The Faculty Lounge

Why Is It So Hard for Linda Sarsour to Understand Anti-Semitism?

The Women’s March seems to be slowly self-destructing due to the leadership’s refusal to disavow their past associations with Louis Farrakhan. To an outside observer, this obduracy is inexplicable. It should be the easiest thing in the world for a progressive movement to repudiate Farrakhan’s outbursts of anti-Semitism, homophobia, and misogyny. And yet, the Women’s March leaders repeatedly temporize and rationalize, at the expense of the coherence of their movement. The reasons for their reluctance are obscure and perhaps unknowable. If I had to guess, however, I would say that they simply do not understand, or do not want to understand, the role of anti-Semitism as a malign force in the world that corrupts everything it touches.

Manliness

I want to thank Dean Dan Filler for inviting me to blog.

One of my chief scholarly interests is manliness and its relation to law and politics. While the topic may seem exotic to some, I think it is in fact quite the opposite: it is manifest in some of our most pressing public issues. We have a President, for example, who has explicitly invoked the tropes of manliness to justify his authority (and belittle others). So too the policy debates about the Second Amendment are often prompted by mass shootings committed by disturbed males who feel that a resort to gun violence is necessary to redeem their emasculated status.

But manliness is a barbed idea. It can serve diverse constituents. Manliness as a normative theory has arguably been used to underwrite the First Amendment right of speech, the need for civility as a political virtue, and the Civil Rights Movement of the 1960s.

In the next couple of weeks I plan to blog about manliness in the context of law and politics, beginning with my recent book about Justice Oliver Wendell Holmes.

 

Zhores Medvedev (1925-2018)

Zhores Medvedev died last week, one day after his 93^rd birthday. Although not tremendously well known in the West, Zhores (a biochemist) and his twin brother Roy (a historian), who is still alive, were major dissidents in the days of the Soviet Union.  Both men paid heavily for their intellectual resistance to Soviet orthodoxy (it did not help that their mother was Jewish).

Zhores took the lead in discrediting the theories of Trofim Lysenko, who was for many years the director of genetics at the Soviet Academy of Sciences. More importantly, Lysenko was Stalin’s main adviser on science and agriculture, primarily because he believed that Marxism -- that is, dialectical materialism -- held the key to crop productivity.  According to Lysenko, it was the material world, rather than Mendelian genetics, that most influenced yields.  Thus, Lysenko denied the existence of genes and argued, with Stalin’s support, that seeds could be “vernalized” by keeping them damp and cold and that this quality would be passed along to subsequent generations of seed stock. He held a number of other non-scientific theories, all based more or less on Marxism, which were imposed on Soviet farmers with disastrous results. Even after Stalin’s death in 1953, Lysenko continued to hold sway under Khrushchev until the mid-1960s.

Zhores began is attack on Lysenkoism in the early 1960s, later joined by Andrei Sakharov, in which he condemned the demagoguery and scientific bankruptcy of Soviet agricultural policy. He wrote two books about Lysenkoism that could not be published in the Soviet Union, which he circulated as samizdat (one was later published in the U.S.). It took some years, but Lysenko eventually fell from power, much to the benefit of scientific integrity and agricultural productivity.

The Soviet power structure, however, could not forgive Medvedev’s deviation, even after he was proven right. He was persecuted relentlessly, at one point kidnapped and held incommunicado in a psychiatric facility. He was declared insane and released only after weeks of international protests. Even after his release, Medvedev was not allowed to leave the Soviet Union and therefore could not attend international scientific conferences, nor were his works published in Russian.

Finally, in 1973, Medvedev was allowed to accept a one year fellowship in London, but it proved to be a poison pill. Once in London, Zhores was informed that his Soviet citizenship had been revoked and his passport was canceled. He was not allowed to return to Moscow until 1989, when Mikhail Gorbachev invited him to participate in the investigation of the nuclear power accident at Chernobyl.

