Eugene Volokh's Blog, page 2624
January 28, 2012
Glenn Greenwald and the Neocons
Greenwald has another post on the "Israel Firster" controversy. It's easy to miss this in Greenwald's typical avalanche of verbiage, but he (finally) acknowledges that the term was originally coined by anti-Semites, and is "gratuitously inflammatory." He analogizes it to using the word "fascist" to describe contemporary politics or making comparisons to Nazis.
This, however, is just a side point in a screed that among other things takes to task Jeffrey Goldberg and others for "smears." The accusation that Goldberg is accusing Greenwald and others of being anti-Semitic and anti-Israel as a way of attempting to silence them. Goldberg can speak for himself, as he has previously in response to Greenwald.
But what I find remarkable is that in a post devoted to "smears," "silencing," "trite attacks," and the misuse of language for political purposes, Greenwald refers to Goldberg as a "neocon," even though, to my knowledge, Goldberg's political views are centrist leaning a bit to the left, and Goldberg has no obvious associations with the Commentary crowd or other centers of neocon thought.
More within my direct sphere of knowledge, Greenwald links to one of my posts while putting me in the category of "neocons like Goldberg." I've written about neoconservatism a fair amount, and when I've provided a normative opinion, I am always very critical (for example, here and here; there are other examples, but the VC's move to a new host seems to have ruined the links, at least for now.)
Really, the only relevant things Jeffrey Goldberg and I–a moderate and a libertarian–have in common, and therefore the only reason to refer to us as "neocons," is that we are both Jews who are far more favorably inclined toward Israel than is Greenwald.
Most of Greenwald's readers undoubtedly have no real clue as to what neoconservatism is, beyond that it is associated somehow with conservatism, with Israel, the war in Iraq, and with Jews, and, from their left-wing Salonish perspective, is somewhat sinister. Assumedly, however, Greenwald knows better, and is simply using "neocon" as a slur, a way of relying on his readers' prejudices against anything associated with the word "neocon" to discredit his intellectual adversaries, in exactly the same way he claims that the "neocons" are using slurs to discredit him and his allies. In fact, the only reason to associate "neocons" exclusively with Jews and Israel is to try to silence the other side with a slur.
So, if Greenwald wants to have an honest, intelligent debate on Israel and related matters, he can start by acknowledging that neither Goldberg nor I are "neocons," apologize for suggesting otherwise, and promise to blog more responsibly in the future.
The Legal Whiteboard: Hello World
Welcome to the blogging world, Bill Henderson and Andy Morriss and their new blog, The Legal Whiteboard. It promises to fill an important missing link in the discussion of the future business models of the legal profession and legal education. From the inaugural post by Bill Henderson:
According to a lot of reputable media outlets, the sky is falling for both legal education and legal services. I understand the basis for this conclusion. A lot of lawyers, young and old, are unemployed or underemployed. The debt loads of graduating students are staggering. The established "brand" law firms are doing something they have never done before — shrink, or at least not grow. This puts lawyers on edge and has a tendeny to spawn unhealthy, short-sighted behavior. The federal government, through the direct lending of the Department of Education, continues to fuel the lawyer production machine. So things may get worse before they get better.
Despite the fact that I am one of the go-to people on the speaker circuit when it comes time to talk about structural change, I am not in the sky-is-falling camp. Instead, I see a lot of opportunities for lawyers, law students and legal educators to do very important and creative work. What is most exciting about this work is that it will make society better off – law will become better, faster and cheaper. Many legal services will become more standardized, productized and commoditized. I realize that these words will rankle some of the old guard, particularly those still making a good living under the bespoke model. But clients – including corporations, government and ordinary citizens—will love it. Professional ideals will remain the cornerstone of successful legal enterprises, but denying the exigencies of the marketplace is, to my mind, unprofessional.
