having to grant equal access to its programming to all students did not outweigh the injury to the plaintiffs.

A few general observations are in order. First, while not all the facts in these cases were germane for the disposition of these preliminary matters (the actual lawsuits could drag on for years), they do paint a distressing picture of the daily life on campus. The images from Columbia are, of course, in the news today due to their president’s resignation, but the stuff quoted in these lawsuits is profoundly upsetting and dovetails with things I’ve heard from clients and colleagues about other campuses. I’m left wondering whether the emotional effect of the real-time unfolding of these events will wear out as the lawsuits go on. That the judges in both cases were deeply disturbed is evident in both decisions, though the Massachusetts judge uses more measured tones.

The second observation has to do with the proverbial “incident of the dog in the nighttime”–an issue that some might have expected to be brought up, but does not come up in either case, which surprised me because of its centrality to the Brandeis lawsuit against Berkeley Law–namely, whether Zionism is germane to Judaism to the point that hostile action against people for adhering to Zionist worldviews counts as religious discrimination. It simply did not come up at all in either case. The UCLA decision identifies the plaintiffs as “three Jewish students who assert they have a religious obligation to support the Jewish state of Israel,” taking their nexus between religion and political opinion at face value. The Harvard decision summarily acknowledges the proper basis for discrimination: religion (against Jews) and national origin (against Israelis.) It looks like both judges were not interested in the minutiae of how this debate unfolds in the intellectual communities which they examined, such as: can you disaggregate Zionism from Israeliness, can you disaggregate it from Jewishness, can you disaggregate it from support of, or objection to, the Israeli government, and other hairsplitting typologies and dichotomies in which academics are profoundly interested but judges and lawyers are not. It might be that the judges simply concluded what many of us also have: if it walks and quacks like a duck, that’s what it is, regardless of the verbal pretzeling around who might be a Jew and nevertheless pass muster with the protestors. It’s also a valuable lesson for potential plaintiffs and defendants in these cases of what to focus on. I’ve recently observed that what seems of high importance to academic (e.g., the particulars of why this or that expression is an antisemitic dogwhistle given the history and semantics of bigotry) is of little importance to people more worried about concrete examples of physical violence, vandalism, blocking entrance, etc. What I take away from this is the following: plaintiffs can and should grow thicker skins and focus on clear, discrete examples of discrimination and administrative inaction, while defendants should not prepare to expound on why they were violent and vicious toward someone because of quality A but not quality B. Looks like, when things come to court, no one cares.

Political Incarceration Under Siege: Jeremiah in the Pit of Mire

An important question in the sociology of punishment is whether the social reaction to deviance/challenge becomes more ferocious during times of social and political turmoil. This question is often attributed to Emile Durkheim and his concept of anomie. As Bruce DiCristina explains, Durkheim used the term “anomie” in various different ways in his scholarship: insufficient regulation of interactions, insufficient regulation of desires, excessive imprecision and weakening of the collective consciousness, and a decline in morality. Most crime and punishment theorists I am familiar with are interested in whether social control rises when the consensus is challenged: For example, Kai Erikson shows that, in Puritan colonies, repression and swift punishment were at their height during times in which religious authorities felt most challenged and imperiled. Similarly, there is a wonderful article by Martin Killias that compares 47 countries (as of 1972) in terms of their political structure and incarceration rates. Killias finds that countries plagued by dictatorships, high power concentration, unemployment, and unequal income distribution tend to be more punitive. Killias ties these punishment-enhancing factors into the concept of a “legitimation crisis,” which occurs “when rulers cannot meet the standards emanating from their own self-justification and when the power gap between rulers and subordinates grow and power is concentrated among a few.”

This makes a lot of sense: it doesn’t take a lot of heavy theorizing to figure out that a society at risk, in which the leadership faces challenges, lashes out at people and displays punitive power in a last-ditch effort to instill fear, if not earn legitimacy. A classic example of this can be found in Jeremiah, where the biblical authors outdid themselves painting a vivid picture of a city under siege, a king in decline, conflicts, intrigue, and secrets, and the resulting incarceration of a prophet suspected of being an enemy shill.

Harold Wilmington offers a thorough biographical sketch of Jeremiah, from which one learns that his fortunes swung high and low in the last few days of the kingdom of Judah. During the discovery (or the “discovery”) of the Torah under King Josiah’s reign, he served in an official capacity, helping implement religious reforms, but after Josiah was felled in the battle against Pharaoh Necho, Jeremiah fell out of favor with his descendants. The biblical text (as well as Wilmington’s biography) paints a picture of someone well known throughout the Judean kingdom as nobody’s patsy, and certainly someone who provokes strong reactions: steadfast friends and bitter enemies abound.

The text suggests that Jeremiah’s incarceration during the Babylonian siege was not his first time at the rodeo. In Jeremiah 36:5-6, the prophet dictates his prophecy to his scribe, Baruch ben Neriah, instructing the scribe to read the prophecy in public because “I am detained; I cannot go to the house of God.” It’s possible that short-term political detention of a tiresome dissident was a usual government approach during Josiah’s descendants’ reigns; the text, which describes a failed manhunt for Jeremiah and for Baruch, certainly suggests that Jeremiah was acting in the shadow of the law and had to evade capture. But things really come to a head under Zedekiah, the last king of Judea, a puppet monarch instilled by Nebuchadnezzar. Kevin Tolley contextualizes Jeremiah’s imprisonment:

Zedekiah came to the throne at a time of great spiritual, economic, and political turmoil. The previous kings had made “disastrous choices.” The city was caught between two external political powers since both Egypt and Babylon vied for power. Over the past decades, loyalties had shifted and allegiances had waned as Jerusalem was continually controlled by one side or another. Egypt had heavily taxed the people (2 Kings 23:33), and Babylon had pillaged the temple and national coffers and had exiled a portion of the inhabitants, leaving the state in financial ruin (2 Kings 24:13). Zedekiah had witnessed the murder of his father, Josiah, and the exile of his brother Jehoahaz. He had seen his brother Jehoiakim mismanage Jerusalem, which had caused the might of Babylon to come down on the city for a three-month siege, resulting in the death of Jehoiakim and the exile of his son Jehoiachin. Thousands of people were deported, and both the city’s economy and defenses were in shambles. Civil unrest prevailed, and various political groups competed for power. . .

For the next few years, Zedekiah maintained a quiet reign. The Babylonians had successfully cowed him. Few would have dared to question the might of Babylon after their armies had just sacked the city. Over his eleven-year reign, Zedekiah realized he needed to rebuild without provoking the ire of either Babylon or Egypt. Zedekiah was a well-intentioned leader (Jeremiah 38:14–16), but he was weak, vacillating, and fearful of public opinion (Jeremiah 38:5, 19).

