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

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

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

Roe Overrule Leak: An Adoptive Mom’s Perspective

So much has been said and written about the Supreme Court’s leaked majority opinion draft overruling Roe v. Wade that I hardly need to elaborate the basics. I’m not a reproductive justice expert, nor am I particularly surprised that this has happened–they are simply doing precisely what they were hired to do, which is to promulgate a theocratic, sex-negative worldview. The reason I add my voice to the cacophony is that I have a somewhat unorthodox, nuanced position on this debate, which hasn’t (I think) been aired yet–that of an adoptive mom.

We adopted our beloved son as an infant from a state that frowns upon abortions. My son’s amazing birthparents’ struggles, dilemmas, and decisions are their private business and I will not air it here or anywhere else. What I can share is that, throughout our happy life together, I have been beyond ecstatic that the world has been blessed with my son, a sparkling star of a boy–bright, empathetic, loving, friendly, kind, athletic, funny, multitalented, spirited, lively. And at the same time, every adoption involves a huge leap of love and empathy, and much pain, grief, and loss adjacent to the joy. There are no hard or fast rules about the roads taken or not taken with pregnancies. The deep regrets of placing a child for adoption, the sometimes unsurmountable hardships of parenting, and the deep regrets of terminating a pregnancy all float in a realm of possibility that I can only imagine, having been raised in a welfare state with excellent sex education and easily available contraceptives. No assumption can be made, as the right makes, that abortion invariably leads to shame and regret (see this remarkable amicus brief on behalf of law professors who underwent abortions and “believe that, like themselves, the next generation of lawyers should have the ability to control their reproductive lives and thus the opportunity to fully participate in the ‘economic and social life of the Nation’.”) Of course, the opposite assumption–that abortion brings you your life back without a trace of regret or sorrow, is also false, and part of the reason many women can’t quite find themselves in the pro-choice milieu is that, in the fierce struggle for women’s rights, little room is left to contain these sorrows and regrets.

The philosophical debate about when life begins is, to my mind, a red herring. For what it’s worth, and this may surprise my lefty friends, on the abstract philosophy point I’m with the pro-lifers: I do believe that a form of life–sentience–begins at conception, and I find that congruent with my sentiments on other aspects of sentience, such as nonhuman animal rights. The problem is that the pro-life right-wingers lose interest in supporting said life from the moment it emerges from the womb, as evidenced by the lack of parental leave, child care, quality early education, and decent, government-funded healthcare for all. They are also not interested in sparing such life from emerging in the first place through comprehensive sex education and widely available contraceptives.

All of this has already been said, most eloquently, by others; but the right-wingers have a ready-made answer. “Not to worry!” They cheerfully squeal. “That’s what adoption is for!” Which is where, as an adoptive mom, I need to speak up and disabuse some of the truly ridiculous illusions that our right-wing politicos and fundamental Christian buddies are willing to entertain. Namely, the notion that limiting safe, legal abortion is going to result in a boon for adoption should be patently absurd to anyone who has gone through an ethical open adoption process; the opposite is true.

Adoption professionals recoil from the idea that adoption is about “selling children”, and from here flow multiple ethical and legal limitations on the kind of assistance that adoptive parents can offer birthparents and on the interactions between the party. And yet, beyond the niceties, let’s start with the obvious: in virtually every adoption, as ethical and kind and caring as it is, children pass from poor hands to more economically advantaged hands, with money moving in the opposite direction. This means that birthparents–usually birthmoms–are at a considerable socioeconomic disadvantage, often exacerbated by being typically younger than the adoptive moms.

Forcing women who would otherwise have a (legal, safe) abortion to instead carry a pregnancy to term and place their infants for adoption throws more young women and girls with no bargaining power into the mix–often women and girls who now have to hide their pregnancies from families and boyfriends. It is not difficult to predict that women who are less equipped to carry a pregnancy to term would be the ones seeking abortions, and that requiring them to forego that option will result in pregnancies that are less safe, and therefore in infants that are more difficult to place for adoption. Hiding your pregnant belly from your mom or your friends can result in experiencing your pregnancy under conditions that are bad for you (exposure to smoke, exposure to alcohol, unhealthy diets); having such a pregnancy discovered can result in being unhoused for the duration of your pregnancy; all this instability will surely result in less responsible and consistent prenatal care.

A birthmom who knows she can’t parent will then search the Internet high and low for adoption agencies, trying to find one with serious social workers and good services. She’ll then go through an intake interview with a social worker, who will ask her about her medical history, prenatal care, and use of alcohol/drugs. I’ve taken classes with other adoptive parents: the medical history is something that can be scary for prospective parents, and birthmoms can, of course, guess this. So, what happens when someone who has not had the resources to properly care for themselves and their baby tries to place said baby for adoption? Would it surprise anyone if this would result in more deceit and evasion when interviewed by adoption agency social workers?