Because clients and society want better, faster and cheaper law, I believe lawyers (including legal educators) have a professional duty to ardently pursue this goal. The hardest part of this assignment – and the most vexing and interesting – is how to parlay this transformation into a decent living.
Many people assume that the new paradigm means lawyers working longer hours for lower wages. That is one future business model. But I think it utterly lacks imagination. Lawyers are problem solvers. To my mind, the growing price elasticity for legal services and legal education is just a very difficult problem. And whenever I am faced with a very difficult problem, I typically start writing out my thoughts on a massive whiteboard. (I am told it is quite a spectacle to behold.) I am also someone who loves to collaborate. With an outward facing Legal Whiteboard, I am hoping to elicit the genius of my fellow travelers.
The Legal Whiteboard: Hello World
Welcome to the blogging world, Bill Henderson and Andy Morriss and their new blog, The Legal Whiteboard. It promises to fill an important missing link in the discussion of the future business models of the legal profession and legal education. From the inaugural post by Bill Henderson:
According to a lot of reputable media outlets, the sky is falling for both legal education and legal services. I understand the basis for this conclusion. A lot of lawyers, young and old, are unemployed or underemployed. The debt loads of graduating students are staggering. The established "brand" law firms are doing something they have never done before — shrink, or at least not grow. This puts lawyers on edge and has a tendeny to spawn unhealthy, short-sighted behavior. The federal government, through the direct lending of the Department of Education, continues to fuel the lawyer production machine. So things may get worse before they get better.
Despite the fact that I am one of the go-to people on the speaker circuit when it comes time to talk about structural change, I am not in the sky-is-falling camp. Instead, I see a lot of opportunities for lawyers, law students and legal educators to do very important and creative work. What is most exciting about this work is that it will make society better off – law will become better, faster and cheaper. Many legal services will become more standardized, productized and commoditized. I realize that these words will rankle some of the old guard, particularly those still making a good living under the bespoke model. But clients – including corporations, government and ordinary citizens—will love it. Professional ideals will remain the cornerstone of successful legal enterprises, but denying the exigencies of the marketplace is, to my mind, unprofessional.
Because clients and society want better, faster and cheaper law, I believe lawyers (including legal educators) have a professional duty to ardently pursue this goal. The hardest part of this assignment – and the most vexing and interesting – is how to parlay this transformation into a decent living.
Many people assume that the new paradigm means lawyers working longer hours for lower wages. That is one future business model. But I think it utterly lacks imagination. Lawyers are problem solvers. To my mind, the growing price elasticity for legal services and legal education is just a very difficult problem. And whenever I am faced with a very difficult problem, I typically start writing out my thoughts on a massive whiteboard. (I am told it is quite a spectacle to behold.) I am also someone who loves to collaborate. With an outward facing Legal Whiteboard, I am hoping to elicit the genius of my fellow travelers.
January 27, 2012
We're Changing Hosting Platforms Tonight
Comment posting will be disabled; with luck, this change and some others should keep our site from going down, and also help us fix the delayed comment posting problem that has been plaguing us for the last few weeks. Keep your fingers crossed ....
Anxiety Is Not a Policy for Drones and Targeted Killing
A current meme on drones and targeted killing is that although they might indeed reduce civilian harm and offer greater protection to one's own force — more precision and discriminating use of force — they are nonetheless bad because they have another effect, viz., that they reduce the inhibition that political or military leaders have in the use of force. So, for example, this past Sunday, the justly-famed Brookings expert on robotic war and author of the path-breaking Wired for War, Peter Singer, wrote in an op-ed that, on the one hand, he supported most of the drone strikes that the US had carried out. But he then went on to express what could properly be called much anxiety about drones and targeted killing — anxiety rooted in a presumed relaxation in the disincentive to use force.