Roy Medvedev was also a noted dissident, most famous for his critique of Stalin’s purges, Let History Judge, which of course had to be circulated as samizdat in the Soviet Union. It was first published in English in 1969, which led to Roy’s expulsion from the Communist Party (an essential membership for anyone pursuing an academic career) and fired from his job. For years, there was a KGB guard stationed at his door.

The great lesson from the career of Zhores Medvedev is the danger inherent in the politicization of science. It took decades to free Soviet agriculture from the disastrous effects of Lysenkoism, which owed far more to Stalin’s ideological preferences than to the scientific method. Lysenkoism held sway in the Soviet Union long after the scientific consensus in the rest of the world had firmly accepted Mendelian genetics. The contemporary analogy is obvious. We ignore scientific consensus at our peril. Lysenkoism was strictly a Soviet phenomenon, with no impact beyond its borders. The consequences of climate change denial will be felt world-wide.

The New York Times obituary of Zhores Medvedev is here. The Washington Post obit is here. David Remnick's 1989 article about the brothers is here.

Note on orthography: Zhores Medvedev was named after the French socialist Jean Jaures, which was transliterated into Cyrillic as Жорес. It has then been transliterated back into the Latin alphabet as Zhores, rather than Jaures, which is phonetically consistent with the Russian, but completely obscures the French origin of the name.

Long Shadow

Last weekend I recommended David Reynolds’s excellent documentary on the Armistice of 1918, which is available on Netflix. If you are interested, Prof. Reynolds is also host of an outstanding 3-part BBC documentary on post-war Europe called Long Shadow. It is based on his award-winning book, The Long Shadow: The Legacies of the Great War in the Twentieth Century.

The Long Shadow documentary is absolutely superb and quite timely. Reynolds shows how the chaos unleashed by World War I gave rise to a high-stakes ideological competition between three diametrically-opposed systems: communism, fascism, and liberal democracy. The competition was reflected in the revealing diversity of the various national war memorials, from the Cenotaph monument in London to Mussolini’s Redipuglia memorial in northeast Italy. 

One of the documentary’s many interesting themes is how Britain managed to avoid the self-destructive ideological extremism that plagued continental Europe after World War I. Stanley Baldwin and Ramsay MacDonald may not be household names today, but those two prime ministers helped Britain chart a middle course at a time when the other major European powers veered off into fascism or communism. As Prof. Reynolds explains in his book:

“Mass democracy exploded across Europe in the wake of the war, inspired in very different ways by [Vladimir] Lenin and [Woodrow] Wilson. But its destabilizing effects were soon being channeled by new political elites—the Bolshevik concept of a vanguard supposedly preparing the way for eventual proletarian control, the fascist response in the form of a ‘superman’ leader directing a dominant party. By the mid-1930s much of continental Europe was polarized between left and right, even in Britain’s co-victor, France.”  

But unlike its continental neighbors, Britain pursued a centrist path:

“In Britain, by contrast, the sudden tripling of the electorate in 1918 was successfully absorbed within parliamentary politics. The threat of a crippling general strike never materialized. Under Ramsay MacDonald the Labour Party was desperate to prove it did not pose a threat to the Constitution, the empire or pound. The party’s ideology drew less on continental Marxism than on indigenous traditions of nineteenth-century radicalism and nonconformist Protestantism. At the same the Tories, led by Stanley Baldwin and Neville Chamberlain, won the support of many of the newly enfranchised women and skilled workers, attracted by policies such as a ‘property-owning democracy.’”  

The dull pragmatism of British centrism paid off in spades in the years after World War I. In foreign affairs, Britain served as a critical bulwark against Nazi fascism in World War II and Soviet communism in the Cold War. At home, Parliament’s middle-of-the-ideological-road policies gave rise to a growing economy, a stable democracy, and a diverse society, especially in the metropolis of London. The British record of achievement in the twentieth century should not be forgotten, even amid the economic uncertainty created by the impulsive Brexit vote in 2016. Now more than ever we live in an age of charismatic politicians, but boringly competent leaders in the tradition of Baldwin and MacDonald have much to recommend them.

