“Apolitical” Judicial Selection in Israel? Lots of Moving Parts

A few days ago I drew your attention to the upcoming election to the Israel Bar and, particularly, to the thoroughly corrupt candidate who had sex with women in exchange for guaranteeing their appointment to the judiciary. The crippling shame of having someone like that at the top of the administration’s licensing profession in itself should be enough for lawyers of all political stripes to vote him out. But yesterday I had an opportunity to think about the wider political ramifications of this election, when former politician Ophir Pines-Paz spoke at the democracy protest in Kiriat Tivon.

My parents were both deeply involved in the struggle for democracy and against corruption in Israel, opposing the occupation, religious coercion, social and financial inequalities, and the crimes and excesses of Netanyahu, his family members, and his government. During Netanyahu’s previous government, they protested weekly in front of his house. When this horrendous government took office, my parents faithfully reported to the protests each week. Sometimes, my dad would protest mid-week at an intersection, waving his big flag in hand. Today I felt called to take his place, as his kind, hugging, righteous arm let go of his flag for the last time last week. I took my dad’s flag and went to the protest, alongside a dear friend and thousands of attendees (the above picture does not do justice to the amazing sights and sounds.)

Anyway, as Pines spoke to the protesters and explained the importance of the bar election, I realized that the Israeli system might be opaque to English-reading audiences, and the scandalous possibilities of this election are too complicated, perhaps, for the American press to pick up. So here’s your primer:

Israel does not hold judicial elections, as in U.S. states, nor does it hold purely political hearings by the legislature for its Supreme Court Justices as in the U.S. federal system. All judges in Israel are appointed by the President of Israel following the recommendation of a special committee, whose current structure, by law, is this:

The committee is designed to have an ostensibly professional majority: five lawyer/judge members and four politicians. Also, by custom, one of the elected Knesset Members is from the coalition and one from the opposition.

The proposed governmental “reform” would change the committee’s composition to look as follows:

Under this proposal, the committee would have eleven members, and judicial elections can be decided by a seven-member majority. In other words, if seven coalition members vote for a judge for political reasons, the sole opposition member and three judges cannot block them.

Thanks to dogged, relentless protests nationwide, the proposal has not passed yet. But the struggle to politicize the judiciary to guarantee that it favors the government continues on a variety of fronts. Two days ago, the government attempted to elect two coalition members (as opposed to one coalition member and one opposition member) to the committee. The vote was secret, and despite their efforts to drag things on and on and recount the votes for hours on end (how long does it take to electronically count 120 votes?) the Knesset elected only one member – KM Karin Elharar from the opposition. This means that at least four members of the coalition are secretly disgusted with Netanyahu and his governmental partners, though not brave enough to come out in opposition to their noxious plans.

What these noxious plans amount to is sitting government loyalists, ready to disenfranchise minorities, intensify the horrors of the occupation, and give free rein to the religious authority, in the Supreme Court, and more specifically, to block the appointment of a quiet, professional, independent judge by the name of Itzhak Amit to the Supreme Court. The coalition demonizes Amit and paints him as a post-Zionist demon. But in fact, he is widely respected as an excellent, hardworking, unassuming judge, and his sole sin apparently is that he decides cases based on the legal arguments, rather than by politics.

Can they do it? Let’s do the math:

With Elharar on the committee, and the three Supreme Court Justices presumably in favor of a strong, independent constitutional court, we have four votes for Amit and other independent judges. On the other side we have the two government ministers and the yet-to-be-elected coalition Knesset Member. The two votes up for grabs are those of the lawyers. Do you now understand why the government is so keen to seat Effie Naveh as the Israel Bar Chairperson? According to a recent exposé, Naveh’s campaign donors did so with the understanding that he will, in exchange, finagle a seat at the judicial election committee for them.

Now, Naveh has been consistently denying that he is beholden to the architects of the judicial reform. These vehement protestations are not particularly credible, given the efforts that the government is making to get him elected. But the bottom line is that Naveh’s personal or political opinions do not matter at all. He has been publicly exposed, and criminally convicted, as an unprincipled man, whose massive bribery and fraud operations are conducted to enrich him and his friends and to sexually gratify him. Is this the sort of person this government can do business with, as far as judicial appointments are concerned? You bet.

One of the challenges of the anti-government protests is that the insidious attack against the country’s democratic regime takes place on multiple fronts, including those hidden from sight. I hope this post shows how tinkering with each moving part of the judicial selection process can have vast consequences for democracy, and encourages those of you with an active Israel Bar membership to vote on Tuesday–and those of you with lawyer friends to encourage your buddies to vote Naveh out of office.

Op-Eds and their Aftermath

The process and aftermath of yesterday’s Op-Ed in the Los Angeles Times reminded me that some aspects of my job are not as transparent as teaching in the classroom and worth explaining a bit more. Academics do many things beyond teaching: publishing, committee work, conferences/meetings. Some of us also do policy work, some of us with law degrees litigate pro bono, and some of us appear on the media as analysts and experts. Much of this work is either unpaid or underpaid–whether or not that’s justifiable is hotly debated.

Writing op-eds has made my other writing (academic and popular) better, because it teaches two important skills: relevance and parsimony. Op-eds are time-sensitive and must address an issue on the news. They are also restricted in length (aim for about 800 words), and getting them to the sweet spot between gravitas and brevity often requires a productive cooperation between author and editors. Happily, I’ve had great experiences writing op-eds for the Chron, the L.A. Times, and the Daily Journal, among other outlets, which taught me to be as snippy as I can in the first draft, lest something I’m fond of ends up cut in the edits.

Even with these caveats, sometimes important clarifying information gets left out, which is a bummer, and sometimes inaccuracies slip in–which means you have to find a way to let that go after the thing is already in print.

What is somewhat of a new phenomenon, or certainly exacerbated over the last few years, is the extent to which an op-ed generates a lot of feedback addressed directly to the author (as opposed to a letter to the editor or somesuch). With a topic like the Manson family that’s to be expected–even fifty-five years after the fact, these cases still provoke a lot of strong emotions–but I am somewhat taken aback by the expectations and entitlement of complete strangers. I suspect the Internet is to blame; it has laudably democratized the public square, but it’s also significantly lowered the thresholds of basic decorum and restraint, and with the general erosion of public discourse, I suppose it’s inevitable.