Throughout Zedekiah’s reign, various political groups pressured Zedekiah to break his oath of allegiance to Nebuchadnezzar. Rumors began to arise that Egypt would assist in a rebellion against Babylon. News of civil unrest in Babylon reached Jerusalem; Zedekiah gave in to the pressures and joined an alliance with Egypt to rebel against Babylon (2 Kings 24:20). And so the countdown to Jerusalem’s destruction began.

In January 588 BC Nebuchadnezzar caught wind of the rebellion and moved quickly against Jerusalem, laying siege to the city. The blockade ultimately lasted over eighteen months. In the spring or summer of 588 BC, Judah became hopeful when the Egyptians began to march toward Jerusalem (Jeremiah 37:5–7). Nebuchadnezzar briefly left the siege of Jerusalem to smash this Egyptian resistance, and then he quickly returned Jerusalem. Zedekiah was in a desperate situation.

Kevin Tolley, “The Imprisonment of Jeremiah in Its Historical Context,” Religious Educator 20(3) 2019, https://rsc.byu.edu/religious-educator/vol-20-no-3-2019

What happens next, vividly described in Jeremiah 37-38, is a veritable political thriller. As the Babylonians lay siege to the city, Jeremiah prophesied the destruction of the city and the temple (presenting Nebuchadnezzar as an instrument of God) and outlined the three options: leave the city by escaping the siege, remain in the city and be ravaged by the Babylonians, or surrender and hope for the best. Jeremiah’s advice to surrender to the Babylonians did not sit well with a group of government officials, who managed to catch Jeremiah when he was dealing with some property matters at the Benjamin Gate. One of them, Irijah, accused Jeremiah of defecting to the Babylonians. Jeremiah said, “lie! I’m not defecting!,” but the denials fell on deaf ears and he was brought to the officials, who beat him up and put him in a place described as “beit ha’asur.”

Religious commentators fault the government officials for this grievous miscarriage of justice, and the classical midrashim, invested in Jeremiah’s image as righteous, all use remarkable linguistic gymnastics to explain how bad of a king Zedekiah was (by “bad” they don’t mean “politically weak, manipulated by the bureaucracy, and speaks out of both sides of his mouth,” but rather, “disloyal to God.”) Agaddat Bereshit 35:2 and Esther Rabbah, Petichta 6 both rely on the fact that Zedeikah is not described as a “king” (a word associated with the righteous), but rather through the verb “to reign” (suggesting that he is unworthy of the descriptive noun). But if one reads this story as a political thriller, rather than a theological morality tale, I think there is enough in the text to suggest that Jeremiah could be reasonably believed to be a Babylonian shill. Not only was he advocating surrender during a stressful time, which could erode everyone’s morale given the siege and resulting hunger, but he is later said to have been released and treated well in Babylonia (perhaps as an expression of Nebuchadnezzar’s gratitude?).

Rembrandt Van Rijn, The Prophet Jeremiah Mourning over the Destruction of Jerusalem, 1630

What sort of prison was “beit ha’asur”? Notably, the text does not speak in plural (‘beit ha’asurim”), and this perhaps strengthens the description of this facility: it is the house of Jonathan the scribe, converted into a makeshift jail, perhaps specifically to hold Jeremiah (was Jonathan in cahoots with Jeremiah’s jailers?) The architecture of this improvised prison is somewhat unclear, and different commentators have different takes on it. Jeremiah was put in “beit habor” and in the “hanuyot”, where he is said to sit for “many days.” The “bor,” translated as a pit, is said by 18th century commentator David Altschuler (“Metzudat David”) to be the worst place in prison (think “down in the hole”). But what are the “hanuyot”? Rashi translates this as “cells,” but Altschuler opts for the literal translation as “stores,” and Medieval commentator Radak explains that these stores were also converted into prison cells, akin to the conversion of Jonathan’s house. What I find interesting about this “hanuyot” business is that it is supported by some of today’s controversies about evidence of incarceration. Last week, as part of my rabbinical program, I attended our summer intensive, during which we took a phenomenal archaeology course with the one and only Brett Kaufman, who told me that some places where locked rooms were found were initially thought to be storage places, only to later be found to evince evidence that people were housed there (I need to dig, pun intended, deeper into this issue of material culture support for confinement structure.)

At this point, we’re thrown into a web of political intrigue to rival Game of Thrones. Zedekiah, who we already know is viewed very unfavorably in this text, gets Jeremiah out and into his own house in secret, asking him for the prophesy. Jeremiah repeats his dire predictions about Babylon, also complaining, “how have I sinned against you, your servants, and this people, that you put me in jail?” Jeremiah points to the fact that, so far, his predictive ability exceeds that of other prophets, who mistakenly (or perhaps buoyed by his brief sojourn in Egypt) prophesied that the King of Babylon would not move against Jerusalem. Jeremiah begs Zedekiah: “Don’t send me back to sit in the house of Jonathan the scribe, so I will not die there.” Zedekiah relents and moves Jeremiah to a place called “hatzar ha’matarah.”

Commentators differ widely on how they perceive this new space, which is obviously better than the “bor” and “hanuyot” area. Malbim says that Jeremiah sat there of his own free will, meaning that it was not a confinement space. Chomat Anakh says that this was a “spacious place, and even though it was still a prison, Jeremiah was not sorry” about the change in his circumstances. Metzudat David says that “incarceration wasn’t so hard there” and adds an important detail: that Jeremiah received bread from the bakeries every day until the bread supply was depleted, from which we learn that hunger and deprivation was beginning to affect everyone on the outside, too. Steinsaltz refers to this place as a “detention camp of sorts,” identifying it with a prior mention of the same place in Jeremiah 32:2. If these two places are not telling of the same incident, this implies that hatzar ha’matarah might have been a permanent detention camp, whereas the “bor” and the “hanuyot” were ad-hoc places with worse conditions, perhaps fashioned specifically for Jeremiah.

The story doesn’t end there, because apparently Jeremiah continues to advocate surrendering to the Babylonians even from his confinement in hatzar ha’matarah. Ministers who hear him speak to the people (unclear whether in person or through a scribe) turn to Zedekiah, asking for Jeremiah to be executed “for he disheartens the solders who remain in this town and the people when he speaks thus to them, because this man does not speak for the benefit/welfare of these people, but for evil.” If one removes the religious, pro-Jeremiah filter from this incident, the ministers’ concern seems valid, especially when mitigated by the lens of a siege and the prospect of destruction. Anyway, Zedekiah gives in, with a heavy implication that these ministers are more powerful than him and he simply does not have the clout to oppose them.

The descriptions of what happens next are horrifyingly vivid. The ministers use ropes to lower Jeremiah into a pit within hatzar ha’matarah, which is said to belong to one of Zedekiah’s sons. The cistern does not have water; it has mire, and Jeremiah sinks into it. But not all his friends have abandoned him. Ebed-melech the Cushite (or the Ethiopian, depending on translation), who was a eunuch in the king’s service, hears of this, and complains to the king that Jeremiah is to unjustly die of hunger. Zedekiah changes course again, ordering Ebed-Melech to take thirty men and pull Jeremiah out of the cistern.

