What We Learned and Didn’t Learn from the House Education Committee Hearing on Campus Climate

Yesterday (Tue), the House Education Committee summoned the Presidents of Harvard, Penn and MIT to a hearing pertaining to antisemitism on their campuses. “Hearing” is a more apt term than “listening,” because none of the latter took place. The Washington Post has a transcript of some of the conversation, which you can read to form your own impressions.

I think it’s obvious from the transcripts that the responses are pathetically vague and circular. The presidents attempt to yammer about free speech when confronted with issues pertaining to real harm to the students and are utterly unable to offer guarantees that might reassure parents that their students are not at risk of being assaulted and threatened. I hardly think anyone can seriously waffle around the fact that Jews and Israelis are experiencing acute anguish on university campuses, and the sorry excuses offered are an abdication of responsibility. Free speech is not the ultimate defense to all this, because much of what has occurred–threats, assaults, exclusions, restrictive policies, loyalty oath demands, etc.,–goes far beyond the question of government restrictions on speech. It also goes, at least in the case of these private institutions, to the question of monetary institutional support (which is also “speech”) and to the question of university presidents’ failure to condemn hateful rhetoric (which would also be a use of free speech.) At the same time, anyone looking for real, substantial answers for this problem would not find them at the committee hearing.because it was run like an inquisition rather than an effort to learn and educate.

If I were running the hearing and were truly interested in learning more about why campus climate in the Ivies and elsewhere is so noxious, here is what I would want to know: How are the mental health and support services on campus structured, and when do they address community issues rather than just personal challenges? How are decisions about funding research and teaching centers made, particularly the ones with stances and interests on the Israeli-Palestinian conflict? How are student clubs established, and under which conditions do they receive funding from the school? Notwithstanding academic freedom, do faculty receive any training about what is and is not legitimate grounds to end class (e.g., to participate in a partisan protest but perhaps not for a counterprotest)? Are there guidelines and regulations about circumstances that merit all-campus addresses and emails from university leadership? from school deans? from department chairs? If there are, do they apply equally to all political standpoints? Do presidents and chancellors comment freely on world events whether or not they are related to campus life? When protests happen on campus, who approves them, and what is the process? Is campus police involved, and to what extent? Does campus police liaise with the municipal police department in these situations? If a student is assaulted, or falls victim to some other hate crime, who investigates the complaint?

Piecing together the picture of campus climate is a complicated, multi-factor endeavor. And Elise Stefanik didn’t do it, not because she couldn’t, but because she didn’t want to. Generally speaking, running a hearing like this in the style of a cross examination does not reflect an intent to receive in-depth answers to difficult questions; in this case, I speculate that it was designed to supply sound bites of academics looking like clowns for the Trump 2024 campaign.

Brandeis Center Sues UC Berkeley for Antisemitic Discrimination

Yesterday, while on business on the UC Berkeley/GTU side of the bridge, I ran into a colleague who offhandedly mentioned that the Brandeis Center was suing the university for its antisemitism. I swiftly got hold of a copy of the complaint, which you can find here in its entirety:

Brandeis Center Complaint 1… by hadaraviram

Let’s parse out what is going on here.

Much of the complaint walks well-trodden paths I know merely from being a Jewish-Israeli-American academic on both sides of the bridge. Yes, yes, yes, yes, being Jewish, and especially Israeli, on American campuses these days is like swimming through a river of shit. But experiencing distress, ugliness, and hostility in itself is not ground for legal relief. Moreover, expressed opinions, odious as they may be to the listener (and even when expressed in an odious manner), are protected under the First Amendment. So, what is the legal argument being made?