Yesterday’s op-ed yielded two curious and more-or-less politely worded messages, one of which included a request that I call the person (with their phone included!) to discuss my philosophy of punishment and the other was an actual call placed to my cellphone with a request to call back (!!!), and three exemplars of hateful drivel (one of them truly vile–you know who you are, bud.) I skim all these things to figure out whether it’s a police matter or random viciousness; this time, I’m relieved to say, it was the latter. I have some questions.

To the folks who write politely or semi-politely and leave a phone number: Thanks for your interest in my op-ed and for not threatening to kill/rape me (it’s not a high bar). Pals, do you truly expect a complete stranger, whom you’ve contacted out of the blue, to call you and discuss what they wrote in the op-ed? Do you believe that the author owes you this time and effort? If so, why? Do you think the author gets paid to return calls to random strangers throughout the country to discuss their writing? If so, who do you think pays for this? When you don’t get a call back, are you disappointed? Are you looking for more intellectual stimulation and being proactive about it in a weird and somewhat inappropriate way? If so, that’s weirdly heartwarming, and may I recommend reading some of my books (here they are) instead of seeking an awkward phone conversation?

More importantly, i’m deeply curious about the hate mail authors. They often come in the early hours of the morning, which suggests that they come from people who read the print edition of the paper or from people who get up early on weekdays and weekends but have plenty of time to kill (I used to get the vilest emails after early-morning CBS-5 appearances.) Some of them suggest the person read the op-ed; some suggest they didn’t – just skimmed the headline and googled me. If you’re the author of vile hate mail, I have some questions, and perhaps you can indulge me:

What sort of person are you? Do you wake up early in the morning excited about writing vicious things to complete strangers? Do you approach the paper strategically, looking for people to attack, or do you just let the spirit move you? Are you proud of this behavior? Do you tell people (e.g., your spouse if you have one) you do this, or is it just your little secret? Do you get a thrill out of the prospect of upsetting the addressee, or do you just unburden yourself and not think of the recipient’s reaction at all? If the person told you their father was critically ill in hospital and was anxious and upset when receiving your message, would you feel contrition, schadenfreude, or something in between? And how does this habit harmonize (or not) with the rest of your life? Do you also get into road rage incidents? Problems at work? Are you verbally or physically abusive of your family members? What does it feel like to walk around with so much rage in you? Aren’t you worried about getting a heart attack?

Most importantly, to everyone: It’s the newspaper. If you read something you dislike, you have choices that do not include pursuing the author. You can discuss the article with your friends and family, or you could just move on. There’s always tomorrow’s news.

Yours truly,

Your local small-time public intellectual

In Memoriam: Gad Barzilai

Lately, I feel like an increasingly big part of the second half of my life is saying goodbye to people I love. Just recently, we unexpectedly and prematurely lost so many friends. This morning we received the terrible news that our friend and colleague Prof. Gad Barzilai, of Haifa University (formerly of Tel Aviv and University of Washington) has died of heart complications. It was very sudden and he was only 65 years old.

I met Gadi in Tel Aviv, when I was a frustrated postdoc there, and his advice and encouragement through the job search process was invaluable. His humanism and optimism was uplifting. We later worked a lot together at the Israeli Law & Society Association and at LSA, whose conferences he attended without fail.

Gadi was a scholar of universal renown, whose writings straddled the fields of constitutional law, administrative law, and political science. His book Communities and Law dealt with questions at the heart of Israel’s current crisis: how should majoritarian democracies treat minorities with identifiable community cultures? In the book, Gadi discusses the case of Israel, focusing on three such minorities: Palestinians, women, and ultra-Orthodox Jews. By contrast to much of the political science literature, from Robert Nozick through to Bhikhu Parekh (thank you, Sam Scheffler, for teaching me this literature) Gadi didn’t have a prescription to fit all majority-minority situations. Rather, he thought that each minority culture frames its own interest in, and ability to, engage with the majority culture in a different way, which requires

flexibility in framing the appropriate response within liberal societies.

This idea–of letting disenfranchised groups speak for themselves and understanding them on their own terms–also characterized his pedagogy and administrative work. An expert on Israel’s political culture (and the president of the Association of Israel Studies between 2011 and 2013) Gadi forged relationships with scholars, students, and administrators of varied backgrounds and walks of life. He used to say that research (and life) were “revolutions in a tie.” His administrative career was a testament to this. Under his Deanship, Haifa University bolstered and strengthened its impressive clinical program, with the idea being putting legal studies into practical use by helping those unable to afford legal representation.

Gadi was also a high-profile commentator on current events in Israel, where his vast goodness and common sense made him uniquely qualified to be a straightforward voice of basic morality. His last few posts on Facebook are a testament to this. Upon hearing that the 37th government sabotaged the ability to monitor domestic abusers with electronic cuffs, he said, “this is a clear sign of a country in serious moral crisis; we might be able to save the legal system, but who will save a woman who will be murdered? Shame on you.” His analysis of the convoluted events of the last few weeks was always crystal-clear, spot-on, and prescient. This article (for the Hebrew readers among you) is an example of his ability to convey complicated ideas in ways that everyone can understand and relate to, legally and morally (“the chances of a written constitution in Israel are just like the chances of me being a world champion in running.”) And in this article he warned all of us of the brewing civil war. In one of his last interviews, he articulated his vision for Israel’s constitutional future:

I want a bill that enshrines human rights that, to this day, are only supported by the High Court of Justice–the same “dictatorial” High Court that is now being challenged–which will include freedom of speech, freedom of travel, freedom of religion and freedom from religion. It’s great to be Ultra-Orthodox, but it’s also great to be secular, and every person must have the freedom to live according to their views. At the end, we must improve the existing Basic Laws, to enshrine human and civil rights with an emphasis on minority rights.

I’ve now seen lots of testaments and obituaries online, and interestingly very few of them focus on Gadi’s own scholarship, which was vast and impressive; rather, people are commenting on how Gadi supported and encouraged their own work. Because that’s exactly who he was: devoid of any ego, incapable of pettiness, he was universally generous to all. Always with a kind word to everyone–fancy people in the field as well as undergrads and grad students–and always expressing deep curiosity and interest, a desire to learn, and a sense of partnership and enthusiasm about other people’s work. Always a champion of his friends and colleagues, Gadi was constantly one of my recommenders for any job, award, or grant I went for, and always effusive in his advice and praise. He also chaired the panel that celebrated my first book, Cheap on Crime, and had such wise remarks about it. I think we all felt that Gadi was an expert in our field because he was so knowledgeable in all fields.