The text offers a detailed description of the mechanics of this liberation effort. Ebed-Melech proceeds to take rags from the treasury and lower them carefully into the cistern using ropes (commentators explain that he does this so as not to drench them in mire.) He then calls out to Jeremiah to wrap these rags under his armpits, between his skin and the ropes. Once Jeremiah pads his armpits, the men pull the ropes, getting him out of the cistern, and returning him to his less constrictive confinement at hatzar ha’matarah.

It’s hard to tell who Zedekiah is more afraid of: Jeremiah, who perhaps he believes is telling him the truth, or the ministers, who can bring him down. Perhaps his concern for Jeremiah’s welfare is part and parcel of his fear of the Babylonians and he, like his ministers, suspects that Jeremiah is in cahoots with them. In any case, he tries to eat the cake and leave it whole. He again brings Jeremiah in, in private, through the third entrance of the House of God, and asks him to tell him the truth. Jeremiah understandably hesitates: “If I tell you, you will kill me for sure, and if I offer advice, you won’t follow it.” After Zedekiah swears he will spare Jeremiah’s life and protect him from his enemies, and Jeremiah repeats his dire predictions about the Babylonian destruction of the city and his advice to surrender so as to save it. Perhaps inspired by his own recent predicament, Jeremiah uses the pit of mire as a metaphor for Zedekiah’s fate. Leslie Allen comments that the “two crises are linked as cause and effect. The rejection of the prophetic message that resulted in Jeremiah’s dire predicament, despite the partial amelioration granted by the king, was to land Zedekiah himself in a comparable predicament. . . Zedekiah rescued Jeremiah from mud, but the king’s friends had abandoned him to it.”

Zedekiah keeps his word: he does not return Jeremiah to Jonathan’s house, but rather to hatzar ha’matarah. He even instructs Jeremiah to lie to the ministers and obfuscate about the true nature of his conversation with the king. Jeremiah manages to effectively deceive the ministers about his royal interview, and as a consequence remains in hatzar ha’matarah until the city falls. Notably, Zedekiah does not actually follow Jeremiah’s advice, and as a consequence sees his sons executed before he is blinded by the conqueror. Jeremiah fares better under the new empire–Nebuchadnezzar orders his captains and eunuchs to set him free, which they do, and he continues to prophesy to the freshly defeated people.

There are several remarkable features to this story. The first is the detailed, quasi-documentary description of the various confinement facilities: a pit, or pits; cells, or makeshift cells from converted storage rooms; a home converted into a makeshift facility as the worst location; an easier detention center. We are provided the minutia of lowering someone to the pit and elevating them from it, including the humane (?) measure of padding their armpits so they are not cut by the ropes. We are also told, akin to what we saw in Daniel’s story, details about food rationing, which are especially important during the miseries of a siege. And, we are offered a window into the use of incarceration as a tool in political conflict and intrigue, in which even the incarcerated person holds some modicum of negotiation power and how that plays into the reversals of fortune in the story.

This story is also a microcosm, a window into Zedekiah’s court. One thing I notice about all these exilic incarceration stories is the way the biblical authors use them: as a good index of quality of governance, akin to the well-known Tolstoy maxim. Lovers of Michel Foucault’s Discipline and Punish will remember his foundational distinction between punishment in antiquity (dramatic, violent, centralized) and punishment in modernity (decentralized, vague, aimed at the soul, normalizing, self-monitored). Foucault saw the prison as the epitome of a modern way of punishment, identifying earlier historical periods with corporal punishment. I think that descriptions of prison in antiquity both strengthen and challenge his framework. On one hand, incarceration stories tend to portray the regimes that run the prisons (Egypt, Persia, Babylon) and jails as capricious, risky, easily swayed by things like dreams or conspiracies, and spiteful. The power of incarceration is centralized and brutal. On the other hand, these are, undoubtedly, prisons. The sources do not make the distinction that modern penologists (including Foucault) make between prisons and corporal punishment. In other words, they support what I’ve come to see as true since we wrote Fester: incarceration IS corporal punishment. It can come in different flavors: it could be a drab, gray, vague experience at a modern juvenile facility that destroys the soul and makes people obedient and docile, or it can be the drama of throwing a particular person into a pit of mire and getting him out. But both are incarceration. We can, and should, revisit Discipline and Punish by decoupling prisons from modernity, and by seeing incarceration modes not as a historical rift, but along a historical continuum.

Are You a Self-Made Job Market Kryptonite? Develop Some Common Sense or Suffer the Consequences. Also, a First Amendment Primer Tailored for Your Campus Needs

Since writing this, and reading this, I expected things to deteriorate, and of course, they have: students who have publicly supported terrorists are suing private law firms that rescinded their job offers. This is absurd for reasons I’ve explained in a prior post:

It is also important to distinguish the right to free speech from the consequences of putting oneself out in public espousing horrendous views. Several law students in fancy schools are finding out, to their shock and surprise, that law firms are not all that keen to hire people who publicly extol the virtues of slaughtering, raping, maiming, burning alive, beheading, and kidnapping people. That being an antisemitic idiot with repugnant views is not a professional asset and has consequences in the job market shouldn’t be particularly surprising, unless you spent your undergraduate years under the tutelage of morally bankrupt people for whom espousing these “edgy” and “interesting” views was a calculated career strategy that catapulted them to prominence in fields like ethnic studies (read here a courageous letter by a UC Regent calling out the Ethnic Studies faculty council letter for what it is.) No wonder these students think they can spew horrid opinions in public and face no consequences whatsoever. What I find most amazing about the whole thing is that some of my colleagues are surprised by what they see on the campus quad. How is any of this surprising? Academic institutions, including the ones I work for, have breathed life into this Golem for years, and the last thing they should find astonishing is when it comes for them. They taught these people, but they didn’t educate them, and the proof’s in the rancid pudding.

But the thing that really gets my goat about this ridiculous lawsuit is that I’ve spent years either representing, or consulting for, activists, direct action folks, civil disobedients, etc. Doing this kind of work hones one’s fine sense of smell for who is the real deal and who is a performative, egomaniacal joke, i.e., who truly wants to effectuate change in world and who wants people to applaud them online. One tell-tale sign is that people who truly and selflessly believe in what they are doing are willing to take the risk of harsh consequences for what they believe. The animal rights folks I helped defend did not believe they were committing a crime by saving animals and documenting animal abuse in factory farms, but they did know that the counties that house these farms and the Farm Bureau lobbyists that fund the justice system in these counties would consider what they did a crime, and the result could be arrest, prosecution, conviction, and incarceration. They welcomed this eventuality, which would be very unpleasant for them, because they thought that criminal trials would be a way to raise the issues publicly whether or not they won and lost (of course, these are not all animal rights activists: many of them would rather make pig noises at Jewish speakers in City Hall than to do actual animal rights work, i.e., help the many animals who suffer from the war on both sides of the border. But that’s neither here nor there).

