Disqus - Latest Comments for schraubd

Re: No, Hillel’s Israel Guidelines Are Not The Enemy Of Progressive Values

David Schraub — Fri, 01 Dec 2017 23:50:38 -0000

For the record, I have no problem with Hillel (or any other group) having partnership guidelines. My problem is that these guidelines are promulgated without any democratic accountability to Jewish students. If there needs to be a national policy, it should be voted on nationally by Jewish students (I have full confidence in our ability to manage an election). If there doesn't need to be a national policy, then decisions should be voted on locally by Jewish students on each campus. It's the voting that matters, not the outcome -- and since most Jews on campuses are Zionist (broadly defined), I suspect that the decisions they make will reflect a mainstream, Zionist Jewish identity (as happened in the UK UJS).

But it's just bizarre to argue "UCLA students shouldn't be able to tell Minnesota students who they can invite as speaker -- that power should solely lie in the hands of unelected and unaccountable 55 year-olds in a DC office building."

Re: “I think”

David Schraub — Sun, 19 Mar 2017 19:26:41 -0000

Why doesn't "I think that's wrong" have the same valence as "I think that's right" -- an expression of uncertainty or at least a continued willingness to acknowledge that the issue remains up for debate?

Certainly, it seems (and note my use of "it seems" is conscious -- I have no empirical basis for saying what I'm about to say, it merely reflects my perception. For that reason, "it seems" doesn't to me imply greater universalism but rather greater particularism -- it draws its power from my idiosyncratic experiences, rather than objective truth in the world) that academics say "I think that's mistaken" more frequently than "I think that's right", which may simply be about taking the edge off statements of disagreement. However, it also may reflect something organic to the conversation -- if all parties agree on a proposition, we're reasonably more willing to express it as something that simply *is* correct, whereas if parties disagree on the proposition *and* I accept that my interlocutor is a reasonable person whose views are not superficially outlandish, then we (quite reasonably) frame our disagreement in terms that do not imply the matter is settled.

Re: NY Slant

David Schraub — Wed, 28 Sep 2016 21:22:28 -0000

Why not?

Both are one-state curious. Both keep up the thinnest of facades of being interested in justice for Jews and Palestinians alike, while actually only caring about the well-being of one. Both have a propensity to paint with ridiculously broad brushes (e.g., that ZOA simply *is* "supporting Israel" or that BDS simply *is* "criticism of Israel"). Both view themselves as speaking for an "authentic" Jewish position even though most Jews, being liberal and Zionist, disagree with both. Both are deeply contemptuous of the vast majority of American Jews for cleaving to this liberal Zionism (which both view as a contradiction in terms). And, despite their open and avowed contempt for most American Jews, both nonetheless are baffled when the American Jewish establishment doesn't embrace them with open arms.

So yeah, I view BDSers and ZOAs as more or less the same. Same arguments, different register.

Re: NY Slant

David Schraub — Wed, 28 Sep 2016 13:34:56 -0000

It's almost as if there's space between "unconditional support for Israel" and "boycotting Israel" -- space occupied by, among others, Bernie Sanders (not to mention J Street and its slate of endorsed candidates, APN, Third Narrative, One Voice, and, one suspects, the NYCC progressive caucus).

The only people who hold up this dichotomy between BDS and unconditional support of Israel are BDS supporters and ZOA -- same argument, different register.

Re: Blame Teachers and Professors for Students Not Understanding Free Speech

David Schraub — Sun, 03 Apr 2016 20:23:43 -0000

"From Kindergarten through High School, teachers drill students in all manners of political correctness, and impose conformity of thought.All they likely learned about constitutional law is that the founding fathers were slaveholders. Is it any surprise that when these young skulls of mush arrive on college campuses, they have no clue that it may be important to protect ideas that fall outside the generally-prevailing norms?"

Having once been a millennial public school district attendee, this strikes me as more of the Breitbart fantasy version of what goes on in our primary and secondary education than anything reflective of actual classroom conditions.