Gadi had known for a while that his cardiac condition spelled trouble, and had made lifestyle changes in terms of exercise and diet; but he continued to work himself ragged and worry desperately, from the depths of his big heart, about the future of the country he loved so much and fretted so much about. I really do think that this government broke his heart. It is precisely in these dark times that we need courageous voices of common sense and a strong moral compass to remind us that there is an objective good and that we need to care about everyone, not just let the majority trample human rights. With Gadi’s voice muted and his great light dimmed, I worry more for us all. What is remembered, lives.

AI Is Here, and Law Schools Must Decide What They Are

Throughout the week I’ve been wanting to blog about various things I care about: the proliferation of true crime podcasts and the role they play in exonerating people; the alarming rise in botched executions and what that might mean for the death penalty; the reentry promise of SB 731 and its imperfections; the looming elimination of the crack/powder cocaine sentencing disparity; some new alarming information about COVID-related neglect in jails; and many other issues. Unfortunately, my whole household was struck by a particularly vicious version of Influenza A, and I’m only now crawling out of a feverish nightmare to finish plowing through a gargantuan pile of exams I must grade. Which is why this week’s emphasis on the rise of AI and its meaning for higher education is front and center in my mind.

It all started, for me, with this Atlantic article, which portended the death of college essays. Everyone around me is playing with AI playgrounds such as this one or this one, asking it to write essays, haikus, recipes, ads, and whatnot. The results are often amusing and quite shocking in how superficially okay they are. My colleague Brian Frye even produced this valiant attempt to get the thing to do a meta-discussion of its own inherent dishonesty. And here I am, about to grade twelve seminar papers (in addition to 90 exams, thank you very much), wondering if I should even bother running them through Turnitin to detect plagiarism. It appears that the new plagiarism tools have birthed new plagiarism detection tools unique to AI, and this is surely not the last move in this game, as the arms race to artificially produce text indistinguishable from a human thought product is bound to get more and more sophisticated.

My first reaction to all this was utter despair and the sense that the human race–or, at least, the subsection of it that includes educators like me–has become obsolete. The singularity is nigh! Our flimsy protections are Asimov’s three laws of robotics! Then I got to thinking and chatting with a few friends.[1]

My point of departure is that I hate plagiarism and all that is related to it in academic work. I can see people borrowing from themselves in the course of closely related projects (kind of like Mozart or Beethoven), but generally speaking, the concept of plagiarism should not be confusing or morally gray. As a colleague[2] defines it, there are two types of ideas in any academic work: those that come from your head and those that come from other places. The latter set has to be properly attributed. That’s basically it.

At the same time, I have serious doubts about the utility of aggressive anti-plagiarism enforcement in law schools, for three main reasons. First, given what we know about the development of adolescent brains, most of the folks we encounter are in their early twenties, when their prefrontal cortex is still growing and developing. That, as we know from a trilogy of Supreme Court cases interpreting innovations in developmental psychology and neuroimaging, is the part of the brain responsible for weighing consequences, resisting peer pressure, and delaying gratification. In my almost twenty years of academic teaching, I’ve seen some people truly change and mature just in the course of the three or four years that I’ve been exposed to them. In one case, I testified on behalf of a recent graduate at the State Bar Court. This guy was involved in a pretty serious case of academic dishonesty in his first year of law school, and when I met him–at the beginning of his second year–he was still rather immature compared to others. But I got to teach him throughout his law school career and was profoundly impressed by how much he had changed during that time. In his last semester with me he was not only contrite about what he had done (y’all already know what I think about expressions of remorse) but also much more mature; had produced a superb piece of original, empirical work for one of my courses; and developed much more sophisticated thinking about social problems. A lot of these cases, even when severe, reflect the sort of immaturity that people can put behind them if the process is sufficiently educational and rehabilitative.

Relatedly, my second concern about aggressive enforcement against plagiarists in law school has to do with the bar’s reaction to law school sanctions for academic dishonesty. A couple of years ago i conducted and published an interview-based study of the moral character determination of the California State Bar. For this project, I interviewed ten people with criminal records who succeeded in becoming licensed California attorneys, a few ethics lawyers that represent people in moral character cases, and the bar officials responsible for these determinations. What I learned (and I’m not sure this is still true, but it was true as of 2020), was that bar officials look at the candidates’ disclosures and their official records, including their law school records, and classify their personal histories into one of four groups according to their severity. Law school dishonesties are generally classified as Level Four, partly because they are relatively recent and partly because they reflect misbehavior that the bar officials think is directly representative of what kind of lawyers these folks will be, ethics-wise. Much as I think that consequences are important, I’m not sure that every plagiarism case merits the complete destruction of a future that a person poured considerable funds, intellectual and emotional effort into, certainly not without very serious forewarning in the law school admissions process and in the first year.

Finally, and perhaps most importantly, I think that our approach to originality, scholarly sparkle, and the use of AI as well as most conventional sources raises serious questions about what law schools are even supposed to be. Many of us in legal academia are realizing, as we make our first steps in education, that our students, overall, are very different from us, and that most of us teach in very different institutions than the ones we ourselves studied in. New faculty hires tend to prioritize people from very few select institutions, with additional prestige-granting characteristics such as advanced degrees, clerkships, or visiting professorships. This means that most of us will be teaching people who want to be lawyers, not scholars. While many of my students are smart, quick thinkers, I rarely encounter people who I think would be a great fit for grad school. Moreover, even those who are well suited for doctoral pursuits are not that excited to incur more debt after three years of law school; rather, they’re pretty eager to enter the job market and start working off their colossal debt. For the most part, these folks are entering a profession in which producing highfalutin’ scholarly works is utterly unnecessary. Yes, they need to be able to write a persuasive brief and a punchy motion to suppress, but they don’t really need to compose lengthy law review articles. For the few that are inclined to do this, we can create a special honors track that requires a scholarly product. We don’t need to demand this of everyone, certainly not at the many schools that don’t feed into legal academia.