Anxiety, however, is not a policy. It might be and, I think, in this case an admirable sentiment, and a useful way of focusing on the basic question of the use of force. But ultimately, having anxieties about the implications of one's weaponry and one's political leaders who make decisions about how to use it is not the same as actually making a decision about what to do. When anxiety has to give way to actually deciding whether to use a weapon, or whether to develop a weapon system, someone has to decide: is the possibility that political or military leaders might decide to unjustly to overuse a weapon a reason to not use the most precise weapon available to commanders? Or not to develop greater precision in the first place?
Because that is the issue in the vague and morally-responsible sounding invocation of anxiety over drones and targeted killing. Most knowledgeable observers are in broad agreement that these technologies are more sparing both of civilians and one's own forces, and indeed forces on the other side that one did not deem necessary to attack. It is always possible that the availability of ever more precise weapons that have these humanitarian characteristics will persuade political or military leaders that they can thereby undertake more uses of force than they might otherwise (although, importantly, the intensity, duration, and damage from more frequent recourses to force might also be far less than conventional means). But the refusal to use, or the refusal to develop, weapons of greater precision as a way of inoculating, as it were, political leadership from the temptation to use force more immediately comes at the price of holding the civilians and fighters who are on the losing end of this calculation as, in moral terms, hostages. They are held hostage to the believe that political leaders cannot be trusted.
That is immoral. It uses the civilian and soldiers whose lives might have been spared by more precise technologies as mere means — hostages — to other ends. The immorality of this argument is masked by the sincerity of the anxiety — a vague anxiety that covers the true implications of the argument. The anxiety is admirable — up to a point. It is admirable to the extent that it forces a serious re-examination of this moral anxiety where it actually lives — which is to say, in the acts of political and military leaders. It does not live, except illegitimately, in the refusal to use or develop more precision means as a way of pressuring those leaders. The anxiety ultimately is about the unjust or immoral or wrong resort to force by political leadership, and that is the point that anxiety ought to push.
Ultimately rubber meets road; and anxiety, however morally sincere or admirable, has to give way to policy. In the actual attack contemplated, do you use the most precise means possible or not? Are you really prepared to urge the use of less precise means, or to urge that technologically available, more humanitarian means should not be developed? And if you think the answer is that one should use, or only have available, less precise means, isn't the real reason that you don't think the attack is actually just or justified? But if that is the reason, then have the moral courage to get beyond vaguely expressed anxieties and say so.
Tenth Circuit Upholds Stolen Valor Act
From today's United States v. Strandlof (10th Cir. Jan. 27, 2012):
As the Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech. Under this principle, the Stolen Valor Act does not impinge on or chill protected speech, and therefore does not offend the First Amendment.
One judge dissents from the panel decision, reasoning:
The majority holds that such statements — at least when made knowingly and with an intent to deceive — are categorically beyond the protective universe of the First Amendment. In contrast, I believe that the First Amendment generally accords protection to such false statements of fact. Consequently, because it is a content-based restriction on speech, the Stolen Valor Act must satisfy strict scrutiny. This it cannot do.
The Supreme Court will have the last word on this, when it decides the same question this Term in United States v. Alvarez; but I suspect that the Tenth Circuit judges' opinions in Strandlof, which are long and detailed, will be considered carefully by the Court.
Tenth Circuit Upholds Stolen Valor Act
From today's United States v. Strandlof (10th Cir. Jan. 27, 2012):
As the Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech. Under this principle, the Stolen Valor Act does not impinge on or chill protected speech, and therefore does not offend the First Amendment.
One judge dissents from the panel decision, reasoning:
The majority holds that such statements — at least when made knowingly and with an intent to deceive — are categorically beyond the protective universe of the First Amendment. In contrast, I believe that the First Amendment generally accords protection to such false statements of fact. Consequently, because it is a content-based restriction on speech, the Stolen Valor Act must satisfy strict scrutiny. This it cannot do.
The Supreme Court will have the last word on this, when it decides the same question this Term in United States v. Alvarez; but I suspect that the Tenth Circuit judges' opinions in Strandlof, which are long and detailed, will be considered carefully by the Court.