Were I to venture a diagnosis for why Kids These Days don't have a strong protective instinct for free speech (and I'll digress here and say that the *constitutional* dimension of mandatory trigger warnings in a public university, as opposed to their advisability, strikes me as not necessarily the best example, as it seems to me a difficult question pitting Garcetti against heightened academic freedom protections. Another thing to drum into our students' heads is that "constitutional law" is not the same thing as "our personal normative desires"), I'd proffer something like the following:

There is a complaint about our educational system that is of much older vintage than contemporary fretting about censorial students, and that is that our schools aren't particularly interested in civic education period. They don't teach constitutional law (if it wasn't taught in my inside-the-beltway suburban school overrun with the children of lawyers, it's not being taught anywhere), they don't teach political theory, they don't teach philosophy. It's not that they're "too PC" to do any of these things (they don't teach a countercultural version of these subjects either), it's just not part of the three Rs.

Now schools are interested in cultivating a set of interpersonal moral values -- things like "play nice with others" and "everyone is equal" and "don't say mean things to each other". All of these are very valuable lessons as private virtues -- I very much want kids to grow to be nice, sociable people who respect each other and do not have the desire to gratuitously hurt each other. But without any strong civic education, it's perfectly understandable that people don't instinctively recognize there should be a difference between "bad behavior" and "behavior that should subject to coercive state/administrative power." The free speech manifestation in particular is no different from the more common failure to distinguish between "law" and "our personal normative desires." Surely *that* failure isn't unique to millennials.

To be sure, the failure to develop that distinction is I think certainly a failure, but it's not a failure that requires any sort of Limbaugh-esque tale of PC kindergarten teachers indoctrinating six year olds in how Constitutional Law = The Law of the Slaveowner as explanation. It seems more likely that it's attributable to the much more commonly recognized turn away from civics and the humanities. I'm very much favorably disposed to rectifying that, because I don't like the results either. But I am not remotely surprised that few students come into college knowing anything about constitutional law, and it seems less than helpful to chalk it up to some imagined conspiracy of the ever-lurking forces of Political Correctness in elementary school.

Re: The Free-Speech Fallacy

David Schraub — Sun, 28 Feb 2016 18:05:17 -0000

This article flicks between two inconsistent positions. On the one hand (continuing from past work), it argues that there is no "free speech" violation or threat when students or anyone else argue that a given viewpoint is racist or discriminatory or oppressive, where they urge others to join them in their critique, where they "raise genuine concerns and are met with evasion." This is counterspeech, not anti-speech, and perfectly valid counterspeech at that (even if one disagrees with the substantive content of the speech itself).

But it opens by taking the exact opposite tact. The Walzer/Yudof article is precisely a case of counterspeech alleging that Prof. Puar's lecture was oppressive, discriminatory, and anti-Semitic. And yet this challenge is cast as a threat to free speech -- it is hyperbolic, it predictably results in threats, it chills other speech. The argument here is a quintessential example of how "the charge of imperiling free speech has been used to silence oppressed and marginalized groups and to push back against their interests." It is frankly astonishing that he doesn't immediately recognize the beats of the argument given how intimately familiar he is with it.

The first argument is the right one -- arguing that a given speech act is oppressive is counterspeech, not anti-speech; that's as true of those protesting perceived racism as it is those protesting perceived anti-Semitism. But reading this article it becomes evident why many in the organized Jewish community have perhaps not been too quick to embrace it. It is clear that the check Prof. Stanley writes is one most Jews aren't entitled to cash. If WE try to assert that something is hateful, if we forward a counterspeech that articulates our sense that a given perspective is oppressive and are met with "evasions" (or worse), he turns with a vengeance and reverts right back to the implausible and stunted form of "free speech" he otherwise rightly criticizes

Re: It's Jew vs. Jew (Plus 5) in Race for Maryland Congressional Seat

David Schraub — Tue, 13 Oct 2015 13:16:07 -0000

While I enjoyed reading this article, speaking as someone born and raised in the 8th Circuit, I'm not sure I've ever heard Takoma Park referred to as "the people's republic of Takoma Park."