So, if I were Queen of the World, these would be my recommendations:

Completely change law school pedagogy away from producing descriptive/critical scholarship to lawyerly problem-solving. Focus the entire curriculum on hypotheticals, simulations, and the like. Forget about conventional lecturing and Socratic inquisitions and spend your time, instead, solving problems in class. I already do this in my big lecture courses. My students receive all the material in the form of readings and lecturettes, such as this one:

When the students show up for class, I spend minimal time explaining the doctrine and lead a quick discussion of critiques and finer points. Most of our time is spent working through simulations in small groups. Often, but not always, this consists of a series of hypothetical problems. Sometimes the students have to negotiate plea deals, write motions to suppress, pick a jury, or use the Federal Sentencing Guidelines to sentence a defendant. I think we get a lot more lawyerly bang for our buck this way. I started using this pedagogy during the pandemic, to liven up the Zoom situation, and have transitioned to in-person flipped classroom, because I truly think this is the optimal way to teach law to people who aspire to be actual lawyers.

Restructure the role of law review editorial staff (that is, if we choose not to get rid of law journals altogether, which I think would be a pretty good thing to do for various reasons.) Students who are not interested in writing notes for the sole purpose of writing notes should not have to write them. They have their hands full editing the submitted works of other folks, which is, after all, what the law journal market is for.

Shift the definition of the writing requirement. Why is it that we ask people who have no scholarly aspirations to produce original scholarship? Yes, lawyers should definitely know how to write–they must learn to write lawyerly work product: briefs, motions, letters to clients, etc. Why not define a few of these basic forms of legal writing and require that, throughout people’s legal education, they tick each box? It doesn’t have to be independent, shapeless work: these products can be assigned as part of lecture courses, clinics, externships, and the like. The added benefit of this strategy is that, when workplaces invariably ask their applicants (our students) to provide a writing sample, the sample will actually mirror what the job expects.

Create an honors track for aspiring academics or, even better, shift aspiring academics to a JSD degree. Sure, there will still be folks who want to be academics, and that’s great. I’ve always thought it outrageous that people can seek academic careers with an educational record that is basically identical to that of their students; that is, that your only qualification for being a teacher is having been a good student yourself (sometimes quite recently.) No other legal academic system in the world works like this, and no other U.S. disciplinary department works like this: students everywhere EXCEPT American law schools are taught by people who have a far more extensive higher education background, far more practice background, or both, than they do. It seems to me that in order to not be “those who can’t do, teach,” each of us in pedagogy needs to bring something very substantial to the table, either in the scholarship or in the practice realms. Given that legal scholars are expected to produce legal scholarship, it’s worthwhile signaling as early as law school that people who aspire to academic careers will be well served by receiving some training in scholarly writing (not what lawyers do for a living! what academics do for a living) and that can be provided, at minimum, through an honors track that requires a piece of traditional scholarship. By making this track both self-selected and selective, we ensure that we don’t have to scan a boatload of papers for plagiarism, because presumably whoever is interested in working in the business of original thinking wants to do original thinking (or perhaps not? but at least detection should be easy with fewer suspects.) Alternatively, let’s encourage people who want to be scholars to pursue a bona fides Ph.D. program (as a joint degree with their J.D.) or get a JSD from their law school (requiring a written dissertation, which could also feed their first few articles and possibly their first book.)

Yes, the singularity heralds some unwelcome news to legal education. But it is a good opportunity to consider what we’re here for and to reinvent ourselves in more relevant ways.

And now I really need to stop bloviating and put a dent in this exam pile. Godspeed!

________________________________

[1] I’m especially grateful to Paul Belonick, Hadar Dancig-Rosenberg, and Emily Murphy for our conversations about this.

[2] I’m grateful to David Takacs for this crystal clear formulation

In Memoriam: Dr. Tally Kritzman-Amir

My heart is crying. One of the best people I’ve known was prematurely taken from us. My beloved friend Tally Kritzman-Amir, an international human rights, immigration, and refugee law scholar of global renown, was beaten at 43 by a ferocious, aggressive cancer, leaving behind her husband, our dear friend Yoni, and their two young daughters, the wonderful Orr and Shir. She also leaves behind a loving extended family and thousands of friends throughout the world, many of whom benefitted from her selfless, pragmatic contributions.

Tally’s cynical, sometimes dark sense of humor belied a heart of pure gold and an uncanny capacity to find the most practical and effective way to do good in any situation. She devoted precious time to legal and economic interventions on behalf of the most disempowered, desperate people on the planet. A few weeks before her untimely death she befriended Gloria, a refugee from Africa seeking treatment for aggressive cancer in Israel, and successfully fundraised for her treatment. It is so typical of Tally to turn the world upside down even in her last breaths to improve someone else’s lot, to see her own horrific affliction as a gateway toward empathy and connection with others. All this with no fanfare, no social media bullshit, no performance or self aggrandizement whatsoever. Just a pure soul and a perfectly calibrated moral compass.

My family and I had the great joy to be close friends with Tally and her family at Cambridge, where we considered them our family. At every corner of our Harvard journey, she was there, building community for us, gathering items, facilitating annoying errands, looking for housing, and walking me through campus bureaucracy. She was at the heart of a vibrant community, drawing connections between people, her kind heart and razor sharp mind working in concert to connect A’s bounty to B’s needs, always selflessly, humbly, without asking for praise or recognition.

On the very day that she was laid to rest, an Israeli judge approved a visa for a couple of Ukrainian refugees, citing Tally’s work and paying tribute to her goodness and solid principles. When people pass away, I often say, “a great light has dimmed.” So great was the light that shone purely from Tally’s soul that it continues to illuminate the world after her departure. I will miss my beloved friend very, very much and send my deep condolences to Yoni, Orr, Shir, the family and friends, and the entire world, who has lost a fierce warrior of love and belonging.

Flip Thy Classroom!

I’m wrapping up my fourth semester of flipped classroom pedagogy, and I think I have a verdict: it’s preferable to my previous lecturing-plus-discussion model, and even though it’s a lot of work for both me and the students, the benefits are considerable.

The model works like this: In preparation for each class, the students read the materials on my electronic casebook (on the ChartaCourse platform) and watch a prerecorded lecturette I’ve made, which summarizes the cases, offers additional points and socio-legal insights, and provides flowcharts and guidelines for legal analysis. I’m now on my third version of these lecturettes, and I think I’ve managed to produce something of passable production value. Here, for example, is one of the lecturettes of which I’m most proud – the one about out-of-court codefendant confessions:

Because the students come well prepared, I don’t have to spend/waste time on lengthy lectures in class. I go over some of the basic issues, add examples and stories, and answer questions. The bulk of our time together is spent working on problems and simulations in small groups. Usually, the students receive a few hypothetical scenarios, discuss them in small groups, and formulate a solution which they then post to our discussion forum. Sometimes, I’ll create more elaborate simulations for them: this year, we did a two-week plea bargaining exercise, a big jury selection exercise, and a federal sentencing simulation. After the groupwork concludes, we debrief together. This means the students go over each unit of material five times: through the reading, the lecturettes, my highlights, their own independent work, and our debriefing session.