More on the New York Times, Israel and Neil Lewis in CJR
Last week, I posted a short piece on an article by Neil Lewis in the Columbia Journalism Review, discussing whether the New York Times reporting is hostile to Israel. As I noted, Lewis gets the basic story right–the Times' isn't anti-Israel, as such, but its reporting on Israel tends toward the adversarial, for two reasons. First, for several decades the Times's Israel correspondents have typically had views on appropriate Israeli policy well to the "Left" of the governments in power in Israel. And, second, reporters find it naturally appealing to take the "David" (Palestinian) side in a David vs. Goliath (Israel) story. I should have added a third factor, noted by Lewis: the growth of leftist domestic NGOs in Israel strongly opposed to government policy (and often to Zionism), which–though Lewis doesn't mention this–are typically staffed by English-speakers, often Americans, and that, because they are so far out of the mainstream of Israeli opinion, tend to focus on feeding stories to a more sympathetic international media.
The problem with the article is that Lewis seems to think that this is more or less the end of the matter. If the Times isn't affirmatively anti-Israel, it doesn't matter whether the Times's reporters are nevertheless implicitly opposing Israeli government policy and/or supporting Palestinian claims by virtue of the stories they choose to pursue, how they frame those stories, what photographs they choose to run with the stories, and so forth–none of which he analyzes in any detail. Other critics, some much more vociferous than I, have noticed the same thing.
Indeed, even though Lewis acknowledges the points noted in the first paragraph, and he cites critics of the Times (including critics who think the Times is too favorably inclined to Israel), he manages to avoid acknowledging any instance where he agrees that pro-Israel critics of the Times's coverage have had a valid objection. Instead, the piece comes off as suggesting that the only folks who could reasonably object to the Times's coverage are right-wing Orthodox Jews who support the settlements. [FWIW, I'm neither Orthodox nor support the settlement enterprise, yet I've found the Times's coverage wanting on many occasions.] And he spends an awful lot of time on other matters that are peripheral to the issue he was supposed to be writing about, including the Times's failure to adequately report the Holocaust as it was happening, and gossipy matters perhaps of interest to media insiders, such as confusion within the Times's hierarchy over whether former Israel correspondent David Shipler is Jewish (he's not, but who cares?)
Meanwhile, it turns out that I gave a poor, indeed, incorrect example of something that I said Lewis didn't mention, but should have: that the far leftist Chris Hedges, who we now know as a vociferous critic of Israel, was the Times's Middle East Bureau Chief from 1998-2001, when the Times's coverage of Israel by Deborah Sontag was subject to particular criticism. It turns out that I was relying on misinformation from several websites that identified him as bureau chief at that time. In fact, Hedges was Middle East Bureau chief earlier in the decade (a fact that, oddly enough, Lewis didn't know, as he acknowledged to me). So mea culpa on that.
It was Lewis himself who alerted me to my error via a response he asked be posted here. Here it is, with a bit of additional commentary from me following it.
here is my comment as i would like it published/posted:i am the author of the cjr piece abt the times and israel.i try not to respond to the range of comments it has produced — people are entitled to ….etc. if someone thinks i failed to analyze specific articles enough, i think they did not read my article thoroughly, but that's their view and i have no need to try and rebut.
but i found the comment [by prof. bernstein] so exquisitely typical of the ignorance of many i have read, i thought i would respond.
the facts: chris hedges, heartily disliked by fervent supporters of israel, was not debbie sontag's superior or supervisor. ever. he was, for a time, the correspondent based in cairo (and i am not sure their times much overlapped if at all).
but mr bernstein says he was "middle east bureau chief" and thus he extrapolates he was sontag's supervisor. this is a "salient" fact to explain her coverage, he writes that i omitted.
this has all the elements of the conspiracy-spinning mind that snatches at odd facts (and untrue notions) and puts them together in a way to confirm some previous notion.