I can see very unhealthy prospects for the adoption market under such circumstances. With the inability to verify pregnancy details, or to provide proper care to prospective moms, unscrupulous lawyers and corrupt social workers might step in with unhealthy incentives, pressure, and coercion–akin to the worrisome trends we see in the international adoption market. This means less safety and trust precisely in a situation that requires an enormous amount of empathy and mutual trust. It means less careful vetting of adoptive parents–the actual people who are to raise and nurture this precious life. And it also means that women who might withstand the pressure and try to parent their kids might have to later relinquish them by court order, or due to other awful circumstances, which throws kids into the traumatizing world of government care at an early age and creates considerable challenges even in the happy cases that end in fostering and adoption. Many people who can become fantastic parents to infants through open adoption might not have the emotional fortitude and resources to address and heal the trauma of older kids. Corollary: Throwing birthmoms into these situations ahead of time by eliminating a safe, legal option, is not a boon for adoption–the opposite is true.

Additionally, if, indeed, adoption is to be the panacea for the problem of sentient life, then we should also care about the life of the birthmom after adoption–in the form of extended services to help heal the trauma, beyond some meetings with a social worker: I’m talking college money, gym membership, grocery money, job seeking support. Of course, all this assumes that Alito et al. truly want birthmoms, after giving the gift of motherhood to someone like me, to land on their feet and “fully participate in the ‘economic and social life of the Nation.” Do they?

The truth is that none of this is really about abstract notions of sentience nor about seeing the abortion/adoption thing as a zero-sum game, because it is patently clear that neither value is being advanced by forcing women to carry pregnancies to term or risk a dangerous back-alley procedure. Friends, here’s what’s going on: Justice Alito and his buddies are simply out to penalize women (the wrong sort of women?) for having sex. That the punishment might extend to other (sentient) people in the equation–a child, adoptive parents, adoption professionals–simply does not enter into their equation. The idea that someone who receives solid, reasonable, science-based sex education should be able to just say yes to sexual activity with whoever they choose, with however many people they choose, in whatever form, in whatever frequency, so long as all are of sound body and mind and consent and respect each other, is anathema to them. They know that legal prohibitions will not deter young people who have been deliberately left ignorant about the functions of their own bodies from having sex. They don’t care. Because they don’t intend to ever pick up the price tag for the many young lives that will later end up in flux, this is a complete externality to them. And that is what is so atrocious here.

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.

Similarities and Variations in Legal Responses to COVID-19 in Correctional Facilities

This morning I’ll be speaking, alongside Sharon Dolovich, James King, and Jane Dorotik, about court responses to COVID-19, at an event organized by UCLA Social Medicine. Thankfully, we now have a somewhat fuller picture of how litigation efforts have fared overall, which we can draw on to discuss some similarities and variations.

One of the things mindfulness has taught me is that disappointment depends on expectations. In that respect, to say that correctional policies during COVID-19 have been a disappointment reflects, perhaps, unrealistic expectations from institutions that have been unwieldy and incredibly resistant to change even at the best of times. Perhaps it’s not that unexpected that the giant machine that protects the correctional colossus from reform was overall characterized by delays, evasive maneuvers, reversals of fortune and too-little-too-late gestures. So, if one expected mass releases, the disappointment would be commensurate with the expectations.

Still, there is an objective benchmark against which to measure my disappointment: the problem is not that the releases fell short of being what I hoped they’d be–it’s that they fell short of what was needed to curb the spread of the pandemic. We don’t have to wonder what that number would be; we had assessments of individual institutions with recommendations from physicians specializing in pandemic spread. I think that now, in mid-April 2021, we can safely say that, with respect to releases, courts have failed to provide the relief they should have provided.

We have two great nationwide summaries that support this conclusion. Brandon Garrett and Lee Kovarsky’s new piece Viral Injustice is a survey of COVID-19 correctional litigation outcomes. Garrett and Kovarsky conclude:

Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge—limiting such relief to vulnerable subpopulations. The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.

We draw three conclusions that bear on subsequent pandemic responses—including vaccination efforts—and incarceration more generally. First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments. Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function. Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend. Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.

Brandon L. Garrett and Lee Kovarsky, Viral Injustice

We also have an excellent summary from the Prison Policy Initiative, who concluded that overall the response was “grim”:

Lawmakers failed to reduce prison and jail populations enough to slow down the spread of the coronavirus, causing incarcerated people to get sick and die at a rate unparalleled in the general public.

However, some individual state and local policymakers took steps that stand as an example of how to release a large number of people from prison — a necessary step to ending mass incarceration. And some policy changes made during the pandemic — like eliminating cruel copays for incarcerated people — are ones we need to remember and demand that they be extended permanently.