Anyone who thinks that a private lawsuit against a firm to protect one’s own bright future and pecuniary interests is going to move the needle on war in the Middle East is either disingenuous or an idiot (or both). Perhaps as disingenuous, or as much of an idiot, as the NLG clowns who advised law students that disrupting an event at someone’s private residence, which you are attending thanks to the owner’s personal generosity, somehow counts as consequence-immune free speech. Since it appears that all these supposed lawyers and law students have completely forgotten what they were taught in constitutional law, here are some reminders of the basics, complete with examples.

The First Amendment reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Like the entire U.S. Constitution, the First Amendment operates in the individual-versus-government space. It is the government that is forbidden from curtailing one’s free speech in public, not private entities–be they individuals, faculty members, students, student groups, etc.–and certainly not in private spaces. This is why suing a private employer who doesn’t want a shrill terrorism supporter to draw a salary from them is absurd. Here are a few other examples:

Also, odious as the “context” comments of the university presidents were at the hearing were, they were legally correct: when deciding whether something is protected or not, context does matter a lot:

Here are some recognized exceptions to the freedom of speech:

And here are the rules about some of the exceptions that come up most frequently in the context of student and faculty opinions about the war:

Fighting Words. These are defined, per Chaplinsky v. NH (1942), as words which “by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” The burden of proof is pretty high–Clear and Present Danger, per Termiliano v. Chicago (1949).

Defamation. I’ve seen examples of horrific maligning of people on social media. Insofar as these people are public figures, it will be hard to prevail on defamation. Per NYT v. Sullivan (1964), “[t]he constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Incitement to Imminent Lawlessness/Violence. Here, too, hyperbole doesn’t suffice to create the exception: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The example given in Schneck v. U.S. (1919) is the classic “shouting ‘fire!’ in a crowded theatre.”

True Threat. It is not protected speech to “direct a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death” (VA v. Black (2003)), but most of the stuff that gets yelled around campus would not be classified as “true threat” but rather as “political hyperbole.” For example, to say during the Vietnam war, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” is the latter (Watts v. U.S. (1969)).

Solicitation to Commit Crime. In criminal law, at common law, the term “solicitation” applies to a scenario where a person requests or induces another person to commit an act that would amount to a felony. In the context of the First Amendment, the Supreme Court has punted on opportunities to clearly define criminal solicitation. Again, judging from the other exceptions, specificity would be key here.

As you can see, this means that free speech is very broad in the U.S. context. Which doesn’t mean that using it incessantly is necessarily a good idea. Recently, a beleaguered Harvard concluded that the best policy is to stay away from statements and proclamations on matters that do not directly concern the educational mission of the school (Syracuse is following, and I expect other schools as well–my own workplace does this, and this letter from the Dean of Stanford Law makes the same point.) But this does not apply, obviously, to individuals within the university. I know very well what it’s like to work and study when surrounded by behaviors that are covered by the First Amendment, none of which on its own is beyond the pale, but whose cumulative effect is corrosive. Because, just like the people yelling and distributing terrible flyers, you are an individual with free speech rights, use them! Take a page out of Ron Hassner’s initiative. I joined him for one night at my office and it felt good to do or say something, too, not just remain mute in the face of upsetting things happening.

That said, you and your psyche come first, and we could all immensely benefit from stopping the ridiculous concept creep of the phrase “I felt unsafe.” Choose your battles, act accordingly, and shrug off any nonsense that will not move the needle one way or the other. If you think that this stuff will affect your actual safety (not just your job satisfaction), then I think you should act.

#FacultyVigil Tomorrow Night at My Office

My colleague and new friend Ron Hassner, who teachers political science at Berkeley, has been sleeping in his office for more than a week. Ron is protesting against the university’s failure to protect Jewish students from violent antisemitic behaviors, like the horrifying attack of last week. His list of demands is fairly modest: he wants Sather Gate opened, protection for speakers assaulted by students with opposing views, and campus-wide education on antisemitism and Islamophobia. Julia Steinberg reports for The Free Press:

“This is a campus known for its protest,” Hassner says. “Put up propaganda! Hang it everywhere! But don’t physically block students from walking. Don’t harass them. Please don’t strangle them. I think it’s possible to advocate for the Palestinian cause without strangling people.” 

I agree, which is why I will join Ron and several of my colleagues at the UC system to stage a #FacultyVigil tomorrow night. We all want to work and study safely. The boundaries of free speech in the US are wide enough to include lots of ways to disagree and express conflicting opinions without resorting to violence and terrorizing. If anyone wants to visit on Tue, I’ll likely be at the office (333 Golden Gate #320) from 7pm until my 9am class the next morning. If anyone shows up, maybe we can do a movie night (I propose Footnote) or we can just have a nice chat.

The Zero-Sum Game of Epidemiology

One of the problems of siloed reporting is that, in times of serious conflict, each side can remain isolated from news of suffering and horror on the other side. It’s understandable that parties to the horrific war in the Middle East can’t muster the attention, let alone the compassion, to read news from the “other side,” which explains why a San Francisco man telling of the slaughter of five family members by Hamas was met with jeers, horns, and pig noises, and why Matt Dorsey’s request that the sexual violence against Israeli women be similarly denounced yielded yells “liar” from my fellow San Franciscans. In my very institution, an educated, erudite, well-dressed man, a former colleague of many years, stood before an audience of 200 and ascribed facts of the massacre to “disinformation.”

But the problem goes both ways, and the Israeli press is not reporting on the humanitarian crisis in Gaza (nor is it easy for international orgs to do so). The Israeli’s public’s attention and capacity to feel for Gazans is pretty low. And, as Itamar Mann explains, if there’s anything good about the Hague tribunal taking place as I write, it is that it airs some of these realities, which we ignore at everyone’s peril.

There’s one particular aspect to this disaster that we cannot and should not ignore, regardless of where one stand politically: the war is unearthing a serious public health crisis, including diseases. And as Chad Goerzen and I explain in our forthcoming book Fester, seeing disease through a siloed zero-sum game framework is a horrific mistake. Here’s NPR covering the WHO report about this public health crisis:

MARTÍNEZ: All right, wow, so really bad. How have things gotten so bad?

DANIEL: Well, Gaza’s health infrastructure has really crumbled amidst Israel’s bombardment and ground offensive. The WHO says more than half of Gaza’s hospitals are no longer functioning. And that’s because Israel has accused Hamas of harboring fighters and weapons in and around those hospitals and under them in tunnels, putting them in the line of fire [H.A.: this wording implies the accusations were not true; they were, of course]. Plus, the conditions inside Gaza are a perfect storm for the spread of infectious disease. There is intense overcrowding, colder winter weather and a lack of clean water, sanitation and proper nutrition, which are services that are difficult to secure under Israel’s near-total siege of Gaza. Here’s Amber Alayyan, deputy program manager for Doctors Without Borders in the Palestinian territories.