Brandeis’ argument is more or less the following: Beyond the hostile work environment experienced by Jewish students, various law school student clubs (whose activities, notably, are unrelated to Israel/Palestine) have required that their members, if Jewish, (1) disavow Zionism or (2) attend a “Palestine 101” class in which they are told Israel has no right to exist. It looks like the law school clubs are trying to skirt around limitations pertaining to religious discrimination by allowing Jews to join, but only what they consider to be the right kind of Jews: anti-Zionist ones. These limitations extend not only to the students, but also to speakers and to people hoping to publish articles in some of Berkeleys’ law journals. These loyalty oath requirements and reeducation camps preceded the current crisis by at least a couple of years. I vividly remember giving a talk about FESTER at Berkeley’s Center for the Study of Law and Society a couple of years ago. The talk, which had nothing to do with Israel or Judaism, was advertised on Twitter by Berkeley’s media team, and some of the commenters replied by tweeting, “but will the students let them speak?” I didn’t encounter any problem that day, but to be fair, I was there by invitation of my colleagues to speak to colleagues, and student clubs were not involved. Because I would never agree to loyalty oaths or gulags, I imagine that some student clubs (including those concerned with prisons or healthcare) would not invite me to speak there, and I also imagine that it’s not worth my time and effort to send papers to any UC Berkeley journals, because they will not be judged on the merits (for those of you scratching your heads, the law review publication market is insane; not only is the article selection not anonymous, but people actually submit their CVs alongside their articles. This explains the bizarre incident a few years ago, in which some student in a law school that shall remain anonymous asked me to omit my military service from my CV so that he’d be able to persuade his fellow student editors to publish the piece. So none of this surprises me in the least.)

[As an aside: Even though most of the stench wafting from this lawsuit emanates specifically from Berkeley Law, Erwin Chemerinsky or the law school are not being sued, and neither are the particular student orgs, which I find curious. I would love to know why, though I suspect it has to do with Chemerinsky’s recent op-ed expressing his dismay about virulent antisemitism and/or with the expectation of having responsible adults as adversaries.]

Berkeley’s counterargument, I imagine, will go something like this: none of the student club behavior, and none of the university’s tacit or explicit endorsement of these rules and exclusions, is antisemitic, because none of it bars Jews from participation. It only bars people who are openly Zionist. And here’s where things might get interesting.

In 2010, the Supreme Court decided Christian Legal Society v. Martinez. The respondent is my colleague Leo Martinez, who was Acting Dean at UC Law SF (formerly Hastings) at the time. The plaintiff was an off-shoot of CLS-National, an association of Christian lawyers and law students, which charters student chapters at law schools throughout the country. Like Berkeley, UC Law SF is a public school with nondiscrimination rules in its charter, and subject to the Bill of Rights. Under this nondiscrimination regime, UC Law SF had an “all-comers” policy for its student orgs: they must be open to participation of all students. CLS, however, required that all its charters adopt bylaws requiring members and officers to sign a “Statement of Faith” and to conduct their lives in accord with prescribed principles. Among the tenets that prospective members had to commit to was the belief that sexual activity should not occur outside of marriage between a man and a woman; CLS interpreted its bylaws to exclude from affiliation anyone who engages in “unrepentant homosexual conduct.” CLS also excluded students who hold religious convictions different from those in the Statement of Faith. In light of these requirements, UC Law SF refused to approve CLS as a registered student organization (RSO), which denied CLS access to university funding.

The Supreme Court ruled against CLS (which led to much rejoicing at the next faculty meeting, as you can imagine.) Justice Ginsburg, who wrote the majority opinion, found the “all-comers” policy reasonable, and the balance struck with CLS (they can host events as an outside entity–just not allowed to receive money from the school) constitutionally proper.

The situation with the Brandeis lawsuit is a bit different, because it comes from the opposite side: a complaint from students who cannot access these organizations and opportunities. Since Berkeley, like UC Law SF, has an “all-comers” policy, it looks like whether or not these clubs have run afoul of it depends on whether you accept Brandeis’ premise that “Zionism is an Integral Component of Jewish Identity.” At least for some Jewish UC Berkeley students (as recent events have obviously proven), this is not true–one might even say that anti-Zionism is an integral component of whatever identity they have, Jewish or otherwise. In an interview to the Jewish News of Northern California, Dean Chemerinsky estimated that “to say anyone who supports the existence of the State of Israel–that’s what you define as Zionism–shouldn’t speak would exclude about, I don’t know, at least 90 percent of our Jewish students,” though more recent events might suggest otherwise. I don’t know, and neither does anyone at Berkeley, because no one has done a survey, and moreover, in all the disputes about who is and is not a Zionist, one is often hard-pressed to find a solid definition of Zionism (or even any rudimentary education on the subject.) The question remains: Is Zionism “an integral component of Jewish identity?” And it it is to some but not to others, is it to be regarded as religious discrimination if, for Jewish Zionists, it is?