So far, I haven’t been able to coast on lecturettes from previous years, because I had recorded them on Panopto, which is not fantastic, and have had to re-record them from scratch on Zoom. As you can see above, the quality is pretty neat and I can use animation and other tricks to explain complicated concepts. Hopefully, in future years I’ll only have to record lecturettes that update the existing ones when legal changes occur. I’m also quite impressed with the students’ hard work in class and in the small group. This method works very well in a small class in person, and also scales up quite marvelously online.

If you want to flip your classroom and need some help or advice, please contact me! It really is a wonderful way to teach.

Omicron, Sirhan Parole Denial, Academic/Activist Exhaustion: Four Thoughts

  1. Denying parole to aging, infirm people at this moment in time is… maddening. Several journalist friends called me yesterday about Gov. Newsom’s reversal of Sirhan Sirhan’s parole grant. Anyone who has read Yesterday’s Monsters will guess I am not surprised–in fact, I predicted this outcome, which was foreshadowed in his no-on-recall campaign, on this very blog. Just as with Leslie Van Houten’s parole bid, the fifty-year cling to political and optical considerations is jarring: fully rehabilitated people, advanced in years and presenting no risk to society, confined during a time of pandemic spike in prisons, to which they are especially vulnerable because of their age. Maddening but unsurprising. I think I’ve said it all so many times–what more is there to say?
  2. They worried about staff shortages b/c of vaccine mandate. They got staff shortages b/c of COVID. Yes, Omicron in prisons and jails clearly shows that we have learned nothing. But there is one new factor in this wave: a massive infection spike among the staff. Take a look at CDCR’s employee COVID ticker: as of this morning, there are 4,419 staff cases. Most facilities have more than 100 sick staff. Recall that the opposition to Judge Tigar’s vaccine mandate–in CCPOA’s appeal, the Governor’s supporting brief, and the Ninth Circuit’s decision to stay the mandate–was that vaccine requirements could lead to mass resignations and a difficulty in staffing prisons. I’m assuming that the irony of having to staff prisons when the staff sickens by droves is completely lost on everyone, so I feel compelled to flag it: for exactly the reasons CDCR and CCPOA state, it is impossible to run a prison in which wide swaths of the staff knowingly render themselves potentially unable to work. If allowing medically irresponsible decisionmaking among employees is a priority, something must give–and the obvious corollary (I’m so tired of saying this again and again) is: we must incarcerate far fewer people than we do because we cannot provide minimal, constitutionally compliant care for them under current circumstances.
  3. No good deed goes unpunished #1. Everyone in academia is exhausted, worn, burned out, just like yours truly. As in Tolstoy’s opening for Anna Karenina, there are infinite variations to the unhappiness, but the aggregate effect is the same: people trying to keep afloat by teaching their classes and having no bandwidth for anything else. I’m experiencing this on both sides: solicitations to review, to participate in panels, to assess grants, to do this or that, are flooding my inbox and I’m overwhelmed, just like everyone else. At the same time, as the book review editor for Law & Society Review, I’m finding it difficult to get reviewers and, when I do, the reviews arrive late or not at all. I get it. I really, truly do. The effort to keep the giant machine grinding beyond the essential components of the job, in the face of all THIS, is bewildering. It occurred to me that one way to help a little bit would be to compensate (not lavishly, but reasonably) for people’s efforts in this direction. Peer reviewing an article? Cash. Supervising a student’s independent work? Cash. Heavy-load committee? Cash. Panel appearance requiring preparation? Cash. This would be especially wonderful for the folks who are trying to write their way out of adjuncting while teaching at several institutions. Many of us, even in these high-prestige occupations, suffered a financial blow; many of us have spouses who had to quit or restructure their jobs to provide childcare, or have had to do that ourselves. Money is important in itself–it’s how we afford our lives–and it would also signal some recognition and gratitude for our efforts.
  4. No good deed goes unpunished #2. Speaking of lack of recognition and gratitude, this morning’s L.A. Times features the story of Patrisse Cullors, one of the national leaders of Black Lives Matter, who had to quit her position and regain her mental health in the face of threats from without and incessant critique from within that made her life a misery. I’m in a variety of activist scenes because of my work and I know exactly what she’s talking about. There is something very unhealthy, very rotten, in how we manage interpersonal relationships in activist spaces, and the unbearable ease of vomiting negativity and mobbing people on social media is enough to break anyone’s spirit. I would really like to create a sanctuary for exhausted activists and advocates–a place where people can come refresh their spirits and take care of themselves. Our movements for change will not survive if we continue treating each other like trash.

Teaching Crimmigration to Criminal Procedure Students: Lessons from the First Year

My advanced criminal procedure course is, as far as I know, the first and only criminal procedure course in the U.S. to include a crimmigration unit. Following a formative semester as a visitor at Harvard, during which I audited Phil Torrey’s terrific crimmigration course, I decided that this was an essential addition–this blog post, which I wrote at the time, explains why.

At the time, I hypothesized that there were knowledge gaps in immigration, which were not completely closed since the Supreme Court’s decision in Padilla v. Kentucky (2010). I was not the only one; in this piece, Gabriel Chin discusses the professional toll that Padilla advising would take on defense attorneys, who would now have to specialize in immigration law. Even in Padilla itself, Elena Kagan–then the U.S. Solicitor General–spoke about her concerns that an entire cadre of professionals would now need to acquire expertise in an adjacent (and not particularly easy to master) field.

True, Padilla did not require defense attorneys to become full-fledged immigration law experts. It only required them to advise clients of the immigration consequences of their conviction if those were clear. The problem is that one needs to know at least something about immigration law to even identify the appropriate statutes (for example, is the person admitted or not admitted to the U.S.? in the former case, the law is in INA §237; in the latter, in INA §212.) You can’t know whether the answer is clear without understanding what the question is, and that in itself requires expertise. A big part of the wisdom, from a defense attorney’s perspective, is having the basic skills to understand whether the immigration determination is even within the attorney’s wheelhouse.