AMBER ALAYYAN: It’s just sort of a cauldron of possibility of infectious disease. This really just is an infectious disaster in waiting.

MARTÍNEZ: And that brings us back, I suppose, to the World Health Organization’s prediction that disease could endanger more lives than military action.

DANIEL: Exactly. And it’s why global health groups are racing to ramp up disease surveillance efforts.

Anyone getting sick and dying from a preventable disease in the shadow of conflict is a tragedy. There are heartbreaking reports of Gazan children suffering from horrendous diarrhea and infections. But when one is overwhelmed with grief and rage it’s hard to see that. What should not be hard to see, though, is that viruses and epidemics don’t take sides.

I’ve had plenty of opportunity to see the zero-sum game mentality in action. In Chapter 4 of Fester we recount the public debate about vaccination priority. You’ll be able to notice the same thinking error problem right away:

Advocates were trying to combat disturbing news: kowtowing to public pressure not to prioritize prisoners, CDPH removed prison populations from tier 1B of vaccination. This misguided zero-sum thinking—based, of course, on the myth of prison impermeability—reflected similarly worrisome developments nationwide. In Colorado, for example, the first draft of the vaccine distribution plan prioritized the prison population, but the governor later backtracked, “sa[ying] during a media briefing that prisoners would not get the vaccine before ‘free people.’” His response caused public uproar and was reported in national media outlets.

Similarly, in Wisconsin, parroting the old law-and-order playbook, assemblymember Mark Born tweeted, “The committee that advises @GovEvers and his department tasked with leading during this pandemic is recommend- ing allowing prisoners to receive the vaccine before 65 year old grandma?”

And, in Tennessee, health officials placed the state’s prison population last in line, because a state advisory panel tasked with vaccine prioritization, which acknowledged that prison populations were high-risk, concluded that prioritizing them could be a “public relations nightmare.” Documents reported that the panel understood the problem: “If we get hit hard in jails it affects the whole community. Disease leaves corrections facilities and reenters general society as inmates cycle out of their sentencing,” the document read, adding that when inmates get the disease, “it is the taxpayers that have to absorb the bill for treatment.” But while corrections workers were bumped up to one of the earliest slots, incarcerated people—including those who met the state’s age qualifications for earlier vaccinations—were relegated to the last eligible group.

I knew this was public health idiocy even as it was happening, and wrote an op-ed about that for the Chron. In addition to the heightened mortality and supbpar healthcare in prisons, there was another important consideration that should have led everyone, bleeding-heart liberals and hard-line law-and-order folks alike, to clamor for prison vaccines:

Second, prisons must be prioritized because vaccinating behind bars protects everyone in the state. It is imperative to understand the role that prison outbreaks play in the overall COVID picture of the state. As of today, all but two CDCR facilities have COVID-19 outbreaks, and numerous prisons have suffered serious outbreaks with hundreds of cases. Months of analysis I have conducted, superimposing the CDCR infection rates onto the infection in California counties at large, show correlations between pandemic spikes in prison and in the surrounding and neighboring counties. Vaccinating people behind bars protects not only them, but also you and yours.

The result was disastrous but predictable. In Chapter 5 of Fester we show how prison outbreaks impacted the overall COVID-19 picture in California. Our epidemiological analysis, which relies on the Bradford Hill criteria, included a counterfactual model in which the outbreaks in prison were controlled. The results were striking:

Together, these show that due to the extraordinarily high prevalence of COVID-19 cases inside CDCR facilities, particularly during the year 2020, these facilities had a large influence on their regions, far more than their rela- tively small population and isolation would suggest. Note the difference between the total casualties in Marin County with and without the counter- factual—58 deaths, 22 percent of the COVID-19 deaths in Marin for this period—and the difference between the total casualties in California with- out CDCR facilities—11,974 deaths, or 18.5 percent of the COVID-19 deaths in California for this period. Furthermore, the outbreaks in San Quentin and CDCR occurred before vaccinations were publicly available and before effective treatments for COVID-19 were developed, making them particularly high impact on mortality.

That’s close to 12,000 preventable deaths in the state of California–outside prisons–that are causally attributable to the outbreaks in prisons. We point this out because even people who can’t find compassion for their fellow Californians behind bars should wake up to the fact that, if the incarcerated population ails, all of us are put at risk.

Israeli newspaper coverage does not feature the dire epidemiological threat, because people’s attention is focused on the more direct existential risk from the war (especially with the possibility of a northern front becoming more and more real every day.) In the overall noise of political partisanship we could forget how densely populated the Middle East is, and how soldiers go in and out of Gaza. We also forget how easily epidemics travel the world and could quickly spread beyond the Middle East. I realize I’m speaking to a wall of partisanship, rage, and fear. I worry that the halt in the process of releasing hostages and prisoners is going to make this as much of a quickening sand situation as Lebanon was, and that eventually the public health outcomes will decide this conflict, to the detriment of everyone.

BREAKING NEWS: In Blow to Netanyahu Government Agenda, Israeli High Court of Justice Restores Reasonableness Ground for Judicial Review

Today, the High Court of Justice published its 697-page decision (!), in which it granted the Movement for Quality Government and numerous other civil rights organizations a resounding victory against the Knesset and, especially, the Netanyahu government’s agenda to curb judicial review. By a 8-7 majority, the Court found that the amendment to the Basic Law, canceling the reasonableness ground for judicial review (a powerful tool for curbing government behavior that is technically lawful but makes no sense or excessively infringes on people’s rights), is invalid.

In a couple of days, I promise to provide a précis of the decision in English. For now, you can peruse the entire decision verbatim below.

Malcolm Feeley on the Universities’ Stammering on Antisemitism

(pictured above: architect Shari Mendes assisting military troops in handling female genocide victims.)

Prof. Malcolm Feeley, my legendary PhD supervisor and, for the last 25 years, my mentor, coauthor, and good friend, is one of the pioneering giants of the law and society field. He is universally admired and loved, and for good reason. Amidst the many characteristics that make him an outstanding researcher and thinker is his almost mythical ability to make sharp and revealing analogies across space and time. For example, in his amazingly creative address upon receiving the Paul Tappan prize, he compared convict transportation in the Early Modern era to electronic monitoring (I commented about it here). In his work on guilty pleas (Malcolm is the granddaddy of lower criminal court research) he made the paradigm-generating analogy between the prosecutor-driven generation of plea bargains to the transition from bazaars to supermarkets.