Let’s take a look again at the CLS policy from CLS v. Martinez. Notice that, at no point, did CLS deny membership to gay or lesbian members. Presumably, if you are homosexual and keep your homosexuality to yourself, CLS would welcome you. Or, if you’re riddled with shame about your desires and attractions and your homosexual conduct is “repentant,” you should be fine. I think the point of the analysis is that CLS cannot claim to be inclusive of gay people if it is only inclusive of those of them who remain in the closet and are guilty and conflicted about who they are and who they are attracted to (do some people love sad queers in the same way that others love dead Jews?). But is being Zionist, for Jews, the same as being “out and proud” for gay people? This requires a lot of intricate, hairsplitting attention to the components of each identity.

Assume, for example, that CLS had allowed any and all openly gay people to join its ranks, but only if they (1) disavowed support for same-sex marriage (not every gay person supports gay marriage, some for assorted anti-heteronormative reasons) or (2) attended “family values 101” that would teach them that children with same-sex parents are miserable and deprived. Would that pass muster with the Supreme Court? I don’t think so, but if it would, then we need to ask ourselves whether supporting the State of Israel’s right to exist is more of an “integral part” of being Jewish than supporting same-sex marriage is an “integral part” of being gay.

This brings up lots of complicated questions about the relationship of different Jewish denominations, throughout history, with the aspiration to return to Israel. One documented issue that was repeatedly brought up in debates about Jewish emancipation in Europe had to do with the Jews’ “dual loyalty,” to the emancipating country and to their ancestral land. For this reason, when the newly established Reform strain formed their credo and ethos upon inaugurating the Hamburg Temple, they excised from the liturgy not only the Hebrew language, but aspirations to return to Israel and any messianic content. To their Orthodox detractors, that was tantamount to rejecting an “integral component of Jewish identity.” But to the assimilation-hungry Reform congregants, it was nothing of the sort: it was the fashioning of a new, modern Jewish identity that they could live with and feel well integrated with their surroundings. In other words, what is and is not an “integral component of Jewish identity” means different things to different people in different times and places. There are even diasporist critiques of the centrality of Israel to Jewish life, though as Julie Copper points out in this interesting article, they tend to “prove wanting because they contest Zionism on the terrain of Jewish identity” as opposed to “envision[ing] Jewish political solidarity beyond the confines of the nation-state.”

But if we were to envision such solidarity, what exactly would it consist of, except agreeing that living on American campuses right now downright sucks? If, as various organizations like Bend the Arc or Tru’ah argue, our consensus should form around issues of progressivism and tikkun olam and all that jazz, why does it feel like engaging in these advocacies proves a hollow hope from Jews as it produces exactly the opposite of political solidarity? If you take Israel out of the equation, in other words, what is left (pun intended)?

Finally, in the last couple of months I’ve noticed that American Jews and American Israelis experience the issue of Zionism and anti-Zionism in very different ways. Obviously, when people express academic fascination (theoretically or not) with the scintillating question whether or not you and your loved ones have a right to exist, they shouldn’t be all that surprised to find you an unenthusiastic intellectual partner for that exercise, and you’re not likely to enjoy the debate. In 2018, Bret Stephens wrote precisely that:

All this is to say that Israelis experience anti-Zionism in a different way than, say, readers of The New York Review of Books: not as a bold sally in the world of ideas, but as a looming menace to their earthly existence, held at bay only through force of arms. It’s somewhat like the difference between discussing the effects of Marxism-Leninism in an undergraduate seminar at Reed College, circa 2018 — and experiencing them at closer range in West Berlin, circa 1961.