Prison Policy Initiative, The most significant criminal justice policy changes from the COVID-19 pandemic

I want to throw in a few additional issues that illuminate aspects of these legal responses:

  1. The PLRA, while greatly responsible for suffocating prison litigation, is not the be-all, end-all of the problem. Following Plata v. Newsom closely, I’m not sure how much of the inaction is Judge Tigar’s allegiance to the PLRA framework and how much of it is a culture of conciliatory, deferent approach and valuing “bringing everyone to the table” rather than ordering a solution. Some of this could be down to individual judicial personalities and some of this could be attributed to litigation cultures in different states or even in different counties. I think that our good fortune in the first round of Von Staich was because we were fortunate to get a panel that was deeply responsive to both the humanitarian emergency behind bars and to the geographical argument that the threat would extend to outside communities.
  2. Relatedly, I don’t think that the state vs. federal litigation was the important distinction. Nor was it class action vs. habeas corpus. I think the defining feature of the litigation is the aggressive deference to correctional authorities–giving vague, modest relief knowing that correctional officers and their lawyers can sabotage it.
  3. Generally speaking, and beyond CA, the staff has been the problem–from dragging their feet to actual frustration of purpose (by not testing, not reporting symptoms, and not getting vaccinated.) There has been precious little done to hold correctional officer unions accountable for their colossal leadership failures.
  4. In the absence of releases, there’s been a lot of reliance on bottleneck provisions–stopping admissions from jails, which put the onus on jails to handle their own pandemic issues, often without data and without accountability. The counties have been left to figure things on their own, with dramatically varying degrees of success (see my analysis of this here.)
  5. The advent of the vaccine made a difference, both in terms of state enthusiasm to help incarcerated populations and in the courage of courts. How vaccines played into advocacy and litigation is a complicated story, which Chad and I will analyze more thoroughly in our book-in-progress, #FESTER: Carceral Permeability and the California COVID-19 Correctional Disaster (under contract, UC Press.) In a nutshell, vaccines opened an avenue that allowed courts to avoid grappling with their paralysis regarding releases and recur to a short-term strategy to provide immediate relief from the current pandemic. And even this was not always necessary, given that many states got ahead of the courts and gave the vaccines.
  6. The most notable aspect of the deference/reluctance to do more for prison and jail populations was the prevalence of zero-sum games of deservedness (“grandma before inmates!”), which ignored obvious implications of geography and epidemiology: the idea that people in congregate settings, no matter who they are, face more risk, and that spaces that are jurisdictionally/institutionally set apart from society at large are, in fact, permeable to disease. This is going to be the main premise of #FESTER.
  7. The deservedness argument posed some difficulties in advocacy and organizing: does making the argument that jail populations are largely presumed innocent introduce the deservedness scale, which as Kovarsky and Garrett show was at play in the overall picture of relief? And, how to advocate short-term for vaccination while advocating long-term for releases?

It’s Okay Not to Know

My circle of Israeli friends is rattled by the exposure of sexual misbehavior by acclaimed actor Erez Drigues, who has now taken some responsibility in a much-discussed interview. Meanwhile, my circle of U.S. friends is reacting to the new documentary about Woody Allen. The ensuing conversation is conflating two separate questions, the moral and the factual one, namely: what my values are and who I believe.

I get why the two questions get conflated. In the New Salem, every news story becomes a morality tale. We incessantly opine on the behavior of strangers, as exposed in cellphone videos or tweets, and then we incessantly opine on the opinions of others. The marketplace of ideas has become the marketplace of moral arbitrage (I’ve recently discovered AITA on Reddit and can attest to the attraction, temptation even, of moral opining as a public exercise.) Moreover, because of the publicity of this opinion fest, it also serves an important performative role: who I support when I have the talking stick becomes a proxy of who I am, leading to destructive mobs and pileups, as John McWhorter explains in his new series about The Elect. This, in itself, is exhausting–the combination of constant condemnation of others and constant vigilance of being condemned is not a good way to live–but it becomes especially pernicious when we deal with things we don’t know for certain.

In Yesterday’s Monsters I wrote about the immense hubris that accompanies the major decision of the parole board in every case, i.e., whether the parole hopeful has exhibited sufficient “insight” about their bad behavior. A big part of this nebulous determination is vested in the question whether the person’s remorse for their past crimes is sincere, and the commissioners, who are very certain of their ability to detect sincerity, are also deeply professionally invested in being regarded as having the skills to tell the truthful from the liars:

During my work on this manuscript, I attended a social gathering in which I met a CDCR employee and a formerly incarcerated journalist. Conversation turned to the question of sincerity, and when I described my findings, the CDCR employee said: “If you were actually in the room, you’d be able to see body language and other nonverbal cues. That’s what the commissioners go on when they assess sincerity.” The journalist chuckled softly and replied, “you know, we saw a lot of people coming up before the board, and we knew what they were about in prison—who was real and who was just putting on a show. And often we would shake our heads when someone we knew was faking it got his date.”

In addition to reading the hearing transcripts, I watched some video footage of the hearings. If there was a telling nonverbal dimension to the inmates’ demeanor, I did not discern it. The footage left me unable to determine whether the remorse they expressed—often tearful and quiet—was genuine. Given the commissioners’ backgrounds, it is hard to imagine what psychological tools or expertise they possess that would enable them to detect the sincerity of the inmates. This is especially worrisome given the universal tendency to overestimate our lie-detection abilities. In a recent experiment, police officers and ordinary citizens were presented with videotaped confessions—some true, some false. The officers expressed more confidence in their ability to detect false confessions. The study found that police officers did worse than the ordinary citizens in distinguishing between true and false confessions.

In other words: There is robust empirical evidence to support the fact that we are very bad at detecting sincerity–and those who are most sure of their lie-detection skills make the most mistakes. Even lie-detection professionals like Paul Ekman, who stand by their ability to detect lying via facial micro expressions, agree that untrained professionals fail miserably at detecting lies.

Most of the time we do not have incontrovertible proof about incidents we did not ourselves witness (and sometimes, not even about incidents we did witness)–so we fill in the gaps with our values and world views, as work by the Cultural Cognition Project confirms. This is especially true in cases of sexual misbehavior, in which the factual question of the probability of truth-telling has become inexorably linked to whether one is pro-women or anti-women. Much of the discussion in the Drigues and Allen situations, as in many others, revolves around the likelihood of false complaints. Statistics that have no solid empirical grounding are banded about. In her book Unwanted Advances, Laura Kipniss cites Edward Greer’s law review article, in which he tries to figure out where the statistics about the rarity of false complaints come from. Kipniss retells Greer’s journey:

The 2 percent false rape allegations has been a huge article of faith among campus activists (and Title IX officers, I suspect), so frequently quoted that no one bothers to ask where it came from—until a legal scholar named Edward Greer published a rather gripping statistical whodunit in 2000, about his attempts to track down the source of the stat. His first discovery was that though the 2 percent figure was endlessly cited, every single citation ultimately led back to Susan Brownmiller’s 1975 book, Against Our Will: Men, Women and Rape. Yet Brownmiller’s notes provide a rather obscure source for the figure: a speech to the New York Bar Association by an Appellate Division judge named Lawrence H. Cooke, delivered in 1974.

Greer contacts Brownmiller: where did this information about the (now-deceased) judge’s speech come from? Brownmiller cooperatively combs through her decades-old files—Greer credits her with being “a very meticulous and organized writer”—and sends him a copy of the judge’s photocopied speech. The speech quotes the “Commander of the New York City’s Rape Analysis Squad” as having determined that “only about 2 percent of all rape and related sex charges are determined to be false.” But what was the judge’s actual source? Greer wonders. Was there some sort of official report or press release? Greer contacts the then-judge’s former law clerk, who cooperatively contacts a few other clerks who worked on the judge’s talk twenty-plus years earlier. None recollects any report.

Greer speculates that the judge may have been quoting a newspaper report, and he sets about trying to locate it, combing through local and national papers. He eventually finds a New York Times Magazine article titled “Rape Squad,” published two weeks after the judge’s talk, about a New York City police squad involved in a rape statistic–gathering operation. This squad was exclusively composed of police, however—trained in judo, not social science, notes the Times reporter. Though Greer can’t find any press release on the squad, he does manage to establish that the Times reporter happened to be a friend and neighbor of Brownmiller’s—she’s mentioned in Brownmiller’s memoir (Greer really is an amazing researcher). Were Judge Cook, Brownmiller, and the Times reporter all drawing on the same unknown source? Brownmiller gets a little defensive when Greer presses her on it.

The answer may be “lost to antiquity,” Greer finally concludes dejectedly, though what he’s established with certainty is that the famous 2 percent statistic, what one feminist scholar calls a “consensus fact,” derives from a single police department unit over forty years ago, and there’s no other published source for it.

It looks like, at minimum, we can’t fetishize these statistics. And at the same time, any effort to resolve things at the value level–such as the “transformative justice” gymnastics that are now so popular in the sex-positive community–inexorably boils down to the credibility question, much as one would like to circumvent that question or paper over it with jargon.

So how do we decide who we believe? At least in the Kavanaugh/Blasey-Ford faceoff, I recurred to what I know of my own experience to fill in the blanks (and wrote about it here.) Because Blasey-Ford (who is a complete stranger to me) and I come from the same milieu–we dress similarly, live similarly, talk similarly, do similar things for a living–I assumed that her cost-benefit calculus would be similar to mine, and I can tell you that I would have absolutely nothing to gain, and everything to lose, from making public claims of sexual victimization. Because this is so obvious to me, I would never make such claims unless (1) they were 100% true and (2) a civic matter of crucial importance was at stake. I imputed my calculus to Blasey-Ford whom, again, I don’t know from Adam, but I maintain that my extrapolation was probably more accurate than Trump’s: When Trump claimed that Blasey-Ford had accused Kavanaugh out of fame-seeking, that told me that he understood nothing about Blasey-Ford and her milieu, and it also taught me volumes about Trump and his milieu (and why someone like him would falsely accuse everyone on the planet on the regular.)

I assume that the range of opinions about Drigues, Allen, and countless others are an extension of the same principle. People’s worldviews inform their perspectives on whether they can imagine themselves falsely complaining, and they impute their perspectives to complete strangers. People who are like us couldn’t possibly fabricate a complaint, right? Because we are good! But those other people, on the other side of the political/social/cultural divide, they are nothing like us, and so it’s easier to imagine them lie. Either way, we are engaging in a subjective imagination feat: we can never know for certain whether a stranger in some scenario we read about in the news has the same cost/benefit calculus as us.

Another issue that I’ve noticed is the fact that my support or rejection of someone’s version of the events says something about me generally, or more particularly, about how I plan to live my life onward. This can be especially complicated when the accusation of a celebrated artist brings up the discomfort of enjoying a person’s art while suspecting that they did something atrocious. Because we now have moral edicts about finding flaws in artistic creations in the aftermath of discovering bad things about their creator,s some might choose to disbelieve the accusations of the artist so that they can continue to enjoy the art (disclosure: I adore Woody Allen’s movies and Louis C.K.’s comedy.) This problem is especially palpable when the suspect’s creation is co-shared with people who are still revered, or even who are themselves his accusers, as in the case of Joss Whedon and Buffy. If we could give each other a break from the moral sanitation process–the cleansing of the public square from any artifact whose creator has been suspected of being offensive–people might be less married to their defense of the creator.

Which brings me to the grim conclusion: Friends, we’re going to have to accept the fact that, on countless occasions, we will hear conflicting versions of the same incidents and we’ll have no way to determine for certain which is the correct version (or, as I learned in my military public defender days, that two people can walk away from the same incident with disparately different experiences and be both telling the truth.) For those of us who have to determine credibility and plausibility (judges and jurors) living with this difficulty is a part of life, for a career or for a particular trial. Also, when someone we know is the accuser or the accused, we’ll be called upon to stake our faith in them (I can tell you that, when I worked as a defense attorney, it was very important to our clients that we believe them.) The rest of us might have to learn to accommodate the somatic discomfort of Not Knowing.

Where does the discomfort come from? In the legal system, reasonable doubt should resolve itself in favor the defendant (I say “should” but things are more complicated than that.) But in your own heart, you don’t live “in the legal system.” If you don’t know what happened, it doesn’t support either of the versions. You are just living in groundlessness and doubt. This creates a tension within you that you feel you must resolve–and yet you can’t, not completely. I suspect that much of the conviction on both sides comes from the fact that everyone just wants to get rid of the dissonance already, so they sound more resolute than they are. But a big part of aging, for me, has been learning that I know much less than I think I know. It turns out that, unless you are a factfinder or put in a situation that requires your personal allegiance, you are allowed to say “I don’t know,” take a breath, look within yourself at how it feels not to know, and learn to live with it. And that’s okay.

Ye Olde Ethical Guide to Vaccination

You guys, I got my first shot on Wednesday! That’s me in the picture with the fabulous pharmacist at the San Jose Walgreens who administered it. I can’t tell you how delighted I am to have gotten it. Hustling for an appointment was a tiresome project, and eventually I decided to trade distance for tenacity and drove out of town. Many places in the Bay Area vaccinate anyone who is lawfully entitled to be vaccinated in their county of residence, and thankfully educators are eligible in San Francisco, which means that, as of March 24, I’ll begin to hold office hours in person (in the open air, masked and distanced.) Hooray!

All around me, lots of questions and conundrums about how individuals fit in the vaccine equity struggle are floating about. Answers about ethics will differ from place to place and person to person. I’m no more an authority on ethics than Laura Schlessinger is on psychology, and Goodness knows the last thing we all need is more schoolmarmishness in our midst. However, in the off-chance you’re interested, my guiding principle in world improvement comes from Peter Singer’s effective altruism, as articulated in his excellent books The Life You Can Save and The Most Good You Can Do. I’m attracted to this philosophy because it makes an enormous amount of sense, and because it reinforces effectiveness over showmanship (as in: unless you have some special skills/qualifications, rather than personally flying out to eradicate malaria, keep your finance job and pay for *two* volunteers to eradicate malaria; if you want more diversity in law school, rather than organizing reeducation camps where privileged people publicly moan and grovel about their privilege, raise funds for scholarships for students from disadvantaged communities.)

I think the ethics of optimal philanthropy translate very well to the vaccine arena, where effective altruism must follow two important principles:

  • Vaccination efforts are, by nature, not a zero-sum game (every person who gets vaxxed, even if it’s not us, benefits us because our odds of getting sick go down); and
  • In a collective effort of this magnitude, there’s an important difference between individual actions and vaccine fairness in the aggregate.

From these two principles, flow the following four rules of thumb:

1. Is it your turn, according to the state/local protocols that govern eligibility wherever you are? TAKE IT. Is it lawful but you need to hustle for it (like click/refreshing aggressively for days or driving a bit farther)? HUSTLE AND TAKE IT. Your shyness/modesty/performative self sacrifice, as in “Others need it more than I do! Save Thyselves!” will not necessarily translate to any positive change in the world, as you have no control over who will get the vaccine in your stead. Your getting vaxxed benefits everyone around you.

1.1. First Corollary: If you think the rules where you live are inequitable, your one-person’s-quest to support a regime that you personally invented and think is equitable by opting out of the game does no one any favors (see above, individual vs. aggregate.)

1.2 Second corollary: Is there a population, group, or community who is being shortchanged by your local government’s plan? Take it when it’s your turn and ADVOCATE for the people who you think DESERVE priority (county jails! county jails! county jails!) Write letters to the editor, call your elected officials, organize a vaccine advocacy group on behalf of that community.

1.3. Third Corollary: Did you take it when it was your turn? LOUDLY ADVERTISE THAT YOU ARE VAXXED and encourage others to do the same when it’s their turn, which helps the collective effort more than your sacrificial protestations.

2. If it’s not your turn, DON’T JUMP THE LINE by engaging in deception (rule of thumb: If you’d be ashamed to admit on social media how you came to get the vaccine, don’t get it.)

3. The only exception to (2) is when you are being authoritatively encouraged to take it to prevent waste. The vaccine is precious and expensive; unrefrigerated Pfizer shots going into your arm are better than unrefrigerated Pfizer shots going in the trash. If outreach into a particular community is unsuccessful, and the word is out to show up at the end of the day to get the leftover doses in your arms (happens a lot in Israel) you are not taking shots away from the community in question; you are saving them from oblivion. By getting vaxxed yourself and publicizing it you are indirectly benefiting everyone, including the community in question.

4. Has someone in your immediate surroundings engaged in deception to obtain their shot out of turn? First, ask yourself whether there might be something you’re not privy to: you don’t know every person’s medical history, preexisting conditions and risks. Assuming you know there’s been ugly behavior, consider the difference between individual behavior and aggregate effects: even their unethical behavior indirectly benefits you and everyone else, and you are in no position to assess whether that benefit exceeds the cost of their deceit. You can stay friends with them, or not, but don’t let resentment about this live rent-free in your head.

Onward! Let’s all get vaxxed and start putting this nightmare behind us.

The Empathy at the End of Diversity

Yesterday, Heather Knight reported about the latest absurdity perpetrated by the San Francisco Unified School District board:

A gay dad volunteers for one of eight open slots on a parent committee that advises the school board. All of the 10 current members are straight moms. Three are white. Three are Latina. Two are Black. One is Tongan. They all want the dad to join them.

The seven school board members talk for two hours about whether the dad brings enough diversity. Yes, he’d be the only man. And the only LGBTQ representative. But he’d be the fourth white person in a district where 15% of students are white.

The gay dad never utters a single word. The board members do not ask the dad a single question before declining to approve him for the committee. They say they’ll consider allowing him to volunteer if he comes back with a slate of more diverse candidates, ideally including an Arab parent, a Native American parent, a Vietnamese parent and a Chinese parent who doesn’t speak English.

This display of idiocy–complete with two hours of discussing Seth Brenzel’s “lack of diversity” while he sits before them in complete silence–is just the latest antic in the Board’s record of breathtaking performative incompetence, one of the previous episodes of which was the ridiculous quest to rename 44 of San Francisco’s closed schools based on their semiliterate understanding of history through Wikipedia.

Much has been said about these people’s incompetence and recurrence to woke theater in lieu of (what a wacky suggestion) actually helping the district’s children by charting the reopening of schools, but one particular point has caught my eye. The sole commissioner to defend Brenzel–Commissioner Jenny Lam–chose to do so by arguing that, as a gay man, he does bring diversity to the Board:

By denying him the position, we are failing SFUSD’s core values— the promise to value diversity, and to build inclusive school environments for our students and families.  Parents and families deserve utmost respect and dignity.  We also know the challenges faced by LGBTQ students in our schools from bullying to lack of school connectedness and sense of belonging.  

For decades, the LGBTQ community has fought hard for the right to be recognized as parents. As a board we missed an opportunity to reaffirm the humanity of one of our dads.  Seth deserves a fair opportunity— I will work to advance his appointment.

While it is critical to have diversity we must not pit communities against one another. We often say we must remain vigilant fighting against discrimination and hate. I will continue that commitment.

It seems like the only rhetorical currency available to San Francisco officials and pundits is diversity; Brenzel’s defense, as well as his humiliation, uses the same linguistic tropes. Indulge me, then, in a little thought experiment: let’s assume, just for a moment, that the Board had declined the application of a <gasp!> cis straight white man for lack of diversity. And let’s also remember, for a brief moment, that this coveted position is volunteer work on behalf of children. It does not grant anyone monetary benefits, fame, or status; all it means is a burden on a parent’s already-scarce free time amidst a pandemic.

Now, think: How often do you see fathers–any fathers–volunteer for educational leadership? How much have you seen fathers (as opposed to mothers) losing productivity to the pandemic? How many men in your immediate surroundings have made the choice (or accepted the lack of choice) to leave their jobs and tend to their children’s needs and education while their wives kept their positions? Can you think why, in order to appeal to people, a humongous effort needs to be put into imbuing school volunteering with any sort of status, and whether this might possibly relate somehow to the fact that parent volunteers tend to be women? Against this backdrop, wouldn’t it be a positive–even, perhaps, progressive–move to say to a man, any man, of any sexuality, ethnicity, or nationality, applying for one of multiple vacant volunteer positions advancing the wellbeing of the community’s children: “Welcome! When can you start?”

Here was an opportunity to understand that a motivated, good-willed person, does not give of his free time to the community to abuse and belittle other people’s children. Here was an opportunity to drive home the crucially important message that we advance as a community when all our kids advance, and that all parents, of all colors and sexualities, should be invested in the advancement of all children, of all colors and sexualities. Instead, judging from the furious comments of the scores of parents of all colors who responded to the decision, what happened here was exactly what happens when people receive mandatory diversity training: resentment, derision, disengagement. When has bullying, humiliating, and excoriating people who want to help ever worked as effective motivation to continue “doing the work,” so to speak? What, exactly, was the goal here, and how was it accomplished?

I don’t think our diversity aspirations should be more modest. Au contraire, I think they should be bolder. So bold, in fact, that diversity itself should not be a goal. Treating it as such is shortsighted. Diversity is a path that takes us toward a brighter future–one in which everyone can enjoy self-fulfillment and thrive. This takes the understanding of two entwined but distinct truths, which have come to obscure each other in our shrill, shallow narratives: the one progressives get–that people of different backgrounds experience the world in unique and unequal ways because of their identities–and the one they don’t get, namely, that empathy is a human superpower that transcends differences because, at the ember of lived experiences, we all know what it’s like to be disregarded, lonely, misunderstood, dehumanized. A quest for diversity is worthy and important when it advances the cause of empathy, and a caricature of performative wokeness when it stands in the way of empathy, which is what happened here.

Who Threatens Academic Freedom? Adventures in Cancel Culture

Renowned Buddhist scholar and teacher Pema Chödrön tells of her correspondence with Jarvis Jay Masters, a Buddhist scholar on Death Row. In one of his letters, Masters describes watching angry protesters on TV with the sound off and being unable to determine whether they were from the right or from the left. Similarly, in this terrific series of videos by sociologist Ilana Redstone, she recounts experiments in which people were shown a protest on screen and were much more likely to assess the protests as nonviolent when told that the protest aligned with their own political views.

I bring up these examples because of the prolonged, heated argument on social media over the existence and direction of “cancel culture.” Right wingers argue it’s a left-wing problem; left wingers argue that all the canceling is coming from the right.

I’d like to offer a more complicated perspective, rooted in my own experiences. Having been in American academia for twenty years, experienced my fair share of bigotries, threats, and ugliness, and heard plenty of stories from people I know personally, I think that no one has cornered the market on weaponizing social media. Plenty of academics across the political spectrum go to work every day feeling like they’re walking on eggshells. They spend inordinate amounts of mental, emotional, and pedagogical energy tiptoeing around minefields–especially when they are, like most people in academia now, adjuncts or untenured folks. Who they fret about largely depends on which institution they’re in, what the student body is like, what they teach, and what kind of public speaking (if any) they do.

My personal cocktail of bracing and trepidation is a consequence of the fact that I teach and work in a politically complicated space. I talk about issues of high political and emotional valence–criminal justice, civil rights and politics–in a state that has very blue and very red counties. I teach in a very progressive institution, in which our student body is among the most progressive in the country. This has complicated implications for my pedagogy, similar perhaps to the ones that a colleague teaching in a predominantly conservative institution might take: I have to craft what I say to protect the few centrists, moderates, and conservatives in class, who often have good points to make and make them eloquently and politely because being in a largely progressive space has made them stronger, as well as to prod the vast majority of progressives in class out of intellectual laziness and into developing the kind of resilience to upset and disagreement that they will need in their professional lives. But we can talk about all that some other time: Today, hatred is on the menu.

Here is a quick-and-dirty typology of the kinds of blowback, negative feedback, threats, hatred, etc etc., that I have received so far: From the right–nastygrams and screeds via email, often poorly spelled, ranging from garden-variety insults to specific death threats. From the left–anonymous complaints taking my words out of context and ad-hominems that focus on my Israeliness.