In an excellent opinion piece in The Hill, Prof. Feeley, who taught and researched at elite universities for fifty years (including a long stretch at Berkeley and respectable stints in academic administration, including as the President of the Law & Society Association and the Chair of the JSP program at Berkeley), draws on his formidable analogy powers to diagnose the reason for the stuttering university responses to the eruption of antisemitism on campus. It is a bitter, cutting analogy between the decisions faced by the university presidents and those faced by President Roosevelt during World War II not to save the Jews from the concentration camps. He explains:

Early in World War II, President Franklin Roosevelt learned of Nazi plans to systematically murder European Jews. Later, advisors urged him to order the bombing rail lines leading to Auschwitz. He rejected their pleas. Actions to prevent these murders, he responded, would turn the war into a campaign to save Jews, and in so doing undermine American’s support for the war.

And now?

On Oct. 7, we witnessed the most deadly pogrom, excepting the Holocaust, against Jews in modern history, and thousands of people danced in the streets, not only in Beirut, Damascus, Baghdad, and Tehran, but also on campuses in Philadelphia, New York, Cambridge, Ithaca, and Berkeley. At the time, no university official on a major U.S. campus that I know of unequivocally denounced this action as a pogrom against Jews and excoriated their students and faculty for celebrating the occasion.

Two months later, on Dec. 5, presidents of three major universities at which celebrations of the pogroms took place — Harvard, MIT, and the University of Pennsylvania — were questioned at a hearing of the House Education and Workforce Committee. Their collective responses were even feebler than those issued immediately after the pogrom. When called upon to say that the calls for the support of the pogrom of Oct. 7 were antithetical to Harvard’s institutional values, President Claudine Gay could only say, “I personally oppose this,” and then parse the speech/action distinction, defend speech, and announce that Harvard had beefed up security for its Jewish students. Nowhere did she say such views had no place on Harvard’s campus, and that she was ashamed to have such students and faculty at Harvard. President Sally Kornbluth of MIT and President Elizabeth Magill of Penn, fared only slightly better. All reacted defensively. None showed moral clarity, or demonstrated leadership. All obfuscated. At best, they seemed managers trying to cope rather than inspired leaders of noble institutions. At these universities, where almost all the students receive A’s, these educators failed.

This is not because they are anti-Semites or embrace the cause of Hamas. Rather, I think it is because they face the FDR dilemma: If they single out, and in no uncertain terms condemn, anti-Semites on their campuses, they run the risk of alienating a significant portion of the social justice constituency that they have helped to create and in part to whom they owe their positions.

You should read the piece in its entirety.

Malcolm also includes a factual tidbit I was unaware adds a piece of information that I didn’t know, but which doesn’t surprise me: a colleague of ours hired a survey firm to do a poll at Berkeley, and it turns out that 53% of the students enthusiastically shouting “from the river to the sea”–folks enrolled at the best public university in the United States–don’t know which river and which sea, along with much other breathtaking ignorance.

I deeply and fervently hope that the many thousands of academics around the world who admire and respect Malcolm will take the time to read his opinion piece and consider where they stand vis-á-vis the poison on campus. I also hope that they read the heartbreaking article in the New York Times about the horrific and systematic rapes perpetuated by Hamas terrorists during the October 7 massacre.

AJS Annual Meeting, Day 3

What a wonderful day I’ve had at the AJS meeting today! I highly recommend that every academic attend an annual meeting as if they were attending a science fiction or anime conference, and go to panels that strike their fancy and are interesting to them. Today I gave myself license to attend panels on topics that interest me deeply, including art and music, and learned a lot.

I arrived late this morning for the Jews Imagining Empire panel, and so missed Yaniv Feller’s presentation, in which he proposed to frame early modern Germany as a real or (after Anderson) imagined empire. I did, however, enjoy the Q&A, in which people asked whether there were features that distinguished empires from nation states, and in what ways are there empires without colonies. Yaniv said something interesting: empires support the nation state by defining the “other”.

Then, Roger Lernon talked about Franz Kafka’s writing about imperial scenarios from faraway lands (“The Great Wall of China,” “The New Advocate” about Grece, and “The Hunter Gracchus” about Rome), to express his ambivalence toward the Habsburg empire, as a Jew in the crux of emancipation and nationalism. Finally, Katalin Rac introduced us to two people I had never heard of before: the Turkologist Ármin Vámbéry (1832–1913) and the Islamicist Ignaz Goldziher (1850–1921), both of whom were Jewish and whose travels and studies raise interesting questions about the relative liberalism of different empires.

The next panel, Jewish Art and Architecture, opened with Daniel Stein Kokin’s presentation about Perli Pelzig‘s prolific artistic career. Pelzig was a sculptor and muralist, whose work can be seen all over Israel. I’ve seen his gorgeous mosaics in kibbutzim and also at the Dan Acadia hotel in Herzliya and it was so well integrated into the space that it didn’t occur to me to inquire after the artist! But it turns out that Pelzig also designed the wonderful Holocaust Memorial Wall at Los Angeles’s Temple Beth Am, which looks like thousands of fingers scratching, and its complement–Pelzig’s evocative sculpture for Yad VaShem, which features hands reaching upward.

This was followed by Carolyn Beard’s presentation about the crucifixion as a motif in Mark Chagall’s paintings. White Crucifixion (1938) is the most famous among Chagall’s 80 (!) crucifixion paintings and, interestingly, eight of them are self-portraits depicting Chagall alongside a Jewish Jesus, wearing a tallit and sometimes tefillin, and images of suffering Jews. Chagall’s Artist with Yellow Christ is a reference to Paul Gauguin’s picture of the same name (1890), and in Christ with the Artist (1951) he depicts angels on the left of Jesus and Chagall on the right. The cross bursts out of the canvas. In another image, Chagall depicted Jesus’ head as a clock, and replaced the INRI script with his own signature.

Then, Fani Gargova introduced a new framework for analyzing women’s contributions to European Synagogue Design. The tendency among scholars of historical architecture is to regard women’s contribution to synagogue architecture as marginal, considering their location (separate and removed) in the synagogue itself. But it turns out that women played an important role contributing essential artifacts, such as menorot and parokhot, to the synagogues, which have been (mis)analyzed as Judaica objects, rather than as what they are: part of what makes the synagogue a synagogue.

After lunch, I went to a fantastic musicology panel. Gordeon Dale introduced the emerging and wildly successful genre of “Pop Emuni,” presenting artists who are and present as Orthodox and engage openly with biblical themes. We listened to, and analyzed, four songs: Ishay Ribo’s Hine Yamim Baim , Akiva (Turgeman)’s Lekh Lekha, Hanan ben Ari’s Holem Kemo Yosef, and Narkis’ Avi Lo. Despite the sharp polarization in Israel, these artists have been able to break boundaries and enjoy wide public appeal.