as i suggested above, it has been heartily dismaying to read so many nonsensical comments — from people who come at the issue from both sides– as it demonstrates the obstacles such obduracy presents to honest, or even minimally intelligent discussion
From this comment, one can perhaps see the origins of the problems with Lewis's piece. First, Lewis implies that Hedges is apparently not reasonably considered hostile to Israel by anyone except "fervent supporters of Israel." Recall that Hedges has expressed a strong preference for Hezbollah and Hamas in their conflict with Israel. I should think that any person who values liberal democracy over Islamic theocracy and terrorism would find Hedges's views objectionable; Lewis apparently disagrees. Moreover, it's hardly just supporters of Israel, much less just "fervent" ones, who have objected to his radical foreign policy views. But Lewis's attitude is consistent with the notion implied in his article that only the fringe is likely to see anything worth criticizing in the Times's Israel coverage.
Second, while I can understand why Lewis was annoyed by my misstatement of fact, it's a long way from such a misstatement to being "ignoran[t]" and having a "conspiracy spinning mind" incapable of "intelligent discussion." (Mr. Lewis, did the Times never have to issue a correction for any of your articles? If so, does that make you ignorant etc.?) This, however, is apparently what Lewis thinks the Times's more vocal critics, an attitude that occasionally reveals itself in his article. Indeed, Lewis is so caught up in what he sees as the unreasonableness of his critics that he failed to note that I started my post by agreeing that the basic thrust of his piece was correct, i.e., that its general take on the Times's coverage reflects what every "fair-minded observer already knows." But hey, I'm just a simple-minded ignoramus.
Finally, what does Lewis's piece say about the attitude of the MSM toward its critics on the right? Lewis seems to acknowledge that the Times's coverage of Israel has a point of view (i.e., a "bias"), but seems perplexed that anyone cares or objects when that bias manifests itself in the Times's reporting.
More on the New York Times, Israel and Neil Lewis in CJR
Last week, I posted a short piece on an article by Neil Lewis in the Columbia Journalism Review, discussing whether the New York Times reporting is hostile to Israel. As I noted, Lewis gets the basic story right–the Times' isn't anti-Israel, as such, but its reporting on Israel tends toward the adversarial, for two reasons. First, for several decades the Times's Israel correspondents have typically had views on appropriate Israeli policy well to the "Left" of the governments in power in Israel. And, second, reporters find it naturally appealing to take the "David" (Palestinian) side in a David vs. Goliath (Israel) story. I should have added a third factor, noted by Lewis: the growth of leftist domestic NGOs in Israel strongly opposed to government policy (and often to Zionism), which–though Lewis doesn't mention this–are typically staffed by English-speakers, often Americans, and that, because they are so far out of the mainstream of Israeli opinion, tend to focus on feeding stories to a more sympathetic international media.
The problem with the article is that Lewis seems to think that this is more or less the end of the matter. If the Times isn't affirmatively anti-Israel, it doesn't matter whether the Times's reporters are nevertheless implicitly opposing Israeli government policy and/or supporting Palestinian claims by virtue of the stories they choose to pursue, how they frame those stories, what photographs they choose to run with the stories, and so forth–none of which he analyzes in any detail. Other critics, some much more vociferous than I, have noticed the same thing.
Indeed, even though Lewis acknowledges the points noted in the first paragraph, and he cites critics of the Times (including critics who think the Times is too favorably inclined to Israel), he manages to avoid acknowledging any instance where he agrees that pro-Israel critics of the Times's coverage have had a valid objection. Instead, the piece comes off as suggesting that the only folks who could reasonably object to the Times's coverage are right-wing Orthodox Jews who support the settlements. [FWIW, I'm neither Orthodox nor support the settlement enterprise, yet I've found the Times's coverage wanting on many occasions.] And he spends an awful lot of time on other matters that are peripheral to the issue he was supposed to be writing about, including the Times's failure to adequately report the Holocaust as it was happening, and gossipy matters perhaps of interest to media insiders, such as confusion within the Times's hierarchy over whether former Israel correspondent David Shipler is Jewish (he's not, but who cares?)