The series is filled with fascinating insights and observations. The third episode begins with Prof. Reynolds describing how, during the 90 years between 1914 and 2004, an Upper Silesian coalfield began as part of the Austro-Hungarian Empire, then became part of Poland, later fell under the control of Czechoslovakia, then went back to Poland, only to subsequently come under the military domination of Nazi Germany, then reverted after WWII to Soviet-occupied Czechoslovakia, and finally ended up in the new Czech Republic, and now the coalfield is part of the European Union. The tumultuous history of the twentieth century is thus encapsulated in the history of a single piece of coal. 

Long Shadow is a great series and it is available for free on YouTube (in High Definition). You can find Part I (“Remembering and Understanding”) here,  Part II (“Ballots and Bullets”) here, and Part III (“Us and Them”) here. 

Paul Butterfield

 Mystery Train, with The Band 

Russia’s Response to the DNC Lawsuit

In a very interesting filing, the Russian Federation has formally responded to the DNC lawsuit that seeks millions of dollars in damages for Moscow’s hack of the Democrats’ computer system during the 2016 election. On behalf of the Russian defendants in the case, the Russian Ministry of Justice filed a Statement of Immunity last week with Judge John Koeltl of the U.S. District Court for the Southern District of New York.

Although the Russian Federation insists the filing does not constitute a formal appearance in the case, the Statement of Immunity essentially constitutes a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. The filing also invokes the political question doctrine, raises a Rule 12(b)(3) venue issue, and even works in a 12(b)(6) reference to the strict pleading standard articulated in Bell Atlantic v. Twombly and Ashcroft v. Iqbal.

The cornerstone of the Russian Federation’s defense is the Foreign Sovereign Immunities Act, 26 U.S.C. § 1604. Relying on the FSIA, the Statement of Immunity urges the District Court to dismiss the case sua sponte on jurisdictional grounds. Here is an excerpt:

Equality Law Scholars' Forum at UC Davis Tomorrow

The second annual Equality  Law Scholars' Forum kicks off at UC Davis tomorrow.  I'm looking forward to being one of the commentators on a fantastic set of papers. Here are some details:

Second Annual Equality Law Scholars’ Forum

Friday, November 16 – Saturday November 17, 2018

The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across equality law. 

This year, the Forum will feature six presenters (chosen from over forty submissions):

The New Coverture, Albertina Antognini (Arizona College of Law)

Stealing Education: Protecting Racial Capital in “White” Schools, LaToya Baldwin Clark (UCLA School of Law)

Affirmative Action Misclassification, Jonathan Feingold (UCLA Office of Equity, Diversity, and Inclusion)

The Aesthetics of Disability Law, Jasmine Harris (UC Davis School of Law)

Legislating with Tall Tales, Goldburn Maynard (U. of Louisville School of Law)

 Diversity to Deradicalize: A New Theory for How Affirmative Action Became Tied to Intellectual Pluralism, Asad Rahim (American Bar Foundation)

The event is co-organized by Tristin Green, USF Law, Angela Onwuachi-Willig, UC Berkeley Law, and Leticia Saucedo, UC Davis Law. 

Comment and critique will be provided by the following scholars:

Bridget Crawford, Pace Law School

Jonathan Glater, UC Irvine Law School

Tristin Green, USF Law School

Angela Harris, UC Davis Law School

Jill Hasday, U. of Minnesota School of Law

Anthony Infanti, U. of Pittsburgh School of Law

Osamudia James, U. of Miami School of Law

Tom Joo, UC Davis Law School

Courtney Joslin, UC Davis Law School           

Angela Onwuachi-Willig, Boston U. Law School

Kimani Paul-Emile, Fordham U. School of Law

Leticia Saucedo, UC Davis Law School

We will also hold a panel discussion on Producing Scholarship in Equality Law with the following UC Davis Law School panelists participating: Jack Chin, Kevin Johnson, Courtney Joslin, Tom Joo, Lisa Pruitt, and Brian Soucek.