Re: The SG Should Not Have Said “Well, this Congress, Your Honor”

David Schraub — Wed, 04 Mar 2015 18:24:35 -0000

I have no problem with this comment (but then, as you know I generally favor wearing one's heart on one's sleeve in these fora). It's particularly hard for me to swallow that Scalia can be "offended" by the idea that Congress might opt to instantiate chaos as a means of undermining a program or policy it doesn't like, given that he endorsed precisely that tactic as a key arrow in Congress' quiver (and, in his view, a key element of American constitutional design) in his Windsor dissent:

"Our system is designed for confrontation. That is what '[a]mbition . . . counteract[ing] ambition,' The Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to confirm Presidential appointees to the elimination of funding. (Nothing says 'enforce the Act' quite like '. . . or you will have money for little else.')."

Re: The Ubertarian and Occupational Licensing

David Schraub — Mon, 30 Dec 2013 12:20:10 -0000

I also spoke with a DC cabbie about Uber recently, and he protested against alleged unfairness. But his specific complaint was that Uber drivers aren't subjected to the same regulatory requirements that he is -- that it is not a level playing field. Now, whether or not we should level up or level down the requirements is an open question, but the basic idea that players in the same industry should be held to the same standards isn't wildly illogical.

I am, of course, a member of a highly regulated profession and don't really have a problem with said regulation (then again, I'm an incumbent now aren't I?). I've certainly found compelling the progressive case against (some) occupational regulations forwarded by people like Matt Yglesias. But as in most things, I imagine the issue is context-specific: we don't want Nick's Discount Surgery Shack opening up, we also don't want 10 years of grad school as a prerequisite for mowing lawns. Whether or not a particular regulatory or licensing regime is a good or bad thing can't be answered in the abstract.

Re: Appellate Review of Social Facts in Constitutional Rights Cases

David Schraub — Thu, 05 Dec 2013 13:40:27 -0000

Truly, the greatest issue the California Law Review has ever published.

Re: The Mismatch Effect, in the L.A. Times

David Schraub — Tue, 27 Aug 2013 19:19:13 -0000

Sorry, I meant the curvy part of the Berkeley curve, not among high school students generally.

Re: The Mismatch Effect, in the L.A. Times

David Schraub — Tue, 27 Aug 2013 16:20:03 -0000

This is a bizarre comment. I'm not sure how, for example, "impoverished background" and "terrible neighborhood" is the functional equivalent of either "race" or "did well". And "did well" is so spectacularly broad we might as well group all of the above into just the single catch all of "has characteristics," As for the SAT scores, the most we can infer is that he didn't do exceptionally well or exceptionally poorly (it would be equally odd to omit them if he bombed the test). I would guess that his SAT scores weren't spectacular, but were (to quote my above comment) somewhere on the curvy part of the bell curve. Which again, all told, makes him a pretty attractive candidate. As someone admitted to (a top liberal arts) college within the era that was supposedly dominated by 6.4 GPAs and having opened a microfinance bank in Malawi while in 6th grade, I feel pretty confident that this trope is as mythological as one would expect, and that people with imperfect (but still good) GPAs or SATs or extracurriculars or whatever not only do get into top schools, they comprise the majority of people in top schools.