Since Padilla was decided, public and private criminal attorneys have adopted a wide range of approaches to close the knowledge gap. For the purpose of creating my module, I assembled two focus groups of friends from various areas of practice. Beyond two immigration experts (an immigration law prof and a lawyer at an immigration rights nonprofit) I had three prosecutors, one appellate attorney, three public defenders and two defense lawyers in private practice. Before practice-teaching them the modules I created, I asked them where they got their immigration law expertise. I got quite a variety of answers:

One prosecutor said that their office took immigration consequences into account when charging; they had an immigration unit staffed by experts. The other prosecutor said that the D.A. ignored all immigration matters and instructed them to proceed as if immigration consequences did not exist. Out of the defense attorneys, the appellate lawyer was unfamiliar with the field (this is unsurprising, as appellate lawyers would only rarely encounter it.) The bigger, urban public defender offices had immigration units in-house, staffed by experts. In one rural public defender’s office, one person at the office specialized in immigration law and became the office’s unofficial go-to “expert.” In another rural office, everyone learned a little and called immigration nonprofits when they needed advice. The private attorneys were lost at sea and would use published materials from nonprofits when advising their clients. Everyone professed great ignorance and panic at being entrusted with counseling clients on immigration consequences.

The focus groups conversations convinced me that there is great need to add the basics of crimmigration to criminal procedure courses–at least the advanced bail-to-jail courses that are taught to people seriously contemplating criminal justice careers.

What to teach

In shaping the curriculum, I consulted with Phil and with my colleague and friend Tally Kritzman-Amir on what to teach. I decided that the students needed to know what what would touch on their criminal practice (and if they wanted to know more about immigration law, they could take a specialized course.) As criminal attorneys they are most likely to encounter crimmigration when advising clients whether to plead guilty or when negotiating charge bargains, so they would need to be familiar with the most popular removal grounds–aggravated felonies, crimes of moral turpitude, and some of the specific removal grounds–and acquire the skill of ascertaining whether a particular criminal conviction satisfies any of these. Many interesting crimmigration topics, including a detailed history of the immigration code, the immigration removal procedure, detention and bond, and immigration protections, were left out of the curriculum. To facilitate learning, I broke the crimmigration unit into three modules:

Module 1: Background to crimmigration (including Padilla and science-based readings refuting the immigration-crime nexus and examining the emergence of IIRIRA and today’s removal grounds); The admissibility doctrine (distinguishing between admitted/deportable and non-admitted/inadmissible noncitizens, defining “conviction” under immigration law, knowing the consequences of these definitions and distinctions); the categorical and modified-categorical analysis (the basic analytical tool the students would be using in Modules 2 and 3.)

Module 2: Aggravated felonies (explaining what generic offenses are., focusing on the categories of “crime of violence” and “trafficking in a controlled substance”, and highlighting the difference between elements of a generic offense and circumstance-specific elements, such as loss to the victim.)

Module 3: Crimes of moral turpitude (explaining the category within and outside the context of immigration, practicing some cases); the specific grounds of drugs, firearms, and domestic violence

The choice to front-load the mechanics of the categorical analysis reflected the fact that, of all the material I teach in the course, this would be one of the most difficult skills to master, in no small part because the federal removal grounds are so thin, vague, and poorly drafted, and state law can so often be overbroad and abstruse. This was also the reason I chose to sequence the entire crimmigration unit after teaching double jeopardy and sentencing. I reasoned that, at this point in the course, the students would have mastered the art (hopefully taught to them in 1L criminal law) of breaking an offense into its elements. Before teaching double jeopardy, I provided them with a prerecorded refresher on elements of the offense, reminding them that this skill matters beyond substantive criminal law. This way, prior to studying the crimmigration unit, they would practice this skill when determining whether two offenses count as the “same offense” for double jeopardy purposes (under Blockburger) and when determining whether a particular fact must be alleged in the charging document and found by a jury beyond reasonable doubt (under Apprendi.) These two topics would also serve as a rehearsal before learning the categorical analysis and make it more comprehensible.

A note on terminology

The first question I faced was what to call the new unit. I automatically gravitated toward the term “crimmigration”, popularized in Juliet Stumpf’s seminal article. The term has gained considerable traction, becoming the title of César Cuauhtémoc García Hernández’s book and eponymous blog. But then I received a thoughtful note from a colleague who explained that, when Stumpf adapted the term, it was being used in white nationalist/neo-Nazi circles with racist and xenophobic connotations. Its portmanteau construction can also be seen as reinforcing a particular set of suggestions about immigration and criminality that we seek to reject–namely, that there is a nexus between immigration and criminality. My colleague suggested the colloquial alternative “crim-imm”, or the clunkier “convergence between immigration control and crime control” (which reflects, quite well, Stephen Legomsky’s wonderful piece about the asymmetric convergence between the two fields.)

My colleague’s comments were well-taken, and I gave them a lot of thought, but finally decided to keep “crimmigration” as the unit title. There’s value in introducing students to the field by the name the field is known, so that if they seek to know more, it’s accessible and available to them. I also think that terminology isn’t static–it changes over time, and there have been multiple examples of derogatory terms being redeemed and put into empowering use by the people they sought to oppress.

Which brings me to the second issue. Immigration law currently uses the term “alien” to refer to noncitizens (here’s a CIS primer on definitions). Several students emailed, feeling jarred by the statutory terminology, saying it sounded “racist” (I think they meant xenophobic or dehumanizing.) I know this sentiment is shared by many, to the point that the Biden Administration is poised to change the term. I confess that I’m not an enthusiastic convert to the terminology obsession, which does not show any signs of abating. I get it–I’m not stupid–words can create reality. But we’re imbuing words with much more power than they have, I think, and this constant cycle of the linguistic washing machine is diverting attention from more important matters. It reminds me of how, as a child, I heard adults around me say “she has a bad thing… they found something…” treating the word cancer as if it was Voldemort. If a horde of dedicated, progressive-minded Biden officials do a “find + replace” function on the immigration code and replace all instances of “alien” with “noncitizen”, but leave all the removal grounds intact and continue to deny basic Gideon rights to people facing permanent banishment from the country, the enlightened terminology is not going to cheer me up. And given that the zeitgeist is all about certifying only the oppressed for speaking about their own oppression, I am happy to tell you that, prior to my naturalization in 2015, I was an “alien” for fifteen years–an alien student, a nonresident alien with extraordinary abilities, a resident alien–and I always found the term humorous and not dehumanizing at all. If foreigners are dehumanized and marginalized in the United States–and they absolutely are–it’s not because of what the INA calls them; it’s because of what we are misled to think about them. Nationalists were not born with the term “alien” at hand. “Alien” means foreign; it was then borrowed to describe extraterrestrial life. Whatever “they” took, “we” can reclaim, for whatever value of “they” and “we.” In class, I use “noncitizen” when I talk (or, when relevant, “lawful permanent resident” or “visa holder”), and “alien” when I’m quoting legislature, and I leave it at that.