Then, Ann Glazer Niren exposed the liturgical roots of Leonard Bernstein’s psalms work. Ann hypothesizes that Bernstein was deeply influenced by Solomon Braslavsky, a gifted musician, who was the cantor and musical director at Bernstein’s home temple Mishkan Tefila. Indeed, Bernstein returned to religious themes in many of his compositions, including Jeremiah, Haskiveinu, Mass, and Kadish. We got to hear excerpts from his Psalms–Psalm 148 (1935) and his Chichester Psalms–and learn about some of the wonderful musical devices he used: echoes of Beethoven’s Pathetique and text pairing (which is a huge part of Bernstein’s genius and which I’ve appreciated every time I’ve sung or listened to his work.)

Finally, Amanda Ruppenthal-Stein introduced us to the Abayudaya Jewish community in Uganda, sharing and analyzing the wonderful polyphonic interpretation of “Ha’Azinu” (Deuteronomy 32).

A great coda to the conference was a panel about gender and queerness in Jewish ritual spaces, which opened with Morey Lipsett’s analysis of the “Agaddic element” in the liturgy at my local synagogue, Congregation Sha’ar Zahav (CSZ). I’m an occasional visitor there (one of my goals in the new year will be to become a more regular attendee) but Morey grew up in the congregation and, relying on Walter Benjamin and Judith Butler, he looks at how the synagogue’s founders and leaders have transformed the Kabbalat Shabbat ritual to encompass dynamic ideas of gender and sexuality, beyond just pointing out the patriarchal aspect of orthodox tradition, and toward creating an affirming and accepting space.

Then, Shlomo Gleibman led us through an investigation of the havruta (a long-term committed religious study partnership) as a queer space, starting with one of my favorite pair: Rabi Yohanan and Resh Lakish, from their erotically charged encounter in the river to what is arguably the most epic, dramatic breakup ever. We followed other havruta queer pairings, in the literature of S. An-sky, I. B. Singer, S. Y. Agnon, Tony Kushner, Michael Lowenthal, and Evan Fallenberg.

Finally, Isabel-Marie Johnston surveyed and interviewed Orthodox and non-Orthodox Jews about their mikvah immersion practices. Her data indicates that the Mikvah offers relief and healing properties to many of the respondents, but especially to those with complicated micro-minority identities: people in intermarriages, people of color, people of complex sexuality, etc. But it turns out that exclusive practices in many Orthodox-run mikvaoth, including innocuous-seeming screening practices, are a real turn-off to these people.

I learned a lot and have tons of wonderful ideas for future research, and feel professionally energized for the first time in many months.





AJS Annual Meeting: Day 2

Another fascinating day at the AJS Annual Meeting, in which I learned a lot – including about issues surprisingly close to home.

The first panel, Holocaust in Art and Literature, opened with Roy Holler’s talk about Yoram Kaniuk’s book Adam ben Kelev and its film adaptation starring Jeff Goldblum. Of all Israeli authors, Kaniuk is one of the most difficult and least accessible for me, so I was grateful for Roy’s take: rather than seeing the book as a story of human-animal transition, he reads it as a story of “passing” across species and of a commitment to avoid joining a species capable of atrocities. As Roy said, “Instead of ‘God created man’, it’s ‘man created himself in the image of a dog.'”

Next, we heard from Angelica Maria Gutierrez  Ravanelli, who studies Argentinian holocaust remembrance and spoke of a graphic anthology called Camino a Auschwitz y Otras Historias de Resistencia. It’s a controversial, edgy, and sometimes queer take on holocaust survival, which draws inspiration from both Maus and Fun Home: the story of a prostitute who dies in the gas chambers; the exploits of a gay partisan and his sexual escapades in the forest; and an ambivalent, conflicted story about Eichmann’s capture. Angelica walked us through the timeline and plot of the stories, the graphic motifs, and the controversy that their publication stirred in Argentina.

The panel ended Anne Rothfeld’s talk about a fascinating investigation conducted by Evelyn Tucker into several wonderful paintings by Egon Schiele. It turned out that Egon Schiele was treated by a dentist called Rieger and, short on cash, paid him in fantastic paintings, including Wayside Shrine, Cardinal and Nun, and Harbor of Trieste (all of which can be found now in the Dorotheum). Welz, a member of the Nazi party, got the paintings from Rieger. Tucker suspected that Welz had flourished by spreading a tale of benefitting from American looters. Welz’s version was that he helped Rieger escape (he had not; Rieger died in Theresienstadt.) Eventually, Tucker was relieved of her position after a conflict with the army. The whole thing was fascinating.

The second panel, Negotiating Danger, Difference, and Death, had assorted rabbinical commentary that I found interesting. The highlight for me was Mika Ahuvia’s talk about Angels in Late Antique Conceptions of Death, because some of the images she analyzed came from sarcophagi in Bet Shearim, which is right next to my home town and where I run when I visit my mom. While rabbinic texts identify only male angels (Michael, Gabriel, Raphael, and Bney ha-Helohim from Enochic texts), piyyut and midrash (Bereshit Raba) identify some feminine angels. And, a sarcophagus image depicts a winged female figure. In addition, murals in the Dura synagogue depict a similar figure descending to the underworld.. Where did it come from? Mika identifies the similarities between the figure and the Greek figure of Psyche (Suke in Greek) and investigates artistic copying and common influences.

Shulamit Shinaar uses lenses from critical and queer disability studies, as well as from medical sociology, to examine biblical and rabbinic prohibitions on, and dispensations for, people with disabilities and their caregivers. She relies on Mike Bury’s concept of “biographical disruption”–the impact of a diagnosis on the person’s now threatened identity, their plans for the future, and their daily life. In light o this framework, Rabbinnical literature views people’s lives as disrupted, including their ability to work, dependency on others, and illness impacting witnesses and legal proxies. This lens explains the exemptions for sick people and for their caregivers: Sabbath, Yom Kippur, and seeking healing using objects that are prohibited (except for the “big three”: avodah zarah, incest, and bloodshed).

Finally, Gal Sela turns to Ta’anit 24a-b to discuss theurgic perceptions in the Babylonian Talmud. The story has to do with Rava, who unsuccessfully tries to bring rain through a fast, and when people complain that in the days of Rabbi Yehuda this was easily done, recurs to explain that the more rigorous learning of this generation is insufficient and that the previous generation had a more direct connection to the divine. We talked about the power of the sage, through the ritualistic act of removing his shoes.

The methodologies that were most familiar to me were in full display at the Haredi sociology panel. I learned a lot! First we heard from Dikla Yogev and Nomi Levenkron, who have studied the Meron disaster using information from government meetings, observations and interviews with the police and the public, and an “urgent ethnography” of online data collection (WhatsApp groups and a website.). The Meron celebration, which became Haredi-dominated from around 2000, raises various problems involving transportation, site management, lost children, and the like. Social network analysis shows that the most prominent people to discuss and address the event were the haredim themselves, including the Meron Committee head and the Holy Sites CTO. Dikla and Nomi conclude that Meron suffers from government instability; the police struggle to establish public safety, which is low on the priority list and managed through a network of informal connections that prioritize Haredi brokers and deprioritize the police.

