Halacha, Results, and Discretion

Richard Posner is known as one of America's greatest legal theorists, and is probably the leading supporter of a legal philosophy called pragmatism. Posner disagrees with the standard refrain that legal theory is governed by rules and that judges just apply the rules without any discretion. His theory requires judges to use their discretion to resolve difficult legal questions, because the rules do not always lead to a clear answer.

Sometimes we will have two rules that conflict and the judge will be required to make a discretionary decision. Or sometimes there will be no rule. For example, let's say someone argues that the 13th Amendment (banning slavery and involuntary servitude) bars government regulation of abortion because it forces women to carry a child to term, and that is a form of involuntary servitude. How is a judge supposed to decide this question?

No rule really exists to help us decide if the Amendment should apply to abortion. So the judge can look to see if the argument is plausible. But that's just a form of using discretion.

Judicial ideologies, such as originalism, were designed to deal with the discretion question. The judge will look to see if the original understanding of the Amendment included abortion. If it does, then he will strike down all abortion laws that conflict. If it doesn't, then he will allow them to stand.

Of course judicial ideologies create problems of their own and also, despite arguments to the contrary, leave much to the judges' discretion.

What exactly is discretion? Discretion is the judge's "common sense." Common sense is something that is dictated by experience, which is why Posner suggests that courts be diverse, to take into account society's different perceptions. But common sense is also something that stems from a result-oriented look at the law. If a judge feels that abortion is murder, he is more likely to believe, when no legal rules guide his decision, that a reasonable interpretation of the law would ban abortion.

How does any of the above apply to Halacha? Well the same problems that confront judges bother poskim (legal decisors). What is a posek (legal decisor) to do when faced with a question that has two equally plausible answers? If the posek uses his discretion, is he not supplying his own personal beliefs to answer the question?

Asked another way, how does Hashkafa (religious outlook) influence Halacha? Is it a mere coincidence that Rav Herschel Schacter, who is Modern Orthodox, supports Slifkin while Rav Elyashiv believes, at the very least, that his views should not be read? Or that in Mea Shaarim, a very gender segregated society, women shave their heads because of strict interpretation of Jewish law? Or that in places like Lakewood, where Torah learning is considered paramount, Halacha is interpreted to require men to study Torah rather than learn a livelihood?

I don't believe that Poskim interpret the law according to their own personal whims. I'm sure they try to see what's reasonable under the circumstances. But someone needs to do a study to determine whether Hashkafa does influence Halacha, to see whether people with stricter Hashkafas decide Halacha strictly.

Someone Has DovBear Pegged To a Tee

Charles Fried, who has been a law professor, judge and Solicitor General, makes some very good points about the NSA wiretapping scandal. Key points:

"We should ask ourselves what concrete harm is done by such a program. Is a person's privacy truly violated if his international communications are subject to this kind of impersonal, computerizerd screening? If it is not, at what stage of further focus do real, rather than abstract and hysterical concerns arise? And to what extent is the hew and cry about this program a symptom of a generalized distrust of all government, or of just this administration?

If of all government, then we are in a state of mind that renders us incapable of defending ourselves from real threats. If of this administration, then can we afford to disarm the only government we have until the result of the next election, which is likely to be as partisan and closely divided as the last?"

Bingo.

(Hat Tip: Instapundit)

When All Else Fails Blame Israel

Mahmoud Abbas, just like his predecessor, is using strong arm tactics to insure his reign at the top continues. In response, Abbas is getting lambasted by civil rights activists and other lawmakers. But the worst outcome is the protest vote for Hamas, which, despite all its flaws (you know being a bunch of murderous thugs) is not corrupt. Hamas gains support partly by at least having the veneer of honesty and by providing social services.

So what is Fatah going to do about their sad chances in next month's election? Cancel elections and blame Israel.

"Less than a month before parliamentary elections, all indications are that Abbas's Fatah is headed for disaster. That's why many Fatah leaders, including Abbas, are praying for a miracle that would provide them with a good excuse to postpone the vote. Their biggest hope is that Israel will launch a major military offensive just before the election or ban Arab residents of Jerusalem from voting.

As one senior Fatah put it this week, "It would look better in the eyes of the world if we could hold Israel responsible for disrupting the democratic process."

The more things change, the more they stay the same.

Do They Really Want To Be Like Us?

On the heels on this story about a segregated mall in Bnei Brak and this one about putting women in the back of bus, we have a Yated "observation" about how women in Saudi Arabia are happy with their lifestyle of no driving or voting.

President Bush's primary assumption underpinning the war in Iraq is that everyone wants freedom. But is that true? Do people really strive for freedom? Do they really want to throw off the shackles of tyranny?

Certainly there are women in Saudi Arabia who enjoy their lifestyle. That lifestyle includes the requirement to always be accompanied by a male relative or female compatriot, to be dressed a certain way, and to be limited to certain opportunities.

I think we in the West assume that women who are fine with this (actually they claim their lifestyle is better than the West's) are brainwashed. Perhaps they never experienced anything better. Or if they have, they are so stuck in their ways that they thought freedom is slavery and slavery is freedom.

But is that true? The same argument, albeit on a much lesser, is used by Feminists who argue that women who do not fight against patriarchy and are content with our current system simply do not know better or are too brainwashed to be objective. But most of us do not agree with that, do we? So why do we assume it to be true on a greater scale?

I think it's a matter of degree. There's a big difference between not being able to vote or honor killings and an unbalanced share of the domestic chores. But of course the difference is a matter of perception. We think one is worse than the other because that's our viewpoint.

So I'm not sure there's an answer to the women who claims that she likes wearing a burka.

Is Alito Just Another Cog In King George's Powergrab?

Sanford Levinson, over at Balkinization, argues that Alito was chosen not just because he wants to overturn Roe v. Wade and because he favors a less expansive definition of the Establishment Clause, but because he supports almost plenary power for the President in his guise as Commander-in-Chief.

Of course I wasn't privy to the discussions among the President and his advisors, so I can't comment on why Alito was nominated. What I can say is that I disagree with Levinson's assertion that the Bush administration is attempting to stack the Court so it can acquire absolute power. What Bush and Cheney favor is not unlimited power, but a return the days before executive power was curtailed.

The President clearly has powers by virtue of being Commander-in-Chief. How those powers interact with Congress' ability to regulate war and with the Bill of Rights is an important question. But the President is not arguing for unlimited power; he merely wants to resuscitate executive power. Where the President's actions do not clearly violate the Constitution (as in the case of the wiretaps) or a Congressional statute (less clear in wiretaps), it would make sense for the courts to allow him to exercise his power. I don't see this as a power-grab, but as a necessary element of fighting the war on terror.

More On The Yated

One point I forgot to make in this post is that the Yated seems to believe that the goal of the Israeli government is to make people stop learning. Like ministers sit around all day thinking up ways to get Charedim to stop learning. It has nothing whatsoever to do with getting people off government assistance. Nothing at all.

This viewpoint just perpetuates the cycle of hatred. I'm not going to pretend that Shinui votes dislike Charedim for only noble reasons. There is bigotry in every society, especially one that is so fractured.

But the Charedi "no-compromise" position that is underpinned by the view that "everyone is out to destroy their Judaism" makes, at the very least, good fodder for the haters.

I know I'm hardly the first to talk about this topic, but let's take a look at why the average secular Israeli might have animosity toward Charedim. A large percentage of the society does not work, and therefore does not pay income tax. The vast majority do not serve in army. They receive a large percentage of public assistance. And some seek to impose their values on the rest of society (protests against driving on Rechov Bar Ilan on Shabbos, refusal to allow civil marriages, opposition to the gay pride parade, etc.)

I'm not saying there are no good reasons for their course of conduct. There is Halachic support for sitting in kollel and refusing army service. Israel is a Jewish state and they believe Halacha should play an important role. And everyone else takes money, so why shouldn't they?

But what they need to understand is that people who dislike them are not out to destroy their Torah learning. Most Israelis couldn't care less about what they do in their spare time. But most Israelis also do not agree with their reasons for not working and not serving in the army, and to the person with a different world-view, they look like leeches who take but don't give.

This post was not meant to bash Charedim or their lifestyle. Charedim do a lot of good for Israel. But they need to understand that not every policy is designed to destroy them. The victim complex does no one any good.

Yated Stupidity

Check out this editorial about Yeshiva students and army service. Choice paragraphs:

"The common thread is the recommendation to seek economic security or even comfort, at the expense of Torah study. Worried about a "social time bomb" or "economic disaster" that is, according to their calculations, inevitable if things continue along the trend lines that have been established, they opine that fewer people should learn full time and more should work.

We say that this echoes the threat we faced in the time of Mattisyohu: to make us forget the Torah. In our spiritually impoverished days, we need all the learning that anyone is willing to do."

My G-d, do they really believe that? That any initiative to get people out of kollel and into the workforce (and therefore no longer supported by the public coffers) is similar in any way to the threat posed to us by the Greeks? The people who criminalized learning at the threat of execution?

So let's see if I have this straight: Creating incentives to get people off welfare by helping them become self-sufficient echoes imposing capital punishment for Torah study. I've heard of ridiculous analogies, but this tops them all (except for the idiotic Holocaust comparisons).

Orthodoxy and Everything Else

Going back on this post, I'm going to try to explain how and why I distinguish between Orthodoxy and Conservatism. This is a layman's effort, as I've done limited study on theology and hashkafa, so if you don't want to hear me pontificate, move on along. Orthodoxy requires some mixture and belief and practice. These two elements underpin Orthodox Judaism as we know it. I'm not quite sure what the mix is though.

Is there really a clear, bright line between Left-Wing Modern Orthodox and Right-Wing Conservative? Let's think of the classic differences. Conservative Judaism does not believe that the Oral Torah comes from G-d. But does Orthodoxy? Some branches believe that every single opinion in the Gemara (Talmud) was told to Moshe at Har Sinai. Left-Wing Modern Orthodox, or even Right-Wing Modern Orthodox does not believe that. They believe certain principles were passed down, but they were applied by human decisors. Certainly an element of divine assistance was at play, but the decisions were human. That's precisely why there are disagreements in the first place. Any other position presumes much of the Oral Torah was lost. I remember Rabbi Herschel Schacter making such an argument.

So in reality what's the difference? Both groups believe that most of the Halacha we have today us man-made. In my mind, the lone difference is the willingness to discard precedent. Conservative Judaism is much more willing to ignore precedent and reverse earlier decisions. Orthodoxy takes a much more conservative (with a small 'c') stand and doesn't move too quickly.

So we see in theology the differences are not so clear. In reality, the primary distinctions are practice. Orthodox Judaism requires certain forms of practice that the other branches no longer do.

I'd say the biggest difference between the groups is keeping Shabbos and Kosher. That seems to be the arbitrary line set by society. Halacha recognizes a specific class of people who violate Shabbos openly. But for whatever reason Orthodox society views keeping Shabbos and Kosher as two of the most important mitzvot.

So the line between Orthodox and not-Orthodox is not so clear. It has become more of a societal concept rather than theological. Keeping these two commandments places one in the Orthodox category, and while the theology is important, the way someone is viewed by society is more based on practice than anything else.

Orthodoxy and Bad Faith

A while back, I had an argument about what makes someone Orthodox. A guy believed that he was Orthodox because he believes in morality. The Orthodox people in the room disagreed, pointing out the fact he doesn't believe in G-d and Orthodox Judaism requires that belief.

My friend, however, argued that as long as a person has Orthodox beliefs, he is Orthodox, even if he does not follow through on any of those beliefs. In other words, a person could violate Shabbos, eat pork, sleep around, and still be Orthodox as long as he believes in G-d, that the Torah is of divine origin, and that there is a mesorah (oral law). As one person put it, a person can be Orthodox if he conducts himself in bad faith, meaning he knows what he's is doing is wrong.

This definition seemed wrong to me. Let's leave out the fact that Orthodox belief is more complex than just G-d and the Torah. The thirteen Maimonidian principles are, according to most contemporary scholars, required belief (notwithstanding Marc Shapiro). So a person can believe in G-d, but if he doubts resurrection or the coming of the Messiah, it's hard to imagine him being Orthodox.

But another problem confronted me. This definition only includes the "dox" aspect; it ignored the "prax." The term Orthodox was not a self-created label. Before the term was applied to Orthodox Jews, the standard terminology was "Shomer Torah U'mitzvos" (someone who keeps the Torah and G-d's commandments). It strains credibility to argue that someone can refuse to follow a single commandment and still be Orthodox.

Orthodox Judaism recognizes the primacy of Halacha (Jewish law). It requires all types of actions by Jews every single day. Someone who follows none of them cannot be a keeper of Halacha. And the requirement to follow Halacha is certainly a central aspect of Orthodox Judaism.

The next post will deal with what I think should be the dividing line between Orthodox and the other branches of Judaism.

In Case You Thought Otherwise

Armando, in the comments on Concurring Opinions, admitted that the purposes of the Daily Kos are largely partisan and that they "advocate for what we believe is the Democratic point of view." I'm not saying conservative blogs don't do that, but lots of the big traffic blogs (Instapundit, Volokh, etc.) don't. Maybe the law blogs are more objective, I don't know, but it sure seems like the liberal law blogs (Balkinization) are consistently anti-Bush.

No Wonder Everyone Wants To Vote For Kadima

Labor and Likud have come out with their security/peace proposals.

Labor: Lease large settlement blocs from the Palestinians in exchange for cash. Supposed to be like the Hong Kong agreement where the British leased the province for 99 years, after which China took it back.

Obviously the idea is to avoid having to evacuate hundreds of thousands of settlers, while giving the Palestinians sovereignty over 100% of the West Bank.

I don't know where to start with this idea. What happens at the end the lease? All those settlers go under Palestinian control? I realize that won't happen for another 100 years or so, but what kind of deal requires hundred of thousands of Israelis to be transferred to Palestinian control?

There are certain areas that majority of Israelis do not want to cede. Gush Etzion is legendary. Even the symbolism is important. Granting the Palestinians sovereignty would undermine one of our symbols.

Would the Palestinians even support this plan? Sure they'd have sovereignty, but it would be a meaningless form. They'd be paid, but they've been pushing for control over all the West Bank with the settlers leaving. While they've allowed for land swaps, I can't see the current Palestinian leadership accepting a deal that denies them effective control over large parts of the West Bank. And it seems like the Peretz wants to work with these Palestinian leaders.

Likud: Withdraw to defensible borders after negotiations. This plan makes sense if we assume that a Palestinian state or other parts of the Arab world are a military threat and that we need borders to defend ourselves. It allows Israel to avoid having to control Palestinians, and therefore they don't have to deal with the demographic problem.

Netanyahu is very vague on what he intends to keep. The article includes "settlement blocs in Judea and Samaria." Is that all of the blocs? That's quite a bit of land (and they don't even get to collect rent). Who in their right mind thinks any Palestinian leadership will allow Israel to keep large swaths of the West Bank? They need some land to built a state.

Both these plans avoid the difficult problems of creating a Palestinian state. The Palestinians need a legitimate amount of the West Bank to build their state. Because of that, some Israelis (probably a decent number) will have to be evacuated. No one wants to talk about that, so they go on about defensible borders (keep the land) or lease it (and thereby avoid removing them).

Barak's answer was in the middle. We keep the major settlement blocs (including Ariel). No leasing (because that solves nothing). We give up the rest (no talk about defensible borders because no Arab country is remotely a threat to Israel). It's called compromising. Israel and the Palestinians will need to do it when push comes to shove.

I doubt Sharon will go as far as Barak, but if he's willing to give up 85 - 90% that will suffice. Keep the settlement blocs that are too difficult to remove and give the rest up. That's the only reasonable way to achieve peace.

I Just Don't Get It

I've been careful to stay away from the whole Slifkin controversy. But the recent RCA letter (Hat Tip: Hirhurim) made me think a little. The RCA claims that belief in evolution is not heresy. Others believe it is. I don't need to rehash that which has been completely beaten into the ground and dealt with in a much better capacity by far more qualified bloggers.

I'm no expert on evolutionary biology, and I haven't taken a science course since high school. But let's think this through for a minute. Evolution is overwhelmingly accepted by the scientific field. The support for evolution seems be just as great as for gravity.

Let's assume evolution was proven beyond a reasonable doubt (some say it already has been). According to those who believe such a belief is heretical, are we required to ignore our senses? Does Halacha expect us to deny the reality and just move on based on faith? I'm not sure I follow.

The idea of heresy seems to only make sense when we have different alternatives, all of which are plausible. Faith should help us choose between those choices and reject the others. But when one choice is supported by the overwhelming evidence, should faith contradict reason? Is that what the Slifkin banners expect?

Faith should not be the basis of a world view. It should only supplement reason. Do the Slifkin banners disagree?

A Balanced But Flawed Solution

Amnon Rubenstein, one of the founders of Meretz, analyzes the pros and cons of withdrawal and remaining in the territories. Ever since I started following Israeli politics I've found Rubenstein to be one of the best writers on the conflict. I don't always agree with him, but unlike most writers, he takes into account all of the pros and cons, not just the ones that fit his predetermined world view.

Rubenstein proposes placing the West Bank under international control (another mandate for Palestine) or putting it under the control of Egypt and Jordan. Martin Indyk proposed an international trusteeship a few years ago.

Rubenstein recognizes that withdrawal and the creation of a Palestinian state is a bad idea right now since Palestinians are becoming more and more radical, as evidenced by their support for Hamas. A Palestinian state will become a haven for Islamic terrorists of all stripes, including those under support of the fanatic Holocaust deniers in Iran.

But Israel cannot stay either. He believes the occupation is bad for Israel because it "runs contrary to the very principles of our democracy, endangers the Jewish majority in Israel proper and causes daily suffering for the Palestinians."

His solution mitigates both problems: it minimizes the contact between Israel and the Palestinians, thereby decreasing tensions, while preventing the creation of a Palestinian state until the populace deradicalizes.

An interesting idea, but one that just ignores some of the basic problems. It's not Hamas that refuses to compromise on the West Bank, Jerusalem, and the Temple Mount. The Fatah controlled PA has always demanded Israel withdraw from 100% of the West Bank. That's not going to happen, so what amount of territory must Israel turn over to the mandate? We have the same problems we've always had.

Moreover, neither of the two rulers of the mandate is acceptable to both the parties. Anyone who thinks an international force will be safe from Islamist attacks must have forgotten to read up on the news in Iraq over the last few years. Islamists are suspicious of westerners and are not about to sit quietly while the US or EU calls the shots in Nablus or Ramallah. Welcome to Iraq II, except the Islamists have far more support in the West Bank than in Iraq.

Israel will not accede to Egypt or Jordan controlling the WB unless they promise to annex it. While Jordanian annexation is beneficial to all parties, Jordan isn't stupid. They gave up their claim to the West Bank in 1988 for a reason; they don't want the Intifada spilling over into their territory. And Egypt never wanted anything to do with the territories.

Will either of these countries take their responsibility to help foster democracy seriously when neither is a democracy itself? Will they risk their soldiers for the sake of Israelis? Israel cannot trust them to take their job seriously.

I understand Rubenstein's problem with Israel's presence in the West Bank. But I don't think turning it over to foreign powers is the way to go.

Nothing Better To Do Apparently

Northern Israel was hit today by rocket fire from Lebanon. Correct me if I'm wrong, but this is the first time in a long time that Kiryat Shimona sustained a missile attack. Moreover, from time to time Hamas has been launching quassams into Southern Israel. Seems like a pretty big deal right?

Not to Amir Peretz. He's lambasting Sharon for not taking down fourteen illegal outposts in the West Bank.

Don't get me wrong. Illegal settlements have to go. But come on, seriously, what is a greater threat: rocket fire from foreign states or a few tents that could be removed in a matter of hours? I realize it's all campaign rhetoric, but some responsiblity is in order.

From the Haaretz article:

"Nabil Abu Rdainah, a spokesman for Palestinian Authority Chairman Mahmoud Abbas, said, "Settlement activities severely hurt Palestinian efforts to maintain calm." He urged Israel "to cease these activities and uproot the outposts.""

But rocket fire is all fun and games?

Sharon's Medical Condition and the Election

The news that Sharon is to undergo catheterization of the heart in two-three weeks comes after he suffered a mild stroke last week. As it stands, Kadima is way ahead of the pack, with some polls predicting over 40 seats.

But what exactly is this party? Does this party have any selling points besides for Sharon? If the Israeli electorate loses confidence in Sharon's health, would that adversely affect Kadima's chances of making a strong showing?

Kadima is, in essence, the home for many of the big names in the Likud and Labor. Labor moved in a different direction with the election of Peretz, and Peres became upset and decided to join Sharon. Most of the bigwigs in the Likud are now sitting in Kadima. But if G-d forbid Sharon becomes ill and cannot continue, would all those Kadima voters trust Ehud Olmert or Tzipi Livni?

Of course that's the million dollar question in the media. But the question assumes one important fact: that Israeli voters would rather vote for some other party or not vote at all rather than take the risk of Sharon not being able to serve.

Let's assume Kadima will get 40 seats. 20 of those seats come from people who like centrist policies on security and peace. The other 20 are voting for Sharon, period. The first 20 are likely to vote for Kadima anyway, since no other party will fill their need (with the exception of Shinui, which might benefit a little from Sharon's bad health, but in reality runs on an anti-Charedi platform). The other 20 would have to think long and hard about voting for Kadima.

But who else would these 20 vote for? Shinui? Shinui has no chance of becoming a major player in the game and therefore will have little influence over policy. Likud? Maybe, but do they trust Bibi? What exactly is Bibi offering right now on the peace and security front? Does anyone know? Labor? Very few people who are considering voting for Ariel Sharon are going to just switch and vote for the socialist party. I don't see too many people going to Shas and UTJ either. And anyone who will vote for Sharon after disengagement is not going to turn around and vote for National Union/NRP or Yachad.

Will they just stay home? I guess it depends on the risk. Sharon is old, and he has some health problems. But how bad are they? Is it not worth the risk to vote for him and hope he continues the policies policies people like rather than just do nothing? Is Olmert that much worse than the alternatives? I don't believe people think so.

So what is comes down to is the risk of Sharon not finishing the term weighed against the benefit he bring to Israel if he does. I can't see too many Israelis forgoing Kadima just because of that risk.

Scare Tactics At Its Best

Great movie by the ACLU. I thought it was a joke when I first saw it, but they're serious. You can always count on the ACLU to blow something out of proportion.

Where'd I End Up?

Everyone is taking this Orthodoxy test, so here are my results:



Left Wing Modern Orthodox: 65%
Right Wing Modern Orthodox: 90%
Left Wing Yeshivish/Chareidi: 50%
Right Wing Yeshivish/Chareidi: 10%


This means you're: Left Wing Modern Orthodox.

Not sure why I'm Left Wing Modern Orthodox if I'm 90% Right Wing Modern Orthodox, but OK.

Finally Done

I'm finally finished finals. Five finals in two weeks is a bad idea.

What The Hell is Wrong With Our Judges?

This is a request for a temporary restraining order against David Letterman that was actually granted by some judge in Nevada. I don't know whether to laugh or cry.

Update: It's quite possible that David Letterman is not allowed to own a gun.

More idiotic flash ads

This one from NARAL.

Best line:

"Just one thing has stood in their way of their ultimate goal of overturning Roe v Wade: the Supreme Court."

You think?

Activist Judge Destroys Christmas

Here's the scoop:

WASHINGTON, DC—In a sudden and unexpected blow to the Americans working to protect the holiday, liberal U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt ruled the private celebration of Christmas unconstitutional Monday.

"In accordance with my activist agenda to secularize the nation, this court finds Christmas to be unlawful," Judge Reinhardt said. "The celebration of the birth of the philosopher Jesus—be it in the form of gift-giving, the singing of carols, fanciful decorations, or general good cheer and warm feelings amongst families—is in violation of the First Amendment principles upon which this great nation was founded."

In addition to forbidding the celebration of Christmas in any form, Judge Reinhardt has made it illegal to say "Merry Christmas." Instead, he has ruled that Americans must say "Happy Holidays" or "Vacaciones Felices" if they wish to extend good tidings.

(Click on the link for more)

(Hat Tip: ProfessorBainbridge)

What Makes Someone Black?

It hasn't been really big news, but the head of the NAACP in Philly recently wrote an article criticizing Eagles QB Donovan McNabb for being a mediocre talent, hiding behind the race card. Besides for being eerily similar to what got Rush Limbaugh fired, the article needlessly brought race in the picture. He attacked McNabb for helping perpetuate the stereotype that Black quarterbacks are not as good because they run, rather than stand in the pocket. In other words, McNabb is betraying his race because he refuses to run.

This argument is obviously dumb. Black and White has nothing to do with it. Quarterbacks who run primarily are just not as good. Name the last running QB who has won a superbowl. Football is about standing in the pocket and finding receivers, not about leaving the pocket after all the WRs are covered.

But I digress. This post is not about football. The idea that a QB is more "Black" if he runs is another element of the Black cultural element that defines "Black" by having a certain upbringing, speaking a certain way, and acting a certain way. John Smallwood for the Philly Daily News has an excellent article on the can of worms the criticisms opened.

I'm not going to arrogate myself to define Black culture. I'm not Black and share none of their experiences or history, so it's not my place. But the element of victimhood embedded in the culture too much reminds me of how Jews cry "anti-Semitism" whenever someone criticizes them. How many times have we heard someone denounce a critic of Israel as an anti-Semite? Jew hating, like racism, surely exists, but not every critic is a hater. I think both Jews and Blacks need to remember that because sometimes criticism truly can be taken to heart.

Funny Video

I need to stop blogging, but this video is hilarious.

(Hat Tip: Bench Memos)

Update: So is this one.

Ten Random Things

I have so much work to do for a final I have tomorrow and I'm not ready, but I've been tagged by David, so here goes:

1) Studying for finals when you haven't done any work all semester is hard. Really hard.
2) Babies are really cute.
3) Ever since I've started walking more, I've come to realize that I don't hate the cold as much as I used to.
4) Waking up in the morning is the hardest thing to do.
5) I can fall asleep in a matter of seconds, which probably is related to my inability to get up.
6) The choice of pasta or schwarma for dinner every night really gets old quickly.
7) Overall Lakewood probably beats Flatbush, but that's like saying Stalin was better than Hitler.
8) The villiage is filled with lots of really, really weird people who do lots and lots of weird things.
9) I can't explain how a key can work in the morning but not at night.
10) Despite evidence to the contrary, I don't hate dating.

I'm tagging: Classmate-Wearing-Yarmulka, Romach, SerandEz, Eli7, Josh, Sara, and Dovbear (I could use the link). Since I'll be posting infrequently over the next few weeks, this meme will give me something to read.

Same-Sex Marriage Ruling Reversed

I've been too busy to read this decision, but the Appellate Division reversed a Supreme Court ruling that required the state to recognize SSM. Commentary here.

The case was decided under the NY State constitution, not the federal one. Readers who wish to know my opinion on SSM can read my earlier posts found here.

Wow, Who Would Have Thought?

I took this test. Wonder which character I turned out to be?

(scroll down)

Yoda was damn cool in the ROTS, so I'm taking it as a compliment. But something tells me Yoda has an easier time getting up in the morning....

Sending Chills Down My Spine....

A person could get physically sick from a story like this.

It's hard to imagine there are people who would do something like that to their own child.

Gavison is a No-Go

Unlike in the US, where the President nominates members to fill judicial openings and the Senate confirms, in Israel the appointments are made by a majority of the judicial selection committee. The Committee has nine members: three judges, two members of Israel's bar association, two members of the government, and two members of the Knesset. Historically, the judges have been able to veto choices even if they were in the minority.

In the case of Gavison, the three judges plus MK Avraham Shochat (Labor) and a member of the Bar oppose her confirmation. That's a majority and will make it very unlikely that she'll sit on the Court.

The opposition stems from her statements about the role of the court in a democracy (i.e., separation of powers). She has crazy fanatic beliefs like the courts shouldn't dictate policy over the will of the majority. Since, as Robert Bork once said, Israel's SC is the most activist court in the world, Barak does not want judges who oppose that ideology.

Barak's problem?

"Since the creation of the Supreme Court, we have never asked candidates for their opinion on the role of court. These are things that a judge learns, internalizes and defines in the process."

That's retarded. Judges are not supposed to understand their role before they get on the Court? What does that mean? That's like saying pitchers aren't supposed to understand the rules before they start playing the game. If rules exist in the legal world, and some of those rules deal with the boundaries of the court's power, then a judge must have a position on what those rules are before she sits on the court. How can she decide a case that involves striking down a legislative act without understanding what her job is supposed to be?

This whole opposition is a pretext. And the scary thing is the farce is not designed to keep a right-winger off the court; Gavison is no such thing. They refuse to confirm her because she wants to limit the court's power so it cannot protect democracy from itself.

When Words Mean Something Different....

Funny letter in the National Review Online this week:

"Dear Jay,

My mother is a kindergarten teacher. Her class is drawn from a comparatively lower-income neighborhood. After Thanksgiving, she put out the Christmas books (i.e., Night Before Christmas, plus various other "Happy Holidays"-type stuff for diversity's sake). Yesterday, child comes up to her. "Teacher, there's a bad word in the new books." Puzzled, Mom goes to check them out. The bad word he points to? It's Santa Claus, saying "Ho, ho, ho."

So, there you go — jolly ol' Saint Nick's famous phrase, courtesy of gangsta rap, is now an epithet.

How much should civilization weep for a five-year-old who reads the word "ho" and thinks
"whore" instead of "Santa"???

Merry Christmas."

Sad, really.

Netanya Bombing

Five Israelis were killed in today's suicide bombing outside a mall in Netanya. The Palestinian Authority's response:

"This operation ... against civilians causes the most serious harm to our commitment to the peace process and the Palestinian Authority will not go easy on whoever is found to be responsible for this operation," the statement quoted him as saying."

Wow, good to know. They won't go easy on whoever is responsible. That's especially great since everyone knows who is responsible. Islamic Jihad took responsiblity. So I should expect the PA police to start dismantling IJ soon, right?

OK, back to reality. The PA is not going to do anything about this mess. Why not? Apparently they can't. It seems the terrorist groups have gotten their hands on so many weapons that they just can't do anything about them.

Let's assume that's true. Gee, whose fault is that? Whose responsibility was it to keep guns out of the hands of Hamas and IJ during Oslo? How about now? It's safe to say Israel didn't allow weapons in. So why didn't the PA try to stop them for obtaining weapons when they could have? Because the terrorist groups were fighting their war for them. They were a useful tool. Now they aren't. But the PA cannot complain after turning a blind eye to the growth of these terrorist organizations. They are reaping what they sowed.

No More About Dating

After my recent blogging fiascoes and the real-life arguments it generated, here's an email I sent a friend:

"I'm placing a moratorium on myself until after the semester regarding anything related to dating, girls, guys, or any variation thereof, with the exception of good faith questions relating to my current dating situation."

So don't expect to see any dating pearls of wisdom for next month or so. At least not from me. If anyone would like to guest blog about it, I'm all ears.

On another note, here's the headline for an article in today's WaPost (via Instapundit):

"Disappearing Act: Where Have the Men Gone? No Place Good"

Since my moratorium just started and this article clearly falls within its terms, I'm not going to comment. But feel free to do so in the comments.

Prisoner Escape

Four of the most dangerous Afghani prisoners in US custody recently escaped. Pretty pathetic. But in the Muslim world where conspiracy mongering is the norm, some believe that the Americans let these guys out to be double agents. The Americans, of course, denied it. What I don't understand is why.

Why not deny it, but subtly hint to its truth? Worst case scenario, they don't believe us and we're no worse off a position. Best case scenario, they do believe us and they kill them. What do we have to lose?

Here's a link to a picture of those who got away (can't get the picture to upload). If I met those guys in a dark alley, I be pretty scared.

Destroying Idolatry

Over at Hirhurim, Gil responds to the argument that being part of the government of Israel is idolatry by omission. The Satmar Rav argued that Christianity is idolatry for Jews and we therefore have the obligation to destroy the churches in Israel. When Israel don't do that, the government is implicitly accepting idolatry.

Gil points out that it's unclear that we have such an obligation even in theory. If it's not idolatry for those practicing it, there's no obvious requirement to destroy their houses of worship.

His last point is the most fundamental. In a nonredeemed world, destroying churches would put both the state of Israel and the Jewish people at risk. This cost would negate our obligation (if one exists even in theory) to destroy the churches.

I believe this argument can be extended to cover other situations, such as transfer. Even if we assume that the transfer question is moot (I argued in the past that it isn't) the same costs would apply to transfer. Israel would be put in a perilous situation and Jews around the world would be in danger. Our theoretical requirement would be mitigated because of these probable outcomes.

Dating Rules

Let me start out by saying that rules are often a good thing. They allow people to avoid having to make the same decision over and over again. They codify conduct to prevent indecisiveness. In the shidduch dating world (it's a broad world), rules can be effective because guys and girls are often segregated until they are in the parsha ("ready for marriage") and have no clue how to interact. Rules give them guidance.

That said, many of the rules suck. This list is not nearly exhaustive, as there are dozens of rules: Let's list the ones that bother me the most right now while I'm studying for evidence:

1) Guy picks up the girl. Why? How old are we? The girl can't find her own way to wherever they are meeting? She can't take the subway? She can't drive?

The idea behind this rule is twofold: It allows the girl's parents to meet her date and shows he's willing to go out of the way to make a good impression. Neither of these reasons makes sense in the 21st Century.

Girls are more independent today. Certainly the parents should meet their daughter's perspective husband prior to marriage, but there's no reason to meet him on the first date. Girls are intelligent enough to make their own decisions without her parents getting involved. And obviously this rule makes things uncomfortable for the guy.

On the second issue, picking up a girl is an indicator of nothing. Here's why: in most circles the girls do not expect the guy to spend a lot of money on the first date, the reason being that it's stupid to go broke over someone he hasn't even seen before. This logic applies to picking her up as well. Why should the guy go out of his way to pick her up when it's possible the moment he sees her he'll know it's over?

I'm not asking the girl to pick up the guy (although that's not the end of the world either). I'm asking her to meet him in a central location that's convenient for both parties.

Note: This rule makes sense when the girl would have to go home by herself after a certain hour. Maybe I'm a chauvinist, but I believe girls are more likely to get attacked than guys and he should bear the cost of protecting her.

2) Guy makes all the decisions. In some ways this makes sense. He pays, so he should decide. But guys often ask girls for their opinions and get back the inevitable "whatever you want." Why can't girls give advice on dates? Do they not have opinions? I was once told girls really don't care. That's hogwash. Maybe they don't care if the choice is between Dougie's and Kosher Delight. But they don't have an opinion between dairy and meat? Between ESPN Zone or Toys R' Us? That's highly unlikely.

This rule probably has its origins in the idea that the guy is the man and he should be making all the decisions. Of course it never works like that in marriage, so this aspect of dating is completely unreflective of marriage. Plus, it puts all the pressure on the guy to make the dates, and forces the girl into annoying situations (perhaps she doesn't like bowling).

3) Girl can't call the guy before a certain number of dates. This rule even applies when the guy calls her first and leaves a message. This one is beyond me. He called her, left a message, and told her to call him back when she has time. Wouldn't the most efficient step call for her to return his phone call when she's available rather than have him keep calling back? Am I missing something?

This rule probably has its origins back in the day when women were less pushy and didn't want to seem forward. I'm not expecting girls to ask the guy out. I'm asking them to return a phone call.

OK, my study break is over. Can anyone think of rules that hurt the girl more than the guy? And I mean rules, not expectations. There's no rule that requires a girl to be a size 4 even though many guys (stupidly) require it.

Update: After a whole bunch of arguments with people I know about this issue, I'm going to retract rule #1 as long as the guy has a car. I'm still sticking to my original point when the guy has to rent or borrow a car for every date.

Is Roe Good for Democrats?

Sanford Levinson and Jack Balkin debate whether Democrats should stop fighting for Roe in this week's edition of Debate Club.

Even the Left is Too Far to the Right

MK Avraham Shochat (Labor) is delaying his retirement to prevent the appointment of Ruth Gavison onto the Supreme Court. Apparently, his replacement will be to his right, and will likely support Gavison's nomination.

When I heard the left is opposing Ruth Gavison I was surprised. Gavison was a founding member of ACRI, Israel's version of the ACLU. Her substantive positions are fairly liberal, as one would imagine.

So why the opposition? Aharon Barak, the Chief Justice of Israel's Supreme Court explained that Gavison, who he feels is eminently qualified, has an "agenda." What's he's referring to is Gavison's open opposition to judicial activism.

Amazing. A liberal scholar with positions probably on par with Ruth Bader Ginsburg is being denied a seat on the Supreme Court because she has openly called for a reduction in the Court's unlimited power. Just unbelievable.

Cross-Currents has a good post on this topic.

Bush: Israel's Best Friend Ever?

Months ago, I had an argument with DovBear about whether Bush is a great President for Israel. Obviously such a question sounds a little strange. What does it mean for a US President to be good for another country?

We disagreed on this fundamental point. He argued that a President that makes Israel do what's in its best interests is a President that's good for Israel. This argument struck me as odd. His definition is dependent on the answer to another question, namely what is good for Israel. So under his definition it would be impossible for two people who disagreed on what's in Israel best interests to agree on whether someone is a good President.

I argued that a President who allows the Israeli democratic machine to function is a good President. Israel is a sovereign state, with a democratic government fairly responsive to the people. A foreign leader should not impose his will on the people. So a good President is someone who lets Israel do what it wants, even if he feels those actions are not in its best interests.

This concept does not apply across the board. One could plausibly argue that a good President for Syria would be one that forced Assad out of Lebanon or made him implement human rights reforms. Why? Shouldn't the best President for Syria be the one who gives it a free hand?

No. Syria is not a democracy. The people cannot elect their leaders and so they cannot (directly) influence policy. A good President for Syria is one who gives them that option. If they choose to elect a dictator and support terrorism, that's their choice. We can, of course, use all type of pressure, military included, to force them out. But such actions would make the President a bad President for Syria.

Coming back to the key point: DB supported Clinton because he pushed Barak to make the Camp David and Taba offers. I disagreed precisely because of the pressure he put on Barak. Bush, for the most part, has let Israel do what it wants. That in my eyes makes him a good President for Israel.

Note: I am not saying the President cannot pressure Israel. The US gives Israel all kinds of political, military, and financial support. A President would be well within his rights to make Israel sign a peace agreement. But he would not be a good President for Israel.

Meeting Old Friends

We all have stories about how lost touch with friends from our childhood. Maybe it was because of distance or because we no longer had anything in common. And there's always the story about how we later met up with him and how awkward the moment was. Well, no one tells a story better than Josh. Check it out.

The First (Unpublished) Federal Decision on Abortion

Here's a speech by one of Judge Friendly's clerks, Judge Randolph of the DC Circuit. For the first time he makes public an unpublished opinion (the law was changed so the question was mooted before the decision could be published) by the eminent Judge Friendly. Essentially Friendly responded to the argument that the Constitution protected a right to privacy by pointing out that the theory that people should be allowed to whatever they want in the absence of harm to others (a Millsian concept) is not a constitutional principle and even if it was, the rights of the fetus should be taken into account. Roe, of course, ruled just the opposite.

Even the snippets we have in the speech far exceed the polemics of Roe. Roe is one of the worst decisions of the 20th century, not just because it reached an unconscionable result from a separation of powers perspective, but also because it extended an already contrived constitutional principle to even more absurd grounds without even explaining how the principle properly applies. How does abortion fall within a right of privacy? What about having an abortion is private? The decision? Well, would the action of running around naked in the street fall within this right because the decision to do so was private? And it's not enough that the state has a right to ban nude walking for other reasons. In the absence of those reasons would walking around naked be a private act? I can't imagine anything more public.

Roe led to decisions like Lawrence, which opened the door for all types of judicial intrusions into the domain of the legislature on the ground of protecting "privacy" or "liberty." Goodridge, the decision of the Supreme Judicial Court of Mass. that required the state to recognize same-sex marriage, was only possible because of Roe and its offspring. While liberals complain that Roe must be upheld or society will crumble, I believe it's the duty of the Supreme Court to overturn it, if just because it's a poor decision.

Mr. Miyagi Has Bowed Out for the Last Time

Pat Morita, who was most famous for his role as the dimunitive Mr. Miyagi in The Karate Kid, passed away this morning at the age of 73.

Update: Check out Bill Simmons' tribute to The Karate Kid trilogy.

More on Difficulty in Learning

A commentor made this argument:

Unfortunately I missed the begining of this argument so I was unable to respond to each comment individually. However, I will try to respond to some general arguments that were made as well as lay out my basic argument.

My Basic Argument: (this argument is only valid if you agree with my first statement if you dont there is no purpose of reading my argument and you have hashkafic issues to work out)As a frum jew, we believe the ultimate conclusion decided by teh Gemora is not only the final word but rather it is the emes. It is the truth we seek when learning. Consequently, we dont just take arguments and statements at face value but we analyze them under a microscope (sorry for teh cliche but its late and i cant articulate well at this time of night) to be certain that there is flaw or loop in the conclusion. Every decision has to be 100% correct. (This is also the reason why there are so many machlokasot in the Gemora. Naturally people will continue to argue if they are seeking to attain the proper meaning i.e. the truth) In contrast the american legal system is sadly a craps-shoot. As a Justice Cardozo so eloquentally said (I think it was him)law is decided by what teh judge eats for breakfast. This delineates the weak backbone that our legal system is butressed by. THere is no emes. There is no truth they are trying to attain. Judges just want to decide the case at hand as best as they possibly can while keeping time in the back of theri mind. they dont want to sit on each case for too long. any decision that is rational on its face will suffice.

I illustrate this extreme distinction to make the following point: whenever the conclusion attempting to be reached must be flawless the task to reach the conclusion will be extremely arduous. The thinking has to be deep, sharp, clear, etc. You cannot half-ass an answer when you are seeking truth. On teh other hand, if you only have to reach the most logical conclusion out of several possibilities (not neccessarily a flawless conclusion)your thinking doesnt have to be at its highest level. It need not be flawless. There could be holes in the logic.

Ill sum up my argument to make it clear: when attempting to seek teh truth (as in Gemora) a much more thoruogh analysis is required. Hence the conclusion is harder to reach and usually harder to grasp (at least at first). The reasoning is a fine line. Furthermore, gemora is not totaly finalized; it evolves whith each generation (every jew has their own chalek in learning) so we arent just reading other peoples decisions but we are also formulating arguments (sometimes new arguments) in an attempt to find the truth.

responding to the language barrier argument:The hebrew used by many achronim is much easier than the legalese used by proffessors in law review and other articles. As mentioned before by someone they intentionally write confusingly to show their brilliance.

The basic argument seems to be that searching for the truth is more difficult than deciding between a few different possibilities. This is especially true if the decisor is only looking for any rational decision because his argument need not be flawless.

I disagree for a few reasons. First, I think the commenter overemphasizes the concept of legal realism. Not all judges just randomly decide what decision to make. Judges have to apply legal concepts to the facts at hand. Yes, we sometimes have different reasonable alternatives, but the judge is trying to find the best one.

Second, many judges do look for objective truth. If judges are working to ascertain the original understanding of the Constitution, they are looking for a single idea. Stopping short of that idea would be a violation of their oath to uphold the Constitution. Any judge who does this is looking for objective truth is the same vein as a serious student of the Gemara.

Third, I also fail to see why having reasonable alternatives makes something easier. If a judge is faced with two equally plausible readings of a statute, he has to make a decision. In many cases there is no mechanism to find the correct reading (if such a thing exists). He has reached the end of the process. In Halacha we do the same thing. Sometimes we have equally plausible readings of a Rishon and we have to choose which one makes more sense. We lack the tools to reach the correct interpretation because no one can accurately determine his intent. In both cases we end up going on intutition.

Let's try to parallel Halacha and constitutional interpretation. If the judge is an originalist, he'll be looking for objective truth. The Halachist does the same thing. Both groups analyze the works of earlier scholars. Both groups analyze the text to find new meanings. I don't see why one is easier.

Women and In-Depth Learning

I had another conversation (related to the post below) about women learning Gemara. I contended that, given how women have reached the highest levels in all the other fields, that I see no reason why they couldn't become talmudic scholars. I'm not taking a position on whether they should, just that they could.

Basically his thesis was that men and women think differently. Our minds work differently. Men think more rationally, women think more "artsy" (not sure what he meant by that). Since Gemara is very rational, men can understand it, while women can't.

One of my arguments was that women do just fine in law school. I've met some pretty smart women, and I have no reason to believe if they were given years of proper training in Torah that they could be on the same level as any regular Yeshiva guy. As noted below, he argued that the level of difficulty is very different and that while women can think rationally on the basic level needed for law school, they cannot go beyond the surface and think deeper.

Obviously I disagree. There are some pretty deep rational fields (philosophy for example) where women do just fine. But that wasn't my problem with his argument. If someone wants to say that men and women think differently, fine. If he argues that men are better engineers because their minds work that way, and women better social workers because their brains are wired like that, OK. I might not agree, but I can see the argument.

But to contend that women can think rationally only on a lower level is just a fancier way of saying they are dumb. One key element of intelligence is the ability to think deeply. If women can't do that, they are just not as smart as men. Law school is not easy. In most cases it requires rational thought. To say that women can accomplish that, but can't think on a higher level is just to say they aren't intelligent enough to think on that level. I've seen no evidence of that.

Rav Chaim and Posner

One of the most difficult books I've ever read is Richard Posner's The Problems of Jurisprudence. Maybe I wasn't as familiar with Posner or legal theory at the time, but I read large chucks without having the slightest clue what he was talking about.

On another note, I was arguing with a friend today about whether shuir (classes we had in Yeshiva) was more difficult than law school. At the end we both agreed that law school is conceptually easier than the more difficult shuirs.

The point of disagreement was whether shuir is more difficult than high level legal theory. Law school is for the most part basic legal thought. It's like the basic shuirs we had when we started Yeshiva. It takes a while to get the thinking down, but once we have it, the concepts aren't difficult.

So here's the question for anyone who has ever done advanced studies in any field: do you feel that Rav Chaim (or any comparable work) is more difficult conceptually than whatever you are studying? Honestly I never attended a really difficult shuir on a consistent basis, but I have learned the more difficult achronim and I don't see them being more difficult if we remove the language barrier and we are able to work through the unclear language.

So what does everyone think?

Get Your Mind Out of the Gutter

A friend called today to tell me about how he had to make a doctor's appointment. Beforehand he spoke to the secretary to give over his insurance information. Here's the conversation:

"What's your insurance number?"

"A3V...."

"Wait, what was after the 3?"

"V as in Venus"

"You mean P?"

They both had a good laugh.

Political Shakeup in Israel

With Sharon leaving Likud, yet another Israeli government will end before its time. In fact only one government has ever completed its four year term, the first Begin government (1977-1981).

What do new elections portend for Israel? Well, the system is broken that's for sure. It lacks stability and grants too much power to minority parties. The US' winner-takes-all system is better suited to deal with diverse populations because it forces the politicians to compromise on key issues.

How will the new Sharon party do? Well it seems. Sharon is the most popular politician Israel has seen in years (maybe decades). He accomplished the impossible, getting out of Gaza, despite the internal pressure in his own party. Sharon is an excellent politician who has moved to the center in his old age. With Peretz heading Labor and Bibi probably running the Likud, the two traditional parties will move farther to the extremes and the void in the center will belong to Sharon. Shinui, which used to occupy the center (or purported to), will be relegated to the margins, as only the strict anti-establishment and anti-religious will vote for them.

I have a feeling that with Sharon's name, the parties' centrist positions, the extremism of the large parties, and the big names, Sharon's party will win big in March. Personally I hope they adopt Bibi's economic free market policies, which can only help the country. But either way this is a victory for Sharon.

Put a Space in your URLs Please

I'm kind of busy today, but I want to pass on something I read on Volokh.

Here are some domain names that might be getting the wrong message across:

whorepresents.com, expertsexchange.com, penisland.net, therapistfinder.com, and molestationnursery.com.

Seriously, who came up with these names? Did he not notice what the name looked like when he typed it in? Did he not care?

The Bounds of Historical Inquiry in Schools

Wow, that's a boring title. I guess this post is going to be about that somewhat, but it isn't going to be a treatise.

The Massachusetts Department of Education requires that all its schools teach about the Armenian Genocide. What's that you ask? Walk through the Old City of Jerusalem and you'll see the posters all over. It is alleged that during WWI, the Turks embarked on a campaign of extermination against the Armenians, and over one million died.

To date there is a still a dispute over whether those deaths were a result of genocide, with the minority taking the view that they weren't. But the Massachusetts Department of Education does not allow the minority view to be taught in its schools.

So a teacher and high school student decided to bring a suit against the school system on the grounds that such a restriction violates their free speech rights. I'm no scholar but I must have missed the part of Constitution which guarantees teachers the right to teach what they see fit. There are some bounds I'm sure.

But here's the point of the post: Let's say a teacher wanted to teach Holocaust denial. Let's say he passed out the screeds of Zundel or Irving. Could the school stop him? Does they have that right?

I would say yes. Volokh was correct that we should not bar the voicing of opinions that are contrary to our understanding of historical events, even if the case of the Holocaust (at least in the US). But I believe the school system has a right to decide what can be taught in its schools. It's not a free speech right because the government is not stopping the teacher from espousing the views, but only preventing him from doing it in the classroom. I'm sure this issue is more complicated than I make it seem, so let's move on.

When should minority opinions be taught? I would assume most sensible people would have a problem with Holocaust denial or the works of David Duke on slavery. But we can't proscribe every minority opinion. I would draw the line at where the opinion is espoused by a respected person. In the case of history that would mean someone with the requisite training (a Ph.D. if he's really in the minority) and respect within his community. A recognized historian like Raul Hilberg can argue that less than 5 million Jews died in the Holocaust. A drooling lunatic like David Irving, who speaks at neo-Nazi rallies and can't find a Jewish conspiracy he doesn't like cannot. We don't have the time to research every single opinion and we have to draw the line somewhere between legitimate opinion and insanity.

Who Said It?

"While I understand the dire need to "reign in" todays teenagers and instill clear and uncompromising standards of Tznius, not only with regard to the exact number of inches or centimeters that are permitted but also in regard to the sense and feel of Kol kevuda bas melech, nevertheless, presenting mussar as halachah and chumras as psakim is not the way to do it. That was the mistake of the first woman in history, Chava, when, after touching the aitz hadas, said to herself "I crossed the line already - i touched it and didnt die, so I may as well eat it." The Kli Yakar explains, that Adam added a "siyag" and told Chava that she is not allowed to touch the tee. But Chava did not understand that touchign was just a siyag, and she thought that when she touched, she already "crossed the line" of doing the aveirah, and she didnt die, so she may as well eat."

Bonus points if you can tell me who's he's criticizing.

Shabbos in the Village

No, no, this post is not going to be some post about how I met some transgendered naked he/she on my way home from shul, although it could be about that (and maybe should). It's going to be about my first Shabbos in my apartment.

Wow, it's too bad blogging on Shabbos is not allowed. This post would have been a lot more fun and a lot more bitter if it was written last night.

My roommate and I decided to stay in our apartment, located in the fine East Village, for Shabbos. He had done it before, so I figured everything would work out fine.

It didn't, although in the long run everything turned out OK.

My roommates uncle is a caterer and he sent us some ready made meals, like brisket, stuffed cabbage, meatballs, etc. So we were good for Friday night. We decided not to make chulent for Shabbos day, going with cold cuts and salad (which was a good choice). I wasn't so happy, but I'm not exactly culinarily- inclined and my roommate wasn't going to do it, so I decided to make the best of it.

Candle lighting in NY was 4:17, which put sundown at 4:35. We were going to have meatballs and brisket, and the meatballs were in the fridge so we knew we could warm it up quicker. At about 3:45 I realized no one took the brisket out of freezer yet. OK, so we had 45 minutes to defrost and warm up ice cold brisket. We quickly took the brisket and meatballs out and dumped it into our nonkosher oven (double wrapped of course, which makes warming it up take even longer).

Here was our problem. Our oven is about 800 years old, with one of those gas lines that never shuts off. We figured leaving on the oven for the entire day might not be such a good move. So we only had 45 minutes to warm up our food or we were only eating challah.

My roommate then realized we have a crock-pot. So why not put the food into the crockpot as a warmer? Great idea! So at 4:20 (brisket still ice cold) we plugged in the crockpot and put our food in. Then we noticed that the pot smelled like burning rubber. Which is a problem when we're living in a rent controlled apartment and not really supposed to be here (well, that's not totally true, but I'll explain another time). So setting off the fire alarm could be a really bad idea. So we had a dilemma: eat cold food or take a chance with the burning crock-pot? Screw it, we said (maybe I said), we want warm food! So we left it in.

At that point we had to daven mincha because sundown was right around the corner. Of course since neither of us davens here, we weren't sure which way to face. We spent the next 5 minutes trying to figure that out, but we both have a horrible sense of direction so we gave up and just faced whatever direction made the most sense.

We started davening and about 1 minute in my roommate let out a moan. What happened? I realized it too. We never made a Shabbos belt. There's no eruv in the village and no eruv hatziros in the building (or so we thought). So we couldn't carry out keys outside the building or even outside our apartment. So we couldn't lock our door.

We decided we'd leave the door open and go to daven. So we had three problems. We couldn't lock our door. We might have no food for the night. And our crockpot might catch on fire. Ah, good times. Oh, and we had no way back into the building. When we got to shul, there were only three people. So we left the building, taking those risks, to not even daven with a minyan.

Basically the rest of Shabbos went well, except I turned off the bathroom light (making going to the bathroom so much more fun!) and my roommate left his fan off so the lunatics yelling outside made sleeping more difficult (for him, I sleep like a rock).

Well that's it.

Isiah Thomas is a Bad GM

Bill Simmons, aka the Sports Guy, verbalizes what every Knick fan has been thinking about Isiah Thomas' moves over the last two years. What the hell is he thinking?

Here's some choice quotes:

"He has two overpaid centers who can't rebound or block shots: Eddy Curry and Jerome James. Amazingly, the James Era is already over -- Brown is routinely DNP-ing him. There wasn't even a honeymoon period with this one, just straight to the divorce. Unprecedented. Meanwhile, Curry has a mysterious heart problem that scared the Bulls enough that they practically gave him away. Good times all around."

"[Isiah] added three killer contracts for guys who played the exact same position (Rose, Jerome Williams and Maurice Taylor)."

"[Isiah] gave away his only center last February (Nazr Mohammed), then spent $30 million last summer on someone who was infinitely worse (James). "

"[Isiah] spent $55 million on a shoot-first point guard (Crawford) when he already had one, then traded for another shoot-first guard (Richardson) one year later."

Read the whole thing.

Interesting Discussion on Originalism

Over at theUniversity of Chicago Law Blog there's a debate raging in the comments of a Cass Sunstein post over interpretation and originalism. Check it out.

Preferential Treatment in Lakewood

Here's a pretty harsh article by the chairman of the Lakewood Improvement Association. He makes some interesting points. He's right about how the community has completely segregated itself and wants to have no contact with the outside world. It's true, for the most part, that the only contact they have with non-Jews is when the latter does menial work. It's true the schools are exclusive. It's true the community has political power that they sometimes can exercise to get what they want (although the Jewish community would tell you the police is out to get them). It's true that Jews are going to go all out to buy from a fellow Jew, even at a higher price. And it's true that some people in the community have no qualms cheating the government out of tax dollars.

But some of the complaints are way over the top. He's complaining that the prices of the houses are going up? People really are upset that they can sell their house for three times what they bought it? Here's an example that stinks a little too much of anti-Semitism:

"By allowing this to continue, by 2010 the demographics will have shifted so greatly that what once was a racially and socially diverse community will be a predominantly Orthodox Jewish community."

No one is stopping non-Jews from moving in. It's just that Jews are willing to pay the high prices for houses. Jews are willing to overpay for businesses. What's wrong with the market working itself out? Why can't Jews move together? Must every community be diverse?

Our children are affected due to the private schools that exclude the rest of the children within the community.

I don't get it. Private schools are private. They don't have to let everyone in. No one is stopping the non-Jews from starting their own schools.

they have lived here for any substantial amount of time, they know that businesses are being bought. People are offered money to move out of their homes.

How terrible! People are actually offering other people money for their houses? We have to find a way to stop this.

Hotels, motels and restaurants that were once community-owned and community-cherished are now solely the property of the Orthodox community to do with as they please.

Are non-Jews denied a room at these motels or a table at these restaurants?

Overall, he makes some good points. It's correct, certainly from his perspective, to bemoan the lack of cohesiveness in the community. It's OK for him to criticize illicit uses of political power. But it seems like he has a problem with the community becoming excessively Jewish. What exactly is his solution? Stop letting Jews by houses? Kick Jews out? I fail to see where this is going.

Update: Forgot about the best part:

"...and that they don't defile their sick with the blood of our sick."

I think LkwdGuy says it best:

"Exactly. Except before Pesach when we use your blood for our matzah."

Volokh on Holocaust Denial

Volokh makes an interesting argument against Holocaust denial laws. His basic thought is that banning academic opinions is counterproductive because we know what is fact from academic research and debate and when one side of the argument is closed off, we cannot be sure if the prevailing opinion is truly correct. That's certainly a pragmatic way of looking at protections of free speech.

Wow Law School Can Be Hard

Look at the time of this post. Normally I'd be in school, but not working. Tonight I'm actually doing work, and that's after writing eight pages of my note (article for my journal) during the 7 hours of class I had today. Now I have to do some serious research on the Full Faith and Credit Clause of the Constitution and figure out whether the Defense of Marriage Act violates the requirement of comity between states. Yeah, don't worry if none of that makes sense to you, it doesn't make sense to me either.

With the semester winding down I have tons of work to do for my classes, especially since I haven't been taking them all that seriously. Now I have to catch up. G-d I feel like a 1L all over again.

It's About Time

A new agreement between the Major League Baseball Players Union and the owners finally puts some teeth into the league's steroid policy. The first failed test is a 50 game suspension, the second costs 100 games and the third gets the player banned for life. The penalties this past year were pathetically weak (10 day suspension for first offense), but this set seems just right.

Saudis Lift The Boycott

As per a condition to receive World Trade Organization membership, Saudi Arabia will no longer abide by the Arab League's economic boycott of Israel. Is this evidence that the Saudis finally came to the conclusion that Israel isn't going away? I doubt it, but it shows more and more acceptance of Israel in the Arab world. Israel has trade relations with a few Arab countries, but if it were to begin trade with Saudi Arabia, the holiest Muslim country, that would signify a major improvement in Israel's standing in that part of the world. While this move should have happened decades ago, better late than never I guess.

Number Two for ARod

As predicted, ARod won the MVP, although by a fairly small margin. Two factors probably played prominent roles: he plays defense (well) and his team came in first place. The voters got it right this time, unlike the Colon pick for AL Cy Young.

Why Support the Torture Amendments?

Andrew C. McCarthy argues that we shouldn't. As he puts it, the amendment "is two parts grandstanding and one part suicide." The affirmations against torture are meaningless because torture is already illegal under US law. It is also useless because even though the US has signed and ratified the Convention Against Torture, it did so with the express reservation that the convention not conflict with the fifth, eighth, and fourteenth amendments of the Constitution. Since those amendments have been consistently interpreted to only apply to criminal prosecutions, the CAT, as accepted by our government, does not apply to enemy combatants. The McCain amendment does not change the status quo, though, as it reaffirms our commitment to CAT.

But the change that is relevant is that interrogation techniques "shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation." As it stands, the manual forbids any force during interrogation. McCarthy is right that it is foolish to create a broad rule forbidding force (even well short of torture) in all circumstances.

A McCarthy article last year argued that forms of torture should be used in certain circumstances. McCarthy continues to support the idea that the taboo against torture should be reevaluated to fit the reality of the modern day terrorist war, where intelligence is the number one protection against the slaughter of thousands. We must balance our commitment to the protection of human dignity with the need to protect our citizens. Can we just pay lip service to security to ensure no terrorist has to face indignity? I would think not.

I'm not advocating widespread torture and agree with the idea of a torture warrant first proposed by Alan Dershowitz. But anyone who believes that certain methods of physical and psychological coercion should not be used even when the probability of obtaining life saving intelligence is high, should not be running our government.

Is Bush a War Criminal?

Eric Posner deals with the question of whether it's fair that Saddam should be put on trial but not Bush. He goes through the litany of charges that are thrown at Bush, and shows that it's difficult to pin on him war criminal status. But his major focus is not whether Bush is a war criminal, but whether it would make sense for states to try him as one. And to this question he answers no, because many of Bush's wrongs were policies of previous American administrations, not to mention leaders of other (even democratic) countries. Furthermore, trying Saddam can accomplish other worthwhile political goals.

Such is the fate of international criminal law. Because much of the law is based on custom (notwithstanding the ICC), and there's little agreement as to whether a norm has been sufficiently followed to fall into that category, there can be little prosecution in the international realm on international criminal grounds. It's difficult to justify prosecution of war criminals for a violation of international law unless one admits that the trials are just political and are not based on any form of international law.

However, Saddam's trial is in Iraq and is being prosecuted by the people of that country. So we avoid the problem of having the victor punish the loser. If Bush is a war criminal and the US would be trying Saddam, perhaps the claims of unfairness would have some teeth (although Saddam would be a fair greater criminal). But the people he harmed are trying him. The grounds on which he is being tried are the breaches of international human rights, but Saddam never allowed the people to exercise their will by outlawing the methods of murder he utilized. Perhaps as a strictly legal matter, his trial violates due process (if we assume international criminal and human rights law do not really serve any purpose), but as a political and moral matter the people of Iraq trying Saddam is completely just.

A Husband and Wife Both Have Responsibilities

My cousin told me about this article he read in Lakewood (not verbatim):

When a husband and wife are fighting, life must go on. The wife must continue to make her husband's dinner. And the husband, no matter how upset, must eat it....

Afternoon Cartoons in Iran

Check this out. Propaganda at its finest. And they start young too.

(Hat Tip: Amshinover)

Roe v. Wade: The Most Important Decision in History?

With so much emphasis placed on determining Alito's position on Roe, I'm wondering about the status of Roe as a landmark case in constitutional law. Although no one will openly admit it, Roe is used today as a litmus test to see if a nominee's positions are out of the mainstream. There are many other important decisions, so why is Roe so important?

What does Roe represent to the Left? It guaranteed women the right an abortion in early term pregnancies through finding a constitutional right. But I don't think that finding the right by itself explains the Left's infatuation because most Americans are willing to enact laws that would give them the same right.

I believe Roe is a starting point. It is the decision that epitomizes reproductive rights and freedoms; and those freedoms garnered women the ability to control their life. A women who can decide when and where to end a pregnancy is a women who is free to live her life as she sees fit. She can decide to have a family or not to have a family. She can choose career over children. These freedoms are the central element of feminism.

The overarching concern of the Left is equality (not liberty since they conflict). A woman can only be equal if she not only has the same rights, but also the same impediments as men. Men do not have to stop their career if the birth control fails. Only an iron-clad, guaranteed right to abortion can truly equalize women and men in the eyes of the intellectual Left (and by that I mean the people who actually understand that overturning Roe will not end abortion in the US). It is not enough to leave the abortion question to democratic deliberation because there's a chance these freedoms will be constrained.

So in essence a nominee who opposes Roe is a nominee who opposes women's equality.

Rioting in France

Given the riots all over France, I think an earlier post of mine might be apt. It'll be interesting to see how France handles this problem.

Judaism and Strict Constructionism

Richard Silverstein at Tikkun Olam argues that the Halachic system is at odds with strict constructionism. He brings down the famous Talmudic passage in tractate Baba Metzia 59a, where despite divine support for the position of one of the rabbis, the Halacha was decided according to the disagreeing majority. From this story he concludes that strict constructionism and halachic interpretation are inconsistent:

"So to the strict constructionists I say: our body of law has been around a lot longer than yours (constitutional law). And if “the law is according to the majority” (i.e. that the law is decided through contemporary judicial deliberation and not through channeling the Framers) is good enough for the Talmud, you might want to sit and ponder why you’re at odds with one of the world’s great legal traditions."

In a symposium in Commentary Magazine, Alan Dershowitz in essence made the same point (using the same story).

My understanding of the analogy goes like this: G-d had an original intent but we follow the opinions of the later generations, even when it conflicts with that intent. Applied to the Constitution we would say that even if the framers had an intent, we ignore the intent and later generations decide the law. In other words Halacha is a precedent for a living Constitution.

The analogy is flawed, and I believe that his argument also rests on a flawed assumption and a lack of understanding of what strict constructionism means.

First, strict constructionism has nothing to do with framers intent. It's simply another way of referring to textualism (although not all textualists are strict constructionists). Textualism means interpreting the text according to its simple meaning. When the text is unclear, that's when textualism ends and another interpretive method must be employed. Many judicial conservatives will supplement textualism with originalism, which deals with framers' understanding (not intent) but the two need not go hand in hand. Hugo Black was a textualist, but was not an originalist. People too often confuse these terms.

Second, he assumes that since G-d decided the question one way and the majority decided the question differently, that they are ignoring his intent. But originalism is not about pretending we are James Madison. The task is to determine how the principles were understood and apply those principles to the facts today. Madison might have done it one way, but we can apply them differently and still be originalists. So the Rabbis could have been basing their decision on G-d's intent, but just disagreeing with how to apply his intended principles.

Lastly, Halacha and constitutional law are very different in nature. One of the most common criticisms of originalism is that it makes the law too rigid. An originalist interpretation of the Commerce Clause would make much of federal law and all administrative agencies unconstitutional. Clearly our society cannot survive that way.

But the founders were prescient enough to provide us with a tool to change the Constitution if it's arcane: The Article V Amendment power. If the Commerce clause, interpreted according to its original understanding, is insufficiently broad enough for a federal government in modern society, the Constitution can be amended to give Congress that power.

Halacha has no such process. All Halachic decisions are judicial and cannot be overridden democratically or through amendment. So Halacha requires flexibility and broad interpretation to avoid becoming irrelevant. Therefore a different mode of interpretation must be employed. The systems are sufficiently different to make any such comparisons moot.

Alito is Not O'Connor? Who Would Have Thought?

The People For the American Way just issued a new press release pointing out that Alito is to the right of O'Connor on some issues. They list a few cases where Alito's decision would have left in place a more conservative statute, which somehow implies that Alito is more right-wing.

Here's a choice quote:

"Alito’s confirmation to the Supreme Court would unquestionably shift the Court far to the right, to the detriment of all Americans. "

All Americans? Uh, why would shifting the Court to the far-right (which Alito's confirmation will not do as Jack Balkin correctly argues) hurt all Americans? Don't some Americans have far-right positions?

Who writes this tripe?

Halacha and Transfer

There's a debate raging (ok maybe not raging) on DovBear's blog about Halacha (Jewish law) and transfer. For the politically uninformed transfer is a euphemism for removing the Arab population from Israel and the West Bank; in other words, ethnic cleansing.

What exactly does Halacha mandate regarding transfer? Well, to start transfer is a state issue, not an individual question. What's the difference? Let's say Halacha prohibits the permanent sale of land in Israel to non-Jews. This Halacha will apply in two different situations. First, any individual who follows Halacha would be obligated to discriminate against non-Jews and not sell him the land. That much is probably clear.

However, should the State of Israel pass a law outlawing such sales? That's a different question and one I would answer in the negative. It's the same by Shabbos (Sabbath). Every individual Jew must follow the laws of Shabbos. But I do not believe the government should mandate Shabbos observance.

Transfer is a public question. Expelling every non-Jew who denies our right to the land (and doesn't follow the sheva mitzvos b'nei Noach/Noachide code) is a policy only the state can carry out. So the age old question of whether the government should apply Halacha is relevant here. I believe it shouldn't because forcing Halacha on an unwilling populace is counterproductive and would decrease observance.

Besides for the question of whether the public policy of the State of Israel should be guided by Halacha, there's also an issue of the relevance of the question in the first place. Halacha, like all systems of law, apply legal norms to fact situations. The applier is someone fluent in law and with good judgment and a proper understanding of the factual circumstances. If the applier is missing the facts, he cannot give a decision, because the facts are integral.

The transfer question is, as legal terminology would put it, not ripe. The State of Israel is not going to take upon itself the strictures of Halacha any time soon. So all we have right now all hypothetical predications about the ramifications of transfer. These ramifications are facts relevant to the decisions. So any legal decisor who issues a ruling without these facts is giving an incomplete decision and one that isn't binding.

A supporter of transfer might argue that the Halacha has already been decided because the Rishonim (early legal scholars whose opinions carry great weight) are unanimous. I don't think that's true, but that's not relevant anyway. The Rambam (Maimonides) lived over a thousand years ago. His opinion did not take into account many of the factors involved in transfer. This is not a knock on him, but just the reality. Every legal decision applies only to its facts.

Subsequent scholars or judges apply these decisions, called precedents, to new and distinct factual situations. In other words, the Rambam's position will be looked at and weighed if this question ever comes up. So if and when that occurs, then the legal scholars can weigh all the facts and apply all the precedents. But until then, the question is merely academic.

I'm not saying we should ignore the Rambam. G-d forbid. His opinion is a precedent, like the past decisions of the Supreme Court. When the Court receives a question it does not just look at the precedent and apply it because the facts of the earlier cases are necessarily different from the facts in the case in front of it. Every case is different.

Goodbye Miers Hello Scalito

President Bush's pick of Samuel Alito to replace Sandra Day O'Connor represents an important shift to the right. O'Connor was conservative on many issues, but less conservative on others. I haven't done my homework (yet) but Alito seems to be a more consistent conservative. Perhaps McConnell would have been better, just because he has so much support from academic liberals (which would make filibustering him a real political disaster), but Alito has gotten serious praise from conservatives and disdain from liberals. For the time being that's a good enough indicator for me.