What to read

For this course, I use an electronic casebook hosted by ChartaCourse, which gives me great control ver my materials. I assigned a bit of Legomsky’s article, sections from the INA, and some key cases. The selection of cases presented some challenges, though. The categorical and modified categorical analyses, which are the cornerstone of crimmigration, were established in federal cases, Descamps and Mathis, both of which deal with portions of the Armed Career Criminal Act (ACCA.) This presented a dilemma. On one hand, I wanted the students to know that the categorical analysis will come in handy in a variety of federal legal contexts; on the other, I didn’t want to confuse them and muddle the issue by making them read cases that are not about immigration. I opted for omitting Descamps and assigning only the portion of Mathis that explains the analysis.

As to the rest of the cases, I had to be quite selective and a harsh editor. The cases come from various federal courts and from the Board of Immigration Appeals (BIA), and they often involve various issues that pertain to the immigration side of the case, e.g., adjustment of status issues or removal protections. For the limited purpose of criminal practice, the students don’t need to know that. There are also cases that deal with interesting but arcane immigration law sections, and the choice I made was to focus on the common deportation and inadmissibility grounds. I can already see how making the choice to teach these materials will require keeping abreast of the information in a field adjacent to my own with its own precedents, etc., but there are blogs and other good people working on this, and honestly, after Padilla, I do think it’s our responsibility to teach this.

Finally, my materials include one of the best helping tools for criminal lawyers: the ILRC reference table and notes. It is detailed and trustworthy but, as I found, not exhaustive. I’m trying to teach the students not to rely on the table as the be-all, end-all of crimmigration (even though it’s very useful to have on hand) in the same way that I was taught, when I learned statistics, how to calculate F-values and t-values by hand while also learning STATA. There is immense value in doing the exercise by oneself, and I wanted to put people on the path to proficiency.

Crafting problems

Since the second semester of the pandemic, I transitioned my classes to a flipped classroom model: the students receive readings and prerecorded lecturettes in advance. In class, I go over the basics, and the bulk of the time is devoted to solving problems in small groups. Oftentimes, my problems are shaped after real cases. This proved to be a bit tricky in crimmigration. The cases are very complicated and require serious paring down. They are also often BIA cases, which means there are lots of adjacent, ancillary issues to be resolved on the immigration front. This means the hypotheticals need to be carefully edited, and that the ones based on real cases cannot be the first problems that the students solve. I have had to come up with simpler, two-liner problems that the students solve, and then graduate to problems based on recent cases.

Basing the problems on real cases also presented a problem involving the hermeneutics of immigration law. Because removal grounds are so generalized and vague, and because it is difficult to tell, just from looking at a state statute, whether it is divisible or not, there’s an abundance of caselaw, precedent, and courtroom documentation that needs to be looked at to ascertain how to resolve the problem. In the context of a classroom exercise, it is essential that all the information the students need be within the four corners of the problem. So that, too, requires attention in fashioning the problems. And, of course, working through these hypotheticals can be frustrating to the students, because it is ultimately not where the heart of their practice will lie, and it requires them to visit an entire different world of legal meaning-making. Which brings me to the heart of the matter.

The heart of the matter

I think the frustration and incredulity that the students might encounter when studying this material comes from a pretty understandable source: after all, I am essentially teaching them how to twist and turn their main occupation to bypass the perversion that is immigration law. Rather than looking at what a defendant did and charge them with that, they now have to think ten steps ahead, consider what the feds might do, and craft the whole narrative of the case away from the truth if they are trying to avoid immigration consequences.

What mitigates this frustration, though, is the other component at the heart of the matter: I kept banging the same drum again and again in class–the fact that, across all places, crime categories, and legal statuses, immigrants commit less crime than the native born. I usually deeply dislike facile, oversimplified slogans, but in this case there’s robust social science supporting that, and I had to talk about that again and again because the perception of an immigration/crime nexus is incredibly pervasive and very resistant to modification–more resistant than any other myth of immigration. I think the students might feel better about learning how to perform this analysis if they know that the purpose is to prevent situations in which ancillary, collateral consequences eclipse the actual criminal process and frustrate its goals.

Stressing the moral imperative to take this so-called externality into account in criminal lawyering is important for another reason. That the categorical analysis is technical and ignores the facts of the cases creates the risk that class will become a glib game, akin to the fantastical hypos that are often part and parcel of teaching 1L criminal law. The somber, urgent quality that accompanies the perceived domestic crises (the prime example is the relationship between police departments and communities of color) can be absent from this unless personal stories of people are brought forth. And the absurdities need to be highlighted for people to feel that what they are doing is not just an intellectual exercise of overlaying one offense on top of the other, but a valuable effort to save families from falling apart.

Striking the right balance

Toward the end of the third module, I asked my students whether learning this material made them more or less confident about their ability to do this. Responses were mixed (even though they knew nothing about this analysis before taking the unit!). I’m not sure that’s a bad result. On one hand, per Padilla, you want the students to feel empowered to offer this kind of advisory to their clients–it is their constitutional duty. On the other, you don’t want them to be overconfident about their ability to clearly predict the immigration consequences of everything under the sun. In this respect, Padilla is too optimistic about the ability of a criminal lawyer to tell a simple crimmigration case from a complex one. Immigration law is ever-changing, very responsive to the blowing of political winds, and what my students are taught about immigration law might not be good law under a new administration. Rather than have them freeze in panic, I would like to empower them to take action: call an immigration lawyer or a nonprofit and consult. Because this isn’t going to be sustainable for every lawyer/client, I think that ultimately the answer to the problem of advising noncitizen clients should be a combination of two factors: the emergence of law school clinics whose job is to offer Padilla support to public and private defense attorneys, and the establishment of an excellent MCLE credit network that keeps criminal lawyers abreast of pertinent developments in immigration law.