Which raises another cluster of questions: If, as Berkeley will likely claim, Zionism is not an integral part of one’s Jewish identity, is it an integral part of one’s Israeli identity? If the student club policy cannot be classified as religious discrimination, is it discrimination on the basis of nationality? Is it possible to surgically separate one’s belief that one’s country has a right to exist from being a citizen of that country? And, given that, under the Law of Return, every Jew has a right to return to Israel, the Jewish nation state, is every Jew being discriminated against (on the basis of putative nationality)?

I look forward to seeing how this lawsuit evolves and will post more as developments unfold.

Offensive Speech in Terrible Times

Like many other campuses around the United States, mine is papered with despicable flyers espousing an ignorant perspective on the Israel-Hamas war. My Jewish students are understandably upset and infuriated, and so am I. Every day brings fresh, unbearable details about the massacre. The contrast between that and my outside surroundings is a dissonance that fractures me to the core. In the coming days, many campuses, including ours, will see abominable displays of hatred, antisemitism, and a breathtaking level of illiteracy regarding international affairs. We’ll see laughable, imaginary coalitions between, say, Hamas and the fight for trans rights. This will be ugly and it will be emotionally difficult to stomach. It already has been a difficult struggle to function at work and it’s likely to endure for some time.

At such times, supporting a legal regime that has absolute free speech is deeply distressing and challenging. I finally found out who first wrote, “I detest what you write, but I would give my life to make it possible for you to continue to write”–it was Voltaire biographer Evelyn Beatrice Hall, in 1906. For First Amendment enthusiasts, this era epitomizes that sentiment–the price of freedom is walking around with a broken heart, even if the open goal of the speakers is to break it.

The image above depicts the Illinois Holocaust Museum in Skokie, IL; in the 1970s, Skokie was the setting for a free speech debate culminating in a Supreme Court decision that in many ways reminds me of the situation on the ground today. David Goldberger, at the time the legal director of the ACLU of Illinois (and later an Ohio State law professor specializing in free speech) has written a fascinating account, complete with images, of his representation of the Nazis in this case–not only what it was like to have them for clients, but also the public response. I really recommend that you read it verbatim. Among many things I didn’t know was the fact that Meir Kahane, in many ways the ideological granddaddy of murderous Jewish nationalists like Ben Gvir et al., started his activity in the US with the Jewish Defense League, who appeared at the ACLU offices with baseball bats! Another thing I didn’t know was that the ACLU’s choice to represent the Nazis in the Skokie trial led to tens of thousands of resignations, but also to some support letters from holocaust survivors who said that “they wanted to be able to see their enemies in plain sight so they would know who they were.” The ACLU is taking the same approach regarding the protests we are experiencing now.

I really recommend reading Goldberger’s entire account, and it’s even more interesting to ponder it through a comparative lens. Not all countries have absolute free speech; many place limitations on hate speech and incitement to racism or violence. That approach ushers its own host of problems: what is and is not “hate speech” or “incitement” is a subjective determination, and judicially delving into these questions inevitably brings in ideological perspectives and heuristics. I’m already seeing some troubling incidents in Israel in which universities and schools waste precious time and energy on McCarthyist investigations of their students, faculty, and staff.

It’s important to distinguish the general question of what should and should not be legally allowed from the more particular question, what these opinions tell us about the quality of the education we provide and about the quality of the people who espouse them. For some idea on how these ideas fester and infect people to this degree, read Julia Steinberg’s account of her own education. It exposes many of the flaws of what passes nowadays for progressive education, and dovetails with my unwillingness to responsibly participate in similar indoctrination efforts at my workplace and elsewhere. Steinberg’s piece was an important reminder that hateful idiots don’t spring into being, fully formed, in college or law school; they are raised to be the way they are in their K-12 years. I, for one, plan to keep a very watchful eye on my child’s education, to ensure that essentialist, separatist identitarian rubbish isn’t inflicted on the kids in this mindless manner.

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.

“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.