It was interesting to see this unfold in light of Nomi’s other paper on the panel, hilariously titled “The Father, the Son, and the Holy Spirit,” and recounting the regulation of the 1956 Meron celebration. Her point of departure is that police work in holy places calls for negotiation, which has both symbolic and practical aspects. The three parties to the negotiation wanted different things out of it. The father was Ben Gurion, the prime minister, whose establishment of Israel was accomplished through difficult compromises with the Haredim, and therefore needed to give in to them on the celebration; his son, Amos Ben-Gurion, who was a senior police officer, was concerned about the site’s safety risks and demanded to cancel the event; and the Holy Spirit, the Ministry of Religion, needed the Ultra-Orthodox as part of the coalition. To some extent, the 1956 paper provides an omen/explainer of the 2020 paper.

Miriam Moster talked about the ocioeconomics of Haredi Divorce in New York, which used to be fairly common but is now extremely rare. By contrast to divorcées in the general population, among Hasidim, education and home ownership actually make leaving the marriage easier. Miriam also pointed out that finances tied to the husband, especially in cases where the whole extended family is financially entangled–and especially in illegal/under the table dealings–make leaving more difficult. The fallout of divorce can be harsh from an informal social control standpoint.

Finally, Hannah Lebovits discussed the housing patterns of Haredim in American municipalities, showing how leadership deals with housing and contrasting two models: “housing at all costs” (cutting corners, informal economic workarounds) versus “pragmatic skepticism” (representation, legal cases, civil rights action, etc.) She used the term “ritual urbanism” to describe, among other factors, how some spiritual leaders (“rebs”) of the community present themselves as messengers of God when advocating for spatial design or land use.

I was going to stay for more, but instead opted for catching up with Dikla and Nomi and then had to replace all my bicycle gear, which was filched from my pannier by someone who probably needed raingear and a Narcan kit more than I did (but did he really have to steal my helmet and gloves, too? Grrrr.) Very eager to return to the conference tomorrow!

Association of Jewish Studies, Day 1: Dreyfus Postcards, DEI and Antisemitism, and Daughters’ Inheritance

As hinted in various posts, my big professional pivot has been in the works for a while. This year I started my rabbinical studies at the International Institute of Secular Humanistic Judaism (IISHJ). IISHJ requires all its rabbis to complete an advanced degree in Jewish Studies, which brought me to the Graduate Theological Union’s Richard S. Dinner Center for Jewish Studies. In addition to my full-time work, I’m studying full time for a masters degree, and this week I finished the first semester. My plan is to pivot my scholarship at UC Law SF toward Jewish law and Jewish studies, and I have big plans for fostering and encouraging a vibrant academic Jewish legal experience on campus. After retirement from legal academia, I plan to turn to rabbinical work full time.

Today marks an important milestone: I attended my first-ever annual meeting of the Association for Jewish Studies which, conveniently, is being held in San Francisco. I’m not presenting anything–my two brand-new papers haven’t been submitted for publication yet–and it’s been a great experience to listen, rather than talk! Getting into a new field requires quite a bit of humility, and I confess to being overwhelmed when I visited the huge book exhibit and saw the vast wealth of knowledge and original research. It’s daunting and, at the same time, exciting to join such a prolific enterprise, and I wonder what I can contribute to this flourishing field.

I started my day with a panel on visual representations of violence, in which Louis Kaplan introduced us to the work of photographer John Guttman. Trained as an expressionist painter, Guttman switched to photography when he figured that he would not be able to leave Berlin with money, but would be allowed to take expensive equipment out of the country. He bought a wonderful camera and somehow persuaded a German news agency to be their foreign correspondent in San Francisco… and ended up in a gorgeous apartment in Russian Hill. From Tara Kohn we learned about how archival gaps and absences affect our ability to learn about photography–in this case the work of Alter Kacyzne, who documented Jewish life in Poland in the 1920s and 1930s. Only 700 of Alter’s many photographs are in existence–but evidence of their existence exists in copies and references, as if they were fossils. But the most interesting bit, to me, was Karine Macarez’s presentation of… postcards, posters, and trading cards about the Dreyfus Affair! In my work on true crime podcasts, I always think about Marshall McLuhan’s The Medium Is the Message reminder, but here is proof that participatory, sensationalist true crime engagement–complete with wrongful conviction activism–existed through the creation, sale, and exchange of these postcards, which are rife not only with antisemitic tropes (used both straightforwardly, as in the case of Dreyfus’s maligners, and ironically, by the Dreyfusards) but also with actual forensic evidence: people would buy and collect postcards bearing Dreyfus and Esterhazy’s handwriting.

After lunch, I attended a panel in which Amy Simon (Michigan State), Greg Drinkwater (Berkeley), Nathan Paradise (Minnesota), and Lauren Strauss (American) spoke of their activism–unpaid, emotionally taxing, and exhausting work–to include Jewish concerns and marginalization in the academic curriculum, especially after the Hamas massacre and the eruption of the war. The session was very well attended–standing room only–and offered some thoughts about whether, and to what extent, Jewish issues (including antisemitism) can and should fit in a DEI framework. Lots of useful takeaways, including the huge variation among campuses not only in policies and curricula but also in the interpersonal relationships between the different personages: campus administration, ethnic studies folks (often, but not always, a department devoid of Jewish voices), Jewish studies departments (which are not supposed to be advocacy centers but sometimes become such), Islamic studies departments and colleagues (who sometimes form great coalitions) and the student body (including a big conversation about the extent to which TikTok and the like shape young minds before they even come to college.) It was a great conversation which, while not offering a ton of hope, offered some interesting perspectives and ideas to try, and made me feel a lot less alone than before. I also plan to read Kenneth Stern’s The Conflict Over the Conflict (and will post a review soon.)

I then got to hear a fabulous roundtable about women and biblical law, featuring several interesting projects. Yael Landman, who uses a law-and-literature lens, discussed women’s property rights, especially regarding daughters’ dowries and inheritance; Samantha Rainford, who also studies inheritance roles, highlighted how the the daughters of Zelophechad had to be legally “made into men” in order for their inheritance to fit into the patriarchal lens. GTU’s very own Jennifer Lehmann studies maleness and masculinity in the Bible; as she explains, while men have been the focus of Biblical literature, only recently have they been studied through a gendered lens. She discussed two fascinating examples: Jacob’s sexuality in the Leah/Rachel bait-and-switch, and Joseph’s sexual victimization at Potiphar’s house (including issues of sexual servitude–and comparisons with Hagar.) And Sarah Shechtman discussed embodiment in biblical ritual.

I learned a ton, bought a heavily discounted set of the Bavli with English translation, and I hope made some new friends. Back tomorrow for more!