 

Penn State Law Seeks Family Law Clinic VAP

This just in:

Penn State Law in University Park seeks to hire a 2-year clinical law VAP to direct our family law clinic. This is a great opportunity for someone planning to go onto the academic market to prepare and be mentored. To learn more details and apply, visit here.  

SJP at UCLA

The genius of the First Amendment is that it applies even those who do not respect or believe in it. The same goes for academic freedom, which encourages the broadest range of research, discussion, and debate, even by faculty and students who would deny those rights to others. The most prominent recent example of this seeming irony is the BDS movement on university campuses, which seeks to foreclose relationships with Israeli universities and scholars, while insisting that principles of academic freedom protect its own advocacy. Thus, the BDS movement puts the true supporters of academic freedom in the odd, but necessary, position of defending the boycotters’ right to seek limits on the academic freedom of others. Does the BDS movement exploit academic freedom? Yes, it does. Is there any remedy? No, there is not (so long as it is done peacefully and without disruption).

Among the greatest abusers of academic freedom is the organization Students for Justice in Palestine. In addition to advocating the boycott of Israeli scholars and universities, including the termination of exchange and study-abroad programs for other students, SJP regularly disrupts speakers from Israel or pro-Israel organizations.

Later this week, SJP will hold its annual conference at UCLA. It was predictable that there would be protests, calling upon UCLA to bar the conference, as there are every year when SJP convenes on a major campus. There is much to protest about SJP.  Some of its literature has drifted into overt anti-Semitism, and its tactics have on occasion been physically coercive. Nonetheless, organizational conferences are well within the ambit of free speech and academic freedom. Squelching the rights of SJP, as some have advocated, would have the same ill-effect as banning any other controversial speaker or group (never mind that SJP calls for that very approach to pro-Israel scholars).

Thus, UCLA’s Chancellor Gene Block got it exactly right in a Los Angeles Times oped, when he explained his refusal to cancel the conference

In this case, I have fundamental disagreements with SJP, which has called for boycott against and divestment in Israel, actions that stigmatize that nation and label it a pariah state. The attempt to ostracize Israeli thinkers, and to declare off-limits even discussion with Israeli academics runs contrary to the values of inclusion, debate and discussion that are crucial to any university.

***

There is no easy way to resolve that discomfort. It remains an awkward reality that our constitutional system, and democracy’s commitment to open debate, demand that Americans allow speech we may oppose and even defend the rights of those who might not defend ours. That proud, yet difficult, tradition goes back to John Adams serving as lawyer for the British soldiers accused of the Boston Massacre. It also extends to our colleges and universities today.

***

Ultimately, we must combat speech that is distasteful with more and better speech. If universities can find ways to rise above the current rancor and if our students in particular can model our values, then that may well provide the very best hope for our future.

You can read the entire oped here.

Interested in Law Teaching? Wisconsin Seeks Hastie Fellows

This just in:

The University of Wisconsin Law School seeks applications for the William H. Hastie Fellowship. The application deadline is February 1, 2019.

For over forty years, the Hastie Fellowship has helped aspiring scholars from underrepresented communities in the legal academy prepare for a career in law teaching. Hastie Fellows devote the majority of their time to their own research agenda, researching and writing scholarly articles with support from a faculty advisor and the Hastie Fellowship Committee. During their residence, Hastie Fellows become part of the rich intellectual community at the University of Wisconsin, participating in workshops, symposia, and colloquia at the law school and broader campus community. Hastie Fellows participate in the entry-level law teaching market during the fellowship’s second year, and receive support and mentoring from the faculty. Most fellows also elect to teach or co-teach a course in an area of their interest during their second year in residence. Upon the successful completion of their work, typically involving the preparation of two publishable articles, fellows may elect to receive an LL.M.

Since the program was founded in 1973, over thirty Hastie Fellows have completed the program and secured academic appointments. They are a distinguished presence across American legal education, and three have gone on to serve as law school deans. The Hastie Fellowship continues to play a remarkable role in encouraging and developing scholars from underrepresented communities and in preparing them to succeed in the legal academic market and in the academy.

For more information about the program and the application process, please visit https://law.wisc.edu/grad/fellow_hastie.html.

Duquesne Law Seeks Dean

This just in:

Duquesne University School of Law in Pittsburgh, Pennsylvania, invites nominations and applications for the position of Dean of the School of Law. Under the leadership of Dean Maureen Lally-Green (who is retiring in 2019) and President Ken Gormley, a former dean of the Law School, Duquesne’s Law School continues to rise in national stature. With stable enrollments and a high bar passage rate, the Law School is strongly positioned for future success.
Founded in 1878 by its sponsoring religious community, the Congregation of the Holy Spirit, Duquesne University is Catholic in mission and ecumenical in spirit. The dean is expected to be committed to the university’s mission, which includes “serving God by serving students,” and to support and contribute to this mission.

Candidates must be eligible to hold a senior tenured appointment in the School of Law; document an outstanding record and/or capacity as a legal scholar and educator; possess a strong understanding of skills necessary for the practice of law in an evolving profession; have an ability to communicate effectively with diverse constituents; understand the dynamic and evolving environment for legal education; and possess demonstrated administrative and leadership skills.
The successful candidate will have established a reputation for high personal integrity, honesty and trustworthiness as well as the potential to enhance the rising reputation of the School of Law regionally, nationally and internationally. The dean is expected to collaborate with the Office of University Advancement in raising funds for the university as well as for the school, and to support the university’s goals articulated in its ambitious new Strategic Plan.

To obtain a more detailed profile of the position please see https://assets.storbeckpimentel.com/files/resources/duquesnelaw-dean-pd.pdf.

To make a nomination, or express interest, all confidential communications may be directed to Ms. Julie Tea, Partner, and Ms. Julie Williams-Krishnan, Senior Associate, Storbeck/Pimentel & Associates, LP at DuquesneLaw@storbecksearch.com

Duquesne University was founded in 1878 by its sponsoring religious community, the Congregation of the Holy Spirit. Duquesne University is Catholic in its mission and ecumenical in spirit. Motivated by its Catholic identity, Duquesne values equality of opportunity both as an educational institution and as an employer.

Meet me in Mannheim!

Next week I’ll be giving a keynote lecture and also participating in a panel discussion on “Allocation Problems in health care” at theMaCCI Law & Economics Conference on The Law and Economics of Market Design.  From the conference website:

The conference will provide an international platform for exchange and discussion between academic researchers and practitioners in public authorities, legal counsel, and economic consultancies.

The MaCCI Law and Economics Conference is organized for the eighth time since the inaugural edition in 2011. It is our ambition to stimulate and disseminate research in the field of market design, competition, regulation, and innovation policy.

We gratefully acknowledge financial support from White & Case and the EPoS Collaborative Research Center for this year’s annual law and economics conference.

This year the topic is “The Law and Economics of Market Design”. The conference will consist of 4 panel discussions, two keynote lectures and will cover the following topics.

• Design of digital platforms
• Managing private and public procurement
• Designing infrastructure markets (telecom, traffic, energy)
• Allocation problems in health care (organ exchange)

Keynote Speakers

Professor Kimberly D. Krawiec

Duke Law School, Durham

Professor Dr. Peter Cramton

University of Cologne and University of Maryland

For the keynote address, I’ll discuss repugnant transactions, or "taboo trades" (something I also recently discussed on Brian Frye’s Ipse Dixit podcast) and how the law responds to such transactions. I’ll focus on egg, sperm, and organ “donation” and, if I have time, briefly discuss blood, plasma, and bone marrow donation. (I’ve put “donation” in quotes because, consistent with common practice, I’m using the word donation to refer to transfers without regard to whether the donor was compensated).

For the health care allocation panel, I’ll discuss Global Kidney Exchange (prior blog posts on Global Kidney Exchange are collected here).

The full conference program is here.