Meanwhile, it turns out that I gave a poor, indeed, incorrect example of something that I said Lewis didn't mention, but should have: that the far leftist Chris Hedges, who we now know as a vociferous critic of Israel, was the Times's Middle East Bureau Chief from 1998–2001, when the Times's coverage of Israel by Deborah Sontag was subject to particular criticism. It turns out that I was relying on misinformation from several websites that identified him as bureau chief at that time. In fact, Hedges was Middle East Bureau chief earlier in the decade (a fact that, oddly enough, Lewis didn't know, as he acknowledged to me). So mea culpa on that.
It was Lewis himself who alerted me to my error via a response he asked be posted here. Here it is, with a bit of additional commentary from me following it.
here is my comment as i would like it published/posted:i am the author of the cjr piece abt the times and israel.i try not to respond to the range of comments it has produced — people are entitled to ....etc. if someone thinks i failed to analyze specific articles enough, i think they did not read my article thoroughly, but that's their view and i have no need to try and rebut.
but i found the comment [by prof. bernstein] so exquisitely typical of the ignorance of many i have read, i thought i would respond.
the facts: chris hedges, heartily disliked by fervent supporters of israel, was not debbie sontag's superior or supervisor. ever. he was, for a time, the correspondent based in cairo (and i am not sure their times much overlapped if at all).
but mr bernstein says he was "middle east bureau chief" and thus he extrapolates he was sontag's supervisor. this is a "salient" fact to explain her coverage, he writes that i omitted.
this has all the elements of the conspiracy-spinning mind that snatches at odd facts (and untrue notions) and puts them together in a way to confirm some previous notion.
as i suggested above, it has been heartily dismaying to read so many nonsensical comments — from people who come at the issue from both sides– as it demonstrates the obstacles such obduracy presents to honest, or even minimally intelligent discussion
From this comment, one can perhaps see the origins of the problems with Lewis's piece. First, Lewis implies that Hedges is apparently not reasonably considered hostile to Israel by anyone except "fervent supporters of Israel." Recall that Hedges has expressed a strong preference for Hezbollah and Hamas in their conflict with Israel. I should think that any person who values liberal democracy over Islamic theocracy and terrorism would find Hedges's views objectionable; Lewis apparently disagrees. Moreover, it's hardly just supporters of Israel, much less just "fervent" ones, who have objected to his radical foreign policy views. But Lewis's attitude is consistent with the notion implied in his article that only the fringe is likely to see anything worth criticizing in the Times's Israel coverage.
Second, while I can understand why Lewis was annoyed by my misstatement of fact, it's a long way from such a misstatement to being "ignoran[t]" and having a "conspiracy spinning mind" incapable of "intelligent discussion." (Mr. Lewis, did the Times never have to issue a correction for any of your articles? If so, does that make you ignorant etc.?) This, however, is apparently what Lewis thinks the Times's more vocal critics, an attitude that occasionally reveals itself in his article. Indeed, Lewis is so caught up in what he sees as the unreasonableness of his critics that he failed to note that I started my post by agreeing that the basic thrust of his piece was correct, i.e., that its general take on the Times's coverage reflects what every "fair-minded observer already knows." But hey, I'm just a simple-minded ignoramus.
Finally, what does Lewis's piece say about the attitude of the MSM toward its critics on the right? Lewis seems to acknowledge that the Times's coverage of Israel has a point of view (i.e., a "bias"), but seems perplexed that anyone cares or objects when that bias manifests itself in the Times's reporting.
Cybercrime Review Blog
If you're interested in developments in computer crime law, check out Cybercrime Review, a very useful blog on new cases and other developments in the field.
Eugene Volokh's Blog
- Eugene Volokh's profile
- 7 followers