MacDonald's syllogism that an affirmative action program inherently disproves the existence of an unwelcoming atmosphere is a great example of why I've never thought much of MacDonald as a thinker. For one, it's immediately contradicted by her own argument that affirmative action is actually bad for Black students: taking her seriously, Berkeley administrators either (a) have "sadistic" attitudes toward Black students or (b) are really, really terrible at actually doing things that benefit them despite their best (counterproductive) efforts -- either hypothesis which would make an unwelcome atmosphere seem quite likely. Second, skating past MacDonald's internal contradiction, there's no reason why a person taking certain salutary steps towards racial minorities cannot coexist with other, more negative acts, assumptions, mistakes, or misunderstandings. Racial egalitarianism isn't a binary -- most people are a mix of conscious anti-racism with subtle or subconscious racism or racial ignorance. Supporting programs like this is perfectly compatible with other, less overt, forms of aversive racism. The presumption that a racially unwelcoming atmosphere requires a community of Bull Connors is nonsense. Third, even granting MacDonald's on-again/off-again assumption that Berkeley's support for a not-actually-race-based-affirmative-action program proves its administrators are the second coming of MLK, it's unclear how that achievement gets attributed to Berkeley students, who are the prime subjects of the Black students' complaint in this respect.

Re: The Mismatch Effect, in the L.A. Times

David Schraub — Tue, 27 Aug 2013 15:58:37 -0000

On the curvy part of the curve, rather than the long tail.

Re: The Mismatch Effect, in the L.A. Times

David Schraub — Tue, 27 Aug 2013 15:28:40 -0000

Wow, my bad! Thanks.

Re: The Mismatch Effect, in the L.A. Times

David Schraub — Tue, 27 Aug 2013 13:37:57 -0000

Is it just me, or does Campbell appear to be a conventionally attractive candidate for a school like Berkeley, even absent racial preferences (which of course, Berkeley cannot use after Prop 209). Straight A student, second in his high school class, impoverished background, terrible neighborhood, almost certainly superlative letters of recommendation (you can add race too if you want, I think he looks good either way). Against that we have Volokh's assumption (admittedly just a conjecture) that his SAT scores "weren't that high". "Weren't that high" is both (a) carrying a lot of weight and (b) is a broad term. So long as his SAT scores were on the bell curve, he seems like someone who cuts a very good profile from an admissions standpoint. And with the (possible) exception of SAT scores, it's doubtful that his admissions profile really differed that much from that of Spencer's, who is thriving (the main distinguishing characteristics of Spencer is that his family had considerably more cultural capital growing up, which doesn't really show up on your standard college application). Unless we're going to go to a "SAT scores or bust" system (which nobody seriously advocates), skepticism of Campbell's admissions profile would also mean skepticism of Spencer's.

(We'll just skip on by the cavalier dismissal of the Black students' sentiment that they don't feel welcome at Berkeley, which Volokh attributes to Campbell's struggles even though the very excerpt he block quotes indicates it is a view shared by other Black students as well).

Re: Review: Attman’s Deli, Potomac Maryland

David Schraub — Mon, 29 Jul 2013 00:09:02 -0000

The site Attman sits on has been the location of a Jewish deli for ages -- it's gone through at least half a dozen names in my lifetime (I just call it Hofberg's, since that was the name it had the longest while I was growing up). It sounds like it's gone downhill though -- free pickles were always served in every prior iteration.

Re: They Hate Us And/Or Want to Convert Us

David Schraub — Thu, 27 Jun 2013 10:44:27 -0000

This seems a little credulous in relying on self-assessment by Evangelicals as the be-all-end-all regarding their perspective on Jews. That isn't to say they're lying, only to repeat the mantra that a "philo-semite is an anti-Semite who likes Jews." What we have here is basically a conflict between how Evangelicals view their own attitudes towards Jews, and Jews view Evangelical attitudes towards them. It is not inherently clear that the Evangelicals' perspective should trump. Evangelicals might just be really bad at assessing what qualifies as genuinely treating Jews with respect or what constitutes being pro-Israel.
Take Pat Robertson for example. I have no doubt he claims to sympathize more with Israelis than Palestinians, and that he would say he views Jews favorably. He also might agree that evangelizing Jews is not a "top priority" (though I'm less sure of this). But he also famously said that Ariel Sharon's stroke was a punishment from God for withdrawing from Gaza. Jews are well within their rights to mistrust someone who takes that view despite their affirmative answers (and even sincere internal belief) regarding whether they like Jews or like Israel.

Re: Follow-up to Alvarez: Did Cap’n Crunch Violate The Stolen Valor Act?