If you are a criminal procedure professor who read this, feels inspired, and wants to teach my bail-to-jail course with my immigration materials, contact me (or contact ChartaCourse.)

Noblesse Oblige and the “Dr.” Controversy

On my second day of law school, in 1992, Prof. Mordechai Kremnitzer, one of the most admired and respected civil rights academic heroes in Israel, came to our first-ever criminal law class, and said to the 300 first-year students in the lecture hall, “please call me ‘Mota'”. I thought to myself, there is no way on Earth I would ever bring myself to call you ‘Mota’ and you know it, and proceeded, in the few occasions that I summoned the courage to talk to him, to linguistically pretzel around the need to call him anything. Last year I sent him an email supporting his activism. It was the first time I referred to him by his first name. I was already a tenured professor with a named chair, and even so, I hesitated and reworded the email five times.

Like pretty much every sensible person, I was disgusted and reviled by Joseph Epstein’s condescending, ignorant opinion piece in the WSJ asking Dr. Biden to stop referring to herself as “Dr.” because he found it fraudulent, or in bad taste, or whatever (no need to read that drivel; for takedowns, see here, here, here, and here.)

Given the awfulness of the COVID crisis, I’m surprised how something this trite has rankled me so much, but I can’t get it out of my system, so here goes. Lots has already been said about this, most of which I fervently agree with, so just one comment, if you please, about one of the less explored aspects of this. Consider this fantastic poem by Susan Harlan:

Image may contain: text that says 'SUSAN HARLAN MY FIRST NAME No, you can't call me By my first name, And yes, I know that A male professor Told you that titles Are silly Because a certain genre Of man Is always dying To performatively Divest himself Of his easily won Authority.'

I’m a member of the Law and Society Association, the American Society of Criminology, the Western Society of Criminology, the Society for Empirical Legal Studies, and an occasional attendee at a bunch of gatherings of other professional associations, and I see this “certain genre of man” and this sort of dynamic all the time at every professional meeting I attend. I don’t need to name names, because if you’re an academic, whatever field you’re in, you’ve seen this, too: The young folks, the folks of color, the younger womenfolk, and especially our colleagues who spent a fortune flying to the conference from places like Brazil or South Korea show up in formal, elegant outfits, with a flawless deck of PowerPoint slides and deliver meticulously prepared remarks to a room with three audience members. The guy who is a distinguished professor at Amherst College or Yale or Berkeley or Stanford and considered a luminary in the field shows up in wrinkled dockers, his sockless feet in crocs or Birkenstocks, maybe even a quirky hat perched at a rakish angle, ad-libbing without slides at the well-attended plenary about some idea he had last night.

I submit to you that the folksy, humble, down-to-earthsy, modest, approachable spiel of the dude who has been elevated to knighthood is just as performative as the bowtie, suit, call-me-doctor spiel of those who have not. I don’t mean it’s disingenuous or calculated (many of these shabby dudes are truly lovely people); I merely mean it is a self-presentation of class within class. The person who floats above and beyond the need to hustle, impress, and–most importantly–be taken seriously, signals it by dressing and behaving in a way that signals, “no matter what disheveled personal appearance or casual demeanor I dish out, I am an inalienable member of the oligarchy of the profession.” This sort of guy is above snickering at the well-dressed folks who are trying to hustle, because noblesse oblige, right? He might not even notice them hustle, or he’s a genuinely good guy who has compassion for where they are in the food chain (perhaps remembering his past, hustling self), in which case he’ll offer them a forgiving smile for their faux pas of “trying too hard.” It’s the folks a bit lower on the totem pole who do the snickering. This, by the way, tells you why the snarky takedown could only come from some poser like Epstein: The folks who are the real deal–the folks Epstein respects–are way above dishing out such garbage.

The reason women, people of color, young people, or people from the global south, appear shrill and overly self important when they dress formally or insist on being called by the title they earned, is that they know they have to hustle to be taken seriously, and if they don’t insist on the respect they are owed, they are going to be ignored, patronized, and ridiculed. I think I’ve mostly crossed the age/seniority threshold where being taken seriously is an uphill battle, but it was only last year that I stood behind the podium, prepping my slides for the first session in my own classroom (what could be a more obvious indication that I was the professor?) when an adjunct, who mistook my classroom for his, stepped in, handed me his flash drive, and asked me to pop up his slides and do something about the lighting. This, and far worse, happens every day to academics who are women or other members of disadvantaged groups. And when it happens, they try to calm their breath, swallow hard, feel their heartbeats quicken and their palms sweating, and then, in a voice that sounds ragged and shaky to their own ears and thinly masks the rage, state their honorifics, incurring the scorn of those whose position in life allows them to view this kind of hustle as crass or gauche.

I would happily have us all live in a society of equals, where each of us gets respect for their expertise wearing whatever they want and being called by their first name. Unfortunately, I don’t live in that world and neither do you. So, when you insist on being called Doctor, you are doing it to open the door a bit wider and extend a broader welcome to all your colleagues with doctorates.

SAVE THE DATE: California Correctional Crisis: Mass Incarceration, Healthcare, and the COVID-19 Outbreak

Dear Friends,

Three UC Hastings journals are coming together to organize an important symposium on incarceration and healthcare, focusing on the COVID-19 prison crisis. We are excited to invite you–details will follow. For now, please SAVE THE DATES!

When?

  • Feb. 5, 12-4pm: California Correctional Crisis, Meet COVID-19
  • Feb. 12, 12-4pm: Focus on reproductive justice, trans incarcerated people, and special populations
  • Feb. 19, 12-4pm: Focus on immigration detention and healthcare

Where? Online (registration details to follow)

The conference will feature amazing speakers: advocates, activists, academics, officials, formerly incarcerated people. Among our confirmed speakers are renown prison historian Prof. Ashley Rubin; prison law expert Prof. Sharon Dolovich, Director of the UCLA COVID-19 Behind Bars Data Project; Adnan Khan, Executive Director of Re:Store Justice; Richard Braucher of the First District Appellate Project, counsel for Ivan Von Staich in the landmark case that resulted in a San Quentin population reduction order.

MCLE Credits for lawyers pending. Please plan on joining us!

Your hosts: