Archive | April, 2010

The Sound of Crickets Chirping

So the New Republic published the most thorough critique to date of Human Rights Watch’s record on Israel this week. Contrary to its typical belligerency, HRW has not responded [beyond this tepid and largely unresponsive letter to TNR from a co-chair of HRW's Middle East advisory committee, who is not an employee of HRW, but not from HRW itself--thanks to a reader for pointing this out]. That’s unusual, but not too strange; given how often HRW spokespeople get themselves into trouble when they defend the organization’s record on Israel, they are clearly better off keeping quiet.

What is very strange is that members of the left blogosphere who have previously vigorously (and reflexively) defended HRW have all been silent. Where is Matthew Yglesias? Andrew Sullivan? Daniel Levy? Aryeh Neier? Adam Horowitz? Even Kevin Jon Heller has blogged not a word about the TNR story.

I’m not given to conspiratorial thinking, but it’s almost as if “headquarters” has sent out word to ignore the TNR piece in the hopes it will go away. [...]

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Words I never expected to write

Dick Durbin is right.

The Senate Democrats have proposed immigration reform that includes a biometric identity card, and Sen. Durbin is defending the decision. “People understand that in this vulnerable world, we have to be able to present identification,” Durbin said to The Hill. “We want it to be reliable, and I think that’s going to help us in this debate on immigration.”

I know secure ID is a libertarian bugaboo, but I just don’t understand their opposition, except from those who don’t really want to enforce the immigration laws.  We can’t stop illegal immigration if it’s easy to get a job with fake ID.  And we can’t make fake ID hard to get unless we issue good, secure IDs — to everyone.

It’s not an especially persuasive rebuttal to shout  ”papers, please” in a bad German accent.  We show our “papers” every time we fly and every time we undergo a traffic stop.  It’s just that the papers we show aren’t very secure.  Is there a privacy right to carry only insecure, ineffective ID?  And does the right to carry bad ID really outweigh the privacy lost by victims of identity theft — increasingly a crime being committed by illegal workers to evade electronic social security checks?

I don’t think so.

Comments are open.  Please keep it civil. [...]

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Judging a Person Based on a Single Forwarded Personal E-Mail

To my mind, the most troubling aspect of the Harvard e-mail controversy is how many people feel comfortable publicly judging someone based on a single forwarded private e-mail. I can see judging a person based on a law review article they wrote, or an op-ed they penned, or public speech they made. All of these forms of speech are freestanding statements that can be judged on their own. In contrast, I think we need to be cautious about judging a person from a single private e-mail they wrote at some point in the past that was forwarded on to a wider audience without their consent.

The problem is that individual e-mails generally are not freestanding. They are snippets of an ongoing conversation, and that conversation normally will have a context. As outsiders, though, we just don’t know the context. We don’t know the ongoing conversation; we don’t know the person’s background; we don’t know what assumptions were being made that were a part of the e-mail we’re seeing. We don’t know what other e-mails were sent that might clarify or apologize for an earlier statement. We don’t know the sender’s state of mind. And when it comes to an e-mail sent right after dinner, we also don’t know how much they had to drink at dinner that night. All we have is that one snippet that is the single e-mail.

I think we should be cautious about judging a person in that setting. It doesn’t mean we shouldn’t do it at all, of course. But I think it does counsel caution. Especially so when we’re trying to construe statements that could be read in different ways based on the context.

Take the e-mail in the Harvard controversy. The most controversial sentence is the second sentence in the e-mail. The [...]

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Civil Unions in Hawaii?

The state legislature has voted to grant same-sex couples the same benefits and rights as married couples under the title “civil union.” Apparently fearing claims of discrimination, which have not succeeded elsewhere, the state legislature also made civil unions available to opposite-sex couples. It’s not known whether the governor will sign the bill.

Hawaii touched off the national debate on same-sex marriage when its supreme court declared in 1993 that excluding gay couples from marriage violated the state constitution’s equal protection clause unless the state had a “compelling” reason for doing so. Anxiety that Hawaiian same-sex marriages would spread to other states led to passage of the Defense of Marriage Act in 1996.  The state’s voters then amended the state constitution to provide that the legislature could choose to limit marriage to opposite-sex couples.  In 1997, the legislature chose to grant couples very limited rights if they register as ”reciprocal beneficiaries.”  Now it has decided that this limited set of rights is insufficient. [...]

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Taboo and Not Taboo at Elite Universities

Anthropologists tell us that one window into a society is what is and is not taboo in that society. It’s interesting to look at America’s elite universities in this context. Let’s take examples of people and ideas that are not taboo, just from things that I’ve blogged about:

Being the head of an enemy, terrorist state, which is helping to kill American soldiers.

Being an unrepentant domestic terrorist, so long as you are an unrepentant leftist domestic terrorist; klansmen and neo-Nazis need not apply.

Calling 9/11 victims “Little Eichmans.”

Suggesting that American Jewish leaders resemble stereotypes out of Der Sturmer, at least if you are doing so in service of a general leftist, anti-Israel ideology. (Pat Robertson or Pat Buchanan would get no “pass” if they made similar remarks.)

[Note: Ayers, Churchill, and Finkelstein, the examples provided above, don't teach at elite universities, but they have plenty of defenders and apologists at such universities, and none would be considered generally "taboo" as a speaker.]

Suggesting that any Jew with traditional religious values is unfit to serve in government, that a top-ranking Jewish U.S. official was more loyal to Israel than to the U.S., and that “right-wing” American Jews somehow pushed the U.S. into the Iraq War. Again, at least if this is in the service of hostility to Israel.

Being a convicted cop-killer on death row, with strong evidence of guilt.

By contrast, writing a private email concluding that one thinks that the science regarding racial differences in intelligence is uncertain is taboo.

One can have a lively discussion regarding whether some or all of these things are should be taboo, but the interesting thing is that the individuals who are most committed to keeping the latter topic taboo tend to be the same people who complain [...]

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4. On a Bus in Kiev

I remember very little about my childhood in the Soviet Union; I was only seven when I left. But one memory I have is being on a bus with one of my parents, and asking something about a conversation we had had at home, in which Stalin and possibly Lenin were mentioned as examples of dictators. My parent took me off the bus at the next stop, even though it wasn’t the place we were originally going.

Perhaps I have some of the details wrong (was it just Stalin, or also Lenin?); childhood memories remembered 35 years later are like that. I’m telling this to explain why I feel so strongly about it, based on my memories; my personal account does not affect the soundness (or unsoundness) of my arguments. But my sense from all I’ve heard is that this is exactly how life was like there, and that no-one who lived there in the 1970s would think the scenario at all improbable. [...]

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3. The Practical Costs of Condemning Openness to Distressing Answers on Factual Questions

I’ve blogged a good deal so far about why I disapprove of the condemnation of the student who e-mailed a couple of friends saying that she “absolutely do[es] not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent.” But let me turn to a more practical problem with such condemnation. [...]

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1. Science, Faith, and Not Ruling Out Possibilities

Much has been said in the last two days about a Harvard law student’s e-mail to a couple of other students — an e-mail that was some months later apparently widely forwarded by one of the recipients (without the sender’s permission). The e-mail led to much criticism of the sender, coverage in Above The Law, the Boston Globe, an AP wire story, and the Harvard Crimson, a condemnatory statement from the Dean of Harvard Law School, an apology from the sender, and more.

I thought I’d say a few words about this, both in this post and in some others to come, because this seems to me to go to the heart of what a university should be, of what we should want our society to be, and of a scientific approach to questions of scientific fact.

I would have happily avoided this topic if I could have. But I feel an obligation — as a professor, as a tenured professor, and as someone who feels strongly about the need to treat scientific questions as scientific questions and not as articles of faith — to speak up about it. I am not naïve enough to be surprised that an e-mail such as this would lead to public condemnation and a public outcry. But that the reaction has been unsurprising doesn’t mean that it has been proper. [...]

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Speaking at Stanford on Monday

On Monday, May 3d, I will be speaking on Why the Individual Health Insurance Mandate is Unprecedented and Unconstitutional at Stanford Law School. The talk is from 12:45-2:00pm in room 190. The event is open to the public and details are here. Of course, a portion of my speech will concern the analysis I presented yesterday in The Wall Street Journal. I might add that the editors always choose the titles, not the authors. I think “Health Insurance Mandate in Peril” has a nice ring about it. But the last sentence of the kicker, “First Congress said it was a regulation of commerce. Now it’s supposed to be a tax. Neither claim will survive Supreme Court scrutiny,” goes beyond anything I predict in my piece, which ends like this:

Are there now five justices willing to expand the commerce and tax powers of Congress where they have never gone before? Will the Court empower Congress to mandate any activity on the theory that a “decision” not to act somehow affects interstate commerce? Will the Court accept that Congress has the power to mandate any activity so long as it is included in the Internal Revenue Code and the IRS does the enforcing?

Yes, the smart money is always on the Court upholding an act of Congress. But given the hand Congress is now holding, I would not bet the farm.

UPDATE: Turns out the wording “Neither claim will survive scrutiny” was an error that did not appear in the print edition, and that was corrected today on line. The correct version reads:

First Congress said it was a regulation of commerce. Now it’s supposed to be a tax. Neither claim may survive Supreme Court scrutiny.

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Lite Blogging

I’m afraid I’ve been lite-blogging for a while and will be around less than usual on account of some deadline pressures.  Once I get back from this current trip, I’ll post something about the last hearing on drones that Rep. John Tierney’s subcommittee held on Wednesday, and also some stuff related to the derivatives bill.  But I won’t be around as much as usual – kudos to Northwestern University Law School and its Searle Center roundtable on Alien Tort Statute issues – great meeting, terrific papers, and great folks. [...]