Which is more frightening? Hard to say. The right-wing death threats were a constant thing (ironically, often coming from folks who support the death penalty for homicide) and I hadn’t taken them too seriously until the 2016 election, when they became more vicious and started including a time and place for my demise. I especially remember the one that came in shortly after I spoke on KQED about the havoc that Prop. 66 was going to wreak on litigation on behalf of wrongfully convicted people. That one I even reported to the police. In addition to the email vitriol, there are radio callers, and occasionally co-interviewees, on TV and on the radio who can be hostile and difficult; one particular example is the right-wing politico who bloviated about the “liberal professor” and the “liberal media.” People near and dear to me, like my colleague Dorit Reiss who does world-improving work on vaccine advocacy, or my colleague Veena Dubal who advocates for labor rights, experience concerted efforts aimed at them, professionally and personally, by political opponents.

The left wing stuff has been frightening in a different way, because it threatens my job security. One of the biggest frights in this department came in 2011, when I taught torture and spoke of the Israel Supreme Court decision to abolish it. To show that the decision was not followed, I showed the Human rights org B’Tzelem report, which included a diagram of a man being tortured, drawn based on his later testimony. Result: An anonymous complaint to the Dean, strategically sent three weeks before my tenure vote, accusing me of “trivializing Palestinian suffering with a cartoon.” Later, in 2019, an editorial board member of a law review to which I submitted a paper asked me to erase my relevant professional experience (as a public defender in the Israeli army) from my CV so that he could “sell” my paper more effectively to his friends. Stuff like this terrifies me, because I know personally of several people who were more careful and diplomatic than me and had their lives wrecked by a few folks who misunderstood them and took their grievances to twitter (it’s telling that these folks want to keep their fears confidential, but there’s certainly the cases of Greg Patton, Erika Christakis, Laura Kipniss and others, which have been made public.)

I’ve also received cancel efforts from both directions in the form of two 1-star reviews on my books (reviewed with 5 stars by everyone else). In both cases, these were calculated to trash me and hurt sales, but the difference in style was instructive. The right-wing review, sent first to my email inbox, was a lengthy, insult-filled screed misinterpreting my book and calling it “rat droppings.” The left-wing review was headlined, “Israeli militarist on the loose!” and full of ad-hominem insults that had nothing to do with the book (which was not about Israel) or my actual opinions/biography.

As I review my experiences being on the receiving end of ugliness, I notice the following insight: When right-wingers have attacked me, they attacked my opinions (misconstrued and insult-filled.) When left-wingers have attacked me, they attacked my Israeliness. Which was the worse experience? Again, hard to say. Both of these essentially consist of efforts to box me into a hated stereotypical category that’s not quite cut to my size and shape.

Here’s why this matters: the public conversation about who is getting “cancelled” and who is doing the “cancelling” ignores the importance of milieus of reference. Yes, it’s true: nationwide, the threat to science and academic freedom is greater from science-denying administrations, who are cutting funds, reducing opportunities, hindering scientific integrity, and vilifying higher education. But people don’t live and work only in “the nation.” They also live and work in their local communities and academic institutions, where their ability to freely present ideas and pursue research agendas is impacted at least as much by their students’ evaluations, colleagues’ opinions, and administration’s preference, than by the Trumpian kakistocracy. This can explain the wide variation of opinions on what the bigger “cancellation” threat is: people simply do not experience the same threats because they are not exposed to the same milieu. An environmental science professor teaching at a rural college in a red county, with students who are staunch climate deniers ready to complain about religious oppression, faces a very different set of concerns than a law professor teaching race and politics in an urban school in a blue county with students who came from liberal arts colleges ready to perceive slights and take offense at trivial faux pas.

Having the unique experience of absorbing both left and right critiques makes me sympathetic to the concerns of lots of different people; I believe all of these concerns are valid. Who threatens you and who you’re afraid of in academia depends on where you stand. Because of this, I wish we were less resolute and vitriolic in the debate about who “really” instigates cancel culture and who “really” suffers from it.

And why is it that we’re at each other’s throat arguing about who is victimized and who is doing the victimizing? As I explained elsewhere, I suspect a lot of this has to do with the primacy that victimization has taken in American society as a precursor to having a public voice. Years of punitivism (which, in itself, has done very little for victims, as Leigh Goodmark, Aya Gruber, and Justin Marceau have explained in their respective books) have acclimated Americans of all political persuasions to the notion that they will not be listened to unless then can claim victimization. I really wish we could listen to ideas without this extra prism because it primes us to marinate in the uncomfortable, scary place of being a victim for far longer than is good for us.

Unfortunately, unbridled hatred abounds, as well as channels to deploy it. I’ve often thought about the fact that, while stories of academic careers destroyed over misunderstandings and misconstructions have always been around, the role of social media as an amplifier of grievances has greatly increased the risk of wrecking people’s reputations and prospects because of political contention. Working like this is not only upsetting, but unsafe–and when I say “unsafe”, I mean genuinely threatened in terms of one’s livelihood, not “unsafe” as in “upset over something disagreeable that someone said.” I don’t know how to solve this problem, but I do know that both sides of this debate might do well to accept the possibility that their enemies have not cornered the market on stifling academic freedom and scaring others into silence.