Armistice 1918

The First World War ended 100 years ago today. At 11 a.m. on November 11, 1918, the devastating four-year-long conflict finally came to an end. It was at the time the bloodiest war in history, costing the lives of 9 million troops and over 10 million civilians. Only the Second World War—which cost over 65 million lives—surpassed World War I’s death toll.

Although World War II greatly overshadows World War I, the immense scale of the 1914-18 conflict should not be forgotten. Even the United States, which played a relatively small role compared to the other major powers, provides a case-in-point. After declaring war on Germany in April 1917, the United States sent 2 million troops to fight in France (most of whom arrived in the summer and fall of 1918). To put that army in context, the four American military service branches today—the Army, Navy, Air Force, and Marine Corps—have a combined total active duty force of 1.3 million. Thus, the American Army in France in 1918 was 50% larger than the entire American military in 2018.

And the United States military was small by World War I standards. For example, Germany put over 10 million troops in arms, 2 million of whom would die in the war. The other major powers suffered appalling casualties as well. Russia lost 1.8 million dead, France lost 1.4 million dead, and Britain over 800,000 dead. Austro-Hungary, Turkey, and Italy also suffered hundreds of thousands of fatalities. Many other countries experienced horrendous casualties, including the United States, which lost 117,000 troops killed in about six months of fighting (a much greater number than the 58,000 American troops killed in Vietnam in in the 1960s and 1970s). Similarly, Canada lost 61,000 troops killed in World War I and Australia lost 60,000 troops killed, enormous numbers in any context, but particularly when one considers the fact that Canada had only 8 million people and Australia only 5 million in 1918.

None of those figures above include the millions of troops wounded, physically, emotionally, and psychologically, by the horrific carnage of industrial-sized warfare. The scars of war haunted the World War I generation for the rest of their lives. 

On this important anniversary, I recommend an outstanding documentary called Armistice 1918. The host is David Reynolds, a history professor at Cambridge University and a leading expert on World War I. As Prof. Reynolds explains, contrary to one of the most enduring myths of twentieth-century history, World War I did not end in a military stalemate. Under the weight of a massive offensive by the combined armies of France, Britain, America, Australia, and Canada, the German Army was in full collapse in the fall of 1918. If the war had lasted into 1919, Allied forces would have seized Berlin and inflicted a crushing defeat on the German Army on German soil.

But in a cynically shrewd move, the German high command capitulated before ordinary Germans understood the full, catastrophic extent of Germany’s military disasters in the fall of 1918. The sudden surrender enabled the German military to falsely blame domestic unrest for the nation’s defeat. Thus arose the ludicrous “stabbed in the back” myth that paved the way for the rise of the Nazi Party in the 1920s and 1930s, a development that in turn led to the eruption of the most devastating war in history from 1939 to 1945. 

Armistice 1918 is available on Netflix (in high definition) and it is only 55 minutes long. In addition, the original BBC version of the documentary, which is 90 minutes long, is available on YouTube here. Whichever version you watch, I think you will agree that nobody is better than Prof. Reynolds at explaining the significance of World War I and its aftermath.  

Speaking of the First World War, if you are ever in the Kansas City area, do not miss the National World War I Museum and Memorial. It is a must-see destination for any visitor to Kansas City, one of the country’s most underrated cities. So too is the Truman Presidential Library and Museum, which is located in the Kansas City suburb of Independence, Missouri. Harry Truman served as an artillery officer in World War I, and his artillery battery fired its last barrage at 10:45 a.m. on November 11, 1918. Truman would later observe, “My whole political career is based on my war service and war associates.” Over 2,700 troops died in France and Belgium on November 11, the last day of the war. The world we live in today is shaped in no small part by the events that unfolded between August 1914 and November 1918.

God Bless America

Written by the immigrant Irving Berlin and introduced by Kate Smith on Armistice Day (now Veterans Day) 1938:

 The most significant lyric is the closing line, describing America as "my home, sweet home," which emphasizes inclusiveness over nativism -- important in 1938, as it remains eighty years later.