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Debate on constitutionality of Obamacare

Held on April 28 at the University of Colorado law school, under the sponsorship of the American Civil Liberties Union of Colorado. Arguing in favor of constitutionality was Jean Dubofsky, former Justice of the Colorado Supreme Court. Arguing the other side was me. The video is here. (Video and audio are often out of sync by several seconds.) The format was Kopel presentation, Dubofsky presentation, Kopel rebuttal, Dubofsky rebuttal, and then questions from the audience. Pursuant to the framing of the question, both of us devoted substantial attention to whether Colorado Attorney General John Suthers made the right decision in joining the 20-state coalition lawsuit against the new law. The pro/con presentations take about an hour, and the full program is 1 hour and 36 minutes. [...]

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Some “Realism” About John Mearsheimer

I understand that John Mearsheimer, co-author of The Israel Lobby, was once considered a respected “realist” scholar of international affairs. If so, it’s a shame he’s gone more and more off the deep end into the Mondoweiss/Finkelstein–two individuals he identifies as Jewish heroes, along with such prominent foreign policy “realists” (not) as Noam Chomsky and Naomi Klein!–territory of belligerent anti-Israel propagandist with due disregard for scholarly integrity.

I’ve just stumbled across a speech he just gave at the “Palestine Center” called The Future of Palestine: Righteous Jews [Weiss, Finkelstein, et al.] vs. the New Afrikaners [the entire Jewish and pro-Israel establishment].

Putting aside the inflammatory nature of the title [as if Jews need like the likes of an-ignoramus-on-Jews-and-Judaism like Mearsheimer to bestow his judgment on them], the scholarly content of the piece is a joke. Mearsheimer points to some legitimate obstacles to Israel accepting and implementing a two-state solution, but simply assumes that the Palestinians will peacefully and willingly accept a two-state solution. No mention of Hamas. No mention of the rejectionist factions of the Palestinian Authority. No mention of anti-Semitic propaganda in Palestinan schools and in the Palestinian media. No mention of Palestinian insistence on the right of return. No mention of the violence that greeted Israel’s withdrawal from Gaza and parts of Samaria. No acknowledgment, indeed, in his discussion of the purported future Israeli “apartheid” state, that Israel occupies not one inch of Gaza, and less than half the West Bank. The only mention of problems on the Palestinian side is as follows: “The Palestinians are badly divided among themselves and not in a good position to make a deal with Israel and then stick to it. That problem is fixable with time and help from Israel and the United States.”

More to the point, here’s how [...]

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Libertarian Critiques of AZ Immigration Law

Here are a few libertarian critiques of the Arizona immigration law.

Shikha Dalmia argues that Europe’s stringent immigration laws are no model for the U.S.

these countries are doing a far more effective job of controlling their citizens than their borders–exactly what will happen in the United States if the Arizona law is replicated or federalized. Indeed, given that the overwhelming majority of undocumented workers are here because some American employer or family member wants them to be, there is no way to clamp down on them without imposing a vast, repressive state on American citizens that criminalizes ever-increasing spheres of life. . . .

the claim that the bill doesn’t apply to citizens is disingenuous. Regardless of what the law says, dark-skinned, naturalized citizens with an accent (like me) will inevitably feel the pressure to carry their papers around at all times. That’s because if you can’t produce them on demand, under Arizona law, you would have to be detained while the local police verify your status with immigration authorities–which will put you on the road to Kafkaland, where your freedom could be held hostage by a typographical error. The upshot will be a dual class of citizens on American soil: Paper-carrying and non-paper-carrying.This is very similar to the situation in Italy, where the law does not require citizens to carry their identification papers–but if they don’t have them, they have to face the prospect of being detained and hassled while authorities conduct a background check.

The only way of making the Arizona law less discriminatory will be by making it more draconian by implementing a full-blown National Identification system that covers all Americans, as in France and Belgium . In France random ID checks by police, especially in poorer neighborhoods, are quite common. And in Belgium, on the

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Much Easier to Fight Caricatures

I see quite a few comments like this one — from all points of view — so I thought I’d mention the problem:

[An earlier commenter wrote:] “Do you even remember 2004-05? The pro-life people were pretty outspoken on the Schiavo case.”

[The response:] I remember that case. Her legal husband said that he knew what Terry wanted and so decided to remove the life support, and we all know that those who support the sanctity of marriage would never interfere in such a decision. So we do know that all the pro-traditional family types were completely fine with his decision and made no attempt to insert themselves into an intimate family decision.

It’s always easy to attribute to your adversaries the most extreme, unlimited version of their arguments, and then argue that they’re hypocrites because their positions are inconsistent with your caricature. But it’s not actually a sound argument.

I don’t know of any people “who support the sanctity of marriage” or who are “pro-traditional family types” whose moral principles actually require them to value spouse’s decisions about the other spouse above everything else — either in general, or in the specific context of deciding on whether to disconnect the other spouse’s feeding tube. Perhaps there are a few such people, who take those principles that far, and who at the same time took a different view as to Schiavo. But even if there are, I doubt they are representative of the broader movement that the commenter is trying to criticize.

Most of us, whether “pro-traditional family types” or any other “types,” have many principles that usually guide our actions but sometimes conflict with other principles. We don’t extend our principles to their most extreme possible conclusion, with no regard for countervailing factors, nor do we adopt the most [...]

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