David Schraub — Tue, 18 Jun 2013 11:14:33 -0000

My understanding is that by tradition, any Naval officer who commands their own boat is referred to as "Captain", regardless of whether that is their rank. That is, "Captain" is an appointment as well as a rank, and many officers who do not hold the rank of Captain are still appointed to Captain (smaller) vessels. So assuming Crunch commands his own vessel, he should be okay.

Re: Which Rational Basis Test Applied In Kelo?

David Schraub — Thu, 04 Apr 2013 19:03:44 -0000

Have you read this article (Miranda Oshige McGowan, "Lifting the Veil on Vigorous Rational Basis Scrutiny", 96 Marq. L. Rev. 377 (2012))?

Re: Does ABA Accreditation Standard That Limits Professor’s Practice of Law Violate Rules of Profesional Conduct? [Update: Never mind]

David Schraub — Mon, 04 Feb 2013 10:30:51 -0000

Am I misreading this, or does this only apply to restrictions on legal practice which continue to apply after termination of the employment contract?

Re: First Day of Class

David Schraub — Tue, 15 Jan 2013 18:46:46 -0000

I set my goal for teaching my first class as "don't cry." And I didn't! Success is all about setting the right goals.

Re: The Originalist Case for UT in the Fisher Case Falls Short

David Schraub — Tue, 21 Aug 2012 22:46:41 -0000

This debate has always struck me as somewhat backwards. States begin with residual authority to act. The 14th Amendment restricts states in various capacities -- exactly how is the subject of legal interpretation, and if we're originalists, presumably we look to the enacting history and whatnot. But what that means is that the baseline is that states are allowed to do things like affirmative action, absent some originalist evidence indicating that such programs were meant to be prohibited under the Amendment. The burden of production is on the anti-AA folk -- if the historical record is silent on state remedial usage of race, then that's no different than the historical record being silent about states, I don't know, still being allowed to regulate traffic after the 14th Amendment. But thus far, the only historical evidence I've seen produced at all is being put forward by pro-AA forces. Noting that this evidence isn't slam-dunk proof is immaterial without some counter-evidence indicating that this was something meant to be beyond the purview of state legislation (removed from the states' general regulatory powers). If that evidence doesn't exist, then the constitutionality of affirmative action (from an originalist standpoint, anyway) isn't a hard question.

Re: Could a Public University Segregate Those Who Exercise A Constitutional Right To A Separate Dormitory?

David Schraub — Sat, 18 Aug 2012 18:39:09 -0000

See Richmond Tenants Org.
v. Richmond Redevelopment & Hous. Auth., 751 F. Supp. 1204 (E.D. Va.
1990) (ban on possession of "firearms" on public housing property is reasonable, but "weapons of any type" is unreasonably broad). Of course, this may not survive post-Heller. See also Tenn. Op. Att’y. Gen.
No. 09-170 (Oct. 26, 2009) (opinion post-Heller by the Tennessee AG that a landlord can prohibit possession of handguns on her property, but not distinguishing between public and private property).

Re: Could a Public University Segregate Those Who Exercise A Constitutional Right To A Separate Dormitory?

David Schraub — Sat, 18 Aug 2012 11:52:48 -0000

Doesn't the fact that it is government-run housing make a major difference here? My understanding is that government bans on guns in state-run housing projects were okay pre-Heller and may have been upheld post-Heller too (though this isn't my area, and I'm not sure). And of course, the restrictions government can place on your free speech rights or (more obviously) your 4th amendment rights are far greater (though not infinite) when you're on state-owned property than when you're on your own private land. Government sometimes (not always) can hinge access to a benefit it provides on the taker giving up constitutionally protected activity (e.g., it can not give food stamps to union strikers, and it can not pay for abortion through state-run medical programs).

Re: The Most Interesting Lion in the World

David Schraub — Thu, 21 Jun 2012 00:38:54 -0000

"I don't always eat deer, but when I do, I prefer (them) does at least."